1
EXHIBIT 10-BB
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is executed this 7th day of February,
1996, by and between NORTH MERIDIAN MEDICAL REALTY COMPANY, an Indiana
corporation ("Landlord"), with its principal office at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and BINDLEY WESTERN INDUSTRIES, INC., an Indiana
corporation ("Tenant"), who, in consideration of the premises and the mutual
promises and covenants herein contained, agree as follows:
I. THE BUILDING AND THE REAL ESTATE.
The term "Building" whenever used herein shall mean the North Meridian
Medical Complex Building that is situated on certain land in ▇▇▇▇▇▇▇▇ County,
State of Indiana, commonly known as ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, said land being more particularly described as follows:
SEE LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT A
(the Building and the land above described, together with all other facilities
and improvements now or hereafter on said land, hereinafter shall be known as
the "Real Estate").
II. LEASED PREMISES.
Landlord hereby lets and demises to Tenant, subject to and upon the
terms and provisions of this Lease, and Tenant hereby accepts and leases from
Landlord, (i) the premises outlined in red and designated with Tenant's name on
the site plan of the Building that is attached hereto, made a part hereof and
marked as Exhibit B said premises having a gross area of 4,810 square feet and
being hereinafter referred to as the "Premises", and (ii) Tenant's Pro Rata
Share of the Common Areas located within the Building (on a nonexclusive basis)
which, for purposes of this Lease, is the equivalent of an additional gross
area of 708 square feet (the "Additional Area"). Landlord retains, and Tenant
grants to Landlord, an irrevocable license for Landlord's and Landlord's other
tenants' employees, agents, customers and invitees to enter upon and pass
through the Premises in a mutually agreeable location or locations in order to
have access to and from the portion of the Building in the northeast quadrant
of the second floor designated as area number 7 on Exhibit B hereto (the
current tenant in such space is Infectious Disease of Indiana, P.S.C.).
III. COMMON AREAS.
Landlord grants unto Tenant, its invitees, customers, employees and
agents the non-exclusive right to use all areas, equipment and facilities
within the Building that are not designated for the exclusive use of any
tenant, together with the sidewalks, parking areas, landscaped areas and
private driveways within or on the Real Estate and all other areas and
improvements within or on the Real Estate that are provided by Landlord for the
general use in common of tenants and their invitees, customers, employees and
agents (all of which shall hereinafter be referred to as the "Common Areas.")
The Common Areas shall at all times be
2
subject to the exclusive control and management of Landlord, and Tenant's use
of the Common Areas shall be subject to such reasonable rules and regulations
as Landlord may from time to time impose. Tenant agrees to abide by such rules
and regulations and use Tenant's best efforts to cause its employees, agents,
customers and invitees to conform thereto.
IV. TERM.
(A) Term. Unless sooner terminated under the terms and
provisions of Section XVII of this Lease, the term of this Lease shall
be five (5) years commencing on the 8th day of February, 1996 and
ending on the 7th day of February, 2001 (the "Term").
(B) Surrender and Holdover. Upon the expiration or sooner
termination of this Lease, Tenant shall surrender to Landlord the
Premises, together with all other property affixed to the Premises
(excepting trade fixtures), "broom clean" and in the same order and
condition in which Tenant received said Premises, ordinary wear and
tear excepted. Unless an event of default as hereinafter defined has
occurred and remains uncured, Tenant, prior to the expiration of the
Term shall remove all of Tenant's trade fixtures and personal property
from the Premises. Any damage to the Premises caused by such removal
shall be repaired by Tenant prior to the expiration of the Term. At
Landlord's option, if Tenant fails to remove such trade fixtures and
personal property, then the same shall be deemed Landlord's property.
If Tenant remains in possession of all or any part of the Premises
after the expiration of the Term, with the consent of the Landlord,
then Tenant shall be deemed to be occupying the Premises as a tenant
from month to month at the rent hereinafter specified (pro rated on a
monthly basis), subject to all conditions, provisions and obligations
of this Lease insofar as the same are applicable to month-to-month
tenancy. Landlord's acceptance of rent after the expiration of the
term shall not constitute a renewal or extension of this Lease, and
this provision shall not be deemed to waive Landlord's right of
re-entry or any other right or remedy hereunder or provided by law.
V. RENT.
(A) Minimum Rental. Tenant shall pay to Landlord without
prior demand therefor a minimum rental for the Premises and Additional
Area (hereinafter referred to as "Minimum Rental") of Four Hundred
Thirteen Thousand Eight Hundred Fifty Dollars ($413,850) during the
Term, payable in equal monthly installments of Six Thousand Eight
Hundred Ninety-Seven and 50/100 Dollars ($6897.50) each, in advance on
the first day of each calendar month of the Term.
