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Exhibit 10.13
LANVISION SYSTEMS, INC.
LEASE FOR OFFICE SPACE BETWEEN GREEN REALTY CORPORATION AND LANVISION, INC.,
DATED APRIL 7, 1997
LEASE
-----
This Lease, executed as of this date of April 7, 1997, by and between
GREEN REALTY CORPORATION (hereinafter referred to as "Lessor"), and LAN VISION,
INC., a(n) OHIO corporation, (hereinafter referred to as "Lessee").
W I T N E S S E T H :
I. DEMISE AND TERM. Lessor, for and in consideration of the rents herein
reserved and the covenants and agreements herein contained and expressed on the
part of Lessee to be kept, performed and fulfilled, hereby demises and lets unto
Lessee, and Lessee hereby leases from Lessor the Premises (hereinafter sometimes
referred to as the Demised Premises) consisting of approximately 10,000 square
feet of office space in the building known as 0000 XXXXX XXXX, Xxxxxxxxxx, Xxxx,
and more particularly shown on the drawing attached hereto as Exhibit A and made
a part hereof.
To have and to hold the Demised Premises, together with all privileges,
rights and easements thereunto appertaining and belonging unto Lessee, for and
during the term of THREE (3) years commencing upon APRIL 15, 1997 (the
commencement date), and ending APRIL 14, 2000 unless sooner terminated as
herein provided, subject to the rents, terms and conditions herein contained.
Lessee shall have the right to possession of the premises on the date of the
full execution of this Lease. From said time until the commencement date,
Lessee shall assume all obligations under the Lease other than its obligation
to pay rent.
II. RENTAL.
A. Lessee shall pay Lessor as Rent for the Demised Premises, subject
to Section XXVIII of this Lease, without prior notice or demand, monthly
rental as follows:
---------------------------------------- -------------- -------------- -----------
Monthly Annual Rent/
Year Rent Rent SF
---------------------------------------- -------------- -------------- -----------
April 15, 1997 - April 14, 1998 $6,250.00 $75,000.00 $7.50
---------------------------------------- -------------- -------------- -----------
April 15, 1998 - April 14, 1999 6,250.00 75,000.00 7.50
---------------------------------------- -------------- -------------- -----------
April 15, 1999 - April 14, 2000 6,250.00 75,000.00 7.50
---------------------------------------- -------------- -------------- -----------
Such Rent shall be payable in advance, on the first day of each and every month
during said term. Rent shall be due on the first (1st) and late after the fifth
(5th).
III. RIGHT TO RENEW.
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A. Lessor grants Lessee the right and option to renew the Lease Term
for one (1) additional period of three (3) years (April 15, 2000 through April
14, 2003). The Lease Term shall be extended for the renewal period provided:
(a) written notice of Lessee's election to exercise its right and option to
renew the Lease Term is given to the Lessor at lease one hundred twenty (120)
days prior to the expiration of the Lease Term and (b) no default then exists
under the Lease. If Lessee renews the Lease Term as aforesaid, then the Lease
Term shall be duly extended for the applicable renewal period upon all of the
same terms, provisions and conditions, except as hereinafter provided and all
references contained in this lease to the Lease Term shall be construed to
refer to the Lease Term as extended, whether or not specific reference thereto
is made to this Lease.
B. The rent during the renewal period of this Lease, subject to
Section XXVIII of this Lease, shall be as follows:
========================================= ============= ================ =============
Year Monthly Rent Annual Rent Rent/SF
========================================= ============= ================ =============
April 15, 2000 - April 14, 2001 $6,441.69 $77,300.00 $7.73
----------------------------------------- ------------- ---------------- -------------
April 15, 2001 - April 14, 2002 6,633.33 79,600.00 7.96
----------------------------------------- ------------- ---------------- -------------
April 15, 2002 - April 14, 2003 6,833.33 82,000.00 8.20
----------------------------------------- ------------- ---------------- -------------
C. At the time of said renewal, in the event that the approximate
3,000 square feet as identified on Exhibit B is still available for lease and
Lessee has not exercised its Right of First Refusal on said space as outlined
in Section XXVIII of this Lease, Lessee shall, from the renewal date forward,
lease all of said 3,000 square feet of space in addition to the approximate
10,000 square feet identified in Section I of the Lease. Rent for said
approximate 3,000 square feet of space shall be at the same rental per square
foot as that outlined in Section III B of this Lease.
D. The Rent during the renewal period (determined as aforesaid) shall
be paid in equal monthly installments, payable in advance on the first day of
each and every month.
IV. UTILITIES. Lessee shall pay or cause to be paid all charges, costs and/or
taxes for water, sewer, stormwater management, gas, heat, electricity, light,
telephone service, waste disposal or any other similar communication or
utility services of any kind or nature used in or rendered to the Demised
Premises or any part thereof. All utilities shall be, at the option of Lessor,
either separately metered and paid directly by Lessee to the appropriate
entity or prorated and billed to Lessee and promptly paid to Lessor by Lessee.
