EXHIBIT 10.2
Rev. 12/14/2001
LEASE AGREEMENT
Between
KEY PROPERTY DEVELOPMENT CORPORATION
a Kentucky corporation
LANDLORD
and
WIRE ONE TECHNOLOGIES, INC.
a Delaware Corporation
TENANT
TABLE OF CONTENTS
1. PREMISES
2. PARKING AND LOADING
3. TERM
4. CONDITIONS OF AND IMPROVEMENTS TO LEASED PREMISES
5. OCCUPANCY PRIOR TO TERM
6. CONTINUANCE OF OCCUPANCY
7. SECURITY DEPOSIT
8. BASE RENT
9. ESCALATION OF BASE RENT
10. ADDITIONAL RENT
11. MAINTENANCE OF COMMON AREAS; OTHER SERIVCES; AND UTILITIES
12. TAXES AND ASSESSMENTS
13. INSURANCE
14. FIRE OR OTHER CASUALTY
15. USE OF LEASED PREMISES
16. REPAIRS
17. ALTERATIONS
18. FIXTURES AND UNAUTHORIZED USE OF PREMISES
19. WINDOW COVERINGS AND SIGNAGE
20. INTERRUPTION OF SERVICE
21. INDEMNIFICATION
22. WARRANTY OF QUIET ENJOYMENT
23. ASSIGNMENT AND SUBLETTING
24. EMINENT DOMAIN
25. NOTICES
26. REDELIVERY OF PREMISES
27. DEFAULT; REMEDIES UPON DEFAULT
28. HOLDING OVER
29. RIGHTS RESERVED BY LANDLORD
30. BROKER'S COMMISSION
31. ESTOPPEL CERTIFICATE
32. LANDLORD'S LIABILITY
33. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
34. WAIVERS
35. SEVERABILITY
36. RECORDING
37. CUMULATIVE REMEDIES
38. INTEREST ON PAST DUE OBLIGATIONS
39. BINDING EFFECT
TABLE OF CONTENTS
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40. SUBORDINATION
41. AUTHORITY
42. CONFLICT
43. GOVERNING LAW; FORUM
44. MECHANIC'S LIEN
45. FINANCIAL STATEMENTS
46. JOINT VENTURE
47. HAZARDOUS SUBSTANCES
48. ADDITIONAL EXHIBITS
EXHIBITS
A. LEASED PREMISES
B. DEVELOPED PARCEL
C. ALTERATIONS AND IMPROVEMENTS
D. SCHEDULE OF ANNUAL BASE RENT
E. BLUE PRINT
F. RULES AND REGULATIONS
G. FORM OF ESTOPPEL CERTIFICATE
H. FORM OF MEMORANDUM OF LEASE
I. REAL ESTATE BROKER'S COMMISSION LETTER
J. FORM OF SUBORDINATION AND NON-DISTURBANCE AGREEMENT
LEASE AGREEMENT
CORPOREX CENTER
MIAMISBURG, OHIO
THIS LEASE AGREEMENT, hereinafter known as the "Lease," entered into effect this
21st day of December, 2001, between Key Property Development Corporation, a
Kentucky corporation, whose principal place of business is 100 East RiverCenter
Blvd., Suite 1100, Covington, Kentucky 41011, hereinafter known as "Landlord,"
and WIRE ONE TECHNOLOGIES, INC., a Delaware corporation, whose principal place
of business is 225 Long Avenue; Hillside, New Jersey 07205, hereinafter known as
"Tenant."
WITNESSETH:
In consideration of the rent hereafter reserved and the covenants herein
contained, each party to this Lease hereby agrees:
(1) PREMISES:
Landlord does hereby lease and demise to the Tenant and Tenant does hereby
take and rent of Landlord, the following Leased Premises:
Forty-Nine Thousand Two Hundred and Seventy-Seven (49,277) square
feet of an Eighty-Five Thousand Six Hundred and Twenty-Nine (85,629)
square foot building located at the intersection of Maue Road, Lyons
Road and Byers Road in Miamisburg, Montgomery County, Ohio, which
property is more specifically described in Exhibit "B" attached
hereto and made a part hereof. That portion which is leased to
Tenant is designated on the floor plan attached as Exhibit "A" and
is hereinafter known as the "Leased Premises." The measurements of
the Leased Premises are based on the dimensions shown on the blue
print attached to this Lease as Exhibit "E" and the Tenant accepts
the measurements as shown. The entire building, of which the Leased
Premises form a part, is hereinafter known as the "Building." The
Building is situated upon a tract of land hereinafter known as the
"Developed Parcel," which is more particularly described in Exhibit
"B."
