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EXHIBIT 10(1)
CONFIDENTIAL PORTIONS OMITTED
LEGEND: [**] REPRESENTS CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT
LEASE AGREEMENT
The parties to this Lease Agreement ("Lease"), entered into on January
28, 2005, between MFB Financial ("Landlord") and May Oberfell Lorber ("Tenant"),
hereby agree as follows:
1. PREMISES AND PREPARATION.
The Landlord hereby leases to the Tenant and the Tenant leases from the
Landlord, subject to all of the terms and conditions hereinafter set forth,
office space as shown on the space plan attached hereto as "Exhibit B"
containing 17,613 square feet of rentable space (the "Premises") in the office
building which is commonly known as MFB Plaza, located at 4100 Edison Lakes
Parkway, Mishawaka, Indiana in St. Joseph County (the "Building").
2. TERM. The term of the Lease of the Premises shall be 180 months
commencing at the time the Premises have been completely built out and
the space has been turned over to Tenant, which the parties anticipate
will be late spring/early summer. If the commencement date of this
Lease is other than the 1st day of the month, then the term of this
Lease shall be extended through the last day of the final month.
3. USE. The Premises shall be occupied and used by the Tenant for
office space and for no other purposes. 4. BASIC RENT. [Confidential
material omitted from this section and filed separately with the
Securities and Exchange
Commission pursuant to a request for confidential treatment is represented by
the symbol [**]. ] The Tenant shall pay to the Landlord as basic minimum rent
during the initial five year term of the Lease $[**], per month for 60 months,
which is $[**] per rentable square foot or annual basic rent of $[**], in
advance, on the first day of each calendar month during the term of this Lease.
During the second five year term of the Lease the basic rent shall be increased
to $[**] per square foot or annual basic rent of $[**]. Wherever the term
rentable square feet is used, this term shall refer to the square feet being
occupied by Tenant (17,018) plus a load factor of three and one-half percent (3
1/2%) for a total of 17,613. During the final 5 years of the Lease the basic
rent shall be increased to $[**] per square foot of rentable space. The basic
rent together with the additional rent as defined in paragraph 5 hereof are
referred to hereinafter as "Rental". Tenant hereby agrees to pay the Rental
monthly to Landlord at Landlord's building management office or at such other
location as Landlord may designate from time to time, without demand. In the
event of a partial month at the beginning of the term of this Lease, the Rental
shall be prorated on the basis of a thirty (30) day month. Any portion of the
Rental or other charges not paid when due shall bear a delinquency service
charge equal to five (5%) percent of such delinquency. In addition, the Tenant
shall be charged a Fifty ($50.00) Dollar processing penalty for any Rental check
that is returned to the Landlord as uncollectible or insufficient funds. All
Rental and other charges payable by Tenant pursuant to the terms of this Lease
shall be payable without relief from valuation or appraisement laws.
5. ADDITIONAL RENT. [Confidential material omitted from this section
and filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment is represented by the symbol [**]. ] A.
Subject to the limitations set forth in paragraph C hereunder, in addition to
the Basic Rent, Tenant shall pay, as Additional Rent, Tenant's Percentage of the
Operating Cost for the Building in any calendar year. For purposes of this
Agreement, "Tenant Percentage" shall mean Fifteen and forty one hundredths
Percent (15.41%). In the event Tenant expands into additional space under the
Lease, Tenant's Percentage shall be recalculated to account for such additional
space. B. "Operating Cost," as that term is used herein, shall consist of all
operating costs of the Building, which shall be computed on the accrual basis in
accordance with generally accepted accounting principles consistently applied
and shall consist of all costs and expenses incurred by Landlord to maintain all
facilities used in the operation of the Building and its environs of every kind
and nature which Landlord shall pay or become obligated to pay because of or in
connection with the ownership and operation of the Building, (but not specific
costs which are separately billed to and paid or reimbursed by specific tenants)
including, but not limited to, the following:
i) Wages, salaries, fringe benefits, costs, payroll taxes,
unemployment compensation payments, workmen's
compensation insurance premiums and other related
expenses of all employees directly engaged in the
operation, maintenance and security of the Building;
costs of building employee uniforms and cleaning
thereof; the costs of fair rental value of a Building
management office; management fees payable by Landlord
(excluding brokerage commissions for leasing) if
management of the Building is contracted to a third
party;
ii) All supplies and materials used in the operation,
cleaning and maintenance of the Building and all of its
machinery and equipment;
iii) Costs of utilities, including water and power for
heating, lighting, air conditioning and ventilating the
entire Building (including all common and service
areas), fuel adjustment charges, sewer use charges and
any utility taxes;
iv) Costs of all management, maintenance and service
agreements for the Building and the equipment therein,
including, without limitation, alarm service, trash
removal, window cleaning and elevator maintenance;
v) Accounting costs, including the costs of audits by
certified public accountants, pertaining solely to the
management and operation of the Building;
vi) Costs of all insurance, including, without limitation,
fire, casualty, liability and rental value insurance
applicable to the Building and Landlord's personal
property used in connection with the operation and
maintenance of the Building;
vii) Costs of repairs, replacements and general maintenance
of the Building and each part thereof excluding
repairs, replacements and general maintenance paid by
proceeds of insurance or by Tenant or by other third
parties, and alterations attributable solely to other
Tenants of the Building;
viii) Snow removal, landscaping and any and all other common
area maintenance costs related to public areas,
including sidewalks and landscaping on the Building's
site;
ix) Amortization of capital improvements made to the
Building subsequent to the commencement date of this
Lease which may be required by governmental authorities
or which will improve the operating efficiency of the
Building resulting in a reduction of Operating
Expenses;
x) Personal property taxes, real property taxes, water and
sewer rents, fees or charges paid to any not for profit
organization or other association for the maintaining
Edison Parkway and/or the common areas in the Edison
Lakes Corporate Park.
C. It is understood and agreed that the Operating Cost
Tenant shall be required to pay shall be limited in
accordance with the following:
(i) From the commencement of the Lease through December
31, 2008, Tenant's share of the Operating Cost shall
be the lesser of:
(a) the actual Operating Cost for the Building
multiplied by Tenant's Percentage or
(b)$[**] multiplied by 17,613 (being the number of
rentable square feet included in the Premises).
(Hereafter, that portion of the Operating Cost that
does not include taxes and insurance shall be
referred to as "Non-T & I Operating Cost" and that
portion of the Operating Cost of the Building which
consists of Tax and Insurance shall be called "T &
I.")
(ii) Non-T & I Cost for all calendar years beginning with
2009 through the end of the original fifteen (15)
year lease term will be limited to the amount
specified as the "Non-T & I Operating Cost Cap" for
the year in question as set forth on the "May
Oberfell Non-T & I Operating Cap Table" attached
hereto as Exhibit "C" multiplied by 17,613 (being the
number of rentable square feet in the Premises). The
parties have agreed that the schedule of "Caps"
specified on Exhibit C shall not apply to increases
in the Operating Cost resulting from increases in T &
I.
(iii) In Summary, for the years beginning January 1, 2009
through the original fifteen (15) year term of the
Lease, Tenant shall pay as follows:
(a) the basic rent as set forth in Paragraph
Four and any additional amounts Tenant shall
be required to pay hereunder other than the
Operating Cost; plus
(b) Tenant's share of the Operating Cost, which shall
be the lesser of:
the actual Non-T & I Operating Cost
multiplied by the Tenant's
Percentage of 15.41%, or
the amount of the Non-T & I
Operating Cost Cap specified for the
year in question on Exhibit C hereto
multiplied by 17,613 (being the
number of rentable square feet in
the Premises); plus
(c) the actual T & I multiplied by Tenant's
Percentage of 15.41%.
