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EXHIBIT 10.25
PHG/JLK/kk
3/13/96
K E Y S T O N E O F F I C E
L E A S E
(9200 Building)
THIS LEASE is made this 14 day of March, 1996, by and between WRC
PROPERTIES, INC., a Delaware corporation with offices at 730 Third Avenue, New
York, New York 10017 ("Landlord"), and NHP INCORPORATED, a Delaware corporation
("Tenant").
W I T N E S S E T H:
ARTICLE 1 - LEASE OF PREMISES
SECTION 1.01. LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, subject to all matters affecting title and all of
the terms and conditions hereinafter set forth, office space in the office
building described below which is commonly known as 9200 Keystone Crossing,
Indianapolis, Marion County, Indiana, and which is situated on the tract of
land described in Exhibit A-1 attached hereto (the "Building") for the term
hereinafter specified. The space in the Building hereby leased to Tenant is
set forth in Item A of the Basic Lease Provisions and is outlined in red on
Exhibit A-2 attached hereto (the "Leased Premises"). Common areas and areas
rented to or available for rental by other tenants are not within the Leased
Premises and Tenant has no rights or interests in or to the same except as
herein expressly provided. Elevators shall not be leased to Tenant and shall
remain under Landlord's control.
SECTION 1.02. BASIC LEASE PROVISIONS.
A. Building Name: Keystone Crossing Office Park;
Floors: 5th, 6th, 7th; Address: 9200 Keystone Crossing,
Indianapolis, Indiana, 46240; Suite: 500;
*B. Rentable Area: commencing August 1, 1996 - approximately 50,007
rentable square feet [comprised of 19,893 rentable square feet on the
5th floor, 19,891 rentable square feet on the 6th floor, and 10,223
rentable square feet on the 7th floor (the "Original Premises")];
commencing April 1, 1997 - an additional 596 rentable square feet
located on the 7th floor (the "Additional Space") for a total of
approximately 50,603 rentable square feet (collectively, the Original
Premises and the Additional Space shall be referred to as the "Leased
Premises");
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* Commencement and expiration dates and rental amounts shall be adjusted, if
necessary, to reflect date of substantial completion of the Original Premises
and Additional Space in accordance with Article 2.
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Landlord shall use commercially reasonable standards, in accordance
with Exhibit A-3 attached hereto, consistently applied, in determining
the Rentable Area and the Rentable Area of the Building. The Rentable
Area of the Leased Premises shall include the area within the Leased
Premises plus a pro rata portion of the area covered by the common
areas within the Building, as reasonably determined by Landlord.
Landlord and Tenant agree that the Rentable Area of the Leased
Premises and the Building are as set forth herein.
*C. Building Expense Percentage: commencing August 1, 1996 - 33.48%
(50,007/149,350); commencing April 1, 1997 - 33.88% (50,603/149,350);
*D. Minimum Annual Rent:
Year 1 $708,991.63
Year 2 $779,286.24
Year 3 $779,286.24
Year 4 $779,286.24
Year 5 $779,286.24
Year 6 $779,286.24
*E. Monthly Rental Installments:
Month 1 $ 0.00
Months 2-8 $ 64,175.65
Months 9-72 $ 64,940.52
F. Term: Six (6) years and zero (0) months;
*G. Target Commencement Date: July 15, 1996 for the Original Premises;
April 1, 1997 for the Additional Space;
H. Security Deposit: N/A;
I. Brokers: Duke Realty Services Limited Partnership representing
Landlord and Bremner & Wiley, Inc. and Grubb & Ellis representing
Tenant;
J. Permitted Use: General office purposes;
K. Space Plan Approval Date: March 15, 1996 (See Exhibit B);
L. Options: One option to extend for 5 years (See Section 18.24);
*M. Target Expiration Date: July 31, 2002;
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* Commencement and expiration dates and rental amounts shall be adjusted, if
necessary, to reflect date of substantial completion of the Original Premises
and Additional Space in accordance with Article 2.
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N. Address for payments and notices:
Landlord: WRC Properties, Inc.
c/o Teachers Insurance & Annuity
Association of America
Attn: Real Estate Department
730 Third Avenue
New York, New York 10017
With Rental
Payments to: Duke Realty Services Limited
Partnership
Teachers Realty Corp. - WRC 1400
P.O. Box 66122
Indianapolis, Indiana 46266
Tenant: NHP Incorporated
9200 Keystone Crossing, Suite 500
Indianapolis, IN 46240
With a Copy to:
Before 5/20/96: NHP Incorporated
Attn: Arthur R. Dochterman
12355 Sunrise Valley Drive
Suite 300
Reston, VA 22091
After 5/20/96: NHP Incorporated
Attn: Arthur R. Dochterman
8065 Leesburg Pike
Vienna, VA 22182
SECTION 1.03. STATUS OF LANDLORD. Landlord has good and marketable fee simple
title to the Building. As of the date of execution of this Lease, the Building
is unencumbered by a mortgage or ground lease. Landlord is a corporation duly
organized and in good standing in the state of Delaware, has full right, power,
and authority to execute, deliver, and perform this Lease, and the person
signing on behalf of Landlord is authorized to do so by any and all necessary
corporate actions.
No litigation has been initiated or, to the knowledge of Landlord, threatened
against Landlord or against the Building which, if adversely determined, would
impair Landlord's ability to execute, deliver, and perform this Lease. Neither
Landlord, any affiliate of Landlord, nor the Building is subject to or
otherwise bound by any legal requirements or agreement (written or oral) which
would be breached, or which would result in the creation or imposition of any
title exception applicable to the Building, by Landlord's execution, delivery,
or performance of this Lease.
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* Commencement and expiration dates and rental amounts shall be adjusted, if
necessary, to reflect date of substantial completion of the Original Premises
and Additional Space in accordance with Article 2.
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ARTICLE 2 - TERM AND POSSESSION
SECTION 2.01. TERM. The term of this Lease shall be the period of time
specified in Item F of the Basic Lease Provisions and shall commence on: (i)
the Target Commencement Date as provided in Item G of the Basic Lease
Provisions; or (ii) such earlier date as Tenant takes possession of the Leased
Premises for the normal conduct of its business; or (iii) such later date which
is fifteen (15) days after substantial completion of any work to be performed
by Landlord in the Leased Premises in accordance with Section 2.02, provided,
however, that the commencement date shall not be extended as a result of any
Tenant Caused Delay. "Tenant Caused Delay" shall mean any delay caused by or
resulting from: (1) failure of Tenant to deliver the space plan to Landlord
and Landlord's architect by March 15, 1996; (2) any change orders requested by
Tenant, provided that Landlord shall promptly notify Tenant if Landlord
anticipates that any such requested change order will cause a delay; (3)
failure of Tenant to timely or properly arrange its furnishings or be present
for any scheduled walk-through of the Original Premises or Additional Space, as
applicable, in order to obtain the architect's certificate of substantial
completion once the Original Premises or Additional Space, as applicable, are
otherwise substantially complete (as defined in Section 2.02); or (4) failure
of Tenant to cooperate with Landlord and respond promptly to any reasonably
request of Landlord.
The date of commencement as defined above, hereinafter called the "Commencement
Date," and the "Expiration Date" shall be confirmed by Tenant as provided in
Section 2.03.
SECTION 2.02. CONSTRUCTION OF TENANT FINISH IMPROVEMENTS AND POSSESSION.
Landlord agrees to perform and complete the work on the tenant finish
improvements in the Leased Premises in a good and workmanlike manner using new
materials, in accordance with Tenant's construction drawings which shall be
mutually agreed upon by both Landlord and Tenant (the "Tenant
Finish Improvements"), in an amount not to exceed Five Hundred Eighteen Thousand
Six Hundred Eighty Dollars and Seventy-five Cents ($518,680.75) (the
"Allowance"), subject to events and delays due to causes beyond its reasonable
control. A copy of Tenant's space plan for the Leased Premises is attached
hereto as Exhibit B. Upon completion and approval of the construction
drawings, on or before April 12, 1996, the construction drawings shall be
attached hereto as Exhibit B in lieu of the space plan. Landlord shall give
Tenant thirty (30) days prior written notice of the anticipated day on which
its work shall be substantially completed. "Substantial completion" and
"substantially complete" mean that date on which (i) all Tenant Finish
Improvements to the Original Premises or Additional Space, as applicable, have
been completed in accordance with Exhibit B, subject only to minor punchlist
items of work which do not substantially interfere with Tenant and Tenant's use
of the Original Premises or Additional Space, as applicable, (ii) all
governmental or quasi-governmental requirements applicable to the construction
and occupancy of the Original Premises or Additional Space, as applicable, are
satisfied (it being understood that the obligation to obtain the architect's
certificate of substantial completion shall be borne by Landlord, provided that
Tenant shall timely and properly arrange its furnishings and be available for
walk-throughs of the Original Premises or Additional Space, as applicable, and
shall otherwise cooperate with Landlord in obtaining such
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certificate), (iii) all major equipment and mechanical systems in the Original
Premises or Additional Space, as applicable, are in good working order, and
(iv) the Original Premises or Additional Space, as applicable, are broom clean.
Landlord shall use commercially reasonable efforts to substantially complete
the Tenant Finish Improvements in the Original Premises on or before July 15,
1996, and to substantially complete the Tenant Finish Improvements in the
Additional Space on or before April 1, 1997. Attached hereto as Exhibit E is
the proposed schedule for occupancy. Tenant shall have the right to terminate
this Lease if the Tenant Finish Improvements in the Original Premises are not
substantially completed by October 31, 1996.
Prior to the Commencement Date, Tenant, Landlord, and Tenant's architect shall
inspect the Original Premises and the Common Areas and Landlord, Tenant and
Tenant's architect shall prepare and execute a punch-list. Landlord shall
complete all punch-list items as soon as conditions practically permit, and
within sixty (60) days of substantial completion, provided, however, that in
the event one or more punch-list items cannot reasonably be completed within
such sixty-day period, and Landlord has diligently commenced completion thereof
within such period, the time for completion of such items shall be extended
until such items can reasonably be completed. Tenant shall reasonably
cooperate with Landlord in connection with the completion of any punch-list
items.
The Allowance shall be available for the cost of construction of Tenant Finish
Improvements, Tenant signage costs, voice and data cabling, telephone and
computer equipment relocation and the possible acquisition of a Liebert unit,
raised computer floor and security system from Roadway Global Air, Inc.
("Roadway"). Landlord shall use commercially reasonable efforts to make said
acquisition on behalf of Tenant. Tenant shall have the right and privilege of
going onto the Leased Premises from and after the date of substantial
completion of the Tenant Finish Improvements to complete interior decoration
work and to prepare the Leased Premises for its occupancy, provided, however,
that its schedule in so doing shall be communicated to Landlord and the
approval of Landlord secured, which approval shall not be unreasonably
withheld, delayed or conditioned, so as not to interfere with other work of
Landlord being carried on at the time; and provided further that Landlord shall
have no responsibility or liability whatsoever for any loss or damage to any of
Tenant's leasehold improvements, fixtures, equipment or any other materials
installed or left in the Leased Premises prior to the Commencement Date, except
for Landlord's gross negligence or willful misconduct. Landlord has no
construction or improvement obligations in connection with the Leased Premises
except as expressly set forth herein and in Exhibit B.
Notwithstanding anything contained herein to the contrary, Tenant shall be
required to allocate a minimum of Four Hundred Thirty Thousand One Hundred
Twenty-five Dollars and Fifty Cents ($430,125.50) of the Allowance for the cost
of construction of the Tenant Finish Improvements in the Leased Premises and,
to the extent Tenant purchases Roadway's Liebert unit, raised computer floor
and security system, to the acquisition thereof. The Allowance shall be
applied first to the cost of all Tenant Finish Improvements in the Leased
Premises and the aforementioned acquisition, and any remaining balance of the
Allowance, in excess of Four Hundred Thirty Thousand One Hundred Twenty-five
Dollars and Fifty Cents ($430,125.50), shall be
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available for other costs in accordance with the preceding paragraph. The
Minimum Annual Rent will be reduced by any unused balance of the Allowance
based on a straight-line amortization over the Lease Term.
Landlord shall provide Tenant with an additional tenant finish improvement
allowance to be used for tenant finish improvements in the Leased Premises, not
to exceed Eighty-eight Thousand Five Hundred Fifty-five Dollars and Twenty-five
Cents ($88,555.25), to be amortized over the term of the Lease at twelve
percent (12%) interest per annum and payable in equal monthly installments of
principal and interest (the "Additional Allowance"). Any costs in excess of
the Allowance and the Additional Allowance shall be Tenant's sole
responsibility and shall be paid by Tenant within thirty (30) days following
receipt of an invoice therefor.
Duke Construction Management, Inc. ("DCM") shall act as the Landlord's general
contractor. DCM will competitively bid all Tenant Finish Improvements and
manage the entire construction process. DCM will provide Tenant with a cost
summary breakdown for the scope of the project which will include a minimum of
two (2) estimates for each trade. Landlord agrees to review such estimates
with Tenant and to work with Tenant to mutually agree upon the selection of
subcontractors. Landlord reserves the right to select subcontractors based on
price, quality and delivery. As the general contractor, DCM will receive a
seven percent (7%) construction fee based on the total project cost.