(B) Additional Rental. In addition to the Minimum Rental,
Tenant shall pay to Landlord, with respect to each calendar year or
fractional calendar year during the Term, Tenant's Pro Rata Share of
Landlord's Real Property Taxes and Operating Expenses (as hereinafter
defined) as additional rental. The term "Real Property Taxes"
includes all ad valorem real property taxes and currently due
installments of assessments levied upon
2
3
or with respect to the Real Estate and all taxes, levies and charges
which may be levied or imposed by any governmental authority in
replacement of, in lieu of, or in addition to ad valorem real property
taxes, in whole or in part, including, but not limited to, a state or
local option tax designed for property tax relief purposes, or a
license or franchise fee measured by rents received from the Building,
or otherwise measured or based upon Landlord's interest in the
Building. (The term "Real Property Taxes" does not include any income
tax.) The term "Operating Expenses" means all costs and expenses of
every kind and nature paid or incurred by Landlord (including
appropriate reserves) for the owning, operating, managing, equipping,
lighting, heating, cooling, repairing, replacing, cleaning, painting,
maintaining and insuring the Building and the Common Areas in
accordance with standards customary for first class office buildings
located in Indianapolis, Indiana, excluding only depreciation of the
cost of initial construction of the Building. As used in this Lease
the Tenant's "Pro Rata Share" means twenty-nine and 38/100 percent
(29.38%). Tenant's Pro Rata Share of Real Property Taxes and
Operating Expenses (hereinafter "Additional Rental") for each calendar
year or fractional calendar year during the Term shall be paid
promptly, without demand therefor, in estimated monthly installments
in advance on the first day of each calendar month of the Term, which
estimated monthly installments during the initial year of the Term
shall be Two Thousand Five Hundred Twenty-Nine and 08/100 Dollars
($2529.08) each. On or before the 7th day of February, 1997, and on
or before the 7th day of February of each subsequent year during the
Term, Landlord shall deliver to Tenant a written statement of the
estimated monthly installments of Additional Rental that Tenant shall
pay Landlord during the twelve month period beginning each February 8
during the Term. Not later than August 8, 1996 and February 8, 1997,
and each August and February thereafter during the Term, Landlord
shall furnish Tenant a statement in reasonable detail of the actual
Real Property Taxes and Operating Expenses paid or incurred by
Landlord in the preceding six (6) month period ending June 30 and
December 31 prepared in accordance with sound accounting principles
and practices. Should the Tenant's Pro Rata Share of the actual Real
Property Taxes and Operating Expenses paid or incurred by Landlord
during such six (6) month period exceed the Additional Rental that
Tenant is required to pay in monthly installments during such six (6)
month period, then Tenant shall pay the excess amount to Landlord
within thirty (30) days after Tenant receives such statement to the
end that Landlord shall receive the entire amount of Tenant's Pro Rata
Share of such Real Property Taxes and Operating Expenses. Should the
Additional Rental that Tenant has paid during such six (6) month
period exceed Tenant's Pro Rata Share of the actual Real Property
Taxes and Operating Expenses paid or incurred by Landlord during such
six (6) month period, then Landlord shall remit the excess amount to
Tenant within thirty (30) days after Tenant receives such statement.
(The dates of such statements and six (6) month periods may, at the
option of Landlord, be subject to change.)
3
4
VI. USE AND OCCUPANCY.
The Premises may be used and occupied by Tenant for the purposes of
administrative offices of Tenant and/or its subsidiaries and for the operation
of a clinic providing infusion services, and for no other purpose or purposes
without Landlord's consent. Tenant shall not do or permit anything to be done
in or about the Premises, or bring or keep anything therein, which will in any
way increase the rate of fire insurance upon the Premises or the Building
wherein the Premises are situated. Tenant shall comply with all laws,
ordinances, orders and regulations affecting the Premises and the cleanliness,
safety, occupation and use thereof.
Tenant shall not cause or permit injury or waste to the Premises or
the Building or cause or permit a nuisance to exist, and shall keep the
Premises clean and free from rubbish and dirt at all times, and shall store all
trash and garbage within the Premises and arrange for the regular pickup of
such trash and garbage at Tenant's expense. Tenant shall not burn any trash or
garbage of any kind in or about the Premises or Building.
VII. ADDITIONAL SPACE.
Portions of the Building are currently leased to Roche Biomedical
Laboratories, Inc. ("Roche Biomedical") (831 square feet as its occupied space
plus 122 square feet as its pro rata share of the Common Areas), Roche
Professional Service Centers, Inc. ("Roche Professional") (2,756 square feet as
its occupied space plus 406 square feet as its pro rata share of the Common
Areas) and Northwest Radiologist, P.C. ("Northwest") (1,614 square feet as its
occupied space plus 238 square feet as its pro rata share of Common Areas)
(Roche Biomedical, Roche Professional and Northwest collectively being the
"Other Tenants"). The locations of the space currently occupied by each of the
Other Tenants in the Building is depicted on Exhibit C attached hereto.
Because Tenant needs additional space for its business purposes, Tenant hereby
agrees to lease the space occupied by Roche Professional (plus its pro rata
share of the Common Areas), and to take a first right of refusal on and lease,
if Tenant so elects, the space occuped by Roche Biomedical, (plus Roche
Biomedical's pro rata share of the Common Areas) and the space occupied by
Northwest (plus Northwest's pro rata share of the Common Areas) if such space
becomes vacant and available for rent to Tenant (which shall be determined in
Landlord's sole discretion) during the Term (i) for the remainder of the Term,
(ii) at the same per square foot rent as the Minimum Rent is for the Premises
and the Additional Area (which is $15 per square foot per year), and (iii) on
the other terms and conditions (including, without limitation, the payment of
Additional Rental with respect thereto) in this Lease. If Tenant receives
written notice from Landlord that Roche Biomedical's space or Northwest's space
is vacant and available to rent, Tenant shall have five (5) days after its
receipt of such notice to notify Landlord that Tenant has decided to lease the
Roche Biomedical space or the Northwest space, as the case may be. In the
event that Tenant does not notify Landlord as herein provided after receipt of
written notice from Landlord, Tenant shall have no further interest or rights
to the Roche Biomedical space or the Northwest space, as the case may be, and
Landlord shall have no further obligations to Tenant with respect to the Roche
Biomedical space or the Northwest space, as the case may be. Tenant's
agreement as stated in this Section VII shall be a standing offer that is
acceptable
4
5
by Landlord in writing at any time prior to three (3) months before the end of
the Term with respect to the space in the Building currently occupied by either
of the Other Tenants. Upon the leasing of any such additional space by Tenant,
an appropriate and mutually acceptable amendment to this Lease (and an amended
or additional Memorandum of Lease for recording purposes) shall be prepared by
Landlord and executed by Landlord and Tenant to evidence the leasing of such
additional space by Tenant.