D. Subject to the limitations set forth in paragraph C hereunder, Landlord may
estimate the Operating Cost for the Building for any calendar year. Tenant's
Percentage of the Operating Costs, as defined above at 15.41% of said Operating
Costs, shall be payable in monthly installments with each Rental payment date
for such calendar year. Within a reasonable period of time after the end of such
calendar year, Landlord shall render to Tenant a statement of the actual
Operating Cost for such calendar year and a computation of Tenant's share of
Excess Operating Cost, if any. Within fifteen (15) days thereafter, Tenant shall
pay to Landlord Tenant's share of the Excess Operating Cost, provided, however,
such Excess Operating Cost shall not be paid by Tenant if the effect of such
payment would cause the Tenant's Operating Cost to exceed the limitations set
forth in paragraph C hereunder. If the computation shows that a refund is due
Tenant, such amount shall be credited by Landlord against the next Rental
payment due.
6. SECURITY DEPOSIT. There shall be no Security Deposit required.
7. SERVICES TO BE PROVIDED BY THE LANDLORD. The Landlord shall provide
the following services to the Premises during reasonable business
hours:
A. Janitorial services for customary cleaning in and about the
Premises. The Tenant may not provide any janitorial service of its own
without the Landlord's prior written consent, and then only subject to
such additional conditions as the Landlord may reasonably impose.
B. Landlord shall provide heating and air conditioning so as to
maintain, subject to government regulations, in all rooms, on a
reasonably consistent basis, a temperature 72(degree)F at all times
(i.e. year round) under normal business operations daily from 7:00 a.m.
to 6:00 p.m., Monday through Friday, holidays excepted. In addition,
Landlord shall provide an HVAC system such that Tenant shall be able to
maintain heat and cooling through "zones" or other mechanism which
Tenant can control on its Premises such that the temperature may be
maintained in accordance with the above standard during non-business
hours. Wherever heat-generating machines or equipment are used or
business operations are conducted in the Premises which, in the
judgment of the Landlord, affect the temperature otherwise maintained
by the air conditioning system, the Landlord reserves the right to
modify said system, including the installation of supplementary air
conditioning units in the Premises, and the cost and expense of
operation and maintenance thereof shall be paid by the Tenant to the
Landlord.
C. Water from city mains, drawn through fixtures installed by the
Landlord for drinking, lavatory, and toilet purposes, including a
reasonable amount of hot water.
D. Automatic passenger elevator services in common with other Tenants
at all times.
E. Electrical wiring system in the Premises for standard electrical
receptacles and lighting fixtures with a dedicated line for file
servers and copiers. Such electricity will be used only for normal
equipment and accessories. Replacement lighting tubes, lamps, bulbs,
and ballasts required for the overhead lighting fixtures in the
Premises will be installed at the Tenant's expense. Tenant shall be
responsible for bulbs and maintenance of all chandelier and ornamental
lighting. The Landlord reserves the right to provide a separate meter
for the Premises and to require the Tenant to pay for its use of
electricity billed to such meter in lieu of including the cost of
electricity in the operating expenses.
F. Snow-removal services for the outside parking facilities, related
driveways, and sidewalks at all reasonable times. G. Lavatories for the
use of Tenant's employees and invitees in common with other Tenants in
the Building. H. All windows and glass will be washed and cleaned
inside and outside a minimum of two (2) times per year and Landlord
shall clean Tenant's carpets a minimum of once per year. This is in
addition to the normal cleaning services provided by Landlord.
I. Landlord shall provide and maintain all emergency lighting and
fire extinguishers as required by state and local
codes and regulations.
J. It is understood and agreed that the cost of Landlord providing any
of the above services shall be included in the "Operating Cost"
hereunder of which Tenant shall pay its "Tenant's Percentage" as
Additional Rent pursuant to Paragraph 5, above.
The Landlord does not warrant that any of the services above mentioned
will be free from interruptions caused by repairs, renewals, improvements,
alterations, strikes, lockouts, accidents, inability of the Landlord to obtain
fuel or supplies, or any other cause beyond the reasonable control of the
Landlord. Any such interruption of service will not constitute an eviction or
disturbance of the Tenant's use and possession of the Premises, or any part
thereof, or render the Landlord liable to the Tenant for damages, or relieve the
Tenant from performance of the Tenant's obligations under this Lease. Landlord
shall furnish Tenant with reasonable notice (24 hour minimum) of any known or
anticipated interruption of electrical services. The Landlord will use
reasonable efforts to promptly remedy any situation which has interrupted such
services.
8. LANDLORD'S TITLE. The Landlord's title is and always shall be
paramount to the title of the Tenant, and nothing contained herein authorizes
the Tenant to do any act which may encumber the title of the Landlord. This
Lease is subject and subordinate to all ground and underlying leases, and to all
mortgages which may now or hereafter affect such ground and underlying leases,
or the real property or Building, of which the Premises form a part, and to all
renewals, modifications, consolidations, replacements, and extensions thereof,
and to all advances made or hereafter to be made on the security of any such
mortgages. Provided, however, that notwithstanding the foregoing, the mortgagee
shall recognize this Lease and provide a non-disturbance and attornment
agreement which, will in substance, allow Tenant to remain in possession of the
Premises in accordance with the terms and conditions of this Lease as long as
Tenant is not in default. The non-disturbance and attornment agreement shall be
forwarded to Tenant only in the event Tenant is not in default under the terms
and conditions of this Lease. The Tenant covenants and agrees that it will, upon
the written request of such mortgagee or such purchaser, attorn thereto and
execute, acknowledge, and deliver any instrument that has for its purposes and
effect subordination of this Lease to said mortgage subject to the
non-disturbance set forth herein above.
9. ASSIGNMENT AND SUBLETTING.
A. The Tenant may not assign or transfer all or any part of
its rights and interests under this Lease, and may not sublet or permit the use
and occupancy of all or any part of the Premises, to or by a third party without
the prior written consent of the Landlord. The Landlord's consent under this
sub-paragraph shall be in its absolute discretion and subject to such conditions
as the Landlord may impose. If the Landlord grants its consent, then all
consideration paid or to be paid by such third party, including any amounts in
excess of the rent due under this Lease, shall be paid directly to the Landlord.
In the event of assignment by Tenant, the Tenant shall continue to remain
responsible to Landlord for all payments due hereunder in the event Tenant's
assignee shall fail to make prompt payments to Landlord.
B. The Landlord may transfer and assign, in whole or in part,
all of its rights and obligations under this Lease and in the Building and
related real estate. After such transfer or assignment, the Landlord named in
this Lease will have no further liability to the Tenant under this Lease for the
obligations assumed by the assignee or transferee.
10. UNTENANTABILITY. If the Premises or the Building is made
untenantable by fire or other cause, the Landlord may elect (a) to terminate
this Lease as of the date of such casualty by notice to the Tenant within thirty
(30) days after that date, or (b) to repair all damages to the Premises or the
Building so that the same shall be restored to such condition as existed
immediately prior to such damage. If the Landlord elects to terminate this
Lease, the rent shall be abated on a per diem basis and be paid to the date of
the fire or casualty. If the Landlord elects to restore the Premises and
Building, such restoration shall be completed with reasonable promptness. If the
Premises are unusable during such restoration, or if the Tenant is reasonably
required to close its operation while such repairs are made, the rent shall
abate during such period of repair while such operations have ceased and the
Premises are completely closed. If the Tenant continues to operate on the
Premises during such repairs, but is unable to use a substantial portion
thereof, then the rent shall be prorated in the proportion which the area of
unusable leased space bears to the total Premises for the period that said space
is unusable. The Landlord will not be liable for business losses to the Tenant
by reason of damage to the Premises. If such untenantability is caused by the
fault of the Tenant, there will be no apportionment or abatement of rent.
Notwithstanding anything contained in this paragraph to the contrary, if the
Premises is not or cannot be made tenantable within one hundred and eighty (180)
days after said damage for any reason whatsoever, the Tenant may terminate this
Lease.
