EXHIBIT 10.12
REAL ESTATE LEASE
THIS LEASE ("Lease") is made by and between MSE REALTY, LLC, an Indiana,
limited liability company ("Lessor"), and MSE CORPORATION, an Indiana
corporation, ("Lessee"), as of the 2nd day of July, 1997.
ARTICLE 1
LEASED PREMISES
The Lessor hereby leases to the Lessee and the Lessee hereby leases from
the Lessor, certain real estate, together with all improvements thereon, located
in the City of Indianapolis, Xxxxxx County, Indiana, and more particularly
described in Exhibit "A" attached hereto and made a part hereof; consisting of
Tract I having a common street address of 000 X. Xxxxxxxx Xxxxxx and consisting
of four buildings of approximately 99,416 rentable square feet and a surface
parking area of approximately .988 acres, more or less, and Tract II having a
common street address of 000-000 X. Xxxxxxxx Xxxxxx and consisting of one
building of approximately 14,868 rentable square feet and two surface parking
areas on the north and south. The real estate shall include all buildings,
structures, and other improvements located or erected thereon either permanently
installed, or which belong to or are used in connection with the real estate,
wherever located, including all fixtures of whatsoever kind or nature attached
thereto together with all tenements, hereditaments, rights, privileges,
interests, easements, and other appurtenances belonging or otherwise related or
appertaining to the real estate or improvements thereto, any and all tangible
personal property and equipment of every kind and nature owned by Lessor and
installed, located or situated in, on or about the real estate or improvements,
or used in connection with the operation or maintenance of the real estate or
the improvements. The foregoing real estate, improvements, fixtures,
appurtenances and personal property shall be referred to herein as the "Leased
Premises."
ARTICLE 2
TERM
The term of this Lease shall be for an initial period of approximately five
(5) years commencing on July 2, 1997, and continuing until midnight, June 30,
2002, unless earlier terminated as provided for herein. If Lessee is not in
default of any of the terms and conditions of this Lease beyond any applicable
notice and cure period, then Lessee may elect to extend this Lease for two (2)
additional terms of five (5) years each, subject to the adjustment of the rent
due hereunder as provided for in Article 3 below, and written notice of Lessee's
election delivered to Lessor not less than six (6) months prior to the
expiration of the current term.
ARTICLE 3
RENT
Section 3.01 Base Rent. Lessee shall pay the sum of One Hundred Eleven
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Thousand One Hundred Eighty Dollars ($111,180.00) per month, except as may be
abated pursuant to specific provisions of this Lease, without setoff or
deduction, as rent for the Leased Premises without relief from valuation or
appraisement laws to the Lessor at the address specified in Article 1 8. Such
monthly rental payments to be paid in advance commencing on the first day of
August, 1997, and continuing on the first day of each calendar month thereafter
for the term of this Lease. To the extent that this Lease commences on a day
other than the first of day of a calendar month or any portion of the term of
this Lease is for less than a full calendar month, the rent for such partial
month(s) shall be prorated accordingly and shall be paid upon the commencement
of this Lease or upon the first day of the partial month upon expiration or
termination of this Lease. Any and all other sums due and payable hereunder by
the Lessee, whether designated as rent or additional rent, shall at all times be
considered as rent hereunder.
Section 3.02 Adjustment in Base Rent. In the event that Lessee elects to
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extend the term of this Lease as provided under Article 2 above, the Base Rent
due hereunder shall be adjusted and changed by the increase, if any, in the
Consumer Price Index for all Urban Consumers, U.S. City average, all items,
(1982-1984 = 100) as issued by the Department of Labor, Bureau of Labor
Statistics (the "CPI") as follows:
(a) The average CPI for the twelve calendar months of 1997, (the "Base
CPI") shall be compared to the CPI for the month of January immediately
preceding the commencement date of the renewal term (the "Adjustment CPI").
If the Adjustment CPI has increased over the Base CPI, Lessor shall
determine the percentage increase in the CPI as being the equal to the
fraction, the numerator of which is the Adjustment CPI minus the Base CPI,
and the denominator of which is the Base CPI.
(b) The current annual Base Rent for the current term shall be multiplied
by the percentage increase in the CPI to determine the increase in the Base
Rent for the renewal term.
(c) The amount of the increase in the annual Base Rent shall be added to
the annual Base Rent in effect in the expiring term and this new amount
shall be the new Base Rent for the renewal term, payable in monthly
installments pursuant to the terms and conditions of this Lease.
In no event shall the annual Base Rent during any renewal term of this Lease be
less than the annual Base Rent payable during the immediately preceding term. If
the CPI is discontinued or revised, the parties shall agree on a reliable
governmental or financial authority which evaluates the purchasing power of the
consumer dollar to replace it in order to obtain substantially the same result
as would be obtained if the CPI had not been discontinued or revised.
Section 3.03 Additional Rent. The actual "Operating Expenses" (as defined
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below) incurred or accrued for the Leased Premises for calendar year 1997 shall
be the Base Year
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Operating Expenses. Lessee shall pay to Lessor any increase in the Operating
Expenses above the Base Year Operating Expenses incurred in subsequent calendar
years of the term as additional Rent. Lessor will notify Lessee of any increase
in actual Operating Expenses above the Base Year Operating Expenses, together
with a detailed written explanation of the increase, after the conclusion of the
calendar year in which such Operating Expenses were incurred. Within thirty (30)
days after receipt of such notice, Lessee will pay the increased amount to
Lessor, subject to Lessee's right of audit set forth below. If Lessor projects
Operating Expenses for any coming calendar year after 1997 to be in excess of
the Base Year Operating Expenses, Lessor may notify Lessee of its projections,
with a detailed explanation of the increase, and Lessee will pay the estimated
projected excess in advance in equal monthly installments. If Lessor exercises
its right to project estimated Operating Expense increases over the Base Year
Operating Expenses and collect for such projected increases over the calendar
year in which the expenses are incurred, Lessor shall provide Lessee with a
detailed written statement of the actual Operating Expenses paid for such year,
within sixty (60) days of the end of the such year. Any overpayment by Lessee
based on the projections will be credited to Lessee's account for the coming
year or if paid during the last year of the Lease term, refunded upon
termination of this Lease. Lessee shall have the right to conduct an audit of
Operating Expenses pertaining to a particular calendar year at any time until
the 90th day following Lessee's receipt of a written statement from Landlord
setting forth the actual Operating Expenses incurred or paid for such calendar
year. Lessee shall give Lessor ten (10) days prior written notice to conduct an
audit of the Operating Expenses. If the results of such audit show that the
Lessee's charges have been overstated, Lessor shall refund immediately any
balance due Lessee and, if the audit determines that the amount charged to
Lessee was overstated by three percent (3%) or more, Lessor shall reimburse
Lessee for the cost of the audit. If the term hereunder does not terminate on
the last day of a calendar year, the Operating Expenses shall be pro rated based
upon Lessee's occupancy during the final calendar year on a per diem basis. It
is acknowledged and agreed that if Lessee files a timely objection to any excess
in Operating Expenses as a result of an audit, Lessee shall not be in default
hereunder for failure to pay such excess.
(a) "Operating Expenses" shall mean all reasonable and customary expenses,
costs, and amounts of every kind and nature which Lessor pays or incurs in
any calendar year in connection with the ownership, management, repair,
maintenance and operation of the Leased Premises, including, but not
limited to, all utility costs, professional services, tools and supplies,
insurance, janitorial services, rubbish and trash removal, snow removal,
Real Estate Taxes (as defined below), and all other costs and expenses
incurred or paid by Lessor in connection with the Leased Premises provided
such costs are of type typically incurred or paid in the ownership,
management, repair, maintenance and operation of similar office building
located in the downtown Indianapolis area. Operating Expenses shall
specifically exclude those items which Lessee pays for itself or which
Lessee reimburses Lessor for under the terms of this Lease and shall also
exclude:
(i) any ground lease rental and payments on any financing;
(ii) depreciation, amortization and other non-cash expenditures;
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(iii) costs incurred for repairs or other items to the extent Lessor
is reimbursed by insurance proceeds or third parties;
(iv) costs of capital improvements and repairs;
(v) the cost of any service performed by an affiliate of Lessor or a
manager of the Leased Premises to the extent such cost is in
excess of the cost that would be paid to an unaffiliated, third
party provider of similar service;
(vi) the cost of any management fee or administrative fee or Lessor's
overhead;
(vii) any costs, including, without limitation, fines and penalties,
incurred by Lessor due to the violation or alleged violation of
the Leased Premises caused solely by the acts or omissions of
the Lessor of any law or regulation and any cost to bring the
Leased Premises into compliance with any law or regulations
following such a violation or alleged violation.