Landlord shall contribute an amount not to exceed Twelve Thousand One Hundred
Dollars ($12,100.00) for costs incurred by Tenant for space plan/design,
selection of finishes, and review of final construction documents. Landlord
shall also pay for an architect to finalize and convert the space plan into
construction documents. Tenant shall have the right to review and approve the
construction documents prior to substituting them in place of the floor plan as
Exhibit B.
Landlord also agrees to upgrade and repair the seventh (7th) floor elevator
lobby and common area hallways prior to August 1, 1996. Such lobby and
hallways shall contain finishes which are comparable to those in other recently
upgraded elevator lobbies and common area hallways in other buildings owned by
Landlord in the area. Landlord shall also investigate and, if necessary,
repair the window seals in the Leased Premises.
SECTION 2.03. TENANT'S ACCEPTANCE OF THE LEASED PREMISES. Upon delivery of
possession of the Leased Premises to Tenant with the Tenant Finish Improvements
substantially completed as hereinbefore provided, Tenant shall execute a letter
of understanding acknowledging (i) the Commencement Date and Expiration Date of
this Lease, and (ii) that Tenant has accepted the Leased Premises for occupancy
and that the condition of the Leased Premises, including the Tenant Finish
Improvements constructed thereon, and the Building was at the time satisfactory
and in conformity with the provisions of this Lease in all respects, except for
any defects as to which Tenant shall give written notice to Landlord within one
(1) year after such delivery (the "Warranty Period"). Landlord shall promptly
thereafter, at its cost and expense, repair or replace all materials,
workmanship, fixtures or equipment incorporated by Landlord in the Leased
Premises which shall prove to be defective during the Warranty Period.
Landlord shall assign to Tenant all warranties (if assignable) from
subcontractors and
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material suppliers for such materials, workmanship, fixtures, or equipment in
effect after the expiration of the Warranty Period; provided, however, that if
any such warranties are not assignable, Landlord shall, at Tenant's request,
use commercially reasonable efforts to enforce for the benefit of Tenant, at
Tenant's expense, such non-assignable warranties. In performing any warranty
work pursuant to this Section, Landlord shall use commercially reasonable
efforts to minimize any interference with Tenant's business operations. Such
letter of understanding shall become a part of this Lease. If Tenant takes
possession of and occupies the Leased Premises for the normal conduct of its
business, Tenant shall be deemed to have accepted the Leased Premises in the
manner described in this Section 2.03, even though the letter of understanding
provided for herein may not have been executed by Tenant.
SECTION 2.04. SURRENDER OF THE PREMISES. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to
re-enter the Leased Premises without terminating this Lease following an event
of default under Section 15.01, Tenant shall immediately surrender the Leased
Premises to Landlord, together with all alterations, improvements and other
property (except as otherwise provided in Section 7.03), in broom-clean
condition and in good order, condition and repair, failing which Landlord may
restore the Leased Premises to such condition at Tenant's expense. Upon such
expiration or termination, Tenant shall have the right to remove its personal
property (as described in Article 7), and shall, upon Landlord's request,
remove all wiring and cabling in the Leased Premises, at its sole cost and
expense. Tenant shall promptly repair any damage caused by any such removal,
and shall restore the Leased Premises to the condition existing prior to the
installation of the items so removed. This provision shall survive the
expiration or earlier termination of this Lease.
SECTION 2.05. HOLDING OVER. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant
shall become a tenant from month to month at One Hundred Fifty Percent (150%)
of the then prevailing market rate (as determined by Landlord in its sole and
absolute discretion) for the Leased Premises in effect upon the date of such
expiration or earlier termination, provided, however, that such rental rate
shall not be less than the rent then payable under the terms of the Lease
(subject to adjustment as provided in Article 3 hereof and prorated on a daily
basis), and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease.
Notwithstanding the foregoing provision, no holding over by Tenant shall
operate to extend this Lease, and Tenant shall vacate and surrender the Leased
Premises to Landlord upon Tenant being given thirty (30) days prior written
notice from Landlord to vacate. The foregoing provisions of this Section 2.05
are in addition to and do not affect Landlord's right of re-entry or any other
rights of Landlord hereunder or as otherwise provided by law.
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ARTICLE 3 - RENT
SECTION 3.01. BASE RENT. Tenant shall pay to Landlord as Minimum Annual Rent
for the Leased Premises the sum specified in Item D of the Basic Lease
Provisions, payable in equal consecutive Monthly Rental Installments as
specified in Item E of the Basic Lease Provisions, in advance, without
deduction or offset except as provided under the terms of this Lease, on or
before the first day of each and every calendar month during the term of this
Lease; provided, however, that if the Commencement Date shall be a day other
than the first day of a calendar month or the Expiration Date shall be a day
other than the last day of a calendar month, the Monthly Rental Installment for
such first or last fractional month shall be prorated. Any portion of the
Monthly Rental Installments or any other sums or charges required to be paid by
Tenant to Landlord under this Lease that are not paid within ten (10) days of
their due date shall be assessed a delinquency service charge equal to one and
one-half percent (1 1/2%) of the rental or other sums or charges due and unpaid
multiplied by the number of months, or fraction thereof, during which such
amounts remain overdue.
SECTION 3.02. ANNUAL RENTAL ADJUSTMENT.
A. DEFINITIONS. For purposes of this Section 3.02, the following
definitions shall apply:
1. "ANNUAL RENTAL ADJUSTMENT" - shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular
calendar year.
2. "OPERATING EXPENSES" - shall mean the total of all of
Landlord's costs and expenses paid or incurred in operating
and maintaining the Building and improvements (including the
Common Areas as defined in Section 18.03 and the land
described in Exhibit A-1) for a particular calendar year
(including calendar year 1996) as determined by Landlord in
accordance with generally accepted accounting principles,
consistently applied, including by way of illustration and
not limitation: all general real estate taxes and all special
assessments levied against the land, Building and improvements
(hereinafter called "real estate taxes"), excluding penalties
for late payment; costs and expenses of contesting the
validity or amount of real estate taxes; all Keystone Crossing
Owners' Association charges, expenses and assessments
including all general real estate taxes and all special
assessments levied against the Association; insurance
premiums, water, sewer, electrical and other utility charges
other than the separately billed electrical and other charges
paid by Tenant as provided in this Lease or paid by other
tenants; service and other charges incurred in the operation
and maintenance of the elevators and the heating, ventilation
and air-conditioning system; cleaning and other janitorial
services; rubbish removal; snow removal; tools and supplies;
repair costs; landscape maintenance costs; security services;
license, permit and inspection fees; reasonable management
fees (comparable to those charged in other first class office
buildings); wages and related employee benefits payable for
the maintenance and operation of the Building; amortization of
capital
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improvements that produce a net reduction in operating costs
together with interest at the rate of twelve percent (12%) per
annum on the unamortized balance thereof; and in general all
other costs and expenses which would, under generally accepted
accounting principles, be regarded as operating and
maintenance costs and expenses, including those which would
normally be amortized over a period not to exceed five (5)
years. There shall also be included in Operating Expenses the
cost, or portion thereof reasonably allocable to the Building,
amortized in accordance with generally accepted accounting
principles, together with interest at the rate of twelve
percent (12%) per annum on the unamortized balance, of any
capital improvements made to the Building by Landlord after
the date of this Lease which are required under any
governmental law or regulation that was not applicable to the
Building at the time of lease execution. Notwithstanding the
foregoing, Landlord hereby agrees that any and all costs of
compliance of the Building common areas with the Americans
with Disabilities Act ("ADA"), as it exists at the time of
execution of this Lease, shall be Landlord's responsibility
and that such costs shall not be passed through to Tenant as
an Operating Expense.
If at any time during the Lease Term, including calendar year
1996, less than 95% of the total Rentable Area of the Building
is occupied by tenants, or the Landlord is not supplying
services to 95% of the total Rentable Area of the Building at
any time during the calendar year, the Operating Expenses for
such calendar year shall be an amount equal to the expenses
that would normally be expected to be incurred had such
occupancy been 95% of the total Rentable Area of the Building
and had Landlord been supplying services to 95% of the total
Rentable Area of the Building throughout the calendar year.
The only costs which shall be adjusted in this manner shall be
variable expenses where the amount is directly related to the
level of occupancy or square foot area receiving a particular
service. Landlord will indicate which expenses were adjusted
in this manner in the statement showing Tenant's actual Annual
Rental Adjustment.
Taxes shall not include, nor shall Tenant be obligated to pay
pursuant to this Section, such taxes as capital gains,
corporation, unincorporated business, income, profit, excess
profit, inheritance, transfer, recordation, estate, gift or
franchise taxes, or license fees, or any taxes, fees or
charges imposed, assessed, levied or charged which are
directly associated with construction of improvements on the
Building or any vault rental or other vault charges, or any
fines, penalties and interest on late payments of any taxes,
or any personal property taxes of Landlord for equipment or
items not used directly in the operation or maintenance of the
Building or any withholding tax in the event the Building is
sold to a non-United States entity.
Notwithstanding anything to the contrary herein, if any taxes
paid by Landlord and previously included in payments made by
Tenant pursuant to this Section are refunded, Landlord shall
promptly pay to Tenant
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Tenant's proportionate share of such refund (less the
reasonable expenses incurred by Landlord in obtaining such
refund to the extent not otherwise included in taxes) based
upon the proportion that the taxes paid by Tenant as part of
Tenant's share of taxes for the period to which such refund
relates bears to the total amount of taxes paid by Tenant
during the calendar year to which such refund relates.
Notwithstanding anything contained herein to the contrary,
Operating Expenses shall not include any expenses or costs
incurred or paid by Landlord for the following items:
(a) Capital expenditures, including any capital replacement,
capital repair or capital improvement made to the Building,
the Common Areas, the land or the Project and any other
expense which would be deemed to be a capital expenditure
under generally accepted accounting principles, consistently
applied, unless such capital expenditures are required by laws
which are not in effect as of the Commencement Date of this
Lease or result in a reduction in Operating Expenses.
Notwithstanding the foregoing sentence, capital expenditures
of $1,000 or less may be included in Operating Expenses. For
purposes of the foregoing sentence, a group of expenditures
related to the same capital project shall be considered a
single expenditure;
(b) Depreciation or amortization of the Building or its
contents or components;
(c) Expenses for the preparation of space or other work
which Landlord performs for any tenant or prospective tenant
of the Building;
(d) Expenses incurred in leasing or obtaining new tenants
or retaining existing tenants, including leasing commissions,
legal expenses, advertising or promotion;
(e) Interest, amortization or other costs, including
legal fees, associated with any mortgage, loan or refinancing
of the land, the Building or the Common Areas;
(f) The cost of any item or service which Tenant
separately reimburses Landlord, or that Landlord provides
selectively to one or more tenants of the Building, other
than Tenant, whether or not Landlord is reimbursed by such
other tenant(s);
(g) Any amount paid to an entity or individual related to
Landlord which exceeds the amount which would be paid for
similar quality goods or services on an arms-length basis
between unrelated parties or for which Landlord is reimbursed
by other tenants or third parties, including insurance
proceeds;
(h) The cost of any penalty or fine incurred for non-
compliance with any applicable building or fire code
violation(s) or violations of any other applicable law
relating to the Building, the Common Areas or the land;
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(i) Any personal property taxes of Landlord for equipment
or items not used directly in the operation or maintenance of
the Building;
(j) All bad debt loss, rent loss, or reserve for bad debt or
rent loss;
(k) Costs incurred in connection with the sale, financing,
refinancing, mortgaging, selling, or change of ownership of
the Building;
(l) Rentals and other related expenses incurred in
leasing air conditioning systems, elevators, or other
equipment ordinarily considered to be of a capital nature,
except equipment not affixed to the Building which is used
in providing janitorial or similar services;
(m) Costs, other than those incurred in ordinary
maintenance (for such objects as may be located within the
Common Areas), for sculptures, paintings or other objects of
art;
(n) Costs incurred in connection with disputes with
tenants, other occupants or prospective tenants, or costs and
expenses incurred in connection with negotiations or disputes
with employees, consultants, management agents, purchasers or
mortgagees of the Building;
(o) Costs incurred by Landlord which are associated with
the operation of the business of the legal entity which
constitutes Landlord as the same is separate and apart from
the cost of the operation of the Building, including legal
entity formation and legal entity accounting (including the
incremental accounting fees relating to the operation of the
Building to the extent incurred separately in reporting
operating results to the Building's owners or lenders);
(p) Any compensation paid to clerks, attendants or other
persons in commercial concessions operated for profit by
Landlord;
(q) Costs incurred for any items to the extent covered by
a manufacturer's, materialman's, vendor's or contractor's
warranty;
(r) Any costs associated with retail space, unless such
space is not separately metered, including without limitation,
electricity, HVAC and other utilities;
(s) Any costs incurred to test, survey, cleanup, contain,
abate, remove or otherwise remedy Hazardous Materials,
as defined herein, or asbestos containing materials, from the
Building, the Common Areas, or the land (provided, that this
exclusion from Operating Expenses shall not affect the
provisions of this Lease or any other lease for space in the
Building with respect to Tenant's or any other tenant's
possible liability for all or a portion of such costs); and
(t) Any other cost or expense which, under generally
accepted accounting principles consistently applied,
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would not be considered to be an Operating Expense of the
Building.