11. SIGNS. Except as modified by Exhibit A, Tenant shall pay for all
signs related to the Tenant's use of the Premises. No sign, advertisement, or
notice may be inscribed, painted, or affixed on any part of the outside or
inside of the Premises or Building by the Tenant except on the doors of the
Premises leased by the Tenant and on the directory board, and then at the
Tenant's expense and only of such color, size, style, and material as is
specified by the Landlord in writing. The Landlord reserves the right to remove
all other signs at the expense of the Tenant. At the expiration of the lease
term, the Tenant shall remove its signs from such doors.
12. ALTERATIONS. No alterations or additions may be made and no
fixtures may be affixed to the Premises or the Building without prior written
consent of Landlord, which consent shall not be unreasonably withheld. Provided,
however, no consent by Landlord shall be required for Tenant to make alterations
to the interior of the Premises which do not involve moving or removing walls,
floors, ceilings, plumbing or lavatory equipment or fixtures, or electrical
systems, or air, heating or cooling vents, systems, equipment or duct work. All
such alterations, additions and fixtures, except the Tenant's trade fixtures and
business machines, shall be and remain the property of Landlord unless otherwise
agreed in writing by the Landlord. If at any time, including at the termination
of the Lease Term, Tenant removes any satellite dish, antennae or other
equipment from the Building or the Premises, Tenant shall, at its sole cost and
expense, immediately repair all damage caused either by the installation or
removal of such equipment and restore the Building and the Premises to the
condition which existed prior to the installation thereof. All such removal and
repair shall be subject to the prior approval of the Landlord.
13. USE OF THE PREMISES. The Tenant (a) shall occupy and use the
Premises during the term for the purposes specified in Paragraph 3, above, and
none other; (b) may not make or permit any use of the Premises which, directly
or indirectly, is forbidden by public law, ordinance, or government regulations
or which may be dangerous to life, limb, or property, or which may invalidate or
increase the premium cost of any policy of insurance carried on the Building or
covering its operations; (c) may not obstruct or use for storage or for any
purpose other than ingress and egress the sidewalks, entrances, courts,
corridors, vestibules, halls, elevators, and stairways of the Building; (d) may
not make or permit any noise or odor that is objectionable to other occupants of
the Building to emanate from the Premises, may not create or maintain a nuisance
thereon, may not disturb, solicit, or canvass any occupant of the Building, and
may not do any act tending to interfere with the quiet enjoyment of their leased
space in the Building by other Tenants, or to injure the reputation of the
Building; (e) may install an antennae or satellite dish on the roof at the
Tenant's sole expense, provided that such antennae or satellite dish is for the
use of Tenant and/or Tenant's Guests only (unless Landlord gives its prior
written consent for use by others), it being understood that Landlord shall have
the right to approve, in advance of installation by the Tenant, the size,
weight, location and method of installation of Tenant's antennae or satellite
dish, which approval shall not be unreasonably withheld, and that the Tenant
shall not be required to pay rent for the antennae or satellite dish location;
(f) may not place, or permit to be placed, any article of any kind on the window
ledges or on the exterior walls and may not throw, or permit to be thrown or
dropped, any article from any window of the Building; (g) may not attach
additional locks or similar devices to any door or window and, upon the
termination of this Lease or of the Tenant's possession, shall surrender all
keys to the Premises and shall explain to the Landlord all combination locks on
safes, cabinets, and vaults; (h) shall be responsible for locking the doors and
closing the transoms and windows in and to the Premises; (i) may not install any
awnings, or other form of inside or outside window covering or window
ventilators or similar devices without the prior written consent of the
Landlord; (j) may not overload any floor, shall route and locate safes and other
heavy articles as the Landlord may direct, shall bring safes, furniture, and all
large articles through the Building and onto the Premises at such times and in
such manner as the Landlord directs and at the Tenant's sole risk and
responsibility, and shall list all furniture, equipment, and similar articles to
be removed from the Building for approval at the office of the Management before
the removal of such articles; (k) may not install in the Premises any equipment
which uses a substantial amount of electricity without the advance written
consent of the Landlord, shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the premises, taking into account
the capacity of the electrical wiring in the Building and the Premises and the
needs of other Tenants in the Building and, notwithstanding the Landlord's
consent to such installation, may not use more electricity than such safe
capacity; (l) shall be responsible for the cost of modification, installation,
maintenance, repair, and additional operating and utility expenses related to
any supplementary air conditioning required by heat-generating machines or
extraordinary equipment used by the Tenant; (m) may locate antennas and other
sending and/or receiving equipment within the Premises for the purpose of
wireless networking solely within the Premises, provided that no such antennas
and/or equipment causes or results in signals, sounds, electrical impulses
and/or data to be received outside the Premises or interferes with equipment
being used outside the Premises. It is understood and agreed that the rights
granted in subparagraphs (e) and (m) hereof to install an antennae or satellite
dish take precedence over and supersede any contradictory provisions of the
Building Rules and Regulations now or hereafter adopted.
All persons entering or leaving the Building between the hours of 6:00
p.m. and 8:00 a.m. Monday through Friday or any time Saturdays, Sundays, or
holidays, may be required to identify themselves to a watchman, by registration
or otherwise, and to establish their right to enter or leave the Building.
Provided further that nothing contained herein shall be construed to require the
Landlord to provide watchmen or other security agents on or about the Building.
The Landlord may exclude or repel any peddler, solicitor, or beggar. In addition
to all other liabilities for breach of any covenant of this Paragraph, the
Tenant shall pay to the Landlord, as additional rent hereunder, an amount equal
to any increase in insurance premiums caused by such breach. The violation of
any covenant of this Paragraph may be restrained by injunction without the
requirement of any bond.
14. REPAIRS. The Tenant shall take good care of the Premises and the
fixtures therein and shall keep the Premises in good order, condition, and
repair at the Tenant's expense during the term of this Lease, including the
replacement of all interior broken glass. Exterior glass broken by the Tenant
will be replaced by Landlord, at Tenant's sole cost and expense and the Tenant
shall promptly pay the Landlord for the costs thereof as additional rent for
glass of the same size and quality. If the Tenant does not make necessary
repairs within a reasonable time and adequately, the Landlord may, but need not,
make such repairs and the Tenant shall promptly pay the Landlord for the costs
thereof as additional rent. On the expiration or early termination or
cancellation of this Lease, the Tenant shall surrender the Premises and the
Landlord's fixtures in as good condition as of the time of delivery to the
Tenant, subject to reasonable wear and tear. All injury to the Building or
fixtures caused by moving of the Tenant in and out of the Building and any and
all breakage or any other injury whatsoever to the Building, fixtures or to the
property of any Tenants of the Building caused by the Tenant and any damage done
by water, steam, electricity, fire, or other substance to the Building or
fixtures, or to the property of other Tenants in the Building caused by the
Tenant may be repaired by the Landlord at the expense of the Tenant, and the
cost thereof shall become due and payable by the Tenant as additional rent upon
the delivery of a statement of such costs by the Landlord to the Tenant, or
mailing the same, postage prepaid, to the Tenant at its last known address.
15. EMINENT DOMAIN.
(a) Partial or Total Condemnation. If any portion of the
Premises is taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain, or by private purchase
under threat or intimidation thereof, this Lease shall terminate on the election
of either party, effective on the date of possession of the Premises or any
portion thereof is taken by the condemning authority or private purchaser. In
the case of a partial condemnation where neither party elects to terminate this
Lease, then the annual rental payable hereunder shall, during the unexpired
portion of the lease term, be reduced by the pro rata amount attributable to the
Premises taken, effective on the date possession of such portion of the Premises
is taken by the condemning authority or private purchaser. Landlord shall
promptly provide to Tenant a copy of all notices from any such condemning
authority or private purchaser, respecting any requirement that Tenant surrender
its right to possession to the Premises or any portion thereof pursuant to this
Paragraph 15(a).
