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Exhibit: 10.15FD
LEASE AGREEMENT
THIS LEASE is executed this 8th day of January, 1997, by and between DUGAN
REALTY, L.L.C., an Indiana limited liability company ("Landlord"), and FUNDEX
GAMES, LTD., a Nevada corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Leased Premises Address: 2237 Directors Row; Indianapolis, Indiana 46241;
Building No. 33 (the "Building"); located in Park Fletcher Business Park
(the "Park");
B. Rentable Area: approximately 32, 170 square feet;
Landlord shall use commercially reasonable standards, consistently applied,
in determining the Rentable Area and the rentable area of the Building. The
Rentable Area 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 from time to time. Landlord's
determination of Rentable Area made in good faith shall conclusively be
deemed correct for all purposes hereunder, including without limitation
the calculation of Tenant's Proportionate Share and Tenant's Minimum
Annual Rent.
C. Tenant's Proportionate Share: 28.5423%;
D. Minimum Annual Rent:
April 1, 1997 - March 31, 2002 $147,660.36 per year
E. Monthly Rental Installments:
April 1, 1997 - March 31, 2002 $12,305.03 per month
F. Landlord's Share of Expenses: $.43 times the rentable area of the
Building;
G. Term: Five (5) years;
H. Commencement Date: April 1, 1997;
I. Security Deposit: n/a;
J. Guarantor(s): n/a;
K. Broker(s): Duke Realty Services Limited Partnership representing Landlord
and F.C. Tucker representing Tenant;
L. Permitted Use: Warehousing, assembly, automated packaging, and storage
of games and office and related purposes;
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M. Address for notices:
Landlord: Dugan Realty, L.L.C.
c/o Duke Realty Services Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, IN 46240
Tenant: Attn: Chip Voigt
Fundex Games, Ltd.
2237 Directors Row
Indianapolis, IN 46241
Address for rental and other payments:
Dugan Realty, L.L.C.
c/o Duke Realty Services Limited Partnership
P.O. Box 66548
Indianapolis, IN 46266
Section 1.02. Leased Premises. Landlord hereby leases to Tenant and
Tenant leases from Landlord, subject to all of the terms and conditions set
forth herein, that portion of the Building described in the Basic Lease
Provisions and outlined on Exhibit A attached hereto (the "Leased Premises").
Landlord also grants to Tenant, together with and subject to the rights granted
from time to time by Landlord to other tenants and occupants of Landlord's
premises, the right to use the common parking area adjoining the Building.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease ("Lease Term") shall be the
period of time specified in the Basic Lease Provisions and shall commence on
the Commencement Date described in the Basic Lease Provisions. Upon delivery of
possession of the Leased Premises to Tenant, Tenant shall execute a letter of
understanding acknowledging (i) the Commencement Date of this Lease, and (ii)
that Tenant has accepted the Leased Premises for occupancy and that the
condition of the Leased Premises (including any 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. Such letter of
understanding shall become a part of this Lease. If Tenant takes possession of
and occupies the Leased Premises, Tenant shall be deemed to have accepted the
Leased Premises as described above, even though Tenant may not have executed
the letter of understanding.
Section 2.02. Construction of Tenant Improvements. Tenant has personally
inspected the Leased Premises and accepts the same "as is" without
representation or warranty by Landlord of any kind and with the understanding
that Landlord shall have no responsibility with respect thereto except to
construct in a good and workmanlike manner the improvements designated as
Landlord's obligations in the attached Exhibit B, so that the Leased Premises
will be available for Tenant's occupancy by the Commencement Date, unless
prevented by causes beyond Landlord's reasonable control. Such improvements
shall be in accordance with and at the expense of the party indicated on
Exhibit B.
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Section 2.03. 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, Tenant shall
immediately surrender the Leased Premises to Landlord, in broom-clean condition
and in good order, condition and repair, except for ordinary wear and tear and
damage which Tenant is not obligated to repair. Tenant shall also remove its
personal property, trade fixtures and any of Tenant's alterations designated by
Landlord; promptly repair any damage caused by such removal; and restore the
Leased Premises to the condition existing prior to the installation of the items
so removed. If Tenant fails to do so, Landlord may restore the Leased Premises
to such condition at Tenant's expense, and Landlord may cause all of said
property to be removed at Tenant's expense and Tenant hereby agrees to pay all
the costs and expenses thereby reasonably incurred. All property of Tenant which
is not removed within ten (10) days following Landlord's written demand therefor
shall be conclusively deemed to have been abandoned by Tenant, and Landlord
shall be entitled to dispose of such property without thereby incurring any
liability to Tenant. The provisions of this section shall survive the expiration
or other termination of this Lease.
Section 2.04. 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 125% of the Monthly Rental
Installment in effect at the end of the Lease Term (plus Additional Rent as
provided in Article 3 hereof), 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, 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.
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 the Basic Lease Provisions,
payable in equal consecutive Monthly Rental Installments, in advance, without
deduction or offset, beginning on the Commencement Date and on or before the
first day of each and every calendar month thereafter during the Lease Term.
The Monthly Rental Installment for partial calendar months shall be prorated
based on the number of days during the month this Lease was in effect in
relation to the total number of days in such month.