(2) PARKING AND LOADING:
Landlord designates and reserves 120 parking spaces for Tenant's exclusive
use, which reserved spaces shall be located within the area shown on
Exhibit "E" and which reserved spaces shall be available at the
commencement of this Lease. Landlord shall have the obligation to enforce
Tenant's parking rights and, in furtherance of this obligation, Landlord
shall install reasonably appropriate signage or other identification
mutually acceptable to Landlord and Tenant designating the spaces and/or
areas reserved for Tenant's exclusive use. Landlord shall not be obligated
to mark or place a sign on each space reserved for Tenant's
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exclusive use. In consideration of this grant, and in recognition of the
fact that the Building houses two tenants, Tenant understands and agrees
that Landlord reserves the right to reserve some or all of the parking
which is not reserved for Tenant's exclusive use, for the exclusive use of
the other tenant in the Building. Until such time as Landlord delivers
written notice of any such reservation, Landlord hereby grants to Tenant
the right to use the off street parking located on the Developed Parcel
surrounding the Building in a manner conducive to good business practice
whereby Tenant uses parking spaces at no charge on a non-exclusive basis
in common with other tenants of the Building. Such parking, in conjunction
with the visitors parking area, shall be for the use of the Tenant's
officers, agents, employees, and visitors on a non-reserved basis.
If the Landlord designates a portion of the parking area for employee
parking, employees of the Tenant shall use that portion of the parking
area, thereby leaving the remaining parking spaces in the parking area
open for visitor in and out traffic.
The Leased Premises include existing dock doors at the rear of the
Building and the right to exclusive use of the concrete truck aprons at
the rear of the Leased Premises, as shown on Exhibit "E".
(3) TERM:
The term of this Lease shall be for approximately six (6) years beginning
on the ___ business day after the date of this Lease (the "Commencement
Date") and ending on December 31, 2007, subject however to the terms of
Paragraph 4 and further subject to any of the other conditions or
covenants of this Lease or pursuant to law.
(4) CONDITIONS OF AND IMPROVEMENTS TO LEASED PREMISES:
Immediately upon execution of this Lease, Landlord shall commence the
alterations or improvements to the Leased Premises indicated on Exhibit
"C" ("Landlord's Work"). Landlord shall proceed diligently with the
Landlord's Work and use its best efforts to complete same within five (5)
business days after the date of this Lease; but, if the Landlord's Work is
not substantially completed or the Leased Premises be not available for
occupancy by said date, Tenant shall have no claim against Landlord due to
such delay, excepting only that the term of this Lease shall not commence
until the Leased Premises are deemed to be available to Tenant, and the
term shall expire six (6) years thereafter (plus the number of days until
the end of the calendar month in which the Lease would otherwise expire);
and excepting that if the Landlord's Work is not completed by January 15,
2002, Tenant shall have the right to terminate this Lease by written
notice to Landlord. The Leased Premises shall be deemed to be available to
Tenant at the earlier of the time when:
(a) the Landlord's Work is substantially completed (notwithstanding that
Tenant might not have completed installation and/or connection of
its fixtures and/or equipment) and Landlord has delivered a
certificate of occupancy for the Leased Premises in its "as is"
current condition; or
(b) the Tenant actually takes possession of the Leased Premises.
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Landlord represents and warrants to Tenant that, effective as of the
Commencement Date: (i) the Leased Premises shall be clean and the
plumbing, electrical and mechanical systems in the Leased Premises shall
be in good operating condition; and (ii) the Leased Premises shall comply
with all applicable federal, state and local laws and regulations,
including but not limited to provisions enacted for the protection of the
environment and the Americans with Disabilities Act. Tenant shall have
thirty (30) days following the Commencement Date to deliver a punch list
itemizing defects in the Landlord's Work, and Landlord shall promptly
correct all such defects. Landlord further represents and warrants that
all Building systems in the Leased Premises, including but not limited to
plumbing, electrical, mechanical and heating, ventilating and
air-conditioning systems serving the Leased Premises shall remain in good
operating order and condition for a period of eighteen (18) months
following the Commencement Date, except for damage, repairs or
replacements incurred or necessitated due to Tenant's failure to maintain
such equipment and systems in accordance with the terms of this Lease
Agreement or resulting from Tenant's extraordinary use of the Leased
Premises. Tenant represents that it shall primarily be operating one shift
only within the Leased Premises.
