OFFICE BUILDING LEASE
THIS LEASE, made as of this 28th day of December, 2001, by and
between Standard Management Corporation, an Indiana corporation
("Landlord"), and Standard Life Insurance Company of Indiana, an
Indiana life insurance company ("Tenant").
W I T N E S S E T H:
1. Premises. As used in this Lease, the term "Building" shall
mean the building containing approximately 56,179 rentable square
feet constructed on a tract of land shown on Exhibit A attached
hereto ("Lot") located at 00000 X. Xxxxxxxxxxxx, in Indianapolis,
Indiana (the Building, the Lot and any other improvements thereon
being hereinafter collected called the "Property"). Landlord does
hereby demise and let unto Tenant, and Tenant does hereby lease
and
take from Landlord, for the term and upon the terms, covenants,
conditions and provisions set forth herein, all that certain
portion of the first and second floors of the Building. containing
approximately 43,092 square feet as shown cross-hatched on Exhibit
B attached hereto (the "Premises"), together with the right, in
common with other occupants of the Building, to use the driveways,
sidewalks, loading and parking areas, lobbies, hallways and other
common area facilities. Tenant agrees that Tenant's consent shall
not be required for any additions, reductions or modifications of
such common area facilities, including the construction of free-
standing buildings on any portions of the common areas.
2. Term. The term of this Lease (the "Term") shall commence on
January 1, 2002 (the "Commencement Date"), and shall end on
December 31, 2011 (the "Termination Date"), unless otherwise
extended or sooner terminated as provided herein, subject to the
terms, covenants and agreements herein contained.
3. Minimum Rent. Tenant shall pay an annual Minimum Rent
initially calculated at $17.50 per square foot of the Premises, in
equal monthly installments, in advance, on the first day of each
calendar month during the Term, without any prior demand therefor
and without any deductions or set-offs whatsoever; provided,
however, that rent for the first full month shall be paid upon the
execution of this Lease by Tenant. If the Term commences on a day
other than the first day of a calendar month, or ends on a day
other than the last day of a calendar month, then the Minimum Rent
for such fractional month shall be prorated on the basis of
1/365th of the annual Minimum Rent for each day of such fractional
month. After this Lease has been in effect for 60 months, the
Minimum Rent shall be adjusted once thereafter by taking the
Minimum Rate then in effect and multiplying it by the cumulative
percentage change in the U.S. Consumer Price Index for the prior
60-month period, and adding the result of such calculation to the
previous Minimum Rent ("Adjusted Minimum Rent"). This Adjusted
Minimum Rent shall be payable, in equal monthly installments,
beginning with the installment due on the first day of the sixty-
first (61st) month, and through the remainder of the Term. In
addition, Tenant shall pay Landlord without set-off the additional
rent as hereinafter set forth. Unless otherwise specifically
provided, all sums shall be paid to Landlord at the address given
in Paragraph 25 hereof.
4. Additional Rent.
(a) Annual Operating Costs. In addition to the Minimum Rent
provided in Paragraph 3, Tenant shall pay annually as additional
rent an amount equal to Tenant's pro rata share of Annual
Operating Costs payable or incurred by Landlord in any calendar
year. Tenant's pro rata share shall be a fraction, the numerator
of which shall be the square feet of space in the Premises and the
denominator shall be the square feet of space leased in the
Building. The term "calendar year" as used herein shall include
any partial calendar year.
Annual Operating Costs shall mean all expenses, costs and
disbursements (including Taxes, as hereinafter defined) of every
kind and nature which Landlord shall pay, incur or become
obligated to pay in respect of a calendar year because of or in
any way connected with the ownership, leasing, management,
maintenance, insuring repair and operation of the Property,
including a charge of twenty percent (20%) of all of the foregoing
costs and expenses to cover Landlord's administrative and overhead
costs, and excepting there from the following:
(i) costs of alterations of tenant spaces;
(ii) costs of capital improvements, except for costs,
including interest thereon, as reasonably amortized and determined
by Landlord, where one of the purposes of such capital
improvements was to reduce Annual Operating Costs or where such
capital improvements are made in compliance with the requirements
of any federal, state or local law or regulation or where such
capital improvements directly enhance the safety of tenants in the
Building generally; and
(iii) depreciation, interest and principal payments on
mortgages, and other debt costs, if any.
Taxes shall mean all taxes and assessments of every
kind and nature which Landlord shall become obligated to pay with
respect to each calendar year of the Term or portion thereof
because of or in any way connected with the ownership, leasing,
and operation of the Property subject to the following:
(vv) the amount of ad valorem real and personal property
taxes against Landlord's real and personal property to be included
in Taxes shall be the amount assessed for any calendar year,
notwithstanding that such taxes are billed and payable in a
subsequent calendar year. The amount of any tax refunds received
by Landlord during the Term of this Lease shall be deducted from
Taxes for the calendar year to which such refunds are
attributable;
(ww) the amount of special taxes and special assessments to
be included shall be limited to the amount of the installments
(plus any interest, other than penalty interest, payable thereon)
of such special tax or special assessment payable for the calendar
year in respect of which Taxes are being determined;
(xx) the amount of any tax or excise levied by the State of
Indiana, County of Xxxxxxxx, or the Township of Clay, any
political subdivision of either, or any other taxing body, on
rents or other income from the Lot (or the value of the leases
thereof) to be included shall not be greater than the amount which
would have been payable on account of such tax or excise by
Landlord during the calendar year in respect of which Taxes are
being determined had the income received by Landlord from the
Building [excluding amounts payable under this subparagraph (xx)]
been the sole taxable income of Landlord for such calendar year;
(yy) there shall be excluded from Taxes all income taxes
[except those which may be included pursuant to subparagraph (xx)
above], excess profits taxes, franchise, capital stock, and
inheritance or estate taxes; and
(zz) Taxes shall also include Landlord's reasonable costs
and expenses (including reasonable attorneys' fees) in contesting
or attempting to reduce any Taxes for any calendar year.
(b) Payment of Annual Operating Costs. After the end of each
calendar year of the Term, Landlord shall compute the Annual
Operating Costs described in subparagraph (a) for such calendar
year, except that in calculating such costs, Landlord shall make
an adjustment (i) for those specific costs which Tenant or any
other tenant has agreed to separately pay, and (ii) to avoid
attributing to any vacant space those specific costs which were
not incurred for such space. Tenant, promptly upon being billed
therefor, shall pay to Landlord the additional rent described in
subparagraph (b) hereof. If only part of any calendar year shall
fall within the Term, the amount computed as additional rent with
respect to such calendar year under the foregoing provisions shall
be prorated in proportion to the portion of such calendar year
falling within the Term. The expiration of the Term prior to the
end of such calendar year shall not impair Tenant's obligation to
pay such prorated portion as aforesaid.
Notwithstanding the foregoing provisions of this Paragraph
4 to the contrary, Landlord shall have the right, at its option,
to make from time to time during the Term a reasonable estimate of
Tenant's share of the additional rent which may become due
hereunder with respect to any calendar year (set at $5.50 per
square foot), and to require Tenant to pay to Landlord, at the
time the monthly installments of Minimum Rent are payable, an
amount equal to 1/12th of Tenant's share of the Annual Operating
Costs so estimated by Landlord commencing on the first day of the
month following the month in which Landlord notifies Tenant of the
amount of such estimate. Landlord may from time to time revise its
estimate of such amount for such calendar year, and in such event,
Tenant shall pay to Landlord upon receipt of Landlord's invoice
therefor, the amount of any underpayment by Tenant for such
calendar year to the date of the revised estimate.