Section 3.02. Additional Rent. In addition to the Minimum Annual Rent
specified in this Lease, Tenant agrees to pay to Landlord for each calendar
year during the Lease Term, as "Additional Rent," Tenant's Proportionate Share
(as described in the Basic Lease Provisions) of all costs, charges and expenses
paid or incurred by Landlord during the Lease Term for Real Estate Taxes and
Operating Expenses for the Building and appurtenant common areas (collectively
"Common Area Charges") to the extent such Common Area Charges exceed Landlord's
Share of Expenses (that is, Common Area Charges minus Landlord's Share of
Expenses, times Tenant's Proportionate Share).
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"Operating Expenses" shall mean all of Landlord's expenses for operation,
repair, replacement and maintenance as necessary to keep the Building and
apputenant common areas in good order, condition and repair (including all
additional direct costs and expenses of operation and maintenance of the
Building which Landlord reasonably determines it would have paid or incurred
during such year if the Building had been fully occupied), including, but not
limited to, management fees; utilities; stormwater discharge fees; license,
permit, inspection and other fees; environmental and pollution testing and
consultation fees related thereto; fees and assessments imposed by any
covenants or owners' association; tools and supplies; security services;
insurance premiums; and maintenance and repair of the driveways and parking
areas (including snow removal), exterior lighting facilities, landscaped areas,
walkways, curbs, drainage strips, sewer lines, exterior walls, foundation,
structural frame, roof and gutters. Operating Expenses shall not include costs
of capital improvements unless such capital improvements are required by any
governmental authority, law or regulation, in which event such capital
expenditure shall be amortized pursuant to generally accepted accounting
principles, and only the amortized portion thereof shall be included in
Operating Expenses each year.
"Real Estate Taxes" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building and
common areas (or against Landlord's business of leasing the Building) by any
authority having the direct or indirect power to tax, together with costs and
expenses of contesting the validity or amount of Real Estate Taxes. If the
property is not separately assessed, then Tenant's liability shall be an
equitable proportion of the real estate taxes for all of the land and
improvements included within the tax parcel assessed. Landlord's reasonable
determination thereof, in good faith, shall be conclusive. The parties hereto
acknowledge that Landlord has obtained six-year tax abatement for the Building,
and in that regard, Tenant hereby agrees to promptly provide to Landlord
throughout the term of the Lease such information concerning salaries, wages,
number of employees and like information as may be required by Landlord in
connection with Landlord's reporting obligations in order to maintain such tax
abatement. Tenant further acknowledges and agrees that the tax abatement has
not been guaranteed to Tenant by Landlord and if such tax abatement is later
lost or revoked for any reason, Tenant shall remain and be responsible for real
estate taxes for the Premises (including on a retroactive basis as of the
Commencement Date of the Lease in the event of a retroactive revocation of any
tax abatement by the tax authorities). The provisions of this Section 3.02
shall survive the expiration or earlier termination of this Lease.
Tenant shall pay, prior to delinquency, all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Leased Premises or elsewhere. Tenant shall
cause such trade fixtures, furniture, equipment and all other personal property
to be assessed and billed separately from the Leased Premises.
Section 3.03. Payment of Additional Rent. Landlord shall be entitled to
estimate the total amount of Additional Rent to
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be paid by Tenant during each calendar year of the Lease Term, whereupon
commencing on the Commencement Date, 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 Additional Rent for such year. Within a
reasonable time after the end of each calendar year, Landlord shall submit to
Tenant a statement of the actual amount of such Additional Rent and within
forty-five (45) days after receipt of such statement, Tenant shall pay any
deficiency between the actual amount owed and the estimates paid during such
calendar year, or in the event of overpayment, Landlord shall credit the amount
of such overpayment toward the next installments of Minimum Rent; provided,
however, Tenant shall not be entitled to a credit if actual Common Area Charges
are less than Landlord's Share of Expenses. To the extent that the Lease Term
includes any partial calendar years, the Additional Rent included in this
section shall be prorated based upon the number of days in such calendar year
included within the Lease Term divided by 360.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall incur
certain additional unanticipated costs and expenses, including administrative
costs and attorneys' fees, if Tenant fails to timely pay any payment required
hereunder. Therefore, as compensation for such additional expenses, and in
addition to the other remedies available to Landlord hereunder, if any payment
of Minimum Rent or any other sum or charge required to be paid by Tenant to
Landlord hereunder shall become overdue for a period of five (5) business
days, a late charge of seven percent (7%) of the payment so due shall be paid
by Tenant as additional rent. In addition, if Tenant fails to pay within
fifteen (15) business days after the same is due and payable any 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 Prime Rate of
interest plus four percent (4%) per annum.
Section 3.05. Maximum Increase in Operating Expenses. Notwithstanding
anything in this Lease to the contrary:
a) Uncontrollable Expenses. Tenant will be responsible for Tenant's
Proportionate Share of Real Estate Taxes, reasonable costs and expenses of
contesting the validity or amount of Real Estate Taxes; insurance premiums;
snow removal; association dues; management fees (said management fees not to
exceed $.13 per square foot per year) and any other expenses which Landlord
shall determine within its reasonable discretion to be uncontrollable expenses,
without regard to the level of increase in any or all of the above in any year
or other period of time.
b) Controllable Expenses. Tenant's obligation to pay increases in costs
and expenses related to: water and sewer; repair and maintenance of the roof,
landscaping and parking lot; mowing, trash collection, fire protection,
security, and other costs associated with the exterior maintenance of the
Building (herein "Controllable Expenses") shall be limited to a ten percent
(10%) per annum increase over the amount the Controllable Expenses for the
immediately preceding calendar year would have been had the Controllable
Expenses increased at the rate of ten percent (10%) in all previous calendar
years. For purposes of this Lease, the initial prior year's
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Controllable Expenses per square foot shall be Twenty-two Cents ($.22).