(b) "Real Estate Taxes" shall mean all ad valorem real property taxes and
currently due installments of assessments levied upon or with respect to
the Leased Premises, including all land and improvements, and all taxes,
levies and charges which may levied or imposed by any governmental
authority in replacement of, in lieu of, or in addition to ad valorem real
property taxes, in whole or in part, including, but not limited to a state
or local option tax designed for property tax relief purposes, or a license
or franchise fee measured by rents received for the Leased Premises, or
otherwise measured or based upon Lessor's interest in the Leased Premises.
It does not include any federal or state income tax.
ARTICLE 4
SECURITY DEPOSIT
Upon any assignment of this Lease, Lessor specifically reserves the right
to require Lessee to pay to Lessor the sum of One Hundred Eleven Thousand One
Hundred Eighty Dollars ($111,180.00) ("Security Deposit") as security for the
performance of such assignee's obligations as Lessee under this Lease,
including, but not limited to, the payment of rent and all other sums due
hereunder and the procurement and maintenance of insurance. In the event of a
default by the assignee, Lessor may apply all or such part of the Security
Deposit as may be necessary to cure the default and immediately upon demand
assignee shall redeposit with Lessor an amount equal to the sum applied to cure
the default. It is understood, acknowledged and agreed that the full security
deposit shall be on hand and on deposit with Lessor during the term of this
Lease. Lessor shall hold the deposit for the benefit of assignee but shall not
be required to segregate it from Lessor's other funds or to pay interest on it.
Upon the termination of the Lease (provided that assignee is not in default and
is in full compliance with all of the terms and conditions of the Lease), Lessor
shall refund to assignee any balance of the Security Deposit remaining after
application of any funds necessary to meet assignee's obligations hereunder upon
termination or expiration of this Lease. In the event of a sale, lease or other
transfer of Lessor's interest in the Leased Premises, Lessor shall have to the
right to transfer the Security Deposit to its purchaser, lessee, transferee or
successor in interest. Lessee agrees to look solely
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to the new lessor hereunder for the return of the Security Deposit following
such transfer and agrees that the provisions of this Article 4 shall apply to
every transfer or assignment made of the Security Deposit to new lessor.
ARTICLE 5
SERVICES AND REPAIRS
Section 5.01 Services. If Lessee is not in Default hereunder and subject
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to the provisions elsewhere contained in this Lease, Lessor shall furnish to the
Leased Premises, as reasonably required, all utilities (including heat and air
conditioning from 8:00 a.m to 6:00 p.m. on Monday through Friday and 9:00 a.m.
to 1:00 p.m. on Saturday and all generally recognized business days, except New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day), and such other services as are customarily provided to tenants
occupying similar office buildings in the downtown Indianapolis area. Lessor
shall provide cleaning and janitorial service, including the supplying and
installing of paper towels, toilet tissue and soap in the restroom facilities.
Lessor shall not provide carpet cleaning services other than routine vacuuming.
Washing of windows will be at intervals reasonably established by the Lessor,
Lessor will replace all lamps, bulbs, starter and ballasts in the Leased
Premises and in the outdoor lighting fixtures using standard office lighting
supplies and equipment as required from time to time as a result of normal
usage.
Lessor will maintain the current landscaping and will remove rubbish and snow
from all parking, pedestrian and loading areas located on the Leased Premises.
Lessee shall have the right to request any other utilities or services in
addition to those set forth above or any of the above utilities or building
services in frequency, scope, quality or quantity substantially greater than
those which Lessor determines are normally required for general office uses, and
in such event Lessor shall use reasonable efforts to attempt to furnish the
Lessee with such additional utilities or services. The costs for these
additional utilities and services shall be passed through to Lessee as Operating
Expenses. Lessor shall have no liability to Lessee, including, without
limitation, liability for consequential damages arising out of, resulting from
or related to any such interruption of utility services or other services beyond
Lessor's reasonable control; however, the rent shall be abated in an equitable
amount based upon the portion of the Leased Premises that are untenantable or
which are not usable or used by Lessee for a period of three (3) business days
or more due to the interruption of any utilities or services.
Section 5.02 Lessor's Reserved Rights. Lessor reserves the right to
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suspend service of the heating, plumbing, electrical, air conditioning or other
mechanical systems when necessary by reason of governmental regulations, civil
commotion or riot, accident or emergency, or for repairs, alterations or
improvements which are in the reasonable judgment of Lessor desirable or
necessary, or for any other reasons beyond the power or control of Lessor
(including, without limitation, the unavailability of fuel or energy or
compliance by Lessor with any applicable laws, rules or regulations relating
thereto), without liability in damages therefor. The exercise of such right by
Lessor shall not constitute an actual or constructive eviction in whole or in
part, or
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entitle Lessee to any abatement or diminution of rent (except as otherwise
provided in this Lease), or relieve Lessee from any of Lessee's obligations
under this Lease, or impose any liability upon Lessor or its agents by reason of
inconvenience or annoyance to Lessee or injury to or interruption of Lessee's
business or otherwise. Lessor will use reasonable efforts to minimize disruption
to Lessee's business resulting from the suspension of utilities or other
services for purposes of making repairs, alterations or improvements.
Section 5.03 Repairs. Lessor shall at all times during the term keep the
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Leased Premises in good condition and repair, except for (i) improvements to the
Leased Premises made by Lessee after the date of this Lease ("Lessee
Improvements"), and (ii) damage caused by Lessee, its employees, licensees,
agents, contractors or invitees after the date of this Lease in excess of
ordinary wear and tear and not covered by Lessor's or Lessee's insurance. Lessee
shall, at Lessee's sole cost and expense, repair and maintain all Lessee
Improvements in good order, condition and repair, ordinary wear and tear
excepted, and shall be responsible to Lessor and reimburse Lessor for all
damages to the Leased Premises caused by Lessee, its employees, licensees,
agents, contractors or invitees in excess of ordinary wear and tear and not
covered by or in excess of the proceeds from Lessor's or Lessee's insurance.
ARTICLE 6
PERSONAL PROPERTY TAXES
Lessee shall be responsible for and shall pay for any and all personal
property or other taxes or assessments that may from time to time be assessed or
charged against the equipment, trade fixtures or other personal property
belonging to Lessee located on or used in connection with the Leased Premises.
ARTICLE 7
INSURANCE, INDEMNIFICATION AND WAIVER OF SUBROGATION
Section 7.01 Waiver, Indemnity and Insurance. With respect to the
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Lessee's obligations under this section of the Lease, it is understood and
agreed that the Lessee's obligations shall relate solely to occurrences and
events occurring on or after the date of this Lease.
(a) Lessor, its officers, members, agents and employees shall have no
liability to Lessee for any injury or damages to Lessee, its officers, agents,
employees, licensees, contractors or invitees or to any property of Lessee, or
such other third parties, regardless of the cause, excluding Lessor's negligence
or willful acts or omissions. Except as herein provided in this Lease, Lessee
hereby waives all claims for recovery from and releases Lessor, its officers,
members, agents and employees, from any loss or damage to the property of
Lessee. No such occurrence shall be deemed to be an actual or constructive
eviction from the Leased Premises.
(b) Lessor shall not be liable for damage to any person or property,
including consequential damages arising therefrom, due to any condition of the
Leased Premises caused
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by the Lessee or by reason of the occurrence of any accident in or about the
Leased Premises or due to any act or neglect of the Lessee, or any other
occupant of the Leased Premises or of any other person.