Landlord shall cause the actual amount of Tenant's share
of the Annual Operating Costs to be computed and certified to
Tenant within one hundred and twenty (120) days following the end
of such calendar year (or as soon thereafter as may be
practicable), and Tenant shall within ten (10) days of receipt of
the certification thereof pay to Landlord the amount of any
deficiency or Landlord shall credit any overpayment to Tenant's
account for the following year, as the case may be. Failure or
delay in delivering any such certification or invoice, or failure
or delay in computing the additional rent pursuant to this
Paragraph 4, shall not be deemed a waiver by Landlord of its right
to deliver such items nor shall any such failure or delay be
deemed a release of Tenant's obligations with respect to any such
certification or invoice, or constitute a default hereunder. All
additional rent payable hereunder shall be made without any
deductions or set-offs whatsoever. In the event this Lease shall
expire or terminate prior to the end of a calendar year, Landlord
reserves the right to estimate any underpayment by the Tenant for
such calendar year, and Tenant shall pay to Landlord such estimate
upon receipt of Landlord's invoice therefor, and the final
adjustment of Annual Operating Costs for such calendar year shall
thereafter be made in the manner previously described in this
subparagraph (b).
5. Use of Premises. Tenant shall occupy the Premises throughout
the Term and shall use the same for and only for general office
purposes and for no other purposes whatsoever without the written
consent of the Landlord. Tenant shall not permit waste or damage
to the Premises or Property nor shall Tenant violate any laws,
ordinances, notices, orders, rules, regulations or requirements of
any federal, state or municipal government or any department,
commission, board or officer thereof, or of the National Board of
Fire Underwriters or any other body exercising similar functions,
relating to the Premises or to the use or manner of use of the
Property, nor shall Tenant perform any acts or carry on any
practices which may injure the Property or the Premises or be a
nuisance, disturbance or menace to any other tenants of the
Building. Upon breach of this Xxxxxxxxx 0, Xxxxxxxx shall have
the right to terminate this Lease forthwith and to re-enter and
repossess the Premises, but Landlord's right to damages shall
survive. Tenant will not do anything or fail to do anything which
will cause the cost of Landlord's insurance to increase or which
will prevent Landlord from procuring policies (including, but not
limited to public liability) from companies and in a form
satisfactory to Landlord. In the event Tenant's breach of the
foregoing covenant shall cause the rate of fire or other insurance
to be increased, Tenant shall pay the amount of such increase as
additional rent promptly upon being billed therefor.
6. Services.
(a) Utilities. Landlord shall furnish the Premises with
electricity at all times and heating and air conditioning for the
normal use and occupancy of the Premises as general offices
between 8:00 a.m. and 6:00 p.m., Monday through Friday and between
8:00 a.m. and 1:00 p.m. Saturday of each week during the Term
(legal holidays excepted). Such of the foregoing services as
Tenant may desire at other times shall be supplied by Landlord,
upon reasonable prior notice, at such rates as Landlord shall
establish from time to time for office tenants of the Building.
If Tenant shall require electricity or install electrical
equipment, including, but not limited to electrical heating,
refrigeration equipment, electronic data processing machines,
computers (other than personal computers or word processors), or
other machines or equipment which will in any way increase the
amount of the electricity usually furnished for use as general
office space, or if Tenant shall attempt to use the Premises in
such a manner that the services to be furnished by Landlord would
be required during a period other than or in addition to the
business hours referred to above, Tenant will obtain prior written
approval therefor from Landlord (and Landlord may require the
installation of a separate sub-meter) and will pay for the
resulting additional direct expense, including the expenses
resulting from the installation of such equipment and meters and
from any modifications to the electrical system of the Building
which Landlord deems necessary, as additional rent promptly upon
being billed therefor. Landlord shall provide water from City of
Indianapolis mains for drinking, lavatory and toilet purposes
drawn through fixtures installed by the Landlord, or by the Tenant
with Landlord's written consent, from regular Building supply at
the prevailing temperature. Tenant shall not waste or permit the
waste of water. Landlord shall further provide adequate
operatorless passenger elevator service at all times and freight
elevator service subject to the scheduling by Landlord. Landlord
shall replace, at Tenant's expense, all light bulbs, tubes and
ballasts. Landlord does not warrant that any of the services
referred to above or any other services which Landlord may supply
will be free from interruption. Tenant acknowledges that any one
or more of such services may be suspended by reason of accident or
of repairs, alterations or improvements necessary to be made, or
by reason of causes beyond the reasonable control of Landlord and
any such interruption of service shall never be deemed an eviction
or disturbance of Tenant's use and possession of the Premises or
any part thereof or render Landlord liable to Tenant for damage by
abatement of rent or otherwise or relieve Tenant from performance
of Tenant's obligations under this Lease, however, if such
services are interrupted for thirty (30) consecutive days and
Tenant is unable to conduct business from the Premises, minimum
rent shall xxxxx until the service is restored. Landlord agrees
to use reasonable care and to exercise due diligence with respect
to avoiding interruption of the services above provided for and,
if interrupted, agrees that it will be for as short a period as
possible, and all repairs will be promptly and diligently made at
such times as will not unduly interfere with the occupancy and use
of the Premises by Tenant.
If at any time during the Term utility services supplied
to the Property are separately metered for the Premises, the cost
of such separately metered utility service shall be paid by Tenant
promptly upon being billed therefor, whether such billing be by
Landlord or the utility company. The charge to Tenant by Landlord
for electricity consumption shall be the same retail rate which
would be payable if Tenant purchased electricity directly from the
utility company, including applicable taxes and fuel adjustment
charges.
Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which such floor
was designed to carry and which is allowed by law. Landlord
reserves the right to prescribe in a reasonable manner the weight
and position of all safes and heavy installations which Tenant
wishes to place in the Premises so as to properly distribute the
weight thereof. Any cost of structural analysis shall be borne by
Tenant.
Business machines and mechanical equipment belonging to Tenant
which cause unreasonable noise or vibration that may be
transmitted to the structure of the Building or to any leased
space to such a degree as to be objectionable to Landlord or to
any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate such unreasonable noise or
vibration.
All charges for any services shall be deemed rent reserved
under this Lease and shall be due and payable at the same time as
the installment of rent with which they are billed, or, if billed
separately, shall be due and payable within ten (10) days after
such billing. In the event Tenant shall fail to make payment for
such services, Landlord may, in addition to all other remedies
which Landlord may have for the non-payment of rent and without
notice to Tenant, discontinue any and all such services, and such
discontinuance shall not be held or pleaded as an eviction or as a
disturbance in any manner whatsoever of Tenant's possession, or
relieve Tenant from the payment of rent when due, or vary or
change
any other provision of this Lease or render Landlord liable for
damages of any kind whatsoever.
(b) Janitorial Services. Landlord will provide Tenant with
trash removal and janitorial services. Tenant shall not provide
any janitor services without Landlord's written consent and then
only subject to supervision of Landlord and at Tenant's sole
responsibility and by a janitor, contractor or employees at all
times satisfactory to Landlord, but not as agent or servant of
Landlord.
(c) Additional Heating or Cooling Equipment. If any lights,
machines or equipment including, but not limited to, computers
used by Tenant in the Premises, materially affect the temperature
otherwise maintained by the Building's HVAC system, or generate
substantially more heat in the Premises than that which would be
generated by lights, machines or equipment used in connection with
a typical office use or operation, Landlord shall have the right
to install in the Premises or the Building such machinery or
equipment (including, but not limited to, equipment which modifies
the Building's HVAC system) as Landlord shall deem reasonably
necessary in order to restore the temperature balance between the
Premises and the remainder of the Building. All costs expended by
Landlord to install such machinery and equipment and any costs of
operation and maintenance occasioned by such installation shall be
paid by Tenant upon Landlord's demand therefor.
7. Possession. If Tenant shall enter possession of all or
any part of the Premises prior to the date fixed above for the
first day of the Term as permitted under this Lease, all of the
covenants and conditions of this Lease shall be binding upon the
parties hereto in respect of such possession the same as if the
first day of the Term had been fixed as of the date when Tenant
entered such possession, but Tenant shall not be obligated to pay
to Landlord rent for the period prior to the first day of the Term
of this Lease.
