Exhibit 10 (vii)
LEASE AGREEMENT
THIS LEASE is executed this 13th day of June , 1997, by and
between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and ACCESS CORPORATION, an Ohio corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Building Address: 0000 Xxxxxxxxxxxxx Xxx; Xxxxxx, Xxxxxxxx 00000;
Building No. One (the "Building"); located in Southpark (the "Park");
B. Rentable Area: approximately 9,600 square feet;
Landlord shall use commercially reasonable standards, consistently applied,
in determining the Rentable Area and the rentable area of the Building. The
Rentable Area shall include the area within the Leased Premises plus a pro
rata portion of the area covered by the common areas within the Building, as
reasonably determined by Landlord from time to time. Landlord's
determination of Rentable Area made in good faith shall conclusively be
deemed correct for all purposes hereunder, including without limitation the
calculation of Tenant's Building Expense Percentage and Tenant's Minimum
Annual Rent.
C. Tenant's Proportionate Share: 10%;
D. Minimum Annual Rent:
Year 1 $ 0.00 (1 month only)
Year 1 $53,768.00 (11 months only)
Year 2 $58,656.00 per year
Year 3 $58,656.00 per year
Year 4 $58,656.00 per year
Year 5 $58,656.00 per year
Year 6 $ 4,888.00 (1 month only);
E. Monthly Rental Installments:
Months 1 $ 0.00 (1 month only)
Months 2-61 $ 4,888.00 per month;
F. Term: Five (5) years and one (1) month;
G. Commencement Date: July 1, 1997;
H. Security Deposit: $4,888.00;
I. Base Amount: $1.00 included in Minimum Annual Rent
J. Broker(s): Duke Realty Services Limited Partnership representing
Landlord and none representing Tenant;
K. Permitted Use: Warehousing, storage, repair and maintenance of
computers and related purposes and manufacture of Tenant's proprietary cards
and related operations;
L. Address for notices:
Landlord: Duke Realty Limited Partnership
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Tenant: Access Corporation
0000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Address for rental and other payments:
Duke Realty Limited Partnership
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
Section 1.02. Leased Premises. Landlord hereby leases to Tenant
and Tenant leases from Landlord, subject to all of the terms and conditions
set forth herein, that portion of the Building described in the Basic Lease
Provisions and outlined on Exhibit A attached hereto (the "Leased
Premises"). Landlord also grants to Tenant, together with and subject to
the rights granted from time to time by Landlord to other tenants and
occupants of Landlord's premises, the right to use the common parking area
adjoining the Building.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease ("Lease Term") shall be
the period of time specified in the Basic Lease Provisions and shall
commence on the Commencement Date described in the Basic Lease
Provisions. Upon delivery of possession of the Leased Premises to
Tenant, Tenant shall execute a letter of understanding acknowledging
(i) the Commencement Date of this Lease, and (ii) that Tenant has
accepted the Leased Premises for occupancy and that the condition of
the Leased Premises (including any tenant finish improvements
constructed thereon) and the Building was at the time satisfactory
and in conformity with the provisions of this Lease in all respects
or, if not satisfactory, setting forth any punchlist items. Such
letter of understanding shall become a part of this Lease. If Tenant
takes possession of and occupies the Leased Premises, Tenant shall be
deemed to have accepted the Leased Premises as described above, even
though Tenant may not have executed the letter of understanding.
Section 2.02. Construction of Tenant Improvements. Tenant has
personally inspected the Leased Premises and accepts the same
"as is" without representation or warranty by Landlord of any kind
except as specifically provided herein and with the understanding
that Landlord shall have no responsibility with respect thereto
except to construct in a good and workmanlike manner the
improvements designated as Landlord's obligations in the attached
Exhibit B, so that the Leased Premises will be available for
Tenant's occupancy by the Commencement Date, unless prevented by
causes beyond Landlord's reasonable control. Such improvements
shall be in accordance with and at the expense of the party
indicated on Exhibit B. Landlord shall provide Tenant with a one
(1) year warranty on the work performed by Landlord on Exhibit B but
excluding ordinary wear and tear and repairs made necessary by the
acts of Tenant.
Section 2.03. Surrender of the Premises. Upon the expiration or
earlier termination of this Lease, or upon the exercise by Landlord
of its right to re-enter the Leased Premises without terminating
this Lease, Tenant shall immediately surrender the Leased Premises
to Landlord, in broom-clean condition and in good order, condition
and repair, except for ordinary wear and tear and damage which
Tenant is not obligated to repair. Tenant shall also remove its
personal property, trade fixtures and any of Tenant's alterations
designated by Landlord; promptly repair any damage caused by such
removal; and restore the Leased Premises to the condition existing
prior to the installation of the items so removed. If Tenant fails
to do so, Landlord may restore the Leased Premises to such condition
at Tenant's expense, and Landlord may cause all of said property to
be removed at Tenant's expense, and Tenant hereby agrees to pay all
the costs and expenses thereby reasonably incurred. All property of
Tenant which is not removed within ten (10) days following
Landlord's written demand therefor shall be conclusively deemed to
have been abandoned by Tenant, and Landlord shall be entitled to
dispose of such property without thereby incurring any liability to
Tenant. The provisions of this section shall survive the expiration
or other termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the
Leased Premises after the expiration or earlier termination of this
Lease, Tenant shall become a tenant from month to month at one
hundred twenty-five percent (125%) of the Monthly Rental Installment
in effect at the end of the Lease Term (plus Additional Rent as
provided in Article 3 hereof), and otherwise upon the terms,
covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent after such expiration or earlier
termination shall not result in a renewal of this Lease, and Tenant
shall vacate and surrender the Leased Premises to Landlord upon
Tenant being given thirty (30) days prior written notice from
Landlord to vacate.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord as Minimum
Annual Rent for the Leased Premises the sum specified in the Basic
Lease Provisions, payable in equal consecutive Monthly Rental
Installments, in advance, without deduction or offset, beginning on
the Commencement Date and on or before the first day of each and
every calendar month thereafter during the Lease Term. The Monthly
Rental Installment for partial calendar months shall be prorated
based on the number of days during the month this Lease was in
effect in relation to the total number of days in such month.
Section 3.02. Additional Rent. In addition to the Minimum Annual
Rent specified in this Lease, Tenant agrees to pay to Landlord for
each calendar year during the Lease Term, as "Additional Rent,"
Tenant's Proportionate Share (as described in the Basic Lease
Provisions) of all costs, charges and expenses paid or incurred by
Landlord during the Lease Term for Real Estate Taxes and Operating
Expenses for the Building and appurtenant common areas
(collectively "Common Area Charges") in excess of the Base Amount.
"Operating Expenses" shall mean all of Landlord's expenses for
operation, repair, replacement and maintenance as necessary to keep
the Building and appurtenant common areas in good order, condition
and repair (including all additional direct costs and expenses of
operation and maintenance of the Building which Landlord reasonably
determines it would have paid or incurred during such year if the
Building had been fully occupied), including, but not limited to,
management fees; utilities; stormwater discharge fees; license,
permit, inspection and other fees; environmental and pollution
testing and consultation fees related thereto; fees and assessments
imposed by any covenants or owners' association; tools and
supplies; security services; insurance premiums; and maintenance
and repair of the driveways and parking areas (including snow
removal), exterior lighting facilities, landscaped areas, walkways,
curbs, drainage strips, sewer lines, exterior walls, foundation,
structural frame, roof and gutters.