(b) Notice to Terminate. Any notice of election by Tenant to
terminate this Lease pursuant to this paragraph, shall be given by Tenant to
Landlord within thirty (30) days after notice by Landlord to Tenant as provided
in Paragraph 15(a) hereof or within thirty (30) days after receipt by Tenant of
actual knowledge of any requirement that Tenant surrender its right to
possession to the Premises or any portion thereof as herein provided, whichever
first occurs. Any notice of election by Landlord to terminate this Lease, as
herein provided, shall be given by Landlord to Tenant within thirty (30) days
after receipt by Landlord of actual knowledge of any requirement that Landlord
surrender its right to possession to the Premises or any portion thereof. In the
event this Lease is not terminated under this paragraph, Landlord shall make
such reasonable repairs or alterations as may be necessary to make the Premises
fully functional and this Lease shall remain in full force and effect.
(c) Condemnation Award. Each party shall be entitled to awards
for taking and damages with respect to its and their respective interests, it
being the intent herein that each party shall recover a sum sufficient to put
said party in the position each would have been in through the life of this
Lease and any renewal or extension thereof, the same as if a condemnation had
not occurred.
16. RIGHTS RESERVED TO LANDLORD. The Landlord reserves all rights
incident to its ownership of the Building, including, but not limited to, the
right (a) to change the name or street address of the Building without notice or
liability; (b) to install and maintain signs on the exterior of the Building;
(c) to approve all sources furnishing sign painting and lettering, and drinking
water, used on the Premises; (d) if, during or prior to the termination of this
Lease, the Tenant vacates the Premises, to decorate, remodel, repair, alter, or
otherwise prepare the Premises for reoccupancy; (e) to have pass keys to the
Premises; (f) to exhibit the Premises during the last ninety (90) days of the
lease term; (g) to take any and all measures, including inspections, repairs,
alterations, additions, and improvements to the Premises or to the Building as
may be necessary or desirable for the safety, protection, or preservation of the
Premises or the Building or the Landlord's interest therein, or as may be
necessary or desirable in the operation of the Building; (h) to approve all
movers employed by the Tenant to move the Tenant's furnishings, fixtures, and
equipment in or out of the Premises. The Landlord may enter upon the Premises
and may exercise any or all of the foregoing rights hereby reserved without
being deemed guilty of an eviction or disturbance of the Tenant's use or
possession and without being liable in any manner to the Tenant.
17. SUBSTITUTION OF PREMISES. At any time after the execution of this
Lease, Landlord may substitute for the Premises other premises in the Building
(hereinafter called the "New Premises") in which event the New Premises shall be
deemed to be the leased Premises for all purposes. This right on the part of the
Landlord may be exercised if, and only if, (a) the New Premises shall be
substantially equivalent in area and in appropriateness for Tenant's use, and
(b) any such substitution is made for the purpose of accommodating a Tenant that
will occupy a substantial portion of the floor on which the leased Premises are
located. If Tenant is occupying the leased Premises at the time of any such
substitution, Landlord shall pay the expense of moving Tenant, its property and
equipment to the New Premises including without limitation necessary replacement
of existing stationery supplies and changes in telephone service, and shall, at
Landlord's sole cost, improve the New Premises with improvements substantially
equivalent to those located in the leased Premises.
18. HOLDING OVER. In the event Tenant should remain in possession of
the Premises after expiration of the term of this Lease without execution by
Landlord and Tenant of a new Lease, then Tenant shall be deemed to be occupying
the leased Premises as a tenant at sufferance subject to all of the covenants
and obligations of this Lease and at a daily rental of twice the per diem rate
of rental provided hereunder computed on the basis of a thirty (30) day month.
Landlord, upon notice to Tenant, shall have the right to deem the continuing
occupancy of Tenant to constitute the creation of a month to month tenancy at a
monthly rental of twice the monthly rental provided hereunder, which month to
month tenancy shall continue until either party shall have given the other one
full calendar month's notice of an intention to terminate such month to month
tenancy.
19. NOTICE AND PAYMENTS. Any notice which the Landlord may desire or be
required to give the Tenant shall be deemed sufficiently given or rendered if
delivered in writing to the Tenant personally or sent by certified or registered
mail, addressed to the Tenant at the Premises, return receipt requested. All
payments to the Landlord and any notice which the Tenant may desire or be
required to give the Landlord shall be deemed sufficiently given or rendered if
delivered in writing to the Landlord personally or sent certified or registered
mail, return receipt requested, addressed to the Landlord at 4100 Edison Lakes
Parkway, Mishawaka, Indiana, 46545 or such other address as the Landlord may
designate in writing.
20. DEFAULT BY TENANT. In the event of a default by the Tenant under
this Lease, the Landlord will have the following remedies:
A. If any voluntary or involuntary petition or similar
pleading under any section of any bankruptcy law is filed by or against the
Tenant or any voluntary or involuntary proceedings in any court or tribunal is
instituted to declare the Tenant insolvent or unable to pay its debts and, in
the case of an involuntary petition or proceeding, if it is not dismissed with
thirty (30) days from the date it is filed, then the Landlord, at its election
and without further notice or demand and either with or without entry upon the
Premises, may forthwith cancel this Lease and be thereafter entitled to recover
damages in an amount equal to the present value of the rental obligation herein
stated, including increases in rent as provided in this Lease, less the fair
rental value for the Premises which it can obtain for the residue of the stated
term.
B. If the Tenant either fails to pay any rent or other monies
owed to the Landlord on the date it is due, or, if Tenant is otherwise in
default of any of its obligations or duties under this Lease, and said default
shall remain in effect for five (5) days following receipt of written notice of
said default by Tenant, then the Landlord may enter into and upon the Premises,
or any part thereof, and repossess the same, with or without terminating this
Lease and without prejudice to any of its remedies for rent or breach of
covenant and may, at its option, terminate this Lease by giving written notice
of its election to do so or may, at its option, lease the Premises, or any part
thereof, as the agent of the Tenant, or otherwise. (If Landlord, in any given
calendar year, provides written notice following default on two occasions,
Landlord shall not be required to provide written notice of default for any
subsequent defaults by Tenant during that calendar year. Landlord may proceed to
exercise its remedies upon such subsequent default without such five (5) day
written notice to Tenant.) The Tenant shall, without demand or further process
of law, pay to the Landlord at the end of each month during the full term of
this Lease the difference between the rent due the Landlord from the Tenant
under this Lease, including any increases in rent due under this Lease, and the
net receipts, if any, being received by the Landlord from the Premises (such net
receipts to be calculated by deducting from the gross receipts the expense
incurred by the Landlord in connection with the reletting of the Premises and
performing the Tenant's obligations hereunder). In the event the rent for
reletting the Premises is higher than the monthly rent under the term of this
Lease, then such excess rent shall belong to the Landlord and the Tenant will
have no claim or right thereto.
C. The Tenant shall pay upon demand all the Landlord's costs,
charges, and expenses, including reasonable fees of attorneys, agents, and
others retained by the Landlord, incurred in enforcing the Tenant's obligations
hereunder or incurred by the Landlord in any litigation, involving the Tenant in
which the Landlord becomes involved without the Landlord's fault.
D. The Landlord shall pay upon demand all the Tenant's costs,
charges, and expenses, including reasonable fees of attorneys, agents, and
others retained by the Tenant, incurred in enforcing the Landlord's obligations
hereunder or incurred by the Tenant in any litigation, involving the Landlord in
which the Tenant becomes involved without the Tenant's fault.
21. DEFAULT BY LANDLORD. If the Premises, or any part thereof, are at
any time subject to a mortgage, a deed of trust, or a similar lien instrument,
and this Lease or the rentals are assigned to such mortgagee, trustee, or
beneficiary, and the Tenant is given written notice thereof, including the post
office address of such assignee, then the Tenant may not terminate this Lease
for any default on the part of the Landlord without first giving written notice
by certified or registered mail, return receipt requested, to such assignee, to
the attention of the mortgage loan department, specifying the default in
reasonable detail, and affording such assignee a reasonable opportunity to make
performance at its election for and on behalf of the Landlord.