Immediately after the Commencement Date of this Lease has been determined,
if at variance with Paragraph 3, Landlord and Tenant shall execute a
written instrument fixing the commencement and termination dates of this
Lease.
Tenant's taking of possession shall be conclusive evidence that Leased
Premises were then in good order and satisfactory condition, except for
defects in Landlord's Work, if any.
Notwithstanding anything else to the contrary in this Paragraph 4, if
Landlord is not able to complete the Landlord's Work due to delays caused
by Tenant, its employees, agents or contractors, the term of this Lease
shall not be delayed, but shall commence according to Paragraph 3.
(5) OCCUPANCY PRIOR TO TERM
If permitted by law, landlord may allow Tenant to occupy the Leased
Premises prior to the commencement of the term stated in Paragraph (3). If
Tenant occupies the Leased Premises on a day other than the first day of
the month, the Monthly Base Rent provided for in Paragraph (8) and the
Additional Rent provided for in Paragraph (10) shall be adjusted and
prorated so the Tenant shall only pay rent for the actual number of days
in the month. Tenant shall also comply with all other terms and provisions
of this Lease in the same manner as if the term had, in fact commenced.
(6) CONTINUANCE OF OCCUPANCY:
It is further agreed by Landlord and Tenant that Tenant shall physically
occupy the Leased Premises during the entire original term and renewal
term, if any, inasmuch as the appearance of continued occupancy of the
Leased Premises is of utmost importance to the Landlord in the renewal of
other leases in the Building, in the renting of vacant space to other
tenants and in the maintenance of the character and quality of the
Building. Tenant shall be
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construed to have complied with this requirement so long as Tenant
maintains its furniture in the lobby area of the Leased Premises and keeps
the Leased Premises lighted during regular business hours. Tenant's
failure to comply with the requirements of this Section shall constitute
an event of Non-Monetary Default under the Lease (as defined in Section
27(b), below).
(7) SECURITY DEPOSIT:
Tenant shall deposit with Landlord upon execution hereof the sum of
Fourteen Thousand Three Hundred Seventy-Two and 46/100 Dollars
($14,372.46) as security for Tenant's faithful performance of Tenant's
obligations hereunder. If Tenant fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this
Lease, Landlord may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated by reason
of Tenant's default, or to compensate Landlord for any loss or damage
which Landlord may suffer thereby. If Landlord so uses or applies all or
any portion of said deposit, Tenant shall within ten (10) days after
written demand therefor deposit cash with Landlord in an amount sufficient
to restore said deposit to the full amount previously stated. Said
Security Deposit shall not earn interest thereon for the benefit of
Tenant. No trust relationship is created herein between Landlord and
Tenant with respect to said Security Deposit.
If and when Tenant has performed all of its obligations hereunder, said
Security Deposit (or so much thereof as has not been used up and applied
by Landlord as provided above) shall be returned to Tenant within fifteen
(15) days after Landlord's receipt of written notice from Tenant
indicating that Tenant has vacated the Leased Premises and requesting the
return of the Security Deposit, and after an inspection by Landlord
establishing that Tenant vacated the Leased Premises in substantially the
same condition in which it was received by Tenant, ordinary wear and tear
excepted. The parties shall use their best efforts to conduct this
inspection within five (5) business days after Tenant vacates the Leased
Premises. The Security Deposit, which is returned to Tenant, may, at
Landlord's option, be returned to the last assignee, if any, of Tenant's
interest hereunder.
(8) BASE RENT:
(a) As annual base rent for the use and occupancy of the Leased Premises
during the initial term, Tenant shall pay to Landlord rent pursuant
to the schedule attached as Exhibit "D."
The annual base rent is to be payable in equal monthly installments,
("Monthly Base Rent") in advance on the first day of each and every
month during the initial or extended term of this Lease, except that
Tenant shall pay the first installment of Monthly Base Rent upon the
execution of this Lease.