8. Condition of Premises. Tenant's taking possession of any
portion of the Premises shall be evidence that such portion of the
Premises were in good order and satisfactory condition when the
Tenant took possession, except as to punch list items agreed upon
by Landlord and Tenant and latent defects (which exception shall
be effective for thirty (30) days following the date the Premises
are ready for occupancy, excluding items of damage caused by
Tenant, its agents, contractors and suppliers). No promise of the
Landlord to alter, remodel, repair or improve the Premises or the
Building and no representations respecting the condition of the
Premises or the Building have been made by Landlord to Tenant,
other than as may be contained herein or in a separate work letter
agreement signed by Landlord and Tenant.
9. Repairs and Maintenance. Except as otherwise provided in
Paragraph 12 of this Lease, and subject to the provisions of
Paragraph 10 of this Lease, Tenant shall, at its sole cost and
expense, keep the Premises in good order, repair and tenantable
condition at all times during the Term, and Tenant shall promptly
notify Landlord of all damages to the Premises and of all damaged
or broken glass, fixtures and appurtenances within the Premises
and Landlord shall thereafter repair or replace the same at
Tenant's sole cost and expense; provided, however, that Tenant
shall not be required to pay for the repair or replacement of
broken or damaged exterior window glass unless such repair or
replacement is necessitated by the act, failure to act, or neglect
of Tenant, its servants, employees, agents, invitees or guests.
The costs paid or incurred by Landlord for such repairs and
replacements (including Landlord's overhead and profit, and the
cost of general conditions) shall be deemed additional rent
reserved under this Lease due and payable forthwith. Landlord
may, but shall not be required so to do, enter the Premises at all
reasonable times to make any repairs, alterations, improvements or
additions, including but not limited to, ducts and all other
facilities for heating and air conditioning service, as Landlord
shall desire or deem necessary for the safety, maintenance,
repair, preservation or improvement of the Building, or as
Landlord may be required or requested to do by the City of
Indianapolis or by the order or decree of any court or by any
other proper authority.
In the event Landlord or its agents or contractors shall
elect or be required to make repairs, alterations, improvements or
additions to the Premises or to the Building, Landlord shall be
allowed to take into and upon the Premises all material that may
be required to make such repairs, alterations, improvements or
additions and, during the continuance of any of said work, to
temporarily close doors, entry ways, public space and corridors in
the Building and to interrupt or temporarily suspend any services
and facilities without being deemed or held guilty of an eviction
of Tenant or for damages to Tenant's property, business or person,
and the rent reserved herein shall in no way xxxxx while repairs,
alterations, improvements or additions are being made, and Tenant
shall not be entitled to maintain any set-off or counterclaim for
damages of any kind against Landlord by reason thereof. Landlord
may, at its option, make all such repairs, alterations,
improvements, or additions in and about the Building and the
Premises during ordinary business hours, but if Tenant desires to
have the same done at any other time, Tenant shall pay for all
overtime and additional expenses resulting therefrom.
10. Alterations, Additions and Fixtures.
(a) Subject to the provisions of Paragraph 11 hereof, Tenant
shall have the right to install in the Premises its trade fixtures
from time to time during the Term of this Lease; provided,
however, that no such installation or removal thereof shall affect
any structural portion of the Premises or the Building and that
Tenant shall repair and restore any damage or injury to the
Premises or the Property caused thereby.
(b) Tenant shall not make or permit to be made any
alterations, improvements, additions, or repairs to the Premises
or Property without on each occasion first presenting to Landlord
plans and specifications therefor and obtaining Landlord's prior
written consent thereto, such consent not to be unreasonably
withheld or delayed. Tenant shall pay to Landlord all costs
incurred by Landlord in connection with its review of Tenant's
plans and specifications, but excluding initial construction prior
to the Commencement Date. If Landlord shall consent to any such
proposed alterations, improvements, additions or repairs, then
Tenant shall make the proposed alterations, improvements,
additions or repairs at Tenant's sole cost and expense provided
that: (i)Tenant supplies any necessary permits and certificates
of insurance therefor; (ii)such alterations, improvements,
additions and repairs do not impair the structural strength of the
Building or any other improvements or reduce the value of the
Property; (iii)Tenant shall take or cause to be taken all steps
that are required by Paragraph 11 hereof and that are required or
permitted by law in order to avoid the imposition of any
mechanics', laborer's or materialman's lien upon the Premises,
Building or Property; (iv) Tenant shall use a contractor approved
by Landlord; (v) the occupants of the Building and of any
adjoining real estate owned by Landlord are not annoyed or
disturbed by reason thereof; (vi)all such work shall, at
Landlord's election, be subject to supervision by Landlord, and
Tenant shall promptly pay Landlord the reasonable cost of all such
supervision; (vii) all repairs, replacements, alterations,
improvements and additions shall be constructed in a good and
workmanlike manner with only good grades of material being used,
and shall be of a quality and type equivalent to or better than
the original construction; and (viii) all such work shall comply
with applicable laws and building codes. Tenant hereby agrees to
protect, defend, indemnify and hold Landlord and the Property
harmless from and against any and all liabilities of every kind
and description which may arise out of or in connection with such
repairs, replacements, alterations, improvements or additions.
Neither Landlord's consent to any such alternations, improvements,
additions or repairs nor Landlord's approval of the plans and
specifications therefor shall imply that the items approved are in
compliance with applicable laws, ordinances or codes, and Landlord
shall have no liability to Tenant or any other party by reason of
the existence of such approval rights.
Any and all alterations, improvements, additions and
repairs to the Premises which are constructed, installed or
otherwise made by Tenant shall be the property of Tenant until the
expiration or sooner termination of this Lease; at that time all
such alterations, improvements and additions shall remain on the
Premises and become the property of Landlord without payment
therefor by Landlord unless, prior to or upon the expiration or
termination of this Lease, Landlord shall give written notice to
Tenant to remove the same, in which event Tenant will remove such
alterations, improvements and additions within ten (10) days after
the expiration or termination of this Lease, and repair and
restore any damage to the Premises or Property caused by the
installation or removal thereof.
11. Mechanics' Liens. Tenant shall promptly pay any
contractors and materialmen who supply labor, work or materials to
Tenant at the Premises or the Property so as to avoid the
possibility of a lien attaching to the Premises or the Property.
Tenant shall take all steps permitted by law in order to avoid the
imposition of any mechanics', laborer's or materialman's lien upon
the Premises, the Property or the Lot. Should any such lien or
notice of lien be filed, Tenant shall discharge the same within
fifteen (15) days after the lien or claim is filed or formal
notice of said lien or claim has been issued, and shall also
indemnify Landlord and hold it harmless from any and all claims,
losses, damages, judgments, settlements, costs and expense
(including attorneys' fees) resulting therefrom or by reason
thereof. If Tenant has not removed such lien or claim within such
fifteen (15) day period, Landlord may, but shall not be obligated
to, pay the amount necessary to remove such lien, without being
responsible for making any investigation as to the validity or
accuracy thereof, and the amount so paid, together with all costs
and expenses (including reasonable attorneys' fees) incurred by
Landlord in connection therewith, shall be deemed additional rent
reserved under this Lease due and payable forthwith. Nothing in
this Lease is intended to authorize Tenant to do or cause any work
or labor to be done or any materials to be supplied for the
account of Landlord, all of the same to be solely for Tenant's
account and at Tenant's risk and expense. Throughout this Lease
the term "mechanics' lien" is used to include any lien,
encumbrance or charge levied or imposed upon the Premises or the
Property or any interest therein or income therefrom on account of
any mechanics', laborer's or materialman's lien or arising out of
any debt or liability to or any claim or demand of any contractor,
mechanic, supplier, materialman or laborer and shall include
without limitation any mechanics' notice of intention given to
Landlord or Tenant, any stop order given to Landlord or Tenant,
any notice or refusal to pay naming Landlord or Tenant or any
injunctive or equitable action brought by any person entitled to
any mechanics' lien.