V. MAINTENANCE, JANITORIAL, REPAIR, SURRENDER OF PREMISES, ALTERATIONS. Except
as specifically stated elsewhere in this Lease, Lessee shall, at Lessee's sole
cost and expense at all times, keep the interior of the Demised Premises and
every part and system thereof, in good order, condition and repair, structural
and non-structural, including, all equipment and facilities serving the
Demised Premises, such as heating, air conditioning, ventilating, lighting,
including replacement of bulbs, systems and equipment, fire hydrants,
fixtures, walls, ceilings, floors, windows, doors, plate glass, doors, dock
doors, levelers and related equipment, and skylights. In
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the event that replacement of the HVAC system is necessary, Lessor shall be
responsible for said cost. Lessee shall not cause or permit any Hazardous
Materials (defined below) to be spilled or released in, on, under or about the
Demised Premises (including through the plumbing or sanitary sewer system) and
shall promptly, at Lessee's expense, take all investigatory and/or remedial
action reasonably recommended, whether or not formally ordered or acquired,
for clean-up of any contamination of, and for the maintenance, security and/or
monitoring of the Demised Premises, the elements surrounding same, or
neighboring properties, that was caused or materially contributed to by
Lessee, or pertaining to or involving any Hazardous Materials brought onto the
Demised Premises by or for Lessee or under its control.
Lessee, in keeping the Demised Premises in good order, condition
and repair, shall exercise and perform good maintenance practices. Unless stated
otherwise in this Lease, Lessee's obligations shall include restoration,
replacement or renewals where necessary to keep the interior of the Demised
Premises and all improvements thereon or any part thereof in good order,
condition and state of repair. Lessee shall not be responsible for restoration,
replacement, or renewals where the need for such restoration, replacement, or
renewals is due to reasonable and ordinary wear and tear.
Lessor shall be responsible for all exterior improvements and
maintenance, of the Demised Premises, including the roof and structural parts,
and capital improvements of the parking areas. Lessee shall give reasonable
advance notice to Lessor of required repairs to the roof or structure. Lessor
shall be responsible for the removal of snow. To the extent not caused by
Lessee's misuse or neglect, Lessor shall be responsible for the maintenance and
repair of the plumbing, electrical and mechanical systems with the exception of
the maintenance and repair of the HVAC system which shall be Lessee's
responsibility only to the extent that the HVAC system serves the Demised
Premises.
Lessee further covenants and agrees that at the end of the term,
it will deliver up the Demised Premises broom-clean, free of debris and in as
good order and condition as they are at commencement hereof or may be put to
thereafter, reasonable use and reasonable and ordinary wear and tear excepted.
All of the obligations of Lessee shall include the repair of any damage
occasioned by the installation, maintenance or removal of Lessee's trade
fixtures, furnishings, equipment, as well as the removal of any materials that
are left by Lessee.
Lessee shall be responsible for all interior janitorial service
respecting the Demised Premises including trash removal.
Lessee will make any changes to the Demised Premises required by
any law, ordinance, judgment, decree or any official action by any governmental
or quasi-governmental agency or authority under any police, health, safety,
environmental, fire or other regulation, if said change is a direct result of
Lessee's particular use of the Demised Premises.
Lessee agrees to obtain a service contract on the HVAC system with
a firm which is reasonably satisfactory to lessor. Such contract shall provide
for at least quarterly inspections,
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and with written reports to Lessor and Lessee. Lessee is only responsible for
the cost of such service contract to the extent that the HVAC system serves
the Demised Premises.
Lessee covenants and agrees that it will neither do nor permit to
be done any act or thing on the Demised Premises or elsewhere which will
invalidate any insurance on the Demised Premises or increase the premiums for
insurance thereon. Lessee's current use of the Premises is acceptable.
Lessee may, at its own cost and expense, from time to time during the
term of this Lease, make such alterations, additions and changes, structural
and otherwise, in and to the Demised Premises as it finds necessary or
convenient for its purposes; provided, however: (i) that Lessee shall
indemnify and save harmless Lessor from all expenses, liens, claims of damages
to any person or property arising out of or resulting from the undertaking or
making of such alterations, additions and/or changes; (ii) that such
alterations, additions and/or changes shall not decrease the value of the
Demised Premises, and in no manner adversely affect the use thereof, or the
rights of Lessor, such adverse affect to be determined in Lessor's sole
opinion; an (iii) that written consent shall be first obtained from Lessor
before undertaking the same, which consent shall not be unreasonably withheld.