22. LIABILITY INSURANCE.
A. Tenant shall, at all times, maintain Comprehensive General
Liability insurance covering all operations in which the Tenant is engaged with
limits of $1,000,000.00 Each Occurrence and an Aggregate limit of not less than
$1,000,000,00. In addition, the Tenant shall carry Automobile Liability
insurance covering any vehicles owned by or operated by the Tenant on the
Landlord's premises with limits of not less than $1,000,000.00 per accident. The
Tenant shall, at all times, carry Workers Compensation insurance covering the
Tenant's employees and any subcontractors engaged by the Tenant.
B. Such insurance policy or policies shall name Landlord as an
additional insured and shall provide that they may not be cancelled on less than
thirty (30) days prior written notice to Landlord. Tenant shall furnish Landlord
with certificates of insurance evidencing such coverage. Should Tenant fail to
carry such insurance and furnish Landlord with certificates of insurance after a
request to do so, Landlord shall have the right to obtain such insurance and
collect the premium thereof from Tenant as additional rent.
23. WAIVER OF SUBROGATION. Each party hereby waives all claims for
recovery from the other party for any loss or damage to any of its property
insured under valid and collectible insurance policies to the extent of any
recovery collectible under such Insurance, subject to the limitation that this
waiver shall apply when permitted by the applicable policy of Insurance.
24. INDEMNIFY AND HOLD HARMLESS. Tenant agrees to indemnify Landlord
for, and hold Landlord harmless from and against, all fines, suits, claims,
demands, liabilities and actions (including reasonable costs and expenses of
defending against such claims) resulting or alleged to have resulted from any
breach, violation or non-performance of any covenant or condition hereof, or
from the use or occupancy of the Premises, by Tenant or Tenant's agents,
employees, licensees, or invitees, and for any damage to person or property
resulting from any act, omission or negligence of Tenant or any of Tenant's
agents, employees, licensees or invitees, or any occupant of the Premises (but
not trespassers), except as Landlord's own negligence may contribute thereto.
Landlord agrees to indemnify Tenant for, and hold Tenant harmless from
and against all fines, suits, claims, demands, liabilities and actions
(including reasonable costs and expenses of defending against such claims)
resulting or alleged to have resulted from any breach, violation or
non-performance of any covenant or condition hereof, by Landlord or Landlord's
agents, employees, licensees, or contractors (but not by, or actions of, any
other tenant of the Building or any agents, employees, licensees or invitees of
any other tenant of the Building or any trespassers), and for any damage to
person or property resulting from any act, omission or negligence of Landlord or
Landlord's agents, employees or contractors (but not for any damage resulting
from any act, omission or negligence of any other tenant of the Building or any
agents, employees, licensees or invitees of any other tenant of the Building or
any trespassers) except as Tenant's own negligence may contribute thereto.
25. OFFSET STATEMENTS. The Tenant agrees to any time and
from time to time, upon not less than twenty (20) days prior written request by
the Landlord, to execute, acknowledge, and deliver to the Landlord a statement
in writing certifying that this Lease is unmodified and in full force and effect
(or, if there have been modifications, stating the modifications, and that the
Lease, as so modified, is in full force and effect), the commencement and
termination dates of this Lease, that the Tenant has accepted the Premises, and
the date to which the rental and other charges have been paid in advance, if
any, and that the Tenant has no claims against the Landlord or offsets against
rent. It is intended that such statement may be relied upon by prospective
purchasers of the Landlord's interest in the land and Building, or by a
mortgagee or assignee of any mortgage upon the Landlord's interest in the land
and Building.
26. LIENS. The Tenants may not do any act which in any way encumbers
the title of the Landlord in and to the Premises and the Building, nor shall the
interest or estate of the Landlord in said Premises and Building be in any way
subject to any claim by way of lien or encumbrance, whether by operation of law
or by virtue of any expenses or implied contract by the Tenant. The Tenant will
not permit the Premises and the Building to become subject to any mechanics',
laborers', or materialmen's liens on account of labor or material furnished, or
claimed to have been furnished, to the Tenant for or on the Premises and
Building. As its election, the Landlord may (but is not required to) remove or
discharge such lien, or claim for lien (with the right, in its discretion, to
settle or compromise the same), and any amounts advanced by the Landlord
together with any attorney's fees incurred by Landlord in connection therewith
for such purpose shall be additional rent immediately due from the Tenant to the
Landlord, with interest at the rate of eighteen (18%) percent per annum from the
date of payment thereof by the Landlord until paid by the Tenant.
27. HAZARDOUS MATERIALS. Tenant shall not cause or permit any Hazardous
Materials to be brought upon, kept or used in or about the Premises or the real
estate described in Exhibit B (the "Real Estate") by Tenant, its agents,
employees, contractors or invitees without the prior written consent of
Landlord, which consent shall not be unreasonably withheld as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such Hazardous Material
is necessary or useful to Tenant's business and will be used, kept and stored in
a manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises or Real Estate. If Tenant
breaches the obligations stated in the preceding sentence, or if the presence of
Hazardous Material on the Premises or Real Estate caused or permitted by Tenant
results in contamination of the Premises or Real Estate or if contamination of
the Premises or Real Estate by Hazardous Material otherwise occurs for which
Tenant is legally responsible to Landlord for damage resulting therefrom, then
Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Premises or Real
Estate, damages for the loss or restriction on use of rentable or usable space
or of any amenity of the Premises or Real Estate, damages arising from any
adverse impact on marketing of space in the Building, and sums paid in
settlement of claims, attorney's fees, consultants' fees and expert fees) which
arise during or after the lease term as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any clean
up, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Real Estate. Without
limiting the foregoing, if the presence of any Hazardous Material on the
Premises or Real Estate caused or permitted by Tenant results in any
contamination of the Premises or Real Estate, Tenant shall promptly take all
actions, at its sole expense, as are necessary to return the Premises to the
condition existing prior to the introduction of any such Hazardous Material to
the Premises or Real Estate; provided that Landlord's written approval of such
actions shall be first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long term or short term effect on the Premises or Real Estate. The foregoing
indemnity shall survive the expiration or earlier termination of the Lease.
As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste, including, but not limited to, those
substances, materials and wastes defined or specified in 42 U.S.C Section 9601
et seq. and any similar state statute or local ordinance applicable to the Real
Estate as well as any rules and regulations promulgated, administered or
enforced by any governmental agency or authority pursuant thereto including any
subsequent amendments thereof.
28. BROKERS. Tenant represents and warrants that it has not dealt with
any broker or agent in any negotiations for or the obtaining of this Lease,
other than Cressy & Everett Commercial Company, Inc., ("Agent") and Tenant
agrees to indemnify and hold Landlord harmless from any and all costs or
liability, including attorneys' fees, for compensation claimed by any other
broker or agent employed by it or claiming to have been engaged by it in
connection with this Lease. The parties acknowledge that Agent has acted only as
agent with respect to the procurement and negotiation of this Lease, and agree
that Agent shall not be responsible or liable for any term, provision or
condition of this Lease. If Agent is entitled to a leasing commission in
connection with the making of this Lease, the same shall be paid by Landlord
pursuant to a separate written agreement between Landlord and Agent.
29. EXCULPATION. Tenant's source of satisfaction of any of Landlord's
obligations hereunder shall be limited specifically to the Building as well as
to all bank accounts and reserve accounts pertaining thereto, and the proceeds
of the same.
30. MISCELLANEOUS.
A. The invalidity of any provision, clause, or phrase will not
serve to render the balance of this Lease ineffective or void.