(c) Lessee shall indemnify and hold harmless Lessor, and its agents and
employees from and against any and all liability, damages, expenses, fees,
penalties, actions, causes of action, suits, costs, claims and judgments,
including reasonable attorneys' fees, arising from injury to any persons or
property in or about the Leased Premises from any cause whatsoever, other than
Lessor's negligence or willful acts or omissions.
(d) Lessee shall procure and maintain during the term commercial general
liability and property damage insurance, written by an insurance company
reasonably acceptable to Lessor, insuring Lessee against any and all losses,
claims, demands or actions or injury to or death of any one or more persons and
for damages to property arising from Lessee's use of and its conduct and
operation of its business on the Leased Premises with contractual liability
endorsements to a combined single limit of not less than One Million Dollars
($1,000,000). Lessor and any mortgagee of the Leased Premises identified by
Lessor to Lessee shall be named as additional insureds on Lessee's liability
insurance policies. If Lessee fails to procure such insurance, Lessor may, at
its option, procure the same for Lessee, and the cost thereof shall be paid to
Lessor by Lessee as Additional Rent as billed.
(e) Lessee shall procure and maintain during the term fire and extended
coverage insurance on the Leased Premises, written by an insurance company and
for such amounts as shall be reasonably acceptable to Lessor, insuring Lessee,
and with loss payee endorsements, Lessor and any mortgagees of Lessor identified
to Lessee against any loss or damage from fire, windstorm, tornado, hail, water
damage, lightning, vandalism, malicious mischief, earthquake and against loss or
damage by such further and additional risks as now are or hereafter may be
embraced by the standard "all risk forms" or endorsements. All proceeds from
such policies shall be payable to the Lessor. If Lessee fails to procure such
insurance, Lessor may, at its option, procure the same for Lessee, and the cost
thereof shall be paid to Lessor by Lessee as Additional Rent as billed.
(f) All such insurance policies shall contain a clause that the insurer
will give the Lessor thirty (30) days prior written notice of any cancellation,
termination or modification of such insurance. Lessee shall furnish the Lessor
with certificates of insurance for all such insurance coverage.
Section 7.02 Waiver of Subrogation. Anything in this Lease to the contrary
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notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all rights of recovery, claim, action or cause of action, against
each other, their members, agents, officers and employees, for any loss or
damage that may occur to the Leased Premises and the improvements to the Leased
Premises, or personal property (building contents) within the Leased Premises,
by reason of fire, the elements or any other cause which could be insured
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against under the terms of standard fire and extended coverage insurance
policies, with vandalism, malicious mischief and "all risk" endorsements,
regardless of cause or origin, including the negligence of Lessor or Lessee, and
their members, agents, officers and employees. Because this paragraph will
preclude the assignment of any claim mentioned in it by way of subrogation (or
otherwise) to an insurance company (or any other person), each party to this
Lease agrees immediately to give to each insurance company which has issued to
it policies of fire and extended coverage insurance, written notice of the terms
of the mutual waivers contained in this paragraph, and to have the insurance
policies properly endorsed, if necessary, to prevent the invalidation of the
insurance coverage by reason of the mutual waivers contained in this paragraph.
ARTICLE 8
USE OF LEASED PREMISES
Lessee shall use the Leased Premises solely for the purpose of general
office and storage use ancillary to the operation of a full service engineering
firm. Lessee shall not use the Leased Premises in any manner constituting a
violation of any ordinance, statute, regulation or order of any governmental
authority, including, but not limited, to zoning ordinances, building
construction standards, and health and environmental laws. Lessee covenants and
agrees that Lessee will use, maintain and occupy the Leased Premisses in a
careful, safe and proper manner, will not commit waste thereon. Lessee shall not
cause or permit any Hazardous Material to be brought upon, kept or used in or
about the Leased Premises by Lessee, its agents, employees, contractors or
invitees, without the prior written consent of the Lessor other than Hazardous
Material necessary to or useful in the operation of Lessee's business and if
such permitted Hazardous Materials are used, kept and stored in compliance with
all laws regulating Hazardous Materials. The term "Hazardous Material" means any
hazardous or toxic substance, material or waste which is or becomes regulated by
any local governmental authority, the State of Indiana or the United States
Government. If the Lessee breaches the obligations stated in this Article 8, or
if the presence of Hazardous Material on the Leased Premises caused or permitted
by the Lessee results in the contamination of the Leased Premises, or if
contamination of the Leased Premises by Hazardous Material otherwise occurs for
which the Lessee is legally liable to the Lessor for damage resulting therefrom,
then the Lessee shall indemnify, defend and hold the Lessor harmless from any
and all claims, judgments, damages, penalties, fines, costs, liabilities or
losses (including, without limitation, the diminution in value of the Leased
Premises, damages for the loss or restriction on use of rentable or useable
space or of any amenity of the Leased Premises, damages arising from any adverse
impact on marketing of the Leased Premises and sums paid in settlement of
claims, attorneys' fees, consulting fees and expert fees) which arise during or
after the term of this Lease as a result of such contamination. This
indemnification of the Lessor by the Lessee shall survive the termination of
this Lease and includes, without limitation, costs incurred in connection with
any investigation of site condition or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of the Hazardous Material present in the soil or
groundwater on or under the Leased Premises. Without limiting the foregoing, if
the
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presence of any Hazardous Material on the Leased Premises caused or permitted by
the Lessee results in any contamination of the Leased Premises, the Lessee shalt
promptly notify the Lessor and take all actions at its sole expense as are
necessary to return the Leased Premises to the condition existing prior to the
introduction of any such Hazardous Material to the Leased Premises or to
otherwise appropriately (as is reasonably determined by Lessor) remediate the
condition of the Leased Premises; provided, that Lessor's approval of such
action shall first be obtained, which approval shall not be unreasonably
withheld or delayed so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Leased Premises.
Notwithstanding anything to the contrary contained in this Article 8, Lessee
shall have no liability or other obligation to Lessor under Article 8 of this
Lease with respect to any act or omission of Lessee relating to Hazardous
Materials which occurred prior to the date of this Lease.
ARTICLE 9
ALTERATIONS
Lessee shall not make or permit any material alterations, installations or
additions to or upon any part of the Leased Premises without first obtaining the
Lessor's consent which consent shall not be unreasonably withheld or delayed.
All contractors, mechanics, suppliers and laborers used in the performance of
any such work for or on behalf of the Lessee shall be subject to the reasonable
prior written approval of the Lessor. All alterations to the Leased Premises
shall be made under no- lien contracts in compliance with I.C. (S) 32-8-3-1, as
presently written and as may be amended in the future, and in accordance with
all applicable laws. All improvements and alterations shall remain for the
benefit of the Lessor unless at the expiration of the Lease, Lessee can remove
such alterations, installations, and additions and restore the Leased Premises
to their original condition; provided, however, that the Lessee shall indemnify
and hold harmless the Lessor from all costs, loss or expense in connection with
any construction, repair, installation or alteration made by Lessee. Lessee
shall, at its sole cost and expense, be entitled to remove or relocate work
stations or partitions between work stations or to make any non-structural
alterations to the Leased Premises involving a cost of less than $10,000,
without Lessor's consent. Lessee shall contractually provide to the fullest
extent permitted by law and take any and all other action necessary to avoid the
filing and maintaining of any mechanic's, materialmen's or similar liens against
the Leased Premises or any action against the Lessor. Lessee shall in any case
remove within thirty (30) days of the date Lessee is notified of the filing, or
bond or otherwise provide adequate security for the removal of any such lien
resulting from work contracted for by Lessee that may be filed against the
Leased Premises or for the dismissal of any action filed against the Lessor. No
person shall be entitled to any lien directly or indirectly derived through or
under the Lessee or through or by virtue of any act or omission of the Lessee
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, on account of, any matter or thing whatsoever.
Nothing contained in this Lease shall be construed to constitute a consent by
the Lessor to the creation of any lien against the Leased Premises. Lessee
shall, at the termination of the Lease Term, remove all of
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Lessee's trade fixtures and equipment. The Lessee shall also repair any damage
to the Leased Premises resulting from such removal.
