EXHIBIT 10.5
EXECUTION COPY
LEASE
Between
STANDARD MANAGEMENT CORPORATION
Landlord,
and
STANDARD LIFE INSURANCE COMPANY OF INDIANA,
Tenant,
Dated: As June 8, 2005
Premises:
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
TABLE OF CONTENTS
Business Terms
ARTICLE 1. Certain Other Definitions..................................................... 3
ARTICLE 2. Term; Commencement Date; Access............................................... 5
ARTICLE 3. Fixed Rent.................................................................... 5
ARTICLE 4. HVAC; Building Systems........................................................ 6
ARTICLE 5. Use........................................................................... 7
ARTICLE 6. Compliance with Laws and Insurance Requirements............................... 7
ARTICLE 7. Alterations and Installations................................................. 7
ARTICLE 8. Fixtures and Equipment; Tenant's Property..................................... 8
ARTICLE 9. Maintenance; Repairs.......................................................... 9
ARTICLE 10. Required Insurance............................................................ 9
ARTICLE 11. Damage; Restoration........................................................... 10
ARTICLE 12. Condemnation.................................................................. 11
ARTICLE 13. Public Areas; Conference Rooms; Parking Lot................................... 11
ARTICLE 14. Signs......................................................................... 12
ARTICLE 15. Landlord's Access to Premises; Related Matters................................ 12
ARTICLE 16. Subordination: Estoppel Certificate; Attornment............................... 12
ARTICLE 17. Surrender of Premises......................................................... 13
ARTICLE 18. Assignment, Mortgaging, Subletting, etc....................................... 14
ARTICLE 19. Quiet Enjoyment............................................................... 14
ARTICLE 20. Real Estate Brokers........................................................... 14
ARTICLE 21. Adjacent Excavation; Shoring; Construction.................................... 14
ARTICLE 22. Defaults; Conditional Limitations; Remedies................................... 15
ARTICLE 23. Indemnification............................................................... 17
ARTICLE 24. Notices....................................................................... 18
ARTICLE 25. No Waivers.................................................................... 18
ARTICLE 26. No Representations by Landlord; Landlord's Interest; Transferee Landlords..... 18
ARTICLE 27. Consent to Jurisdiction....................................................... 18
ARTICLE 28. Termination of Current Lease.................................................. 19
ARTICLE 29. Miscellaneous................................................................. 19
Exhibit A Land
Exhibit B Cleaning Specifications
Exhibit C Building Rules
INDEX
Defined Term Article / Section
------------ -----------------
Additional Rent................................................................. 3.3
Alteration(s)................................................................... 1.1
Building........................................................................ Heading
Building Rules.................................................................. 13.1
Building Systems................................................................ 1.1
Business Day.................................................................... 1.1
Business Hours.................................................................. 1.1
City............................................................................ 1.1
Commencement Date............................................................... Business Terms
Condemnation.................................................................... 1.1
Conference Rooms................................................................ 13.3
Control......................................................................... 1.1
Damage.......................................................................... 1.1
Deficiency...................................................................... 22.4
Employee........................................................................ 1.1
Encumbrance..................................................................... 1.1
Estoppel Certificate............................................................ 16.3
Expiration Date................................................................. Business Terms
Extra Water..................................................................... 4.5
Fees-And-Costs.................................................................. 1.1
Fixed Rent...................................................................... Business Terms
Government Entity............................................................... 1.1
Hazardous Materials............................................................. 1.1
HVAC............................................................................ 1.1
Indemnitees..................................................................... 1.1
Insurance Policy................................................................ 10.3
Insurance Requirement........................................................... 1.1
Interest Rate................................................................... 1.1
Land............................................................................ Heading
Landlord........................................................................ Heading
Landlord's Account.............................................................. Business Terms
Landlord's Affiliates........................................................... 1.1
Law(s).......................................................................... 1.1
Lease........................................................................... Heading
Lease Year...................................................................... 1.1
Legal Proceeding................................................................ 1.1
Liability Limit................................................................. Business Terms
Lien............................................................................ 1.1
New Landlord.................................................................... 16.2
Non-Structural Alterations...................................................... 1.1
Notice Addresses................................................................ Business Terms
Overtime Hours.................................................................. 1.1
Parking Lot..................................................................... 1.1
Permitted Use................................................................... Business Terms
Person.......................................................................... 1.1
Premises........................................................................ Heading
Project......................................................................... 1.1
Public Areas.................................................................... 1.1
Rent(s)......................................................................... 1.1
Rent Payment Address............................................................ Business Terms
Required Insurance.............................................................. 1.1, 10.1
Restoration..................................................................... 1.1
Senior Encumbrance.............................................................. 1.1
State........................................................................... 1.1
Telephone Room.................................................................. 2.2
Tenant.......................................................................... Heading
Term............................................................................ Business Terms
Termination Notice.............................................................. 22.2
Utilities....................................................................... 1.1
LEASE (this "Lease") made as of this 8th day of June, 2005 between
STANDARD MANAGEMENT CORPORATION, an Indiana corporation having an address at
00000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, ("Landlord") and
STANDARD LIFE INSURANCE COMPANY OF INDIANA, an Indiana life insurance company
having an address c/o Capital Prospects, LLC, 000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 ("Tenant").
INTRODUCTORY STATEMENT
Landlord is the owner of the building (the "Building") located at
00000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Land"). Tenant
desires to lease from Landlord, and Landlord is willing to lease to Tenant, the
first floor computer room and the entire second floor in the Building (the
"Premises") as shown cross-hatched on Exhibit A hereto, upon the terms,
covenants, conditions and provisions set forth below.
This Lease consists of three parts:
1. Business Terms
2. General Lease Provisions
3. Exhibits and Riders
NOW, THEREFORE, in consideration of the rents and agreements
set forth herein, and intending to be legally bound hereby, Landlord and Tenant
agree as follows:
BUSINESS TERMS
The following "Business Terms" shall have the following meanings in this Lease:
"Commencement Date": The date hereof.
"Expiration Date": The last day of the third Lease Year after the
Commencement Date.
"Fixed Rent": $480,000 per year, payable in equal monthly
installments of $40,000, from the Commencement Date
through the end of the Third Lease Year.
"Term": The term of this Lease of three (3) years, commencing
at 12:00 a.m. on the Commencement Date and expiring
at 11:59 p.m. on the Expiration Date (or on such
earlier date as this Lease may otherwise terminate in
accordance with its terms, covenants, conditions, and
provisions).
"Permitted Use": Executive, general, and administrative offices and
related and ancillary uses for Tenant and Xxxxx
National Life Insurance Company.
"Liability Limit": Three million dollars ($3,000,000).
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"Notice Addresses":
(a) for Tenant:
Standard Life Insurance Company of Indiana
c/o Capital Prospects, LLC
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxx Xxxxx
(b) for Landlord:
Standard Management Corporation
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
"Rent Payment Address": Standard Management Corporation
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
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General Lease Provisions
ARTICLE 1. Certain Other Definitions.
1.1. The following words and phrases shall have the following meanings wherever
used in this Lease:
"Alteration" means any and every alteration, addition, construction,
improvement, or modification of or to the Premises and/or any and every
installation in the Premises (including all fixtures, panelling, partitions,
railings, wall coverings, and all electrical, mechanical, plumbing, heating,
ventilating and air conditioning installations affixed or attached to the
Premises).
"Building Systems" means the plumbing, heating, ventilating, air
conditioning, elevator, wiring, and electrical systems, installations, and
facilities of the Building.
"Business Day" means any day other than Saturday, Sunday or national
holidays.
"Business Hours" means 8 a.m. to 6 p.m. on Business Days.
"City" means the municipality in which the Premises are located.
"Condemnation" (or to "Condemn") means any and every taking (whether
temporary or permanent) for any public or quasi-public purpose, by any
Government Entity by exercise of condemnation or eminent domain (or any transfer
or conveyance by agreement in lieu thereof).
"Control" (or, in context, "Controlling" or "Controlled by") means the
ownership of more than fifty per cent (50%) of the common stock of a corporation
or of the beneficial ownership of an unincorporated enterprise.
"Damage" means any and all damage or destruction resulting from fire or
other casualty.
"Employee" means an officer, director, employee, partner, agent,
contractor, subcontractor, or representative.
"Encumbrance" means any and every lease, security interest, charge,
covenant, restriction, lien, mortgage, or other encumbrance of any kind
whatsoever.
"Fees-And-Costs" means documented actual and reasonable fees and expenses
of attorneys, accountants, architects, engineers, expert witnesses, contractors,
consultants and other Persons and costs of transcripts, printing of briefs and
records, copying, and other reimbursable expenses charged by any of the
foregoing.
"Government Entity" means the United States, the State, the City, and any
and every other agency, department, commission, rule-making body, bureau,
instrumentality and/or political subdivision of government of any kind
whatsoever, now existing or hereafter created, now or hereafter having
jurisdiction over the Premises, the Land, the Building, and/or the use,
occupancy, possession, operation and/or maintenance of the Premises, the Land
and/or the Building.
"Hazardous Materials" means any materials, substances, fluids, chemicals,
gases, or other compounds the presence, use, storage, emission, drainage,
leakage, effusion, modification, or disposition of which is prohibited by law or
subject by law to specific procedures, controls, or restrictions, or which are
otherwise deemed toxic, poisonous, or unsafe. However, "Hazardous Materials"
shall not include minor quantities of substances which are used legally in the
ordinary course of a business use for office purposes.
"HVAC" means the heating, ventilating, and air conditioning equipment
servicing the Premises, whether located within the Premises, on the roof of the
Premises, or otherwise outside of the Premises.
"Indemnitees" means Landlord, Landlord's Affiliates, and each holder of a
Senior Encumbrance.
"Insurance Requirement" means any rule, regulation, code, or other
requirement issued by any fire insurance rating bureau or any body having
similar functions and/or any insurance company which has issued a policy of
insurance covering the Premises, the Land and/or the Building, as in effect from
the date of this Lease through the Expiration Date.
"Interest Rate" means a rate per annum equal to the lesser of (a) 4% above
the so-called "prime rate" published in the New York City edition of The Wall
Street Journal from time to time (or, if such rate shall cease to be published,
any similar rate which is publicly announced from time to time by any bank in
New York City having total assets in excess of $500 million designated by
Landlord in writing); or (b) the maximum rate of interest, if any, which Tenant
may legally contract to pay in the State on the applicable obligation.
"Landlord" means only the owner (or mortgagee in possession) of the
Building for the time being.
"Landlord's Affiliates" means (i) any corporation Controlling Landlord and
any parent corporation Controlling the same (whether directly or indirectly);
(ii) any corporation Controlled by Landlord and any corporation Controlled by
the same (whether directly or indirectly); (iii) any Person which acquires
substantially all of the assets of Landlord or any corporation into which
Landlord may be merged or with
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which Landlord may be consolidated; and (iv) all Employees of Landlord and of
every corporation referred to in (i), (ii) and (iii) above.