3. "BUILDING EXPENSE PERCENTAGE" - shall mean the percentage
specified in Item C of the Basic Lease Provisions. This
percentage was determined by dividing the rentable area in
the Leased Premises as specified in Item B of the Basic Lease
Provisions by the total rentable area in the Building of
149,350 square feet.
4. "LANDLORD'S SHARE OF OPERATING EXPENSES" - shall be an amount
equal to the product of Tenant's Building Expense Percentage
as provided in Item C of the Basic Lease Provisions times the
Building Operating Expenses for calendar year 1996.
5. "TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES" - shall
be an amount equal to the remainder of (i) the product of
Tenant's Building Expense Percentage as provided in Item C of
the Basic Lease Provisions times the Building Operating
Expenses for calendar year 1996.
B. PAYMENT OBLIGATION. In addition to the Minimum Annual Rent specified
in this Lease, Tenant shall pay to Landlord as additional rent for the
Leased Premises, in each calendar year or partial calendar year during
the term of this Lease, commencing January 1, 1997, an amount equal to
Tenant's Proportionate Share of Operating Expenses for each such
calendar year.
1. TENANT'S ANNUAL PROPORTIONATE SHARE OF BUILDING OPERATING
EXPENSES - The amount of Tenant's Proportionate Share of
Operating Expenses for each calendar year (herein referred to
as the "Annual Rental Adjustment") shall be reasonably
estimated annually by Landlord. Tenant shall pay to Landlord
each month, at the same time the Monthly Rental Installment is
due, an amount equal to one-twelfth (1/12) of the estimated
Annual Rental Adjustment.
2. INCREASES IN ESTIMATED ANNUAL RENTAL ADJUSTMENT - If real
estate taxes, the cost of utility or janitorial services or
any other Operating Expenses increase during a calendar year,
Landlord may increase the estimated Annual Rental Adjustment
during such year by giving Tenant written notice to that
effect, and thereafter Tenant shall pay to Landlord, in each
of the remaining months of such year, an amount equal to the
amount of such increase in the estimated Annual Rental
Adjustment divided by the number of months remaining in such
year.
3. ADJUSTMENT TO ACTUAL ANNUAL RENTAL ADJUSTMENT - Within one
hundred twenty (120) days (or such additional time as is
reasonable under the circumstances) after the end of each
calendar year, Landlord shall prepare and deliver to Tenant a
statement showing Tenant's actual Annual Rental Adjustment.
Within thirty (30) days after receipt of the aforementioned
statement, Tenant shall pay to Landlord, or Landlord shall
credit against the next rent payment or payments due from
Tenant, as the case may be, the difference between the actual
amount of Tenant's Annual Rental Adjustment for the preceding
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calendar year and the estimated amount paid by Tenant during
such year. If this Lease shall commence, expire or be
terminated on any date other than the last day of a calendar
year, then the actual amount of Tenant's Proportionate Share
of Operating Expenses for such partial calendar year shall be
prorated on the basis of the number of days during the year
this Lease was in effect in relation to the total number of
days in such year. Notwithstanding anything to the contrary
herein, Landlord's statement of Tenant's actual Annual Rental
Adjustment shall be delivered to Tenant within two (2) years
of the date Landlord incurs such Operating Expenses. In the
event Landlord fails to deliver such statement to Tenant
within said two (2) year period, Tenant shall not be obligated
to pay any Annual Rental Adjustment with respect thereto.
Notwithstanding the foregoing, if a prior year's taxes have
been appealed or are under appeal, Tenant shall remain
responsible for any tax increase once the appeal is resolved.
4. TENANT VERIFICATION - If Tenant does not agree with Landlord's
determination of the Operating Expenses, then Tenant shall
have the right to inspect such of Landlord's books and records
which contain the Operating Expense information, if written
notice of the nature of such disagreement is given to Landlord
not later than one (1) year following receipt of such
statement by Tenant. Upon receipt by Landlord of such notice
from Tenant, Landlord shall make such books and records
available for Tenant's inspection. If the parties are unable
to resolve such disagreement by negotiation within thirty (30)
days after Landlord makes such books and records available to
Tenant, Tenant may, at Tenant's sole cost and expense, cause a
qualified independent certified public accountant selected by
Tenant from a Big Six accounting firm and reasonably
acceptable to Landlord (to be paid on an hourly and not a
contingency fee basis) to audit Landlord's records with
respect to the Operating Expenses. Such audit shall include
but not be limited to costs and expenses relating to real
estate taxes, insurance premiums and Building expenses. In
the event the first audit within each five (5) year period of
the Lease Term discloses (i) errors made during the prior
calendar year which, when totaled, clearly indicate that the
sum overcharged to and paid by Tenant, exceeds three percent
(3%) of the Annual Rental Adjustment amount plus Landlord's
Share of Operating Expenses (the "Total Fees"), the audit
shall be at the expense of Landlord, not to exceed Two
Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors
or an error which equals or is less than three percent (3%) of
the Total Fees, the audit shall be at the expense of Tenant.
For each subsequent audit during each five (5) year period,
where the audit discloses errors exceeding three percent (3%)
of the Total Fees, Landlord shall pay for such audit and, if
the audit discloses errors equal to or less than three percent
(3%) of the Total Fees, Tenant shall pay the costs of the
audit. If Landlord spends more than twelve (12) hours to
accommodate Tenant's right to audit hereunder, Tenant shall
also pay to Landlord as additional rent One
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Hundred Dollars ($100.00) per hour for each hour that Tenant's
audit takes of Landlord's property manager's or asset
manager's time in excess of twelve (12) hours, provided such
audit discloses no error or an error which equals or is less
than three percent (3%) of the Total Fees. The results of the
audit (regardless of the degree of the error, if any) shall be
binding upon Landlord and Tenant and Landlord shall
thereafter, if appropriate, change its method of calculating
the Operating Expenses consistent with the results of the
audit. In the event Tenant conducts an audit pursuant to this
Section, Tenant agrees to keep all of Landlord's books and
records with respect to the Operating Expense information
confidential.
If no such notice of disagreement is received by Landlord
within one (1) year following receipt by Tenant of Landlord's
statement of the actual amount of Tenant's Annual Rental
Adjustment, or if Tenant shall not elect to cause an audit by
written notice to Landlord within thirty (30) days after
Landlord makes the books and records available to Tenant, then
Landlord's statement shall be conclusively deemed to have been
approved and accepted by Tenant and Landlord. Pending
resolution of any dispute with respect to statements of
Tenant's Annual Rental Adjustment, Tenant shall pay its Annual
Rental Adjustment as shown on such statement, and upon final
determination of the amount of Tenant's Annual Rental
Adjustment, Landlord shall promptly refund any overpayment to
Tenant or Tenant shall promptly pay any amount due to
Landlord, as applicable.
5. LIMIT ON INCREASE IN ANNUAL RENTAL ADJUSTMENT - For purposes
of this subpart, "Capped Operating Expenses" shall mean all
Operating Expenses except real estate taxes and assessments
(including all reasonable costs and expenses of contesting the
validity or amount thereof), fees and charges imposed by any
governmental entity, insurance premiums, utility charges, snow
removal charges, janitorial expenses, and costs imposed by
covenants or easements. The portion of the Annual Rental
Adjustment relating to the Capped Operating Expenses shall be
called the "Capped Portion." Notwithstanding the provisions
of this Section, Tenant shall not be obligated to pay that
portion of the Capped Portion which exceeds 107% of the
greater of (i) the amount of the Capped Portion for the
immediately preceding calendar year, or (ii) the amount the
Capped Portion for the immediately preceding calendar year
would have been had the Capped Portion increased at the rate
of 107% per annum in all previous years.
SECTION 3.03. CONTRIBUTION FOR CERTAIN TENANT FINISH IMPROVEMENTS. Tenant
shall pay to Landlord the cost of Tenant's Tenant Finish Improvements as
provided in Exhibit B in excess of Six Hundred Seven Thousand Two Hundred
Thirty-six Dollars ($607,236.00).
SECTION 3.04. INDEPENDENT COVENANTS. The covenants to pay rent and other
charges and payments under the terms of this Lease, including Minimum Annual
Rent, Annual Rental Adjustment, and other charges, are independent covenants.
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ARTICLE 4 - SECURITY DEPOSIT - Intentionally Omitted
ARTICLE 5 - OCCUPANCY AND USE
SECTION 5.01. OCCUPANCY. Tenant shall use and occupy the Leased Premises for
the purposes set forth in Item J of the Basic Lease Provisions and shall not
use the Leased Premises for any other purpose except with the prior written
consent of Landlord.
SECTION 5.02. COVENANTS OF TENANT REGARDING USE. In connection with its use
of the Leased Premises, Tenant agrees to do the following:
A. Tenant shall use the Leased Premises and conduct its business thereon
in a safe, careful, reputable and lawful manner.
B. Tenant shall not use the Leased Premises for any unlawful purpose or
act; shall not commit or permit any waste or damage to the Leased
Premises or do or permit any act or thing to be done in or to the
Leased Premises which is contrary to any law, regulation or order of
any governmental authority, agency, department, or commission; shall
at its cost and expense comply with and obey all present and future
laws, regulations and orders of any governmental authority, agency,
department or commission, all reasonable directions of the Landlord,
including the Building Rules and Regulations, attached hereto as
Exhibit C, as may be reasonably modified from time to time by
Landlord, which Building Rules and Regulations shall be applied
uniformly to all tenants; shall not do or permit anything to be done
in or about the Leased Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the
Building or injure or annoy them. Landlord shall not be responsible
to Tenant for the nonperformance by any other tenant or occupant of
the Building of any of the Building Rules and Regulations. In the
event another tenant or occupant of the Building fails to comply with
the Building Rules and Regulations and such non-compliance is
adversely affecting Tenant's occupancy in the Building, Landlord
agrees to use commercially reasonable efforts to ensure such
compliance.
C. Tenant shall not overload the floors of the Leased Premises beyond
their designed weight-bearing capacity, which Landlord has determined
to be eighty (80) pounds per square foot live load, including an
allowance for partition load. Landlord reserves the right to
reasonably direct the positioning of all heavy equipment, furniture
and fixtures which Tenant desires to place in the Leased Premises so
as to distribute properly the weight thereof, and to require the
removal of any equipment or furniture which exceeds the weight limit
specified herein.
D. Tenant shall not use the Leased Premises, or allow the Leased Premises
to be used, for any purpose or in any manner which would, in
Landlord's reasonable opinion, invalidate any commercially reasonable
policy of insurance now or hereafter carried on the Building or
increase the rate of premiums payable on any such insurance policy.
Should Tenant fail to comply with this covenant, Landlord may, at its
option, require Tenant to stop engaging in such activity or to
reimburse Landlord as additional rent for any increase in premiums
charged during the term of this Lease on the
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insurance carried by Landlord on the Leased Premises and attributable
to the use being made of the Leased Premises by Tenant.
E. Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on the Building, except for such tenant
identification information as Landlord permits to be included or shown
on the directory board in the main lobby and on or adjacent to the
access door or doors to the Leased Premises, and except as provided in
Section 18.24 of this Lease.
F. Tenant shall promptly notify Landlord of any notice it receives of the
violation of any law or requirement of any public authority.
G. If permitted by applicable local and state laws and regulations,
Tenant shall have the right, at Tenant's sole cost, to install
security key locks and readers on the inside of both stairwells on the
fifth (5th) and sixth (6th) floors so that Tenant's employees will be
able to use the stairs for internal access. If permitted, all such
systems shall be installed and maintained in compliance with
applicable Marion County and/or Indiana law; provided, however, that
Tenant shall furnish Landlord with all keys or cards necessary to
provide Landlord with access to the Leased Premises.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the Common Areas by Tenant, its
employees, agents, customers and invitees, each of which may be exercised
without notice or liability to Tenant:
A. Landlord may install such signs, advertisements or notices or tenant
identification information on the directory board or tenant access
doors as it shall deem necessary or proper. Landlord agrees that
Tenant shall be entitled to five directory strips in the lobby
directory for the Building.
B. Landlord shall approve or disapprove, prior to installation, all types
of drapes, shades and other window coverings used in the Leased
Premises, and may control all internal lighting that may be visible
from outside the Leased Premises.
C. Landlord shall reasonably approve or disapprove all sign painting and
lettering used on the Leased Premises and the Building, including the
suppliers thereof. Landlord agrees that Tenant shall be allowed to
install a sign on the Building in accordance with the provisions of
Section 18.24.
Tenant shall also be entitled to install, at its cost, signage
identifying its business, including its corporate logo and colors, on
the fifth (5th) and sixth (6th) floors of the Building, the size,
style and location of which shall be subject to Landlord's prior
written approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
D. Landlord may grant to any person the exclusive right to conduct any
business or render any service in the Building in a manner consistent
with first class office buildings in the vicinity, provided that such
exclusive right shall not
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operate to limit Tenant from using the Leased Premises for the use
permitted in Item J of the Basic Lease Provisions.