VIII. RIGHTS OF LANDLORD TO MORTGAGE LEASED PREMISES.
This Lease, and the rights of Tenant hereunder, shall be, and hereby
are, subject and subordinate to the lien or liens of any mortgage or mortgages,
now or at any time hereafter in force against the title of Landlord, or any
successor to Landlord, in and to the Real Estate, and to all advances made or
hereafter to be made upon the security thereof, including, but not limited to,
the mortgage of the Real Estate in favor of The American National Bank of
Vincennes dated February 28, 1994, and recorded in the Office of the Recorder,
▇▇▇▇▇▇▇▇ County, Indiana on March 9, 1994 as Instrument No. 9411353. Tenant
shall execute and deliver whatever instruments may be required to subordinate
this Lease to the lien or liens of any such mortgage or mortgages, and in the
event Tenant fails to do so within ten (10) days after demand in writing,
Tenant does hereby make, constitute and irrevocably appoint Landlord as its
attorney-in- fact, and in its name and stead, to execute such instruments.
If by reason of any default on the part of Landlord as mortgagor under
any mortgage or mortgages to which this Lease is subordinate, any such mortgage
is foreclosed by legal proceedings or extinguished by conveyance in lieu of
foreclosure or otherwise, Tenant, upon the election of the holder of any such
mortgage, but not otherwise, will attorn to and recognize such mortgage holder
and its successors and assigns, including any purchaser in foreclosure or a
grantee of a deed in lieu thereof, as Landlord under this Lease. Tenant shall
execute and deliver at any time, upon request of Landlord or any holder of a
mortgage to which this Lease is subordinate, an instrument to evidence such
attornment and containing the agreement of Tenant that no action taken to
enforce any such mortgage by reason of any default thereunder shall terminate
this Lease or invalidate or constitute a breach of any of the terms thereof.
This obligation on the part of Tenant to attorn is entirely independent of and
not contingent upon the foregoing subordination provisions of this Section
VIII.
The terms and provisions of this Lease may require approval by a
mortgagee. If any such mortgagee should require as a condition to Landlord's
financing, as may be determined necessary or desirable by Landlord, any
modification of the terms and provisions of this Lease, other than provisions
relating to rent or term, and the right to use and occupy the Premises for the
purposes described in Section VII, and if Tenant should refuse to approve and
execute any modifications so required, then Landlord shall have the right by
notice given to Tenant thirty (30) days in advance to cancel this Lease
without liability on the part of Landlord.
5
6
IX. REPAIRS AND ALTERATIONS.
(A) Landlord's Responsibility. Landlord shall keep in good
order, condition and repair the Common Areas, exterior foundations,
exterior walls (except the interior faces thereof), downspouts,
gutters and roof of the Premises, and the plumbing and sewage system
outside of the Building of which the Premises form a part (but
excluding the exterior and interior of all windows, doors, plate
glass, show cases and store fronts), excluding any damage thereto
caused by Tenant, its agents or invitees. Tenant shall pay to
Landlord in the manner provided in Section V(B) of this Lease Tenant's
Pro Rata Share of costs incurred by Landlord under this Section X(A).
(B) Tenant's Responsibility. Tenant shall keep and maintain
the Premises and every part thereof, and the exterior and interior
portions of all doors, windows, plate glass, show cases and the store
front surrounding the Premises in good order, condition and repair,
including, without limitation, all plumbing, heating, air conditioning
and sewage facilities within the Premises, fixtures, interior walls,
floors, ceilings, signs and all interior building appliances and
similar equipment, except for reasonable use and ordinary wear and
tear.
(C) Alterations. Tenant shall have the right, with the
written consent of Landlord, to make alterations to the interior of
the Premises so long as the cost thereof is paid by Tenant and all
such work is done in a workmanlike manner and without damage to the
structural elements of the Premises and in conformance with the
regulations of fire insurance underwriters carrying insurance on the
Premises. Tenant agrees that upon expiration or termination of this
Lease it will, at its own expense, if Landlord shall so request,
restore the Premises to their former condition, ordinary wear and tear
and damage by the elements excepted.
(D) Signs and Awnings. Tenant shall not affix to or upon the
exterior of the Premises signs or awnings except with the prior
written consent of Landlord.
(E) Personal Property on Premises - Risk of Damage.
Notwithstanding anything expressed or implied to the contrary in this
Lease, Tenant agrees that all personal property of every kind or
description which may at any time be in the Premises shall be at
Tenant's sole risk, or at the risk of those claiming through or under
the Tenant, and Landlord shall not be liable for and shall be held
harmless by Tenant against claims for any damage to said property or
loss suffered by the business or property of the Tenant arising from
bursting, overflowing or leaking of water, sewer or steam pipes or
from the heating or plumbing fixtures, or from the electric wiring or
from gas or odors or caused in any manner.
(F) Trade Fixtures. All improvements to the Premises and all
fixtures shall be and become the property of the Landlord, except that
all machinery and equipment installed by the Tenant and all trade
fixtures, including cabinets, installed or used by the
6
7
Tenant shall remain the personal property of the Tenant. Any damage
to the Premises caused by the installation or removal of trade
fixtures or personal property shall promptly be repaired by Tenant at
its expense.
(G) Liens. Tenant shall not cause or permit the creation of
any lien against the Premises or the Building on account of any labor
or materials furnished in connection with maintenance, repairs or
alterations undertaken by Tenant. In the event any such lien shall be
filed against the Premises or the Building, Tenant shall cause such
lien to be released within ten (10) days after actual notice of the
filing thereof or shall furnish to Landlord a bond, satisfactory to
Landlord, conditioned to indemnify Landlord against the foreclosure of
such lien.
(H) Inspection and Repair by Landlord. Landlord shall have
the right to enter at reasonable times upon the Premises for the
purpose of inspection or to make such improvements, repairs or
alterations as it may consider expedient, but Landlord assumes no
obligation to make any improvements, repairs or alterations except as
expressly provided in this Lease.
X. INDEMNITY AND INSURANCE.
Each party to this Lease agrees to indemnify and save harmless the
other against and from any and all claims by or on behalf of any person, firm
or corporation arising from any breach or default in the performance of any
covenant or agreement on its part to be performed under this Lease.