Such consent may, at the option of Lessor, be either on the basis that Lessee
shall restore the Demised Premises to substantially their original condition
at the termination of this Lease, or that no restoration will be required. All
trade fixtures, trade apparatus, trade machinery and trade equipment placed on
the Demised Premises at the expense of Lessee shall remain the property of
Lessee, and may be removed by Lessee at any time prior to and upon termination
of this Lease. Copies of all plans and specifications, including as-built
plans, shall be provided to Lessor by Lessee.
VI. REAL ESTATE TAXES AND ASSESSMENTS. Lessor shall be responsible for the
payment of all real estate taxes and assessments regarding the Demised
Premises.
VII. LESSEE IMPROVEMENTS. Lessor, at its sole cost and expense prior to the
commencement date, shall construct the following improvements for Lessee.
- Install new carpet in the Demised Premises.
- Paint the Demised Premises.
- Repair/fix all lighting and electrical, where needed.
VIII. FIRE AND CASUALTY.
If the Demised Premises shall be damaged by fire, the elements, or
other casualty, but are not thereby rendered untenantable in whole or in part,
Lessor shall promptly cause such damage to be repaired, and the Rent shall not
be abated. If by reason of such occurrence, the Demised Premises shall be
rendered untenantable only in part, Lessor shall promptly cause the damage to be
repaired, and the Rent meanwhile shall be abated proportionately as to the
portion of the Demised Premises rendered untenantable. If the Demised Premises
shall be rendered
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wholly untenantable by reason of such occurrence the Lessor shall cause such
damage to be repaired, and the Rent meanwhile shall xxxxx until the Demised
Premises have been restored and rendered tenantable, or if the damage is so
serious that it cannot reasonably be repaired within sixty (60) days as to
Lessee and one hundred twenty (120) days as to Lessor, Lessor or the Lessee
may at its election, terminate this Lease by giving to the other party within
the thirty (30) days following the date of such occurrence, written notice of
its election so to do and in the event of such termination Rent shall be
adjusted as of such occurrence.
IX. INSURANCE.
A. Lessor shall insure the building and keep it insured during the
term against loss or damage by fire or other casualty normally covered by
extended coverage endorsements.
B. Lessee shall at all times maintain at its expense the following
insurance in respect to the Demised Premises:
1. General public liability insurance against claims for bodily
injury, death or property damage occurring on, in or about the Demised
Premises and the adjoining streets, sidewalks and passageways, with limits of
not less than Two Million Dollars ($2,000,000.00) with respect to bodily
injury or death to any one person, not less than Two Million Dollars
($2,000,000.00) with respect to any one accident, and not less than One
Million Dollars ($1,000,000.00) with respect to property damage.
2. Workers' compensation insurance or comparable insurance under
applicable laws covering all persons employed in connection with any work done
on or about the premises for which claims for death or bodily injury could be
asserted against Lessor, Lessee or the premises.
3. Plate glass insurance for the full replacement cost of all
glass on the premises.
C. All insurance to be provided by Lessee pursuant to this Lease
shall be written by companies acceptable to Lessor, and all such insurance
shall name as the insured parties Lessor, Lessee, and any property manager for
Lessor, and Lessor's mortgagee (as their respective interests may appear).
D. Insurance claims by reason of damage to or destruction of any
portion of the Demised Premises shall be payable to Lessor and/or Lessor's
mortgagee, or an insurance trustee, if so required by Lessor and/or Lessor's
mortgagee.
E. Every policy required by this Lease shall contain an agreement by
the insurer that it will not cancel or modify such policy, except after thirty
(30) days' prior written notice to Lessor and/or Lessor's mortgagee, and that
any loss otherwise payable thereunder shall be payable notwithstanding any act
or negligence of the insured, and notwithstanding: (i) the occupation or use
of the Demised Premises for purposes more hazardous than permitted by the
terms of such
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policy; (ii) any foreclosure or other action or proceeding taken by any
mortgagee or notice of sale relating to the premises; or (iii) any change in
title to or ownership of the Demised Premises.
F. Lessee shall deliver to Lessor, within seven (7) days from the date
of the execution and delivery of this Lease, certificates of the insurers
satisfactory to Lessor and Lessor's mortgagee, evidencing all the insurance
which is required to be maintained by Lessee hereunder, and Lessee shall
maintain such insurance continuously throughout the term hereof. Lessee shall,
as soon as practicable, but in all events within thirty (30) days of the
renewal date of any such insurance, deliver additional certificates of the
insurers satisfactory to Lessor, evidencing the renewal of such insurance.
Should Lessee fail to effect, maintain or renew any insurance provided for in
this section or to pay the premium therefor, or to deliver to Lessor any of
such certificates as required herein, then and in any of said events Lessor,
at its option, but without obligation so to do, may procure such insurance,
and any sums expended by it to procure such insurance shall be additional rent
hereunder, and shall be repaid by Lessee within fifteen (15) business days
following the date on which such expenditure shall be made by Lessor.