ARTICLE 4 - SECURITY DEPOSIT
[Intentionally omitted.]
ARTICLE 5 - USE
Section 5.01. Use of Leased Premises. The Leased Premises are to be used
by Tenant solely as provided in the Basic Lease Provisions, and for no other
purposes without the prior written consent of Landlord, which consent shall not
be unreasonably withheld.
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 (i) use and maintain the Leased Premises and conduct its
business thereon in a safe, careful, reputable and lawful manner, (ii) comply
with all laws, rules, regulations, orders, ordinances, directions and
requirements of any governmental authority or agency, now in force or which may
hereafter be in force, including without limitation those which shall impose
upon Landlord or Tenant any duty with respect to or triggered by a change in
the use or occupation of, or any improvement or alteration to, the Leased
Premises, and (iii) comply with and obey all reasonable directions of the
Landlord, including any Rules and Regulations that may be adopted by Landlord
from time to time.
(b) Tenant shall not (i) use the Leased Premises for any unlawful purpose
or act, (ii) commit or permit any waste or damage to the Leased Premises, (iii)
store any inventory, equipment or any other materials within the Park outside
the Leased Premises (except for propane tanks enclosed within a fenced area not
to exceed twenty (20) square feet, so long as such propane tank storage
complies with all laws, rules, etc. as provided in Subparagraph (a) above), or
(iv) do or permit anything to be done in or about the Leased Premises or
appurtenant common areas which constitutes a nuisance or 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 its
lease or of any Rules and Regulations.
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(c) Tenant shall not overload the floors of the Leased Premises as to
cause damage to the floor. All damage to the floor structure or foundation of
the Building due to improper positioning or storage of items or materials shall
be repaired by Landlord at the sole expense of Tenant, who shall reimburse
Landlord immediately therefor upon demand.
(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 opinion,
invalidate any 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
insurance carried by Landlord on the Leased Premises and attributable to the use
being made of the Leased Premises by Tenant.
(e) Tenant may, at its own expense, erect a sign concerning its business
which shall be in keeping with the decor and other signs on the Building,
provided that such sign is first approved by Landlord in writing. Landlord's
approval, if given, may be conditioned upon such criteria as Landlord deems
appropriate to maintain the area in a neat and attractive manner. Tenant agrees
to maintain any sign in good state of repair, and upon expiration of the Lease
Term, Tenant shall promptly remove the sign and repair any resulting damage to
the Leased Premises or Building.
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 appurtenant common areas by
Tenant, its employees, agents, customer and invitees, each of which may be
exercised without notice or liability to Tenant:
(a) Landlord may install such signs, advertisements, notices or tenant
identification information as it shall deem necessary or proper.
(b) Landlord shall have the right at any time to change or otherwise alter
the appurtenant common areas. Landlord may control the appurtenant common areas
in such manner as it deems necessary or proper.
(c) Landlord or Landlord's agent shall be permitted to inspect or examine
the Leased Premises at any reasonable time, and Landlord shall have the right to
make any repairs to the Leased Premises which are necessary for its
preservation; provided, however, that any repairs made by Landlord shall be at
Tenant's expense, except as provided in SECTION 7.02 hereof. If Tenant is not
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.
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ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and shall pay directly to the
appropriate supplier the cost of all utilities and services serving the Leased
Premises, including but not limited to: natural gas, heat, light, electrical
power, telephone, janitorial service, refuse disposal and other utilities and
services. However, if any services or utilities are jointly metered with other
property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement. Landlord shall not be liable in damages or otherwise for any
failure or interruption of any utility service or other service furnished to the
Leased Premises; and no such failure or interruption shall entitle Tenant to
terminate this Lease or withhold sums due hereunder.
ARTICLE 7 - MAINTENANCE AND REPAIRS
SECTION 7.01. Tenant's responsibility. During the term of this Lease,
Tenant shall, at its own cost and expense, maintain in good condition and repair
the interior of the Leased Premises, including but not limited to the electrical
systems, heating and air conditioning systems, plate glass, floors, windows and
doors, sprinkler and plumbing systems. Tenant, at its expense, shall obtain a
preventative maintenance contract on the heating, ventilating and
air-conditioning systems which shall be subject to Landlord's reasonable
approval. Tenant shall provide Landlord with a copy of the preventive
maintenance contract no later than ninety (90) days after the Commencement date.
The preventive maintenance contract shall provide for the inspection and
maintenance contract shall provide for the inspection and maintenance of the
heating, ventilating and air conditioning system on not less than a semi-annual
basis. Notwithstanding the foregoing, during the initial five (5) year term of
this Lease all capital improvement costs associated with the heating,
ventilating and air conditioning system in excess of Eight Hundred Dollars
($800.00) per year (exclusive of the cost of the preventative maintenance
contract) will be paid by Landlord, provided Tenant maintains a preventive
maintenance contract as required in this Section 7.01 and so long as such costs
are not required due to the negligence, misuse or default of Tenant, its
employees, agents, customers or invitees.