(b) Tenant agrees to pay as supplemental base rent for the use of said
Leased Premises an amount equal to ten percent (10%) of any Monthly
Base Rent payment which is not received by Landlord within five (5)
days of the date said Monthly Base Rent is due;
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except that because this charge is imposed in order to deter
"frequent" offences, Landlord agrees to waive any such supplemental
base rent once during each calendar year of the Lease term and any
renewal terms. Said supplemental base rent shall be in addition to
any other amounts due under this Lease.
(c) If this Lease commences on a day other than the first day of the
month, the first and last monthly installments of rent provided for
in Paragraph 8(a) shall be adjusted and pro-rated so that Tenant
shall only pay rent for the actual number of days in the first and
last months of said term; but for all other months, Tenant shall pay
the full monthly installment on the first day of each and every
month.
(d) Rent shall be mailed by Tenant to Landlord at Landlord's principal
place of business or at such other place as Landlord may designate
in writing. Rent shall be payable promptly without deduction or
setoff or prior demand thereof by Landlord. All payments shall be in
U.S. dollars, in cash or by check, all checks subject to collection.
(9) ESCALATION OF BASE RENT:
(a) At the beginning of and for each Lease Year, as hereinafter defined,
commencing with the first month of the second Lease Year (i.e.
January, 2003), the annual base rent (and the corresponding Monthly
Base Rent as defined in Paragraph 8(a)) shall be adjusted as set
forth in Exhibit "D."
(b) Intentionally Omitted.
(c) As used herein, the term "Lease Year" means each calendar year
during the Lease Term, except that the first Lease Year shall
include the period of time from the Commencement Date until December
31, 2001.
(10) ADDITIONAL RENT:
In addition to the amounts imposed in Paragraphs 8 and 9, Tenant agrees to
pay as additional rent for each month during the term of this Lease, the
amounts required by Paragraphs 11, 12 and 13.
(11) MAINTENANCE OF COMMON AREAS; OTHER SERVICES; AND UTILITIES:
(a) Landlord shall arrange to keep the exterior parking lot, driveways,
and sidewalks in good condition and repair consistent with standards
for Class A level buildings of similar type in the Montgomery County
area, clean and free from snow, ice, rubbish and other obstructions;
provide water; arrange periodically for grass cutting, landscaping
and yard maintenance; and arrange for illumination of the parking
lot, grounds, and common exterior Building signs serving the
Developed Parcel. Landlord shall also pay property management fees,
licenses, permits, inspection fees, and the cost of all labor,
contracted labor, materials and other services paid or incurred by
Landlord in the operation and maintenance of the Building and
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Developed Parcel. Landlord shall also provide the following services
to the Building and the Leased Premises, subject, however, to the
provisions of Subsection 11(d) below herein, consistent with
standards for Class A level buildings of similar type in the
Montgomery County area: (i) heating, ventilation and air
conditioning service as necessary to maintain comfortable
temperatures in the Leased Premises during regular business hours
(subject to the provisions of 11(d)); (ii) electric service to the
Leased Premises, including the average minimum number of watts per
square foot necessary to support ordinary office use; and (iii) hot
and cold running water for lavatory and drinking purposes.
(b) For each Lease Year Tenant shall reimburse Landlord for (57.55%)
(hereafter, its "Pro Rata Share") of the actual but reasonable cost
of the services enumerated in Paragraph 11(a) (the "Operating
Expenses"). The Operating Expenses shall not exceed fair market
rates customarily charged in the Montgomery County area between
independent parties contracting for Class A quality services, and no
capital expenditures shall be included in the Operating Expenses.
The amount of Tenant's estimated payment of Tenant's Pro Rata Share
of Operating Expenses (including taxes and insurance) during the
first Lease Year (i.e. from the Commencement Date through December
31, 2002) is $3,647.04 per month (the "Estimated Pro Rata Share").
At least fifteen (15) days before the beginning of each Lease Year,
Landlord shall give Tenant written notice of the amount of Tenant's
Estimated Pro Rata Share for the following Lease Year and Tenant
shall pay 1/12 of this amount for each calendar month, in addition
to the Monthly Base Rent set out in Exhibit D.