Operating Expenses shall not include costs of capital improvements
unless such capital improvements are required by any governmental
authority, law or regulation, in which event such capital
expenditure shall be amortized pursuant to generally accepted
accounting principles, and only the amortized portion thereof shall
be included in Operating Expenses each year.
"Real Estate Taxes" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any
license fee, commercial rental tax, improvement bond or bonds, levy
or tax (other than inheritance, personal income or estate taxes)
imposed upon the Leased Premises (or against Landlord's business of
leasing the Building) by any authority having the direct or indirect
power to tax, together with costs and expenses of contesting the
validity or amount of Real Estate Taxes. If the property is not
separately assessed, then Tenant's liability shall be an equitable
proportion of the real estate taxes for all of the land and
improvements included within the tax parcel assessed. Landlord's
reasonable determination thereof, in good faith, shall be
conclusive.
Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Leased Premises or
elsewhere. Tenant shall cause such trade fixtures, furniture,
equipment and all other personal property to be assessed and billed
separately from the Leased Premises.
Notwithstanding anything in this Lease to the contrary:
a) Uncontrollable Expenses. Tenant will be responsible for
Tenant's Proportionate Share of real estate taxes, including the
reasonable costs and expenses of contesting the validity or amount
of real estate taxes; services payments in lieu of real estate
taxes, insurance premiums; utilities, snow removal and management or
administrative fees applicable to such expenses ("Uncontrollable
Expenses"), without regard to the level of increase in any or all of
the above in any year or other period of time.
b) Controllable Expenses. Tenant's obligation to pay all other
Operating Expenses which are not Uncontrollable Expenses (herein
"Controllable Expenses") shall be limited to a five cent ($0.05)
per annum increase over the amount the Controllable Expenses for
the immediately preceding calendar year would have been had the
Controllable Expenses increased at the rate of five cents ($0.05)
in all previous calendar years beginning with the actual
Controllable Expenses for the year ending December 31, 1997.
Section 3.03. Payment of Additional Rent. Landlord shall be
entitled to estimate the total amount of Additional Rent to be paid
by Tenant during each calendar year of the Lease Term, whereupon
commencing on the Commencement Date, Tenant shall pay to Landlord
each month, at the same time the Monthly Rental Installment is due,
an amount equal to one-twelfth (1/12) of the estimated Additional
Rent for such year. Within one hundred twenty (120) days after the
end of each calendar year, Landlord shall submit to Tenant a
statement of the actual amount of such Additional Rent and within
thirty (30) days after receipt of such statement, Tenant shall pay
any deficiency between the actual amount owed and the estimates paid
during such calendar year, or in the event of overpayment, Landlord
shall credit the amount of such overpayment toward the next
installments of Minimum Rent or refund the amount to Tenant if the
Term of the Lease has expired; provided, however, Tenant shall not
be entitled to a credit if actual Common Area Charges are less than
the Base Amount. To the extent that the Lease Term includes any
partial calendar years, the Additional Rent included in this section
shall be prorated based upon the number of days in such calendar
year included within the Lease Term divided by 360.
Section 3.04. Late Charges. Tenant acknowledges that Landlord
shall incur certain additional unanticipated costs and expenses,
including administrative costs and attorneys' fees, if Tenant fails
to timely pay any payment required hereunder. Therefore, as
compensation for such additional expenses, and in addition to the
other remedies available to Landlord hereunder, if any payment of
Minimum Rent or any other sum or charge required to be paid by
Tenant to Landlord hereunder shall become overdue for a period of
five (5) days, a late charge of seven percent (7%) of the payment so
due shall be paid by Tenant as additional rent. In addition, if
Tenant fails to pay within thirty (30) days after the same is due
and payable any sum or charge required to be paid by Tenant to
Landlord, such unpaid amount shall bear interest from the due date
thereof to the date of payment at the rate of fifteen percent (15%)
per annum.
Section 3.05. Tenant Verification. Tenant shall have the right to
inspect, at reasonable times and in a reasonable manner, during the
one hundred twenty (120) day period following the delivery of
Landlord's statement of the actual amount of the Operating Expenses,
such of Landlord's books of account and records as pertain to and
contain information concerning such costs and expenses in order to
verify the amounts thereof. Tenant's failure to exercise its rights
hereunder within said one hundred twenty (120) day period shall be
deemed a waiver of its right to inspect or contest the method,
accuracy or amount of the Annual Rental Adjustment.
ARTICLE 4 - SECURITY DEPOSIT
Tenant, upon execution of this Lease, shall deposit with Landlord
the Security Deposit as specified in the Basic Lease Provisions as
security for the full and faithful performance by Tenant of all of
the terms, conditions and covenants contained in this Lease on the
part of Tenant to be performed, including but not limited to the
payment of the rent. In the event of a default by Tenant of any
term, condition or covenant herein contained, Landlord may apply all
or any part of such security deposit to curing all or any part of
such default; and Tenant agrees to promptly, upon demand, deposit
such additional sum with Landlord as may be required to maintain the
full amount of the security deposit. All sums held by Landlord
pursuant to this section shall be without interest. At the end of
the Lease Term, provided that there is then no uncured default,
Landlord shall return the security deposit to Tenant.
ARTICLE 5 - USE
Section 5.01. Use of Leased Premises. The Leased Premises are to
be used by Tenant solely as provided in the Basic Lease Provisions,
and for no other purposes without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or
delayed.
Section 5.02. Covenants of Tenant Regarding Use. In connection
with its use of the Leased Premises, Tenant agrees to do the
following:
(a) Tenant shall (i) use and maintain the Leased Premises and
conduct its business thereon in a safe, careful, reputable and
lawful manner, (ii) comply with all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in
force, including without limitation those which shall impose upon
Landlord or Tenant any duty with respect to or triggered by a change
in the use or occupation of, or any improvement or alteration to,
the Leased Premises, and (iii) comply with and obey all reasonable
directions of the Landlord, including any Rules and Regulations that
may be adopted by Landlord from time to time.
(b) Tenant shall not (i) use the Leased Premises for any unlawful
purpose or act, (ii) commit or permit any waste or damage to the
Leased Premises, (iii) store any inventory, equipment or any other
materials outside the Leased Premises, or (iv) do or permit anything
to be done in or about the Leased Premises or appurtenant common
areas which constitutes a nuisance or which will in any way obstruct
or interfere with the rights of other tenants or occupants of the
Building or injure or annoy them. Landlord shall not be responsible
to Tenant for the nonperformance by any other tenant or occupant of
the Building of its lease or of any Rules and Regulations, but shall
take reasonable steps to enforce such Rules and Regulations against
all tenants.
(c) Tenant shall not overload the floors of the Leased Premises as
to cause damage to the floor. All damage to the floor structure or
foundation of the Building due to improper positioning or storage of
items or materials shall be repaired by Landlord at the sole expense
of Tenant, who shall reimburse Landlord immediately therefor upon
demand.
(d) Tenant shall not use the Leased Premises, or allow the Leased
Premises to be used, for any purpose or in any manner which would,
in Landlord's opinion, invalidate any policy of insurance now or
hereafter carried on the Building or increase the rate of premiums
payable on any such insurance policy. Should Tenant fail to comply
with this covenant, Landlord may, at its option, require Tenant to
stop engaging in such activity or to reimburse Landlord as
Additional Rent for any increase in premiums charged during the term
of this Lease on the insurance carried by Landlord on the Leased
Premises and attributable to the use being made of the Leased
Premises by Tenant.