12. Damage by Fire or Other Casualty. If the Premises or
the Building (including machinery and equipment used in its
operation) shall be destroyed or damaged by fire or other casualty
and if the Premises or Building may be repaired and restored
within one hundred twenty (120) days (plus such additional time
during which Landlord may be prevented or delayed from completing
the repairs for causes beyond its reasonable control and for
insurance adjustments) after such damage then Landlord shall have
the option by notifying Tenant to: (a) repair and restore the
same with reasonable promptness; or (b) elect to demolish the
Building, or cease its operation, in which event this Lease shall
automatically be canceled and terminated as of the date of such
damage. In the event any such damage not caused by the act or
neglect of Tenant, its agents, servants, employees, guests,
licensees or invitees renders the Premises untenantable and if
this Lease shall not be canceled and terminated by reason on such
damage, then rent shall xxxxx during the period beginning with the
date of such fire or other casualty and ending with the date when
Landlord's work in the Premises is substantially completed, such
abatement to be in an amount bearing the same ratio to the total
amount of rent for such period as the untenantable portion of the
Premises bears to the entire Premises. Landlord's work shall not
include the repair, replacement or restoration of Tenant's
fixtures or tenant improvements, including, but not limited to,
special wall and floor coverings, special lighting fixtures,
built-in cabinets and bookshelves.
If such damage renders the Premises or the Building
untenantable, in whole or in part, and if, in Landlord's judgment,
such damage cannot reasonably be repaired and restored within one
hundred twenty (120) days (plus such additional time during which
Landlord may be prevented from completing the repairs for causes
beyond its reasonable control), either party shall have the right
to cancel and terminate this Lease as of the date of such damage,
provided, however, that Tenant may not elect to terminate this
Lease if such damage was caused by the act or neglect of Tenant,
its agents, servants, employees, guests, licensees or invitees.
Any right to terminate or any other option provided for any
party in this Paragraph 12 must be exercised by written notice to
the other party served within one hundred thirty (130) days after
such damage shall have occurred.
13. Insurance.
(a) Property Insurance. Tenant, at its sole cost and expense
but for the mutual benefit of Landlord and Tenant (when used in
this paragraph the term "Landlord" shall include Landlord and its
respective officers, agents, servants and employers and the term
"Tenant" shall include Tenant's agents, servants and employees),
shall purchase and keep and maintain in force and effect during
the Term hereof, insurance under policies issued by insurers of
recognized responsibility on its fixtures and tenant improvements
including, but not limited to, special wall and floor coverings,
special lighting fixtures, built-in cabinets and bookshelves and
on its merchandise, inventory, contents, furniture, equipment or
other personal property located in the Premises protecting
Landlord and Tenant from damage or other loss caused by fire or
other casualty including, but not limited to, vandalism and
malicious mischief, perils covered by all risk and extended
coverage, theft, sprinkler leakage, water damage (however caused),
explosion, malfunction or failure of heating and cooling or other
apparatus, and other similar risks in amounts not less than the
full insurable replacement value of such property. Such insurance
shall provide that it is specific and not contributory and shall
contain a replacement cost endorsement.
(b) Liability Insurance. Tenant, at Tenant's sole cost and
expense, shall maintain and keep in effect through the Term and
any extensions or renewals thereof, a combined single limit policy
of public liability insurance in the amount of Two Million Dollars
($2,000,000.00) for personal injuries sustained by any one person
and for injuries sustained in any one occurrence. Further, Tenant
shall maintain excess umbrella liability coverage in the amount of
Five Million Dollars ($5,000,000.00) (minimum) in excess of the
aforementioned public liability coverage. Tenant shall also
maintain fire legal liability insurance in a minimum amount of
Eight Million Five Hundred Thousand Dollars ($8,500,000.00) for
damage to the Building caused by fire or explosion.
(c) Requirements. All policies of insurance required to be
maintained by Tenant pursuant to this Paragraph 13 shall name
Tenant as the insured party and shall name Landlord, its officers,
agents, servants and employees as additional insureds. Such
policies shall contain a clause pursuant to which the insurance
carriers waive all rights of subrogation against the Landlord with
respect to losses payable under such policies. Each such policy
shall provide that it shall not be cancelable without at least
thirty (30) days' prior written notice to Landlord and to any
mortgagee named in an endorsement thereto and shall be issued by
an insurer and in a form satisfactory to Landlord. Prior to the
commencement of the Term and thereafter not less than fifteen (15)
days prior to the expiration date of any such policy, Tenant shall
deliver to Landlord certificates of insurance evidencing such
coverage. If Tenant shall fail, refuse, or neglect to obtain or
to maintain any insurance that it is required to provide or to
furnish Landlord with satisfactory evidence of coverage on any
such policy, Landlord shall have the right to purchase such
insurance. All such payments made by Landlord shall be
recoverable by Landlord from Tenant, together with interest
thereon, as additional rent promptly upon being billed therefor.
14. Condemnation.
(a) Termination. (i) If all of the Premises are covered by a
condemnation; or (ii) if any part of the Premises is covered by a
condemnation and the remainder thereof is insufficient for the
reasonable operation therein of Tenant's business; or (iii) if any
of the Property is covered by a condemnation and, in Landlord's
sole opinion, it would be impractical or the condemnation proceeds
are insufficient to restore the remainder of the Property; then,
in any such event, this Lease shall terminate and all obligations
hereunder shall cease as of the date upon which possession is
taken by the condemnor and the rent herein reserved shall be
apportioned and paid in full by Tenant to Landlord to that date
and all rent prepaid for periods beyond that date shall forthwith
be repaid by Landlord to Tenant.
(b) Partial Condemnation. If there is a partial condemnation
and this Lease has not been terminated pursuant to subparagraph
(a) hereof, Landlord shall restore the Building and the
improvements which are part of the Building to a condition and
size as nearly comparable as reasonably possible to the condition
and size thereof immediately prior to the date upon which
possession shall have been taken by the condemnor. If the
condemnation proceeds are more than adequate to cover the cost of
restoration and Landlord's expenses in collecting the condemnation
proceeds, any excess proceeds shall be retained by Landlord or
applied to repayment of any mortgage loan secured by the Property.
If there is a partial condemnation and this Lease has not been
terminated by the date upon which the condemnor shall have
obtained possession, the obligations of Landlord and Tenant under
this Lease shall be unaffected by such condemnation except that
there shall be an equitable abatement of Minimum Rent in direct
proportion to the amount of the Premises so taken.
(c) Award. In the event of a condemnation affecting Tenant,
Tenant shall have the right to make a separate claim against the
condemnor for removal and relocation costs and expenses and the
taking of Tenant's tangible property; provided and to the extent,
however, that such claim does not interfere with Landlord's
proceeding and does not reduce the sums otherwise payable by the
condemnor to Landlord. Except as aforesaid, Tenant hereby waives
all claims against Landlord and against the condemnor, and Tenant
hereby assigns to Landlord all claims against the condemnor,
including, without limitation, all claims for leasehold damages
and diminution in value of Tenant's leasehold interest.
(d) Temporary Taking. If the condemnor should take only the
right to possession for a fixed period of time or for the duration
of an emergency or other temporary condition, then notwithstanding
anything hereinabove provided, this Lease shall continue in full
force and effect without any abatement of rent, but the amounts
payable by the condemnor with respect to any period of time prior
to the expiration or sooner termination of this Lease shall be
paid by the condemnor to Landlord and the condemnor shall be
considered a subtenant of Tenant. Landlord shall apply the amount
received from the condemnor applicable to the rent due hereunder
net of costs to Landlord for the collection thereof, or as much
thereof as may be necessary for the purpose, toward the amount due
from Tenant as rent for that period; and Tenant shall pay to
Landlord any deficiency between the amount thus paid by the
condemnor and the amount of the rent, or Landlord shall credit to
future rental payments due from Tenant any excess of the amount of
the award over the amount of the rent.