ARTICLE 10
LIENS
Lessee shall keep the Leased Premises free from any liens, including but
not limited to mechanics' liens, arising from any act or failure to act on the
part of Lessee. If Lessee fails to remove any such lien or to provide a bond or
other adequate security therefor within 30 days of the date Lessee is notified
of the filing of the lien, Lessor shall have the right, but not the obligation,
to pay the amount of such lien to cause its release, and such amount shall be
paid by Lessee to Lessor on demand with interest at twelve percent (12%) per
annum from the date the lien attached. All such amounts due by Lessee to Lessor
shall be considered Additional Rent hereunder. All liens and encumbrances
created or suffered by Lessee shall attach to Lessee's interest only.
ARTICLE 11
RIGHTS ON TERMINATION
Section 11.01 Surrender of Leased Premises. Upon the expiration or
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other termination of this Lease, Lessee shall peaceably surrender to Lessor the
Leased Premises, together with all improvements or additions upon or belonging
to the Leased Premises, by whomsoever made, except as provided below, in the
same condition as received or first installed, ordinary wear and tear,
condemnation, and damage by Casualty (as defined in Article 16) excepted. Upon
the termination of this Lease, Lessee shall, at Lessee's sole cost, remove all
counters, trade fixtures, signs, office furniture and equipment installed by
Lessee, unless otherwise agreed to in writing by Lessor. Any such property not
so removed shall be deemed abandoned by Lessee at the termination of this Lease,
and title to such property shall thereupon pass to Lessor. Any damage caused to
the Leased Premises by the removal of such property shall be promptly repaired
by Lessee to the satisfaction of Lessor. Lessee shall indemnify Lessor against
any loss or liability resulting from delay by Lessee in so surrendering the
Leased Premises, including, without limitation, any claims made by any
succeeding tenant arising by reason of such delay. The obligations of Lessee
under this article shall survive the expiration or other termination of this
Lease.
Section 11.02 Holding Over. If Lessee should remain in possession of the
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Leased Premises after expiration of the term of this Lease without execution by
Lessor and Lessee of a new lease, Lessee shall be deemed to be occupying the
Leased Premises as a tenant at sufferance subject to all of the covenants and
obligations of this Lease, and Lessee shall pay to Lessor at a daily rental of
one hundred twenty-five percent (125%) of the per diem rental rate provided
hereunder for the immediately prior period computed on the basis of a thirty
(30)-day month, together with all damages sustained by Lessor by reason of such
retention, and the acceptance by Lessor of rent after such termination shall not
constitute a renewal or extension and shall not be
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deemed to waive Lessor's right to re-entry or any other right hereunder or at
law. However, Lessor may elect, by giving written notice of such election to
Lessee, to deem the continuing occupancy of Lessee to constitute the creation of
a month-to-month tenancy at the monthly rental for the last period prior to the
date of such termination, which month-to-month tenancy shall continue until
either party shall have given the other party thirty (30) days prior written
notice of an intention to terminate such month-to-month tenancy. If the Lessee
surrenders one but not both of the buildings, commonly known as 000 X. Xxxxxxxx
Xxxxxx and 000 X. Xxxxxxxx Xxxxxx respectively, included in the Leased Premises,
Base Rent at the holdover rate shall be apportioned based upon the ratio of the
rentable square footage of the building that Lessee continues to occupy (either
99,416 or 14,868 as the case may be) to 114,284 square feet.
ARTICLE 12
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
Section 12.01 Subordination. This Lease, and the rights of Lessee
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hereunder, shall be subject and subordinate to any ground lease relating to the
Leased Premises and the lien or liens of any mortgage or mortgages, now in force
against the Leased Premises, and upon the execution a non-disturbance agreement
between the Lessee and any future mortgage holder or ground lessor, as to such
future mortgages or ground leases, and to all advances made or hereafter to be
made upon the security thereof, all without the necessity of having further
instruments executed on the part of Lessee to effectuate such subordination. If
requested by the lessor under any such ground lease or the holder of any such
mortgage or mortgages, Lessee shall execute and deliver to such holder an
instrument, in form and substance reasonably satisfactory to such lessor or
holder and to Lessee, specifically subordinating this Lease to the lien of such
ground lease, mortgage and mortgages. However, the holder of any such mortgage
shall have the right at any time to declare this Lease to be superior in
priority to the lien of said mortgage notwithstanding the dates of execution or
recording of such mortgage.
Section 12.02 Attornment. If by reason of any default on the part of
----------
Lessor as mortgagor under any mortgage or mortgages to which this Lease is
subordinate, any such mortgage is foreclosed by legal proceedings or
extinguished by conveyance in lieu of foreclosure or otherwise, Lessee, upon the
election of the holder of any such mortgage, but not otherwise, shall attorn to
and recognize such mortgage holder and its successors and assigns, including any
purchaser in foreclosure or grantee of a deed in leu thereof, as landlord under
this Lease. Lessee shall execute and deliver at any time, upon request of Lessor
or any holder of a mortgage to which this Lease is subordinate, an instrument to
evidence such attornment and containing the agreement of Lessee that no action
taken to enforce any such mortgage by reason of default thereunder shall
terminate this Lease or invalidate or constitute a breach of any of the terms
hereof. The attornment provisions of this article are entirely independent of
and not contingent upon the subordination provisions of this article. If several
requests by mortgagees having security interests with different priorities are
made of Lessee, Lessee shall attorn to the mortgagees in the order of their
priority.
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Section 12.03 Non-Disturbance. Notwithstanding anything to the contrary
---------------
contained in this Article 12, Lessee's subordination of this Lease to any
existing or future mortgage or ground lease or attornment to any mortgagee or
ground lessor shall be conditioned upon such mortgagee's or ground lessor's
entry into a non-disturbance agreement, in a form reasonably satisfactory to
Lessee, in which the mortgagee or ground lessor, as the case may be, covenants
and agrees not to disturb Lessee in its possession of the Leased Premises so
long as Lessee is not in default under the terms of this Lease beyond any
applicable notice and cure periods, and to assume and perform the obligations of
Lessor under the Lease from and after the date such mortgagee or ground lessor
takes possession of or title to the Leased Premises or any part thereof. In
addition, Lessor shall use all reasonable commercial efforts to obtain a non-
disturbance agreement in a form reasonably satisfactory to Lessee from the
existing mortgage holders and ground lessor within six (6) months following the
date of this Lease. If Lessor fails to obtain any such non-disturbance agreement
within the six month period, Lessee shall be entitled to terminate this Lease.
In connection with any future mortgage or ground lease, Lessee may condition its
consent to subordination of this Lease under Section 12.01 above on obtaining a
non-disturbance agreement from the mortgage holder or ground lessor in a form
reasonably acceptable to the Lessee.
ARTICLE 13
DEFAULT AND REMEDIES UPON DEFAULT
Section 13.01 Default. The occurrence of one or more of the following
-------
events constitutes a default ("Default") by the Lessee under this Lease:
(a) Failure to pay the Base Rent or any Additional Rent as herein
provided within ten (10) days of the date due and such failure
continues for five (5) days following notice from Lessor, it being
understood and agreed that Lessor shall not be required to give notice
to Lessee more than two (2) times in any calendar year;
(b) Failure to pay any other moneys or amounts of money as herein
provided within ten (10) days of the date of notice of demand
therefor;
(c) Failure by Lessee to observe or perform any of the covenants in
respect to assignment and subletting set forth herein;
(d) Failure by Lessee to cure forthwith, promptly after receipt of
notice from Lessor, any hazardous condition which Lessee has created
in violation of law or of this Lease;
(e) Failure by Lessee to observe or perform any other covenant,
agreement, condition or provision of this Lease to be observed or
performed by Lessee if such failure continues for thirty (30) days
after notice to Lessee by Lessor, unless
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the nonobservance or performance is of a nature that it cannot be
corrected in thirty (30) days and Lessee has commenced the cure or
observance or performance and is pursuing it with diligence, provided
in all events that such curative action is successfully concluded
within sixty (60) days after the initial written notice or demand from
Lessor;
(f) The levy upon under execution or the attachment by legal
process of the Leased Premises or the leasehold interest of Lessee, or
the filing or creation of a lien in respect of the Leased Premises or
such leasehold interest which Lessee does not discharge or bond over
in thirty (30) days;
(g) Lessee vacates or abandons the Leased Premises;
(h) Lessee becomes insolvent or admits in writing its inability to
pay its debts as they mature, or makes a general assignment for the
benefit of creditors, or applies for or consents in writing to the
appointment of a trustee or receiver for Lessee or for the major part
of its property;
(i) A trustee or receiver is appointed for Lessee or for the major
part of its property and is not discharged within thirty (30) days
after such appointment; or
(j) Any proceedings for reorganization, liquidation, dissolution
or relief under any bankruptcy law, or similar law for the relief of
debtors, are instituted by or against Lessee, and, if instituted
against Lessee, are consented to by it, or are not dismissed within
sixty (60) days after such institution.