"Law" or "Laws" means each and every law, rule, regulation, order,
ordinance, statute, requirement, code, or executive mandate of any kind
whatsoever, present or future, issued by any Government Entity applicable to or
affecting the Premises, the Land, the Building, and/or the use, occupancy,
possession, operation, and/or maintenance of the Premises, the Land and/or the
Building.
"Lease Year" means a period of twelve (12) consecutive months during the
Lease Term commencing on the Commencement Date; and "Partial Lease Year" means
that portion of the Lease Term occurring after the Commencement Date and ending
prior to the commencement of the first full Lease Year or occurring after the
end of the last full Lease Year and through the Expiration Date (or any earlier
date on which this Lease may otherwise terminate in accordance with its terms,
covenants, conditions, and provisions).
"Legal Proceeding" means every action, litigation, summary proceeding,
arbitration, administrative proceeding, and other legal or equitable proceeding
of any kind whatsoever.
"Lien" means any and every lien of any kind whatsoever for the furnishing
(or alleged furnishing) of (or on account of) labor, materials, services,
facilities, or any other things whatsoever.
"Non-Structural Alterations" means painting, wallpapering, the
installation of carpeting, bookcases, shelves, partitions, non-load bearing
walls, paneling, furniture or moveable fixtures, or the hanging of pictures or
other decorative items which can be removed without permanent damage to the
applicable surface, or computer/telecommunications wiring or re-wiring within
the Premises which does not affect Building Systems.
"Overtime Hours" means hours other than Business Hours.
"Parking Lot" means the parking lot on the Land adjacent to the Building
and owned by Landlord and designated by Landlord for common use by tenants and
occupants of the Building and their invitees.
"Person" means an individual person, corporation, partnership, trust,
joint venture, proprietorship, estate or other incorporated or unincorporated
enterprise, entity, Government Entity, or organization of any kind whatsoever.
"Project" means the Building and all Public Areas.
"Public Areas" means those areas of the Building which are not leased to
tenants and which are available for common use of tenants, occupants, and their
invitees, including (if any), lobby, loading docks and areas, delivery areas,
elevators (including freight elevators), escalators, hallways, pedestrian
sidewalks, landscaped areas, stairways, lights and lighting facilities, sanitary
systems restrooms, Utility installations, the Parking Lot and facilities,
cafe/cafeteria and exterior courtyard adjacent thereto, and other areas and
improvements provided by Landlord for common use or benefit.
"Rent" or "Rents" means, collectively, Fixed Rent and Additional Rent.
"Required Insurance" means the insurance coverage required to be provided
by Tenant under Article 10.
"Restoration" (or "Restore") means and includes any and all repairs,
additions, restorations, rebuilding, construction, alterations, improvements and
replacements of every kind (whether structural or otherwise).
"Senior Encumbrance" means: (a) any and every mortgage now a lien, or
hereafter becoming a lien, upon the Land or the Building; and (b) any lease
presently or hereafter in effect between Landlord, as lessee or tenant, and any
owner of the Land or the Building, which covers or includes the Premises.
"State" means the State of Indiana.
"Utilities" means gas, water (including water for domestic uses and fire
protection), sewer, electricity, light, heat, power, telephone, and
telecommunications, data transmission, water filtration service, other utilities
of every kind.
Certain other words and phrases are defined elsewhere in this Lease and/or
the Exhibits hereto.
1.2. Wherever used in this Lease,
(a) the words "include" or "including" shall be construed as incorporating
"but not limited to" or "without limitation";
(b) the phrase "at Tenant's expense" means at the sole and exclusive
expense of Tenant, who shall be responsible for all costs involved in, or
associated with, the applicable matter; and
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(c) the phrase "in Landlord's judgment" means in Landlord's sole and
exclusive discretion and judgment.
1.3. Wherever this Lease imposes any obligation upon Tenant, or provides that
Tenant shall be responsible for any action or matter, this Lease shall be
construed to mean that Tenant shall perform or undertake the matter at Tenant's
expense, unless expressly specified otherwise.
ARTICLE 2. Term; Commencement Date; Access.
2.1. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
the Premises for the Term.
2.2. Landlord hereby grants Tenant (and its employees and contractors) a
non-exclusive license for the Term to use the telephone switch room located on
the first floor of the Building (the "Telephone Room") for maintenance of
Tenant's telephone switch(es) and related equipment.
2.3. Tenant shall have access to the Premises and the Telephone Room 24 hours
per day, seven days per week.
2.4. Landlord shall provide Tenant's officers and employees with a key, card
key, access code or other type of access to the Building, the Premises, the
computer room and the Telephone Room and shall maintain such access system in
good repair. Landlord shall program the elevator to restrict access to the
second floor of the Building to officers and employees of Tenant and other
authorized persons designated by Tenant who are holders of card keys which are
programmed to provide access to the Premises. Landlord shall also provide a
receptionist in the lobby of the Building during Business Hours to receive and
direct Tenant's guests and shall use reasonable efforts to restrict access to
the second floor of the Building as directed by Tenant. Landlord shall not grant
access to the Premises to other tenants or occupants of the Building (other than
Building maintenance and management personnel).
ARTICLE 3. Fixed Rent.
3.1. Tenant agrees to pay Fixed Rent to Landlord, without notice or demand, in
equal monthly installments in advance on the first day of each and every
calendar month during the Term. Tenant shall pay the first monthly installment
of Fixed Rent upon execution of this Lease.
3.2. If the Commencement Date falls on any day other than the first day of a
calendar month, the installment of Fixed Rent for such calendar month shall be
prorated on a per diem basis (and Tenant shall pay such pro-rated installment on
the Commencement Date).
3.3. Tenant agrees to pay as additional rent ("Additional Rent") all sums of
money, costs, expenses, charges, interest, or fees of every kind or amount
whatsoever, other than Fixed Rent, which Tenant has assumed or agreed to pay to
Landlord, or which otherwise may become due and payable by Tenant, under this
Lease. Additional Rent shall not include, and Tenant shall not be responsible
for, any payments on account of real estate taxes or operating expenses for the
Building. Unless otherwise specified, Tenant shall pay all Additional Rent
within ten (10) days after Landlord's demand. Landlord shall have the same
rights (and remedies) under this Lease for Tenant's failure to pay any
Additional Rent as for Tenant's failure to pay Fixed Rent.
3.4. Tenant shall pay Fixed Rent and all Additional Rent in lawful money of the
United States by unendorsed check payable to Landlord drawn on a bank located
within the continental United States.
3.5. Tenant shall pay Fixed Rent and all Additional Rent to Landlord at the Rent
Payment Address or at such other place as Landlord may designate by notice to
Tenant from time to time.
3.6. Tenant shall pay all Fixed Rent and Additional Rent promptly when due and
payable, without notice or demand, and without offset, deduction, credit,
abatement, or counterclaim of any kind or for any reason whatsoever unless,
however, specifically permitted elsewhere in this Lease.
3.7. If Tenant fails to pay any installment of Fixed Rent or any amount of
Additional Rent for more than ten (10) days after the same is due, Tenant shall
pay, with the delinquent sum, (a) a late charge equal to 5% of such delinquent
installment and (b) interest thereon at the Interest Rate from the date when due
through the date of payment.
3.8. If Tenant fails to make any payment required by this Lease (other than
Fixed Rent), or if Tenant fails to keep or perform any other term, covenant,
condition or provision of this Lease, or if this Lease provides in any case that
Landlord may take certain actions at Tenant's expense, Landlord may (at
Landlord's election) make any such payment and/or take such action as Landlord
deems necessary or desirable (in Landlord's judgment) to perform and fulfill
such term, covenant, condition or provision. In any such event, Tenant agrees to
reimburse Landlord, upon demand, for any such payment, and/or for all amounts so
paid or incurred by Landlord (including all Fees-And-Costs), together with
interest on each such amount at the Interest Rate from the date of Landlord's
demand.
3.9. If any Fixed Rent or any Additional Rent shall be or become uncollectible
by virtue of any Laws, Tenant shall enter into such agreement or agreements and
take such other action as Landlord may request to permit Landlord to collect
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the maximum Fixed Rent and Additional Rent which may, from time to time during
the continuance of such restriction, be legally permissible (but not in excess
of the amounts due under this Lease). Upon the termination of such restriction,
(a) Fixed Rent and Additional Rent shall become payable in accordance with the
terms of this Lease and (b) Tenant shall pay Landlord, if legally permissible,
an amount equal to the Fixed Rent and Additional Rent which would have been
payable hereunder but for the restriction, less the amounts paid by Tenant to
Landlord during the period that such rent restriction was in effect.
ARTICLE 4. HVAC; Building Systems.
4.1. Landlord shall provide, maintain and repair the Building Systems.
4.2. Landlord shall furnish HVAC to the Premises during Business Hours via the
Building Systems. At Tenant's request, Landlord shall furnish HVAC to the
Premises during Overtime Hours, at no additional cost to Tenant, provided Tenant
requests such service before 3:00 p.m. on the day for which service is requested
(or by 3:00 p.m. on the preceding Business Day if service is requested for a day
other than a Business Day).
4.3. Landlord shall provide passenger elevator service to the Premises on
Business Days during Business Hours. Landlord shall have one passenger elevator
subject to call at other times. Elevator service shall be on a non-exclusive
basis and shall be subject to temporary cessation for ordinary repair and
maintenance and during times when life safety systems override normal building
operating systems.
4.4. There shall be one freight elevator on call on a "first come", "first
served" basis during Business Hours and Overtime Hours, at no additional cost to
Tenant, subject to temporary cessation for ordinary repair and maintenance and
during times when life safety systems override normal building operating systems
and further subject to the Building Rules and Regulations.
4.5. Landlord shall furnish water to the Premises for ordinary lavatory,
drinking, pantry and space cleaning purposes. If Tenant uses water for other
purposes or excessive quantities ("Extra Water"), Tenant shall pay Landlord's
actual cost for Extra Water.
4.6. Tenant shall not discharge (or allow discharge of) foreign or Hazardous
Materials into the water or sewer systems of the Building or in violation of
Laws.
4.7. Landlord shall cause janitorial services to be provided to the Premises, at
no additional cost to Tenant, in a manner that Landlord reasonably deems to be
consistent with the standards of comparable office buildings in the market area
of the Building.
4.8. Tenant shall notify Landlord in writing, promptly after learning of the
same, of defects or problems in the Building Systems or in services to be
furnished by Landlord under this Lease.
4.9. Landlord shall make available to Tenant space in the Building directory in
the lobby on terms reasonably acceptable to Landlord.