(c) On or before April 30 of each year, Landlord shall deliver to Tenant
a statement showing the actual amount, on a line-item basis, which
Landlord has expended for the Operating Expenses and Tenant's
proportionate share thereof (the "Landlord's Statement"). Within
thirty (30) days after the delivery by Landlord to Tenant of such
Landlord's Statement, Tenant shall pay to Landlord the amount by
which Tenant's Pro Rata Share of the actual Operating Expenses
exceeds the amount Tenant has paid as Tenant's Estimated Pro Rata
Share during the previous Lease Year. In the event that in any year
Tenant has advanced to Landlord sums in excess of Tenant's Pro Rata
Share, Landlord shall credit Tenant the amount by which the
Estimated Pro Rata Share exceeded the Tenant's Pro Rata Share of the
actual Operating Expenses, or if the credit would be payable after
the termination of this Lease, Landlord shall refund the amount of
such overpayment to Tenant within thirty (30) days.
Notwithstanding the foregoing, Tenant shall have six (6) months
after the receipt of any Landlord's Statement to notify Landlord in
writing of a dispute as to specific items and/or amounts charged to
Tenant thereunder. Upon Tenant's giving of forty-five (45) days
written notice to Landlord at any time thereafter, Tenant, at its
expense, may examine Landlord's books and records relating to the
operation of the Building and any other amounts for which Tenant
pays a Pro Rata Share (such as taxes and insurance) and the items in
dispute to determine the accuracy of the Landlord's Statement.
Landlord shall make all these records available to Tenant or its
agents at Landlord's offices during regular business hours following
reasonable
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advance written notice. If the audit discloses that Landlord's
Statement resulted in an overcharge to Tenant greater than: (a) five
percent (5%) of the total Operating Expenses (excluding taxes); or
(b) one percent (1%) of the amount charged for real estate taxes;
then Landlord shall pay Tenant's actual but reasonable costs and
expenses in connection with the audit up to a maximum of Two
Thousand Five Hundred ($2,500.00) Dollars. If there is no such
overcharge, of if any such overcharge is less than five (5%)
percent, then Tenant shall reimburse Landlord for Landlord's actual
but reasonable costs and expenses associated with the audit, up to a
maximum of Two Thousand Five Hundred Dollars ($2,500.00). In any
case (whether the audit shows an overcharge or an undercharge),
Tenant's Pro Rata Share of the Operating Expenses shall be adjusted
to correspond with the figures determined in the audit.
All computations described in Sections 11(a) through 11(c) shall be
made on the basis of a calendar year, except that computations for
the year 2001 shall be made on the basis of the actual number of
days between the Commencement Date and December 31, 2001. If the
Lease terminates before the end of any calendar year, computations
shall be made on the basis of the proportion between the number of
days that this Lease was in effect during that year and 365.
(d) Tenant shall pay for all utilities consumed in the Leased Premises.
Landlord, at Tenant's expense, shall install separate meters for
natural gas (if available) and electricity. Notwithstanding
Subparagraph 11(a), Landlord reserves the right to install a water
meter, at Tenant's expense, for the purpose of separately charging
Tenant for water used in the Leased Premises. Tenant shall also
obtain and pay for janitorial and cleaning services in the Leased
Premises and for all trash and garbage removal services, including
the costs and expenses of providing dumpsters and other required
trash receptacles.
(12) TAXES AND ASSESSMENTS:
For each calendar year, Tenant shall reimburse Landlord for its Pro Rata
Share of all real estate taxes and assessments levied or charged against
the Building and the Developed Parcel. In the event Tenant has advanced to
Landlord sums in excess of Tenant's Pro Rata Share, Landlord shall rebate
Tenant for the difference. In the event Tenant has advanced to Landlord
less than Tenant's Pro Rata Share, Tenant shall pay to Landlord, upon
receipt of an invoice, the difference between the Tenant's advances for
the calendar year and the amount of Tenant's Pro Rata Share.
All personal property taxes charged or levied against Tenant's furniture,
fixtures and equipment in the Leased Premises shall be paid by Tenant.
(13) INSURANCE:
(a) Landlord shall keep the Building insured against loss by fire or
other casualty with extended coverage in an amount determined by the
Landlord, and said policies shall include a standard waiver of
subrogation clause against Tenant.
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In the event the cost of premiums on Landlord's fire and extended
insurance increases due to the hazardous nature of the use and
occupancy by Tenant of the Leased Premises, then the entire increase
in insurance cost shall be paid by Tenant in a lump sum upon receipt
of invoice from the Landlord.
(b) Landlord shall at all times maintain public liability insurance for
the common areas and the exterior of the Building as well as the
sidewalks and the parking lot of the Developed Parcel, and said
policies shall include a standard waiver of subrogation clause
against Tenant.