Section 13.02 Remedies. Upon the occurrence of any Default, Lessor may:
--------
(a) terminate this Lease by notice thereof to Lessee, in which event
the term shall end, and all right, title and interest of Lessee
hereunder shall expire on the date stated in such notice;
(b) terminate the right of Lessee to possession of the Leased Premises
without terminating this Lease by giving notice to Lessee that Lessee's
right of possession shall end on the date stated in such notice,
whereupon the right of Lessee to possession of the Leased Premises or
any part thereof shall cease on the date stated in such notice; and
(c) force the provisions of this Lease and enforce and protect the
rights of Lessor hereunder by a suit or suits in equity or at law for
the specific performance of any covenant or agreement contained herein,
or for the enforcement of any other appropriate legal or equitable
remedy, including recovery of all moneys due or to become due from
Lessee under any of the provisions of this Lease.
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Section 13.03 Surrender. If Lessor exercises either of the remedies
---------
provided for in paragraphs (a) or (b) of Section 13.02 above, Lessee shall
surrender possession of and vacate the Leased Premises immediately and deliver
possession thereof to Lessor, and Lessor may then or at any time thereafter re-
enter and take complete and peaceful possession of the Leased Premises, with or
without process of law, and Lessor may remove all occupants and property
therefrom, using such force as may be necessary, without being deemed in any
manner guilty of trespass, eviction or forcible entry and detainer, and without
relinquishing Lessor's right to rental or any other right given to Lessor
hereunder or by operation of law.
Section 13.04 Termination of Possession. If Lessor terminates the right
-------------------------
of Lessee to possession of the Leased Premises without terminating this Lease
pursuant to paragraph (b) of Section 13.02, such termination of possession shall
not release Lessee, in whole or in part, from Lessee's obligation to pay the
rental hereunder for the full term, and the present value of the excess of the
aggregate amount of the Base Rent over the amount of rent Lessor reasonably
could receive by reletting the Leased Premises for the period from the date
stated in the notice terminating possession to the end of the term shall at once
mature and be immediately due and payable by Lessee to Lessor, together with any
and all other moneys due hereunder, and Lessor shall have the right to immediate
recovery of all such amounts. In addition, Lessor shall have the right, from
time to time, to recover from Lessee, and Lessee shall remain liable for, all
Additional Rent and any other sums thereafter accruing as they become due under
this Lease during the period from the date of such notice of termination of
possession to the stated end of the term. In any such case, Lessor may make
repairs, alterations and additions to the Leased Premises, change the locks to
the Leased Premises, and redecorate the Leased Premises to the extent deemed by
Lessor as necessary or desirable to relet the Leased Premises, and Lessee shall
upon demand pay to Lessor all costs and expenses thereof. In the event that
Lessor should relet the Leased Premises or some portion thereof during the
balance of the term, the proceeds of such reletting, after deduction of all
reasonable costs and expenses in connection with the repossession and reletting
of the Leased Premises (including, without limitation, all reasonable attorneys'
fees, leasing commissions, expenses of repairs, alterations and redecoration and
similar expenses), shall be applied to the payment of rentals and the
satisfaction of other obligations of Lessee hereunder.
Section 13.05 Termination of Lease. If this Lease is terminated by
--------------------
Lessor pursuant to paragraph (a) of Section 13.02, Lessor shall be entitled to
recover from Lessee all the fixed dollar amounts of rentals accrued and unpaid
for the period up to and including such termination date, as well as all other
additional sums payable by Lessee, or for which Lessee is liable or in respect
of which Lessee has agreed to indemnify Lessor under any of the provisions of
this Lease, which may be then owing and unpaid, and all reasonable costs and
expenses, including court costs and attorneys' fees incurred by Lessor in the
enforcement of its rights and remedies hereunder. In addition, Lessor shall be
entitled to recover as damages for loss of bargain and not as a penalty: (i) the
aggregate sum which at the time of such termination shall be equal to the
present value of the excess of the aggregate rentals for the remainder of the
term over the aggregate fair rental value of the Leased Premises for the balance
of the term, and (ii) any
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damages, including reasonable attorneys' fees and court costs, which Lessor
shall have sustained by reason of a breach of any of the covenants of this Lease
other than for the payment of rent.
Section 13.06 Property. All property removed from the Leased Premises by
--------
Lessor pursuant to any provisions of this Lease or of law may be handled,
removed or stored by Lessor at the cost and expense of Lessee, and Lessor shall
in no event be responsible for the value, preservation, or safekeeping thereof.
Lessee shall pay Lessor for all expenses incurred by Lessor in such removal and
storage charges against such property so long as it is in Lessor's possession or
under Lessor's control. All property not removed from the Leased Premises or
retaken from storage by Lessee within thirty (30) days after the end of the
Lease term, however terminated, may be sold with the proceeds thereof applied to
the rentals owed by Lessee.
Section 13.07 Suit on Installments. Lessor shall have the right at any
--------------------
time to file suit to recover any sums which have fallen due under this Lease
from time to time on one or more occasions without being obligated to wait until
the expiration of the term of this Lease, including, without limitation, past
due Base Rent or Additional Rent, interest, late payment charges, advances, and
attorneys' fees.
Section 13.08 No Waiver: Remedies Cumulative. The failure of Lessor to
------------------------------
exercise any remedy herein provided in the event of a Default shall not
constitute a waiver of such Default or any subsequent Default. The rights and
remedies of Lessor in this Lease are distinct, separate and cumulative remedies,
and shall not operate to exclude or deprive Lessor of any other right or remedy
provided by law or equity.
ARTICLE 14
LESSOR'S RESERVED RIGHTS
Lessor shall have the following rights, exercisable without notice and
without liability to Lessee for damage or injury to property, person or business
(all claims for damage being hereby released, except for damages or injury
resulting from Lessor's negligence or willful acts or omissions), and without
effecting an eviction or disturbance of Lessee's use or possession or giving
rise to any claim for off-sets or abatement of rent, except as otherwise
expressly provided in this Lease:
(a) To enter the Leased Premises to make inspections, repairs, alterations
or additions in or to the Leased Premises or to exhibit the Leased Premises
to prospective tenants, purchasers or others, at reasonable hours and upon
prior notice to Lessee and at any time without notice in the event of an
emergency, and to perform any acts related to the safety, protection,
preservation, reletting, sale or improvement of the Leased Premises;
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(b) To decorate, alter, repair or improve the Leased Premises at any time,
including the right of Lessor and its representatives to enter on and about
the Leased Premises with such materials as Lessor may deem necessary, erect
scaffolding and all other necessary structures on or about the Leased
Premises and close or temporarily suspend operations of entrances, doors,
corridors and other facilities, provided that in the exercise of its rights
under this paragraph, Lessor shall not unreasonably interfere with the
conduct of Lessee's business and shall provide Lessee with at least three
business days prior notice of such activities; and
(c) To do or permit to be done any work in or about the Leased Premises or
any adjacent or nearby building, land, street or alley; provided that such
work does not unreasonably interfere with the conduct of Lessee's business
or Lessee's access to the Leased Premises and Lessee is given at least
three days prior notice.