E. Landlord may control the Common Areas in such manner as it reasonably
deems necessary or proper, including by way of illustration and not
limitation: requiring all persons entering or leaving the Building to
identify themselves and their business in the Building; excluding or
expelling any peddler, solicitor or loud or unruly person from the
Building; and closing or limiting access to the Building or any part
thereof, including entrances, corridors, doors, and elevators, during
times of emergency repairs or after regular business hours.
SECTION 5.04. ACCESS TO AND INSPECTION OF THE LEASED PREMISES.
Landlord, its employees and agents and any mortgagee of the Building shall have
the right to enter any part of the Leased Premises at reasonable times and upon
reasonable advance notice, except in the event of an emergency, in which case
no notice shall be required, for the purposes of examining or inspecting the
same, showing the same to prospective purchasers or mortgagees, and, during the
last twelve (12) months of the Lease Term, showing the same to prospective
tenants, and making such repairs, alterations or improvements to the Leased
Premises or the Building as Landlord may deem necessary or desirable. If
representatives of Tenant shall not be present to open and permit such entry
into the Leased Premises at any time when such entry is necessary or permitted
hereunder, Landlord and its employees and agents may enter the Leased Premises
by means of a master or pass key or otherwise. Landlord shall incur no
liability to Tenant for such entry, nor shall such entry constitute an eviction
of Tenant or a termination of this Lease, or entitle Tenant to any abatement of
rent therefor. Landlord shall use commercially reasonable efforts to minimize
any interference with Tenant's business resulting from Landlord's exercise of
its rights hereunder.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
SECTION 6.01. SERVICES TO BE PROVIDED. Landlord hereby agrees to operate and
maintain the Building in a manner consistent with other first class office
buildings located in the Indianapolis area. Provided Tenant is not in default,
Landlord shall furnish to Tenant, except as noted below, the following
utilities and other building services to the extent reasonably necessary for
Tenant's comfortable use and occupancy of the Leased Premises for general
office use or as may be required by law or directed by governmental authority:
A. Heating, ventilation and air-conditioning (at temperatures not above
approximately 72 degrees based on an outside air temperature of
94 degrees or less, and not below approximately 72 degrees based on an
outside air temperature of 0 degrees or higher) between the hours of
7:00 a.m. and 6:00 p.m. on Monday through Friday and 8:00 a.m. to
12:00 p.m. on Saturday of each week except on legal holidays.
Landlord agrees that Tenant shall not be separately billed for
occasional after-hours HVAC operation, provided, however, that in the
event Tenant's after-hours usage becomes excessive or disproportionate
to other tenants in the Building, Landlord reserves the right to
separately bill Tenant, as additional rent hereunder, for the normal
and reasonable costs of such after-hours HVAC operation, which cost is
currently Thirty Dollars ($30.00)
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per hour per floor and which is subject to change from time to time.
B. Subject to interruptions beyond Landlord's control, electrical current
not to exceed six (6) watts per square foot (connected load). At all
times Tenant's use of electric current shall never exceed the capacity
of the feeders to the Building or the risers or wiring installation;
Tenant shall not install or use or permit the installation or use of
any computer or electronic data processing equipment in the Leased
Premises requiring greater electrical current than set forth above
without the prior written consent of Landlord.
C. Water in the Common Areas for lavatory and drinking purposes;
D. Automatic elevator service consisting of three (3) elevators available
twenty-four (24) hours a day, seven (7) days a week, three hundred
sixty-five (365) days a year;
E. Cleaning and janitorial service, including the supplying and
installing of paper towels, toilet tissue and soap in the Common Areas
on Monday through Friday of each week except legal holidays; provided,
however, Tenant shall be responsible for carpet cleaning other than
routine vacuuming;
F. Washing of windows at intervals reasonably established by Landlord;
G. Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting as required from time to time as a result of normal
usage;
H. Cleaning and maintenance of the Common Areas, including the removal of
rubbish and snow; and
I. Repair and maintenance to the extent specified elsewhere in this
Lease.
SECTION 6.02. ADDITIONAL SERVICES. If Tenant requests any other utilities or
building services in addition to those identified above or any of the above
utilities or building services in frequency, scope, quality or quantity
substantially greater than those which Landlord reasonably determines are
normally required by other tenants in the Building for general office use, then
Landlord shall use reasonable efforts to attempt to furnish Tenant with such
additional utilities or building services. In the event Landlord is able to
and does furnish such additional utilities or building services, the costs
thereof shall be determined solely by Landlord, exercising its reasonable
business judgment, and shall be borne by Tenant, who shall reimburse Landlord
monthly for the same as additional rent at the same time Monthly Rental
Installments and other additional rent is due.
If any lights, machines or equipment (including but not limited to computers)
used by Tenant in the Leased Premises materially affect the temperature
otherwise maintained by the Building's air-conditioning system or generate
substantially more heat in the Leased Premises than that which would normally
be generated by the lights and business machines typically used by other
tenants in the Building or by tenants in comparable office
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buildings, then Landlord shall have the right to install any machinery or
equipment which Landlord considers reasonably necessary in order to restore the
temperature balance between the Leased Premises and the rest of the Building,
including equipment which modifies the Building's air-conditioning system. All
costs expended by Landlord to install any such machinery and equipment and any
additional costs of operation and maintenance occasioned thereby shall be borne
by Tenant, who shall reimburse Landlord for the same as provided in this
Section 6.02.
Tenant shall not install or connect any electrical equipment which requires or
uses electrical current in excess of 6 watts per square foot (connected load)
without Landlord's prior written consent. If Landlord determines that the
electricity used by the equipment to be so installed or connected exceeds the
designed load capacity of the Building's electrical system or is in any way
incompatible therewith, then Landlord shall have the right, as a condition to
granting its consent, to make such modifications to the electrical system or
other parts of the Building or Leased Premises, or to require Tenant to make
such modifications to the equipment to be installed or connected, as Landlord
considers to be reasonably necessary before such equipment may be so installed
or connected. The cost of any such modifications shall be borne by Tenant, who
shall reimburse Landlord for the same (or any portion thereof paid by Landlord)
as provided in this Section 6.02.
SECTION 6.03. INTERRUPTION OF SERVICES. Tenant understands, acknowledges and
agrees that any one or more of the utilities or other building services
identified in Section 6.01 may be interrupted by reason of accident, emergency
or other causes beyond Landlord's control, or may be discontinued or diminished
temporarily by Landlord or other persons until certain repairs, alterations or
improvements can be made; that Landlord does not represent or warrant the
uninterrupted availability of such utilities or building services, and that any
such interruption shall not be deemed an eviction or disturbance of Tenant's
right to possession, occupancy and use of the Leased Premises or any part
thereof, or render Landlord liable to Tenant for damages by abatement of rent
or otherwise, or relieve Tenant from the obligation to perform its covenants
under this Lease.
Landlord shall have no liability to Tenant, including, without limitation,
liability for consequential damages arising out of, resulting from, or related
to any such interruption of utility service or building services.
Notwithstanding anything in this Lease to the contrary, Landlord shall use
commercially reasonable efforts to promptly restore utility service. If the
Leased Premises are rendered untenantable (meaning that Tenant is unable to use
such space in the normal course of its business) for more than five (5)
consecutive business days after notice from Tenant to Landlord that such
service has been interrupted, and provided that such restoration of service is
within Landlord's reasonable control, Minimum Annual Rent and Annual Rental
Adjustment shall abate on a per diem basis for each day after such five (5) day
period during which the Leased Premises remain untenantable. In the event the
Leased Premises are rendered untenantable for more than thirty (30) consecutive
days after notice from Tenant to Landlord, and provided that such restoration
of service is within Landlord's reasonable control, Tenant shall have the right
to terminate this Lease. Upon such termination, Tenant shall surrender the
Leased Premises to Landlord in accordance with the terms of this Lease
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and each party shall be released from further liability hereunder; provided,
however, that such termination shall not affect any right or obligation arising
prior to termination or which survives termination of the Lease.
ARTICLE 7 - REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES
SECTION 7.01. REPAIR AND MAINTENANCE OF BUILDING. Subject to Section 7.02,
Landlord shall maintain or cause to be maintained the structure of the Building
and shall be responsible for: (a) repairs to any mechanical, electrical,
plumbing, sprinkler system or other life saving systems or HVAC system
installed by or on behalf of Landlord and serving the Leased Premises and
Common Areas, and (b) structural repairs to the exterior walls, structural
columns and structural floors which collectively enclose the Leased Premises
(excluding, however, all doors, door frames, sliding doors, windows and any
glass therein); provided Tenant shall give Landlord notice of, or Landlord has
actual knowledge of, the necessity for such repairs (which notice may be given
telephonically to Landlord's on-site management agent). If the necessity for
such repairs shall have arisen, in whole or in part, from the negligent or
willful acts or omissions of Tenant or entities for which Tenant is responsible
and the insurance that Landlord is required to carry excludes from coverage any
casualty negligently or willfully caused by Tenant or entities for which Tenant
is responsible, then Tenant shall pay any amount not covered by Landlord's
insurance. Except as provided in Article 8 and Article 10 hereof, there shall
be no abatement of rent and no liability of Landlord by reason of any injury to
or interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Leased
Premises or in or to any fixtures, appurtenances and equipment therein or
thereon.
SECTION 7.02. REPAIR AND MAINTENANCE OF LEASED PREMISES. Landlord shall keep
and maintain the Leased Premises in good order, condition and repair. Except
for ordinary wear and tear and damage which Tenant is not obligated to repair
as provided elsewhere in this Lease, the cost of all repairs and maintenance to
the Leased Premises shall be borne by Tenant, who shall be separately billed
and shall reimburse Landlord for the same as additional rent, or as a part of
Operating Expenses.
SECTION 7.03. ALTERATIONS OR IMPROVEMENTS. Tenant may not make, or permit to
be made, alterations to the Leased Premises without the prior written consent
of Landlord in each instance, which consent shall not be unreasonably withheld,
conditioned or delayed. If Landlord allows Tenant to make any such
alterations, Tenant shall make the same in accordance with all applicable laws
and building codes, in a good and workmanlike manner and in quality equal to or
better than the original construction of the Building and shall comply with
such requirements as Landlord reasonably considers necessary or desirable,
including without limitation, requirements as to the manner in which and the
times at which such work shall be done and the contractor or subcontractors to
be selected to perform such work. Tenant's alterations shall be non-structural
and shall be made only to the interior of the Leased Premises, and said
alterations shall not affect utility services or plumbing or electrical lines
in or to the Leased Premises. Before making any alterations, Tenant shall, at
its expense (a) provide Landlord with lien waivers from each contractor,
subcontractor,
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materialman and laborer for all work, labor and services to be performed and
materials to be furnished in connection with such work, and (b) obtain all
permits, approvals and certificates required by any governmental or
quasi-governmental bodies and promptly deliver duplicates of all such permits,
approvals and certificates to Landlord. Upon completion of such construction,
Tenant shall obtain certificates of final approvals and shall promptly deliver
duplicates of the same to Landlord. In addition, Tenant shall provide Landlord
with evidence of insurance coverage for such alterations and detailed plans,
reasonably satisfactory to Landlord, prior to construction of such
improvements. Tenant shall promptly pay all costs attributable to such
alterations. Tenant shall promptly repair any damage to the Leased Premises or
the Building caused by any such alterations. Any such alterations and
additions shall remain for the benefit of Landlord, provided, however, that
Landlord may elect upon fifteen (15) days prior written notice to Tenant to
require that Tenant, at its expense, remove at the expiration or earlier
termination of this Lease all or a portion of the alterations or additions made
by Tenant and repair any damage caused by such removal. Tenant's obligations
under this Section shall survive the expiration or earlier termination of this
Lease. Notwithstanding the foregoing, Tenant shall have the right, without
Landlord's consent, and in compliance with all other provisions of this
Section, to (i) recarpet, (ii) paint or (iii) make any non-structural
alteration to the Leased Premises, the aggregate cost of which does not exceed
Ten Thousand Dollars ($10,000.00) for any such alteration project, provided,
however, that Tenant may not exercise this right more than four (4) times
during any Lease year and further provided that Tenant shall give Landlord
prior written notice of any such alteration, along with copies of all plans and
specifications relating thereto.
SECTION 7.04. TRADE FIXTURES. Any trade fixtures installed on the Leased
Premises by Tenant at its own expense, such as movable partitions, counters,
shelving, showcases, mirrors and the like, may, and, at the request of
Landlord, shall be removed on the expiration or earlier termination of this
Lease, provided that Tenant is not then in default, that Tenant bears the cost
of such removal, and further that Tenant repairs at its own expense any and all
damage to the Leased Premises resulting from such removal. Any trade fixtures
or other items of Tenant's property that remain in the Leased Premises on the
expiration or earlier termination of this Lease shall be deemed abandoned by
Tenant and such items may be retained by Landlord, without accountability, in
such manner as Landlord shall determine at Tenant's expense. This provision
shall survive the expiration or earlier termination of this Lease.
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ARTICLE 8 - FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
SECTION 8.01. SUBSTANTIAL DESTRUCTION OF THE BUILDING OR THE LEASED PREMISES.