Tenant shall indemnify, protect, defend and hold Landlord harmless
from all injury, damages, actions, suits, proceedings, losses, claims and
liabilities that may occur or be claimed by or with respect to any persons,
corporations, entities, property or chattels on or about the Premises resulting
from any act done or omission by the Tenant, its servants, invitees or agents,
or caused by, or resulting from or relating to Tenant's use, non-use or
possession thereof, or Tenant's conduct of its business therein or thereon.
Tenant hereby agrees to pay, discharge and defend Landlord against any and all
such claims, litigation, suits, proceedings, and demands. The indemnification
provided by this paragraph shall include Landlord's legal costs and attorneys'
fees in connection with any such claim, action or proceeding.
Landlord covenants at all times to save Tenant harmless from all loss,
cost or damages which may occur or be claimed with respect to any persons,
corporations, entities, property or chattels on or about the Premises, or to
the property itself, resulting from the gross negligence of Landlord or its
servants or agents.
Tenant, in order to insure against the liabilities specified in this
Lease, agrees to place and maintain, at Tenant's own expense, with insurance
companies qualified to do business in the State of Indiana and acceptable to
Landlord, comprehensive general liability and property damage insurance with
respect to Tenant's use and occupancy of the Premises with a single
7
8
combined liability limit of Three Million Dollars ($3,000,000). Such insurance
shall include premises operation, bodily injury, personal injury, death, broad
form contractual liability, completed operations, broad form property damage
coverage and products liability. Such insurance shall be for the benefit of
the Landlord and shall name the Landlord as an insured. Tenant agrees to
furnish certificates of such insurance to Landlord. Such insurance policies
shall contain an endorsement requiring thirty (30) days' advance notice from
the insurance company to Landlord before cancellation or change in the
coverage, scope, or amount of any policy.
Tenant shall furnish at its own cost and expense replacement insurance
for any cracked or broken glass, including plate glass and interior and
exterior windows and doors in the Premises, provided, however, that Landlord
will replace any glass that is cracked or broken by any casualty covered by
fire and extended coverage or other insurance of the Landlord or caused by a
structural defect or settling of the Building in which the Premises are
located.
Landlord shall keep the Real Estate insured against loss or damage by
fire and such other risks as are usually and customarily included within the
term "extended coverage," as deemed advisable by Landlord, but such insurance
shall not cover Tenant's trade fixtures, furnishings, equipment or any items of
personal property on the Premises. Tenant shall pay Tenant's Pro Rata Share of
any expenses incurred by Landlord in obtaining and maintaining such insurance,
and Tenant's pro rata share of such expenses shall be calculated and paid in
the manner specified in Section V(B) of this Lease with respect to the payment
of Operating Expenses.
Tenant shall carry such insurance against loss of its property in the
Premises by fire or other hazards as Tenant deems necessary. Landlord shall
not be liable for any damage to Tenant's property in the Premises, and Tenant
expressly releases Landlord of and from all liability for any such damage.
Tenant agrees that its insurance policy or policies shall include a waiver of
subrogation recognizing this release from liability.
XI. CASUALTY PROVISIONS.
If either the Building or the Premises should be substantially
destroyed or damaged (which, as used herein, means destruction or material
damage to at least fifty percent (50%) of the Building or the Premises) by fire
or other casualty, or if Landlord's uninsured and/or underinsured portion of
the loss resulting from any fire or other casualty affecting the Building or
the Premises exceeds $100,000 in the aggregate, then in either such case
Landlord may terminate this Lease by giving written notice of such termination
to Tenant within sixty (60) days after the date of such casualty. In such
event, rent shall be apportioned to and shall cease as of the date of such
casualty. (For purposes of this Lease, a loss of Landlord that is "uninsured
or underinsured" means a loss or partial loss as to which Landlord is not
reimbursed by insurance proceeds that are available to reconstruct or restore
the Building or Premises, including, without limitation, losses not insured due
to policy deductibles, losses as to which a mortgagee of the Real Estate
applied available insurance proceeds to indebtedness secured by the Real
Estate, or other circumstances resulting in insurance proceeds payable and
available to Landlord with respect to a loss being less than the amount of the
loss). If Landlord does not exercise this
8
9
option to terminate, then the Premises shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as it was prior to the
casualty; provided however, that Landlord's obligation hereunder shall be
limited to the reconstruction of the Premises as originally existed upon
commencement of this Lease, and further provided that if Tenant has made any
improvements to the Premises Tenant shall reimburse Landlord for the cost of
reconstructing the same. In the event of such reconstruction, monthly
installments of Minimum Rental and Tenant's Pro Rata Share of Operating
Expenses shall be abated from the date of the casualty until substantial
completion of the reconstruction repairs; and this Lease shall continue in full
force and effect for the balance of the Term. In addition to the foregoing, if
the Premises should be substantially destroyed or damaged (which, as used
herein, means destruction or material damage to at least fifty percent (50%) of
the Premises) so that such portion is unusable for the permitted purposes under
this Lease, and it shall require more than sixty (60) days to repair and
restore the Premises, Tenant shall have the right to terminate this Lease by
giving written notice of such termination to Landlord within ten (10) days
after receipt of notice from the Landlord of the time it will take to complete
the repair and restoration of the Premises. Landlord shall provide written
notice to Tenant of the time it will take to repair and restore the Premises
within fifteen (15) days after the fire or other casualty.