4.10. Landlord represents and warrants that the electrical power currently
supplied to the Premises via the Building Systems is adequate to continue the
current level of operations and use of the Premises. To the extent the services
described in this Article 4 require electricity and water supplied by public
utilities, Landlord's covenants thereunder shall only impose on Landlord the
obligation to use its reasonable efforts to cause the applicable public
utilities to furnish same, provided however, that Landlord shall permit Tenant
to use all of the then existing Building Systems, feeders, risers, wiring, and
pipes to receive such services. Except for the willful misconduct or negligence
of Landlord and as set forth in Section 4.11 below, failure by Landlord to
furnish the services described herein, or any cessation thereof, shall not
render Landlord liable for damages to either person or property, nor be
construed as an eviction of Tenant, nor work an abatement of rent, nor relieve
Tenant from fulfillment of any covenant or agreement hereof. In addition to the
foregoing, should any of the equipment or machinery, for any cause, fail to
operate, or function properly, Tenant shall have no claim for rebate of rent or
damages on account of an interruption in service occasioned thereby or resulting
therefrom; provided, however, Landlord agrees to use reasonable efforts to
promptly repair said equipment or machinery and to restore said services during
normal business hours.
4.11. Notwithstanding anything to the contrary in this Lease, however, if the
Premises, or any portion thereof, shall be rendered untenantable due to
Landlord's failure to perform its obligations under this Lease and/or provide
the services required hereunder for any reason within Landlord's reasonable
control for a period of five consecutive Business Days or more, then the Fixed
Rent and Additional Rent payable hereunder shall be abated until the date upon
which the condition causing the untenantability is cured and the Premises is
restored to substantially the same condition as it existed, or if applicable,
the date of restoration of substantially the same level of service, prior to the
occurrence of the condition which rendered the Premises (or portion)
untenantable; and provided, further, that if, for any reason whatsoever
(including Landlord's actions or failure to perform and/or force majeure) (i) a
substantial portion of the Premises shall be rendered untenantable and Tenant is
entitled to an abatement pursuant to the above and the same continues for
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forty-five (45) days after Landlord received notice of such untenantable
condition (except due to Damage, in which event the provisions of Article 14
shall govern), then Tenant shall be entitled to terminate this Lease, by giving
Landlord written notice of its election to terminate within ten (10) days after
the expiration of said forty-five (45) day period (time being of the essence).
ARTICLE 5. Use.
5.1. The Premises shall be occupied and used by Tenant solely and exclusively
for the Permitted Use, and Tenant shall not use or permit or suffer the use of
the Premises for any other purpose whatsoever.
5.2. Tenant agrees that Tenant:
(a) will not permit the use of any part of the Premises for any unlawful
purpose;
(b) will not permit the Premises to be used for disreputable or
pornographic purposes or for activities which would be deemed obscene under
applicable Laws; or
(c) will not cause or allow any waste, disfigurement or damage, to the
Premises.
ARTICLE 6. Compliance with Laws and Insurance Requirements.
6.1. At Tenant's expense, Tenant shall comply with all Laws and Insurance
Requirements, applicable during the Term, except however to the extent such Laws
and Insurance Requirements relate to Landlord's obligations under this Lease and
such compliance requires repairs or Alterations to the Premises.
6.2. To the extent permitted by Law, Tenant may in good faith contest, at
Tenant's expense and by appropriate proceedings, the validity or effect of any
Law.
6.3. Notwithstanding Section 6.2, Tenant shall not use or occupy the Premises in
violation of the certificate of occupancy issued for the Premises. If any
Government Entity shall give notice that the Premises are being used in
violation of such certificate of occupancy, Tenant shall, upon five (5) days
written notice from Landlord, discontinue such use of the Premises.
ARTICLE 7. Alterations and Installations.
7.1. Tenant shall not undertake any Alteration, whether voluntarily or in
connection with a Restoration required by this Lease, unless Tenant complies
with this Article.
7.2. Tenant shall not commence any structural Alteration without Landlord's
prior written consent. Notwithstanding the foregoing, however, Landlord's
consent shall not be required for any Non-Structural Alteration provided that
the cost of performing such non-structural alteration shall not exceed
$25,000.00 and shall not cause the aggregate of all such alterations in any
12-month period to exceed $50,000.00.
7.3. Landlord will not unreasonably withhold or delay consent to an Alteration
(when such consent is required) except, however, with regard to any Alteration
which will:
(a) alter or affect the proper functioning of the Building Systems or the
structure, facade, roof, or foundation of the Building;
(b) detract from the use or character of the Premises;
(c) require amendment of any certificate of occupancy for the Premises; or
(d) require the consent of any insurer under any Required Insurance or any
other policy of insurance covering the Premises or the holder of a Senior
Encumbrance.
7.4. With respect to every Alteration (except with regard to Non-Structural
Alterations), Tenant shall cause all necessary designs, plans and specifications
for a proposed Alteration to be prepared at Tenant's expense by an architect (or
engineer, if appropriate) licensed by the State and shall submit the same to
Landlord for Landlord's review. With respect to every Alteration (except with
regard to Non-Structural Alterations not requiring Landlord's consent), such
designs, plans and specifications shall be subject to Landlord's written
approval which Landlord will not unreasonably withhold or delay. Landlord's
approval (if given) shall not imply that the Alteration is properly designed or
complies with Laws.
7.5. With respect to every Alteration:
(a) Tenant shall procure or cause to be procured all permits, approvals,
consents, licenses and filings of any kind required by Laws;
(b) Tenant shall obtain (and pay any additional costs for) the consent of
any insurer to such Alteration if such consent is required to keep any Insurance
Policy in full force and effect;
(c) Tenant shall undertake, prosecute, and complete all work in connection
with the Alteration continuously and expeditiously and in a good and workerlike
manner;
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(d) Any contractor employed by Tenant (and all subcontractors) shall be
subject to Landlord's prior written approval, which shall not be unreasonably
withheld, delayed or conditioned, and shall agree to employ only such labor as
will not result in jurisdictional disputes or strikes or cause disharmony with
other workers employed at the Building.
(e) Tenant shall pay each contractor, as the work progresses, the entire
cost of supplying the materials and performing the work shown on Tenant's
approved plans and specifications for an Alteration, subject to a reasonable
retainage (and to resolution of disputes provided that no liens are filed
against the Premises).
(f) Tenant shall cause the Alteration to be installed or constructed in
compliance with Laws.
(g) Tenant agrees that each Alteration will:
(i) be of good quality and free from faults and defects, latent or
otherwise;
(ii) be free of Liens;
(iii) conform to the plans and specifications approved by Landlord;
and
(iv) be fit for the intended use and purpose.
(h) Tenant and Tenant's contractors shall allow access for inspection by
Landlord's representatives at all reasonable times.
(i) Tenant shall obtain all necessary asbestos certifications (if any) and
comply with all Laws regarding the removal, handling, or treatment of Hazardous
Materials in connection with any Alteration.
(j) With respect to any Alteration, Tenant shall pay Landlord, upon
demand, Fees-And-Costs incurred by Landlord for review by architects and/or
engineers of Tenant's Alteration plans.
7.6. Landlord shall not be responsible for any labor or materials furnished to
Tenant or for delays of any kind experienced by Tenant's contractors or
subcontractors. No Lien for any labor, materials, or other services or things
furnished to Tenant shall attach to or affect Landlord's estate or interest in
the Premises. Tenant agrees to discharge, at Tenant's expense (whether by
payment, bonding, or otherwise) every Lien filed against the Premises for work
or materials claimed to have been furnished to Tenant, within thirty (30) days
after receiving notice thereof. Tenant shall require that all contractors and
subcontractors engaged in connection with Tenant's Alterations indemnify the
Indemnitees against any and all loss, cost, liability, claim, damage, or expense
(including Fees-and-Costs) paid or incurred by any Indemnitee, or asserted
against any Indemnitee, for bodily injury, disease, or death to persons, or
damage to property, by reason of the acts or omissions of Tenant or Tenant's
contractors or subcontractors or by reason of their failure to comply with Laws.
ARTICLE 8. Fixtures and Equipment; Tenant's Property.
8.1. Any Alterations made and installed by Landlord (or at Landlord's expense)
shall be Landlord's property and shall remain upon the Premises (and be
surrendered by Tenant) at the end of the Term.
8.2. All Alterations made and installed by Tenant (or at Tenant's expense) in or
upon the Premises which are of a permanent nature and cannot be removed without
damage to the Premises shall become Landlord's property and shall remain upon
(and be surrendered by Tenant) at the end of the Term. However, except to the
extent as Landlord may have otherwise agreed in writing, Landlord shall have the
right, by written notice given to Tenant to require Tenant to remove any of such
Alterations and, in such event, Tenant will remove the same and restore the
Premises to its original condition prior to the Expiration Date, excepting only
ordinary wear and tear. In addition, at Landlord's option, Tenant shall also be
responsible for removing all wires and cables installed by Tenant in the
Premises and other portions of the Building to serve Tenant's telecommunications
and computer systems in the Premises and the removal of such wires and cables
shall be effected by Tenant without damage to the Building and without
interference with the business or operations of Landlord or any other tenant of
the Building.
8.3. Tenant shall have the right during the Term to use any and all furniture,
furnishings, trade fixtures and equipment in the Premises as of the Commencement
Date. All furniture, furnishings, trade fixtures and equipment otherwise
furnished by Tenant or at Tenant's expense shall be the property of Tenant which
Tenant shall remove prior to the Expiration Date.
8.4. If any Alterations or other property which Tenant may or must remove under
Sections 8.2 or 8.3 are not removed prior to the expiration or termination of
this Lease for any cause whatsoever or upon the Tenant being dispossessed by
process of law or otherwise, such alterations, effects, personalty and equipment
shall, at Landlord's option, be deemed conclusively to be abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without written notice to Tenant or any other party and without obligation to
account for them. Tenant shall pay Landlord on demand any and all expenses
incurred by Landlord in the removal of such property, including, without
8
limitation, the cost of repairing any damage to the Building caused by the
removal of such property and storage charges (if Landlord elects to store such
property).
8.5. Tenant shall repair all damage to the Premises resulting from the
installation, moving, or removal of any property (or shall reimburse Landlord,
upon demand, for Landlord's cost of repairing any such damage if Tenant fails to
do so). This Section shall survive any termination of this Lease.
ARTICLE 9. Maintenance; Repairs.
9.1. Except for obligations of Landlord specifically set forth in this Lease,
Tenant shall maintain the Premises in a good, clean, safe, sanitary, and orderly
condition.
9.2. Landlord shall maintain: (a) the lobby and other Public Areas of the
Building and the exterior of the Building in good, clean and orderly condition
(reasonable wear, tear and obsolescence excepted); and (b) the Building Systems
in good working order and repair.
9.3. Any work or repairs by Tenant required or permitted with respect to the
Premises under this Lease shall be of good quality. If Tenant fails to make any
such required repairs within a reasonable time after written notice from
Landlord (not to exceed thirty (30) days), or to promptly commence and
diligently prosecute such repairs within a reasonable time if the same cannot be
completed within thirty (30) days, Landlord may (but shall not be obligated to)
effect the repairs at Tenant's expense and collect the cost thereof, upon
demand, as Additional Rent, with interest at the Interest Rate from the date of
Landlord's payment.
9.4. Tenant shall Restore promptly all Damage or injury to the Premises caused
by the acts or omissions of Tenant or Tenant's Employees or invitees.
9.5. Tenant shall not place a load upon any floor of the Premises exceeding the
floor load which such floor was designed to carry and which is allowed by Laws.