If either the Building or the Leased Premises should be substantially destroyed
or damaged (which as used herein, means destruction or material damage to at
least one-third (1/3) of the Building or the Leased Premises) by fire or other
casualty, then Landlord may, at its option, terminate this Lease by giving
written notice of such termination to Tenant within thirty (30) days after the
date of such casualty. In such event, rent shall be apportioned to and shall
cease as of the date of such casualty. If Landlord does not exercise this
option, then the Leased Premises shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as prior to the
casualty subject to the availability of insurance proceeds; provided however,
that Landlord's obligation hereunder shall be limited to the reconstruction of
such of the Tenant Finish Improvements as were originally required to be made
by Landlord in accordance with Exhibit B, and any additional improvements
pursuant to Section 7.03. In the event of such reconstruction, rent shall be
abated in accordance with Section 8.03 below; and this Lease shall continue in
full force and effect for the balance of the term. Notwithstanding the
foregoing, in the event Landlord shall fail to substantially complete such
reconstruction within six (6) months from the date of the casualty, Tenant
shall be entitled to terminate this Lease upon ten (10) days prior written
notice to Landlord. Upon such termination, both parties shall be released from
all liability hereunder, except for any liability arising prior to the date of
termination or which survives termination hereof.
SECTION 8.02. PARTIAL DESTRUCTION OF THE LEASED PREMISES. If the Leased
Premises should be damaged by fire or other casualty, but not substantially
destroyed or damaged to the extent provided in Section 8.01, then so long as
insurance proceeds are available for Landlord's use in reconstruction and
restoration such damaged part of the Leased Premises shall be reconstructed and
restored, at Landlord's expense, to substantially the same condition as it was
prior to the casualty; provided however, that Landlord's obligation hereunder
shall be limited to the reconstruction of such of the Tenant Finish
Improvements as were originally required to be made by Landlord in accordance
with Exhibit B, and any additional improvements pursuant to Section 7.03. In
such event, if the damage is expected to prevent Tenant from carrying on its
business in the Leased Premises to a material extent, rent shall be abated in
the proportion which the approximate area of the damaged part and any part
rendered uninhabitable or inaccessible thereby bears to the total area in the
Leased Premises in accordance with Section 8.03 below; and this Lease shall
continue in full force and effect for the balance of the term.
SECTION 8.03. ABATEMENT OF RENT. Any abatement of rent under this Article 8
shall be for the period from the date of the casualty to the date of
substantial completion of the reconstruction repairs; provided, however, that
should Tenant reoccupy a portion of the Leased Premises during the period the
repair work is taking place and prior to the date of substantial completion of
said repair work, the rent allocable to such reoccupied portion, based upon the
proportion which the reoccupied area bears to the total area of the Leased
Premises, shall be payable by Tenant from the date of such occupancy.
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SECTION 8.04. CASUALTY INSURANCE. Landlord shall at all times during the term
of this Lease carry, at its own expense, a policy of insurance which insures
the Building, including without limitation the Leased Premises and improvements
therein, against loss or damage by all risks or special form perils for full
replacement cost; provided, however, that Landlord shall not be responsible
for, and shall not be obligated to insure against, any loss of or damage to any
personal property of Tenant or which Tenant may have in the Building or the
Leased Premises or any trade fixtures installed by or paid for by Tenant on the
Leased Premises, and Landlord shall not be liable for any loss or damage to
such property, regardless of cause, including the negligence of Landlord and
its employees, agents, customers and invitees. If any alterations or
improvements made by Tenant pursuant to Section 7.03, or any act or omission of
Tenant which is not in the ordinary course of Tenant's business, result in an
increase in the premiums charged during the term of this Lease on the casualty
insurance carried by Landlord on the Building, then the cost of such increase
in insurance premiums shall be borne by Tenant, who shall reimburse Landlord
for the same as additional rent after being separately billed therefor. In
addition, Tenant shall reimburse Landlord as additional rent, after being
separately billed, for any cost or expense incurred by Landlord and not
reimbursed by the proceeds of said policy of insurance in connection with any
loss or damage by fire or other casualty arising from any willful misconduct or
negligence of Tenant or any of its subtenants or licensees or its or their
partners, directors, officers, agents, employees or contractors.
ARTICLE 9 - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
SECTION 9.01. TENANT'S RESPONSIBILITY. Tenant shall assume the risk of, be
responsible for, have the obligation to insure against, and indemnify Landlord
and hold it harmless from any and all liability for any loss of or damage or
injury to any person (including death resulting therefrom) or property
occurring in, on or about the Leased Premises, regardless of cause, except for
any loss or damage from fire or casualty as provided in Section 8.04 and except
for that caused by the sole negligence of Landlord and its employees and
agents; and Tenant hereby releases Landlord from any and all liability for the
same. Tenant's obligation to indemnify Landlord hereunder shall include the
duty to defend against any claims asserted by reason of such loss, damage or
injury and to pay any judgments, settlements, costs, fees and expenses,
including reasonable attorneys' fees, incurred in connection therewith.
Notwithstanding anything herein to the contrary, Tenant shall bear the risk of
any loss or damage to its property as provided in Section 8.04. This provision
shall survive the expiration or earlier termination of this Lease.
SECTION 9.02. TENANT'S INSURANCE. Tenant, in order to enable it to meet its
obligation to insure against the liabilities specified in this Lease, shall at
all times during the term of this Lease carry, at its own expense, for the
protection of Tenant and Landlord, as their interests may appear, one or more
policies of general public liability and property damage insurance, issued by
one or more insurance companies licensed to do business in the state of
operations having an AM Best Rating of A- X1 or better, with the following
minimum coverages:
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A. Worker's Compensation -- minimum statutory amount.
B. Commercial General - Not less than $1,000,000
Liability Insurance, including Combined Single Limit for
Blanket, Contractual Liability, both bodily injury and
Broad Form Property Damage, property damage, with
Personal Injury, Completed excess Liability umbrella
Operations, Products Liability, coverage of not less than
Fire Damage $5,000,000.
C. All risks or special form for the full cost of replacement of Tenant's
property.
The insurance policy or policies for the insurance required in B and C above
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 all required coverage. Should Tenant fail to carry such insurance
and furnish Landlord with such Certificates of Insurance within twenty (20)
days after a request to do so, Landlord shall have the right to obtain such
insurance and collect the cost thereof from Tenant as additional rent.
SECTION 9.03. LANDLORD'S RESPONSIBILITY. Landlord shall assume the risk of,
be responsible for, have the obligation to insure against, and indemnify Tenant
and hold it harmless from any and all liability for any loss of or damage or
injury to any person (including death resulting therefrom) or property (other
than Tenant's property as provided in Section 8.04) occurring in, on or about
the Common Areas, regardless of cause, except for that caused by the sole
negligence of Tenant and its employees, agents, representatives, customers and
invitees; and Landlord hereby releases Tenant from any and all liability for
the same. Landlord's obligation to indemnify Tenant hereunder shall include
the duty to defend against any claims asserted by reason of such loss, damage
or injury and to pay any judgments, settlements, costs, fees and expenses,
including reasonable attorneys' fees, incurred in connection therewith. This
provision shall survive the expiration or early termination of this Lease.
SECTION 9.04. MUTUAL WAIVER. All policies covering real or personal property
which either party obtains affecting the Leased Premises or the Building shall
include a clause or endorsement denying the insurer any rights of subrogation
against the other party to the extent rights have been waived by the insured
before the occurrence of injury or loss. Notwithstanding anything herein
contained to the contrary, Landlord and Tenant waive any rights of subrogation
or recovery against the other for damage or loss to their respective property
due to hazards covered or which should be covered by policies of insurance
obtained or which should be or have been obtained pursuant to this Lease, to
the extent of the injury or loss covered or which should have been covered
thereby, assuming that any deductible shall be deemed to be insurance coverage.
ARTICLE 10 - EMINENT DOMAIN
If the whole or any part of the Leased Premises shall be taken for public or
quasi-public use by a governmental or other authority having the power of
eminent domain or shall be conveyed to such authority in lieu of such taking,
and if such
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taking or conveyance shall cause the remaining part of the Leased Premises to
be untenantable and inadequate for use by Tenant for the purpose for which they
were leased, then Tenant may, at its option, terminate this Lease. If a part
of the Leased Premises shall be taken or conveyed but the remaining part is
tenantable and adequate (conforms to other leased space in the Building) for
Tenant's use, then this Lease shall be terminated as to the part taken or
conveyed as of the date Tenant surrenders possession; Landlord shall make such
repairs, alterations and improvements as may be necessary to render the part
not taken or conveyed tenantable, the cost of which will not exceed what is
customary for tenant finish costs in other space in the Building. The rent
shall be reduced in proportion to the part of the Leased Premises so taken or
conveyed. All compensation awarded for such taking or conveyance shall be the
property of Landlord without any deduction therefrom for any present or future
estate of Tenant, and Tenant hereby assigns to Landlord all its right, title
and interest in and to any such award. Notwithstanding the foregoing, nothing
contained herein shall prevent Tenant from seeking in a separate action
reimbursement from the condemning authority (if permitted by law) for moving
expenses, expenses for removal of Tenant's personal property, or loss of
Tenant's business good will, but if and only if such action shall not reduce
the amount of the award or other compensation otherwise recoverable from the
condemning authority by Landlord or any mortgagee.
ARTICLE 11 - LIENS
If any mechanic's lien or other lien is filed because of any act or omission of
Tenant, or any person claiming by, through, or under Tenant, against the Leased
Premises or the Building or against other property of Landlord (whether or not
such lien is valid or enforceable as such), Tenant shall, at its own expense,
cause the same to be discharged of record or bonded or insured over within
thirty-five (35) days after the date of filing thereof, and shall also
indemnify Landlord and hold it harmless from any and all claims, losses,
damages, judgments, settlements, costs and expenses, including attorneys' fees,
resulting therefrom or by reason thereof. If Tenant fails to do so, Landlord
may, but shall not be obligated to, pay the claim upon which such lien is based
so as to have such lien released of record; and, if Landlord does so, then
Tenant shall pay to Landlord, as additional rent, upon demand, the amount of
such claim, plus all other costs and expenses incurred in connection therewith.
This section shall survive the expiration or earlier termination of this Lease.
ARTICLE 12 - RENTAL, PERSONAL PROPERTY AND OTHER TAXES
Tenant shall pay before delinquency any and all taxes, assessments, fees or
charges, including any sales, gross income, rental, business occupation or
other taxes, levied or imposed upon Tenant's business operations in the Leased
Premises and any personal property or similar taxes levied or imposed upon
Tenant's trade fixtures, leasehold improvements or personal property located
within the Leased Premises. In the event any such taxes, assessments, fees or
charges are charged to the account of, or are levied or imposed upon the
property of Landlord, Tenant shall reimburse Landlord for the same as
additional rent.
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If any tenant finish improvements, trade fixtures, alterations or improvements
or business machines and equipment located in, on or about the Leased Premises,
regardless of whether they are installed or paid for by Landlord or Tenant and
whether or not they are affixed to and become a part of the realty and the
property of Landlord, are assessed for real property tax purposes at a
valuation higher than that at which other such property in other leased space
in the Building is assessed, then Tenant shall reimburse Landlord as additional
rent for the amount of real property taxes shown on the appropriate county
official's records as having been levied upon the Building or other property of
Landlord by reason of such excess assessed valuation.
ARTICLE 13 - ASSIGNMENT AND SUBLETTING
Tenant shall not, whether voluntarily, involuntarily or by operation of law or
otherwise (a) assign or otherwise transfer this Lease or the term and estate
hereby granted, (b) sublet the Leased Premises or any part thereof or allow the
same to be used, occupied or utilized by anyone other than the Tenant, or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the Leased
Premises or any part thereof in any manner whatsoever, without Landlord's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Any attempted assignment, subletting or mortgage without such
consent shall be invalid. Tenant shall also provide, at Landlord's request
any information on the proposed assignee or subtenant that Landlord may
reasonably require to make a determination of the quality of such proposed
assignee or subtenant. In the event of a permitted assignment or subletting,
Tenant shall nevertheless at all times remain fully responsible and liable for
the payment of rent and the performance and observance of all of Tenant's other
obligations under the terms, conditions and covenants of this Lease. No
assignment or subletting of the Leased Premises or any part thereof shall be
binding upon Landlord unless such assignee or subtenant shall deliver to
Landlord an instrument (in recordable form, if requested) containing an
agreement of assumption of all of Tenant's obligations under this Lease. Upon
the occurrence of an event of default, if all or any part of the Leased
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or by law, may, at its option, collect directly
from the assignee or subtenant all rent becoming due to Landlord by reason of
the assignment or subletting. Any collection by Landlord from the assignee or
subtenant shall not be construed to constitute a waiver or release of Tenant
from the further performance of its obligations under this Lease or the making
of a new lease with such assignee or subtenant. If Tenant shall make any
assignment or sublease of the original Leased Premises, with Landlord's
consent, for a rental in excess of the rent payable under this Lease (including
any applicable escalations), Tenant shall pay to Landlord fifty percent (50%)
of any such excess rental upon receipt. If Tenant shall make any assignment or
sublease of any expansion space, with Landlord's consent, for a rental in
excess of the rent payable under this Lease (including any applicable
escalations), Tenant shall not be entitled to keep such excess and Tenant shall
pay to Landlord one hundred percent (100%) of any such excess rental upon
receipt.