G. Lessee agrees to carry adequate fire and extended coverage on all of
Lessee's personal property located in the Demised Premises, including
leasehold improvements, inventory, trade fixtures and other property installed
or placed on the Demised Premises by Lessee.
X. INDEMNITY AND RIGHT OF ENTRY. Lessee will indemnify and hold harmless
Lessor from all claims, demands and damages for injuries to persons or
property arising solely from occupancy or use of the Demised Premises by
Lessee, and from any and all other claims, demands, liens, damages, fines or
penalties of whatever name, nature of kind, solely chargeable to, or payable
for, or in respect of the use or occupancy of the Demised Premises by Lessee,
or from any act or omission of Lessee, its servants, its agents,
representatives, tenants, guests, invitees, licensees or any other person,
firm or corporation in, about or adjacent to the Demised Premises. The
foregoing indemnification shall not apply to claims, demands, or damages
resulting from Lessor's negligence or willful misconduct. In the event that
any suit, action or proceeding predicated upon (1) an alleged breach of
undertaking by either party under the terms of this Lease or (2) for or on
account of which one party has covenanted to indemnify the other party under
the terms of this Lease or could be bound by law to so indemnify the other
party, is instituted by one party against the other party, the non-prevailing
party shall pay to the prevailing party all costs, expenses and attorney fees
incurred by or imposed upon the prevailing party in prosecution or defense of
any such suit, action, or proceeding.
Lessee covenants and agrees that Lessor, or Lessor's agents or
representatives, shall have the right, during normal business hours, upon
twenty-four (24) hours notice to enter upon the Demised Premises for the purpose
of examining the same and to observe the compliance or noncompliance by Lessee
with the terms of this Lease, and for the purpose of exhibiting the same to
prospective lessees with prior notice of the time during the last six (6) months
of this Lease or as otherwise agreed between the parties. Lessee agrees to
permit Lessor or Lessor's agents or representatives to enter into and upon the
Demised Premises at any time in case of emergency.
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XI. PROVISION FOR NOTICE. All notices which may be proper or necessary for the
parties to serve upon each other shall be served by registered or certified
mail, postage prepaid, or by nationally recognized overnight delivery services
as follows:
To Lessor: GREEN REALTY CORPORATION
0000 XXXXXX XXXX, XXXXX 000
XXXXXXXXXX, XXXX 00000
To Lessee: LAN VISION, INC.
XXX XXXXXXXXX XXX, XXXXX 000
XXXXXXXXXX, XX 00000
ATTN: GENERAL COUNSEL
or such other address as either party may direct in writing from time to time.
Service of any such notice or demand shall be deemed completed twenty-four (24)
hours after deposit thereof in the U.S. mail, or the day after delivery to the
overnight delivery service.
XII. TITLE AND CONDITION; HAZARDOUS MATERIALS.
A. The Demised Premises are leased subject to: (i) the existing state
of the title thereof as of the commencement of the term of this Lease; (ii)
any state of facts which an accurate survey or physical inspection thereof
might show; and (iii) all zoning regulations and other laws and regulations
now in effect or hereafter adopted by any governmental authority having
jurisdiction. Except as specifically set out herein, the land, buildings,
structures and other improvements comprising a part of the Demised Premises
are leased subject to their condition as of the commencement of the term of
this Lease and without representation or warranty of any kind by Lessor,
including, without limitation, any representation or warranty with respect to
environmental matters.
B. HAZARDOUS MATERIALS. To the best of its actual knowledge, Lessor has
at all times, including the present, complied with all federal, state and
local environmental laws, rules and regulations applicable to its operations.
Except as disclosed to lessee, no hazardous substance, contaminant, solid
waste or material, toxic substance, petroleum product, distillate or residue,
or pollutant (as those or similar terms are defined under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
USC section .9601 et seq., the Resource Conservation and recovery Act of 1976,
42 USC sections .6901 et seq., or any other applicable federal, state and local
environmental law, statute, ordinance, order, judgment, rule ore regulation
relating to the environment or the protection of human health ("Environmental
Laws") (collectively, "Hazardous Materials"), have been released, emitted or
discharged by Lessor, nor does Lessor have any knowledge of such release,
emission or discharge by any other person(s) or entities.
XIII. ASSIGNMENT OR SALE. Lessee may not assign this Lease, nor sublet the
Demised Premises or any portion thereof, without first obtaining the prior
written consent of Lessor, not to be unreasonably withheld. Any consent by
Lessor to a assignment or subletting shall not in any
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manner be construed to relieve Lessee or any assignee or sublessee from
obtaining the consent in writing of Lessor to any further assignment or
subletting, and in all events, Lessee shall remain primarily liable for the
payment of rent herein reserved and for the performance of all of the other
terms of this Lease required to be performed by Lessee.