Business machines and mechanical equipment used by Tenant which cause vibration,
noise, cold or heat shall be placed and maintained by Tenant in settings of
cork, rubber or spring-type vibration eliminators sufficient to absorb and
prevent such vibration or noise, or prevent transmission of such cold or heat.
ARTICLE 10. Required Insurance.
10.1. At Tenant's expense, Tenant shall secure and keep in force the following
"Required Insurance" at all times during the Term:
(a) commercial liability insurance (including contractual liability
coverage recognizing this Lease) covering the Premises and Tenant's occupancy
thereof, with coverage limits not less than the Liability Limit; and
(b) "all-risk" insurance protecting against all risk of physical loss or
damage to Tenant's personal property, in amounts not less than the actual
replacement cost of Tenant's trade fixtures, furnishings, wall coverings, floor
coverings, drapes, computers and other equipment and other personal property
located within the Premises.
10.2. Landlord, at its expense, shall secure and keep in force at all times
during the Term, "all-risk" casualty insurance, on an extended coverage basis,
protecting against all risk of physical loss or Damage to the Premises and the
Building from fire, windstorm, and other casualties customarily covered by risk
insurance, in an amount at least equal to the full replacement value of the
Building.
10.3. All Required Insurance shall be evidenced by valid and enforceable
policies issued by companies licensed to do business in the State. (Each policy
providing Required Insurance is referred to in this Lease as an "Insurance
Policy".) All Insurance Policies shall name Landlord the holder of every Senior
Encumbrance and such other parties reasonably designated by Landlord as an
additional insured. Tenant shall furnish Landlord, within thirty (30) days after
the date of this Lease and thereafter at Landlord's request from time to time,
with original insurance certificates or copies of original policies evidencing
such coverage. The minimum limits of the comprehensive general liability policy
of insurance shall in no way limit or diminish Tenant's liability under Article
23 of this Lease. All Required Insurance shall be written on the "occurrence",
and not on the "claims made", basis.
10.4. Each Insurance Policy shall provide that the insurer shall not cancel or
amend such Insurance Policy, or reduce any coverage, without thirty (30) days'
prior written notice to Landlord (whether or not such provision is obtainable
only by payment of an additional premium).
10.5. All policies of insurance carried by Landlord and Tenant shall include, if
available without additional premium, a waiver by the insurer of all rights of
subrogation against Landlord or Tenant in connection with any loss or damage
thereby insured against. Neither party (nor its agents, Employees or guests)
shall be liable to the other for loss or damage caused by any risk covered by
such insurance, to the extent that policies are obtainable with such waiver of
subrogation. If insurance policies with such waivers are available only at extra
premium, the insured party will give written notice to the other, who may pay
the extra premium for such waiver within thirty (30) days after the giving of
such notice; and the insured party will then secure the waiver of
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subrogation. If the release of either Landlord or Tenant in this Section
contravenes any law respecting exculpatory agreements, the party purportedly
released hereunder shall not be released; but such party's liability shall be
secondary to that of the other party's insurer.
10.6. Prior to the Commencement Date, Tenant shall deliver to Landlord
certificates or, at Landlord's request, copies of the original policies,
evidencing that all Required Insurance shall be in full force and effect as of
the Commencement Date. Tenant shall cause each of its contractors to comply with
this Section 10.6 prior to entry upon the Premises for the purpose of performing
any work.
10.7. Thirty (30) days prior to the expiration of any Insurance Policy, Tenant
shall deliver to Landlord certificates or, at Landlord's request, original
policies evidencing renewal or replacement of such Insurance Policy. If Tenant
fails to deliver such certificates or pay the premiums, Landlord may procure and
pay for the renewal or replacement policies after ten (10) days' notice to
Tenant. Any such payments by Landlord shall constitute Additional Rent due and
payable by Tenant upon demand, with interest at the Interest Rate from the date
of Landlord's payment.
10.8. Tenant and Landlord shall cooperate with each other and with the holders
of any Senior Encumbrances in connection with collection of any insurance
monies.
10.9. Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate or contravene any Insurance Policy or be in
conflict with any Insurance Requirements, or prevent Landlord from obtaining
insurance, or increase the rate of fire insurance applicable to the Building;
and Tenant shall neither do nor permit to be done any act or thing upon the
Premises which will or might subject Landlord to any liability or responsibility
for injury to any Person or to property.
10.10. Tenant shall reimburse Landlord, as Additional Rent upon demand, for all
increases of Landlord's insurance premiums resulting from violations of Tenant's
obligations under Section 10.9. In any Legal Proceeding involving the cost of
insurance, a schedule or "make-up" of rates issued by the body making insurance
rates for the Premises shall be presumptive evidence of the items and charges
taken into consideration in fixing the insurance rates then applicable to the
Premises.
10.11. Except to the extent resulting or arising from Landlord's negligence,
Landlord and Landlord's Affiliates shall not be liable for, and Tenant waives
all claim for, any injury or damage to Persons or property resulting from any
equipment or appurtenances in disrepair, Landlord's failure to keep the Building
and Premises in repair, fire, explosion, falling plaster, broken glass, steam,
gas, electricity, water, wind, rain, snow or other natural elements, or leaks
from any part of the Building, or from the pipes, appliances, tanks, plumbing,
roof, street, or subsurface, or the backing up of any sewer pipe or drain
downspout, or from any other place, or by dampness or steam, or from theft or
other criminal activity, or from the acts or omissions of other tenants or
occupants or owners of nearby properties, or any other cause of whatsoever
nature (excluding however, any of the foregoing resulting directly from elective
work in the Premises performed by Landlord or Landlord's contractors).
ARTICLE 11. Damage; Restoration.
11.1. Tenant shall notify Landlord in writing of any Damage to the Premises or
the Building promptly after Tenant learns of the same.
11.2. In event of Damage to the Building or the Premises, Landlord shall Restore
the Damaged area and repair or replace Landlord's personal property in the
Premises as nearly as possible to the value, condition and character of the same
immediately before the Damage, subject, however, to Sections 9.4 and 11.3.
11.3. If the Building is so Damaged (whether or not the Premises are Damaged) as
to require, for Restoration, a reasonably estimated expenditure of more than 30%
of the value of the Building as actually insured under Landlord's insurance
policies immediately prior to such Damage, and Landlord elects not to Restore
the Building, Landlord may terminate this Lease by notice to Tenant within 120
days after the date of such Damage.
11.4. In event of Damage to the Building or the Premises, if Landlord is
obligated to repair the same under Section 11.2 but has not completed the
required repairs within 270 days after the date of such Damage and if the Damage
has deprived (and then continues to deprive) Tenant of reasonable access to the
Premises or the use and enjoyment of more than 10% of the Premises, Tenant may
terminate this Lease by written notice to Landlord given within 30 days after
the end of such 270 days.
11.5. If Landlord or Tenant terminates this Lease pursuant to Section 11.3 or
11.4, this Lease shall expire as of the date of Landlord's or Tenant's notice,
as if such date were the Expiration Date. Upon such date, Tenant shall quit,
surrender and vacate the Premises as if upon expiration of the Term; and all
Rents shall be apportioned as of such date (subject to Section 11.6).
11.6. If the Premises become unusable by Tenant for more than five consecutive
Business Days from Damage to the Premises or the Building (except any Damage
caused by the acts or omissions of Tenant or its Employees or invitees), Tenant
shall receive an abatement of Fixed Rent and
10
Additional Rent from the date of the Damage to the date when such Damage is
Restored. Such abatement shall be proportional to the ratio which the square
footage of the Damaged area of Premises bears to the total square footage of the
Premises.
11.7. This Article shall be considered an express agreement governing Damage to
the Premises and/or the Building; and (to the extent permitted by law) any
statute purporting to govern in such cases, now or subsequently in force, shall
have no application under this Lease.
ARTICLE 12. Condemnation.
12.1. If the entire Premises is Condemned or taken in Condemnation, this Lease
shall terminate and expire as of the effective date of such Condemnation.
12.2. If more than 15% of the usable area of the Land on which the Building has
been constructed (excluding adjacent Land not necessary to the operation or
maintenance of the Building), the Parking Lot, and/or the Building shall be
Condemned (whether or not the Premises are Condemned), Landlord may terminate
this Lease by notice to Tenant within 90 days after the effective date of such
Condemnation; and this Lease shall terminate on the date specified in Landlord's
notice (which shall be at least 60 days after the date of such notice).
12.3. Subject to Section 12.2, if part (but not all) of the Premises is
Condemned, this Lease shall terminate with respect only to the portion of the
Premises so Condemned, as of the effective date of such Condemnation. In all
other respects this Lease shall remain in effect except that Rents shall be
reduced, after such date, in the proportion which the square footage of the area
so Condemned bears to the Premises.
12.4. Notwithstanding Section 12.3, if more than 10% of the Premises is
Condemned, or if there is a Condemnation of a substantial part of the means of
access to the Premises, Tenant may terminate this Lease by notice to Landlord
given within 90 days after the effective date of such Condemnation; and this
Lease shall terminate 30 days after the giving of Tenant's notice.
12.5. In event of any Condemnation of the Land, the Building or the Premises,
whether or not this Lease terminates, Landlord shall be entitled to the entire
award and compensation, without deduction for any estate vested in Tenant by
this Lease (or any value attributable thereto). Tenant hereby assigns to
Landlord Tenant's entire interest (if any) in or to any such award and
compensation (other than Tenant's claim for statutory moving expenses, if any);
and Tenant agrees to execute and file, at Landlord's expense, all documents and
instruments necessary or desirable to facilitate Landlord's collection of such
award and compensation.
12.6. If this Lease terminates in whole or in part under this Article, the
effect shall be the same (as to the affected portion of the Premises) as if the
date of such Condemnation were the Expiration Date; and Rents shall be
apportioned as of such date.
ARTICLE 13. Public Areas; Conference Rooms; Parking Lot.
13.1. The Public Areas shall be subject to Landlord's management. Landlord may
establish, amend, and enforce reasonable rules concerning the Public Areas and
the Premises (the "Building Rules") from time to time. The current Building
Rules are attached hereto as Exhibit C. Any modifications, amendments or
additions to the Building Rules shall be subject to Tenant's reasonable
approval.
13.2. Tenant and its Employees and invitees shall have the non-exclusive right,
in common with Landlord (and others to whom Landlord has granted or may in the
future grant rights), to use the Public Areas subject to the Building Rules and
Landlord's rights as set forth above. Landlord may close any Public Areas
temporarily at any time to make repairs or changes, to prevent the acquisition
of public rights, and for other reasonable purposes.
13.3. Tenant shall have the right to use the conference rooms located on the
first floor of the Building (the "Conference Rooms") subject to availability
during Business Hours and Overtime Hours for a reasonable fee to be agreed to
between Landlord and Tenant. Landlord and Tenant agree that the initial fee for
using each room shall be $100.00 per room per day or any portion of such day.
Tenant shall have the right to use the cafe/cafeteria in the Building for
Tenant's exclusive use for special events subject to availability during
Overtime Hours for a reasonable fee to be agreed to between Landlord and Tenant.