(e) Tenant may, at its own expense, erect a sign concerning its
business which shall be in keeping with the decor and other signs on
the Building, provided that such sign is first approved by Landlord
in writing, which approval shall not be unreasonably withheld or
delayed. Landlord's approval, if given, may be conditioned upon
such criteria as Landlord deems appropriate to maintain the area in
a neat and attractive manner. Tenant agrees to maintain any sign in
good state of repair, and upon expiration of the Lease Term, Tenant
shall promptly remove the sign and repair any resulting damage to
the Leased Premises or Building.
Section 5.03. Landlord's Rights Regarding Use. In addition to the
rights specified elsewhere in this Lease, Landlord shall have the
following rights regarding the use of the Leased Premises or the
appurtenant common areas by Tenant, its employees, agents, customers
and invitees, each of which may be exercised without notice or
liability to Tenant:
(a) Landlord may install such signs, advertisements, notices or
tenant identification information as it shall deem necessary or
proper.
(b) Landlord shall have the right at any time to change or
otherwise alter the appurtenant common areas, provided the available
common parking is not materially impaired. Landlord may control the
appurtenant common areas in such manner as it deems necessary or
proper, provided that access to entrances and loading docks are not
materially impaired.
(c) Landlord or Landlord's agent shall be permitted to inspect or
examine the Leased Premises at any reasonable time, and Landlord
shall have the right to make any repairs to the Leased Premises
which are necessary for its preservation; provided, however, that
any repairs made by Landlord shall be at Tenant's expense, except as
provided in Section 7.02 hereof. If Tenant is not present to open
and permit such entry into the Leased Premises at any time when such
entry is necessary or permitted hereunder, Landlord and its
employees and agents may enter the Leased Premises by means of a
master or pass key or otherwise. Landlord shall incur no liability
to Tenant for such entry, nor shall such entry constitute an
eviction of Tenant or a termination of this Lease, or entitle Tenant
to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and shall pay directly to the
appropriate supplier the cost of all utilities and services serving
the Leased Premises, including but not limited to: natural gas,
heat, light, electrical power, telephone, janitorial service, refuse
disposal and other utilities and services. However, if any services
or utilities are jointly metered with other property, Landlord shall
make a reasonable determination of Tenant's proportionate share of
the cost of such utilities and services and Tenant shall pay such
share to Landlord within fifteen (15) days after receipt of
Landlord's written statement. Landlord shall not be liable in
damages or otherwise for any failure or interruption of any utility
service or other service furnished to the Leased Premises; and no
such failure or interruption shall entitle Tenant to terminate this
Lease or withhold sums due hereunder.
ARTICLE 7 - MAINTENANCE AND REPAIRS
Section 7.01. Tenant's Responsibility. During the term of this
Lease, Tenant shall, at its own cost and expense, maintain in good
condition and repair the interior of the Leased Premises, including
but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors,
sprinkler and plumbing systems. Tenant, at its expense, shall
obtain a preventative maintenance contract on the heating,
ventilating and air-conditioning systems which shall be subject to
Landlord's reasonable approval. Tenant shall provide Landlord with
a copy of the preventative maintenance contract no later than ninety
(90) days after the Commencement Date. The preventative maintenance
contract shall provide for the inspection and maintenance of the
heating, ventilating and air conditioning system on not less than a
semi-annual basis.
Section 7.02. Landlord's Responsibility. During the term of this
Lease, Landlord shall maintain in good condition and repair the
roof, exterior walls, foundation and structural frame of the
Building and the parking and landscaped areas, the costs of which,
except capital expenditures, except as specifically allowed herein
shall be included in Operating Expenses; provided, however, that to
the extent any of the foregoing items require repair because of the
negligence, misuse, or default of Tenant, its employees, agents,
customers or invitees, Landlord shall make such repairs at Tenant's
expense.
Section 7.03. Alterations. Tenant shall not permit structural or
non-structural alterations or additions in or to the Leased Premises
unless and until the plans have been approved by Landlord in
writing, which approval shall not be unreasonably withheld or
delayed. As a condition of such approval, Landlord may require
Tenant to remove the alterations and restore the Leased Premises
upon termination of this Lease; otherwise, all such alterations or
improvements, except movable office furniture, the card room air
conditioner and equipment and trade fixtures, shall at Landlord's
option become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. Tenant agrees to remove the card
room structure and return it to warehouse space upon the expiration
or early termination of this Lease. If Landlord consents to
Tenant's performance of alterations or additions to the Leased
Premises, Tenant shall ensure that all alterations and improvements
which are made or necessitated thereby shall be made in accordance
with all applicable laws, regulations and building codes, in a good
and workmanlike manner and in quality equal to or better than the
original construction of the Building. Landlord's approval of the
plans, specifications and working drawings for Tenant's alterations
shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with all
laws, rules and regulations of governmental agencies or authorities.
Tenant shall indemnify and save harmless Landlord from all costs,
loss or expense in connection with any construction or installation.
No person shall be entitled to any lien directly or indirectly
derived through or under Tenant or through or by virtue of any act
or omission of Tenant upon the Leased Premises for any improvements
or fixtures made thereon or installed therein or for or on account
of any labor or material furnished to the Leased Premises or for or
on account of any matter or thing whatsoever; and nothing in this
Lease contained shall be construed to constitute a consent by
Landlord to the creation of any lien. If any lien is filed against
the Leased Premises for work claimed to have been done for, or
material claimed to have been furnished to, Tenant, Tenant shall
cause such lien to be discharged of record within thirty (30) days
after filing by bonding or in any other lawful manner. Tenant shall
indemnify and save harmless Landlord from all costs, losses,
expenses, and attorneys' fees in connection with any such lien.
ARTICLE 8 - CASUALTY
Section 8.01. Casualty. In the event of total or partial
destruction of the Building or the Leased Premises by fire or other
casualty, Landlord agrees to promptly restore and repair the Leased
Premises at Landlord's expense; provided, however, that Landlord's
obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be
made by Landlord, if any. Any insurance proceeds not used by
Landlord in restoring or repairing the Leased Premises shall be the
sole property of Landlord. Rent shall proportionately xxxxx during
the time that the Leased Premises or part thereof are unusable
because of any such damage thereto. Notwithstanding the foregoing,
if the Leased Premises are (i) so destroyed that they cannot be
repaired or rebuilt within one hundred eighty (180) days from the
date on which the insurance claim is adjusted; or (ii) destroyed by
a casualty which is not covered by the insurance required hereunder
or, if covered, such insurance proceeds are not released by any
mortgagee entitled thereto or are insufficient to rebuild the
Building and the Leased Premises; then, in case of a clause (i)
casualty, either Landlord or Tenant may, or, in the case of a clause
(ii) casualty, then Landlord may, upon thirty (30) days written
notice to the other party, terminate and cancel this Lease; and all
further obligations hereunder shall thereupon cease and terminate.