ARTICLE 15
EMINENT DOMAIN
If all or any substantial part of the buildings constituting the Leased
Premises shall be condemned by any public or quasi-public or other competent
authority, or conveyed or transferred in lieu of condemnation, this Lease shall
end on the date when the possession of the part so taken shall be required by
such authority, without apportionment of the award to or for the benefit of
Lessee. If any condemnation proceeding shall be instituted in which it is sought
to take or damage any part of the buildings, or if any part of the buildings is
conveyed or transferred in lieu of condemnation, and such partial taking makes
it necessary or desirable to remodel the buildings to conform to the taking,
either Lessor or Lessee may cancel this Lease upon not less than sixty (60)
days' prior written notice to the other party. If this Lease is terminated as
hereinabove provided, the rentals at the then current rate shall be apportioned
as of the date of termination. No money or other consideration shall be payable
by Lessor to Lessee for the right of termination of this Lease pursuant to this
article. All condemnation awards and other sums awarded shall be agreed upon by
Lessor and the condemning authority for the taking of the interest of Lessor and
Lessee, whether as damages or as compensation, and shall be the property of
Lessor, free of any claim of Lessee, except that Lessor shall not be entitled to
any award or compensation paid to Lessee for its moving expenses, business
interruption damages or for any personal property of Lessee that may be taken in
any such proceeding. If all or any portion of the Leased Premises which
constitutes a parking area shall be taken, then Lessor shall use all reasonable
efforts to make available to Lessee reasonably comparable replacement parking.
ARTICLE 16
FIRE AND OTHER CASUALTY
If the Leased Premises, including the buildings and improvements, are
substantially damaged by fire or other casualty, cause, condition or thing
whatsoever (the "Casualty"), and
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Lessor elects not to restore the Leased Premises, then Lessor may terminate this
Lease by notice to Lessee given within ninety (90) days after the date of such
Casualty (the "Casualty Date"). Such termination shall become effective as of
the Casualty Date if the Leased Premises are untenantable, or as of a date
ninety (90) days following the service of such notice of lease termination if
the Leased Premises are not untenantable. Unless the Lease is terminated as
hereinabove provided, Lessor shall restore all damaged portions of the Leased
Premises within 1 80 days following the Casualty Date unless the Lessee
exercises it right to terminate, provided below, except for Lessee Improvements,
which shall be restored by and at the expense of Lessee. If the Leased Premises
are made partially or wholly untenantable as a result of Casualty, and if Lessor
fails, within one hundred eighty (180) days after the Casualty Date, to
substantially restore the Leased Premises, either Lessor or Lessee may terminate
this Lease as of the end of said one hundred eighty (180) days by notice to the
other given not later than thirty (30) days after the expiration of said one
hundred eighty (180)-day period. In the event of termination of this Lease
pursuant to this article, rental at the then current rate shall be pro-rated on
a per diem basis and paid only to the effective date of such termination. If all
of the Leased Premises are untenantable but this Lease is not terminated, all
rent shall xxxxx from the Casualty Date until the Leased Premises are
substantially restored and reasonably accessible for occupancy by Lessee. If
part of the Leased Premises are untenantable, rent shall abated on a per diem
basis in proportion to the percentage of the building and other improvements of
the Leased Premises (excluding all parking, pedestrian or loading areas) which
are rendered unusable by Lessee until the damaged part is ready for Lessee's
occupancy. In all cases, due allowance shall be made for reasonable delay caused
by adjustment of insurance loss, strikes, labor difficulties or any cause beyond
Lessor's reasonable control. Lessor shall have no duty to repair, restore or
replace Lessee Improvements. If at any time during the term of this Lease 50% or
more of the rentable area of the Leased Premises is rendered untenantable by a
Casualty, or if, during the last twelve months of the term of this Lease, 10% or
more of the rentable area of the Leased Premises is rendered untenantable by
Casualty, Lessee shall have the right to terminate this Lease upon written
notice to Lessor given within thirty (30) days following the Casualty Date.
ARTICLE 17
LESSOR'S LIABILITY
The Lessee shall be responsible for and liable to the Lessor for any and
all damage to the Leased Premises, any person or other property on the Leased
Premises and for any act done thereon by the Lessee, its employees, agents or
any other person coming on the Leased Premises by the invitation or license of
the Lessee, expressed or implied, and Lessee shall fully indemnify and save
Lessor harmless from any or all liability to any person for all such damage and
from any other damage to any person or property resulting from use of the Leased
Premises. Lessee's liability, if any to Lessor under this Article 17 shall
extend only to actions and events which occur from and after the date of this
Lease The term "Lessor" as used in this Lease, as far as covenants or agreements
on the part of Lessor are concerned, shall be limited to mean and include only
the owner or owners of Lessor's interest in this Lease at the time in question,
and in the event of any transfer or transfers of such interest (except a
transfer by way of security),
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Lessor herein named (and in the case of any subsequent transfer, the then
transferor) shall be automatically freed and relieved from and after the date of
such transfer of all liability as respects the performance of any covenants or
agreements on the part of Lessor contained in this Lease to be performed after
such transfer. Any funds in which Lessee has an interest and which are in the
hands of Lessor or the then transferor at the time of such transfer shall be
turned over to the transferee, and any amount then due and payable to Lessee by
Lessor or the then transferor under any provisions of this Lease shall be paid
to Lessee. Upon any such transfer, provided the transferee shall have assumed,
in writing, the obligations of Lessor under this Lease, subject to the
limitations of this Section, all the covenants, agreements and conditions in
this Lease contained to be performed on the part of Lessor, it being intended
hereby that the covenants and agreements contained in this Lease on the part of
Lessor shall, subject as aforesaid, be binding on Lessor, its successors and
assigns, only during and in respect of their respective successive periods of
ownership. In any event and notwithstanding any other provisions of this Lease,
no officer, director, agent, partner, beneficiary, trustee or employee of Lessor
or of any subsequent owner of the Leased Premises shall be responsible or liable
in his individual or personal capacity for the performance or nonperformance of
any agreement, covenant or obligation of Lessor contained in this Lease.
ARTICLE 18
NOTICE
Any notice required or permitted to be given or served by either party to
this Lease shall be in writing and shall be served personally or sent by
certified or registered mail, return receipt requested, first class postage
prepaid, or by courier, telecopy or facsimile and addressed to the intended
recipient as follows:
LESSOR: MSE REALTY, LLC
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy: XXXXX XXXXXXXX XXXX & XXXXXXX
1000 Capital Center South
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
LESSEE: MSE CORPORATION
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: ___________________________
Telecopy: (000) 000-0000
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with a copy to: ANALYTICAL SURVEYS, INC.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with another copy to: XXXXXXX & XXXXXX L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
All rental payments and other sums due Lessor hereunder shall be made to
the Lessor at the above address. The addresses may be changed from time to time
by either party by serving notice as above provided. Any such notice shall be
deemed to have been given as of the earlier of (i) the date of the actual
receipt of such notice, or (ii) the third business day following the date on
which the piece of mail containing such notices posted if sent by certified or
registered United States mail.
ARTICLE 19
MISCELLANEOUS PROVISIONS
Section 19.01 Assignment and Subletting. Lessee shall not assign this
-------------------------
Lease or sublet the Leased Premises in whole or in part without the prior
written consent of Lessor which consent shall not be unreasonably withheld or
delayed. Notwithstanding any of the foregoing, Lessee shall be permitted,
without Lessor's consent, to assign or sublet any or all of the Leased Premises
to any entity which directly or indirectly controls, is controlled by or is
under common control with, Lessee, or in connection with a sale of all or
substantially all of Lessee's assets. In addition, no assignment of this Lease
shall be binding upon Lessor unless the assignee shall have executed and
delivered to Lessor a written assumption of Lessee's obligations under this
Lease. In the event of any assignment of this Lease or any subletting of the
Leased Premises, whether with or without the consent of Lessor, Lessee shall
remain fully liable for the performance all of the covenants, conditions and
provisions in this Lease, including, without limitation, the payment of Base
Rent and Additional Rent as provided herein.