If the Premises should be damaged by fire or other casualty but not
substantially destroyed or damaged to the extent provided in Section 10.1 and
if the uninsured and/or underinsured loss attributable thereto does not exceed
$100,000 in the aggregate, then such damaged part of the Premises shall be
reconstructed and restored by Landlord at Landlord's expense to substantially
the same condition as it was prior to the casualty; provided however, that
Landlord's obligation hereunder shall be limited to the reconstruction of the
Premises as originally existed upon commencement of this Lease, and further
provided that if Tenant has made any additional improvements to the Premises
Tenant shall reimburse Landlord for the cost of reconstructing the same. In
such event, if the damage is expected to prevent Tenant from carrying on its
business in the Premises to an extent exceeding fifty percent (50%) of its
normal business activity, monthly installments of Minimum Rental shall be
abated in the proportion which the approximate area of the damaged part bears
to the total area in the Premises from the date of the casualty until
substantial completion of the reconstruction repairs; and this Lease shall
continue in full force and effect for the balance of the Term. Landlord shall
use reasonable diligence in completing such reconstruction repairs. In
addition to the foregoing, if the Premises should be partially destroyed as
described in this paragraph so that such portion is unusable for the permitted
proposes under this Lease, and it shall require more than sixty (60) days to
repair and restore the Premises, Tenant shall have the right to terminate this
Lease by giving written notice of such termination to Landlord within ten (10)
days after receipt of notice from the Landlord of the time it will take to
complete the repair and restoration of the Premises. Landlord shall provide
written notice to the Tenant of the time it will take to repair and restore the
Premises within fifteen (15) days after the fire or other casualty.
The provisions of this Section are not intended to limit, modify or
release Tenant from any liability it may have for damages.
9
10
Notwithstanding the foregoing provisions of this Section XI, if the
unexpired portion of the Term is less than one year at the time a fire or other
casualty renders all or not less than fifty percent (50%) of the Premises
untenantable for Tenant's permitted use hereunder, Tenant may terminate this
Lease upon written notice of termination to Landlord at any time within ten
(10) days after the date of such fire or other casualty.
XII. CONDEMNATION.
If the Premises are condemned or taken in whole or in part by any
public authority under the power of eminent domain, either Landlord or Tenant
shall have the right as of the day possession shall be taken by such public
authority to terminate this Lease by notice thereof to the other in writing and
rent shall be paid to the date of such possession or proportionate refund made
by the Landlord if rent has been paid in advance. If neither party shall elect
to terminate this Lease by reason of such condemnation, the Minimum Rent shall
be reduced by the proportion of the floor area of the Premises taken by such
condemnation and Landlord shall make all necessary repairs or alterations so as
to constitute the remaining Premises a complete architectural unit.
All damages awarded for such taking, whether for a whole or a part of
the Premises, shall belong to and be the property of the Landlord, whether such
damages shall be awarded as compensation for diminution in value to the
leasehold or to the fee of the Premises; provided, however, that the Landlord
shall not be entitled to the award made to Tenant for loss of business or
depreciation to or the cost of removal of stock and trade fixtures.
XIII. UTILITIES/JANITORIAL SERVICE AND TRASH REMOVAL.
Landlord shall furnish utility services to the Real Estate, including,
without limiting the generality thereof, electricity, telephone, gas, heat,
water and air conditioning, and Tenant shall pay Tenant's Pro Rata Share of
such charges that shall be calculated and paid in the manner specified in
Section V(B) of this Lease with respect to the payment of Operating Expenses,
provided, however, that Tenant shall pay directly to the utility providing the
same all charges for utilities that are supplied exclusively to the Premises
and are separately metered and/or billed with respect to the Premises.
Landlord shall provide janitorial service and trash removal service
for the Real Estate, and Tenant shall pay Tenant's Pro Rata Share of the
charges for such services that shall be calculated and paid in the manner
specified in Section V(B) of this Lease with respect to the payment of
Operating Expenses; provided, however, that the removal of Medical Wastes (as
hereinafter defined) from the Premises shall be in accordance with Section XIV
of this Lease.
XIV. HANDLING OF MEDICAL WASTES.
Tenant, at its sole cost and expense, shall arrange and provide for
the disposal and removal from the Premises of any and all Medical Wastes (as
hereinafter defined). Tenant shall
10
11
pay directly to the provider of any services regarding the disposal or removal
from the Premises of Medical Wastes all costs and expenses in connection with
such disposal or removal. In the event any of such costs and expenses for the
disposal or removal of Medical Wastes from the Premises are paid by Landlord,
Tenant shall immediately reimburse Landlord upon Landlord's submitting a
written statement to Tenant for such costs and expenses.
In Tenant's handling of Medical Wastes, including, without limitation,
the generation, storage, packaging, transportation, shipment, removal or
disposal thereof (hereinafter collectively referred to as "handling"), Tenant
shall comply with all applicable federal, state and local laws, rules,
regulations and ordinances including, without limitation, those laws, rules,
regulations and ordinances requiring the use of properly licensed transporters
of Medical Wastes. Tenant shall indemnify, defend and hold harmless Landlord
from and against any loss, costs, damages, fines, penalties, liability,
expenses or fees, including attorneys' fees, arising from any remedial or
enforcement action mandated or taken by any governmental authority with respect
to Tenant's handling of Medical Wastes on or about the Premises, or in any
manner arising from, resulting from or connected with any third party's claim,
action, cause of action or demand with respect to Tenant's handling of Medical
Wastes on or about the Premises.
As used in this Lease, "Medical Wastes" shall mean any waste,
material, pollutant or substance which is or becomes regulated by any federal,
state or local governmental authority, including, without limitation, any waste
defined as "hazardous waste" under Indiana Code 13-7-1-12, as it may be amended
from time to time, or defined as "infectious waste" under 410 Indiana
Administrative Code 1-3-10, as it may be amended from time to time.
XV. ENVIRONMENTAL COMPLIANCE
Tenant covenants and agrees that Tenant, at Tenant's sole cost and
expense, shall comply at all times with all federal, state, municipal and local
statutes, laws, regulations, rules, orders, judgments, injunctions, ordinances
and directives of any kind whatsoever ("governmental requirements") governing
the use, generation, storage, treatment and/or disposal of any "Hazardous
Materials."
"Hazardous Materials" shall mean (i) any biologically or chemically
active or other toxic or hazardous wastes, pollutants or substances, including,
without limitation, asbestos, PCBs, petroleum products and by-products,
substances defined or listed as "hazardous substances" or "toxic substances" or
similarly identified in or pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., and
as hazardous wastes under the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6010 et seq., (ii) any chemical substance or mixture regulated under
the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. Section 2601 et
seq., (iii) any "toxic pollutant" under the Clean Water Act, 33 U.S.C. Section
466 et seq., as amended, (iv) any hazardous air pollutant under the Clean Air
Act, 42 U.S.C. Section 7401 et seq., (v) hazardous materials identified in or
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802
et seq., and (vi) any hazardous or toxic substances or pollutant regulated
under any other governmental requirements.
