EXHIBIT 10.37
429 PENNSYLVANIA BUILDING OFFICE LEASE
--------------------------------------
THIS INDENTURE ("Lease") WITNESSETH that 429 Penn Partners, an
Indiana partnership (hereinafter referred to as "Landlord"), in
consideration of the rent herein reserved and the covenants to be
performed by Unified Holdings, Inc., An Delaware Corporation
(hereinafter referred to as "Tenant"), does hereby grant, demise, and
lease to Tenant the following described premises upon the terms and
conditions hereinafter set out:
ARTICLE I
PREMISES
Section 1.1 Initial Premises. Landlord hereby leases to Tenant
----------------------------
and Tenant hereby leases from Landlord, a portion of the First floor,
consisting of approximately 9,959 rentable square feet of space,
(hereinafter referred to as "Premises") of the building situated at 000
X. Xxxxxxxxxxxx, Xxxxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000, (the entire
building with its appurtenances is hereinafter referred to as the "Real
Estate"). The Premises are shown and designated on the attached Exhibit
A which is incorporated herein by reference. Tenant will also retain
approximately 861 rentable square feet of space located on the 3rd floor
of the "Real Estate" and designated on the attached floor plan as shown
on Exhibit B which is incorporated herein by reference.
Section 1.2 Storage Space. Provided that Tenant is not in default
-------------------------
hereunder, Landlord hereby grants to Tenant the right to approximately
1,500 rentable square feet located in the Lower Level of the "Real
Estate" and designated on the attached floor plan as shown on Exhibit C
which is incorporated herein by reference.
ARTICLE II
TERM
Section 2.1 Term. The term of this Lease (hereinafter referred to
----------------
as "term" or "Term") shall be as herein provided, for a period of one
hundred (120) months, commencing on January 1, 1998 and ending on
December 31, 2007. In the event Landlord is unable to deliver
possession of the Premises at the commencement of the term, Landlord
shall not be liable for any damage thereby nor shall this Lease be void
or voidable, but Tenant shall not be liable for any rent until either
(i) the day any of Tenant's personnel first occupy a part of the
Premises for carrying on the normal functions of Tenant's business in
the Premises, or (ii) the 30th day following the giving by Landlord to
Tenant of written notice stating that the Premises are ready for
occupancy by Tenant -- whichever event occurs first.
ARTICLE III
OCCUPANCY AND USE
Section 3.1 Use and Occupancy. Tenant shall use and occupy the
-----------------------------
Premises for general office use and for no other purposes except with
the prior written consent of the Landlord. Tenant shall be allowed the
non-exclusive use of the common tenant areas including, without
limitation, lobby, hallways, entryways, restrooms, stairways, elevators
(including freight elevators), corridors and sidewalks of the Real
Estate owned by Landlord (hereinafter referred to as "Common Areas") in
conjunction with and so as not to interfere with the other tenants in
the building. Tenant shall use the Premises for no unlawful purpose or
act; shall commit or permit no waste or damage to the Premises or common
areas; shall comply with and obey all laws, regulations, or orders of
any governmental authority or agency, directions of the Landlord,
including building rules and regulations as changed or modified from
time to time by Landlord on reasonable notice to Tenant, all of which
are and will be a part of this Lease; shall not do or
1
permit anything to be done in or about the Premises which will in any
way obstruct or interfere with the rights of other Tenants or occupants
of the building or injure or annoy them; and shall not do or permit
anything to be done which will increase the rate of fire insurance upon
the building. Landlord shall not be responsible to Tenant for the non-
performance by any other Tenant or occupant of the Real Estate of any of
the rules and regulations, but agrees to take reasonable measures to
assure such other Tenant's performance.
Section 3.2 Condition of Premises. Landlord shall make, at its
---------------------------------
sole expense, the following improvements to the "Premises" as designated
on the attached Exhibit D "Workletter", which is incorporated herein by
reference.
ARTICLE IV
RENT
Section 4.1 Base Rent. Tenant shall pay the following amounts as
Base Rent for said Premises without relief from valuation and
appraisement laws and without offset or deduction:
First Floor Space
-----------------
Number of Monthly
Period Months Installments
------ --------- ------------
1/1/98-12/31/03 72 $14,523.55
1/1/04-12/31/07 48 $15,353.47
Storage Space
Lower Level
-------------
1/198-12/31/07 120 $313.00
Third Floor Space
-----------------
1/l/98-12/31/98 12 $1,165.94
The above monthly installments are due, without notice or demand, in
advance on or before the first day of each calendar month of the Term at
000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
or such other place as Landlord may from time to time designate in
writing. In the event the obligation to pay rental or any sum hereunder
commences on a day other than the first day of any calendar month,
Tenant shall pay the pro-rata share of rent or other sum due for the
unexpired portion of the month in addition to and concurrently with
payment of the rental or other sum due for the first full month
following such partial month.