Landlord may, in its reasonable discretion, refuse to give its consent to any
proposed assignment or subletting for, among other reasons,Landlord's
reasonable determination that its
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interest in the Lease or the Leased Premises would be adversely affected by (i)
the financial condition, creditworthiness or business reputation of the
proposed assignee or subtenant, (ii) the proposed use of the Leased Premises
by, or business of, the proposed assignee or subtenant. If Landlord reasonably
refuses to give its consent to any proposed assignment or subletting of fifty
percent (50%) or more of the Leased Premises and Tenant is insolvent, Landlord
may, at its option, within thirty (30) days after receiving notice of the
proposal, terminate this Lease by giving Tenant thirty (30) days prior written
notice of such termination, whereupon this Lease shall terminate.
All reasonable costs incurred by Landlord in connection with any request for
consent to a proposed assignment or sublease, including costs of investigation
and attorneys' fees, shall be paid by Tenant upon demand as a further condition
of any consent which may be given.
Notwithstanding the foregoing, Tenant may assign this Lease or sublease all or
part of the Leased Premises, without Landlord's consent, to any entity which
acquires all or part of Tenant, or which is acquired in whole or in part by
Tenant, or is an affiliate, subsidiary or parent of Tenant, provided that the
financial condition, creditworthiness and business reputation of the proposed
assignee or subtenant are equal to or exceed those of Tenant (except with
respect to an affiliate or subsidiary) and further provided that Tenant gives
Landlord thirty (30) days prior written notice of such assignment or sublease.
Tenant shall nevertheless at all times remain fully responsible and liable for
the payment of rent and the performance and observance of all of Tenant's other
obligations under the terms, conditions and covenants of this Lease.
ARTICLE 14 - SUBORDINATION: NOTICE TO SUPERIOR LESSORS AND MORTGAGEES
SECTION 14.01. SUBORDINATION. This Lease, and all rights of Tenant hereunder,
are and shall be subject and subordinate to all ground leases, overriding
leases and underlying leases of the tract of land described in Exhibit A-1
hereto (the "Land") and/or the Building now or hereafter existing and to all
mortgages which may now or hereafter affect the Land and/or the Building and/or
any of such leases, whether or not such mortgages shall also cover other lands
and/or buildings and/or leases, to each and every advance made or hereafter to
be made under such mortgages, and to all renewals, modifications, replacements
and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the holder of any
such mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination. No default by Landlord under any such
mortgage or ground lease shall affect Tenant's rights hereunder as long as
Tenant is not in default under the Lease. Any lease to which this lease is, at
the time referred to, subject and subordinate is herein called a "Superior
Lease" and the lessor of a Superior Lease or its successor in interest, at the
time referred to, is herein called a "Superior Lessor"; and any mortgage to
which this lease is, at the time referred to, subject and subordinate is herein
called "Superior Mortgage" and
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the holder of a Superior Mortgage is herein called a "Superior Mortgagee." The
term "mortgage" and "mortgagee" shall refer to any mortgage affecting the Land
and/or the Building and any holder of said mortgage, whether or not said
mortgage is prior or subordinate to this Lease. Notwithstanding anything in
the foregoing to the contrary, any mortgagee may elect unilaterally to
subordinate its mortgage to this Lease and such subordination shall be binding
upon Tenant upon the recording of a mortgage containing a declaration of such
subordination. Tenant agrees to execute any documents deemed necessary or
desirable by said mortgagee to evidence said subordination of mortgage within
ten (10) days after written demand. Notwithstanding anything contained herein
to the contrary, as a condition to Tenant's obligation to subordinate this
Lease to any future mortgage, ground lease, overriding lease or underlying
lease, Landlord shall obtain from any such future mortgagee or lessor a
subordination, non-disturbance and attornment agreement in favor of Tenant, in
a form reasonably acceptable to the parties thereto.
SECTION 14.02. NOTICE. If any act or omission of Landlord would give Tenant
the right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (a) until it has given written notice of such act or
omission to each mortgagee and each Superior Lessor whose name and address
previously shall have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
receipt of such notice and following the time when such mortgagee or Superior
Lessor shall have become entitled under such mortgage or Superior Lease, as the
case may be, to remedy the same (which reasonable period shall in no event be
less than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice, to effect such remedy), provided such
mortgagee or Superior Lessor shall with due diligence give Tenant notice of its
intention to remedy such act or omission.
SECTION 14.03. ATTORNMENT AND NON-DISTURBANCE. If any Superior Lessor or
Superior Mortgagee shall succeed to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of a new lease or
deed, then at the request of such party so succeeding to Landlord's rights
(herein called "Successor Landlord") and upon such Successor Landlord's written
agreement to accept Tenant's attornment, Tenant shall attorn to and recognize
such Successor Landlord as Tenant's landlord under this Lease and shall
promptly execute and deliver any instrument that such Successor Landlord may
reasonably request to evidence such attornment. Upon such attornment this
Lease shall continue in full force and effect as a direct lease between the
Successor Landlord and Tenant upon all the terms, conditions and covenants of
this Lease except that the Successor Landlord, including, in the context of
clauses (a) through (c) below, any mortgagee succeeding to Landlord's rights,
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; or (c) be
bound by any previous modification of this Lease or by any previous prepayment
of more than one month's rent, unless such modification or prepayment shall
have been expressly approved in writing by the lessor of the Superior Lease or
the holder of the mortgage through or by reason of which the
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Successor Landlord shall have succeeded to the rights of Landlord under this
Lease. Tenant shall be provided written notice identifying any such mortgagee.
ARTICLE 15 - DEFAULTS AND REMEDIES
SECTION 15.01. DEFAULTS BY TENANT. The occurrence of any one or more of the
following events shall be a default under and breach of this Lease by Tenant:
A. Tenant shall fail to pay any Monthly Rental Installment of Minimum
Annual Rent or the Annual Rental Adjustment or any other amounts due
Landlord from Tenant as additional rent or otherwise within five (5)
days after such payment is due. In the event of a default under
subparagraph A. above, Landlord shall provide Tenant with written
notice of such default two (2) times during each successive twelve
(12) month period of the Lease Term and Tenant shall have an
additional five (5) days to cure such default before Landlord shall
declare a default or exercise its remedies herein.
B. Tenant shall fail to perform or observe any term, condition, covenant
or obligation required to be performed or observed by it under this
Lease for a period of thirty (30) days after notice thereof from
Landlord; provided, however, that if the term, condition, covenant or
obligation to be performed by Tenant is of such nature that the same
cannot reasonably be performed within such thirty-day period, such
default shall be deemed to have been cured if Tenant commences such
performance within said thirty-day period and thereafter diligently
undertakes to complete the same and does so complete the required
action within a reasonable time.
C. Tenant shall fail to provide written notice to Landlord of its intent
to vacate or abandon the Leased Premises or any substantial part
thereof at least thirty (30) days prior to such vacation or
abandonment for any period. Vacation or abandonment shall mean
Tenant's absence from and failure to occupy the Leased Premises or any
substantial portion thereof for a period of ten (10) days.
D. A trustee or receiver shall be appointed to take possession of
substantially all of Tenant's assets in, on or about the Leased
Premises or of Tenant's interest in this Lease (and Tenant does not
regain possession within sixty (60) days after such appointment);
Tenant makes an assignment for the benefit of creditors; or
substantially all of Tenant's assets in, on or about the Leased
Premises or Tenant's interest in this Lease are attached or levied
under execution (and Tenant does not discharge the same within sixty
(60) days thereafter.)
E. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant pursuant to any federal or
state statute (and, with respect to any such petition filed against
it, Tenant fails to secure a stay or discharge thereof within sixty
(60) days after the filing of the same.)
SECTION 15.02. REMEDIES OF LANDLORD. Upon the occurrence of any event of
default set forth in Section 15.01 beyond any
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applicable notice and cure period, Landlord shall have the following rights and
remedies, in addition to those allowed by law, any one or more of which may be
exercised without further notice to or demand upon Tenant:
A. Landlord may re-enter the Leased Premises and cure any default of
Tenant, in which event Tenant shall reimburse Landlord as additional
rent for any costs and expenses which Landlord may incur to cure such
default; and Landlord shall not be liable to Tenant for any loss or
damage which Tenant may sustain by reason of Landlord's action, unless
caused by Landlord's gross negligence or willful misconduct.
B. 1. Landlord may terminate this Lease as of the date of such
default, in which event: (i) neither Tenant nor any person
claiming under or through Tenant shall thereafter be entitled
to possession of the Leased Premises, and Tenant shall
immediately thereafter surrender the Leased Premises to
Landlord; (ii) Landlord may re-enter the Leased Premises and
dispossess Tenant or any other occupants of the Leased
Premises by force, summary proceedings, ejectment or
otherwise, and may remove their effects, without prejudice to
any other remedy which Landlord may have for possession or
arrearages in rent; and (iii) notwithstanding the termination
of this Lease, Landlord shall be entitled to recover from
Tenant the value at the time of such termination of the amount
of rent and other charges equivalent to rent reserved in this
Lease for the remainder of the Lease Term, less the net amount
of such rent and other charges for the remainder of the Lease
Term which Tenant proves could reasonably be recovered by
Landlord from reletting the Leased Premises under then-current
and reasonably anticipated market conditions,together with all
loss or damage which Landlord may sustain by reason of such
termination, it being expressly understood and agreed that the
liabilities and remedies specified in this Subsection (B)(1)
of Section 15.02 shall survive the termination of this Lease;
or
2. Landlord may, without terminating this Lease, re-enter the
Leased Premises and re-let all or any part of the Leased
Premises for a term different from that which would otherwise
have constituted the balance of the term of this Lease and for
rent and on terms and conditions different from those
contained herein (including, but not limited to, periods of
free or reduced rent, relocation allowances, and additional
tenant finish), whereupon Tenant shall be obligated to pay to
Landlord as liquidated damages the difference between the rent
provided for herein and that provided for in any lease
covering a subsequent re-letting of the Leased Premises, for
the period which would otherwise have constituted the balance
of the term of this Lease, together with all of Landlord's
reasonable costs and expenses for preparing the Leased
Premises for re-letting, including all repairs, tenant finish
improvements, advertising, brokers' and reasonable attorneys'
fees, and all loss or damage which Landlord may sustain by
reason of such re-entry and re-letting. The failure of
Landlord to relet the Leased Premises shall not affect
Tenant's liability for damages.
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C. Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the breach.
D. In the event Tenant fails to pay within thirty (30) days after the
same is due and payable any Monthly Rental Installment of Minimum
Annual Rent, any monthly installment of the Annual Rental Adjustment,
or any other sum or charge required to be paid by Tenant to Landlord,
such unpaid amount shall bear interest from the due date thereof to
the date of payment at the rate of eighteen percent (18%) per annum
until paid.
E. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy in law or in equity.
F. Landlord agrees to use commercially reasonable efforts to re-let the
Leased Premises.
SECTION 15.03. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall fail to
perform or observe any term, condition, covenant or obligation required to be
performed or observed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord, Tenant agrees
that it shall look solely to Landlord's right, title and interest in and to the
Building for the collection of such judgment, that being the sole asset to
which Tenant may look for payment of any such judgment; and Tenant further
agrees that no other assets of Landlord, wherever situate, shall be subject to
levy, execution or other process for the satisfaction of Tenant's judgment and
that Landlord shall not be liable for any deficiency.
The references to "Landlord" in this Lease shall be limited to mean and include
only the owner or owners, at the time, of the fee simple interest in the
Building. In the event of a sale or transfer of such interest (except a
mortgage or other transfer as security for a debt), the "Landlord" named
herein, or, in the case of a subsequent transfer, the transferor, shall, after
the date of such transfer, be automatically released from all liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Landlord hereunder arising after the
date of such transfer; and the transferee shall be deemed to have assumed all
of such terms, conditions, covenants and obligations.
SECTION 15.04. NON-WAIVER OF DEFAULTS. Landlord's or Tenant's failure or
delay to exercise or enforce at any time any of the rights or remedies or other
provisions of this Lease shall not be construed to be a waiver thereof, nor
affect the validity of any part of this Lease or Landlord's or Tenant's right
thereafter to exercise or enforce each and every such right or remedy or other
provision. No waiver of any default and breach of the Lease shall be deemed to
be a waiver of any other default and breach. The receipt by Landlord of less
than the full rent due shall not be construed to be other than a payment on
account of rent then due, nor shall any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to
recover the balance of the rent due or to pursue any other remedies provided in
this Lease. No act or omission by Landlord or its employees or agents during
the term of this Lease shall be deemed an acceptance of a surrender of the
Leased Premises, and no agreement to accept
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such a surrender shall be valid unless in writing and signed by Landlord.
SECTION 15.05. ATTORNEYS' FEES. In the event either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the other party employs attorneys to
enforce all or any part of this Lease, the defaulting party agrees to reimburse
the non-defaulting party for the reasonable attorneys' fees incurred thereby,
whether or not suit is filed.