Section 19.02 Quiet Environment. Lessor agrees and covenants that if the
-----------------
Lessee shall perform all of the covenants and agreements herein provided to be
performed on the Lessee's part, the Lessee shall, at all times during the term,
have the peaceful and quiet enjoyment of possession of the Leased Premises
without any manner of hindrance from the Lessor or any persons or entities
lawfully claiming under the Lessor
Section 19.03 Lessee Certificates. From time to time upon not less than
-------------------
fifteen (15) days' prior request by Lessor, Lessee shall execute and deliver to
Lessor, or any mortgagee or
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prospective mortgagee of Lessor's interest in the Leased Premises, or any
purchaser or prospective purchaser of Lessor's interest in the Leased Premises,
a statement in writing certifying: (i) that this Lease is unmodified and in full
force and effect (or if there have been any modifications that the Lease as
modified is in full force and effect); (ii) the dates to which the rental and
other charges have been paid, (iii) the date of commencement and expiration of
the Lease term; (iv) that, to the knowledge of Lessee, Lessor is not in default
under any provision of this Lease, or, if in default, the nature thereof in
detail; and (v) such other matters as Lessor may reasonably request. Lessor
agrees to provide a similar estoppel certificate to Lessee within 15 days
following Lessee's request therefor.
Section 19.04 Waiver by Lessor. No covenant, condition or provision of
----------------
this Lease shall be deemed to have been waived by Lessor unless executed in
writing by Lessor. No waiver by Lessor of any covenant, condition or provision
of this Lease shall be deemed, or shall constitute, a waiver of such covenant,
condition or provision in the future, or a waiver of any subsequent breach of
such covenant, condition or provision, or a waiver of any other covenants,
conditions or provisions of this Lease, whether or not similar. The subsequent
acceptance or payment of rent or other performance hereunder by Lessor shall not
be deemed to be a waiver of any preceding breach by Lessee of any covenant,
condition or provision of this Lease, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance or payment of such rental or other
performance, unless Lessor shall expressly so state in writing.
Section 19.05 Air and Light. This Lease does not grant or guarantee
-------------
Lessee a continuance of light and air over any property adjoining the Leased
Premises.
Section 19.06 No Option. The submission of this Lease for examination or
---------
signature by Lessee does not constitute a reservation of or option for the
Leased Premises. This instrument shall become effective as a Lease only upon
execution and delivery by both Lessor and Lessee.
Section 19.07 Right to Cure Lessee Breaches. If Lessee shall fail to
-----------------------------
perform any of Lessee's covenants or obligations under this Lease, and such
failure shall continue after the expiration of any cure period or grace period
provided in this Lease with respect to such covenants or obligations, Lessor
shall have the right, but not the obligation, to perform such covenants or
obligations for the account and at the expense of Lessee, without notice to
Lessee. All monies spent and costs and expenses incurred by Lessor in performing
such covenants or obligations shall become Additional Rent hereunder and shall
be due and payable by Lessee on demand by Lessor and shall bear interest at the
rate of twelve percent (12%) per annum from the date due until paid in full.
Section 19.08 Expenses of Enforcement. Lessee shall pay or reimburse Lessor
-----------------------
for all costs and expenses, including court costs and reasonable attorneys'
fees, incurred by Lessor in enforcing, or attempting to enforce, any of its
rights and remedies under this Lease, whether or not litigation is commenced to
enforce such rights or remedies, including, without limitation, any negotiations
or transactions relating to, or arising out of, this Lease in which Lessor
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becomes involved or concerned. All such costs and expenses incurred by Lessor,
together with interest at the rate of twelve percent (12%) per annum, shall
become Additional Rent due hereunder and shall be due and payable by Lessee on
demand by Lessor. In the event that either party defaults in the performance or
observance of any of the terms and conditions, covenants or obligations
contained in this Lease after the expiration of all applicable notice and cure
periods, and the other party employs attorneys to enforce all or any part of
this Lease, (or in the case of the Lessor) to collect any rent due or to recover
possession of the Leased Premises, the prevailing party agrees to reimburse the
other party for the reasonable attorneys' fees incurred thereby, whether or not
suit is filed.
Section 19.09 Memorandum of Lease. At the request of either party, the
-------------------
parties shall execute and record a memorandum of this Lease.
Section 19.10 Severability. If any provision of this Lease is held to
------------
be unenforceable, invalid or void, such provision shall be deemed to be
severable from the remaining provisions of this Lease, and such holding shall in
no way impair or affect the validly or enforceability of the remaining
provisions of this Lease, which shall then be construed as if such invalid or
unenforceable provision were omitted.
Section 19.11 Successors and Assigns. Except as herein limited, this
----------------------
Lease shall be binding upon, and inure to the benefit of, the parties hereto and
their respective heirs, personal or legal representatives, successors and
assigns.
Section 19.12 Entire Lease. This Lease, together with any and all
------------
exhibits and schedules attached hereto, constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
parties, written or oral.
Section 19.13 Amendments. No supplement, modification or amendment of
----------
any provision of this Lease shall be binding unless executed in writing by all
of the parties to this Lease.
Section 19.14 Controlling Law. This Lease and the rights and obligations
---------------
of the parties hereto shall be construed in accordance with the laws of the
State of Indiana, without giving effect to the choice of law provisions thereof.
All parties to this Lease hereby agree that any legal action against them in
connection with this Lease, or any transaction contemplated by this Lease, may
be commenced against them in any state or federal court of competent
jurisdiction located in Xxxxxx County, Indiana.
Section 19.15 Mediation. Notwithstanding Section 19.14 above, if a
---------
dispute arises under or in connection with this Lease, including, without
limitation, those involving claims for specific performance or other equitable
relief, notice must be given pursuant to the Article 18. After such notice has
been given by one party to the other, the parties in good faith will attempt
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to negotiate or mediate a resolution of the dispute with the aid of a mediator
who has been mutually agreed upon by the parties.
Section 19.16 Arbitration. If such efforts provided for in Section
-----------
19.15 do not within 30 days resolve the dispute, upon demand of any party,
whether made before or after the institution of any judicial proceeding, the
dispute will be resolved by binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration under this Lease, provided that arbitration is commenced within 70
days after such judicial proceedings are commenced. The American Arbitration
Association will choose one arbitrator to hear the parties and settle any
dispute. All arbitration hearings will be conducted in Kansas City, Missouri.
All applicable statutes of limitation will apply to any dispute. The arbitrator
will have no power to award punitive or exemplary damages, to ignore or vary the
terms of this Lease, and will be bound to apply controlling law. The Lessor and
the Lessee each will pay for one-half of the arbitrator's fees and expenses and
each such party will bear its own costs and expenses incurred in connection with
the arbitration, except that the arbitrator will award either party
reimbursement of its share of the costs and expenses of arbitration, such
party's costs and expenses (including attorneys' fees and expenses), and any
special or extraordinary fees or costs incurred in connection with any such
arbitration or dispute, if the other party commences or conducts the arbitration
in bad faith. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything to the contrary contained in this Section
19.16, the parties preserve, without diminution, certain remedies that any of
them may employ or exercise freely, either alone, in conjunction with, or during
a dispute. The parties to this Lease have the right to proceed in any court of
proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights of self-help including peaceful
occupation of the Leased Premises and collection of rents, set off and peaceful
possession of personal property; and (ii) obtaining provisional or ancillary
remedies including injunctive relief, requestration, garnishment, attachment,
appointment of a receiver and filing an involuntary bankruptcy proceeding.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a dispute. It is
further understood and agreed that notwithstanding these provisions requiring
arbitration and mediation, the Lessor shall retain the right to obtain
preliminary injunctive relief or other temporary relief from any court of
competent jurisdiction in the case of an emergency or in other circumstances
where the rights and interests of the Lessor in the Leased Premises would be
unreasonably and materially adversely affected by such mediation and/or
arbitration procedures, pending resolution of the merits of the dispute by
arbitration.
Section 19.17 Construction. The headings of Articles, Sections and
------------
paragraphs in this Lease are for descriptive purposes only and shall not
control, alter or otherwise affect the meaning, scope or intent of any
provisions of this Lease. Except as expressly provided otherwise in this Lease,
any reference to an Article or Section shall mean and refer to an Article or
Section of this Lease. Except where the context of their use clearly requires a
different interpretation, singular terms shall include the plural, and masculine
terms shall include the feminine or neuter,
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and vice versa, to the extent necessary to give the defined terms or other terms
used in this Lease their proper meanings. The locative adverbs, "herein,"
"hereof," "hereunder," "hereto," "hereinafter," "hereinbefore," and similar
words, wherever they appear in this Lease, shall mean and refer to this Lease in
its entirety and not to any specific Article, Section or paragraph of this
Lease, unless the context of their use clearly requires a different
interpretation.