15. Waiver of Claims and Indemnity. Tenant agrees that, to
the extent not expressly prohibited by law, Landlord and its
officers, agents, servants and employees shall not be liable for
(nor shall rent xxxxx as a result of) any direct or consequential
damage (including damage claimed for actual or constructive
eviction) either to person or property sustained by Tenant, its
servants, employees, agents, invitees or guests due to the
Property or any part thereof or any appurtenances thereof becoming
out of repair, or due to the happening of any accident in or about
said Property, or due to any act or neglect of any tenant or
occupant of said Property or of any other person. This provision
shall apply particularly (but not exclusively) to damage caused by
water, snow, frost, steam, sewage, gas, electricity, sewer gas or
odors or by the bursting, leaking or dripping of pipes, faucets
and plumbing fixtures and windows, and shall apply without
distinction as to the person whose act or neglect was responsible
for the damage and whether the damage was due to any of the causes
specifically enumerated above or to some other cause of an
entirely different kind. Tenant further agrees that all of
Tenant's personal property in the Premises or the Building or on
the Property shall be at the risk of Tenant only and that Landlord
shall not be liable for any loss or damage thereto or theft
thereof. Tenant shall protect, indemnify and save Landlord and
its officers, agents, servants and employees harmless from and
against any and all obligations, liabilities, costs, damages,
claims and expenses of whatever nature arising from injury to
persons or damage to property on the Premises or in or about the
Building arising out of or in connection with Tenant's use or
occupancy of the Premises or Tenant's activities in the Building,
or arising from any act or negligence of Tenant, or its agents,
contractors, servants, employees, or invitees but excluding the
gross negligence of Landlord, or its agents, contractors,
servants, employees or invitees. Any claim for which indemnity is
afforded shall be made to the indemnitor by indemnitee in a
reasonably prompt manner, but any delay in notifying the
indemnitor shall not affect the protection except for losses from
the indemnitee=s delay in notifying the indemnitor.
16. Non-Waiver. No waiver by Landlord or Tenant of any
breach by the other party or any of its obligations, agreements or
covenants herein shall be a waiver of any subsequent breach or of
any obligation, agreement or covenant, nor shall any forbearance
by either party to seek a remedy for any breach by the other be a
waiver by such party of any rights and remedies with respect to
such or any subsequent breach.
17. Defaults - Remedies.
(a) Defaults. It shall be an event of default if: (i)
Tenant does not pay in full within five (5) days when due and
without demand any and all installments of Minimum Rent or
additional rent or any other charges or payments whether or not
herein included as rent; or (ii) Tenant violates or fails to
perform or otherwise breaches any agreement, term, covenant or
condition herein contained; or (iii) if Tenant vacates or abandons
any portion of the Premises, or fails to occupy the Premises for
thirty (30) days, or if substantially all of Tenant's assets in or
on the Premises or Tenant's interest in this Lease is attached or
levied upon under execution (and Tenant does not discharge same
within sixty (60) days thereafter), or (iv) if Tenant removes or
attempts to remove Tenant's goods or property therefrom other than
in the ordinary course of business without having first paid to
Landlord in full all Minimum Rent, additional rent and other
charges that may have become due as well as all which will become
due thereafter; or (v) Tenant becomes insolvent or bankrupt in any
sense or makes an assignment for the benefit of creditors or
offers a composition or settlement to creditors, or if a petition
in bankruptcy or for reorganization or for an arrangement with
creditors under any federal or state law is filed by or against
Tenant, or a xxxx in equity or other proceeding or the appointment
of a receiver, trustee, liquidator, custodian, conservator or
similar official for any of Tenant's assets is commenced, or if
any of the real or personal property of Tenant shall be levied
upon by any sheriff, marshal or constable; provided, however, that
any proceeding brought by anyone other than the parties to this
Lease under any bankruptcy, reorganization, arrangement,
insolvency, readjustment, receivership or similar law shall not
constitute a default until such proceeding, decree, judgment or
order has continued unstayed for more than sixty (60) consecutive
days. If this Lease is assigned to any person or entity pursuant
to the provisions of the United States Bankruptcy Code, 11 U.S.C.
'101 et seq., any and all monies or other considerations payable
or otherwise to be delivered in connection with such assignment
shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property
of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be promptly paid to or turned
over to Landlord; or (vi) if any of the events enumerated in
subparagraph (a)(v) of this Paragraph 17 shall happen to any
guarantor of this Lease.
(b) Remedies. Upon the occurrence of an event of default,
and the expiration of the applicable grace period as hereinafter
provided, Landlord shall have the following rights: (i) To
accelerate the whole or any part of the rent for the entire
unexpired balance of the Term, as well as all other charges,
payments, costs and expenses herein agreed to be paid by Tenant,
and any rent or other charges, payments, costs and expenses if so
accelerated shall, in addition to any and all installments of rent
already due and payable and in arrears, and any other charge or
payment herein reserved, included or agreed to be treated or
collected as rent and any other charge, expense or cost herein
agreed to be paid by Tenant which may be due and payable and in
arrears, be deemed due and payable as if, by the terms and
provisions of this Lease, such accelerated rent and other charges,
payments, costs and expenses were on that date payable in advance.
For such purposes, all items of additional rent due hereunder,
which are not then capable of precise determination, shall be
estimated by Landlord, in Landlord's reasonable judgment, for the
balance of the then current Term; (ii) To enter the Premises and
without further demand or notice proceed to the disposal and sale
of the goods, chattels and personal property there found, to levy
the rent and other charges herein payable as rent, and Tenant
shall pay all costs, fees and commissions which are permitted by
law, including wages and sums chargeable to Landlord, and in such
case all costs, commissions, fees and other charges shall
immediately attach and become part of the claim of Landlord for
rent, and any tender of rent without said costs, commissions and
charges made after the issuance of a warrant of distress, shall
not be sufficient to satisfy the claim of Landlord; (iii) To re-
enter the Premises, together with all additions, alterations and
improvements and, at the option of Landlord, remove all persons
and all or any property therefrom, either by summary dispossess
proceedings or by any suitable action or proceeding at law or by
force or otherwise, without being liable for prosecution or
damages therefor, and repossess and enjoy the Premises. Upon
recovering possession of the Premises by reason of or based upon
or arising out of a default on the part of Tenant, Landlord may,
at Landlord's option, either terminate this Lease or make such
alterations and repairs as may be necessary in order to relet the
Premises and relet the Premises or any part or parts thereof,
either in Landlord's name or otherwise, for a term or terms which
may, at Landlord's option, be less than or exceed the period which
would otherwise have constituted the balance of the Term of this
Lease and at such rent or rents and upon such other terms and
conditions as in Landlord's sole discretion may seem advisable and
to such person or persons as may in Landlord's discretion seem
best; upon each such reletting all rents received by Landlord from
such reletting shall be applied: first, to the payment of any
costs and expenses of such reletting, including brokerage fees and
attorneys' fees and all costs of such alterations and repairs;
second, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; third, to the payment of rent
due and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of future rent as it may become
due and payable hereunder. If such rentals are received from such
reletting during any month by Tenant, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of the
Premises or the making of alterations or improvements thereto or
the reletting thereof shall be construed as an election on the
part of Landlord to terminate this Lease unless written notice of
such intention be given to Tenant. Landlord shall in no event be
liable in any way whatsoever for failure to relet the Premises or,
in any event that the Premises or any part or parts thereof are
relet, for failure to collect the rent thereof under such
reletting. Tenant, for Tenant and Tenant's successors and
assigns, hereby irrevocably constitutes and appoints Landlord
Tenant's and their agents to collect the rents due and to become
due under all subleases of the Premises or any parts thereof
without in any way affecting Tenant's obligation to pay any unpaid
balance of rent due or to become due hereunder. Notwithstanding
any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach;
(iv) To terminate this Lease and the Term hereby created without
any right on the part of the Tenant to waive the forfeiture of
payment of any sum due or by other performance of any condition,
term or covenant broken, whereupon Landlord shall be entitled to
recover, in addition to any and all sums and damages for violation
of Tenant's obligations hereunder in existence at the time of such
termination, damages for Tenant's default in an amount equal to
the amount of the rent reserved for the balance of the Term, as
well as all other charges, payments, costs and expenses herein
agreed to be paid by Tenant, all discounted at the rate of six
percent (6%) per annum to their then present worth, less the fair
rental value of the Premises for the remainder of said Term, also
discounted at the rate of six percent (6%) per annum to its then
present worth, all of which amount shall be immediately due and
payable from Tenant to Landlord.