Landlord and Tenant agree that the Initial Fee for such use of the
cafe/cafeteria shall be $200.00 per day or any portion of such day. Tenant shall
cause such areas to be cleaned and restocked, as necessary, promptly after the
completion of Tenant's use thereof at Tenant's sole cost expense. In the event
that Tenant fails to comply with the terms of this Section 13.3 and such other
reasonable rules and regulations of Landlord relating to the use of such areas,
Landlord shall be permitted to terminate Tenant's use rights of such areas under
this Section 13.3 only.
13.4. Tenant and its employees, guests, and invitees shall have the nonexclusive
right to use up to 120 parking spaces in the Parking Lot. Notwithstanding
anything to the contrary in this Lease, Landlord agrees that during the Term,
the Parking Lot shall be operated on a "first come", "first served" basis and
that Landlord shall not create "reserved" parking spots in
11
the Parking Lot in addition to those spots currently designated as "reserved".
13.5. Tenant agrees and acknowledges that Landlord shall not have any obligation
to continue operation of the cafe/cafeteria or to otherwise provide any food
service facilities or services at the Building and that Tenant shall have no
claim whatsoever against Landlord or any other policy in the event of the
cessation of such operation.
ARTICLE 14. Signs.
14.1. Tenant shall have the right to install and maintain at Tenant's expense a
panel on the pylon sign on the Land identifying the occupant(s) of the Premises.
Landlord shall have the right to approve the location, materials, dimensions,
and design of such signage which approval shall not to be unreasonably withheld
or delayed.
ARTICLE 15. Landlord's Access to Premises; Related Matters.
15.1. Tenant shall permit Landlord to erect, use and maintain pipes, ducts and
conduits in and through the Premises, provided the same are installed adjacent
to or concealed behind walls and ceilings of the Premises. To the extent
reasonably practicable, Landlord shall install such pipes, ducts and conduits by
methods and in locations which will not materially interfere with or impair
Tenant's layout or use of the Premises.
15.2. Landlord shall be allowed to bring into and store upon the Premises all
necessary materials, equipment, tools, facilities, and supplies to be used for
any work permitted or required under this Lease without the same constituting an
actual or constructive eviction of Tenant; and Rents shall not xxxxx while said
repairs or alterations are being made except as otherwise provided in this
Lease. Landlord shall exercise reasonable diligence to minimize disturbance to
Tenant during any such work but need not perform any work on an overtime or
premium pay basis.
15.3. Landlord reserves the right, without the same constituting an actual or
constructive eviction and without incurring liability to Tenant, to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, if any, stairways, toilets and/or other public parts of
the Building, if any; provided, however, that there shall be no obstruction of
access to the Premises or interference with Tenant's use or enjoyment of the
Premises.
15.4. Tenant authorizes Landlord and Landlord's Employees to enter the Premises
during Business Hours on at least 24 hours prior notice (provided that such
prior notice shall not be required in emergency situations) (a) to inspect the
Premises; and/or (b) to perform any maintenance or to make any repairs,
alterations, or improvements which Landlord deems necessary to the Premises or
which are otherwise permitted under this Lease (including any work required
under Article 9 which Tenant has failed to perform or make). Landlord shall not
enter the Premises unless accompanied by a representative of Tenant except in
case of emergency.
15.5. Landlord shall repair any damage to property caused by willful acts or
gross negligence of Landlord or Landlord's Employees.
15.6. Tenant agrees to permit Landlord and/or any Employee of Landlord to enter
the Premises during Business Hours, on at least 24 hours prior notice and so
long as accompanied by a representative of Tenant, to exhibit the Premises in
connection with:
(a) any prospective sale or lease of the Land and/or the Building; or
(b) any prospective securing, refinancing, or assignment of any mortgage
affecting the Land or the Building; and/or
(c) during the final twelve (12) months of the Term, any prospective
leasing of the Premises.
15.7. If, during the last month of the Term, Tenant has removed all of Tenant's
Property, Landlord may (at Landlord's option but without any liability to do so)
immediately enter and alter, renovate and redecorate the Premises, without
abatement or adjustment of any Rents or incurring liability to Tenant for any
compensation; and such acts shall have no effect upon this Lease.
ARTICLE 16. Subordination: Estoppel Certificate; Attornment.
16.1. This Lease (as amended, modified, extended, or otherwise revised from time
to time), and the leasehold estate created hereby, are now and shall hereafter
be subject and subordinate in every respect to all Senior Encumbrances. This
subordination shall be self-operative without requirement of any further
instrument of subordination from any Person to whom (or to whose interest) this
Lease, and leasehold estate created hereby, are subordinate. However, if and
whenever requested by Landlord or the holder of any Senior Encumbrance, Tenant
shall execute and deliver within ten (10) days of such request any certificate
or instrument requested to evidence such subordination.
16.2. Upon request of any present or future or prospective fee owner or the
holder of any Senior Encumbrance who succeeds to the rights of Landlord
hereunder, whether through
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conveyance pursuant to sale, possession, foreclosure action, expiration or
earlier termination of any ground lease, or otherwise (any such Person, a "New
Landlord"), Tenant shall attorn to and recognize each New Landlord as "Landlord"
under this Lease (as the same may then have been amended or modified); and
Tenant shall promptly execute and deliver any instrument which each New Landlord
may reasonably request to evidence such attornment. Upon such attornment, this
Lease (as then amended, modified, extended, or otherwise revised) shall continue
in full force and effect as, or as if it were, a direct lease between New
Landlord and Tenant; except, however, that any New Landlord shall not:
(a) be liable for any previous act or omission of Landlord under the
Lease, or any claim which shall have previously accrued to Tenant against any
prior Landlord, except, however, to the extent that such act or omission or
claim is continuing; or
(b) be bound by any prepayment to any prior Landlord of more than one
month's Fixed Rent or Additional Rent, unless the New Landlord shall have
approved the prepayment in writing; or
(c) be subject to any offsets, claims, defenses, or counterclaims which
Tenant might have against any prior Landlord.
16.3. At either party's request from time to time, Landlord or Tenant, as
applicable, shall, within ten (10) days of such request, execute, acknowledge
and deliver to the other party a written statement (each such statement, an
"Estoppel Certificate") certifying that, except as specifically disclosed in
such Estoppel Certificate, on the date thereof:
(a) attached to the Estoppel Certificate is a true, correct and complete
copy of this Lease, including any and all amendments and modifications thereof;
(b) there are no agreements other than this Lease (and, except as attached
hereto, no amendments, modifications, extensions, or other revisions of this
Lease) in effect between Tenant and Landlord (or Tenant and any other Person)
with respect to the Premises;
(c) this Lease is valid and in full force and effect and to such party's
knowledge, such party has no setoffs, claims or defenses of any kind whatsoever
to enforcement of this Lease;
(d) to such party's knowledge, such party has no claim, demand, cause of
action or right to institute any Legal Proceeding against the other party
arising out of or by virtue of this Lease or by reason of Tenant's occupancy and
use of the Premises.
In each Estoppel Certificate, such party shall certify, also, the amount of
Fixed Rent then payable under this Lease, the amounts (and elements) of
Additional Rent (if any) then payable and the dates to which the same has been
paid, and such other matters as Landlord or Tenant or the holder of any Senior
Encumbrance may reasonably request. Tenant agrees that a prospective purchaser
or mortgagee of Landlord's interest in this Lease, the Premises, the Building,
and/or the Land, or the holder of any Senior Encumbrance (or the assignee of any
such Person), may rely upon such an Estoppel Certificate.
16.4. If the holder of any Senior Encumbrance requests reasonable modifications
in this Lease as a condition to approval of any financing or refinancing of the
Land or the Building, Tenant will not unreasonably withhold or delay making any
requested modifications which do not increase Fixed Rent or Additional Rent,
impose additional liabilities on Tenant, or shorten or extend the Term or
otherwise reduce Tenant's rights or increase Tenant's obligations under this
Lease.
16.5. Except for the first month's Fixed Rent, Tenant will pay no Rents under
this Lease more than thirty (30) days in advance of the due date.
16.6. Tenant will not exercise any right (or alleged right) to terminate this
Lease based upon any alleged act or omission of Landlord, unless Tenant first
gives written notice of such act or omission to the holder of each Senior
Encumbrance (provided Tenant has received written notice of and contact
information for such holder) and until a reasonable period to remedy such act or
omission elapses after the giving of such notice (during which time such holder
shall have the right, but no obligation, to remedy the alleged act or omission).
Tenant agrees, further, not to exercise any such right if the holder of any such
Senior Encumbrance commences to cure such act or omission within a reasonable
time after such notice and diligently prosecutes such cure to completion.
ARTICLE 17. Surrender of Premises.
17.1. Upon the expiration of the Term or any earlier termination of this Lease,
Tenant shal l quit and surrender to Landlord the Premises, broom clean, in the
condition required under this Lease, excepting ordinary wear and tear and Damage
(other than Damage caused by the willful misconduct or negligence of Tenant or
its Employees). This Section shall survive the expiration of the Term or any
earlier termination of this Lease.
17.2. If Tenant holds over after the Expiration Date (or any earlier termination
of this Lease) without Landlord's written consent, at Landlord's election, such
holding over shall be deemed a month-to-month tenancy subject to all of the
terms, covenants and conditions herein specified and terminable on
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thirty (30) days' prior written notice, provided, however, that Fixed Rent shall
be $50,000 per month (i.e., 125% of the amount set forth in the Business Terms
section of this Lease).
ARTICLE 18. Assignment, Mortgaging, Subletting, etc.
18.1. Except as otherwise expressly provided in this Article, Tenant shall not,
without obtaining the prior written consent of Landlord (which consent shall not
be unreasonably withheld or delayed) in each instance:
(a) assign or otherwise transfer this Lease, or any part of Tenant's
right, title or interest therein;
(b) sublet all or any part of the Premises or allow all or any part of the
Premises to be used or occupied by any other Persons; or
(c) mortgage, pledge or otherwise encumber this Lease, or the Premises.
For purposes of this Article:
(w)the transfer of more than fifty percent (50%) of any class of capital
stock of any corporate tenant or subtenant, or the transfer of more than fifty
percent (50%) of the total interest in any other Person which is a tenant or
subtenant, however accomplished, whether in a single transaction or in a series
of related or unrelated transactions, shall be deemed an assignment of this
Lease, or of such sublease, as the case may be, except however, that such
transfer shall not be deemed an assignment (and shall not require Landlord's
consent) if such transfer is for a bona fide business purpose and not a device
for the transfer of Tenant's interest in this Lease and Tenant so certifies to
Landlord;
(x) an agreement by any other Person, directly or indirectly, to assume
Tenant's obligations under this Lease (or to reimburse Tenant for any Rents
payable under this Lease) shall be deemed an assignment;
(y)any Person to whom Tenant's interest under this Lease passes by
operation of law, or otherwise, shall be bound by the provisions of this
Article; and
(z) each modification, amendment or extension of any sublease to which
Landlord has previously consented shall be deemed a new sublease.