SECTION 7.02. Landlord's responsibility. During the term of the Lease,
Landlord shall maintain in good condition and repair the roof, exterior walls,
foundation and structural frame of the Building and the parking and landscaped
areas, the costs of which shall be included in Operating Expenses; provided,
however, that to the extent any of the foregoing items require repair because of
the negligence, misuse, or default of Tenant, its employees, agents, customers
or invitees, Landlord shall make such repairs at Tenant's expense.
SECTION 7.03. Alterations. Tenant shall not permit structural or
non-structural alterations or additions in or to the Leased Premises unless and
until the plans have been approved by Landlord in writing. As a condition of
such approval, Landlord may require Tenant to remove the alterations and restore
the Leased Premises upon termination of this Lease; otherwise, all such
alterations or improvements, except movable office furniture and equipment and
trade fixtures, shall at
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Landlord's option become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. If Landlord consents to Tenant's
performance of alternations or additions to the Leased Premises, Tenant shall
ensure that all alterations and improvements which are made or necessitated
thereby shall be made in accordance with all applicable laws, regulations and
building codes, in a good and workmanlike manner and in quality equal to or
better than the original construction of the Building. Landlord's approval of
the plans, specifications and working drawings for Tenant's alterations shall
create no responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with all laws, rules and
regulations of governmental agencies or authorities. Tenant shall indemnify and
save harmless Landlord from all costs, loss or expense in connection with any
construction or installation. No person shall be entitled to any lien directly
or indirectly derived through or under Tenant upon the Leased Premises for any
improvements or fixtures made thereon or installed therein or for or on account
of any labor or material furnished to the Leased Premises or for or on account
of any matter or thing whatsoever; and nothing in this Lease contained shall be
construed to constitute a consent by Landlord to the creation of any lien. If
any lien is filed against the Leased Premises for work claimed to have been
done for, or material claimed to have been furnished to, Tenant, Tenant shall
cause such lien to be discharged of record within thirty (30) days after filing
by bonding or in any other lawful manner. Tenant shall indemnify and save
harmless Landlord from all costs, losses, expenses, and attorneys' fees in
connection with any such lien.
ARTICLE 8 - CASUALTY
Section 8.01. Casualty. In the event of total or partial destruction of
the Building or the Leased Premises by fire or other casualty, Landlord agrees
to promptly restore and repair the Leased Premises at Landlord's expense;
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, if any. Any insurance proceeds not used by
Landlord in restoring or repairing the Leased Premises shall be the sole
property of Landlord. Rent shall proportionately abate during the time that the
Leased Premises or part thereof are unusable because of any such damage
thereto. Notwithstanding the foregoing, if the Leased Premises are (i) so
destroyed that they cannot be repaired or rebuilt within one hundred fifty
(150) days from the date on which the insurance claim is adjusted; or (ii)
destroyed by a casualty which is not covered by the insurance required
hereunder or, if covered, such insurance proceeds are not released by any
mortgagee entitled thereto or are insufficient to rebuild the Building and the
Leased Premises; then, in case of a clause (i) casualty, either Landlord or
Tenant may, or, in the case of a clause (ii) casualty, then Landlord may, upon
thirty (30) days written notice to the other party, terminate and cancel this
Lease; and all further obligations hereunder shall thereupon cease and
terminate.
Section 8.02. Fire and Extended Coverage Insurance. During the term of
this Lease, Landlord shall maintain fire and extended coverage insurance on the
Building,, but shall not protect Tenant's property on the Leased Premises; and,
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notwithstanding the provisions of Section 9.01, Landlord shall not be liable
for any damage to Tenant's property, regardless of cause, including the
negligence of Landlord and its employees, agents, and invitees. Tenant hereby
expressly waives any right of recovery against Landlord (or any other tenant of
the Building) for damage to any property of Tenant located in or about the
Leased Premises, however caused, including the negligence of Landlord and its
employees, agents, and invitees; and notwithstanding the provisions of Section
9.01 below, Landlord hereby expressly waives any rights of recovery against
Tenant for damage to the Leased Premises or the Building which is insured
against under Landlord's fire and extended coverage insurance. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease and agreeing not to acquire any rights of
recovery which the insured has expressly waived prior to loss.
ARTICLE 9 - LIABILITY INSURANCE
Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the
appurtenant common areas, or (ii) the occurrence of any accident in or about
the Leased Premises or the appurtenant common areas, or (iii) any act or
neglect of Tenant or any other tenant or occupant of the Building or of any
other person, unless such damage, injury or death is directly and solely the
result of Landlord's negligence; and Tenant hereby releases Landlord from any
and all liability for the same. Tenant shall be liable for, and shall indemnify
and defend Landlord and hold it harmless from, any and all liability for (i)
any act or neglect of Tenant and any person coming on the Leased Premises or
appurtenant common areas by the license of Tenant, express or implied, (ii) any
damage to the Leased Premises, and (iii) 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 insured as provided in Section 8.02 and except for that
caused solely and directly by Landlord's negligence. Notwithstanding the
foregoing, Tenant shall bear the risk of any loss or damage to its property as
provided in Section 8.02.
Section 9.02. Tenant's Insurance. Tenant, in order to insure against the
liabilities specified in this Lease, shall at all times during the term of this
Lease carry, at its own expense, one or more policies of general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Comprehensive General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than $1,000,000
Combined Single Limit for both bodily injury and property damage.
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C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and Sprinkler
Leakage insurance, if applicable, for the full cost of replacement of
Tenant's property.