(c) Grace Period. Notwithstanding anything hereinabove
stated, except in the case of emergency set forth in Paragraph 30
and except in the event of any default enumerated in subparagraphs
(a)(i), (iii), (iv) and (v) of this Paragraph 17 for which no
notice is required, neither party hereto will exercise any right
or remedy provided for in this Lease or allowed by law, because of
any default of the other, unless such party shall have first given
thirty (30) days written notice thereof to the defaulting party,
and the defaulting party shall have failed to cure the default
within such period; and further provide that Landlord shall not be
required to give such thirty (30) days' notice more than two (2)
times during any twelve (12) month period.
(d) Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law,
but each shall be cumulative and in addition to every other right
or remedy given herein or now or hereafter existing at law or in
equity or by statute.
(e) Rights of Mortgagee. In the event of any default by, act
or omission by Landlord which would give Tenant the right to
terminate this Lease or to claim a partial or total eviction,
Tenant shall not exercise any such right until it has notified in
writing the holder of any mortgage which at the time shall be a
mortgage lien on the Lot or the Building (if the name and address
of such holder shall previously have been furnished by written
notice to Tenant) of such default, and until a reasonable period
of time [not less than thirty (30) days] for curing such default
shall have elapsed following the giving of such notice, during
which period the holder shall have failed to commence and continue
to cure such default or to cause the same to be remedied or cured.
18. Surrender. On or before the date this Lease and the
Term hereby created terminates, or on or before the date Tenant's
right of possession terminates, whether by lapse of time or at the
option of Landlord, Tenant shall:
(i) restore the Premises to the same condition as they were
in at the beginning of the Term (except as otherwise provided in
Paragraph 12 of this Lease) and remove those alterations,
improvements, or additions installed by Tenant during Tenant's
occupancy, whether installed by Landlord or Tenant, or acquired by
Tenant from former tenants, which Landlord shall request Tenant to
remove;
(ii) remove from the Premises and the Building all of
Tenant's personal property, but Tenant shall not remove any
wiring, cabling or other items located within or behind walls,
floor coverings or ceilings without Landlord=s prior written
consent; and
(iii) surrender possession of the Premises to Landlord in
a clean condition free of all rubbish and debris, ordinary wear
and tear excepted.
If Tenant shall fail or refuse to restore the Premises to the
above-described condition on or before the above-specified date,
Landlord may enter into and upon the Premises and put the Premises
in such condition and recover from Tenant Landlord's cost of so
doing. Without limiting the generality of the foregoing, Tenant
agrees to pay Landlord, upon demand, the cost of restoring the
walls, ceilings and floor of the Premises to the same condition
that existed on the Commencement Date. If Tenant shall fail or
refuse to comply with Tenant's duty to remove all personal
property from the Premises and the Building on or before the
above-specified date, the parties hereto agree and stipulate that
Landlord may enter into and upon the Premises and may, at its
election:
(1) treat such failure or refusal as an offer by Tenant to
transfer title to such personal property to Landlord, in which
event title thereto shall thereupon pass under this Lease as a
xxxx of sale to and vest in Landlord absolutely without any cost
either by set-off, credit allowance or otherwise, and Landlord may
retain, remove, sell, donate, destroy, store, discard or otherwise
dispose of all or any part of said personal property in any manner
that Landlord shall choose.
(ii) treat such failure or refusal as conclusive evidence, on
which Landlord or any third party shall be entitled absolutely to
rely and act, that Tenant has forever abandoned such personal
property, and without accepting title thereto, Landlord may, at
Tenant's expense, remove, store, destroy, discard or otherwise
dispose of all or any part thereof in any manner that Landlord
shall choose without incurring liability to Tenant or to any other
person. In no event shall Landlord ever become or accept or be
charged with the duties of a bailee (either voluntary or
involuntary) of any personal property, and the failure of Tenant
to remove all personal property from the Premises and the Building
shall forever bar Tenant from bringing any action or from
asserting any liability against Landlord with respect to any such
property which Tenant fails to remove. If Tenant shall fail or
refuse to surrender possession of the Premises to Landlord on or
before the above specified date, Landlord may forthwith re-enter
the Premises and repossess itself thereof as of its former estate
and remove all persons and effects therefrom, using such force as
may be necessary without being guilty of any manner or trespass or
forcible entry or detainer.
19. Holding Over. If Tenant, or any person claiming through
Tenant, shall continue to occupy the Premises after the expiration
or earlier termination of the Term or any renewal thereof, such
occupancy shall be deemed to be under a month-to-month tenancy
under the same terms and conditions set forth in this Lease.
Anything to the contrary notwithstanding, any holding over by
Tenant without Landlord's prior consent shall constitute a default
hereunder and shall be subject to all the remedies set forth in
Paragraph 17 hereof.
20. Costs, Expenses and Attorneys' Fees. In case Landlord
shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant arising out of or
related to the provisions of this Lease, then Tenant shall pay all
costs, expenses and reasonable attorneys' fees incurred or paid by
Landlord in connection with such litigation.
21. Tenant's Certificate. Tenant, at any time and from time
to time and within ten (10) days after Landlord's written request,
shall execute, acknowledge and deliver to Landlord a written
instrument in recordable form certifying that this Lease is
unmodified and in full force and effect (or, if there have been
modifications, that it is in full force and effect as modified and
stating the modifications); stating that the improvements required
by a separate work letter agreement, if any, have been completed;
certifying that Tenant has accepted possession of the Premises;
stating the date on which the Term of this Lease commenced and the
dates to which Minimum Rent, additional rent and other charges
have been paid in advance, if any; stating that to the best
knowledge of the signer of such instrument, Landlord is not in
default of this Lease (if true); stating any other fact or
certifying any other condition reasonably requested by Landlord or
required by any mortgagee or prospective mortgagee or purchaser of
the Property or any interest therein; and stating that it is
understood that such instrument may be relied upon by any
mortgagee, purchaser or assignee of any mortgagee. The foregoing
instrument shall be addressed to Landlord and to any mortgagee,
prospective mortgagee, purchaser or other party specified by
Landlord.
22. Subordination. This Lease and Tenant's rights hereunder
shall be subject and subordinate at all times in lien and priority
to any first mortgage or other primary encumbrance now or
hereafter placed upon or affecting the Premises, and to any second
mortgage or encumbrance with the consent of the first mortgagee,
and to all renewals, modifications, consolidations and extensions
thereof, without the necessity of any further instrument or act on
the part of Tenant. Tenant shall execute and deliver upon demand
any further instrument or instruments confirming the subordination
of this Lease to the lien of any such first mortgage or to the
lien of any other mortgage if requested to do so by Landlord with
the consent of the first mortgagee, and any further instrument or
instruments of attornment that may be desired by any such
mortgagee or Landlord. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact for Tenant with full power and
authority to execute and deliver in the name of Tenant any such
documents. Notwithstanding the foregoing, any mortgagee may at
any time subordinate its mortgage to this Lease, without Tenant's
consent, by giving notice in writing to Tenant, and thereupon this
Lease shall be deemed prior to such mortgage without regard to
their respective dates of execution and delivery, and in that
event such mortgagee shall have the same rights with respect to
this Lease as though this Lease had been executed prior to the
execution and delivery of the mortgage and had been assigned to
such mortgagee.
23. Rules and Regulations. Landlord hereby reserves the
right to prescribe, at its sole discretion, reasonable rules and
regulations (herein called the "Rules and Regulations") having
uniform applicability to all similarly situated tenants of the
Building and governing the use and enjoyment of the Premises and
the remainder of the Property. Tenant shall adhere to the Rules
and Regulations and shall cause its agents, employees, invitees,
visitors and guests to do so.