Tenant agrees to furnish to Landlord upon demand at any time such information
and assurances as Landlord may reasonably request that neither Tenant, nor any
previously permitted subtenant, has violated the provisions of this Article.
18.2. Any assignment, whether made with or without Landlord's consent (as
required by Section 18.1), shall not be effective, and shall be null and void as
against Landlord, unless and until the assignee shall execute, acknowledge and
deliver to Landlord an agreement, in form and substance reasonably satisfactory
to Landlord, under which the assignee assumes the obligations and performance of
this Lease and agrees to be bound personally by all of the covenants,
agreements, terms, provisions and conditions hereby on the part of Tenant to be
performed or observed on and after the effective date of any such assignment.
ARTICLE 19. Quiet Enjoyment.
19.1. Upon paying Fixed Rent and Additional Rent and keeping and performing the
terms, covenants, conditions and provisions of this Lease, Tenant may lawfully
and quietly hold and enjoy the Premises during the Term SUBJECT, HOWEVER, to the
terms, covenants, conditions, and provisions of this Lease.
ARTICLE 20. Real Estate Brokers.
20.1. Tenant covenants, represents and warrants that Tenant has had no dealings
with any real estate broker, finder, or sales agent in connection with the
negotiation and execution of this Lease.
20.2. Tenant agrees to indemnify and hold Landlord harmless from and against any
commission or fee claimed by any real estate broker, finder, or other Person
with respect to the negotiation or execution of this Lease if such claim(s) are
based in whole or in part on dealings with Tenant (or by, through, or under any
Person claiming to have had such dealings). Tenant's indemnity shall cover,
also, all Fees-And-Costs which Landlord incurs to defend against any such claim.
20.3. Landlord agrees to indemnify and hold Tenant harmless from and against any
commission or fee claimed by any real estate broker, finder, or other Person
with respect to the negotiation or execution of this Lease if such claim(s) are
based in whole or in part on dealings with Landlord (or by, through, or under
any Person claiming to have had such dealings). Landlord's indemnity shall
cover, also, all Fees-And-Costs which Tenant incurs to defend against any such
claim.
ARTICLE 21. Adjacent Excavation; Shoring; Construction.
If excavation, foundation, other substructure or superstructure work, or
other construction work shall be made or authorized in, on or upon land adjacent
to the Premises, the Land and/or the Building, Tenant shall afford to the Person
causing (or authorized to cause) such excavation or construction, license to
enter the Premises to do such work as necessary to preserve the walls of the
Building from injury or
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damage, and to support the same by proper foundations, without any claim for
damages or indemnity against Landlord, or diminution or abatement of Rents.
ARTICLE 22. Defaults; Conditional Limitations; Remedies.
22.1. Each of the following events shall be a "Default" under this Lease:
(a) Tenant fails to pay any installment of Fixed Rent or Additional Rent
within five days after written notice from Landlord, provided that such notice
and cure period shall be afforded to Tenant only two times in any consecutive
12-month period;
(b) Tenant admits, in writing, that Tenant is unable to pay Tenant's debts
as such become due;
(c) Tenant makes an assignment for the benefit of creditors;
(d) Tenant files a voluntary petition in bankruptcy or a petition is filed
against Tenant and an order for relief is entered, or Tenant files any petition
or answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future federal,
state or other law, or Tenant seeks or consents to or acquiesces in or suffers
the appointment of any trustee, receiver or liquidator of Tenant or of the
Premises (or Tenant's interest therein) or of all or any substantial part of
Tenant's properties;
(e) Within sixty (60) days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal, state or other law, such proceeding is not dismissed; within
sixty (60) days after the appointment (without the consent or acquiescence of
Tenant) of any trustee, receiver or liquidator of Tenant or of all or any
substantial part of Tenant's properties or of the Premises (or Tenant's interest
therein), such appointment is not vacated or stayed on appeal or otherwise, or
within sixty (60) days after the expiration of any such stay, such appointment
shall not have been vacated;
(f) Tenant sublets the Premises (or any part thereof) or mortgages,
pledges, assigns, transfers, or otherwise disposes of this Lease (or any part of
Tenant's right, title, and interest hereunder) without complying with all
requirements of this Lease;
(g) Tenant fails to secure or maintain any Required Insurance;
(h) A levy under execution or attachment is made against Tenant or
Tenant's property and is not vacated or removed by court order, bonding or
otherwise within thirty (30) days thereafter;
(i) Tenant uses (or permits the use of) the Premises in violation of the
certificate of occupancy for the Premises after five (5) days' written notice
from Landlord; and/or
(j) Tenant fails to keep or perform any other term, covenant, condition,
or provision of this Lease, and such failure continues for thirty (30) days
after written notice from Landlord - unless such failure is susceptible of cure
and requires work to be performed, acts to be done, or conditions to be removed
which cannot be performed, done or removed within such thirty (30) days, in
which case the Default shall not be deemed to exist as long as Tenant:
(i) advises Landlord by written notice within ten (10) days after
Landlord's notice that Tenant intends to take all steps necessary to remedy such
failure with due diligence and specifies a reasonable date by which all steps
will have been completed which date shall not be more than ninety (90) days
after Tenant's notice;
(ii) duly commences curing the same within such period;
(iii) diligently and continuously prosecutes to completion all steps
necessary to remedy the same and prior to the date specified by Tenant for the
completion thereof.
22.2. If and whenever any Default occurs, at Landlord's option, Landlord may
give written notice to Tenant (the "Termination Notice"), stating that this
Lease and the Term shall expire and terminate on the date specified in such
Termination Notice (which date shall be not less than ten (10) days after the
giving of the Termination Notice). In such event, this Lease and the Term (and
Tenant's entire right, title, and interest therein) shall expire and terminate
as if the date specified in the Termination Notice were the Expiration Date; and
Tenant shall quit and surrender the Premises but shall remain liable as provided
in this Lease.
22.3. If and whenever any Default occurs, and/or if this Lease and the Term
terminate under Section 22.2 or otherwise, Landlord may without notice re-enter
and repossess the Premises using such lawful force for that purpose as may be
necessary without being liable to indictment, prosecution or damages; and Tenant
shall remain liable as provided in this Lease. If Landlord so re-enters, at its
option, and whether or not this Lease and the Term have terminated, Landlord
may:
15
(a) repair and alter the Premises in such manner as Landlord may deem
necessary or desirable without relieving Tenant of any liability whatsoever
under this Lease; and/or
(b) let or relet the Premises (or any parts thereof) for the whole or any
part of the remainder of the Term or for a longer period, in Landlord's name or
as agent of Tenant, and pay and apply all rents and other sums thus collected or
received as follows:
(i) first, to all costs and expenses (including all Fees-And-Costs
which Landlord pays or incurs in terminating this Lease, re-entering, retaking,
repossessing, repairing and/or altering the Premises, and removing all Persons
and property therefrom;
(ii) second, to all costs and expenses which Landlord incurs in
securing any new tenant(s) of the Premises (including in such costs brokerage
commissions and expenses of preparing the Premises for reletting, and all
Fees-And-Costs), and, if Landlord maintains the Premises, all costs and expenses
of maintaining the Premises, including utilities); and
(iii) third, any balance of Rents and other amounts then remaining
on account of Tenant's liability to Landlord under this Lease.
In no case shall re-entry by Landlord, whether under summary proceedings or
otherwise, absolve or discharge Tenant from any liability whatsoever under this
Lease.
22.4. If Tenant Defaults and/or if this Lease and the Term terminate under
Section 22.2 or otherwise, and/or if Landlord re-enters the Premises under
Section 22.3 or by any summary proceeding or other Legal Proceeding, then, in
any of such events:
(a) Tenant shall pay Landlord all Fixed Rent and Additional Rent due under
this Lease to the date upon which this Lease and the Term have terminated or to
the date of re-entry upon the Premises by Landlord, as the case may be; and
(b) Tenant shall pay Landlord, also, as damages, any deficiency (a
"Deficiency") between (i) the Fixed Rent and all Additional Rent reserved in
this Lease for the period which otherwise would have constituted the unexpired
portion of the Term and (ii) the amount, if any, of rents actually collected by
Landlord under any reletting effected pursuant to Section 22.3(c) for any part
of such period (after deducting from such collections all Fees-and-Costs and
other amounts paid or incurred by Landlord pursuant to Section 22.3. Tenant
shall pay any Deficiency in installments on the days specified in this Lease for
payments of Fixed Rent. Landlord shall be entitled to recover from Tenant each
Deficiency installment as the same arises; and no Legal Proceeding to collect
any Deficiency installment shall prejudice Landlord's right to collect any
subsequent installment by a similar or other Legal Proceeding.
Whether or not Landlord collects any unpaid Deficiency installments under (b)
above, Tenant shall pay Landlord, on demand, in lieu of any further Deficiency,
as and for liquidated and agreed final damages (it being agreed that it would be
impractical or extremely difficult to fix the actual damages), a sum equal to
the amount by which Fixed Rent and Additional Rent reserved in this Lease for
the period which otherwise would have constituted the unexpired portion of the
Term exceeds the then fair and reasonable rental value of the Premises for the
same period, both discounted to present worth at the rate of four (4%) per cent
per annum. If, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the Premises (or any party thereof) shall have
been relet for the period which otherwise would have constituted the unexpired
portion of the Term, the amount of rent reserved upon such reletting shall be
deemed prima facie the fair and reasonable rental value for the part or the
whole of the Premises so relet during the term of such reletting.
22.5. Landlord may bring Legal Proceedings from time to time, at Landlord's
election, for the recovery of damages, or for a sum equal to any installment or
installments of Fixed Rent or Additional Rent or any Deficiency or other sum
payable by Tenant to Landlord pursuant to this Article; and nothing in this
Lease shall require Landlord to await the originally scheduled Expiration Date
for any such purpose.
22.6. No receipt of moneys by Landlord from Tenant after the giving of a
Termination Notice, or after a termination of this Lease, shall reinstate,
continue or extend the Term or affect any Termination Notice or other written
notice previously given to Tenant, or operate as a waiver of Landlord's right to
enforce payment of Fixed Rent or Additional Rent then or subsequently becoming
due, or operate as a waiver of Landlord's right to recover possession of the
Premises. Tenant agrees that after the giving of a Termination Notice or
commencement of summary proceedings or other Legal Proceeding, or after final
order or judgment for possession of the Premises, Landlord may demand, receive
and collect all moneys without invalidating or rescinding such Termination
Notice, proceeding, order, suit or judgment; and at Landlord's election, all
moneys so collected shall be deemed payments either on account of the use and
occupancy of the Premises or on account of Tenant's liability hereunder.
22.7. If Tenant is dispossessed by judgment or warrant of any court, or in the
event of re-entry or repossession by Landlord or in the event of expiration or
any termination of
16
this Lease, Tenant (on behalf of Tenant and all Persons claiming by, through, or
under Tenant) hereby expressly waives to the fullest extent permitted by law (a)
service of any notice of intention to re-enter now or hereafter provided by law,
or of commencement of Legal Proceedings for such purpose; (b) any and all right
of redemption now or hereafter provided by law; and (c) any re-entry or
repossession or right to restore the Term or legal continuance of this Lease.