Section 4.2 Additional Rent. Commencing January 1, 1998 and
---------------------------
continuing for the balance of the Term, in addition to the Base Rent set
out in Section 4.1, the Tenant agrees to pay its proportionate share, as
defined below, of any annual increase in total actual Operating Costs
for the Real Estate over the Landlord's Share of Operating Costs,
without relief from valuation and appraisement laws and without offset
or deduction.
a) Operating Costs - shall mean the annual aggregate of those
expenses incurred by the Landlord during a particular calendar
year in connection with the operation, maintenance, and repair of
the
2
Real Estate in accordance with sound management and accounting
principles and practices generally accepted with respect to the
operation, maintenance, and repair of first-class office
buildings, which expenses shall include (i) Uncontrollable Costs,
i.e., real estate taxes, insurance premiums and utility charges,
and (ii) Controllable Costs, including but not limited to repair
and maintenance costs, security costs, janitorial costs, legal and
accounting costs, management fees and capital improvements
required by new governmental laws or regulations, but excluding
expenditures for other capital improvements for rebuilding of
office space for other tenants. Operating Costs shall not include
the costs of the Additional services provided by Landlord to
Tenant (if any) under Section 5.1 (a) hereof, which costs shall be
deducted from the annual aggregate of Operating costs for purposes
of computing the Tenants proportionate share of Operating Costs
under subsection (c) below.
b) Landlord's Share of Operating Costs - Shall be an amount equal to
$4.75 time the rentable square feet in the Premises.
c) Tenant's Proportionate Share of Operating Costs - Shall be the
amount (if any) by which the product of Operating Costs during a
particular calendar year times (10.84), (the current ratio of the
rentable square feet in the Premises to the rentable square feet
in the Real Estate) exceeds the Landlord's Share of Operating
costs. Landlord represents that the rentable square feet in the
Real Estate is 102,200 as of the date of this Lease.
d) Payment of Tenant's Proportionate Share of Operating Costs - The
amount of Tenant's proportionate share of Operating Costs for each
calendar year (herein referred to as the "Annual Rental
Adjustment") shall be estimated annually by Landlord, and written
notice thereof (including documentation supporting such estimates)
shall be given to Tenant at least thirty (30) days prior to the
beginning of each month, at the same time the Base Rent
installment is due, an amount equal to one-twelfth (1/12) of the
estimated Annual Rental Adjustment.
e) Increases in Estimated Annual Rental Adjustment - If real estate
taxes, utility charges, or janitorial costs increase during a
calendar year, Landlord may, only once per year, increase the
estimated Annual Rental Adjustment during such year by giving
Tenant written notice to that effect, and thereafter Tenant shall
pay to Landlord, in each of the remaining months of such year, an
amount equal to the amount of such increase in the estimated
Annual Rental Adjustment divided by the number of months remaining
in such year.
f) Provisions Concerning Actual Rental Adjustment - Within ninety
(90) days after the end of each calendar year, Landlord shall
prepare and deliver to Tenant a statement showing Tenants actual
Annual Rental Adjustment. Within thirty (30) days after receipt
of the aforementioned statement, Tenant shall pay to Landlord, or
Landlord shall credit (refunded if at the end of the Term) against
the next rent Tenant's actual Annual Rental Adjustment for the
preceding calendar year and the last day of a calendar year, then
Tenant shall pay a daily pro-rata proportionate share of such
Operating Costs for said partial calendar year.
g) Tenant Verification - During the thirty (30) day period following
the delivery of Landlord's statement of the Tenant's actual Annual
Rental Adjustment, Tenant audit, at reasonable times and in a
reasonable manner, such of Landlord's books of account and records
as pertain to and contain information concerning Operating Costs
in order to verify the amounts thereof. If any such audit shall
disclose an inaccuracy in Landlord's statement of actual
adjustment less than three percent (3%) of such adjustments,
prompt payment of a deficiency by Tenant or refund of an
overpayment by Landlord, as appropriate, shall be made, and if any
such audit, shall disclose any such inaccuracy which exceeds three
percent (3%) of such acceptable independent certified
3
public accountant to verify the inaccuracy or resolve any other
issue arising from such audit, whose opinion on such matters shall
be binding on both parties whose fees shall be paid by the party
which is responsible for any such inaccuracy.
Section 4.3 Delinquency Charges and Interest. If any portion of
--------------------------------------------
the Base Rent, the Annual Rental Adjustment, or any other charges to
Tenant are not paid within ten (10) days of date due, a delinquency
service charge equal to five percent (5%) of the total delinquent amount
will be added as Additional Rent and paid by Tenant upon demand by
Landlord. All amounts past due for more than thirty (30) days will bear
interest from due date thereof to the date of payment at the rate of
eighteen percent (18%) per year until paid. All such interest shall be
deemed payable by Tenant as Additional Rent.