24. Assignment and Subletting. Tenant for itself, its
successors and assigns, expressly covenants that it shall not by
operation of law or otherwise assign, sublet, hypothecate,
encumber or mortgage this Lease, or any part thereof, or permit
the Premises to be used by others without the prior written
consent of Landlord in each instance. Any attempt by Tenant to
assign, sublet, encumber or mortgage this Lease shall be null and
void. The consent by Landlord to any assignment, mortgage,
hypothecation, encumbrance, subletting or use of the Premises by
others, shall not constitute a waiver of Landlord's right to
withhold its consent to any other or further assignment,
subletting, mortgage, encumbrance or use of the Premises by
others. Without the prior written consent of Landlord,
this Lease and the interest therein of any assignee of Tenant
herein, shall not pass by operation of law or otherwise, and shall
not be subject to garnishment or sale under execution in any suit
or proceeding which may be brought against or by Tenant or any
assignee of Tenant. The absolute and unconditional prohibitions
contained in this Paragraph 25 and Tenant's agreement thereto are
material inducements to Landlord to enter into this Lease with
Tenant and any breach thereof shall constitute a material default
hereunder permitting Landlord to exercise all remedies provided
for herein or by law or in equity on a default of Tenant.
If Tenant requests Landlord's consent to an assignment of
this Lease or subletting of all or any part of the Premises,
Tenant shall submit to Landlord: (a) the name of the proposed
assignee or subtenant; (b) the term of the proposed assignment or
subletting together with a conformed or photostatic copy of the
proposed assignment or sublease; (c) the nature of the proposed
assignee's or subtenant's business and its proposed use of the
Premises; (d) such information as to its financial responsibility
and general reputation as Landlord may require; and (e) a summary
of plans and specifications for revising the floor layout of the
Premises. Upon the receipt of such information from Tenant,
Landlord shall respond to Tenant in writing within fifteen (15)
days after such receipt to accept the assignment or sublet or to
terminate this Lease or if the request is to assign the Lease or
sublet all of the Premises or, if the request is to sublet a
portion of the Premises only, to amend the Lease to remove from
the Premises that part of the Premises proposed to be sublet.
If Landlord shall terminate or amend this Lease, Tenant shall
surrender possession of the Premises, or the portion of the
Premises which is the subject of the request, as the case may be,
on the date set forth in such notice in accordance with the
provisions of this Lease relating to surrender of the Premises.
If this Lease shall be terminated as to a portion of the Premises
only, Minimum Rent and all additional rent payable by Tenant
hereunder shall be abated proportionately according to the ratio
that the number of square feet in the portion of space surrendered
(as computed by Landlord) bears to the rentable area of the
Premises.
If Landlord shall fail to exercise its option to amend or
terminate this Lease with respect to all or part of the Premises
as above provided, Landlord shall not thereby be deemed to have
consented to the proposed assignment or subletting; provided,
however, (i) that there shall be furnished to Landlord all of the
information required hereinabove with respect to a proposed
assignee or subtenant; (ii) that Tenant shall not be in default
under any of the terms, covenants, conditions, provisions and
agreements of this Lease at the time of any notice or request for
consent under the terms of this Paragraph 25 or at the effective
date of such subletting or assigning; (iii) that no such
subletting or assigning shall be made with a party who shall be or
who shall seek to use any portion of the Premises for occupancy as
an employment agency, governmental department, labor union, dance
or music studio, school, beauty salon or any other use which in
the sole judgment of Landlord detracts from or alters the
character of the Property; (iv) that Tenant shall not advertise or
in any manner list the Premises or any part thereof for assignment
or subletting at a rental rate lower than the rental rate herein
reserved; and (v) that any such subletting will not result in more
than two tenants occupying the Premises.
If Landlord shall consent to a sublease or an assignment
pursuant to the request from Tenant, Tenant shall cause to be
executed by its assignee or subtenant an agreement to perform
faithfully and to assume and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease for
the period covered by the assignment or sublease and to the extent
of the space sublet or assigned. An executed counterpart of each
sublease or assignment and assumption of performance by the
sublessee or assignee, in form and substance approved by Landlord,
shall be delivered to Landlord within five (5) days prior to the
commencement or occupancy set forth in such assignment or
sublease; no such assignment or sublease shall be binding on
Landlord until Landlord has received such counterpart as required
herein.
In the event Landlord consents to any such assignment or
subletting, and as a condition thereto, Tenant shall pay to
Landlord, as additional rent, one hundred percent (100%) of all
profit derived by Tenant from such assignment or subletting. For
purposes of the foregoing, profit shall be deemed to include, but
shall not be limited to, the amount paid or payable to Tenant to
effect or induce any such transaction, and the amount of all rent
and other consideration of whatever nature payable by such
assignee or sublessee in excess of the Minimum Rent and additional
rent payable by Tenant under this Lease. If a part of the
consideration for such assignment or subletting shall be payable
other than in cash, the payment to Landlord of its share of such
non-cash consideration shall be in such form as is satisfactory to
Landlord.
Tenant shall and hereby agrees that it will furnish to
Landlord upon request from Landlord a complete statement,
certified by an independent certified public accountant, setting
forth in detail the computation of all profit derived and to be
derived from such assignment or subletting, such computation to be
made in accordance with generally accepted accounting principles.
Tenant agrees that Landlord be given access at all reasonable
times to the books, records and papers of Tenant relating to any
such assignment or subletting, and Landlord shall have the right
to make copies thereof. Tenant's profit due Landlord hereunder
shall be paid to Landlord within two (2) days of receipt by Tenant
of all payments made from time to time by such assignee or
sublessee to Tenant.
In no event shall any assignment or subletting to which
Landlord may consent, release or relieve Tenant from its
obligations to fully observe or perform all of the terms,
covenants, and conditions of this Lease on its part to be observed
or performed. Tenant agrees to pay to Landlord, on demand, all
reasonable costs incurred by Landlord (including fees paid to con-
sultants and attorneys) in connection with any request by Tenant
for Landlord to consent to any assignment or subletting by Tenant.
25. Notices. All notices, demands, requests, consents,
certificates and waivers required or permitted hereunder from
either party to the other shall be in writing and sent by United
States certified mail, return receipt requested, postage prepaid.
Notices to Tenant shall be addressed to Standard Life Insurance
Company of Indiana, 00000 X. Xxxxxxxxxxxx, Xxxxxxxxxxxx, XX 00000,
ATTN: Xxxxxxx X. Xxxxxx, President, after the commencement of the
Term. Notices to Landlord shall be addressed to the Landlord, at
the same address, ATTN: Xxxxxx X. Xxxxxx, Chairman, President and
CEO, with a copy to Xxxxxxx X. Xxxxx, Esq., Executive Vice
President, General Counsel and Secretary, and with a copy to any
mortgagee or other party designated by Landlord. Either party may
at any time, in the manner set forth for giving notices to the
other, specify a different address to which notices to it shall be
sent.
26. Quiet Enjoyment. Tenant, upon paying the Minimum Rent,
additional rent and other charges herein provided for, and
observing and keeping all covenants, agreements and conditions of
this Lease on its part to be kept, shall quietly have and enjoy
the Premises during the Term of this Lease without hindrance or
molestation by anyone claiming by or through Landlord, subject,
however, to the exceptions, reservations and conditions of this
Lease.
27. Curing Tenant's Defaults. If Tenant shall be in default
in the performance of any of its obligations hereunder, Landlord,
without any obligation to do so, in addition to any other rights
it may have in law or equity, may elect to cure such default on
behalf of Tenant after written notice (except in the case of
emergency) to Tenant. Tenant shall reimburse Landlord upon demand
for any sums paid or costs incurred by Landlord in curing such
default, including interest thereon from the respective dates of
Landlord's making the payments and incurring such costs, which
sums and costs together with interest thereon shall be deemed
additional rent payable promptly upon being billed therefor.