Lessor may assign this lease or any partial interest herein, any may
also sell, convey and mortgage the Demised Premises, subject to the term of
this Lease.
XIV. QUIET ENJOYMENT. Lessor covenants and agrees that, subject to any
mortgages now of record or hereafter placed of record, it is the owner of the
Demised Premises and Lessee, if the covenants of this Lease to be paid and
performed by Lessee are paid and performed, shall have peaceable possession
and quiet enjoyment of the Demised Premises throughout the term of this Lease
without any hindrance or molestation by Lessor, or any person claiming
lawfully under Lessor.
XV. DEFAULT.
A. The occurrence of any one or more of the following events shall be a
default and breach of this Lease by Lessee:
1. Lessee shall fail to pay any monthly installment of rent within
five (5) days after written notice from Lessor that the same shall be due and
payable.
2. Lessee shall fail to perform or observe any term, condition,
covenant or obligation, other than the payment of rent, required to be
performed or observed by it under this Lease for a period of thirty (30) days
after notice thereof from Lessor; or such longer period, if the term,
condition, covenant or obligation to be performed within such thirty (30) day
period cannot, due to its nature, be performed within such thirty (30) day
period and Lessee commences or perform within such thirty (30) day period, and
thereafter diligently undertakes to complete the same.
3. A trustee or receiver shall be appointed to take possession of
substantially all of Lessee's assets in, on or about the Demised Premises or
of Lessee's interest in this Lease (and Lessee does not regain possession
within sixty (60) days after such appointment); Lessee makes an assignment for
the benefit of creditors; or substantially all of Lessee's assets in, on or
about the Demised Premises or Lessee's interest in this Lease are attached or
levied upon under execution (and Lessee does not discharge the same within
sixty (60) days thereafter).
4. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Lessee, pursuant to any federal or state
statute (and, with respect to any such petition filed against it, lessee fails
to secure a stay or discharge thereof within sixty (60) days after the filing
of the same).
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B. Upon the occurrence of any event of default, as set forth above,
Lessor shall have the following rights and remedies, in addition to those
allowed by law or equity, and one or more of which may be exercised after ten
(10) days notice to Lessee:
1. Lessor may apply the security deposit and/or re-enter the
Demised Premises and cure any default of Lessee, in which event Lessee shall
reimburse Lessor as additional rent for any cost and expenses which Lessor may
incur to cure such default.
2. Lessor may terminate this Lease as of the date of such
default, in which event: (i) neither Lessee, nor any person claiming under or
through Lessee, shall thereafter be entitled to possession of the Demised
Premises, and Lessee shall immediately thereafter surrender the premises to
Lessor; (ii) Lessor may re-enter the Demised Premises and dispossess Lessee or
any other occupants of the premises by force, summary proceedings, ejectment
or otherwise, and may remove their effects, without prejudice to any other
remedy which Lessor may have for possession or arrearages in rent; and (iii)
notwithstanding the termination of this Lease, Lessor may re-let all or any
part of the Demised Premises for a term different from that which would
otherwise have constituted the balance of the term of this Lease, and for
reasonable rent and on reasonable terms and conditions different from those
contained herein, whereupon Lessee shall be obligated to pay to Lessor as
liquidated damages the difference between the rent provided for herein and
that provided for any Lease covering a subsequent re-letting of the Demised
Premises, for a period which would otherwise have constituted the balance of
the term of this Lease, together with a proportional amount of all of Lessor's
reasonable costs and expenses for preparing the premises for re-letting,
including all repairs, tenant finish improvements, brokers' and attorneys'
fees, and all loss or damage which Lessor may sustain by reason of such
termination, re-entry and re-letting, it being expressly understood and agreed
that the liabilities and remedies specified in clauses A and B above shall
survive the termination of this Lease.
3. Lessor may xxx for injunctive relief, or to recover damages
for any loss resulting from the breach.
XVI. WAIVER. It is further mutually covenanted and agreed between the parties
hereto that no waiver of any covenant, agreement, stipulation or condition of
this Lease shall be construed to be a waiver of any succeeding breach of the
same covenant, agreement, stipulation or condition; that the payment by
Lessee, or the receipt by Lessor, of rent with knowledge of the breach by the
other party of any covenant hereof shall not be deemed a waiver of such
breach; and further, that all covenants, stipulations, conditions, and
agreements herein contained shall run with the land, and bind and inure to the
benefit of, as the case may require, the heirs, executors, administrators,
successors and assigns of the parties hereto and to grantees of Lessor, as
fully as if such words were written whenever reference to Lessor and Lessee
occur in this Lease, except that no assignment by lessee in violation of the
provisions of this Lease, shall vest any right in the assignee.
