<PAGE>
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:
10689 N. Pennsylvania Street
Indianapolis, Indiana 46280
<PAGE>
TABLE OF
CONTENTS
Business Terms
<TABLE>
<S>
<C>
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
</TABLE>
Exhibit A
Land
Exhibit B
Cleaning Specifications
Exhibit C
Building Rules
<PAGE>
INDEX
<TABLE>
<CAPTION>
Defined Term
Article / Section
------------
-----------------
<S>
<C>
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
</TABLE>
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<TABLE>
<S>
<C>
Telephone
Room..................................................................
2.2
Tenant..........................................................................
Heading
Term............................................................................
Business Terms
Termination
Notice..............................................................
22.2
Utilities.......................................................................
1.1
</TABLE>
<PAGE>
LEASE (this "Lease") made as of this 8th day of June, 2005
between
STANDARD MANAGEMENT CORPORATION, an Indiana corporation having an
address at
10689 N. Pennsylvania Street, Indianapolis, Indiana 46280,
("Landlord") and
STANDARD LIFE INSURANCE COMPANY OF INDIANA, an Indiana life
insurance company
having an address c/o Capital Prospects, LLC, 100 Mallard Creek
Road, Suite 197,
Louisville, Kentucky 40207 ("Tenant").
INTRODUCTORY STATEMENT
Landlord is the owner of the building (the "Building") located
at
10689 N. Pennsylvania Street, Indianapolis, Indiana 46280 (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 Dixie
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
100
Mallard Creek Road, Suite 197
Louisville, Kentucky
40207
Attention: Mr. Bob
Scott
(b) for
Landlord:
Standard Management Corporation
10689 N. Pennsylvania Street
Indianapolis, Indiana 46280
Attention: Steve
Coons, Esq.
"Rent Payment Address":
Standard Management Corporation
10689 N. Pennsylvania Street
Indianapolis, Indiana 46280
Attention: Michael B.
Berry
2
<PAGE>
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
3
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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
4
<PAGE>
(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
5
<PAGE>
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
6
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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
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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 ins