D. Business interruption insurance and/or extra expense coverage.
The insurance policy or policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee as additional insureds, 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 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.
ARTICLE 10 -- EMINENT DOMAIN
If all or any substantial part of the Building or appurtenant common areas
shall be acquired by the exercise of eminent domain, Landlord may terminate this
Lease by giving written notice to Tenant within fifteen (15) days after
possession thereof is so taken. If all or any part of the Leased Premises shall
be acquired by the exercise of eminent domain in such a manner that the Leased
Premises shall become unusable by Tenant for the purpose for which it is then
being used, Tenant may terminate this Lease by giving written notice to Landlord
within fifteen (15) days after possession of the Leased Premises or part thereof
is so taken. Tenant shall have no claim against Landlord on account of any such
acquisition for the value of any unexpired lease term remaining after possession
of the Leased Premises is taken. All damages awarded shall belong to and be the
sole property of Landlord; provided, however, that Tenant shall be entitled to
any award expressly made to Tenant by any governmental authority for the cost of
or the removal of Tenant's stock, equipment and fixtures and other moving
expenses.
ARTICLE 11 -- ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in whole
or in part without Landlord's prior written consent. In the event of any
assignment or subletting, Tenant shall remain primarily liable to perform all of
the covenants and conditions contained in this Lease, including but not limited
to payment of Minimum Rent and Additional Rent as provided herein. The
acceptance of rent from any other person shall not be deemed to be a waiver of
any of the provisions of this Lease or to be a consent to the assignment of this
Lease or the subletting of the Leased Premises.
Without in any way limiting Landlord's right to refuse to consent to any
assignment or subletting of this Lease, Landlord reserves the right to refuse to
give such consent if in Landlord's discretion and opinion (i) the use of the
Leased Premises is or may be in any way adversely affected; (ii) the business
reputation of the proposed assignee or subtenant is deemed unacceptable; or
(iii) the financial worth of the proposed assignee or subtenant is insufficient
to meet the
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obligations hereunder or is less than that of Tenant. Landlord further
expressly reserves the right to refuse to give its consent to any subletting if
the proposed rent is publicly advertised to be less than the then current rent
for similar premises in the Park. Tenant agrees to reimburse Landlord for
reasonable accounting and attorneys' fees incurred in conjunction with the
processing and documentation of any such requested transfer, assignment,
subletting or any other hypothecation of this Lease or Tenant's interest in and
to the Leased Premises.
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 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 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale and Conveyance of the Building. Landlord shall have
the right to sell and convey the Building at any time during the term of this
Lease, subject only to the rights of Tenant hereunder; and such sale and
conveyance shall operate to release Landlord from liability hereunder accruing
after the date of such conveyance.
Section 12.02. Subordination and Estoppel Certificate. Landlord shall
have the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage; and the
recording of any such mortgage shall make it prior and superior to this Lease
regardless of the date of execution or recording of either document. Within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost:
(a) any reasonable instrument which Landlord may deem necessary or
desirable to confirm the subordination of this Lease. If Tenant fails or
refuses to do so, Landlord may execute such instrument in the name and as the
act of Tenant.
(b) an estoppel certificate in such form as Landlord may reasonably
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, (iii) that there are not, to Tenant's
knowledge, any uncured defaults (or specifying such defaults if any are
claimed), and (iv) any other matters or state of facts reasonably required
respecting the Lease or Tenant's occupancy of the Leased Premises. Such
estoppel may be relied upon by Landlord and by any purchaser or mortgagee or
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
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in full force and effect and unmodified and that there are no uncured defaults
in Landlord's performance hereunder.
(c) Notwithstanding the foregoing, if the mortgagee shall take title to the
Leased Premises through foreclosure or deed in lieu of foreclosure, Tenant shall
be allowed to continue in possession of the Leased Premises as provided for in
this Lease so long as Tenant shall not be in default. Tenant shall, in the event
any proceedings are brought to foreclose any such mortgage, attorn to the
purchaser upon any such foreclosure and recognize such purchaser as the landlord
under this Lease.
SECTION 12.03. Lender's rights. Landlord shall have the right, at any time
and from time to time, to notify Tenant in writing that Landlord has placed a
mortgage on the Building, specifying the identity of the Lender ("Lender").
Following receipt of such notice, Tenant agrees to give such Lender a copy of
any notice of default served by Tenant on Landlord. Tenant further agrees that
if Landlord fails to cure any default as provided in Section 13.03 herein,
Lender shall have an additional thirty (30) days within which to cure such
default; provided, however, that if the term, condition, covenant or obligation
to be performed by Landlord 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 Lender commences such performance within said thirty-day period
and thereafter diligently completes the same.
ARTICLE 13 - DEFAULT AND REMEDY
SECTION 13.01. Default. The occurrence of any of the following shall be
deemed an "Event of Default":
(a) Tenant shall fail to pay any Monthly Rental Installment or Additional
Rent within five (5) business days after the same shall be due and payable, or
Tenant shall fail to pay any other amounts due Landlord from Tenant within ten
(10) business days after the same shall be due and payable.
(b) Tenant shall fail to perform or observe any term, condition, covenant
or obligation as required under this Lease for a period of ten (10) business
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than ten business days are reasonably
required to cure, then such default shall be deemed to have been cured if Tenant
commences such performance within said ten business-day period and thereafter
diligently completes the required action within a reasonable time.