(c) For each calendar year, Tenant shall reimburse Landlord for its Pro
Rata Share of Landlord's insurance premiums. In the event Tenant has
advanced to Landlord sums in excess of Tenant's Pro Rata Share,
Landlord shall rebate Tenant for the difference. In the event Tenant
has advanced to Landlord less than Tenant's Pro Rata Share, Tenant
shall pay to Landlord, upon receipt of an invoice, the difference
between the Tenant's advances for the calendar year and the amount
of Tenant's Pro Rata Share.
(d) The Tenant covenants and agrees that it will, at all times during
the term hereof, at its own expense, carry and keep in full force
and effect in companies satisfactory to Landlord, public liability
insurance in form satisfactory to Landlord, with limits of (a) at
least ONE MILLION DOLLARS ($1,000,000.00) for injury, including
death, to any one person, and (b) at least ONE MILLION DOLLARS
($1,000,000.00) for injury, including death in any one casualty, and
(c) at least ONE MILLION DOLLARS ($1,000,000.00) for property damage
coverage. Landlord may increase the above limits to such greater
amounts of insurance coverage as Landlord may from time to time
reasonably require, based on: (i) Landlord's loss experience, or
(ii) insurance coverages required on similar class A buildings of
similar type within Montgomery County, Ohio, or, (ii) as may be
required by Landlord's lenders, but not more often than annually and
in no case shall Tenant be required to carry insurance in excess of
$10,000,000. Tenant may comply with these requirements by furnishing
blanket policies of insurance which list Landlord and the Leased
Premises as a named insured. Tenant shall also, at its own expense,
carry plate glass insurance on the Leased Premises. All such
policies shall name the Landlord and the Tenant as parties insured,
and shall contain a provision that the same may not be canceled or
changed without giving to the Landlord at least thirty (30) days
written notice prior to expiration or cancellation of any such
policy. Tenant shall furnish to Landlord a certificate of insurance
with respect to each policy and, within ten (10) days after receipt
of Landlord's written request, Tenant shall deliver a certified copy
of the insurance policy.
(e) All property in the Leased Premises, in the Building or on the
Developed Parcel, belonging to Tenant, its agents, employees or
invitees or to any other person, shall be there at the risk of
Tenant or such other person only, and Landlord shall not be liable
for damage thereto or theft, misappropriation, or loss thereof. In
furtherance of this provision, Tenant shall at all times and at its
expense maintain insurance against loss by fire or other casualty
with extended coverage on its furniture, fixtures, inventory,
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equipment, supplies and personal property, in an amount determined
by Tenant; said policies shall include a standard waiver of
subrogation clause against Landlord.
(f) Landlord, its agents and employees shall not be liable for injury to
person or damage to property sustained by Tenant, by any occupant of
the Leased Premises, the Building or the Developed Parcel, or by any
other person, occurring or resulting directly or indirectly from any
existing or future condition, defect, matter, or thing in the Leased
Premises, in the Building or on the Developed Parcel or from
equipment or appurtenances therein or from accident or from any
occurrence, act, or from negligence or omission of any Tenant,
occupant or any other person; but nothing in this Subparagraph (f)
shall be deemed to relieve Landlord from liability for damages for
property damage or bodily injuries or death to any person caused by
or resulting from the gross negligence or willful misconduct of
Landlord, its agents or employees, or from Landlord's breach of its
obligations under this Lease.
(14) FIRE OR OTHER CASUALTY
Should the Leased Premises be damaged or destroyed by any cause and such
damage or destruction be of such a nature that it may be repaired or
restored within a period of one hundred twenty (120) days after the
occurrence, then this Lease shall not terminate, but it shall be the
obligation of Landlord to repair or restore the Leased Premises as nearly
as possible to its condition prior to such damage or destruction, and the
Landlord shall proceed promptly to make such repairs or restoration;
provided, however, that such repairs or restoration can be made by
Landlord for an amount not in excess of the amount recovered by Landlord
on the fire and extended insurance. There shall be an equitable abatement
of rent during the period that the Leased Premises may be wholly or
partially unavailable for use by Tenant for the operation of its business.