ARTICLE V
SERVICES, ALTERATIONS AND REPAIRS
Section 5.1 Services. Provided that Tenant shall not be in
--------------------
default hereunder and subject to the provisions elsewhere contained in
this Lease, Landlord will furnish the following services:
a) Heating, ventilation, and air-conditioning between the hours of
8:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 1:00
p.m. on Saturday of each week except on all generally recognized
holidays. Landlord will also furnish, or cause to be furnished,
to Tenant such services ("Additional Services") at such other
times specified by Tenant, and Tenant agrees to pay the cost
thereof (as determined by Landlord) as Additional Rent at the same
time Base Rent and other Additional Rent is due. However, if
Landlord decides in its sole discretion that such services should
be provided by way of a separate power meter for the Premises,
Tenant agrees to pay the cost of such services directly to the
involved utility and the Base Rental and Additional Rental amounts
shall be adjusted to delete any charges for such services.
b) Electrical current (an annual rate of four (4) xxxxx per square
foot in the Premises) sufficient for the operation of standard
lighting, typewriters, calculators, small office copying machines,
personal computers, and other machines of similar low electrical
consumption, but not including electrical current for data
processing equipment or any other item of electrical equipment
which singly consumes more than five hundred (500) xxxxx per hour
at rated capacity or requires a voltage other than one hundred
twenty (120) volts single phase, and provided that if the
installation of any of Tenant's equipment, or any special
electrical equipment installed by Landlord to service Tenant's
equipment, requires any modifications to the Real Estate's
electrical system or any additional air conditioning or
ventilating capacity above that provided by the Real Estate's
standard systems, then the electrical modifications and/or
additional air conditioning and/or ventilating equipment shall be
provided by Tenant and the installation and operating costs of
such additional modifications and/or equipment will be the
obligation of the Tenant;
c) Water at those points of supply provided for the general use of
Tenants;
d) Automatic elevator service;
e) Cleaning and janitorial services on Monday through Friday of each
week, excluding generally recognized holidays, to provide standard
cleaning only;
f) Washing Tenant's exterior windows at reasonable intervals
established by Landlord;
4
g) Replacement of all lamps, bulbs, tubes and ballasts for the
standard lighting fixtures as required from time to time as a
result of normal usage;
h) Security is provided weekday after-hours and 24-hour basis on
weekends; provided however, Landlord shall not be liable to
Tenant for losses due to theft or burglary, or for damages done
by persons in the Real Estate;
i) Repair and maintenance to the extent specified elsewhere in this
Lease.
No interruptions or suspensions of such services when necessary by
reason of governmental regulation, labor disputes, civil commotion or
riot, accident or emergency, or for repairs, alterations or improvements
considered desirable or necessary by Landlord or for any other reason
beyond the control of Landlord shall be construed as an eviction of
Tenant or work an abatement or diminution of rent or render Landlord or
its agents or employees liable for damages either to person, business or
property suffered by Tenant, its employees, licensees or invitees by
reason of any such interruptions, or release Tenant from any of its
obligations under this Lease. In the event Landlord believes that
Tenant's use of electricity is in excess of four (4) xxxxx per square
foot, Landlord shall employ an electrical expert who will perform a
survey of electricity usage and who will render an opinion as to the
quantity of electricity used by Tenant. If the survey indicates that
Tenant's annual electrical consumption is in excess of four (4) xxxxx
per square foot in the Premises, Tenant shall pay as Additional Rent the
cost of the survey together with the cost to the Landlord of such excess
electrical consumption. In the event an electrical current can no
longer be furnished by Landlord via a common meter and included with the
rent set out in Article IV, Tenant shall procure its own electricity
direct from Indianapolis Power and Light, and the rent set out in
Article IV shall be adjusted by Landlord in an amount equal to the
tenant's monthly electrical expense.
Landlord shall not in any way be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if,
during the term of this Lease and beyond Landlord's control, either the
quality or character of electrical current is changed or is no longer
available or suitable for Tenant's requirements.
Section 5.2 Alterations to Premises. Landlord shall not be
-----------------------------------
obligated to make any alterations, additions, improvements or
decorations to the Premises, except as specifically agreed by and
between Landlord and Tenant as provided in Section 3.2. In the event
any such alterations, additions, improvements or decorations are made
following written request by Tenant and approval by Landlord, such
alterations, additions, improvements or decorations shall be made at
Tenant's sole expense by Landlord or by someone under Landlord's
supervision and control, and upon billing therefor by Landlord, Tenant
shall promptly remit the amount of such expense. However, Tenant may
retain outside vendors to perform alterations, additions or improvements
if said vendors are approved by Landlord. Such approval shall not be
unreasonably withheld. No alterations, improvements, or additions shall
be made to the Premises by Tenant nor shall Tenant affix or cause to be
affixed to the Real Estate or Premises, including the windows, any sign,
advertisement or notice without the prior written consent of Landlord.