11
12
Tenant shall, and does hereby, indemnify Landlord from and against any
loss, cost, damage, liability or expense (including attorneys fees and
disbursements) arising by reason of any clean-up, removal, remediation,
detoxification action or any other activity required or recommended of Landlord
by any governmental authority by reason of the presence on, in or about the
Real Estate or the Premises of any Hazardous Materials, as a result of or in
connection with the act or omission of Tenant or persons within Tenant's
control or the breach of this Lease by Tenant or persons within Tenant's
control. The foregoing covenants and indemnity shall survive the expiration or
any termination of this Lease.
XVI. COMMON AREAS.
Landlord agrees to maintain the Common Areas, to keep the Common Areas
reasonably clear of snow and debris as is necessary and to adequately
illuminate the parking and sidewalk areas. Tenant shall pay its Pro Rata Share
of the costs incurred by Landlord in maintaining the Common Areas as herein
described in the manner provided under Section V(B) of this Lease with respect
to the payment of Operating Expenses.
Tenant shall not use the Common Areas for any display or storage of
merchandise or use the Common Areas in any way that would interfere with the
use of the Common Areas by the public or others without the express written
consent of Landlord.
XVII. DEFAULT/REMEDIES.
(A) Events of Default. The occurrence of any one or more of
the following shall constitute an Event of Default hereunder:
(i) Failure of Tenant to pay any installment of rent
when due and such failure continues for a period of ten (10)
days, or failure of Tenant to perform any other of its
covenants under this Lease and the continuation of Tenant's
failure to perform such other covenants for thirty (30) days
after written notice thereof is given to Tenant;
(ii) The making by Tenant of an assignment for the benefit of its
creditors;
(iii) The levying of a writ of execution or attachment on or against
Tenant;
(iv) The institution of proceedings for
reorganization, liquidation, voluntary or involuntary
bankruptcy of Tenant or its adjudication as a bankrupt or
insolvent or the appointment of a receiver, trustee or
liquidator to take charge of its assets;
12
13
(v) The doing or permitting to be done by Tenant of
any act which creates a mechanic's lien or claim therefor
against the land or Building of which the Premises are a part
and the same are not released or otherwise provided for by
indemnity within ten (10) days after written notice thereof is
first given to the Tenant; or
(vi) The abandonment of the Leased Premises by
Tenant.
(B) Remedies. Upon the occurrence of any Event of Default,
Landlord may, at its option, in addition to any other remedy or right
it has hereunder or by law:
(i) Re-enter the Premises, without demand or
notice, and resume possession by an action in law or equity or
otherwise and without being liable in trespass or for any
damages and without terminating this Lease. Landlord may
remove all persons and property from the Premises and such
property may be removed and stored at Tenant's cost.
(ii) Terminate this Lease at any time upon the
date specified in a notice to Tenant. Tenant's liability for
damages shall survive such termination. Upon termination such
damages recoverable by Landlord from Tenant shall, at
Landlord's option, be either an amount equal to "Liquidated
Damages" or an amount equal to "Indemnity Payments," as
hereinafter defined.
(iii) Without terminating this Lease, re-let the
Premises without the same being deemed an acceptance of a
surrender of this Lease nor a waiver of Landlord's rights or
remedies and Landlord shall be entitled to Indemnity Payments,
as hereinafter defined, from Tenant. Any re-letting by
Landlord may be for a period equal to or less than, or
extending beyond the remainder of the Term, or for the whole
or any part of the Premises, separately or with other
premises, or for any reasonable sum, or to any lessee or for
any use Landlord deems appropriate.
(iv) Liquidated Damages means an amount equal to
the excess of the rentals including the Minimum Rental and
Additional Rental, provided for in this Lease which would have
been payable hereunder by Tenant, had this Lease not so
terminated, for the period commencing with such termination
and ending with the date set for the expiration of the Term
(hereinafter the "Unexpired Term"), over the reasonable rental
value of the Premises for such Unexpired Term.
(v) "Indemnity Payments" means an amount equal to
the rentals, including the Minimum Rent and Additional Rent,
and other payments provided for in this Lease which would have
become due and owing thereunder from time to time during the
Unexpired Term plus the cost and expenses paid or incurred by
Landlord from time to time in connection with:
13
14
(a) Obtaining possession of the Leased
Premises;
(b) Removal and storage of Tenant's
personal property;
(c) Care, maintenance and repair of the
Premises while vacant;
(d) Re-letting the whole or any part of
the Premises;
(e) Repairing, altering, renovating,
partitioning, enlarging, remodeling or otherwise
putting the Premises, either separately or as part of
large premises, into condition acceptable to, and
reasonably necessary to obtain new tenants; or
(f) Making all repairs, alterations and
improvements required to be made by Tenant hereunder
and performing all covenants of the Tenant relating
to the condition of the Premises;
less the rentals and other payments, if any, actually
collected and allocable to the Premises or to the portions
thereof re-let by Landlord. Tenant shall on demand make
Indemnity Payments monthly and Landlord can ▇▇▇ for all
Indemnity Payments as they accrue.
Landlord shall be entitled to recover its costs and reasonable
attorney fees incurred in enforcing against Tenant any covenant, term or
condition of this Lease and/or in pursuing its remedies under this Section XVI
or pursuing other remedies available to Landlord under the law.
XVIII. ADVANCES AND INTEREST.
Upon the occurrence of Event of Default, as defined in Section XVI of
this Lease, Landlord may, if such Event of Default has not been cured, cure the
Event of Default for the account and at the expense of Tenant. If Landlord, in
curing such Event of Default, is compelled to pay or elects to pay any sum of
money or do any acts which will require the payment of any sum of money, the
sum so paid or incurred shall be reimbursed by Tenant upon demand by Landlord.