If Landlord determines that the damage or destruction is of a character
that will not permit repair or restoration of the Leased Premises within
the one hundred twenty (120) days after the occurrence thereof, or if the
cost of such repair or restoration exceeds Landlord's insurance recovery
and Landlord elects not to pay the difference between the insurance
recovery and the actual cost of the restoration, then Landlord shall
promptly deliver written notice of this fact to Tenant, in which case
either Landlord or Tenant shall have the privilege of canceling the
unexpired term of this Lease upon giving written notice to the other
within ten (10) business days after the date the notice is delivered to
Tenant. If the damage or destruction occurs during the last six months of
the Lease term, or if Landlord fails to complete the restoration following
any damage or destruction within the one hundred twenty (120) day period
after the occurrence of the damage or destruction, Tenant shall have the
right to terminate the Lease by written notice delivered on or before the
130th day after the casualty.
(15) USE OF LEASED PREMISES:
(a) Tenant shall use and occupy the Leased Premises for general office
and warehouse use (including but not limited to shipping, receiving
and distribution activities) and for no other purpose.
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(b) Landlord covenants and agrees that the Leased Premises, in its state
existing on the date that the Lease term commences, but without
regard to the use of which Tenant will use the Leased Premises, does
not violate and will not, as of the Commencement Date, violate any
covenant or restrictions of record, or any applicable building code,
regulation or ordinance in effect on such Lease term Commencement
Date, including all provisions enacted for the protection of the
environment, the Americans with Disabilities Act and all
requirements of the Landlord's insurance carrier.
(c) The Tenant hereby covenants and agrees as follows:
(i) To comply, from and after the commencement date, with all
Federal, State, County and City laws, building codes,
ordinances, rules and regulations affecting the use or
occupancy of the Leased Premises ("Applicable Laws").
Notwithstanding the foregoing, Tenant shall not be required to
correct violations of Applicable Laws existing on the
Commencement Date or to comply with requirements of any future
violations of Applicable Laws unless such compliance is
legally required solely because of the unique nature of
Tenant's use and occupancy of the Leased Premises (not common
to general office and warehouse operations, including
shipping, receiving, and distribution) or because of
alterations constructed by Tenant in the Leased Premises.
(ii) Not to use the Leased Premises for any disorderly or unlawful
purpose or use inconsistent with applicable zoning;
(iii) To obtain from appropriate governmental agencies at the
Tenant's expense any and all permits, licenses, and the like,
required to permit Tenant to occupy the Leased Premises
(except the certificate of occupancy, which shall be furnished
by Landlord) and to be at all times in compliance with such
permits, licenses, and the like, and all applicable
governmental ordinances and regulations;
(iv) To keep the Leased Premises clean and free from rubbish and to
keep the windows and signs neat, clean, and in good order, all
at Tenant's sole expense; or, if Tenant fails to perform these
obligations within thirty (30) days after written notice from
Landlord, then Landlord, at its sole discretion, shall have
the right to perform these maintenance items and Tenant agrees
to reimburse Landlord for its actual, but reasonable costs;
(v) Not to store any material, trash or refuse of any nature
whatever within the Leased Premises or on the exterior of the
Leased Premises or Developed Parcel (except in dumpsters or
other trash receptacles approved by Landlord) nor to erect any
screen or fence without the prior written consent of Landlord;
(vi) To refrain from keeping gasoline, other inflammable material,
any explosives or any other hazardous material within the
Leased Premises or on the Developed Parcel, or from doing any
act or thing which may make void or voidable the Landlord's
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insurance against fire, and to conform to all rules or
regulations from time to time established by the appropriate
insurance rating organization;
(vii) To comply with all the Rules and Regulations which have been
adopted by Landlord, attached as Exhibit "F," (or which may be
hereafter adopted by Landlord and delivered to Tenant) for the
protection and welfare of the Building, the Developed Parcel
and other tenants; so long as the revisions do not impose
material or substantial additional burdens upon Tenant and all
such rules and regulations are uniformly enforced against all
tenants of the Developed Parcel.
(16) REPAIRS:
(a) Tenant Repairs
Tenant agrees that during the full term of this Lease or any renewal
thereof, it will, at its own expense, keep the interior of the
Leased Premises in good condition and shall not let the Leased
Premises and equipment, fall out of repair, and that it will
maintain the Leased Premises and equipment, and make repairs
promptly as they become necessary. At commencement of this Lease,
Landlord shall supply the Leased Premises with the required lamps,
bulbs, ballasts, and starters, but replacements thereof shall be at
Tenant's expense.
