SUBLEASE AGREEMENT
AGREEMENT OF SUBLEASE, dated March 15, 1991 and
effective as of April 15, 1991 between Chemed Corporation, a
Delaware corporation with offices at 2600 Chemed Center, 255 E.
Fifth Street, Cincinnati, Ohio 45202 ("Sublessor"), and National
Sanitary Supply Company, a Delaware corporation, with offices at
2900 Chemed Center, 255 E. Fifth Street, Cincinnati, Ohio 45202
("Sublessee").
WITNESSETH:
WHEREAS, Sublessor represents and warrants that it has
leased the real estate and premises described as the 29th floor,
Chemed Center, Cincinnati, Ohio (more particularly described on
Exhibit A hereto) (hereinafter the "Premises") pursuant to a
certain lease, between 255 Fifth Limited Partnership (hereinafter
"Landlord"), and Sublessor, as tenant (hereinafter the "Lease"),
a copy of which Lease has been delivered to the Sublessee and is
incorporated herein by reference.
WHEREAS, Sublessee desires to sublet the Premises and
Sublessor is willing to sublet the same on the terms and
conditions hereinafter set forth, provided Landlord shall give
its written consent thereto.
NOW, THEREFORE, Sublessor, for and in consideration of the
rents, covenants and agreements hereinafter contained on the part
of Sublessee to be paid, kept and performed, does hereby sublet
and demise unto Sublessee, and Sublessee hereby takes and hires
from Sublessor, the Premises.
TO HAVE AND TO HOLD the same unto Sublessee, its successors
and assigns for a term to commence on the commencement date of
the Lease (the "Commencement Date"), and to expire on
April 14, 2006, subject to the Lease and upon the rentals, terms,
covenants, conditions and provisions hereinafter set forth. If
the Lease is terminated or cancelled for any reason, this
Sublease shall terminate simultaneously and, as sole damage in
respect of such termination, any unearned rent theretofore paid
shall be refunded to Sublessee.
AND Sublessor and Sublessee hereby agree as follows:
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1. Sublessee covenants and agrees to pay to Sublessor
at 2600 Chemed Center, 255 E. Fifth Street, Cincinnati,
Ohio, in equal monthly installments in advance commencing on
the Commencement Date and continuing thereafter on the 1st
day of each month during the term hereof until April 14, 2006,
without notice or demand and without abatement, deduction or
set-off of any amount whatsoever, a base rental equal to the
rental paid by Sublessor to Landlord for Sublessee's
proportionate share of the total square footage rented by
Sublessor from Landlord pursuant to Lease.
Sublessee further covenants and agrees to pay as
additional rental its pro rata share of any
adjustments and additional rent made by Landlord
pursuant to Article 3 of the Lease, which
adjustments and additional rent shall reflect
increases in Landlord's certain operating expenses
and real estate taxes as therein defined. Such
additional rental shall become payable upon
Landlord's presentation of a statement setting
forth in detail the base period operating expense
and the base period tax expense, as defined in
Article 3 of the Lease.
2. Sublessee agrees to accept the Premises in an "as
is" condition and Sublessee acknowledges that no
representations with respect to the condition
thereof have been made to it other than with
respect to the construction of basic building
appointments. Sublessee shall be entitled to a
proportionate share of all tenant concessions set
forth in the Lease based upon the proportionate
share of the total square footage rented by
Sublessor from Landlord pursuant to the Lease.
3. To the extent not otherwise inconsistent with the
agreements and understandings expressed in this
Sublease or applicable only to the original parties
to the Lease, the terms, provisions, covenants and
conditions of the Lease are hereby incorporated
herein by reference on the following
understandings:
(a) The term "Landlord" as used therein shall
refer to Sublessor hereunder, its successors and
assigns, and the term "Tenant" as used therein
shall refer to Sublessee hereunder, its successors
and assigns.
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(b) In any case where the Landlord reserves the
right to enter the Premises, said right shall inure
to the benefit of the Landlord as well as to
Sublessor.
(c) Sublessee agrees to perform and comply with
the terms, provisions, covenants and conditions of
the Lease and not to do or suffer or permit
anything to be done which would result in a default
under or cause the Lease to be terminated or
forfeited.
(d) Sublessee shall not assign or sublet the
Premises without obtaining Sublessor's prior
written consent thereto, which may be withheld for
any reason.
4. Sublessee agrees and covenants with Sublessor that
Sublessor shall not be liable for any injuries to
persons (including death) or damages to property
arising from any cause whatsoever which shall occur
in any manner in or about the Premises, and
Sublessee hereby agrees to protect, defend,
indemnify and save harmless Sublessor from any and
all claims, damages, loss, cost, expense and
liability, including attorneys' fees, for injuries
to persons (including death) or damages to property
arising from any cause whatsoever, which shall
occur in any manner in or about the Premises.
Sublessor shall not be liable for any damage to the
Premises, or to any part thereof, or to any
property or effects therein or thereon or for any
damage caused or occasioned by a default by the
Landlord, provided Sublessor forwards on a timely
basis all complaints of Sublessee to Landlord.