Section 19.18 Incorporation by Reference. All Exhibits identified
--------------------------
herein, and any amendments, riders and addenda attached hereto and signed by
both Lessor and Lessee, are hereby incorporated herein by this reference and
made a part hereof.
Section 19.19 Counterparts. This Lease may be executed concurrently in
------------
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Lease, or
multiple counterparts thereof, each of which is deemed an original, as of the
date first written above.
"LESSOR" MSE REALTY, LLC
By: ________________________________
Xxx X. Xxxxxx Printed Signature
___________________________________
Printed Signature
Title Member
----------------------------
"LESSEE" MSE CORPORATION "LESSEE"
By: _______________________________
Xxxxxx X. Xxxxxx
___________________________________
Printed Signature Title
Chairman/Chief Executive Officer
--------------------------------
GUARANTY
The undersigned, Analytical Surveys, Inc., a Colorado corporation,
unconditionally, irrevocably and absolutely guarantees to Lessor the prompt
payment and performance when due and at all times thereafter (and not merely the
ultimate collectibility) of all existing and future agreements, obligations,
liabilities and indebtedness of Lessee under and with respect to this Lease,
including without limitation, the prompt payment when due of all Base Rent,
Additional
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Rent and other sums due under this Lease. The undersigned also agrees to pay all
costs and expenses, including without limitation, court costs and reasonable
attorneys' fees, incurred by Lessor in connection with the enforcement or
attempted enforcement of this Lease (including this Guaranty), whether in or out
of court (including bankruptcy court).
The undersigned agrees that, without affecting or impairing its liability
and obligations under this Guaranty, the Lease can be amended and Lessor can
agree to extend, modify, waive and otherwise change the time and terms of
payment and performance of this Lease, without notice to or consent of the
undersigned. The undersigned also waives, to the fullest extent permitted by
law, all defenses that might otherwise be available to the undersigned to limit
the undersigned's liability under this Guaranty relating to the discharge of a
surety.
Regardless of whether the undersigned has notice thereof or has consented
thereto, the validity and enforceability of this Guaranty shall not be impaired
or affected by any act or omission of Lessor that might otherwise constitute a
discharge of the obligations of the undersigned under this Guaranty, including
without limitation, (i) any failure or omission to enforce any right, power or
remedy, (ii) any waiver of any right, power or remedy against Lessee or of any
default by Lessee, and (iii) any release, surrender, compromise, settlement,
subordination or modification in favor of Lessee, with or without consideration.
Without limiting the generality of the foregoing, the undersigned will not
assert, plead or enforce against Lessor any defense of waiver, release,
discharge in bankruptcy, anti-deficiency statute, incapacity, usury, ultra
xxxxx, or lack of authorization that may be available to Lessee or any other
obligor with respect to the Lease.
The undersigned will not exercise or enforce, and hereby waives, any right
of contribution, reimbursement, recourse or subrogation available to the
undersigned against Lessee or any other person liable for all or any part of
Lessee's Lease obligations, or as to any security therefor, unless and until all
agreements, obligations, liabilities and indebtedness under and with respect to
the Lease have been fully paid and performed without possibility of
disgorgement, return or rescission.
If any payment applied by Lessor to the Lease is set aside, recovered,
rescinded or required to be returned for any reason (including, without
limitation, the 27 bankruptcy, reorganization or insolvency of Lessee), the
Lease obligation to which the payment was applied shall for the purposes of this
Guaranty be deemed to have continued in existence, notwithstanding the
application, and this Guaranty shall be enforceable with respect to such Lease
obligation as fully as if Lessor had not made the application. This Guaranty is
a continuing guaranty, is binding upon the undersigned and its successors and
assigns, and will inure to the benefit of Lessor and its successors and assigns.
This Guaranty is governed exclusively by Indiana law, without regard to conflict
of laws principles. All claims under this Guaranty will be resolved by
arbitration in a manner consistent with Section 19.16 of the Lease.
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Date: July ___, 1997 ANALYTICAL SURVEYS, INC.,
a Colorado corporation
By: __________________________________
Xxxxxx X. Xxxxxx
______________________________________
Printed Signature
Title Chairman/Chief Executive Officer
---------------------------------
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TRACT I
-------
LAND DESCRIPTION
----------------
941 BUILDING
------------
Lots 1, 2, 3,4, and 5 in Xxxxxx X. Xxxxx'x Subdivision of Lots 26, 27, and
28 of the Xxxxxx X. Xxxxx'x Subdivision of a part of Outlot 172 of the Donation
Lands of the City of Indianapolis, the plat of which is recorded in Plat Book 1
page 309, in the Office of the Recorder of Xxxxxx County, Indiana, together with
the West Half of the first alley East of Meridian Street from Sahm Street to St.
Xxxxxx Street vacated by Declaratory Resolution 17579, recorded January 7, 1958
in Deed Record 1690, Instrument No.1179, in the Office of the Recorder of Xxxxxx
County, Indiana. Except 5 feet off the West side taken for the widening of
Meridian Street.
ALSO; Lots 29, 30 and 31 in Xxxxxx X. Xxxxx'x Subdivision of the North part
of Outlot 172 of the Donation Lands of the City of Indianapolis, the plat of
which is recorded in Plat Book 1, pages 79 and 80, in the Office of the Recorder
of Xxxxxx County, Indiana. Except 5 feet off the west side, taken for the
widening of Meridian Street. Also, excepting that portion conveyed to the City
of Indianapolis for public right of way, dated July 15,1985 and recorded August
26, 1985, as Instrument No.85-72273.
ALSO: Xxxx 0, 0, xxx 0 xx Xxxxxx X. Xxxxx'x Subdivision of Lots 26, 27, and
28 of J. R.Xxxxx'x Subdivision of Outlot 172 in the City of Indianapolis, Xxxxxx
County, Indiana, the plat of which is recorded in Plat Book 1, page 309, in the
Office of the Recorder of Xxxxxx County, Indiana, together with the East Half of
the first alley East of Meridian Street from Sahm Street to St. Xxxxxx Street,
vacated by Declaratory Resolution 17579, recorded January 7,1958 in Deed Record
1690, Instrument No.1179, in the Office of the Recorder of Xxxxxx County,
Indiana.
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TRACT II
--------
LAND DESCRIPTION
----------------
XXXXXXXX
--------
Part of Outlot 171 of the Donation Lands of the City of Indianapolis as per
plat thereof recorded in Plat Book 1 page 97, in the Office of the Recorder of
Xxxxxx County, Indiana, more particularly described as follows:
Lot 4, and 22 feet 6 inches by parallel lines off the entire North side of
Xxx 0 xx Xxxxxx X. Xxxxx'x Xxxxxxxxxxx xx Xxxxxx 000, of the Donation Lands of
the City of Indianapolis, as per plat thereof recorded in Plat Book 1, page 97,
in the Office of the Recorder of Xxxxxx County, Indiana.
Also, the strip of land 2.7 feet in width, North of and adjoining Lot 4
herein being part of St. Xxxxxx Street, vacated, as described in Declaratory
Resolution No. 17025, and recorded in Deed Record 1488, page 447, in the Office
of the Recorder of Xxxxxx County, Indiana.
Except 5 feet taken off the entire East side of the above realty for
widening of Meridian Street. Subject to highways, rights-of-way, and easements.
LAND DESCRIPTION
----------------
930 BUILDING
------------
Xxx 0 xxx 00 xxxx xxx xxx Xxxxx xxxx of Lot 5 in Xxxxxx X. Xxxxx'x
Subdivision of Outlot 171 of the Donation Lands of the City of Indianapolis, the
plat of said Xxxxx'x Subdivision is recorded in Plat Book 1, page 97, in the
Office of the Recorder of Xxxxxx County, Indiana. Except 5 feet off the East
side taken for the widening of Meridian Street.
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