(c) Tenant shall vacate or abandon the Leased Premises for any period, or
fail to occupy the Leased Premises or any substantial portion thereof for a
period of thirty (30) days.
(d) All or substantially all of Tenant's assets in 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); a
petition in bankruptcy, insolvency, or for reorganization or arrangement is
filed by or against Tenant (and Tenant fails to secure a stay or discharge
thereof within sixty (60) days thereafter); Tenant shall be insolvent and unable
to pay its debts as they become due; Tenant makes a general assignment for the
benefit of
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creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; dissolution or other termination of Tenant's corporate charter if
Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Event of Default,
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, and Tenant shall reimburse Landlord as additional rent for any costs and
expenses which Landlord thereby incurs; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of Landlord's
action, regardless of whether caused by Landlord's negligence or otherwise.
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such default, and thereafter (i) neither Tenant nor any person claiming under or
through Tenant shall be entitled to possession of the Leased Premises, and
Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value ( as
determined by Landlord) of all rent which would have been due under this Lease
for the balance of the Lease Term to be immediately due and payable, whereupon
Tenant shall be obligated to pay the same to Landlord, together with all loss or
damage which Landlord may sustain by reason of Tenant's default ("Default
Damages"), which shall include without limitation expenses of preparing the
Leased Premises for re-letting, demolition, repairs, tenant finish improvements,
and brokers' and attorneys' fees, it being expressly understood and agreed that
the liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately 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 Lease Term, together
with all of Landlord's Default Damages.
(d) Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the breach.
(e) In addition to the defaults and remedies described above, the parties
hereto agree that if Tenant defaults in the performance of any (but not
necessarily the same) term or
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condition of this Lease three (3) or more times during any twelve (12) month
period, regardless of whether such defaults are ultimately cured, then such
conduct shall, at Landlord's option, represent a separate Event of Default.
Tenant acknowledges that (i) Landlord will incur additional unanticipated costs
as a result of such repetitive defaults, including but limited to
administrative costs and legal fees, and (ii) the purpose of this provision is
to adequately compensate Landlord for those costs, which would be difficult to
determine with certainty. Therefore, Tenant agrees to pay to Landlord upon a
default under this habitual default provision the amount of One Thousand
Dollars ($1,000.00) as liquidated damages to cure such default, payable within
forty-five (45) days after written demand therefor to Tenant by Landlord.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall be
in default if it shall fail to perform or observe any term, condition,
covenant or obligation as required under this Lease for a period of thirty
(30) days after written notice thereof from Tenant to Landlord and to Lender,
if any; provided, however, that if the term, condition, covenant or obligation
to be performed by Landlord 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 Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may sue for injunctive relief or to
recover damages for any loss resulting from the breach, but Tenant shall not be
entitled to terminate this Lease or withhold, offset or abate any rent due
hereunder.
Section 13.04. 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 (whether
compensatory or punitive in nature), 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; and Tenant further agrees that no other assets of Landlord
shall be subject to levy; execution or other process for the satisfaction of
Tenant's judgment and that Landlord shall not be personally 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; and the transferee shall be deemed
to have assumed all of such terms, conditions, covenants and obligations.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease
shall be construed to be a waiver
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thereof or affect its right thereafter to exercise or enforce each and every
such right or remedy or other provision. No waiver of any default shall be
deemed to be a waiver of any other default. Landlord's receipt 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 such a surrender shall be valid unless in writing and
signed by Landlord.
Section 13.06. Attorney's Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for the attorneys' fees incurred thereby.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right, at its option, upon at least thirty (30)
days' prior written notice to Tenant, to relocate Tenant and to substitute for
the Leased Premises other space in the Building or in the Park, containing at
least as much rentable area as the Leased Premises. Such substituted space shall
be improved by Landlord, at its expense, with improvements at least equal in
quantity and quality (including a comparable sprinkler system) to those in the
Leased Premises. Landlord shall reimburse Tenant for all reasonable expenses
incurred with and caused by such relocation (including telephone installation,
moving of equipment and furniture, and printing of stationery with the Tenant's
new address) within sixty (60) days following receipt from Tenant of invoices or
receipts marked "paid in full." In no event shall Landlord be liable to Tenant
for any consequential damages 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 15 - NOTICE AND PLACE OF PAYMENT
Section 15.01. 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 by overnight courier or mailed by certified mail,
postage prepaid, to (i) the party who is to receive such notice at the address
specified in the Basic Lease Provisions and (ii) in the case of a default notice
from Tenant to Landlord, any Lender designated by Landlord. When so mailed, the
notice shall be deemed to have been given as of the date it was mailed. Either
party may change its address by giving written notice thereof to the other
party.
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Section 15.02. Place of Payment. All payments required to be made by
Tenant to Landlord shall be delivered or mailed to Landlord's management agent
at the address specified in the Basic Lease Provisions or any other address
Landlord may specify from time to time by written notice to Tenant.
ARTICLE 16 -- TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL LAWS
AND HAZARDOUS SUBSTANCES.
Section 16.01. Definitions.
a. "Environmental Laws" -- All federal, state and municipal laws,
ordinances, rules and regulations applicable to the environmental and
ecological condition of the Leased Premises, including, without limitation, the
Federal Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended; the Federal Resource Conservation and Recovery Act; the
Federal Toxic Substance Control Act; the Clean Air Act; the Clean Water Act;
the rules and regulations of the Federal Environmental Protection Agency, or
any other federal, state or municipal agency or governmental board or entity
having jurisdiction over the Leased Premises.
b. "Hazardous Substances" -- Includes:
(i) Those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances," "solid waste" or
"infectious waste" in any of the Environmental Laws; and
(ii) Such other substances, materials and wastes which are or become
regulated under applicable local, state or federal law, or which are classified
as hazardous, toxic or infectious under present or future Environmental Laws or
other federal, state, or local laws or regulations.