In the absence of a written agreement to the contrary, all alterations,
repairs or improvements except unattached movable trade fixtures, office
furniture and equipment of Tenant shall be and remain the property of
Landlord. The removal of Tenant's property upon termination or
expiration of the Lease shall be governed by Article XVI hereof.
Section 5.3 Repairs. Subject to the provisions of Article XV,
-------------------
Landlord shall maintain and make necessary repairs to the foundation,
roof, the atrium windows and walls, exterior walls, and the structural
elements of the Real Estate, to the electrical, plumbing, heating,
ventilation and air-conditioning systems of the Real Estate and to the
Common Areas of the Real Estate, provided that (a) Landlord shall not be
5
responsible for the maintenance or repair of any such systems which are
located within the Premises and are supplemental or special to the Real
Estate's standard systems; and (b) the cost of performing any of said
maintenance or repairs caused by the negligence of Tenant, its
employees, agents, servants, licensees, subtenants, contractors or
invitees, shall be paid by Tenant, except to the extent of insurance
proceeds, if any, actually collected by Landlord with regard to the
damage necessitating such repairs. Landlord shall repair and maintain
such items in a condition comparable to first-class office space in
Indianapolis, Indiana, except for damage caused by Tenant, its employees
or invitees in excess of ordinary wear and tear.
Tenant, at its expense, shall keep and maintain the Premises in
good order, condition and repair and in accordance with all applicable
legal, governmental and quasi-governmental requirements, ordinances and
rules (including the Board of Fire Underwriters). Tenant shall promptly
and adequately repair all damage to the Premises and replace or repair
all damaged or broken glass in the interior of the Premises, fixtures or
appurtenances. If Tenant fails to perform any of its obligations set
forth in this Section 5.3, Landlord may, in its sole discretion, perform
the same, and Tenant shall pay to Landlord the cost therefor upon
demand. Tenant's obligation to repair under this paragraph shall not
include (a) damages caused by Landlord or its employees, agents or
invitees, or (b) damages or losses caused by fire or other casualty not
caused by Tenant, or by other causes beyond Tenant's reasonable control.
ARTICLE VI
LIENS
Tenant shall keep the premises demised hereunder free from any
liens, including but not limited to mechanics' liens. If any Statement
of Intention to hold a mechanic's lien shall be filed, Landlord at its
option may compel the prosecution of an action for the foreclosure of
such mechanic's lien by the lienor. If any such Statement of Intention
to hold a mechanic's lien shall be filed and an action commenced to
foreclose the lien, Tenant, upon demand by Landlord, shall cause the
lien to be released by the filing of a written undertaking with a surety
approved by the court and obtaining an order from the court releasing
the property from such lien. In the event any lien attaches to the
Premises by virtue of an act or failure to act on the part of Tenant,
Landlord shall have the right, but no obligation, to pay the amount of
such lien to cause its release and such amount shall be considered
additional rent to be paid to it by Tenant on demand with interest at
twelve percent (12%) per year from the date that Landlord pays such
lien, provided, however, that if an undertaking is filed with the court
and the Real Estate is released from said lien, as hereinabove provided,
Landlord's right to pay such lien shall be suspended until a final
judgment is entered in such action against Tenant. Nothing provided
herein shall preclude Tenant from contesting in good faith the assertion
of any lien. All liens and encumbrances created or suffered by Tenant
shall attach to Tenant's interest only.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
Tenant shall not assign this lease nor sublet the Premises in
whole or in part without the Landlord's written consent, which consent
shall not be unreasonably withheld. Any sublease executed by Tenant
shall be expressly subject to the terms and conditions of this Lease,
and Tenant shall continue to be liable for the performance of the terms
and conditions of this Lease, including, but not limited to, the payment
of rent set out in Article IV. Landlord shall have the right to assign
this Lease without Tenant's consent.
6
ARTICLE VIII
LANDLORD'S NON-LIABILITY AND INDEMNIFICATION OF LANDLORD
Section 8.1 Non-Liability of Landlord. Landlord and its partners,
-------------------------------------
employees, servants and agents shall not be liable for any injury or
damage to persons or property resulting from any cause whatsoever in the
Premises, unless caused by or due to the sole negligence of Landlord,
its agents, servants, or employees or a breach or default in the
performance by Landlord of any covenant or agreement on its part to be
performed under this Lease. Landlord or its agents shall not be liable
for any damage or loss caused by or due to the negligence of Landlord,
its agents, servants or employees or a breach or default in the
performance by Landlord of any covenant or agreement on its part to be
performed under this Lease.
Section 8.2 Indemnification of Landlord. Tenant agrees to assume
---------------------------------------
the risk of, be responsible for, have the obligation to insure against,
and to indemnify and save Landlord and its partners, employees, and
agents, harmless from and against any and all liabilities, damages,
expenses, fees, penalties, actions, causes of actions, suits, costs
(including attorneys' fees), claims or judgments arising from injury
during the term to persons or property within or without the Premises
occasioned wholly or in part by any act or acts, omission or omissions
of Tenant, its agents, servants, contractors, employees, invitees or
licensees.