22.8. Landlord and Tenant hereby waive trial by jury in any Legal Proceeding
brought by either against the other with respect to any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, or any claims of
injury or damage.
22.9. No failure by Landlord or Tenant to insist upon the strict performance of
any covenant, agreement, term or condition of this Lease or to exercise any
right or remedy after any Default, and no acceptance of full or partial Fixed
Rent or Additional Rent during the continuance of any Default shall constitute a
waiver of any such covenant, agreement, term, condition, or Default. No
covenant, agreement, term or condition of this Lease to be performed or complied
with by Tenant, and no Default, shall be waived, altered or modified except by a
written instrument executed by Landlord.
22.10. In event of any Default, or any actual or threatened breach by either
party of any term, covenant, condition or provision of this Lease, the other
party shall be entitled to enjoin such Default or actual or threatened breach
and shall have the right to invoke all rights and remedies allowed at law or in
equity as though this Lease did not provide for re-entry, summary proceedings,
or other remedies.
22.11. Each right and remedy of Landlord in this Lease shall be cumulative and
in addition to every other right or remedy in this Lease, or now or hereafter
existing at law or in equity; and the exercise (or beginning of exercise) by
Landlord of any one or more rights or remedies shall not preclude the
simultaneous or later exercise by Landlord of any and all other rights or
remedies.
ARTICLE 23. Indemnification.
23.1. Tenant hereby agrees, to the fullest extent permitted by law, to indemnify
each and every Indemnitee and hold each and every Indemnitee harmless from and
against (and to pay the full amount of) all loss, liability, obligation, damage,
penalty, tax, cost, claim, demand, judgment, charge, or expense of every kind
whatsoever which any Indemnitee may suffer, incur, or pay out, or which may be
asserted against any Indemnitee, in whole or in part, by reason of, or in
connection with:
(a) Tenant's use, occupancy, management or control of the Premises, or
Tenant's operations, conduct or activities in the Premises;
(b) any Legal Proceeding by Landlord to terminate the Lease, or any other
Legal Proceeding by Landlord against Tenant, in which Landlord secures a
judgment against Tenant, final beyond appeal, or in which Landlord receives any
payment from Tenant pursuant to any written settlement agreement disposing of
such Legal Proceeding;
(c) any Default by Tenant in the observance or performance of any
obligation under the Lease;
(d) any bodily injury, sickness, disease or death of or to any person or
persons, or any Damage to or of the Premises, (or to property of any other
Person), resulting (or alleged to result) from any acts or omissions of Tenant
or Tenant's Employees;
(e) any failure of Tenant to comply with Laws or Insurance Requirements;
(f) any failure of Tenant to secure and maintain Required Insurance (or
any loss of coverage under any Required Insurance); and/or
(g) any other appearance by Landlord (or any Employee of Landlord) as a
witness or otherwise in any Legal Proceeding whatsoever involving or affecting
Tenant or this Lease.
23.2. Tenant shall defend any and all Legal Proceedings commenced against
Landlord by any Person (other than Tenant) concerning any matter covered by any
indemnity or obligation under Section 23.1 (regardless of any alleged fault or
cause). Tenant shall deliver to Landlord copies of documents served in any such
Legal Proceeding and, whenever requested by Landlord, shall advise as to the
status of such Legal Proceeding. If Tenant fails to defend diligently any such
Legal Proceeding, or if Landlord elects to defend by written notice to Tenant at
any time, Landlord shall have the right (but no obligation) to defend the same
at Tenant's expense. Tenant shall not settle any such Legal Proceeding without
Landlord's prior written consent unless such settlement (i) provides solely for
the payment of money by the Tenant, (ii) provides a complete release of the
Landlord from all matters that were or could have been asserted in connection
with such Legal Proceedings and (iii) does not involve any finding or admission
of any violation of law or any violation of the rights of any Person and does
not affect any other claims that may be made against the Landlord.
23.3. Tenant's indemnities and obligations under Sections 23.1 and 23.2 shall
cover and include all Fees-And-Costs
17
incurred by Landlord in connection with any and every matter and amount referred
to in Sections 23.1 and 23.2, as well as Fees-And-Costs incurred by Landlord to
enforce Landlord's rights and remedies under this Article. Tenant shall pay all
such Fees-And-Costs to Landlord upon demand.
23.4. Tenant shall notify Landlord immediately of every Legal Proceeding or
claim which may or might be covered by any indemnity under this Article 23
and/or by any Required Insurance. Tenant shall also give timely notice of such
Legal Proceedings and claims to each insurer which has issued an applicable
policy of Required Insurance.
ARTICLE 24. Notices.
All notices, requests, demands, elections, consents, approvals and other
communications hereunder must be in writing (each such, a "notice") and
addressed to the parties at their Notice Addresses (or to any other address
which either party may designate by notice). Any notice required by this Lease
to be given or made within a specified period of time, or on or before a date
certain, shall be deemed to have been duly given only if delivered by hand,
evidenced by written receipt, or mailed by first class, certified or registered
mail, return receipt requested, postage and fees prepaid. A notice sent by
certified or registered mail (as above) shall be deemed given two (2) Business
Days after mailing. All other notices shall be deemed given when received.
ARTICLE 25. No Waivers.
25.1. No agreement to accept a surrender of this Lease shall be valid unless in
writing signed by Landlord. No Employee of Landlord shall have any power to
accept the keys of the Premises prior to the Expiration Date. The delivery of
keys to any Employee of Landlord shall not operate as a termination of this
Lease or a surrender of the Premises. If Tenant at any time desires to have
Landlord sublet the premises for Tenant's account, Landlord or Landlord's
Employees are authorized to receive said keys for such purpose without releasing
Tenant from any of the obligations under this Lease. The failure of Landlord to
seek redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this Lease or any of the Rules and Regulations (now or
hereafter in effect) shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of Rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of such breach.
25.2. This Lease contains the entire agreement between the parties, and any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
ARTICLE 26. No Representations by Landlord; Landlord's Interest; Transferee
Landlords.
26.1. Tenant agrees that Landlord and Landlord's Employees have made no
representations or promises with respect to the Land, the Building, the
Premises, or any terms, covenants, conditions, or provisions of this Lease,
except as expressly set forth in this Lease; and, except as expressly set forth
in this Lease or in that certain Stock and Asset Purchase Agreement entered into
between Landlord and Capital Assurance Corporation as of February 9, 2005.
Tenant accepts the Premises "as is" in the condition existing on the date of
this Lease.
26.2. Tenant agrees to look solely to Landlord's interest in the Premises for
the satisfaction of any right or remedy of Tenant for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord
(or Landlord's Affiliates), in the event of any liability by Landlord, and no
other property or assets of Landlord (or Landlord's Affiliates) shall be subject
to levy, execution, attachment, or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy of
the Premises, or any other liability of Landlord (or Landlord's Affiliates) to
Tenant.
26.3. In the event of any transfer of title to the Land or the Building, or in
the event of a lease of the Building, or of the Land and Building, upon written
notification to Tenant of such transfer or lease the transferor Landlord shall
be released from future covenants, obligations and liabilities of Landlord under
this Lease accruing or arising thereafter; and it shall be deemed a covenant
running with the land that the transferee or lessee, as applicable, has assumed
and agreed to carry out any and all covenants, obligations and liabilities of
Landlord under this Lease accruing or arising after such event.
ARTICLE 27. Consent to Jurisdiction.
Tenant hereby agrees that any Legal Proceeding with respect to this Lease
may be brought in the courts of the State. Tenant hereby accepts with regard to
any such Legal Proceeding, for itself and in respect of its property, generally
and unconditionally, the jurisdiction of such courts. Nothing in this Article
shall affect Landlord's rights to commence Legal Proceedings or otherwise
proceed against Tenant in any other jurisdiction in which assets of Tenant are
located or to serve process in any other manner permitted by applicable law.
Tenant agrees that final judgment in any such Legal Proceeding shall be
conclusive and, to the extent permitted by applicable law, may be enforced in
any other jurisdiction within or outside the United States by suit on the
judgment (a
18
certified or exemplified copy of which shall be conclusive evidence of the fact
and of the amount of Tenant's indebtedness).
ARTICLE 28. Termination of Current Lease.
28.1. That certain Office Building Lease dated December 28, 2001 (the "Prior
Lease") entered into between Landlord and Tenant with respect to the Premises,
is terminated effective as of the Commencement Date hereof and Landlord
represents and warrants that: (a) there are no other leases or occupancy
agreements now in effect or pending with respect to the Premises, other than
this Lease, and (b) no obligations or liabilities of Tenant (including any
obligation to remove or restore or pay for the removal or restoration of any
existing improvements in the Premises) under the Prior Lease survive termination
of such Prior Lease.
ARTICLE 29. Miscellaneous.
29.1. This Lease shall be governed by and construed in accordance with the laws
of the State of Indiana (without giving effect to principles of conflicts of
laws). This Lease shall be construed without regard to any presumption or other
rule requiring construction against the party causing this Lease to be drafted.
Unless otherwise specifically provided in this Lease, each covenant, agreement,
obligation or other provision of this Lease to be performed by Tenant shall be
deemed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease. The captions of this document are for convenience
and do not define, limit or describe the scope of this Lease or the intent of
any provisions thereof.
29.2. Any interest payable by Tenant under this Lease shall be at the Interest
Rate, unless otherwise provided. If and whenever Tenant is in arrears in payment
of Fixed Rent or Additional Rent, Tenant waives Tenant's right (if any) to
designate the items against which any payments made by Tenant are to be
credited; and Tenant agrees that Landlord may apply any payments by Tenant, in
Landlord's judgment, among amounts owed by Tenant to Landlord, notwithstanding
any specific designation or request by Tenant.
29.3. All Exhibits, Schedules, and Riders to this Lease form part of this Lease
and are incorporated in this Lease.
29.4. The terms, covenants, conditions, and provisions of this Lease shall bind
and inure to the benefit of Landlord and Tenant and, subject to Article 18,
their respective legal representatives, successors, and assigns.
29.5. No remedy or election of Landlord under this Lease shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at
law or in equity.
29.6. If any term, covenant, condition or provision of this Lease (or the
application thereof) shall be invalid or unenforceable to any extent, the
remaining terms, covenants, conditions and provisions of this Lease shall not be
affected thereby; and each remaining term, covenant, condition and provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
29.7. Landlord's acceptance of any name for listing on the Building directory or
signage will not be deemed, nor will it substitute for, Landlord's consent, as
required by this Lease, to any sublease, assignment, or other occupancy of the
Premises.
19
IN WITNESS WHEREOF, LANDLORD AND TENANT HAVE RESPECTIVELY EXECUTED
THIS LEASE AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
LANDLORD:
STANDARD MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
TENANT:
STANDARD LIFE INSURANCE COMPANY OF INDIANA
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
Exhibit A
The Premises
A portion of the first and the entire second floor of the Building
comprising approximately 22,294 square feet as shown on the floor plans attached
hereto as Exhibit A-1.