XVII. MORTGAGES. Lessor shall have the right to transfer, assign, mortgage and
convey in whole or in part, the Demised Premises, and any and all rights of
Lessor under this Lease, and nothing herein shall be construed as a restriction
upon Lessor so doing. This Lease shall be
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subject and subordinate to any mortgage or other financing arrangement and to
any renewal modification, consolidation, replacement and extension thereof now
or thereafter placed upon or affecting the Demised Premises, or any part
hereof, provided that so long as Lessee is not in default of any of the terms
and conditions hereof, Lessee's rights, privileges and possession hereunder
shall not be disturbed. Although no instrument or act on the part of Lessee
shall be necessary to effectuate such subordination, Lessee will, upon
request, execute and deliver such further instruments subordinating this Lease
to the lien of any such mortgages or other financing arrangements as may be
desired by the mortgagee or other lender. Lessee hereby appoints Lessor its
attorney-in-fact, irrevocably, to execute and deliver any such instrument for
Lessee, should Lessee fail to execute and deliver same within ten (10) days of
any request therefor. In the event of any sale or exchange of the Demised
Premises by Lessor and assignment by Lessor hereof and acceptance by assignee
of all responsibilities of Lessor. Lessor shall be and is hereby entirely free
and relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease occurring after the
consummation of such sale or exchange and assignment.
XVIII. CONDEMNATION.
A. If, during the term of this Lease, all of the Demised Premises, or
such a substantial part of the premises so as to render the remaining as the
same may be restored, unusable for the purposes for which the premises were
leased, shall be taken by appropriation for public, or quasi-public use, under
the right of eminent domain, then all of the proceeds of such appropriation
shall be paid to Lessor, and Lessee shall have no claim to any part thereof,
except as set out below, and this Lease shall be canceled as of the date of
such taking, provided, however, Lessee may claim such damages it suffered with
respect to its trade fixtures, personal property and its improvements to the
real property from the condemning authority.
B. If, during the term of this Lease, a part but not all of the
Demised Premises shall be taken by appropriation for public, or quasi-public
use, under the right of eminent domain and this Lease shall not terminate or
be terminated under the provisions of subparagraph XVIII (A) hereof, then this
Lease shall not be canceled, and shall apply to that part of the Demised
Premises not so taken. In such event, all of the proceeds shall be paid to
Lessor, and Lessee shall not be entitled to any part thereof (except for a
reasonable amount for the depreciated value of its improvements), but the
rental for the remaining term and the Required Purchase Price, as defined
below, shall be equitably adjusted.
XIX. LIENS. Lessor shall have a first and best lien, paramount to all others
upon every right and interest of Lessee to and in the Demised Premises and to
and in this Lease, and in and to all improvements which become part of the
real estate constituting the premises, as security for the payment of the
entire amount of rent payable under this Lease, and for the payment of the
entire amount of rent payable under this Lease, and for the payment of all
monies payable under any obligation or engagement of Lessee contained in this
Lease, and as security for the performance and observance of all and singular
the covenants, agreements, conditions and obligations of this Lease to be
performed and observed by Lessee.
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XX. COMPLIANCE WITH LAWS, INSURANCE POLICIES, ETC.; USE. Further, Lessee, at
its expense, shall cause the Demised Premises to comply with all federal,
state, county, municipal and other governmental laws, statutes, rules, orders,
regulations and ordinances applicable to the Demised Premises, or any part
thereof or the use thereof, whether or not any such statutes, laws, rules,
orders, regulations or ordinances which may hereafter be enacted, involve a
change of policy if said compliance is the direct result of Lessee's
particular use of the Demised Premises. Lessee shall obtain and pay for all
permits and appraisals required for Lessee's occupancy of the Demised
Premises, and shall promptly take all substantial and non-substantial actions
necessary to comply with all statues, ordinances, rules, regulations, orders
and requirements regulating the use by Lessee of the Demised Premises,
including, without limitation, the Occupational Safety and Health Act. All
materials used or kept on or about the Demised Premises shall be
self-contained in governmentally approved containers which shall not be
opened, disturbed or stored on the Demised Premises. Lessee shall not mix,
process or handle hazardous contents on the Demised Premises. Lessee shall
comply with all Environmental Laws and laws pertaining to the control of
Hazardous Materials, and shall indemnify and hold Lessor and Lessor's
lender(s) harmless from any and all loss, claims, damage or cost, including
attorneys' fees arising out of or resulting from its failure to do so, civil
and criminal penalties, natural resource damages, and diminution in value of
the Demised Premises, or arising out of the presence of hazardous waste,
bio-hazardous waste, asbestos, petro chemicals, toxic substances or the
presence of other environmentally detrimental matter. Without limiting the
foregoing, Lessee shall acquire all applicable permits required for the
Demised Premises regarding stormwater discharges or run-off, including any
National Pollutant Discharges elimination system permits, and shall comply
with all applicable requirements, including monitoring requirements. Lessor,
at its option, may elect to acquire permits, perform any and all stormwater
discharge elimination plans and monitoring as required by any governmental
authority, and Lessee agrees to reimburse Lessor for same. Lessee will not
permit nor place any fuel storage tanks or pumps on the Demised Premises, and
shall keep the Demised Premises free of environmental hazards of any kind or
nature. Lessee shall only use the Demised Premises as follows: OFFICES.