ARTICLE IX
INSURANCE
Tenant, in order to enable it to meet its obligation to insure
against the liabilities specified in this lease, agrees to place and
maintain, at Tenant's own expense, with insurance companies qualified to
do business in the State of Indiana and acceptable to Landlord, public
liability and property damage insurance naming Landlord as an additional
named insured, protecting the Landlord and Tenant from all causes,
including their own negligence, and having a minimum combined single
limit coverage for bodily injury and property damage of not less than
One Million Dollars ($1,000,000.00). Such policy or policies shall
contain a clause that the insurer will not cancel or change the
insurance without thirty (30) days prior written notice to Landlord.
Tenant shall furnish Landlord with certificates of insurance evidencing
such coverage. Should Tenant fail to carry such insurance after a
request to do so, Landlord shall have the right to obtain such insurance
and collect the cost thereof from the Tenant as Additional Rent payable
hereunder.
Tenant shall not conduct or permit to be conducted any activity,
or place any equipment, materials or other items in, on or about the
Premises or the Real Estate, which will in any way increase the rate of
fire or liability or casualty insurance on the Real Estate. Should
Tenant fail to comply with the foregoing covenant on its part to be
performed, Tenant shall reimburse Landlord for such increased amount
upon written demand therefor from Landlord, the same to be considered
Additional Rent payable hereunder.
ARTICLE X
WAIVER OF SUBROGATION
Tenant and Landlord agree that insurance carried by either of them
against loss or damage by fire or other casualty shall contain a clause
whereby the insurer waives its rights to subrogation against the other
party. Upon request, each party agrees to furnish evidence of such
waiver to the other party.
ARTICLE XI
HOLDING OVER
Tenant shall pay Landlord for each day Tenant retains possession
of the Premises or part thereof after termination hereof, by lapse of
time or otherwise, 1.25 times the amount of the daily fixed rental,
7
based upon the rent in effect on the last day prior to the date of such
termination, as adjusted in accordance with the terms of this Lease, and
also pay all damages sustained by Landlord by reason of such retention,
including reasonable attorney's fees, or, if Landlord gives notice to
Tenant of Landlord's election thereof, such holding over shall
constitute a renewal of this Lease for a period from month to month, but
if the Landlord does not so elect, acceptance by Landlord of rent after
such termination shall not constitute a renewal; this provision shall
not be deemed to waive Landlord's right of re-entry or any other right
hereunder or at law.
ARTICLE XII
RIGHTS RESERVED TO LANDLORD
Landlord shall have the following rights exercisable without
notice (except as expressly provided to the contrary in this Lease) and
without liability to Tenant for damage or injury to property, person or
business (all claims for damage being hereby released) and without
effecting an eviction or disturbance of Tenant's use or possession or
giving rise to any claim for offset or abatement of rent:
a) To change the name or street address of Tenant's space upon one
hundred and eighty (180) days prior written notice to Tenant;
b) To install and maintain signs and other facilities on the
exterior and interior or the Real Estate except Landlord;
c) To design and/or approve or disapprove, prior to installation,
all types of window coverings of the Premises and to control all
interior lighting and other facilities that may be visible from
outside the Premises;
d) To have pass-keys to Premises, and all portions thereof;
e) To grant anyone the exclusive right to conduct any business or
render any service in the Real Estate, provided such exclusive
right shall not operate to exclude Tenant from the use expressly
permitted by Section 3.1;
f) To decorate, remodel, repair, alter or otherwise prepare the
Premises for reoccupancy during the last six (6) months of the
term hereof, if during or prior to such time Tenant vacates the
Premises, or at any time after Tenant abandons the Premises;
g) To enter the Premises to make inspections, repairs, alterations
or additions in or to the Premises or the Real Estate or to
exhibit the Premises to prospective tenants, purchasers of the
Real Estate, or others at reasonable hours and at any time in
the event of an emergency, and to perform any acts related to
the safety, protection, preservation, reletting, sale or
improvement of the Premises or the Real Estate. In the exercise
of its right under this subparagraph, Landlord shall not
unreasonably interfere with the conduct of Tenant's business;
h) To have access to all mailchutes (if any) according to the rules
of the United States Post office;
i) To require all persons entering or leaving the Real Estate
during such hours as Landlord may from time to time reasonably
determine, to identify themselves to a security person by
registration or otherwise; to establish the right to enter or
leave and to exclude or expel any peddler, solicitor or unruly
or loud person at any time from the Premises or the Real Estate;
8
j) To close the Real Estate during times of emergency and, subject
to Tenant's right to admittance (24 hours per day, seven days
per week) under such reasonable regulations as shall be
prescribed from time to time by Landlord, after regular business
hours, provided, however, that Landlord shall give written or
oral notice to Tenant at least one hour before closing the
Building under such circumstances, except in cases life-
threatening circumstances in which case no notice shall be
required;
k) To approve or disapprove the weight, size and location of safes,
files, bookshelves, and other heavy equipment and articles in
and about the Premises, and to require all such items to be
moved in and out of the Estate and the Premises only at such
times and in such manner as Landlord shall direct and in all
events at Tenant's sole risk and responsibility;
l) To decorate, alter, repair or improve the Real Estate at any
time, and Landlord and its representatives for that purpose may
enter on or about the Premises with such material as Landlord
may deem necessary, may erect scaffolding and other necessary
structures on or about the Premises and may close or temporarily
suspend operation of entrances, doors, corridors, elevators or
other common facilities. Tenant waives any claim for damages,
including the loss of business resulting there from. In the
exercise of its rights under this subparagraph, Landlord shall
not unreasonably interfere with the conduct of Tenant's
business;
m) To do or to permit to be done any work in or about any adjacent
or nearby building, land, street, or alley.