Section 8.02. Fire and Extended Coverage Insurance. During the
term of this Lease, Landlord shall maintain fire and extended
coverage insurance on the Building in amounts customarily maintained
by landlords of similar buildings, but shall not protect Tenant's
property on the Leased Premises; and, notwithstanding the provisions
of Section 9.01, Landlord shall not be liable for any damage to
Tenant's property, regardless of cause, including the negligence of
Landlord and its employees, agents, and invitees. Tenant hereby
expressly waives any right of recovery against Landlord (or any
other tenant of the Building) for damage to any property of Tenant
located in or about the Leased Premises, however caused, including
the negligence of Landlord and its employees, agents, and invitees;
and, notwithstanding the provisions of Section 9.01 below, Landlord
hereby expressly waives any rights of recovery against Tenant for
damage to the Leased Premises or the Building which is insured
against under Landlord's fire and extended coverage insurance. All
insurance policies maintained by Landlord or Tenant as provided in
this section shall contain an agreement by the insurer waiving the
insurer's right of subrogation against the other party to this Lease
and agreeing not to acquire any rights of recovery which the insured
has expressly waived prior to loss.
ARTICLE 9 - LIABILITY INSURANCE
Section 9.01. Tenant's Responsibility. Landlord shall not be
liable to Tenant or to any other person for (i) damage to property
or injury or death to persons due to the condition of the Leased
Premises, the Building or the appurtenant common areas, or (ii) the
occurrence of any accident in or about the Leased Premises or the
appurtenant common areas, or (iii) any act or neglect of Tenant or
any other tenant or occupant of the Building or of any other person,
unless such damage, injury or death is directly and solely the
result of Landlord's negligence; and Tenant hereby releases Landlord
from any and all liability for the same. Tenant shall be liable
for, and shall indemnify and defend Landlord and hold it harmless
from, any and all liability for (i) any act or neglect of Tenant and
any person coming on the Leased Premises or appurtenant common areas
by the license of Tenant, express or implied, (ii) any damage to the
Leased Premises, and (iii) any loss of or damage or injury to any
person (including death resulting therefrom) or property occurring
in, on or about the Leased Premises, regardless of cause, except for
any loss or damage from fire or casualty insured as provided in
Section 8.02 and except for that caused solely and directly by
Landlord's negligence. Notwithstanding the foregoing, Tenant shall
bear the risk of any loss or damage to its property as provided in
Section 8.02.
Section 9.02. Tenant's Insurance. Tenant, in order to insure
against the liabilities specified in this Lease, shall at all times
during the term of this Lease carry, at its own expense, one or more
policies of general public liability and property damage insurance,
issued by one or more insurance companies acceptable to Landlord,
with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Comprehensive General Liability Insurance, including blanket,
contractual liability, broad form property damage, personal injury,
completed operations, products liability, and fire damage: Not less
than $1,000,000 Combined Single Limit for both bodily injury and
property damage.
C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and
Sprinkler Leakage insurance, if applicable, for the full cost of
replacement of Tenant's property.
The insurance policy or policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee as additional insureds, and shall provide that they may not be
cancelled on less than thirty (30) days prior written notice to Landlord.
Tenant shall furnish Landlord with Certificates of Insurance evidencing all
required coverage. Should Tenant fail to carry such insurance and furnish
Landlord with such Certificates of Insurance after a request to do so,
Landlord shall have the right to obtain such insurance and collect the cost
thereof from Tenant as additional rent.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or appurtenant common
areas shall be acquired by the exercise of eminent domain, Landlord
may terminate this Lease by giving written notice to Tenant within
fifteen (15) days after possession thereof is so taken. If all or
any part of the Leased Premises shall be acquired by the exercise of
eminent domain in such a manner that the Leased Premises shall
become unusable by Tenant for the purpose for which it is then being
used, Tenant may terminate this Lease by giving written notice to
Landlord within fifteen (15) days after possession of the Leased
Premises or part thereof is so taken. Tenant shall have no claim
against Landlord on account of any such acquisition for the value of
any unexpired lease term remaining after possession of the Leased
Premises is taken. All damages awarded shall belong to and be the
sole property of Landlord; provided, however, that Tenant shall be
entitled to any award expressly made to Tenant by any governmental
authority for the cost of or the removal of Tenant's stock,
equipment and fixtures and other moving expenses.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent, which
consent shall not be unreasonably withheld. If Landlord consents to
such assignment or subletting, Tenant shall remain primarily liable
to perform all of the covenants and conditions contained in this
Lease, including but not limited to payment of Minimum Rent and
Additional Rent as provided herein. The acceptance of rent from any
other person shall not be deemed to be a waiver of any of the
provisions of this Lease or to be a consent to the assignment of
this Lease or the subletting of the Leased Premises. If Tenant
shall make any assignment or sublease, with Landlord's consent, for
a rental in excess of the rent payable under this Lease, Tenant
shall be entitled to keep one-half of such excess, and Tenant shall
pay to Landlord the other half of any such excess rental upon
receipt.
Without in any way limiting Landlord's right to refuse to consent to
any assignment or subletting of this Lease, Landlord reserves the
right to refuse to give such consent if in Landlord's discretion and
opinion (i) the use of the Leased Premises is or may be in any way
adversely affected; (ii) the business reputation of the proposed
assignee or subtenant is deemed unacceptable; or (iii) the financial
worth of the proposed assignee or subtenant is insufficient to meet
the obligations hereunder or is less than that of Tenant. Landlord
further expressly reserves the right to refuse to give its consent
to any subletting if the proposed rent is to be less than the then
current rent for similar premises in the Park. Tenant agrees to
reimburse Landlord for reasonable accounting and attorneys' fees
incurred in conjunction with the processing and documentation of any
such requested transfer, assignment, subletting or any other
hypothecation of this Lease or Tenant's interest in and to the
Leased Premises.
Notwithstanding the foregoing, Tenant may assign the Lease or
sublease all or any portion of the Leased Premises without
Landlord's consent to any of the following (a "Permitted Transferee"),
provided that the Permitted Transferee's financial condition,
creditworthiness and business reputation following the transfer are
equal to or exceed those of Tenant: (i) any successor corporation or
other entity resulting from a merger or consolidation of Tenant; (ii)
any purchaser of all or substantially all of Tenant's assets; or
(iii) any entity which controls, is controlled by, or is under common
control with Tenant. Tenant shall give Landlord thirty (30) days
prior written notice of such assignment or sublease. Any Permitted
Transferee shall assume in writing all of Tenant's obligations under
this Lease. Tenant shall nevertheless at all times remain fully
responsible and liable for the payment of rent and the performance
and observance of all of Tenant's other obligations under this
Lease. Nothing in this paragraph is intended to nor shall permit
Tenant to transfer its interest under this Lease as part of a fraud
or subterfuge to intentionally avoid its obligations under this
Lease (for example, transferring its interest to a shell corporation
that subsequently files a bankruptcy), and any such transfer shall
constitute an Event of Default hereunder.
ARTICLE 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale and Conveyance of the Building. Landlord shall
have the right to sell and convey the Building at any time during
the term of this Lease, subject only to the rights of Tenant
hereunder; and such sale and conveyance shall operate to release
Landlord from liability hereunder after the date of such
conveyance.
Section 12.02. Subordination and Estoppel Certificate. Landlord
shall have the right to subordinate this Lease to any mortgage
presently existing or hereafter placed upon the Building by so
declaring in such mortgage; and the recording of any such mortgage
shall make it prior and superior to this Lease regardless of the
date of execution or recording of either document, provided there is
non-disturbance to Tenant, if Tenant is not in default hereunder.
Within ten (10) days following receipt of a written request from
Landlord, Tenant shall execute and deliver to Landlord, without
cost:
(a) any instrument which Landlord may deem necessary or desirable to
confirm the subordination of this Lease. If Tenant fails or refuses
to do so, Landlord may execute such instrument in the name and as
the act of Tenant.