B. This Lease shall be binding upon and inure to the benefit
of the respective parties hereto, their heirs, executors, administrators,
devisees, successors, and assigns. Any reference to the Tenant or Landlord
shall, for the purpose of determining liability for property damage, personal
injury, and the like, be deemed to include the Tenant, the Landlord, his or her
respective agents, employees, servants, partners, independent contractors,
licensees, invitees, guests or visitors.
C. This Lease supersedes and cancels all prior negotiations
and agreements whatsoever, and this Lease shall be amended only upon the joint
written agreement of the parties.
D. Except as elsewhere herein expressly provided, all amounts
owed by the Tenant to the Landlord hereunder shall be deemed to be additional
rent and shall be deemed payable within ten (10) days from the date the Landlord
renders a statement of account therefore to the Tenant and shall bear interest
at the rate of eighteen (18) percent per annum thereafter until paid.
E. Extension and Waiver. Time is of the essence in the
performance of all obligations provided for herein. Any party hereto may (1)
extend the time for the performance of any of the obligations or other acts of
the other party hereto, (2)waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document delivered
pursuant hereto, and/or (3)waive compliance by any other party with any of the
agreements or conditions contained herein. However, no term or provision hereof
shall be deemed waived (and no breach shall be deemed consented to or excused)
unless such waiver, consent, or excuse shall be in writing and signed by the
party claimed to have excused, waived, or consented. Should any party consent,
waive or excuse a breach by any other party, such consent, excuse, or waiver
shall not constitute a consent to, waiver of, or excuse of any other or
subsequent breach, whether or not of the same kind as the original breach.
F. Entire Agreement. This Lease contains the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and supercedes all previous written or oral negotiations, commitments, and
writings.
G. Limitations on Rights of Third Parties. Nothing expressed
or implied in this Lease is intended or shall be construed to confer upon or
give any person other than the parties hereto any rights or remedies under or by
reason of this Lease or the transactions contemplated hereby.
H. Construction. Words and phrases herein, including
acknowledgment hereof, shall be construed as in the singular or plural number,
and as masculine, feminine, or neuter gender according to the context.
I. Governing Law. This Lease shall be construed and enforced
in accordance with the laws of the State of Indiana. The parties hereto agree
that the courts of the State of Indiana, located in St. Joseph County, Indiana,
and the United States District Court for the Northern District of Indiana shall
have the sole and exclusive jurisdiction over any litigation arising from this
Lease or related in any way to the transactions provided for herein. The parties
consent to the personal jurisdiction of those courts.
J. Legal Authorization. All persons executing this Lease in a
representative capacity warrant that they have authority to execute this Lease
and bind the entities they purport to represent.
K. Legal Counsel. Each Party hereto acknowledges and agrees
that it has been given the opportunity to consult with counsel and other
advisors of its choice, and having the opportunity to consult with such counsel
and advisors, knowingly, voluntarily and without duress, coercion, unlawful
restraint, intimidation or compulsion enters into this Lease.
L. Entire Agreement. (i)The parties agree that this Lease is
the product of their joint efforts, that it expresses their agreement, and that
it should not be interpreted in favor of or against any party merely because of
that party's efforts in preparing it. (ii) Each person signing this Lease
(whether for herself or for himself individually or on behalf of an
organization) acknowledges that this Lease may reflect changes from previous
drafts, if any, and that he or she has read and reviewed this Lease carefully.
Each person signing this Lease also acknowledges that he or she has not relied
on any other party to this Lease, or any officer, agent, partner, employee or
attorney of any other party to this Lease, to explain provisions of this Lease
to him or her, or to identify changes that have been made from prior drafts or
versions of this Lease, if any. Rather, each person signing this Lease agrees to
be solely responsible for being aware of the contents of this Lease.
M. Recording. The parties shall not record this Lease. Parties
shall record a Memorandum of Lease with the St. Joseph County, Indiana,
Recorder.
N. Bicycles and Dogs. Notwithstanding any rules and
regulations with respect to the Premises that may be adopted from time to time
by Landlord, nothing in such rules and regulations shall prohibit Tenant and its
employees from storing bicycles in the Premises (provided that such bicycles not
ridden within the Building) and dogs shall be allowed within the Premises
outside normal business hours (provided that such dogs are on a leash while in
the Building, are allowed outside the Premises only when being taken to and from
the Premises, and are not allowed to run loose within the Building.)
31. AMERICANS WITH DISABILITY ACT OF 1991 ("ADA"). The United States
Congress has enacted the Americans with Disabilities Act (the "ADA"). Among
other things, this Act is intended to make many business establishments equally
accessible to persons with a variety of disabilities; therefore, modifications
to real property may required. State and local laws also may mandate changes.
Tenant shall be solely liable and responsible for making any modifications to
the Premises or access thereto required to accommodate the disabilities of
Tenant or its customers, visitors, and employees .Also, Tenant shall be solely
responsible for any costs incurred by Landlord in making any modifications to
the Building required to accommodate the disabilities of Tenant or its
customers, visitors, and employees beyond the accommodations which are customary
for office buildings similar to the Building.
32. RULES AND REGULATIONS. (A) With respect to the Premises, Tenant
shall, at its own expense, comply with all laws, orders, and requirements of all
governmental entities with reference to the use and occupancy of the Premises.
Tenant and Tenant's agents, employees, and invitees shall comply with any rules
and regulations governing the use of the Building or other improvements to the
Premises as reasonably required by the Landlord. Landlord may make reasonable
changes in any such rules and regulations from time to time as it deems
advisable for the safety, care, and cleanliness of the Building, provided the
same are in writing and are not in conflict with this Lease. The existing Rules
and Regulations are attached hereto and incorporated herein. (B) Tenant shall
pay any and all such fines or penalties imposed or allegedly imposed for failure
to comply with this Paragraph and shall indemnify, defend, and hold harmless
Landlord from any claims, demands, or actions by governments, their agencies,
boards or commissions and private parties, arising as a result of Tenant's
failure to comply with this Paragraph.
33. ADDITIONAL PROVISIONS. Additional paragraphs 33 A through I
attached to this Lease as Exhibit A, are part of this Lease and the terms and
provisions thereof are binding upon the Landlord and the Tenant.
LANDLORD: MFB FINANCIAL
BY:______/s/________________________________
---
TENANT: MAY OBERFELL LORBER
BY:______/s/_________________________________
---
EXHIBIT A
Additional Provisions to Lease
[Confidential material omitted from this Exhibit and filed
separately with the Securities and Exchange
Commission pursuant to a request for
confidential treatment is represented by the
symbol [**]. ]
A. BUILD OUT ALLOWANCE. The Landlord will provide a build out allowance
of $[**] per square foot of usable space and will pay for all architectural,
engineering, and brokerage fees which are not included in the $[**] per square
foot build out allowance.
B. PARKING. Tenant will be provided 60 parking spaces at no cost along
with 4 additional spaces for each thousand square feet of space over and above
15,000 square feet of space should the Tenant occupy more than 15,000 square
feet of space. Landlord shall maintain not less than four (4) parking spaces for
each 1,000 square feet of rentable space in the Building. However, such parking
spaces shall not be designated for the exclusive use of Tenant or Tenant's
employees or invitees. Rather, such spaces shall be consistent with parking
requirements of the Landlord and other tenants of the Building. Landlord
reserves the right to establish reasonable rules from time to time concerning
the parking area so long as such rules are uniformly applied to all tenants of
the Building.
C. SIGNAGE. Landlord will provide signage on the existing monument sign
at no expense to the Tenant. Additional Signage approved by Landlord will be at
Tenant's sole expense provided that Tenant may use portions of the permitted
Build Out Allowance, if any, towards such signage expenses.
D. EXERCISE FACILITIES. Tenant's employees shall be permitted access to
the Building's exercise facility at no additional cost to the Tenant, subject to
the Fitness Center Addendum attached hereto. Use of such facilities is limited
to employees of the Tenant and the use of such facilities is at Tenant's own
risk.