ARTICLE 16 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right, at its option, upon at least one hundred twenty
(120) days' prior written notice to Tenant, to relocate any portion of the
Leased Premises located on the seventh (7th) and/or third (3rd) floors and
consisting of approximately 10,000 rentable square feet or less and to
substitute for such portion of the Leased Premises other space located on the
fourth (4th) floor of the Building or, after the third (3rd) year of the Lease
Term, located on the third (3rd) floor of the Building, containing at least as
much rentable area as such portion of the Leased Premises. The size and
configuration of the substituted space shall be reasonably acceptable to
Tenant. Such substituted space shall be improved by Landlord, at its expense,
with improvements at least equal in quantity and quality to those in such
portion of the Leased Premises. Landlord shall reimburse Tenant for any and
all reasonable expenses incurred with and caused by such relocation, including
telephone installation and moving of equipment and furniture. Such costs shall
be reimbursed by Landlord within sixty (60) days of receipt from Tenant of
original invoices or receipts marked "paid in full". In no event shall
Landlord be liable for any consequential damages to Tenant as a result of any
such relocation, including, but not limited to, loss of business income or
opportunity. Upon completion of the relocation, Landlord and Tenant shall
amend this Lease to change the description of the Leased Premises and any other
matters pertinent thereto.
ARTICLE 17 - NOTICE AND PLACE OF PAYMENT
SECTION 17.01. NOTICES. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or mailed by Registered or Certified mail, postage prepaid,
to the party who is to receive such notice at the address specified in Item N
of the Basic Lease Provisions. When so mailed, the notice shall be deemed to
have been given as of the date it was mailed. The address specified in Item N
of the Basic Lease Provisions may be changed by giving written notice thereof
to the other party.
SECTION 17.02. PLACE OF PAYMENT. All rent and other payments required to be
made by Tenant to Landlord shall be delivered or mailed to Landlord's
management agent, Duke Realty Services Limited Partnership, P.O. Box 66122,
Indianapolis, Indiana 46266 or any other address Landlord may specify from time
to time by written notice given to Tenant.
ARTICLE 18 - MISCELLANEOUS GENERAL PROVISIONS
SECTION 18.01. CONDITION OF PREMISES. Tenant acknowledges that, except as
provided in this Lease, neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Leased Premises or the Building
or with respect to the suitability or condition of any part of the Building for
the conduct of Tenant's business and Tenant is hiring the Leased Premises "as
is."
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SECTION 18.02. INSOLVENCY OR BANKRUPTCY. In no event shall this Lease be
assigned or assignable by operation of law, and in no event shall this Lease be
an asset of Tenant in any receivership, bankruptcy, insolvency, or
reorganization proceeding.
SECTION 18.03. COMMON AREAS. The term "Common Areas," as used in this Lease,
refers to the areas of the Building and the land described in Exhibit A-1 which
are designed for use in common by all tenants of the Building and their
respective employees, agents, customers, invitees and others, and includes, by
way of illustration and not limitation, entrances and exits, hallways and
stairwells, elevators, restrooms, sidewalks, driveways, parking areas,
landscaped areas and other areas as may be designated by Landlord as part of
the Common Areas of the Building. Tenant shall have the non-exclusive right,
in common with others, to the use of the Common Areas, subject to such
nondiscriminatory rules and regulations as may be adopted from time to time by
Landlord including those set forth in Section 5.02 and Exhibit C of this Lease.
Further, Landlord shall have the right to change the location and size of the
Common Areas from time to time as Landlord shall see fit in its reasonable
discretion, including, without limitation, the removal of property and
facilities from the Common Areas; provided, however, that no such alteration or
removal will materially impair Tenant's access to or use of the Leased
Premises.
SECTION 18.04. CHOICE OF LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of Indiana.
SECTION 18.05. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
SECTION 18.06. NAME. Tenant shall not, without the written consent of
Landlord, use the name of the Keystone Crossing Office Park for any purpose
other than as the address of the business to be conducted by Tenant in the
Leased Premises, and in no event shall Tenant acquire any rights in or to such
names. Landlord reserves the right to change the name and/or address of the
Building at any time.
SECTION 18.07. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
SECTION 18.08. TIME. Time is of the essence of this Lease and each and all of
its provisions.
SECTION 18.09. DEFINED TERMS AND MARGINAL HEADINGS. The words "Landlord" and
"Tenant" as used herein shall include the plural as well as the singular. If
more than one person is named as Tenant, the obligations of such persons are
joint and several. The marginal headings and titles to the articles of this
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
SECTION 18.10. PRIOR AGREEMENTS. This Lease and the letter of understanding
executed pursuant to Section 2.03 hereof contain
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all of the agreements of the parties hereto with respect to any matter covered
or mentioned in this Lease, and no prior agreement, understanding or
representation pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective
successors in interest.
SECTION 18.11. PAYMENT OF AND INDEMNIFICATION FOR LEASING COMMISSIONS. The
parties hereby acknowledge, represent and warrant that the only real estate
broker or brokers involved in the negotiation and execution of this Lease is
that, or are those, named in Item I of the Basic Lease Provisions and that no
other broker or person is entitled to any leasing commission or compensation as
a result of the negotiation or execution of this Lease. Tenant hereby
indemnifies and holds Landlord harmless from any and all liability for the
breach of any such representation and warranty on its part and shall pay any
compensation to any other broker or person who may be deemed or held to be
entitled thereto.
SECTION 18.12. SEVERABILITY OF INVALID PROVISIONS. If any provision of this
Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
SECTION 18.13. ESTOPPEL CERTIFICATE. Tenant shall, within fifteen (15) days
following receipt of a written request from Landlord, execute, acknowledge and
deliver to Landlord or to any lender, purchaser or prospective lender or
purchaser designated by Landlord a written statement, in the form attached
hereto as Exhibit D or in such other form as Landlord may, in the exercise of
its normal business judgment, request, certifying (i) that this Lease is in
full force and effect and unmodified (or, if modified, stating the nature of
such modification), (ii) the date to which rent has been paid, and (iii) that
there are not, to Tenant's knowledge, any uncured defaults (or specifying such
defaults if any are claimed). Any such statement may be relied upon by any
prospective purchaser or mortgagee of all or any part of the Building.
Tenant's failure to deliver such statement within such period shall be
conclusive upon Tenant that this Lease is in full force and effect and
unmodified, and that there are no uncured defaults in Landlord's performance
hereunder.
Landlord shall, within thirty (30) days following receipt of a written request
from Tenant, execute, acknowledge and deliver to Tenant or to any assignee,
lender, purchaser or prospective assignee, lender or purchaser designated by
Tenant a written statement, certifying (i) that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, and (iii) that there
are not, to Landlord's knowledge, any uncured defaults (or specifying such
defaults if any are claimed). Any such statement may be relied upon by any
prospective assignee, lender or purchaser of Tenant's assets or business.
SECTION 18.14. SERVICES PERFORMED BY LANDLORD. Any services which Landlord is
required to furnish pursuant to the provisions of this Lease may, at Landlord's
option, be furnished from time to time, in whole or in part, by employees of
Landlord, by the
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managing agent of the property, or by one or more third persons; and Landlord
further reserves the right to require Tenant to enter into reasonable
agreements with such third persons in form and content approved by Landlord for
the furnishing of such services.
SECTION 18.15. AMENDMENT FOR TAX PURPOSES. Landlord shall have the right at
any time and from time to time to unilaterally amend the provisions of this
Lease if Landlord is advised by its counsel that all or any portion of the
monies paid by Tenant to Landlord hereunder are, or may be deemed to be,
unrelated business income within the meaning of the United States Internal
Revenue Code or regulation issued thereunder; and Tenant agrees that it will
execute all documents or instruments necessary to effect such amendment or
amendments, provided that no such amendment shall result in Tenant's having to
pay in the aggregate more money on account of its occupancy of the Leased
Premises under the terms of this Lease as so amended; and provided further that
no such amendment or amendments shall result in Tenant's receiving under the
provisions of this Lease fewer services than it is entitled to receive nor
services of a lesser quality; provided, however, that Tenant shall suffer no
material adverse effect as a result of any such amendment.
SECTION 18.16. FORCE MAJEURE. Except as otherwise provided in this Lease,
this Lease and the obligation of Tenant to pay rent hereunder and perform all
of the other covenants and agreements hereunder on the part of Tenant to be
performed shall in no way be affected, impaired or excused because Landlord is
unable to fulfill or is delayed in fulfilling any of its obligations when such
inability or delay is occasioned by causes beyond its control, including, but
not limited to, war, invasion or hostility; work stoppages, boycotts, slowdowns
or strikes; shortages of materials, equipment, labor or energy; manmade or
natural casualties; unusual weather conditions or other acts of God; acts or
omissions of governmental or political bodies; or civil disturbances or riots.
SECTION 18.17. UNRELATED BUSINESS INCOME. Neither Tenant nor any other person
having an interest in the possession, use, occupancy or utilization of the
Leased Premises shall enter into any lease, sublease, license, concession or
other agreement for use, occupancy or utilization of space in the Leased
Premises which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession, assignment or
other agreement shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization of any part
of the Leased Premises (and that if a sublease is entered into, neither the
rental payable thereunder nor the amount thereof passed on to any person or
entity shall have deducted therefrom any expenses or costs related in any way
to the subleasing of such space).
SECTION 18.18. FINANCIAL STATEMENTS. In the event Tenant is not a publicly
held corporation, Tenant shall provide to Landlord, upon Landlord's written
request, a copy of Tenant's most recent certified and audited financial
statements prepared as of the end of Tenant's most recent fiscal year. Such
financial statements
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shall be prepared in conformity with generally accepted accounting principles,
consistently applied.
SECTION 18.19. REPRESENTATIONS AND INDEMNIFICATIONS. Any representations and
indemnifications of Landlord contained in the Lease shall not be binding upon
(i) any mortgagee having a mortgage presently existing or hereafter placed on
the Building, or (ii) a successor to Landlord which has obtained or is in the
process of obtaining fee title interest to the Building as a result of a
foreclosure of any mortgage or a deed in lieu thereof, unless such party
becomes the Landlord under this Lease.
SECTION 18.20. TENANT'S REPRESENTATIONS AND WARRANTIES. The undersigned
represents and warrants to Landlord that (i) Tenant is duly organized, validly
existing and in good standing in accordance with the laws of the state under
which it was organized; (ii) all action necessary to authorize the execution of
this Lease has been taken by Tenant; and (iii) the individual executing and
delivering this Lease on behalf of Tenant has been authorized to do so, and
such execution and delivery shall bind Tenant. Tenant, at Landlord's request,
shall provide Landlord with evidence of such authority.
SECTION 18.21. RIGHT OF FIRST OFFER. Provided that (i) Tenant is not in
default at the time of exercise or commencement of this option, (ii) the
creditworthiness of Tenant has not materially diminished, (iii) Tenant
originally named herein remains in possession of and has been continuously
operating in the entire Leased Premises throughout the Lease Term, and (iv) the
use of the Leased Premises has not changed, and subject to any existing rights
of other tenants to the Offer Space (as hereinafter defined) as of the date of
this Lease, Landlord shall, before entering into a lease with a third party for
all or any portion of the third (3rd) floor of the Building (the "Offer
Space"), notify Tenant in writing of the availability of such space for leasing
("Landlord's Notice"). Tenant shall have ten (10) business days from its
receipt of Landlord's Notice to deliver to Landlord a written notice agreeing
to lease, on the terms and conditions (except as set forth below, the same
terms and conditions as contained in this Lease) contained in Landlord's
Notice, either all of the Offer Space, ie., the entire third (3rd) floor, or,
at Tenant's option, a portion of the Offer Space containing approximately
10,000 contiguous rentable square feet, the exact location and configuration of
which shall be reasonably determined by Landlord and shall be commercially
leaseable. In the event Tenant fails to notify Landlord of its agreement
within said ten (10) day period, Landlord shall be free to lease the Offer
Space to a third party, provided, however, that at any time prior to Landlord
entering into a lease with a third party for the Offer Space, but in no event
after the third (3rd) year of the Lease Term, if Tenant desires to lease the
Offer Space, Tenant may so notify Landlord in writing, in which case the Offer
Space shall be leased to Tenant upon the terms and conditions contained herein.
The term for the Offer Space shall be coterminous with the term for the
original Leased Premises. The Minimum Annual Rent for the Offer Space shall be
equal to (i) Fifteen Dollars and Eighty-six Cents ($15.86) per rentable square
foot if leased during the first year of the Lease Term; (ii) Sixteen Dollars
and Thirty-six Cents ($16.36) per rentable square foot if leased during the
second year of the Lease Term; and (iii) Sixteen Dollars and Eighty-six Cents
($16.86) per rentable square foot if leased during the third year of the Lease
Term. Landlord
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agrees to provide Tenant with a tenant finish improvement allowance for the
Offer Space in an amount not to exceed Eight Dollars ($8.00) per rentable
square foot for the full six year Lease Term, which amount shall be reduced on
a pro-rata basis for any period less than the full six year Lease Term.