(b) an estoppel certificate in such form as Landlord may reasonably
request certifying (i) that this Lease is in full force and effect
and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, (iii) that
there are not, to Tenant's knowledge, any uncured defaults (or
specifying such defaults if any are claimed), and (iv) any other
matters or state of facts reasonably required respecting the Lease
or Tenant's occupancy of the Leased Premises. Such estoppel may be
relied upon by Landlord and by any purchaser or mortgagee of all or
any part of the Building. Tenant's failure to deliver such
statement within such period shall be conclusive upon Tenant that
this Lease is in full force and effect and unmodified and that there
are no uncured defaults in Landlord's performance hereunder.
(c) Notwithstanding the foregoing, if the mortgagee shall take title
to the Leased Premises through foreclosure or deed in lieu of
foreclosure, Tenant shall be allowed to continue in possession of
the Leased Premises as provided for in this Lease so long as Tenant
shall not be in default. Tenant shall, in the event any proceedings
are brought to foreclose any such mortgage, attorn to the purchaser
upon any such foreclosure and recognize such purchaser as the
landlord under this Lease.
Section 12.03. Lender's Rights. Landlord shall have the right, at
any time and from time to time, to notify Tenant in writing that
Landlord has placed a mortgage on the Building, specifying the
identity of the Lender ("Lender"). Following receipt of such
notice, Tenant agrees to give such Lender a copy of any notice of
default served by Tenant on Landlord. Tenant further agrees that if
Landlord fails to cure any default as provided in Section 13.03
herein, Lender shall have an additional thirty (30) days within
which to cure such default; provided, however, that if the term,
condition, covenant or obligation to be performed by Landlord is of
such nature that the same cannot reasonably be performed within such
thirty-day period, such default shall be deemed to have been cured
if Lender commences such performance within said thirty-day period
and thereafter diligently completes the same.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following
shall be deemed an "Event of Default":
(a) Tenant shall fail to pay any Monthly Rental Installment or
Additional Rent within five (5) days after the same shall be due and
payable, or Tenant shall fail to pay any other amounts due Landlord
from Tenant within ten (10) days after the same shall be due and
payable.
Landlord shall provide Tenant with a written courtesy notice of such
default and Tenant shall have an additional five (5) days to cure
such default before Landlord exercises its default remedies;
provided, however, that Landlord shall not be required to give such
courtesy notice more than one (1) time with respect to any
particular default, nor more than two (2) times in any consecutive
twelve (12) month period with respect to any payment defaults in the
aggregate.
(b) Tenant shall fail to perform or observe any term, condition,
covenant or obligation as required under this Lease for a period of
thirty (30) days after notice thereof from Landlord; provided,
however, that if the nature of Tenant's default is such that more
than thirty (30) days are reasonably required to cure, then such
default shall be deemed to have been cured if Tenant commences such
performance within said thirty (30) day period and thereafter
diligently completes the required action within a reasonable time.
(c) All or substantially all of Tenant's assets in the Leased
Premises or Tenant's interest in this Lease are attached or levied
under execution (and Tenant does not discharge the same within sixty
(60) days thereafter); a petition in bankruptcy, insolvency, or for
reorganization or arrangement is filed by or against Tenant (and
Tenant fails to secure a stay or discharge thereof within sixty (60)
days thereafter); Tenant shall be insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the
benefit of creditors; Tenant takes the benefit of any insolvency
action or law; the appointment of a receiver or trustee in
bankruptcy for Tenant or its assets if such receivership has not
been vacated or set aside within thirty (30) days thereafter;
dissolution or other termination of Tenant's corporate charter if
Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Event of
Default, Landlord shall have the following rights and remedies, in
addition to those allowed by law, any one or more of which may be
exercised without further notice to or demand upon Tenant:
(a) Landlord may apply the security deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse
Landlord as additional rent for any costs and expenses which
Landlord thereby incurs; and Landlord shall not be liable to Tenant
for any loss or damage which Tenant may sustain by reason of
Landlord's action, regardless of whether caused by Landlord's
negligence or otherwise.
(b) Landlord may terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Leased Premises
as of the date of such default, and thereafter (i) neither Tenant
nor any person claiming under or through Tenant shall be entitled to
possession of the Leased Premises, and Tenant shall immediately
surrender the Leased Premises to Landlord; and (ii) Landlord may
re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove
their effects, without prejudice to any other remedy which Landlord
may have. Upon the termination of this Lease, Landlord may declare
the present value (as determined by Landlord) of all rent which
would have been due under this Lease for the balance of the Lease
Term to be immediately due and payable, whereupon Tenant shall be
obligated to pay the same to Landlord, together with all loss or
damage which Landlord may sustain by reason of Tenant's default
("Default Damages"), which shall include without limitation expenses
of preparing the Leased Premises for re-letting, demolition,
repairs, tenant finish improvements, and brokers' and attorneys'
fees, it being expressly understood and agreed that the liabilities
and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the
Leased Premises and re-let all or any part thereof for a term
different from that which would otherwise have constituted the
balance of the Lease Term and for rent and on terms and conditions
different from those contained herein, whereupon Tenant shall be
immediately obligated to pay to Landlord as liquidated damages the
difference between the rent provided for herein and that provided
for in any lease covering a subsequent re-letting of the Leased
Premises, for the period which would otherwise have constituted the
balance of the Lease Term, together with all of Landlord's Default
Damages.
(d) Landlord may xxx for injunctive relief or to recover damages
for any loss resulting from the breach.
(e) In addition to the defaults and remedies described above, the
parties hereto agree that if Tenant defaults in the performance of
any (but not necessarily the same) term or condition of this Lease
three (3) or more times during any twelve (12) month period,
regardless of whether such defaults are ultimately cured, then such
conduct shall, at Landlord's option, represent a separate Event of
Default. Tenant acknowledges that (i) Landlord will incur
additional unanticipated costs as a result of such repetitive
defaults, including but not limited to administrative costs and
legal fees, and (ii) the purpose of this provision is to adequately
compensate Landlord for those costs, which would be difficult to
determine with certainty. Therefore, Tenant agrees to pay to
Landlord upon a default under this habitual default provision the
amount of One Thousand Dollars ($1,000.00) as liquidated damages to
cure such default, payable within ten (10) days after written demand
therefor to Tenant by Landlord.
Section 13.03. Landlord's Default and Tenant's Remedies.
Landlord shall be in default if it shall fail to perform or observe
any term, condition, covenant or obligation as required under this
Lease for a period of thirty (30) days after written notice thereof
from Tenant to Landlord and to Lender, if any; provided, however,
that if the term, condition, covenant or obligation to be performed
by Landlord is of such nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be
deemed to have been cured if Landlord commences such performance
within said thirty-day period and thereafter diligently undertakes
to complete the same. Upon the occurrence of any such default,
Tenant may xxx for injunctive relief or to recover damages for any
loss resulting from the breach, but Tenant shall not be entitled to
terminate this Lease or withhold, offset or xxxxx any rent due
hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord
shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this
Lease and if Tenant shall, as a consequence thereof, recover a money
judgment against Landlord (whether compensatory or punitive in
nature), Tenant agrees that it shall look solely to Landlord's
right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for
the satisfaction of Tenant's judgment and that Landlord shall not be
personally liable for any deficiency.