E. EXPANSION OPTIONS. Landlord hereby grants to Tenant a right of first
refusal for any contiguous space which may become available during the initial
term and any renewal period of this Lease. Landlord will provide written notice
to the Tenant regarding the availability of such space and Tenant will have a
period of 10 business days after receiving such notice to exercise such option.
In the event the Tenant desires to lease the space in its then "as is" condition
the same terms and conditions as are in effect for this Lease shall apply to the
additional space. If such space is to be improved at the Landlord's expense,
then the rent for the expansion space shall include the base rent under the
terms of the existing lease together with the pro rata share of operating
expenses attributable to such space along with the cost of any required
improvements for the expansion space, amortized over the then remaining lease
term (without considering option terms under renewal options which at that time
have not been exercised) at an interest rate equal to one percent (1%) below the
then existing Prime Rate or upon such other terms which may be mutually agreed
to by Landlord and Tenant.
F. TRAINING FACILITY. Tenant shall have access on an arranged basis to
the training room facility located on the first floor of the Building at no
additional cost to the Tenant in accordance with the Training Room Addendum
attached hereto.
G. NON SMOKING FACILITY. The entire Building is a non smoking facility
and Tenant agrees that smoking on the Premises and on the Real Estate is
prohibited.
H. SECURITY SYSTEMS. Landlord will maintain Building security by
providing adequate lighting, an electronic entry system, and video surveillance
and/or similar systems. Tenant may install additional equipment at its expense
and upon approval by the Landlord.
I. RENEWAL OPTIONS. Provided the Tenant is not in default under the
terms of the Lease, the Tenant shall have the option to renew or extend this
Lease for two separate five year terms upon the same terms and conditions except
that the base rent for years 16-20 shall be increased to $[**] per rentable
square foot and for years 21-25 the base rent shall be increased to $[**] per
square foot. Tenant shall be responsible for its pro rata share of operating
expenses during any such renewal and will provide Landlord notice of its intent
to exercise such options 180 days before the expiration of the Lease.
Building Rules and Regulations
1. No awning or other projection will be attached to the outside walls
of the Building. No curtains, blinds, shades or screens visible from the
exterior of the Building or visible from the exterior of the Leased Premises,
will be attached to or hung in, or used in connection with any window or door
of the Leased Premises without the prior written consent of Landlord. Such
curtains, blinds, shades, screens or other fixtures must be of a quality,
type, design and color, and attached in the manner approved by Landlord.
Notwithstanding the foregoing, Landlord hereby approves and accepts all window
treatments currently used by Tenant in the Demised Premises.
2. Tenant, its servants, employees, customers, invitees and guests will
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls,
elevators, or stairways in and about the Building which are used in common
with other tenants and their servants, employees, customers, guests and
invitees, and which are not a part of the Leased Premises of Tenant. Tenant
will not place objects against glass partitions or doors or windows which
would be unsightly from the Building corridors or from the exterior of the
Building, or that would interfere with the operation of any device, equipment,
radio, television broadcasting or reception from or within the Building or
elsewhere and will not place or install any projections, antennas, aerials or
similar devices inside or outside of the Leased Premises or on the Building.
3. Tenant will not waste electricity, water or air conditioning and
will cooperate fully with Landlord to insure the most effective operation of
the Building's heating and air conditioning systems and will refrain from
attempting to adjust any controls other than unlocked room thermostats, if
any, installed for Tenant's use. Tenant will keep corridor doors closed.
4. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Leased Premises closed and secured after normal business
hours.
5. Excluding Tenant's personal property and trade fixtures, no person
or contractor not employed by Landlord will be used to perform janitorial
work, window washing cleaning, maintenance, repair or similar work in the
Leased Premises without the written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed.
6. Landlord will have the right to prohibit any advertising by Tenant
which in Landlord's reasonable opinion tends to impair the reputation of the
Building or its desirability as an office complex for office use, and upon
written notice from Landlord, Tenant will refrain from or discontinue such
advertising.
7. The Leased Premises will not be used for cooking (except for the use
of microwave ovens), lodging, sleeping or for any immoral or illegal purpose.
8. Unless expressly permitted by Landlord, no additional locks or
similar devices will be attached to any door or window and, except to the
extent Tenant has keys in its possession as of' the Commencement Date, no keys
other than those provided by Landlord will be used or made for any door. If
more than two keys for one lock are desired by Tenant, Landlord may provide
the same upon payment by Tenant. Upon termination of this Lease or of Tenant's
possession, Tenant will surrender all keys and access cards of the Leased
Premises and will explain to Landlord all combination locks on safes, cabinets
and vaults.
9. The water and wash closets, drinking fountains and other plumbing
fixtures will not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances will be thrown therein. All damages resulting from any misuse of
the fixtures by Tenant or its servants, employees, agents, visitors or
licensees will be borne by Tenant. No person will waste water by interfering
or tampering with the faucets or otherwise.
10. No electrical circuits for any purpose will be brought into the
Leased Premises without Landlord's written permission (which shall not be
unreasonably withheld, conditioned or delayed) specifying the manner in which
same may be done.
11. No bicycle or other vehicle, and no dog (other than seeing-eye
dogs) or other animal will be allowed in offices, halls, corridors, or
elsewhere in the building.
12. Tenant will not throw anything out of the door or windows, or down
any passageways or elevator shafts.
13. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse will be made only through entryways and freight
elevators provided for such purposes and indicated by Landlord. Tenant will be
responsible for any damage to the building or property of its employees or
others and injuries sustained by any person whomsoever resulting from the use
or moving of such articles in or out of the Leased Premises, and will make all
repairs and improvements required by Landlord or governmental authorities in
connection with the use or moving of such articles.
14. All safes, equipment or other heavy articles will be carried in or
out of the Leased Premises only at such time and in such manner as will be
prescribed in writing by Landlord, and Landlord will in all cases have the
right to specify the proper position of any such safe, equipment or other
heavy article, which will only be used by Tenant in a manner which will not
interfere with or cause damage to the Leased Premises or the building in which
they are located, or to the other tenants or occupants of such building.
Tenant will be responsible for any damage to the building or the property of
its employees or others and injuries sustained by any person whomsoever
resulting from the use or moving of such articles in or out of the Leased
Premises, and will make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such
articles.
15. Canvassing, soliciting, and peddling in the building is prohibited
and Tenant will cooperate to prevent its employees from doing the same.
16. Vending machines will not be installed without permission of
Landlord (which will not be unreasonably withheld).
17. Wherever in these Building Rules and Regulations the word "Tenant"
occurs, it is understood and agreed that it will mean Tenant's associates,
agents, clerks, servants and visitors. Wherever the word "Landlord" occurs, it
is understood and agreed that it will mean Landlord's assigns, agents, clerks,
servants and visitors.
18. Tenants, its servants, employees, customers, invitees and guests
will, when using the common parking facilities, if any, in and around the
building, observe and obey all signs regarding fire lanes and no parking zones,
and when parking always park between the designated lines. Landlord reserves the
right to tow away, at the expense of the owner, any vehicle that is improperly
parked in a no parking zone. All vehicles will be parked at the sole risk of the
owner, and Landlord assumes no responsibility for any damage to or loss of
vehicles except to the extent any damage is caused by the gross negligence or
willful misconduct of Landlord.