Section 16.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws which shall impose any duty upon
Tenant with respect to the use, occupancy, maintenance or alteration of the
Leased Premises. Tenant shall promptly comply with any notice from any source
issued pursuant to the Environmental Laws or with any notice from any insurance
company pertaining to Tenant's use, occupancy, maintenance or alteration of the
Leased Premises, whether such notice shall be served upon Landlord or Tenant.
Section 16.03. Restrictions on Tenant. Tenant shall not cause or permit to
occur:
a. Any violation of the Environmental Laws related to environmental
conditions on, under, or about the Leased Premises, or arising from Tenant's
use or occupancy of the Leased Premises, including, but not limited to, soil
and ground water conditions.
b. The use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substances on, under, or about
the Leased Premises, or the transportation to or from the Leased Premises of
any Hazardous Substances, except as necessary and appropriate for general
office use in which case the use, storage or disposal of such Hazardous
Substances shall be performed in compliance with the
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Environmental Laws and the highest standards prevailing in the industry.
Section 16.04. Notices, Affidavits, Etc.
a. Tenant shall immediately notify Landlord of (i) any violation by
Tenant, its employees, agents, representatives, customers, invitees or
contractors of the Environmental Laws on, under or about the Leased Premises, or
(ii) the presence or suspected presence of any Hazardous Substances on, under or
about the Leased Premises and shall immediately deliver to Landlord any notice
received by Tenant relating to (i) and (ii) above from any source.
b. Tenant shall execute affidavits, representations and the like from
time to time, within five (5) days of Landlord's request therefor, concerning
Tenant's best knowledge and belief regarding the presence of any Hazardous
Substances on, under or about the Leased Premises.
Section 16.05. Landlord's Rights.
a. Landlord and its agent shall have the right, but not the duty, upon
advance notice (except in the case of emergency when no notice shall be
required) to inspect the Leased Premises and conduct tests thereon at any time
to determine whether or the extent to which there has been a violation of
Environmental Laws by Tenant or whether there are Hazardous Substances on, under
or about the Leased Premises. In exercising its rights herein, Landlord shall
use reasonable efforts to minimize interference with Tenant's business but such
entry shall not constitute an eviction of Tenant, in whole or in part, and
Landlord shall not be liable for any interference, loss, or damage to Tenant's
property or business caused thereby.
b. If Landlord, any lender or governmental agency shall ever require
testing to ascertain whether there has been a release of Hazardous Substances
on, under or about the Leased Premises or a violation of the Environmental Laws,
and such requirement arose in whole or in part because of an act or omission on
the part of Tenant, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as Additional Rent.
Section 16.06. Tenant's Indemnification. Tenant shall indemnify and hold
harmless Landlord and Landlord's managing agent from any and all claims, loss,
liability, costs, expenses or damage, including attorneys' fees and costs of
remediation, incurred by Landlord in connection with any breach by Tenant of its
obligations under this Article 16. The covenants and obligations of Tenant under
this Article 16 shall survive the expiration or earlier termination of this
Lease.
ARTICLE 17 - MISCELLANEOUS
Section 17.01. Benefit of Landlord and Tenant. This Lease and all of the
terms and provisions hereof shall inure to the benefit of and be binding upon
Landlord and Tenant and their respective successors and assigns.
Section 17.02. Governing Law. This Lease shall be governed in accordance
with the laws of the State of Indiana.
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Section 17.03. Guaranty. [Intentionally Omitted.]
Section 17.04. Force Majeure. Landlord shall be excused for the period of
any delay in the performance of any obligation hereunder when such 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; man-made or natural
casualties; unusual weather conditions; acts or omissions of governmental or
political bodies; or civil disturbances or riots.
Section 17.05. Condition of Premises. Tenant acknowledges that 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 thereof for the conduct of Tenant's
business except as provided in this Lease.
Section 17.06. 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 17.07. Indemnification for Leasing Commissions. The parties
hereby represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are those named in 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. Each party shall indemnify and hold the other harmless from any and all
liability for the breach of this 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 17.08. Quiet Enjoyment. If Tenant shall perform all of the
covenants and agreements herein provided to be performed by Tenant, Tenant
shall, at all times during the Lease Term, have the quiet enjoyment and
peaceful possession of the Leased Premises without hindrance from Landlord or
any persons lawfully claiming under Landlord, except as may be provided in
Section 12.02 hereunder.
Section 17.09. 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 17.10. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent certified and audited financial statements prepared as of the end
of Tenant's fiscal year. Such financial statements shall be
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prepared in conformity with generally accepted accounting principles,
consistently applied.
Section 17.11. 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 17.12. 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.
ARTICLE 18 - ADDITIONAL PROVISIONS
Section 18.01. Option to Extend.