ARTICLE XIII
INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment by Tenant
for the benefit of creditors or any action taken or suffered by Tenant
under any insolvency, bankruptcy, or reorganization act, shall
constitute a breach of this Lease by Tenant, unless any such action or
proceeding is dismissed or discharged within sixty (60) days after the
same is filed. In no event shall this Lease be assigned by operation of
law or by voluntary or involuntary bankruptcy proceedings or otherwise
and in no event shall this Lease or any rights or privileges hereunder
be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
ARTICLE XIV
DEFAULT
In the event of any breach of this Lease by Tenant, after receipt
by Tenant of fifteen (15) days written notice of default (except there
shall be no notice requirement for Tenant's failure to pay rent),
Landlord, independent of any other rights or remedies it may have by law
or otherwise, shall have the immediate right of re-entry and may remove
all persons and property from the Premises. Such property may be
removed and stored at the cost of and for the account of Tenant. Should
Landlord elect to re-enter as herein provided, or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice
provided for by law, Landlord may either terminate this Lease or may
terminate the right of Tenant to possession of the Premises without
terminating the Lease, in which latter event, Landlord shall be
obligated to mitigate its damages by actively seeking to relet said
Premises or any part thereof for the account of Tenant (as hereinbelow
provided) for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Landlord in the exercise of
Landlord's sole discretion may deem advisable with the right to make
alterations and repairs to said Premises. Upon each such reletting (a)
Tenant shall be immediately liable to pay to Landlord, in addition to
any indebtedness other than rent due hereunder, the cost and expense of
such reletting and of such alterations and repairs incurred by Landlord,
and the amount, if any, by which
9
the rent reserved in this Lease for the period of such reletting (up to
but not beyond the term of this Lease) exceeds the amount agreed to be
paid as rent for the Premises for such period of such reletting; or (b)
at the option of Landlord, rents received by Landlord from such
reletting shall be applied first, to the payment of any indebtedness,
other than rent due hereunder from Tenant to Landlord; second, to the
payment of any reasonable costs and expenses of such reletting and of
such alterations and repairs; third, to the payment of rent due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and payable
hereunder.
If Tenant should breach this Lease, in addition to any other remedy
Landlord may have, Landlord may recover from Tenant all damages Landlord
may incur by reason of such breach, including the cost of recovering the
Premises, and including the rent reserved and charged in this Lease for
the remainder of the stated term, all of which amounts shall be
immediately due and payable (together with attorney's fees) from Tenant
to Landlord. Landlord's remedies hereunder are cumulative and not
intended to be exclusive of any other remedies or other means of redress
to which Landlord may be lawfully entitled in case of a breach of this
Lease by Tenant.
ARTICLE XV
DAMAGE BY FIRE AND EMINENT DOMAIN
If, during the term of this Lease, the Premises are damaged or
made untenantable by fire or other casualty, cause, condition or thing
whatsoever, or the Real Estate in which the Premises are located is
substantially damaged or made untenantable from fire or other casualty,
cause, condition or thing whatsoever, whether or not the Premises are
damaged, and the Landlord shall determine not to restore it, Landlord
may, by notice to Tenant given within thirty (30) days after such
damage, terminate this Lease. In such case Tenant shall pay the rent
apportioned to the time of damage and shall immediately surrender the
Premises to the Landlord upon Landlord's request therefor. Unless the
Lease is terminated as hereinabove provided, Landlord shall
substantially restore the Premises (to the extent of the Building
Standard improvements), with reasonable promptness. Tenant's rent shall
xxxxx proportionately to the area of usable space during the period of
repair. If, as a result of a fire or other casualty, cause, condition
or thing whatsoever, a substantial portion of the Real Estate or the
Common Areas is damaged to such extent as to substantially interfere
with Tenant's use of the Premises, or if the Premises are made partially
or wholly untenantable, and in either case if the Landlord's architect
determines that the Premises cannot be restored within one hundred and
eighty (180) days after Landlord is able to take possession of the
damaged space and Premises, then either party may terminate this Lease
by written notice to the other given not later than thirty (30) days
after the date of certification by Landlord's architect. In all cases,
due allowance shall be made for reasonable delays caused by adjustment
or insurance loss, strikes, labor difficulties or any cause beyond the
Landlord's reasonable control. Landlord shall have no duty to restore,
repair or replace Tenant's above-building-standard fixtures or leasehold
improvements, including but not limited to, wall and floor coverings,
light fixtures, built-in cabinets and bookshelves.