The references to "Landlord" in this Lease shall be limited to mean
and include only the owner or owners, at the time, of the fee simple
interest in the Building. In the event of a sale or transfer of
such interest (except a mortgage or other transfer as security for a
debt), the "Landlord" named herein, or, in the case of a subsequent
transfer, the transferor, shall, after the date of such transfer, be
automatically released from all liability for the performance or
observance of any term, condition, covenant or obligation required
to be performed or observed by Landlord hereunder; and the
transferee shall be deemed to have assumed all of such terms,
conditions, covenants and obligations.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or
delay in exercising any of its rights or remedies or other
provisions of this Lease shall be construed to be a waiver thereof
or affect its right thereafter to exercise or enforce each and every
such right or remedy or other provision. No waiver of any default
shall be deemed to be a waiver of any other default. Landlord's
receipt of less than the full rent due shall not be construed to be
other than a payment on account of rent then due, nor shall any
statement on Tenant's check or any letter accompanying Tenant's
check be deemed an accord and satisfaction, and Landlord may accept
such payment without prejudice to Landlord's right to recover the
balance of the rent due or to pursue any other remedies provided in
this Lease. No act or omission by Landlord or its employees or
agents during the term of this Lease shall be deemed an acceptance
of a surrender of the Leased Premises, and no agreement to accept
such a surrender shall be valid unless in writing and signed by
Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants
or obligations contained in this Lease and the non-defaulting party
obtains a judgment against the defaulting party, then the defaulting
party agrees to reimburse the non-defaulting party for the
attorneys' fees incurred thereby.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right, at its option, upon at least one
hundred twenty (120) days' prior written notice to Tenant, to
relocate Tenant and to substitute for the Leased Premises other
space in the Building or in the Park, containing at least as much
rentable area as the Leased Premises. Such substituted space shall
be improved by Landlord, at its expense, with improvements at least
equal in quantity and quality to those in the Leased Premises.
Landlord shall reimburse Tenant for all reasonable expenses incurred
with and caused by such relocation (including telephone
installation, moving of equipment and furniture, and printing of
stationery with the Tenant's new address) within sixty (60) days
following receipt from Tenant of invoices or receipts marked "paid
in full." Landlord agrees to pay Tenant an additional Ten Thousand
Dollars ($10,000.00) for the inconvenience to Tenant caused by such
relocation. In no event shall Landlord be liable to Tenant for any
consequential damages as a result of any such relocation, including,
but not limited to, loss of business income or opportunity. Upon
completion of the relocation, Landlord and Tenant shall amend this
Lease to change the description of the Leased Premises and any other
matters pertinent thereto.
ARTICLE 15 - NOTICE AND PLACE OF PAYMENT
Section 15.01. Notices. Any notice required or permitted to be
given under this Lease or by law shall be deemed to have been given
if it is written and delivered in person or by overnight courier or
mailed by certified mail, postage prepaid, to (i) the party who is
to receive such notice at the address specified in the Basic Lease
Provisions and (ii) in the case of a default notice from Tenant to
Landlord, any Lender designated by Landlord. When so mailed, the
notice shall be deemed to have been given as of the date it was
mailed. Either party may change its address by giving written
notice thereof to the other party.
Section 15.02. Place of Payment. All payments required to be made
by Tenant to Landlord shall be delivered or mailed to Landlord's
management agent at the address specified in the Basic Lease
Provisions or any other address Landlord may specify from time to
time by written notice to Tenant.
ARTICLE 16 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
Section 16.01. Definitions.
a. "Environmental Laws" - All federal, state and municipal
laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises,
including, without limitation, the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended; the Federal Resource Conservation and Recovery Act; the
Federal Toxic Substance Control Act; the Clean Air Act; the Clean
Water Act; the rules and regulations of the Federal Environmental
Protection Agency, or any other federal, state or municipal agency
or governmental board or entity having jurisdiction over the Leased
Premises.
b. "Hazardous Substances" - Includes:
(i) Those substances included within the definitions of
"hazardous substances," "hazardous materials," "toxic
substances" "solid waste" or "infectious waste" in any of
the Environmental Laws; and
(ii) Such other substances, materials and wastes which
are or become regulated under applicable local, state or
federal law, or which are classified as hazardous, toxic or
infectious under present or future Environmental Laws or
other federal, state, or local laws or regulations.
Section 16.02. Compliance. Tenant, at its sole cost and expense,
shall promptly comply with the Environmental Laws which shall impose
any duty upon Tenant with respect to the use, occupancy, maintenance
or alteration of the Leased Premises. Tenant shall promptly comply
with any notice from any source issued pursuant to the Environmental
Laws or with any notice from any insurance company pertaining to
Tenant's use, occupancy, maintenance or alteration of the Leased
Premises, whether such notice shall be served upon Landlord or
Tenant.
Section 16.03. Restrictions on Tenant. Tenant shall not cause or
permit to occur:
a. Any violation of the Environmental Laws related to
environmental conditions on, under, or about the Leased Premises, or
arising from Tenant's use or occupancy of the Leased Premises,
including, but not limited to, soil and ground water conditions.
b. The use, generation, release, manufacture, refining,
production, processing, storage or disposal of any Hazardous
Substances on, under, or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous
Substances, except as necessary and appropriate for general office
use in which case the use, storage or disposal of such Hazardous
Substances shall be performed in compliance with the Environmental
Laws and the highest standards prevailing in the industry.
Section 16.04. Notices, Affidavits, Etc.
a. Tenant shall immediately notify Landlord of (i) any
violation by Tenant, its employees, agents, representatives,
customers, invitees or contractors of the Environmental Laws on,
under or about the Leased Premises, or (ii) the presence or
suspected presence of any Hazardous Substances on, under or about
the Leased Premises and shall immediately deliver to Landlord any
notice received by Tenant relating to (i) and (ii) above from any
source.
b. Tenant shall execute affidavits, representations and the
like from time to time, within five (5) days of Landlord's request
therefor, concerning Tenant's best knowledge and belief regarding
the presence of any Hazardous Substances on, under or about the
Leased Premises.
Section 16.05. Landlord's Rights.
a. Landlord and its agent shall have the right, but not the
duty, upon advance notice (except in the case of emergency when no
notice shall be required) to inspect the Leased Premises and conduct
tests thereon at any time to determine whether or the extent to
which there has been a violation of Environmental Laws by Tenant or
whether there are Hazardous Substances on, under or about the Leased
Premises. In exercising its rights herein, Landlord shall use
reasonable efforts to minimize interference with Tenant's business
but such entry shall not constitute an eviction of Tenant, in whole
or in part, and Landlord shall not be liable for any interference,
loss, or damage to Tenant's property or business caused thereby.
b. If Landlord, any lender or governmental agency shall ever
require testing to ascertain whether there has been a release of
Hazardous Substances on, under or about the Leased Premises or a
violation of the Environmental Laws, and such requirement arose in
whole or in part because of an act or omission on the part of
Tenant, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as Additional Rent.
Section 16.06. Tenant's Indemnification. Tenant shall indemnify
and hold harmless Landlord and Landlord's managing agent from any
and all claims, loss, liability, costs, expenses or damage,
including attorneys' fees and costs of remediation, incurred by
Landlord in connection with any breach by Tenant of its obligations
under this Article 16. The covenants and obligations of Tenant
under this Article 16 shall survive the expiration or earlier
termination of this Lease.