All sums as to which Tenant is in default of payment shall bear interest at the
rate of twelve percent (12%) per annum until paid.
XVIX. ASSIGNMENT AND SUBLETTING BY TENANT.
Tenant may from time to time assign and or sublet all or any part of
this Lease and/or the Premises and/or Additional Area to any subsidiary or
subsidiaries of Tenant or Priority Healthcare Corporation, and shall notify
Landlord in writing of the making of any such assignment and/or subletting
within 30 days after the making thereof; provided, however, Bindley Western
Industries, Inc. shall remain liable for the performance of all obligations of
Tenant hereunder notwithstanding any such assignment and/or subletting. Except
as provided
14
15
above, Tenant shall have no right to assign this Lease nor to sublet all or any
portion of the Premises unless the consent in writing of Landlord shall first
have been obtained, and then only in the manner and upon the terms and
conditions set forth in such consent.
XX. RIGHT OF INSPECTION.
Landlord shall have the right to enter the Premises during regular
business hours for the purpose of inspecting the Premises or of making repairs
to the Premises, or for purposes of exhibiting the Premises to prospective
purchasers, tenants or lenders. Landlord may not enter the Premises for any
purpose at any time other than when the Premises are open for business except
at times agreed upon by Tenant and only when accompanied by Tenant's
representative.
XXI. QUIET ENJOYMENT.
Landlord covenants that Tenant, upon making the rental payments
required under this Lease and upon performing and keeping all other covenants
and agreements on its part to be kept and performed hereunder, shall have
peaceful and quiet possession of the Premises during the Term.
XXII. NON-WAIVER PROVISIONS.
No waiver of any term, condition or covenant of this Lease or failure
to exercise a remedy by either of the parties hereto shall be considered to
imply or constitute a further waiver by such party of the same or any other
term, condition, covenant or remedy.
XXIII. NOTICES.
Any notice or demand required or permitted under this Lease shall be
given or served in writing, by personal delivery or certified or registered
mail, addressed as follows:
(a) To the Landlord at:
NORTH MERIDIAN MEDICAL REALTY COMPANY
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) To the Tenant at:
BINDLEY WESTERN INDUSTRIES, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President and General Counsel
15
16
All rent payments shall be made to Landlord at the above address.
These addresses may be changed from time to time by either party by serving
notice to the other party as above provided.
XXIV. GOVERNING LAW.
This Lease shall be governed and construed according to the laws of the
State of Indiana.
XXV. MEMORANDUM OF LEASE.
Landlord and Tenant agree not to place this Lease of record but agree
to execute for recording purposes a Memorandum of Lease describing the
Premises, the Term, and other provisions with respect to which notice to third
parties is deemed advisable but omitting rent and other terms of this Lease.
XXVI. REPRESENTATION AND ACKNOWLEDGEMENT.
Tenant represents that the space leased hereunder, including the
additional space to be leased (if any) pursuant to Section VII hereof, is
legitimate and necessary for Tenant's and its subsidiaries' business purposes
and acknowledges that the rent payable by Tenant hereunder is consistent with
the fair market (fair rental) value for comparable facilities.
XXVII. GENERAL AGREEMENT OF PARTIES.
This Lease shall extend to and be binding upon the heirs, personal
representatives, successors and assigns of the parties. This provision,
however, shall not be construed to permit the assignment of this Lease by
Tenant, except as may be permitted hereby. When applicable, use of the
singular form of any word shall mean or apply to the plural and the neuter form
shall mean or apply to the feminine or masculine.
The captions and article numbers appearing in this Lease are inserted
only as a matter of convenience and are not intended to define, limit, construe
or describe the scope or intent of such provisions. No waiver by Landlord of
any default by Tenant shall be effective unless in writing, nor operate as a
waiver of any other default or of the same default on a future occasion.
Landlord's acceptance of rent shall not be deemed a waiver as to any preceding
or subsequent default.
16
17
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
Agreement as of the date first above written.
LANDLORD
NORTH MERIDIAN MEDICAL REALTY COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., President
TENANT
BINDLEY WESTERN INDUSTRIES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President
and General Counsel
18
EXHIBIT A
PARCEL 1
Part of the Southwest Quarter and Part of the Southeast Quarter of Section 2,
Township 17 North, Range 3 East in ▇▇▇▇▇▇▇▇ County, Indiana, more particularly
described as follows:
Beginning at the Southeast corner of the Southwest Quarter of ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇; thence North 89 degrees 45 minutes 00 seconds
West (assumed bearing) on and along the South line thereof 225.70 feet; thence
North 00 degrees 44 minutes 45 seconds East parallel with the East line of said
Quarter 400.00 feet; thence North 89 degrees 45 minutes 00 seconds West
parallel with the South line of the Southwest Quarter of said Section 246.75
feet to the Easterly right-of-way line of ▇.▇. ▇▇▇▇▇▇▇ ▇▇ per I.S.H.C.
description for Parcel 63A, dated 4-2-1971; thence North 00 degrees 52 minutes
41 seconds East on and along said right of way 238.00 feet; thence South 89
degrees 45 minutes 00 seconds East parallel with the South line of said Quarter
and the Easterly prolongation thereof 497.66 feet, to a point on the West line
of Meridian Highlands, lst Section, the plat of which is recorded in Plat Book
2, page 184 in the Office of the Recorder of ▇▇▇▇▇▇▇▇ County, Indiana, which
point is 637.89 feet North 00 degrees 58 minutes 48 seconds East of the South
line of the Southeast Quarter of said Meridian Highlands, lst Section, 637.89
feet to the South line of said Southwest Quarter; thence South 89 degrees 56
minutes 00 seconds West on and along said South line 23.15 feet to the
Beginning Point; containing 5.010 acres more or less.