XXI. ARTICLE HEADINGS. The article headings in this Lease are inserted only as
a matter of convenience for reference and in no way define, limit or describe
the scope or intent of this Lease or affect this Lease.
XXII. MEMORANDUM OF LEASE. In the event either Lessor or Lessee determine to
record this Lease, a short form memorandum of Lease shall be recorded in lieu
of the original Lease. Such short form memorandum shall be executed by both
parties, but shall not in any way vary or revoke the terms of this Lease.
XXIII. ESTOPPEL CERTIFICATE. Lessee shall from time to time, upon not less
than ten (10) days prior written request by Lessor, execute, acknowledge and
deliver to Lessor an estoppel certificate, certifying that this Lease is in
full force and effect; the dates to which rents have been paid; and whether
Lessor is in default, and if so, specifying the nature of the default; and
that the Lease is in full force and effect, as modified, and listing
instruments of modification. It is intended that such estoppel certificate may
be relied on by a prospective purchaser of Lessor's interest, or mortgagee or
assignee of any mortgage upon the Demised Premises.
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XXIV. SECURITY DEPOSIT. Concurrently with Lessee's execution hereof, Lessee
has deposited with Lessor the sum of SIX THOUSAND TWO HUNDRED FIFTY Dollars
($6,250.00), the receipt of which is hereby acknowledged, as security for the
payment by Lessee of the rent or other charges to be paid and for the faithful
performance by Lessee of all of the terms, conditions and covenants of this
Lease. If at any time during the term of this Lease, Lessee shall be in
default in the performance of any provisions of this Lease, Lessor shall have
the right to use the security deposit, or so much thereof as is necessary, in
payment of rental or other charges in default, reimbursement of any expenses
incurred by Lessor, and in payment of any damages incurred by Lessor by reason
of Lessee's default. If any portion of said deposit is so used or applied,
Lessee shall, within ten (10) days after written demand therefore from Lessor,
remit to Lessor a sufficient amount out restore the security deposit to its
original amount.
In the event the security deposit has not been utilized as aforesaid,
the security deposit, or so much thereof as has not been utilized for such
purposes, shall be refunded to Lessee, without interest, upon full performance
of all of the terms of this Lease by Lessee, within ten (10) days of the
termination of this Lease.
Lessor shall have the right to commingle the security deposit with
other funds of Lessor. Lessor shall have the right to deliver the security
deposit to any successor in interest to Lessor's interest in the Demised
Premises. Thereupon, Lessor shall be discharged from further liability with
respect to such security deposit provided assignee assumes all
responsibilities (past and future) of Lessor. If claims of Lessor exceed the
security deposit, Lessee shall remain liable for the balance of such claims.
Lessee may not assign its right to the security deposit in whole or
in part.
XXV. NO COUNTERCLAIM, ABATEMENT, ETC.
There shall be no abatement, deduction or offset whatsoever with
regard to any amounts due from the Lessee to the Lessor under Sections II, III
or XXVIII of this Lease.
XXVI. LIMITATION OF LESSOR'S PERSONAL LIABILITY. Lessee specifically agrees to
look solely to Lessor's interest in the Real Property and the Building for the
recovery of any judgment from Lessor, it being agreed that neither Lessor nor
any of its partners shall ever be personally liable for any such judgment. The
provision contained in the foregoing sentence is not intended to, and shall
not, limit any right that might otherwise have to obtain injunctive relief
against Lessor or Lessor's successors in interest, or any other action not
involving the personal liability of Lessor.
XXVII. HOLDING OVER. In the event of holding over by Lessee after expiration
or termination of this Lease, Lessee shall pay one hundred fifty percent
(150%) the Rent (calculated on the basis of Rent with respect to the month
immediately preceding the month in which expiration or termination occurs) for
the entire holdover period. No holding over by Lessee after the term of this
Lease shall be construed to extend the term of this Lease. In the event of any
unauthorized holding over, Lessee shall also indemnify Lessor against all
claims for damages by any other tenant to whom Lessor may have leased all or
any part of the Demised Premises covered hereby
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effective upon the termination of this Lease. Any holding over with the
consent of Lessor in writing shall thereafter constitute this Lease a lease
from month to month.