Section 16.07. Landlord's Representation. Landlord represents to
Tenant, to the best of its knowledge, that (i) prior to the date of
this Lease, no spill, disposal or other release of any Hazardous
Substances at, on, in or from the Leased Premises has occurred; (ii)
there are no underground storage tanks on the Leased Premises; and
(iii) Landlord is in compliance with all Environmental Laws.
Notwithstanding anything contained in this Article 16 to the
contrary, Tenant shall not have any liability under this Article 16
for or resulting from any conditions existing, or events occurring,
or the presence, spill, disposal or other release of Hazardous
Substances at, in, on, under, or from the Leased Premises or
Building prior to the Commencement Date of this Lease except to the
extent Tenant exacerbates the same and Landlord shall indemnify and
hold harmless Tenant from any and all claims, loss, liability,
costs, expenses or damage, including attorneys' fees and costs of
remediation, incurred by Tenant in connection with the spill,
disposal or other release of Hazardous Substances at, on, in or from
the Leased Premises during the period of Landlord's ownership
thereof (and prior to the Commencement Date) or Landlord's violation
of any Environmental Laws.
ARTICLE 17 - MISCELLANEOUS
Section 17.01. Benefit of Landlord and Tenant. This Lease and all
of the terms and provisions hereof shall inure to the benefit of and
be binding upon Landlord and Tenant and their respective successors
and assigns.
Section 17.02. Governing Law. This Lease shall be governed in
accordance with the laws of the State of Ohio.
Section 17.03. Guaranty. [Intentionally Omitted]
Section 17.04. Force Majeure. Landlord shall be excused for the
period of any delay in the performance of any obligation hereunder
when such delay is occasioned by causes beyond its control,
including, but not limited to, war, invasion or hostility; work
stoppages, boycotts, slowdowns or strikes; shortages of materials,
equipment, labor or energy; man-made or natural casualties; unusual
weather conditions; acts or omissions of governmental or political
bodies; or civil disturbances or riots.
Section 17.05. Condition of Premises. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Leased Premises or
the Building or with respect to the suitability or condition of any
part thereof for the conduct of Tenant's business except as provided
in this Lease.
Section 17.06. Examination of Lease. Submission of this instrument
for examination or signature to Tenant does not constitute a
reservation of or option for Lease, and it is not effective as a
Lease or otherwise until execution by and delivery to both Landlord
and Tenant.
Section 17.07. Indemnification for Leasing Commissions. The
parties hereby represent and warrant that the only real estate
brokers involved in the negotiation and execution of this Lease are
those named in the Basic Lease Provisions and that no other broker
or person is entitled to any leasing commission or compensation as a
result of the negotiation or execution of this Lease. Each party
shall indemnify and hold the other harmless from any and all
liability for the breach of this representation and warranty on its
part and shall pay any compensation to any other broker or person
who may be deemed or held to be entitled thereto.
Section 17.08. Quiet Enjoyment. If Tenant shall perform all of the
covenants and agreements herein provided to be performed by Tenant,
Tenant shall, at all times during the Lease Term, have the quiet
enjoyment and peaceful possession of the Leased Premises without
hindrance from Landlord or any persons lawfully claiming under
Landlord, except as may be provided in Section 12.02 hereunder.
Section 17.09. Severability of Invalid Provisions. If any
provision of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall not be affected
or impaired, and such remaining provisions shall remain in full
force and effect.
Section 17.10. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord within thirty
(30) days following Landlord's request, a copy of Tenant's most
recent financial statements prepared as of the end of Tenant's
fiscal year. Such financial statements shall be signed by Tenant or
an authorized officer or representative of Tenant who shall attest
to the truth and accuracy of the information set forth in such
statements. All financial statements provided by Tenant to Landlord
hereunder shall be prepared in conformity with generally accepted
accounting principles, consistently applied.
Section 17.11. Tenant's Representations and Warranties. The
undersigned represents and warrants to Landlord that (i) Tenant is a
corporation that is duly organized, validly existing and in good
standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of
this Lease has been taken by Tenant; and (iii) the individual
executing and delivering this Lease on behalf of Tenant has been
authorized to do so, and such execution and delivery shall bind
Tenant. Tenant, at Landlord's request, shall provide Landlord with
evidence of such authority.
Section 17.12. Representations and Indemnifications. Any
representations and indemnifications of Landlord contained in the Lease
shall not be binding upon (i) any mortgagee having a mortgage presently
existing or hereafter placed on the Building, or (ii) a successor to
Landlord which has obtained or is in the process of obtaining fee title
interest to the Building as a result of a foreclosure of any mortgage
or a deed in lieu thereof.
Section 17.13. Agency Disclosure. Tenant acknowledges having
reviewed the Agency Disclosure Statement and Tenant acknowledges that
said Statement is signed and attached hereto and made a part hereof as
Exhibit C. The broker identified as representing Landlord in Item J
of Section 1.01 hereof, and its agents and employees, have represented
only Landlord, and have not in any way represented Tenant, in the
marketing, negotiation and completion of this lease transaction.
Section 17.14. Additional Provisions. Additional provisions, if
any, are attached hereto as an Addendum, the provisions of which are
incorporated herein by reference. In the event of any
inconsistencies between the provisions of this Lease and of the
Addendum, the provisions of the Addendum shall control.
Section 17.15. Option to Extend.
X. Xxxxx and Exercise of Option. Provided that Tenant is not
in default hereunder, Tenant shall have one (1) option to extend the
original term of this Lease ("Original Term") for one (1) additional
period of five (5) years (the "Extension Term"). The Extension Term
shall be upon the same terms and conditions contained in the Lease
for the Original Term except (i) Tenant shall not have any further
option to extend and (ii) the Minimum Annual Rent shall be adjusted
as set forth herein ("Rent Adjustment"). Tenant shall exercise such
option by delivering to Landlord, no later than six (6) months prior
to the expiration of the Original Term, written notice of Tenant's
desire to extend the Original Term. Tenant's failure to properly
exercise such option shall waive it. If Tenant properly exercises
its option to extend, Landlord shall notify Tenant of the Rent
Adjustment no later than ninety (90) days prior to the commencement
of the Extension Term. Tenant shall be deemed to have accepted
the Rent Adjustment if it fails to deliver to Landlord a written
objection thereto within five (5) business days after receipt
thereof. If Tenant properly exercises its option to extend,
Landlord and Tenant shall execute an amendment to the Lease (or, at
Landlord's option, a new lease on the form then in use for the
Building) reflecting the terms and conditions of the Extension Term.
B. Market Rent Adjustment. The Minimum Annual Rent for the
Extension Term shall be an amount equal to the Minimum Annual Rent
then being quoted by Landlord to prospective new tenants of the
Building for space of comparable size and quality and with similar
or equivalent improvements as are found in the Building, and if
none, then in similar buildings in the Park, excluding free rent and
other concessions; provided, however, that in no event shall the
Minimum Annual Rent during the Extension Term be less than the
highest Minimum Annual Rent payable during the Original Term. The
Minimum Monthly Rent shall be an amount equal to one-twelfth (1/12)
of the Minimum Annual Rent for the Extension Term and shall be paid
at the same time and in the same manner as provided in the Lease.