5. Sublessee agrees and covenants with Sublessor that
it will carry and maintain in full force and effect
during the term of this Lease and any extension or
renewal thereof, at Sublessee's expense, public
liability insurance covering bodily injury
(including death) and property damage liability, in
a form and with an insurance company acceptable to
Sublessor, with limits of coverage of not less than
$1,000,000.00 for each person and $1,000,000.00 in
the aggregate for bodily injury or death liability
for each accident and $10,000,000.00 for property
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damage liability, as protection against all
liability claims arising from the premises, and to
deliver a copy thereof to Sublessor. Sublessee
further agrees that Sublessor shall be named as an
additional insured on said public liability
insurance policies. Sublessee further agrees that
Sublessor shall be given 15 (fifteen) days written
notice of any proposed cancellation of said
policies.
6. (a) If (i) Sublessee shall default in fulfilling
any of the terms, covenants or agreements hereof,
other than the covenant to pay rent and additional
rent, or of the Lease as herein incorporated, and
such default shall not have been remedied (or
proper corrective measures to cure such default
commenced and diligently pursued) within five days
after written notice from Sublessor, Sublessor may
give Sublessee three days notice of intention to
end the term of Sublease, and at the end of said
three days the term of this Sublease shall expire
with the same effect as if that day were the date
hereinbefore set forth for the termination of the
term hereof, and Sublessee shall remain liable to
the extent provided in the Lease; if (ii) Sublessee
shall fail to pay the rent and additional rent as
provided herein, the Sublessor may, unless
Sublessee shall have cured such default within
three days after written notice thereof from
Sublessor, exercise any of the remedies of the
Landlord set forth in the Lease and Sublessee shall
remain liable to the extent provided therein.
(b) In the event of Sublessee's default, Sublessor
shall have available not only those remedies of
Landlord specified in the Lease and in this
Sublease, but in addition thereto those remedies
available at law and in equity.
7. Sublessee may use the premises only for general
office facilities, or such other uses to which
Landlord and Sublessor have consented in writing in
advance.
8. Sublessee shall obtain Sublessor's written consent
prior to the making of any alteration valued at
over $50,000 (Fifty Thousand Dollars) to the
Premises.
9. Upon termination of this Sublease, Sublessee shall
surrender the Premises to Sublessor in the same
condition and configuration as at the Commencement
Date of this Sublease, ordinary wear and tear
expected.
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10. Sublessee shall execute a recordable memorandum of
lease, or such other recordable instrument as may
be reasonably requested, upon the written request
of Sublessor.
11. In the event of any holding over by Sublessee after
the expiration or termination of this Sublease,
Sublessee shall pay in lieu of rent but not other
obligations, an amount equal to three times the
rent which Sublessee was obligated to pay for the
month immediately preceding the end of the term of
this Sublease, for each month or any part thereof
of any such holdover period. No holding over by
Sublessee after the term of this Sublease shall
operate to extend the term hereof. In the event of
any unauthorized holding over, Sublessee shall
indemnify Sublessor against all claims for damages
by any other lessee to whom Sublessor may have
leased all or any part of the Premises effective
upon the termination of this Sublease.
12. Any notices or demands to be given pursuant to the
Lease or this Sublease shall be sent by certified
mail or personally delivered to Sublessee, at the
address above set forth, and to Sublessor as
follows:
Chemed Corporation
2600 Chemed Center
255 E. Fifth Street
Cincinnati, Ohio 45202
Attention: Kevin J. McNamara, President
(Sublessee)
National Sanitary Supply Company
2900 Chemed Center
255 E. Fifth Street
Cincinnati, Ohio 45202
Attention: Paul C. Voet, President
or at such other address as either such party shall
designate by written notice to the other party.
Said notices shall be deemed effective on receipt.
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13. This Agreement shall be governed by and construed
and enforced in accordance with the law of the
State of Ohio.
14. This Agreement sets forth the entire understanding
of the parties in respect hereto and supersedes all
prior agreements, arrangements and understandings
relating to the subject matter hereof.
15. All of the terms and conditions of this Agreement
shall be binding upon and inure to the benefit of
and be enforceable by, the parties hereto and their
respective successors.
16. This Agreement may be amended, modified, superseded
or cancelled, and any of the terms or conditions
hereof may be waived, only by a written instrument
executed by both of the parties hereto, or, in the
case of waiver, by or on behalf of the party
waiving compliance. The failure of any party at
any time or times to require performance of any
provision hereof shall in no manner affect the
right at a later time to enforce the same. No
waiver by any party of any condition, or of any
breach of any term contained in this Agreement, in
any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any
such condition or breach or a waiver of any other
condition or of any breach of any other term.
WITNESS WHEREOF, Sublessor and Sublessee have hereunto
set their hands effective the day and year first above written.
CHEMED CORPORATION
(Sublessor)
By: /s/ Naomi C. Dallob
Vice President and Secretary
NATIONAL SANITARY SUPPLY COMPANY
By: /s/ Edward L. Hutton
Chairman
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