XXVIII. RIGHT OF FIRST REFUSAL. Lessee shall have the first right of refusal
to lease the approximately 3,000 square feet of space marked on Exhibit B,
attached hereto and incorporated herein, within twenty one (21) days of
written notice from Lessor. Rental for said approximate 3,000 square feet
shall be the same rental per square foot as Lessee is paying under Section II
or Section III of the Lease, with any applicable increases. This Right of
First Refusal may only be exercised on the ENTIRE approximate 3,000 square
feet of space marked on Exhibit C. At such time if and when said right of
first refusal is exercised, the Demised Premises shall be defined in Section I
of the Lease as 13,000 square feet of space.
XXIX. MISCELLANEOUS.
A. If Lessor shall fail to pay any installment of Rent within five
(5) days after the date the same becomes due and payable, then Lessee shall
also pay to Lessor a late payment service charge of five percent (5%) of the
payment so overdue, in addition to and not in limitation of, any other remedy
or right of Lessor herein.
B. If any provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each provision of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
C. This Lease shall be construed and interpreted under the laws of
the State of Ohio.
D. PARKING. Lessee shall be entitled to the use of 40 parking spaces
on site as identified as on the attached Exhibit C, incorporated herein.
X. Xxxxxx reserves to itself the right, from time to time, to grant
such easements, rights and dedications as Lessor deems necessary and
desirable, and to cause the recordation of plats and restrictions, so long as
such easements, rights, dedications and restrictions do not unreasonably
interfere with the use of the Demised Premises by Lessee. Lessee shall sign
any of the aforementioned documents upon request of Lessor.
X. Xxxxxx represents that Lessor owns the real estate in which the
Demised Premises are located, and has the authority to provide quiet enjoyment
of the Demised Premises, subject to liens, encumbrances and other matters of
record.
G. EXHIBITS. Exhibits hereto are:
Exhibit A: Description of Premises
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Exhibit B: Right of First Refusal Space
Exhibit C: Parking
H. Beginning on execution hereof, Lessee agrees to promptly deliver
to Lessor certified copies of Lessee's financial statements.
I. AMENDMENT. This Lease may not be amended, altered, or changed
except by an instrument in writing signed by both parties hereto.
I. ENTIRE AGREEMENT. This Lease contains the entire agreement between
the parties hereto and all previous negotiations leading thereto. Lessee
acknowledges and agrees that Lessee has not relied upon any representations or
any prior written or oral promises, warranties or agreements except such as
are provided herein. The headings of this Lease are for purposes of reference
only and shall not limit or define the meaning hereof. This Lease may be
executed in any number of counterparts, each of which shall be an original,
but all of which shall constitute one instrument.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their
hands the day and year first above written.
WITNESSES: LESSOR:
Signed and acknowledged in the presence of:
Green Realty Corporation
/s/ Xxxxxx X. Xxxxxxxx
------------------------- By: /s/ Xxxxxx Xxxxx
/s/ Xxxxxxxx Xxxx ------------------------
------------------------- Its: President
-----------------------
LESSEE:
Lan Vision, Inc.
Signed and acknowledged in the presence of: By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
/s/ Xxxx X. Xxxxxxx Its: Chief Financial Officer
------------------------- ------------------------
/s/ Xxxxxxxx X. Xxxxxx
-------------------------
Exhibit A [Description of Premises is a floor plan map]
Exhibit B [Right of First Refusal space is a floor plan map]
Exhibit C [Parking is a parking lot map]
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LESSOR NOTARY
-------------
STATE OF }
} SS:
COUNTY OF }
BE IT REMEMBERED that on this 8 day of April, 1997 before me, the
subscribed notary public, personally appeared Xxxxxx Xxxxx who, I am satisfied,
is the person who signed the within instrument as President of Green Realty, and
he thereupon acknowledged that said instrument made by such corporation was
signed, sealed with its corporate seal and delivered by him as such officer, and
is his voluntary act and deed and is the voluntary act and deed of such
corporation, made by virtue of authority from its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxxxxx
-----------------------
Notary Public
My commission expires:
[NOTARIAL SEAL]
Sept. 23, 2001
------------------
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LESSEE NOTARY
-------------
STATE OF Ohio }
} SS:
COUNTY OF Xxxxxxxx }
BE IT REMEMBERED that on this 4th day of April, 1997 before me,
the subscribed notary public, personally appeared Xxxxxx X. Xxxxxxx who, I am
satisfied, is the person who signed the within instrument as Chief Financial
Officer of LanVision, Inc., and he thereupon acknowledged that said instrument
made by such corporation was signed, sealed with its corporate seal and
delivered by him as such officer, and is his voluntary act and deed and is the
voluntary act and deed of such corporation, made by virtue of authority from its
Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxx Xxxxxxx Richmond
------------------------------
Notary Public
My commission expires:
September 30, 2001
---------------------
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