28. Condition of Title and of Premises. Tenant represents
that the Property, the Lot and the Premises, the street or
streets, sidewalks, parking areas, curbs and access ways adjoining
them, any surface conditions thereof, and the present uses and
non-uses thereof, have been examined by Tenant, and Tenant accepts
them in the condition or state in which they now are, or any of
them now is, without relying on any representation, covenant or
warranty, express or implied, in fact or in law, by Landlord and
without recourse to Landlord as to the nature, condition or
usability thereof or the use or uses to which the Premises and the
Property or any part thereof may be put.
29. Landlord's Right of Entry.
(a) Inspection. Tenant shall permit Landlord and the
authorized representatives of Landlord and of any mortgagee or any
prospective mortgagee to enter the Premises at all reasonable
times after twenty-four (24) hours' notice except in emergencies
when notice shall be given as soon as reasonably practicable for
the purpose of inspecting them. Landlord shall endeavor to
minimize any material disruption to Tenant's business.
(b) Sale; Reletting. Landlord shall have the right at all
reasonable times to enter and to exhibit the Premises for the
purpose of sale or mortgage and, during the last nine (9) months
of the Term, to enter and to show the Premises to any prospective
tenant.
30. Late Payments. All payments becoming due under this
Lease and remaining unpaid when due shall bear interest at the
rate described in Paragraph 31(d) hereof. Tenant recognizes that
the late payment of Minimum Rent or any sum due hereunder will
result in administrative expenses to Landlord, the extent of which
expenses are extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that when Minimum Rent or any
other sum is due and payable from Tenant to Landlord pursuant to
the terms of this Lease, and such amount remains unpaid 10 days
after such amount is due, the amount of such unpaid Minimum Rent
or such other sum shall be increased by an administrative charge
to be paid to Landlord by Tenant in the amount of Fifty Dollars
($50.00).
31. Interpretation.
(a) Captions. The captions in this Lease are for convenience
only and are not a part of this Lease and do not in any way
define, limit, describe or amplify the terms and provisions of
this Lease or the scope or intent thereof.
(b) Entire Agreement. This Lease represents the entire
agreement between the parties hereto and there are no collateral
or oral agreements or understandings between Landlord and Tenant
with respect to the Premises or the Property. This Lease
supersedes all prior negotiations, agreements, informational
brochures, letters, promotional information and other statements
and materials made or furnished by Landlord or its agents. The
submission of this Lease by Landlord, its attorneys or agents, for
examination or for execution by Tenant, does not constitute a
reservation of (or option for) the Premises in favor of Tenant;
and Tenant shall have no right or interest in the Premises, and
Landlord shall have no liability hereunder, unless and until this
Lease is executed and delivered by Landlord. No rights, easements
or licenses are acquired in the Property or any land adjacent to
the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease. This Lease
shall not be modified in any manner except by an instrument in
writing executed by the parties. The masculine (or neuter)
pronoun and the singular number shall include the masculine,
feminine and neuter genders and the singular and plural number.
(c) Exhibits. Each writing or plan referred to herein as
being attached hereto as an Exhibit or otherwise designated herein
as an Exhibit hereto is hereby made a part hereof.
(d) Interest. Wherever interest is required to be paid
hereunder, such interest shall be at the greater of (i) 7.375% per
annum or (ii) 2% plus the corporate base rate of interest
announced from time to time by Bank One or any successor, such
rate to change when and as such corporate base rate changes (but
in no event at a rate which is more than the highest rate which is
at the time lawful in the State of Indiana).
32. Definitions.
(a) "Landlord". The word "Landlord" is used herein to
include the Landlord named above as well as its successors and
assigns, each of whom shall have the same rights, remedies,
powers, authorities and privileges as it would have had had it
originally signed this Lease as Landlord. Any such person,
whether or not named herein, shall have no liability hereunder
after it ceases to hold title to the Premises except for
obligations which may have theretofore accrued. Neither Landlord
nor any principal, shareholder, partner, member or other owner of
Landlord nor any owner of the Building or the Lot, whether
disclosed or undisclosed, shall have any personal liability with
respect to any of the provisions of this Lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's
obligations under this Lease or otherwise, Tenant shall look
solely to the equity of Landlord in the Premises for the
satisfaction of Tenant's remedies.
(b) "Tenant". The word "Tenant" is used herein to include
the Tenant named above as well as its permitted successors and
assigns, each of which shall be under the same obligations,
liabilities and disabilities and each of which shall have the same
rights, privileges and powers as it would have possessed had it
originally signed this Lease as Tenant. Each and every of the
persons named above as Tenant shall be bound formally and
severally by the terms, covenants and agreements contained herein.
However, no such rights, privileges or powers shall inure to the
benefit of any assignee of Tenant immediate or remote, unless the
assignment to such assignee is permitted or has been approved in
writing by Landlord as provided herein. Any notice required or
permitted by the terms of this Lease may be given by or to any one
of the persons named above as Tenant, and shall have the same
force and effect as if given by or to all thereof.
(c) "Mortgage" and "Mortgagee". The word "mortgage" is used
herein to include any lien or encumbrance on the Building, the
Premises or the Property or on any part of or interest in or
appurtenance to any of the foregoing, including, without
limitation any ground rent or ground lease if Landlord's interest
is or becomes a leasehold estate. The word "mortgagee" is used
herein to include the holder of any mortgage, including any ground
lessor if Landlord's interest is or becomes a leasehold estate.
Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or
servicing agent of such mortgagee. No mortgagee which shall
succeed to the interest of Landlord hereunder (either in terms of
ownership or possessory rights) shall: (i) be liable for any
previous act or omission of a prior Landlord, (ii) be subject to
any rental offsets or defenses against a prior Landlord, (iii) be
bound by any amendment of this Lease made without its written
consent, or by payment by Tenant of rent in advance in excess of
two (2) months' rent, (iv) be liable for any security not actually
received by it, or (v) be liable for any initial construction or
the improvements to be made to the Premises.
(d) "Person". The word "person" is used herein to include a
natural person, a partnership, a corporation, an association, and
any other form of business association or entity.
(e) "Date of this Lease". The "date of this Lease" shall be
the date upon which this Lease has been fully executed by both
parties.
33. Limitation of Liability. Neither Landlord nor any
principal of Landlord nor any owner of the Building or the Lot,
whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this Lease or
the Premises, and if Landlord is in breach or default with respect
to Landlord's obligations under this Lease or otherwise, Tenant
shall look solely to the equity of Landlord in the Premises for
the satisfaction of Tenant's remedies. It is expressly agreed
that no partner, member, director, officer, employee, beneficiary,
shareholder, stockholder or agent of Landlord shall be held
personally liable for any liability, demand, debt or obligation of
or against Landlord under this Lease and Tenant shall not pursue
the satisfaction of any judgment rendered against Landlord against
the assets of any such partner, member, director, officer,
employee, beneficiary, shareholder, stockholder or agent of
Landlord.
34. Broker. Tenant and Landlord covenant, warrant and
represent that there was no broker instrumental in consummating
this Lease and that no conversations or prior negotiations were
had with any broker concerning the renting of the Demised
Premises.
IN WITNESS WHEREOF, and in consideration of the mutual entry
into this Lease for other good and valuable consideration, and
intending to be legally bound, each party hereto has caused this
Lease to be duly executed as of the day and year first above
written.
LANDLORD:
_________________________________,
an Indiana ________________________
By:
____________________________________
Printed:
Its:
TENANT:
__________________________________________,
a
__________________________________________
By:
____________________________________
Printed:
Its:
EXHIBIT A
PLAN SHOWING LOCATION OF BUILDING
EXHIBIT B
PLAN SHOWING LOCATION OF PREMISES
OFFICE BUILDING LEASE
FOR
00000 X. Xxxxxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx
BY AND BETWEEN
Standard Management Corporation,
AS LANDLORD
AND
Standard Life Insurance Company of Indiana
AS TENANT
EXHIBITS
EXHIBIT A PLAN SHOWING LOCATION OF BUILDING
EXHIBIT B PLAN SHOWING LOCATION OF PREMISES