If, during the term of this Lease, all or a substantial part of the
Premises, or if a substantial part of the Real Estate (Including the
Common Areas and Parking Garage) in which the Premises are located
(whether or not the Premises are affected) shall be taken or condemned
by any competent authority for any public or quasi-public use or purpose
and, as a result, Tenant is unable to conduct its normal business
activities from the Premises, the Term of this Lease shall end upon and
not before the date when the possession of the part so taken shall be
required for such use or purpose. If any condemnation proceeding shall
be instituted in which it is sought to take or damage any part of the
Real Estate is changed by any competent authority and such partial
taking or change of grade makes it necessary or desirable to remodel the
Real Estate to conform to the taking or changed grade, Landlord shall
have the right to cancel this Lease upon not less than thirty (30) days
prior written notice to Tenant. In either of the events above referred
to, rent at the then current rate shall be apportioned as of the date of
the termination.
10
ARTICLE XVI
SURRENDER OF PREMISES
At the end of the term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver up to the
Landlord possession of the Premises, together with all improvements or
additions upon or belonging to the same, by whomsoever made, in the same
condition as received or first installed, ordinary wear and tear and
damage by fire, earthquake, Act of God, Landlord's breach, other
conditions beyond Tenant's reasonable control or the elements alone
excepted. Upon the termination of this Lease, Tenant shall, at Tenant's
sole cost, remove all counters, trade fixtures, office furniture and
equipment installed by Tenant, unless otherwise agreed to in writing by
Landlord. Tenant shall also repair any damage caused by such removal.
Property not so removed shall be deemed abandoned at the termination of
this Lease by the Tenant and title to the same shall thereupon pass to
Landlord. Tenant shall indemnify the Landlord against any loss or
liability resulting from delay by Tenant in so surrendering the
Premises, including without limitation, any claims made by any
succeeding tenant based on such delay.
ARTICLE XVII
WAIVER
The waiver by Landlord of any term, covenant, or condition herein
contained shall not be deemed to be a waiver of such term, covenant, or
condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant, or condition of this
Lease, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
ARTICLE XVIII
NOTICES
All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing and shall be
sent by United States certified or registered mail, postage prepaid,
addressed to Tenant at:
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
and addressed to the Landlord at:
429 Penn Partners
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
or to such other firm or to such other place as Landlord may from time
to time designate in writing.
11
ARTICLE XIX
ABANDONMENT
If Tenant shall abandon or vacate the Premises before the end of
the term or any other event shall happen entitling Landlord to take
possession thereof, Landlord may take possession of said Premises, relet
the same without such action being deemed an acceptance of a surrender
of this Lease or in any way terminating the Tenant's liability
hereunder, and Tenant shall remain liable to pay the rent herein
reserved and any other damages suffered by Landlord, less the net amount
actually realized from such reletting after deduction of any expenses
incident to such repossessions and reletting.
ARTICLE XX
SUBORDINATION
In consideration of the execution of this Lease by Landlord,
Tenant accepts this Lease subject to any deeds of conveyance and any
existing or future deeds of trust, master leases, security interests or
mortgages and all renewals, modifications, extensions, consolidations
and replacements of the foregoing which might now or hereafter
constitute a lien upon the Real Estate (or the land upon which it is
situated or improvements therein or thereon) or upon the Premises, and
to zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of the property. Although
no instrument or act on the part of Tenant shall be necessary to
effectuate such subordination, Tenant shall, nevertheless, for the
purpose of confirmation at any time hereafter, on demand in the form(s)
prescribed by Landlord, execute any instruments, estoppel certificates,
release or other documents that may be requested or required by any
purchaser or any holder of any superior interest for the purposes of
subjecting and subordinating this Lease to such deed or conveyance or to
the lien of any such deed in trust, master lease, security interest,
mortgage, or superior interest Tenant hereby appoints Landlord attorney-
in-fact, irrevocably, to execute and deliver any such instrument or
document for Tenant should Tenant fail or refuse to do so.
ARTICLE XXI
MISCELLANEOUS PROVISIONS
Section 21.1 Governing Law. This Lease shall be governed by the
--------------------------
laws of the State of Indiana.