EXCEPTING FROM PARCEL I THE FOLLOWING TWO TRACTS OF REAL ESTATE:
(EXCEPTION I)
A part of the Southwest Quarter and a part of the Southeast Quarter of Section
▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, described as
follows:
Commencing at the Southeast corner of said Quarter Section; thence South 88
degrees 58 minutes 37 seconds West 225.70 feet along the South line of said
section to the Southwest corner of the owner's land; thence North 0 degrees 31
minutes 38 seconds West 15.02 feet along the West line of the owner's land to
the North boundary of ▇▇▇▇▇ ▇▇▇▇▇▇ and the point of beginning of this
description: thence North 0 degrees 31 minutes 38 seconds West 24.32 feet
along the west line of the owner's land; thence North 88 degrees 51 minutes 36
seconds East 249.21 feet to the West line of Meridian highlands lst Section;
thence South 88 degrees 00 minutes 15 seconds East 24.81 feet along the West
line of said Meridian Highlands lst Section to the North boundary of said ▇▇▇▇▇
▇▇▇▇▇▇; thence South 88 degrees 56 minutes 28 seconds West 23.41 feet along the
boundary of said ▇▇▇▇▇ ▇▇▇▇▇▇; thence South 88 degrees 58 minutes 37 seconds
West 225.56 feet along said boundary to the point of beginning and containing
0.104 acres more or less.
A-1
19
(EXCEPTION II)
Part of the Southwest Quarter of Section 2, Township 17 North, Range 3 East in
▇▇▇▇▇▇▇▇ County, Indiana, described as follows:
Commencing at the southeast corner of said southwest quarter section; thence on
an assumed bearing of North 89 degrees 45 minutes 00 seconds West along the
south line of said southwest quarter section a distance of 225.70 feet; thence
North 00 degrees 44 minutes 45 seconds East parallel with the east line of
said quarter section a distance of 400.00 feet; thence North 89 degrees 45
minutes 00 seconds West parallel with the south line of said southwest quarter
section a distance of 6.75 feet to a 5/8 inch rebar with yellow plastic cap
marked "▇▇▇▇▇▇▇▇▇ ENG FIRM #0001" (hereinafter referred to as a "rebar") at the
Beginning Point; thence continuing North 89 degrees 45 minutes 00 seconds West
parallel with the said south line a distance of 240.00 feet to a "rebar" on the
Easterly right-of-way line of ▇.▇. ▇▇▇▇▇▇▇ ▇▇ per I.S.H.C. description for
Parcel 63A, dated 4/2/1971; thence North 00 degrees 52 minutes 41 sconds East
along said right-of-way line a distance of 238.00 feet to a "rebar"; thence
South 89 degrees 45 minutes 00 seconds East parallel with the south line of
said quarter section a distance of 274.88 feet to a "rebar"; thence South 00
degrees 52 minutes 41 seconds West parallel with the said easterly right-of-way
line of U.S. 31 a distance of 127.01 feet to a p.k. nail; thence North 89
degrees 45 minutes 00 seconds West parallel with the said south line a
distance of 34.88 feet to a "rebar"; thence South 00 degrees 52 minutes 41
seconds West parallel with the said easterly right-of-way line of U.S. 31 a
distance of 111.00 feet to the Beginning Point. Containing 1.413 acres, more or
less.
ALSO INCLUDING:
PARCEL II
Part of the Southwest Quarter of Section 2, Township 17 North, Range 3 East in
▇▇▇▇▇▇▇▇ County, Indiana, more particularly described as follows:
Commencing at the Southeast Corner of the said Quarter Section; thence
North 89 degrees 45 minutes 00 seconds West (Assumed bearing) along the South
line of the said Quarter Section a distance of 225.70 feet to the Southeast
corner of a Tract of Land decribed in a deed to K.S.M. Realty, recorded in Deed
Record 316, page 567, in the Office of the Recorder of ▇▇▇▇▇▇▇▇ County,
Indiana; thence North 00 degrees 44 minutes 45 seconds East parallel with the
East line of the said Quarter Section and along the East line of said K.S.M.
Realty Tract a distance of 39.34 feet to the point of beginning, being the
intersection of said East line of said K.S.M. Realty Tract with the North line
of a Tract of Land described in a deed to the State of Indiana recorded as
Instrument 89-27932; thence continuing North 00 degrees 44 minutes 45 seconds
East parallel with the East line of the said Quarter Section and along the East
line of said K.S.M. Realty Tract a distance of 360.66 feet to the Northeast
corner of said K.S.M. Realty Tract; thence North 89 degrees 45 minutes 00
seconds West parallel with the South line of said Quarter Section and along the
North line of said K.S.M. Realty Tract a distance of 13.00 feet; thence South 00
degrees 44 minutes 45 seconds West parallel with the east line of said Quarter
Section and the East line of said K.S.M. Realty Tract a distance of 360.07 feet
to the North line of said State of Indiana Tract: thence South 87 degrees 08
minutes 05 secods East along the North line of said State of Indiana Tract a
distance of 13.01 feet to the point of beginning, containing 0.108 acres, more
or less.
A-2
20
[FLOOR PLAN OF FIRST FLOOR EXHIBIT B]
21
[FLOOR PAN OF SECOND FLOOR FINISH PLAN]
22
EXHIBIT B PAGE 3
1. Waiting room, receptionist area, and exam and dictation rooms (IDI
only)
2. Garage (IDI only)
3. Infusion services area (BWI only)
4. Storage area (BWI only)
5. Exercise/locker/shower room, etc. (IDI only)
6. Administrative offices, waiting room and receptionist area (BWI only)
7. Offices, kitchen/dining room, etc (IDI only)
23
[FLOOR PLAN FIRST FLOOR]
EXHIBIT C
ROCHE BIOMEDICAL LABORATORIES, INC.
24
[FLOOR PLAN]
ROCHE PROFESSIONAL SERVICE CENTERS, INC.
FIRST FLOOR
25
[FLOOR PLAN]
ROCHE PROFESSIONAL SERVICE CENTERS, INC.
SECOND FLOOR FINISH PLAN
26
[FLOOR PLAN]
First Floor
NORTHWEST RADIOLOGISTS, P.C.