X-X-0
Xxxxxxx X-0
[Attach]
E-A-1-1
Exhibit B
BUILDING RULES AND REGULATIONS
1. WINDOW TREATMENTS, SIGNS AND EXTERIOR APPEARANCE: No signs, pictures,
advertisements or notices visible from the exterior of the Premises shall
be installed, affixed, inscribed, painted or otherwise displayed by Tenant
on any part of the Premises or the Building unless the same is first
approved by Landlord. Any such sign, picture, advertisement or notice
approved by Landlord shall be painted or installed for Tenant at Tenant's
cost by Landlord or by a party approved by Landlord. No awnings, curtains,
blinds, shades or screens shall be attached to or hung in, or used in
connection with any window or door of the Premises without the prior
consent of the Landlord, including approval by the Landlord of the
quality, type, design, color and manner of attachment. In the event of any
breach of the foregoing, Landlord may remove the applicable item, and
Tenant agrees to pay the cost and expense of such removal and associated
repairs.
2. ELECTRICAL LOAD: Tenant agrees that its electrical load shall never exceed
the capacity of existing feeders, risers or wiring installation if a
specific capacity is described in Section 4.10 of the Lease. Any wires and
wiring installed by or on behalf of Tenant within any riser of the
Building shall be bundled together within such riser and a tag shall be
placed on such bundle at each floor of the Building identifying the
floor(s) served by each bundle and the name and telephone number of a
representative of Tenant to contact in the case of an emergency.
3. APPROPRIATE USES FOR INTERIOR AND EXTERIOR SPACE: The interior and
exterior of the Premises shall not be used for storage of any types of
materials other than business related items in designated areas to be
determined by Landlord. Tenant shall not do or permit to be done in or
about the Premises or Building anything which shall increase the rate of
insurance on said Building or obstruct or interfere with the rights of
other lessees of Landlord or annoy them in any way, including, but not
limited to, using any musical instrument, making loud or unseemly noises,
or singing, etc. The Premises shall not be used for sleeping or lodging.
No cooking or related activities shall be done or permitted by Tenant in
the Premises except with permission of Landlord. Tenant will be permitted
to use for its own employees within the Premises a refrigerator, a small
microwave oven and Underwriters' Laboratory approved equipment for brewing
coffee, tea, hot chocolate and similar beverages, provided that such use
is in accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations, and provided that such use shall
not result in the emission of odors from the Premises into the common area
of the Building. No vending machines of any kind will be installed,
permitted or used on any part of the Premises without the prior consent of
Landlord. No part of said Building or Premises shall be used for gambling,
immoral or other unlawful purposes. No intoxicating beverage shall be sold
in said Building or Premises without prior written consent of the
Landlord.
4. ANIMALS AND VEHICLES: No birds or animals of any kind shall be brought
into the Building (other than trained assist dogs required to be used by
the visually impaired). No bicycles, motorcycles or other motorized
vehicles shall be brought into the Building.
5. APPROPRIATE USE OF BUILDING. The sidewalks, entrances, passages,
corridors, halls, elevators, and stairways in the Building shall not be
obstructed by Tenant or used for any purposes other than those for which
same were intended as ingress and egress. No windows, floors or skylights
that reflect or admit light into the Building shall be covered or
obstructed by Tenant and no articles shall be placed on the windowsills of
the Building. Toilets, wash basins and sinks shall not be used for any
purpose other than those for which they were constructed, and no sweeping,
rubbish, or other obstructing or improper substances shall be thrown
therein. Any damage resulting from the Tenant's or its employees' misuse
of the building shall be borne by Tenant.
6. KEYS AND LOCKS: Only one key for each office in the Premises will be
furnished Tenant without charge. Landlord may make a reasonable charge for
any additional keys. No additional lock, latch or bolt of any kind shall
be placed upon any door nor shall any changes be made in existing locks
without written consent of Landlord and Tenant shall in each such case
furnish Landlord with a key for any such lock. At
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the termination of the Lease, Tenant shall return to Landlord all keys
furnished to Tenant by Landlord, or otherwise procured by Tenant, and in
the event of loss of any keys so furnished, Tenant shall pay to Landlord
the cost thereof.
7. HEAVY ARTICLES AND FREIGHT: Landlord shall have the right to prescribe the
weight, position and manner of installation of heavy articles such as
safes, machines and other equipment brought into the Building. Tenant
shall not allow the building structure within the Premises, nor shall
Tenant cause the elevators of the Building, to be loaded beyond rated
capacities. No safes, furniture, boxes, large parcels or other kind of
freight shall be taken to or from the Premises or allowed in any elevator,
hall or corridor except upon prior notice to Landlord. Tenant shall make
prior arrangements with Landlord for use of freight elevator for the
purpose of transporting such articles and such articles may be taken in or
out of said Building during Business Hours and otherwise as reasonably
approved by Landlord. Landlord reserves the right to inspect and, where
deemed appropriate by Landlord, to open all freight coming into the
Building and to exclude from entering the Building all freight which is in
violation of any of these Rules and Regulations and all freight as to
which inspection is not permitted. No hand trucks, mail carts, floats or
dollies shall be used in passenger elevators. All hand trucks, mail carts,
floats or dollies used by Tenant or its service providers for the delivery
or receipt of any freight shall be equipped with rubber tires.
8. BUILDING AIR QUALITY: Tenant shall not cause or permit any gases, liquids
or odors to be produced upon or permeate from the Premises, and no
flammable, combustible or explosive fluid, chemical or substance shall be
brought into the Building. Tenant shall prevent inadequate ventilation
from and will assure proper operation of any HVAC systems and/or office
equipment under Tenant's control, and Tenant will not allow any unsafe
levels of chemical or biological contaminants in the Premises and will
take all steps necessary to prevent the release of such contaminants from
adhesives, machinery, and cleaning agents. Tenant shall cooperate in all
respects with Landlord regarding the management of the indoor air quality
in the Building and in connection with the development and implementation
of an indoor air quality management plan for the Building. Smoking will
not be permitted in any common areas of the Building or the Project or in
any premises within the Building. If Tenant shall assert that the air
quality in the Premises is unsatisfactory or if Tenant shall request any
air quality testing within the Premises, Landlord may elect to cause its
consultant to test the air quality within the Premises and to issue a
report regarding same. If the report from such tests indicates that the
air quality within the Premises is comparable to the air quality of other
first-class office buildings in the market area of the Building, or if the
report from such tests indicates that the air quality does not meet such
standard as a result of the activities caused or permitted by Tenant in
the Premises, Tenant shall reimburse Landlord for all costs of the
applicable tests and report. Additionally, in the event Tenant shall cause
or permit any activity that shall adversely affect the air quality in the
Premises, in the common area of the Building or in any premises within the
Building, Tenant shall be responsible for all costs of remedying same.
9. HOURS OF OPERATION AND ACCESS: The Building's normal hours of operation
will be from 8:00 a.m. to 6:00 p.m. - Monday through Friday. All
non-building personnel (i.e., visitors, guests, vendors, and/or
contractors) will only be allowed access to the Building through its
Southeast entrance and will be required to sign in at the Security Desk. A
call will be placed to the appropriate party announcing their guest has
arrived. On all weekends and national holidays, the Building will be
closed. Notwithstanding the Building's normal hours of operation, Tenant
and its employees shall have the right to enter the Building and Premises
with card access twenty-four hours per day, seven days per week (including
weekends and national holidays).
10. SERVICE CONTRACTS: Unless agreed to in writing by Landlord, Tenant shall
not employ any person other than Landlord's contractors for the purpose of
cleaning and taking care of the Premises. Cleaning service will not be
furnished on nights when rooms are occupied after 6:30 p.m., unless, by
agreement in writing, service is extended to a later hour for specifically
designated rooms. Only persons authorized by the Landlord may furnish ice,
drinking water, towels, and other similar services within the Building and
only at hours and under regulations fixed by Landlord.
11. MAINTENANCE: Connection shall not be made to the electric wires or gas or
electric fixtures, without the consent in writing on each occasion of
Landlord. All glass, locks and trimmings in or upon the doors and
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windows of the Premises shall be kept whole and in good repair. Tenant
shall not injure, overload or deface the Building, the woodwork or the
walls of the Premises, nor permit upon the Premises any noisome, noxious,
noisy or offensive business.
12. ELECTRICAL WORK: If Tenant requires wiring for a xxxx or buzzer system,
such wiring shall be done by any of the electricians indicated on the list
of contractors approved by Landlord attached hereto, and no other
electrician shall be allowed to do work of this kind unless by the written
permission of Landlord or its representatives, such permission not to be
unreasonably withheld, delayed or conditioned. If telegraph or telephonic
service is desired, the wiring for same shall be approved by Landlord, and
no boring or cutting for wiring shall be done unless approved by Landlord
or its representatives, as stated. The electric current shall not be used
for space heaters unless written permission to do so shall first have been
obtained from Landlord or its representatives in writing, and at an agreed
cost to Tenant.
13. PARKING AND VEHICLES: Tenant and its employees and invitees shall observe
and obey all parking and traffic regulations as imposed by Landlord. All
vehicles shall be parked only in areas designated by Landlord.
14. SOLICITATION: Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building are prohibited,
and Tenant shall cooperate to prevent the same.
15. WASTE RECYLCLING PROGRAMS: Tenant agrees to participate in the waste
recycling programs implemented by Landlord for the Building, including any
programs and procedures for recycling writing paper, computer paper,
shipping paper, boxes, newspapers and magazines and aluminum cans. If
Landlord elects to provide collection receptacles for recyclable paper
and/or recyclable aluminum cans in the Premises, Tenant shall designate an
appropriate place within the Premises for placement thereof, and Tenant
shall cause its employees to place their recyclable papers and/or cans
into the applicable such receptacles on a daily basis.
16. SPECIAL WORK OR SERVICES: Any special work or services requested by Tenant
to be provided by Landlord shall be provided by Landlord only upon request
received at the Building Operations and Security Services office. Building
personnel shall not perform any work or provide any services outside of
their regular duties unless special instructions have been issued from
Landlord or its managing agent.
17. CHANGING THE BUILDING'S NAME OR STREET ADDRESS: Landlord shall have the
right to change the name of the Building and to change the street address
of the Building, provided that in the case of a change in the street
address, Landlord shall give Tenant not less than 180 days' prior notice
of the change, unless the change is required by governmental authority.
18. SUPPLEMENTAL RULES AND REGULATIONS. These Rules and Regulations are
supplemental to, and shall not be construed to in any way modify or amend,
in whole or in part, the terms, covenants, agreements and conditions of
any lease of any premises in the Building.
19. ADDITIONAL RULES AND REGULATIONS: Landlord reserves the right to make such
other and reasonable Rules and Regulations as in its judgment may from
time to time be needed for the safety, care and cleanliness of the Project
and/or the Building, and for the preservation of good order therein.
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List of Permitted Contractors