Section 17.16. Right of First Refusal. Provided that (i) Tenant is
not in default, (ii) the creditworthiness of Tenant is then
acceptable to Landlord, and (iii) Tenant originally named herein
remains in possession of and has been continuously operating in the
entire Leased Premises throughout the Lease Term to Landlord, and
subject to any prior rights of other tenants to the Refusal Space,
Tenant shall have the right of first refusal ("Refusal Option") to
lease contiguous space in the Building crosshatched on the attached
Exhibit D ("Refusal Space") as such space becomes available for
leasing during the Lease Term. The term for the Refusal Space shall
be coterminous with the Lease Term, provided, however, that the
minimum term for the Refusal Space shall be three (3) years and the
Lease Term shall be extended, if necessary, to be coterminous with
the term for the Refusal Space. The Refusal Space shall be offered
to Tenant at the rental rate and upon such other terms and
conditions, excluding free rent and other concessions, as are then
being offered by Landlord to a specific third party prospective
tenant for such space, but in no event shall such rental rate be
less than the then current rental rate under this Lease. In the
event that the Refusal Space is not leased to the initial third
party prospective tenant, then this Refusal Option shall remain in
effect in the event of an offer to any other specific third party
prospective tenant and the Refusal Space shall again be offered to
Tenant in accordance herewith.
Upon notification in writing by Landlord that the Refusal Space is
available, Tenant shall have five (5) business days in which to
notify Landlord in writing of its election to lease the Refusal
Space at such rental rates described above, in which event this
Lease shall be amended to incorporate such Refusal Space.
In the event Tenant declines or fails to elect to lease the Refusal
Space, then this Refusal Option shall automatically terminate and
shall thereafter be null and void as to such space.
It is understood and agreed that this Refusal Option shall not be
construed to prevent any tenant in the Building from extending or
renewing its lease.
Section 17.17. Early Occupancy. Landlord hereby agrees that Tenant
shall be allowed to take possession of the Leased Premises on or
before June 25, 1997. All terms and conditions of this Lease will
become effective upon Tenant taking possession of the Leased
Premises, except for the payment of Minimum Annual Rent and Annual
Rental Adjustment, which will commence on July 1, 1997.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the
day and year first above written.
LANDLORD:
WITNESSES:
DUKE REALTY LIMITED PARTNERSHIP,
------------ an Indiana limited partnership
------------
(Printed) By: Duke Realty Investments,
Inc., its General Partner
---------------------
--------------------- By: XXXXXX XXXXXXX
--------------
(Printed) Xxxxxx Xxxxxxx
General Manager,
Cincinnati Industrial
TENANT:
WITNESSES:
ACCESS CORPORATION, an Ohio
-------------------- corporation
--------------------
(Printed) By: -------------------
---------------------------- Printed:--------------------
----------------------------
(Printed) Title: ____________________
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
Before me, a Notary Public in and for said County and State,
personally appeared Xxxxxx Xxxxxxx, by me known and by me known to
be the General Manager of Duke Realty Investments, Inc., an Indiana
corporation, the general partner of Duke Realty Limited Partnership,
an Indiana limited partnership, who acknowledged the execution of
the foregoing "Office Lease" on behalf of said partnership.
WITNESS my hand and Notarial Seal this ------ day of -------- , 1997.
--------------------------------
Notary Public
-------------------------------
(Printed Signature)
My Commission Expires:
My County of Residence:
STATE OF )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared _________________, by me known and by me known to be
the ________________________, of Access Corporation, an Ohio
corporation, who acknowledged the execution of the above and foregoing
Lease Agreement for and on behalf of said corporation.
WITNESS my hand and Notarial Seal this day of
, 1997.
------------------------------
Notary Public
------------------------------
(Printed Signature)
My Commission Expires:
My County of Residence:
f:\realesta.te\spark-ky\leases\access.doc 06/12/97 4:31 PM
RULES AND REGULATIONS
(These Rules and Regulations have been adopted for the purpose of
insuring order and safety in the Building and of maintaining the
rights of Lessee and of the Lessor.)
1. The sidewalks, entrances, driveways and roadways serving and
adjacent to the Leased Premises, are the property of the Lessor, and
shall not be obstructed or used for any purpose other than ingress
and egress. The Lessor shall in all cases retain the right to
control and prevent access to the Property, of all persons whose
presence, in the judgment of the Lessor or its employees, shall be
prejudicial to the safety, character, reputation or interests of the
property or neighboring buildings.
2. No awnings or other projections shall be attached to the
outside walls of the Building. Neither the interior nor the
exterior of any windows shall be coated or otherwise sunscreened
without written consent of Lessor.
3. The water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags or other substances
shall be thrown herein. All damages resulting from any misuse of
the fixtures shall be borne by the Lessee who, or whose sublessees,
assignees or any of their servants, employees, agents, visitors or
licensees shall have caused the same.
4. No Lessee shall xxxx, paint, drill into or in any way deface
any part of the exterior Leased Premises or in the Building. No
boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of the Lessor and Lessor may direct.
5. No birds or animals of any kind shall be brought onto or
kept in or about the Property, and no cooking shall be done or
permitted by any Lessee on the Leased Premises, except that the
preparation of coffee, tea, hot chocolate and similar items for
Lessees and their employees shall be permitted provided power shall
not exceed that amount which can be provided by a 30-amp circuit.
No Lessee shall cause or permit any unusual or objectionable odors
to be produced or permeate outside the Leased Premises.
6. The Leased Premises shall not be used for manufacturing
except for manufacturing of media and related purposes, unless the
use conforms to the zoning applicable to the area and the Lessor
provides written consent. No Lessee shall operate a business or an
office in the Leased Premises for the manufacture or sale of liquor,
narcotics, or tobacco in any form, or as a retail or wholesale store
or general office, in contradiction to the permitted use in this
Lease, without the express written consent of Lessor, not to be
unreasonably withheld. The Leased Premises shall not be used for
lodging or sleeping or for any immoral or illegal purpose.
7. No Lessee shall make, or permit to be made, any noise which
may disturb or interfere with occupants of neighboring buildings
whether by the use of any musical instrument, radio, phonograph,
unusual noise or in any other way.
8. No Lessee, sublessee or assignees nor any of its servants,
employees, agents, visitors or licensees shall at any time bring or
keep upon the Leased Premises any flammable, combustible or
explosive fluid, chemical or substance, other than that which is
ordinary and necessary for the Lessee's use of the Leased Premises,
as contemplated herein.
9. Each Lessee must upon the termination of its tenancy,
deliver to the Lessor all keys to the offices, storage rooms,
toilet rooms, either furnished to, or otherwise procured by, such
Lessee.
10. All persons employed by any Lessee to do work upon the
Leased Premises, while in the Building and outside of the Leased
Premises, shall be subject to and under the control and direction of
the Lessee, and Lessee shall be responsible for all acts of such
persons.
11. Canvassing, soliciting and peddling in the adjacent
buildings are prohibited, and each Lessee shall report and otherwise
cooperate to prevent the same.
12. Lessee agrees that it shall not discriminate upon the basis
of race, color, religion, sex or national origin in the use and
occupancy or in any sublease or subletting of the Leased Premises.
13. No outside storage is permitted including without limitation
the storage of trucks and other vehicles.
14. The Lessor reserves the right to reasonably rescind, modify
or supplement any of these rules and to make such other and further
reasonable rules and regulations which, in the Lessor's judgment may
from time to time be necessary for the safety and cleanliness of the
Leased Premises, and for the assurance of good order therein.
Lessor agrees to provide Lessee with a copy of said rules which
shall be deemed a part of this Lease.
Anything contained in these Rules and Regulations which is contrary to or
inconsistent with any express provision of the Lease shall be void and of no
force and effect.