SECTION 18.22. RIGHT OF FIRST REFUSAL. Provided that (i) Tenant is not in
default at the time of exercise or commencement of this option, (ii) the
creditworthiness of Tenant has not materially diminished, (iii) Tenant
originally named herein remains in possession of and has been continuously
operating in the entire Leased Premises throughout the Lease Term, and (iv) the
use of the Leased Premises has not changed, and subject to any existing rights
of other tenants to the Refusal Space (as hereinafter defined) as of the date
of this Lease, Tenant shall have the right of first refusal ("Refusal Option")
to lease additional space in the Building located on the third (3rd) floor, the
fourth (4th) floor and the seventh (7th) floor ("Refusal Space") as such space
becomes available for leasing during the Lease Term. This Refusal Option with
respect to any space located on the third (3rd) floor of the Building shall be
at the rental rates and upon such other terms as set forth in Section 18.21
during the first three years of the Lease Term. The Refusal Space on the
fourth (4th) and seventh (7th) floors, and on the third (3rd) floor after the
third year of the Lease Term, shall be offered to Tenant at the rental rate
then being offered by Landlord to a specific third party prospective tenant for
such space, excluding free rent, but in no event less than the then current
rental rate under this Lease, and upon such other terms as determined by
Landlord, provided, however, that the tenant finish improvement allowance shall
be that which is being offered to the third party prospective tenant. Said
allowance shall be available only for tenant finish improvements in the Refusal
Space, which improvements shall be mutually agreed upon by Landlord and Tenant,
and shall not be available to reduce or abate rent in any manner or as any form
of cash allowance.
Upon notification in writing by Landlord that the Refusal Space or any portion
thereof is available, Tenant shall have ten (10) business days in which to
notify Landlord in writing of its election to lease such Refusal Space at such
rental rates and other terms described above, in which event this Lease shall
be amended to incorporate such Refusal Space. In the event Tenant declines or
fails to elect to lease such Refusal Space, then this Refusal Option shall
automatically terminate and shall thereafter be null and void as to such space.
It is understood and agreed that this Refusal Option shall not be construed to
prevent any tenant in the Building from extending or renewing its lease or
exercising any other options pursuant to its lease.
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In addition, during the Lease Term, Landlord hereby agrees to provide Tenant,
upon Tenant's written request, but not more than once a month, a report
indicating the availability of space in the Building.
SECTION 18.23. OPTION TO EXTEND.
A. Grant and Exercise of Option. Provided that (i) Tenant is not
in default at the time of exercise or commencement of this option, (ii) the
creditworthiness of Tenant has not materially diminished, and (iii) the use of
the Leased Premises has not changed, Tenant shall have one (1) option to extend
the term of this Lease (the "Original Term") for one (1) additional period of
five (5) years (the "Extension Term"). The Extension Term shall be upon the
same terms and conditions contained in the Lease for the Original Term except
(i) Tenant shall not have any further option to extend and (ii) the Minimum
Annual Rent shall be adjusted as set forth herein ("Rent Adjustment"). Tenant
shall exercise such option by delivering to Landlord, no later than twelve (12)
months prior to the expiration of the Original Term, written notice of Tenant's
desire to extend the Original Term. Tenant's failure to properly exercise
such option shall waive it. If Tenant properly exercises its option to extend,
Landlord shall notify Tenant of the Rent Adjustment no later than ninety (90)
days prior to the commencement of the Extension Term. Tenant shall be deemed
to have accepted the Rent Adjustment if it fails to deliver to Landlord a
written objection thereto within ten (10) business days after receipt thereof.
If Tenant properly exercises its option to extend, Landlord and Tenant shall
execute an amendment to the Lease (or, at Landlord's option, a new lease on the
form then in use for the Building) reflecting the terms and conditions of the
Extension Term.
B. Market Rent Adjustment. The Minimum Annual Rent for the Extension
Term shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective new tenants of the Building for space of comparable
size and quality and with similar or equivalent improvements as are found in
the Building, and if none, then in similar buildings in the_Park; provided,
however, that in no event shall the Minimum Annual Rent during the Extension
Term be less than the highest Minimum Annual Rent payable during the Original
Term. The Minimum Monthly Rent shall be an amount equal to one-twelfth (1/12)
of the Minimum Annual Rent for the Extension Term and shall be paid at the same
time and in the same manner as provided in the Lease.
SECTION 18.24. SIGNAGE. Notwithstanding anything contained herein to the
contrary, and provided that Tenant complies with all zoning and other municipal
and county regulations, Tenant may, at its own cost and expense (except that
Tenant may use a portion of the Allowance, if available, in accordance with the
provisions of Section 2.02), erect a non-exclusive sign on the Building
("Sign") identifying its business, which Sign (i) shall be located on the
precast surface above the seventh (7th) floor windows of Tenant's offices; (ii)
shall not exceed two (2) feet in height; and (iii) shall have interstate
exposure. The Sign shall consist of the letters "NHP" and the corporate logo
of Tenant. The exact location, style and size of the Sign shall be subject to
Landlord's prior written approval which shall not be unreasonably withheld,
conditioned or delayed. Tenant agrees to maintain such Sign in first-class
condition and in compliance
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with all zoning and building codes throughout the Lease Term. Tenant shall be
responsible for all electrical costs associated with the Sign. Upon expiration
or early termination of the Lease Term, Tenant shall remove the Sign and repair
all damage to the Building caused thereby. Landlord does not warrant the
availability of such Sign to Tenant. Any language in the Lease
notwithstanding, Tenant shall indemnify and hold harmless Landlord from any and
all liability for any loss of or damage or injury to any person (including
death resulting therefrom) or property connected with or arising from the Sign
or the rights granted Tenant herein.
SECTION 18.25. SATELLITE DISH.
a. Provided Tenant is not in default under the Lease, and
provided further that Tenant complies with all zoning and other municipal and
county rules and regulations, Tenant shall have the right, at its own cost and
expense, to install, operate and maintain on the roof of the Building, a
microwave satellite dish ("Dish") for a reasonable monthly rental rate, to be
determined by Landlord upon its review of Tenant's specifications for the Dish.
Tenant shall be solely responsible for obtaining any necessary permits and
licenses required to install and operate the Dish. Copies of such permits and
licenses shall be provided to Landlord.
b. The size, location, design and manner of installation of the
Dish and all related wiring and equipment shall be designated and approved by
Landlord, which approval shall not be unreasonably withheld. After obtaining
written approval of Landlord, Tenant shall have reasonable access to the roof
for installation and maintenance of the Dish and shall have the right to
install all reasonable wiring related thereto. However, unless otherwise
approved by Landlord in writing, in no event shall Tenant be permitted to
penetrate the roof membrane in connection with the installation or maintenance
of the Dish.
c. Tenant represents and warrants that the installation and
maintenance of the Dish will not cause any damage to the structural portions of
the Building. Tenant shall be responsible for repairing any such damages to
the structure.
d. Tenant shall install, operate and maintain the Dish in
accordance with all federal, state and local laws and regulations. Prior to
installation of the Dish, Tenant shall, on behalf of the installer, provide
Landlord with a certificate of insurance reasonably satisfactory to Landlord.
e. Tenant reserves the right to discontinue its use of the Dish
at any time prior to the termination of the Lease or any renewal or extension
thereof for any reason whatsoever, provided that Tenant gives thirty (30) days
prior written notice thereof to Landlord. Tenant shall be responsible for all
costs of removal and for restoring the Building to its original condition after
such removal. Notwithstanding the foregoing, Landlord reserves the right at
any time during or upon the expiration of the Lease Term to reasonably require
by written notice to Tenant that Tenant remove the Dish within ten (10) days
from Tenant's receipt thereof, unless Landlord waives such right in writing at
the time of granting its consent to the installation of said Dish. Such
removal shall be in accordance with all of the terms and conditions set forth
herein. If Tenant elects not to remove the Dish from the Building, upon
expiration or earlier termination of this Lease, or after expiration of the ten
(10)
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day notice period provided herein, the Dish shall be deemed abandoned by Tenant
and shall become the property of Landlord.
f. Any language in the Lease notwithstanding, Landlord shall not
be liable and Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all liability, damages (including but not limited to
personal injury, death, or property damages), costs, expenses, and attorneys'
fees incurred by Landlord arising from any Dish related cause whatsoever,
including those arising from the installation, use, maintenance and removal
thereof, except for that caused by the gross negligence or willful misconduct
of Landlord.
g. If Tenant fails to comply with the terms stated herein, or if
removal of the Dish is required by any governmental authority having
jurisdiction thereof, Tenant shall remove the Dish and all related wiring and
equipment and restore the Building to its original condition in accordance
herewith within ten (10) days of its receipt of written notice requiring the
same.
h. Tenant's right to install, maintain and use such Dish shall be
subordinate and inferior to the rights of any and all existing tenants in the
Building that have previously been granted the right to install and maintain
dishes on the roof of the Building.
SECTION 18.26. PARKING. The commercial zoning ordinance of Marion County,
Indiana requires 3.5 parking spaces for every 1,000 square feet for general
office buildings. The Building currently has 3.8 parking spaces for every
1,000 square feet, based on the total Rentable Area of 149,350 square feet. In
the event it is reasonably determined by Tenant that the visitor parking spaces
available for the Building are insufficient to adequately serve Tenant's
reasonable needs, and upon Tenant's written request, Landlord agrees to add
five (5) additional visitor parking spaces in the Building parking lot, within
a reasonable time after its receipt of said notice.
SECTION 18.27. STORAGE SPACE. Provided Tenant is not in default hereunder,
Landlord agrees to provide Tenant certain temporary storage space, at no cost,
located on the third (3rd) floor of the Building and known as Suite 350 (the
"Storage Space"), from the Commencement Date until the date of substantial
completion of the Additional Space. Tenant accepts the Storage Space "AS IS"
without representation or warranty by Landlord of any kind and with the
understanding that Landlord shall have no responsibility with respect thereto.
Tenant's occupancy of the Storage Space shall be in accordance with all terms
and conditions of this Lease, except as otherwise provided herein.
SECTION 18.28. AMERICANS WITH DISABILITIES ACT. To the best of Landlord's
knowledge, Landlord has received no notice from any governmental agency or
other source that the Building is not in compliance with the Americans With
Disabilities Act ("ADA"). Landlord shall indemnify Tenant from and against any
claims, and shall defend Tenant in any action, arising from non-compliance of
the Building common areas with the ADA.
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SECTION 18.29. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant
that, except as otherwise provided in this Lease, upon the continuing
compliance by Tenant with all of the terms, covenants and provisions of this
Lease to be performed by Tenant, Tenant shall and may peaceably and quietly
have, hold and enjoy the Leased Premises for the Lease Term, free from any
interference whatsoever by, from or through Landlord or anyone claiming by,
from or through Landlord, except as may be otherwise provided herein.
ARTICLE 19 - NON-LIABILITY AND INDEMNIFICATION
SECTION 19.01. NON-LIABILITY OF LANDLORD. Neither Landlord nor any partner,
director, officer, agent, servant or employee of Landlord shall be liable to
Tenant for any loss, injury or damage to Tenant or to any other person, or to
its or their property, irrespective of the cause of such injury, damage, or
loss, unless caused by or due to the negligence or willful misconduct of
Landlord, its agents, servants, or employees, without contributory negligence
on the part of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors. Further, neither Landlord nor any partner,
director, officer, agent, servant or employee of Landlord shall be liable for
any such damage caused by other tenants or persons in, upon, or about the
Building, or caused by operations in construction of any private, public, or
quasi-public work.
SECTION 19.02. ADDITIONAL INDEMNITY. - Intentionally omitted.
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ARTICLE 20 - HAZARDOUS MATERIALS
Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances, or materials. Tenant shall not allow the storage or use
of such substances or materials in any manner not sanctioned by law or by the
highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Building any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Leased Premises, provided such testing is not
required as a result of Landlord's act. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge and belief regarding the presence of
hazardous substances or materials on the Leased Premises. In all events,
Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease
from any release of hazardous materials on the Leased Premises occurring while
Tenant is in possession, or elsewhere if caused by Tenant or persons acting
under Tenant. The within covenants shall survive the expiration or earlier
termination of the Lease Term.
To the best of Landlord's knowledge, there is no asbestos or hazardous
materials (except as may be necessary or appropriate for a particular tenant's
use) in, on or about the Leased Premises, Building or site.
ARTICLE 21 - CONSENTS
In any instance in which either Landlord or Tenant shall be requested to
consent to or approve any matter with respect to which such party's consent or
approval is required by any of the provisions of this Lease, such consent or
approval shall not be unreasonably withheld, conditioned, delayed, or exercised
except as may otherwise be expressly set forth to the contrary in this Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
LANDLORD:
WRC PROPERTIES, INC., a Delaware
corporation
ATTEST:
By:
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Its:
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(Title)
TENANT:
NHP INCORPORATED, a
Delaware corporation
ATTEST:
By:
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Printed:
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(Title)
Its:
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STATE OF
------------ )
) SS:
COUNTY OF )
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Before me, a Notary Public in and for said County and State,
personally appeared __________________________________, and ___
_______________________________, by me known and by me known to be the
____________________ and __________________, respectively, of NHP Incorporated,
a Delaware corporation, who acknowledged the execution of the foregoing
"Keystone Office Lease" on behalf of said corporation.
WITNESS my hand and Notarial Seal this _____ day of _________________,
1996.
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Notary Public
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(Printed Signature)
My Commission Expires:
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My County of Residence:
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