19. At all times the Building will be in charge of Landlord's employee
in charge and (a) persons may enter the Building only in accordance with
Landlord's reasonable regulations, (b) persons entering or departing from the
Building may be questioned as to their business in the Building, and the right
is reserved to require the use of an identification card or other access device
and the registering of such persons as to the hour of entry and departure,
nature of visit, and other information deemed necessary for the protection of
the Building, and (c) all entries into and departures from the Building will
take place through such one or more entrances as Landlord will from time to time
designate. Landlord will normally not enforce clauses (a), (b) and (c) above
from 7:00 a.m. to 6:00 p.m., Monday through Friday, and from 8:00 a.m. to 1:00
p.m. on Saturdays, but it reserves the right to do so or not to do so at any
time at its sole discretion. In case of invasion, mob, riot, public excitement,
or other commotion, Landlord reserves the right to prevent access to the
Building during the continuance of the same by closing the doors or otherwise,
for the safety of the tenants or the protection of the Building and the property
therein. Landlord will in no case be liable for damages for any error or other
action taken with regard to the admission to or exclusion from the Building of
any person.
20. All entrance doors to the Leased Premises will be locked when the
Leased Premises are not in use. All corridor doors will also be closed during
times when the air conditioning equipment in the Building is operating so as not
to dissipate the effectiveness of the system or place an overload thereon.
21. Landlord reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Rules and Regulations
when it is deemed necessary, desirable, or proper, in Landlord's reasonable
judgment, for its best interest or for the best interest of the tenants of the
Building, provided that Landlord enforces (or elects not to enforce) all Rules
and Regulations in a non-discriminatory manner.
EXHIBIT B
Blueprint
[Picture Omitted]
Exhibit "C"
May Oberfell Non-T&I Operating Cost Cap Table
[Confidential material omitted from this Exhibit and filed
separately with the Securities and Exchange
Commission pursuant to a request for
confidential treatment is represented by the
symbol [**]. ]
Non T&I Operating Cost Cap
___per S.F.
--------
Base Year
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
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FITNESS CENTER ADDENDUM FOR MAY OBERFELL LORBER LEASE
In the event and to the extent Landlord maintains a location in the
Building designated and/or used as a fitness center or exercise room (which
location shall be referred to hereinafter as the "Fitness Center"), the
following provisions shall apply to Tenant's use of the Fitness Center:
A. The Fitness Center shall only be used by Tenant's employees, and not
by any guests, invitees or family members of Tenant or Tenant's employees.
B. Use of the Fitness Center shall be consistent with the use of the
Fitness Center by Landlord and other tenants of the Building. Tenant and its
employees shall not use the Fitness Center in any manner that will unreasonably
interfere with the legitimate use of the Fitness Center by Landlord, the other
tenants of the Building, and their respective employees.
C. Tenant shall be solely responsible and liable for the use of the
Fitness Center by Tenant's employees and any invitees of Tenant or its employees
(whether or not authorized hereby). Tenant hereby completely and unconditionally
releases and discharges Landlord and all of Landlord's officers, directors,
agents, contractors, employees and shareholders (all of whom, including
Landlord, being sometimes collectively referred to hereinafter as the "Released
Parties") from each and every liability, obligation, responsibility, claim,
action and/or cause of action of each and every nature and description arising
from or relating directly or indirectly in any way to the Fitness Center and/or
any use thereof by any employee or invitee of Tenant (whether or not such
invitee is authorized hereby), or by any invitee of any employee of Tenant
(whether or not such invitee is authorized hereby), even if arising from the
negligence of one or more of the Released Parties. Further, Tenant hereby agrees
to unconditionally and absolutely indemnify and hold the Released Parties, and
each of them, completely harmless from any and all liabilities, obligations,
responsibilities, claims, actions and/or causes of action of each and every
nature and description arising from or relating directly or indirectly in any
way to the Fitness Center and/or the use thereof by any employee or invitee of
Tenant (whether or not such invitee is authorized hereby) or any invitee of
Tenant's employee (whether or not such invitee is authorized hereby), even if
arising from the negligence of one or more of the Released Parties.
D. Landlord shall be entitled from time to time to implement (and
revise and supplement as necessary) rules with respect to the Fitness Center.
Tenant shall be responsible for full and complete compliance with such rules by
Tenant's employees and invitees (whether or not such invitees are authorized
pursuant hereto, including all invitees of Tenant's employees). Tenant shall be
liable for and shall indemnify and save Landlord completely harmless from any
and all injuries and claims of each and every nature and description arising
from actions or inactions of Tenant's employee or invitees (whether or not such
invitees are authorized hereby, including all invitees of Tenant's employees),
arising from or relating to any violations of such rules. In the event Trustee
and/or any of its employees and/or invitees (whether or not such invitees are
authorized hereby, including any and all invitees of Tenant's employees)
violates any such rules pertaining to the Fitness Center, Landlord shall be
entitled to limit, restrict and/or condition further use of the Fitness Center
by Tenant and/or its employees in such manner as Landlord deems appropriate.
E. Landlord reserves the right to condition use of the Fitness Center
to users who sign indemnification and waiver of liability agreements proposed by
Landlord from time to time, containing such terms as Landlord deems appropriate.
F. Landlord shall be entitled to cease operating the Fitness Center for
a reasonable business reason during the lease term without any liability to
Tenant or to any other person or entity, and without any abatement or reduction
in the rental amount due hereunder.
G. Upon the occurrence of any breach or violation of the provisions of
this paragraph by Tenant or any of its employees, or any invitees of Tenant or
its employees (whether or not such invitees are authorized hereby), Landlord
shall be entitled to limit, restrict and/or terminate further use of the Fitness
Center by Tenant and/or its employees as Landlord deems appropriate. No term or
provision hereof shall be deemed waived (and no breach shall be deemed consented
to or excused) unless such waiver, consent or excuse shall be in writing and
signed by Landlord. Should Landlord consent, waive or excuse a breach or
violation, such consent, waiver or excuse shall not constitute a consent to,
waiver of, or excuse of any other or subsequent breach, whether or not of the
same kind as the original breach.
H. Use of the Fitness Center shall only be allowed from 5:00 a.m. to
10:00 p.m., Monday through Friday, holidays excepted.
TRAINING ROOM ADDENDUM FOR MAY OBERFELL LORBER LEASE
It is anticipated that Landlord may maintain from time to time during
the lease term a location or locations in the Building designated for use as a
shared training room (which location or locations shall be referred to
hereinafter as the "Training Room") for use by Landlord and Tenants of the
Building on a shared basis. The following provisions shall apply to such
Training Room:
A. The Training Room shall only be used by Tenant for conference,
meetings, closings and similar business purposes, and not for social gatherings.
B. Use of the Training Room shall be consistent with the use of the
Training Room by Landlord and other tenants of the Building. Landlord shall
designate one of its employees as the person responsible for scheduling use of
the Training Room. Generally speaking, the Training Room will be reserved on a
first come first serve basis.
C. Tenant shall be solely responsible and liable for the use of the
Training Room by Tenant's employees and any invitees of Tenant.
D. All liability insurance coverage required hereby shall include
coverage for any and all claims that may arise from or relate any use of the
Training Room by Tenant or Tenant's employees or invitees.
E. There shall be no alcoholic beverages served or consumed in or about
the Training Room. At the end of each use of the Training Room, Tenant shall
leave the Training Room in a neat, orderly and clean condition. Tenant will be
required to reimburse Landlord for any and all costs incurred by Landlord to
clean and/or otherwise maintain (including repair) the Training Room and/or any
furniture or other contents thereof following the use thereof by Tenant, its
employees and/or any invitees. Landlord shall be entitled from time to time to
implement (and revise and supplement as necessary) additional rules with respect
to the Training Room. Tenant shall be responsible for full and complete
compliance with such rules by Tenant's employees and invitees. In the event
Tenant and/or any of its employees and/or invitees violates any such rules
pertaining to the Training Room, Landlord shall be entitled to limit, restrict
and/or condition further use of the Training Room by Tenant and its employees
and/or invitees in such extent and manner as Landlord deems appropriate. Should
Landlord consent, waive or excuse a violation of any rule, such consent, waiver
or excuse shall not constitute a consent to, waiver of, or excuse of any other
or subsequent violation, whether or not of the same kind as the original
violation.