A. Grant and Exercise of Option. Provided that (i) Tenant is not then in
default hereunder beyond any applicable cure periods, (ii) the creditworthiness
of Tenant is then acceptable to Landlord, (iii) Tenant originally named herein
remains in possession of and has been continuously operating in the entire
Leased Premises throughout the original five (5) year term of this Lease (the
"Original Term") and (iv) the current use of the Leased Premises is acceptable
to Landlord, Tenant shall have one (1) option to extend the Original Term for
one (1) additional period of three (3) 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 September 30, 2001, 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 five (5) 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.
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excluding free rent and other concessions; 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 or greater than
Four Dollars and Ninety-five Cents $4.95 per square foot. 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 18.02. Right of First Refusal. Provided that (i) Tenant is not
then in default hereunder beyond any applicable cure periods, (ii) the
creditworthiness of Tenant is then acceptable to Landlord, (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
current use of the Leased Premises is acceptable to Landlord, and subject to
any rights of other tenants to the Refusal Space (including the prior right of
first refusal rights of Fisery Solutions, Inc.), Tenant shall have the right of
first refusal ("Refusal Option") to lease the space adjacent to the Leased
Premises crosshatched on the attached Exhibit C ("Refusal Space"), as such
space becomes available for leasing during the Lease Term. The term for the
Refusal Space shall be coterminous with the Lease Term, provided, however, that
the minimum term for the Refusal Space shall be three (3) years and the Lease
Term shall be extended, if necessary, to be coterminous with the term for the
Refusal Space. The Refusal Space shall be offered to Tenant at the rental rate
and upon such other terms and conditions, excluding free rent and other
concessions, as are then being offered by Landlord to a specific third party
prospective tenant for such space, but in no event shall such rental rate be
less than the then current rental rate under this Lease. In the event that the
Refusal Space is not leased to the initial third party prospective tenant, then
this Refusal Option shall remain in effect in the event of an offer to any
other specific third party prospective tenant and the Refusal Space shall again
be offered to Tenant in accordance herewith. Upon notification in writing by
Landlord that the Refusal Space is available, Tenant shall have five (5)
business days in which to notify Landlord in writing of its election to lease
the Refusal Space at such rental rates 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 the 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.
Section 18.03. Americans with Disabilities Act. Landlord represents to
Tenant that, as of the Commencement Date of this Lease, the Building will be in
compliance with all material aspects of Title III of the Americans with
Disabilities Act as such law exists on the Commencement Date.
Section 18.04. Contingency. This Lease is specifically contingent upon
Fisery Solutions, Inc., not agreeing to lease the Leased Premises on or before
January 15, 1997.
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Section 18.05. Early Occupancy. Landlord will use good faith efforts to
allow Tenant to take possession of the warehouse portion of the Leased Premises
on February 15, 1997 for fixturing purposes and to take possession of the
office portion on March 1, 1997 for fixturing purposes. Tenant agrees to
coordinate its fixturing with the work of Landlord such that Tenant's work does
not interfere with or delay Landlord's work; provided, however, that neither
Landlord nor any of Landlord's affiliates shall have any responsibility or
liability whatsoever for any injury (including death) to persons or 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. All of the terms and conditions of this Lease will become
effective upon Tenant taking possession of the Leased Premises except for the
payment of Minimum Annual Rent and Additional Rent which will commence on the
Commencement Date.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
LANDLORD:
DUGAN REALTY, L.L.C., an Indiana
limited liability company
By: Duke Realty Limited Partnership,
an Indiana limited partnership,
its member
By: Duke Realty Investments, Inc.,
an Indiana corporation, its
general partner
By: /s/ William E. Linville, III
------------------------------
William E. Linville, III
Vice President
Industrial Group
TENANT:
FUNDEX GAMES, LTD., a Nevada
corporation
By: /s/ Carl E. Voigt IV
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Printed: Carl E. Voigt IV
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Title: President
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STATE OF INDIANA )
) SS.
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally
appeared Cam E. Voigt by me known and by me known to be the President of
Fundex Games, Ltd., a Nevada corporation, who acknowledged the execution of
the above and foregoing Lease Agreement for and on behalf of said corporation.
WITNESS my hand and Notarial Seal, this 8th day of January, 1997.
/s/ Carey B. Crafton
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Notary Public
Carey B. Crafton
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(Printed Signature)
[Official Seal of Carey B. Crafton]
May Commission Expires:
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My County of Residence:
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2237 Directors Row
Indianapolis, IN 46241 Page 1 of 1
Drawing of Floor Plan
BLDG. 33 - PARK FLETCHER
ALL ADDRESSES ARE DIRECTORS ROW
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Fundex Games, Ltd. EXHIBIT B
Building #33 TENANT FINISH IMPROVEMENTS
2237 Directors Row March 1, 1997
Indianapolis, Indiana 46241 Page 1 of 1
Landlord will perform, at its cost and expense, the following Tenant Finish
Improvements to the Leased Premises:
1. The Landlord will build out 3,000 square feet of office space at $30.00
per square foot. Any costs in excess of $90,000 will be paid for by the
Tenant.
Construction Drawings will be forwarded to Tenant for Tenant's review and
approval under separate cover (Page 2 of 2).
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Fundex Games, Ltd. EXHIBIT C
Building #33 TENANT FINISH IMPROVEMENTS
2237 Directors Row March 1, 1997
Indianapolis, IN 46241 Page 1 of 1
RIGHT OF REFUSAL
January 8, 1997
Drawing of Floor Plan
Fiserv has ongoing BLDG. 33 - PARK FLETCHER
ROFR on adj space ALL ADDRESSES ARE DIRECTORS ROW