Section 21.2 Writing Controls. It is agreed that Landlord has not
-----------------------------
made any statement, promise or agreement or taken upon itself any
engagement whatsoever verbally or in writing in conflict with the terms
of this Lease or that in any way modifies, varies, alters, enlarges, or
invalidates any of its provisions and that no obligations of Landlord
shall be implied in addition to the obligations herein stated.
Section 21.3 Air and Light. This Lease does not grant or
--------------------------
guarantee Tenant a continuance of light and air over any property
adjoining the Leased Premises.
Section 21.4 Landlord's Covenants. Landlord covenants that (a) it
---------------------------------
has full power and authority to perform its obligations under the Lease
and (b) Tenant, upon paying the rent herein provided and performing all
the covenants of this Lease by it to be performed, shall have quiet
possession of the Premises, and the use with other persons of the Common
Areas and Parking Garage, during the term hereof.
Section 21.5 No Option. Submission of this Lease for examination
----------------------
or signature by Tenant does not constitute a reservation or option for
the Premises. This instrument becomes effective as a Lease only upon
execution and delivery by both Landlord and Tenant.
12
Section 21.6 Time. Time is of the essence of this Lease and each
-----------------
and all of its provisions.
Section 21.7 Binding Effect. This Lease shall be binding upon and
---------------------------
inure to the benefit of the respective parties hereto and their heirs,
administrators, successors and assigns. This provision does not allow
Tenant's assignment of the Lease except as provided under Article VII.
Section 21.8 Severability. The invalidity or unenforceability of
-------------------------
any particular provision of this Lease, in whole or in part, shall not
affect the other provisions of this Lease and in such an event, this
Lease shall be construed in all other aspects as if the invalid or
unenforceable provision or part thereof was omitted.
Section 21.9 Modification of Lease. This Lease cannot be modified
----------------------------------
unless evidenced by a written agreement signed by both parties hereto.
Section 21.10 Memorandum of Lease. The parties agree not to
---------------------------------
record a copy of this Lease, but Tenant may, at its expense, prepare and
record a Memorandum of Lease in a form mutually agreeable to the
parties.
IN WITNESS WHEREOF. the parties have caused this Lease to be executed by
their duly authorized representatives this 7th day of November 1997
TENANT:
UNIFIED HOLDINGS, INC.
Witness:
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxx
----------------------------- -------------------------------
Printed: Xxxxx X. Xxxxxxxxx Printed: Xxxx X. Xxxx
------------------------ --------------------------
Title: President
----------------------------
LANDLORD:
Witness: 429 PENN PARTNERS
By: /s/ Xxxx XxxXxxxxxx By: /s/ Xxx Xxxxx
----------------------------- -------------------------------
Printed: Xxxx XxxXxxxxxx Printed: Xxx Xxxxx
------------------------ --------------------------
Title: General Partner
----------------------------
13
EXHIBIT D
WORKLETTER
----------
This workletter is attached to and forms a part of the certain
office lease between 429 Penn Partners ("Landlord") and Unified
Holdings, Inc. ("Tenant") dated January 1, 1998 (" Lease"), pursuant to
which Landlord had leased to Tenant office space in the building
situated at 000 X. Xxxxxxxxxxxx, Xxxxxxxxxxxx.
Landlord desires to make improvements to the premises, and Tenant
desires to have Landlord make them, upon the terms and conditions in
this Workletter.
SYSTEMS WORK
------------
Unified will provide licensed contractors and supervise the
following:
Wiring Voice and Data Move Prime Computer
Pershing Line Move Dictaphone
SunGard line Move T1 Circuits
Nasdaq line Install Digital Lines
Quotron Security System Re-install
Landlord will pay from invoice, for the above work, with a not to
exceed limit of $27,600.00. Any savings from the not to exceed amount
would be retained by the Landlord.
ELECTRICAL/HVAC WORK
--------------------
Xxxxx Construction will perform and supervise the following work,
with the sole cost the responsibility of the Landlord.
All necessary Power, PBX, Prime to computer room.
Dedicated circuit for Xerox Copier.
Dedicated HVAC unit and controls for Computer Room.
14
CONSTRUCTION WORK
-----------------
Xxxxx Construction will perform the following work, with the sole
cost the responsibility of the Landlord.
Remove wall in computer room.
Paint all wood trim and door frames.
Replace carpet with linoleum in computer room.
Install door from breakroom to vending area.
Install door in hall leading from reception area to rear of space.
(Under existing bulkhead )
MOVING EXPENSE
--------------
Will be the sole responsibility of the Tenant, with Landlord
contributing 50% of invoiced amount not to exceed $3,500.00.
MAINTENANCE WORK
----------------
Stenz Management will provide necessary cleaning and carpet
shampooing.
ADDITIONALLY
------------
Landlord will retain the use of all portable partitions and
workstations currently used by Unified, that are located on the 4th
floor, for the Term of Unified's Lease Agreement.
15