Interior maintenance shall be deemed to include, but shall not be
limited to, repairs or replacements required for windows, doors,
floors, interior walls, ceilings, painting and decorating, and
repairs to heating, air conditioning, plumbing and electrical
fixtures, and equipment. Tenant shall change the filters in the
ventilation system on regular intervals. Notwithstanding, any other
provisions of this Subparagraph 16(a), Tenant shall not be obliged
to: (i) make such repairs as are necessitated by fire or other
perils provided for by extended coverage clauses (whether or not
caused by the active or passive negligence of the Tenant) for which
damage or loss insurance is carried by the Landlord; or (ii) pay
more than $1,500 toward the cost of any single replacement, except
for damages caused by Tenant's negligence or willful misconduct, for
which Tenant shall pay the entire cost.
Landlord covenants and agrees that all equipment on the Leased
Premises shall be in good working order on the Commencement Date and
for a period of eighteen (18) months thereafter, except for damage,
repairs, or replacements incurred or necessitated due to Tenant's
failure to maintain such equipment and systems in accordance with
the terms of this Lease Agreement or resulting from Tenant's
extraordinary use of the Leased Premises. Tenant shall at all times
after the commencement of Tenant's business operations at the
Demised Premises maintain, at Tenant's sole cost and expense, a
service contract with a reputable heating, ventilating and air
conditioning service and repair firm approved by Landlord for the
provision of such service and repairs to the Demised Premises, which
shall provide that such contract may not be canceled, materially
changed or not renewed without at least thirty (30) days advance
written notice to Landlord at the address and in the manner set
forth in Section 25 hereof. A copy of such contract shall be
deposited
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with Landlord by Tenant promptly upon commencement of Tenant's
obligation to procure same, and a copy of each replacement thereof
shall be deposited with Landlord promptly upon Tenant's execution of
same.
(b) Landlord Repairs
Landlord shall make all repairs necessary to comply with the
warranties given in Section 4(b) and 16(a) of this Lease. In
addition, Landlord agrees that during the full term of this Lease,
it will, at its own expense, keep the exterior structural parts, the
roof and the foundation of the Building in good condition and repair
and that it will make such repairs promptly as they become
necessary, except that Landlord shall not be required to repair
damages caused by Tenant's negligence or willful misconduct.
Exterior repairs shall be deemed to include exterior walls, roof,
gutters, downspouts, plumbing outside the Building and all paved and
landscaped areas. In addition, Landlord shall pay the excess amount
of any replacement which costs more than $1,500. Landlord shall make
such interior repairs and replacements as are necessitated by fire
or perils provided for by extended coverage clauses (whether or not
caused by the active or passive negligence of the Tenant) for which
damage or loss insurance is carried by the Landlord and for which
insurance proceeds are recovered, including interior decorating
caused by such fire or other perils. Landlord shall maintain the
common areas of the Developed Parcel, including the exterior
utilities and parking areas in good condition and repair throughout
the Lease term.
(17) ALTERATIONS:
No alterations, modifications, additions or installations to the Leased
Premises shall be made unless the Landlord shall first have given written
approval of the plans and specifications thereof, and shall have been
protected, to the Landlord's satisfaction, against any cost or damage
incident thereto. Prior to any approved construction, Tenant shall first
have secured all necessary building and other permits. Tenant agrees to
make such alterations, modifications, additions or installations to the
Leased Premises as may be required by building, OSHA, or other applicable
regulations or local codes in the jurisdiction in which the Leased
Premises are located. All such alterations, modifications, additions, or
installations, when made, shall become, unless the Landlord elects
otherwise as provided in Paragraph 17 hereof, the property of the Landlord
and shall remain upon and be surrendered with said Leased Premises as a
part thereof at the end of the term of this Lease.
(18) FIXTURES AND UNAUTHORIZED USE OF PREMISES:
Tenant shall not without Landlord's prior written consent attach any
fixtures in or to the Leased Premises or change, alter, or make additions
to the Leased Premises nor permit any annoying sound device, install any
additional locks, overload any floor, or deface the Leased Premises. Any
attached fixtures or any alterations, additions, or improvements made or
attached by Tenant shall on the expiration or termination of this Lease,
if requested by Landlord, be promptly removed at Tenant's expense, and the
Leased Premises restored by Tenant at its expense to its original
condition, ordinary wear and tear excepted. Any such fixture, alteration,
addition and/or improvement not requested to be moved shall remain on
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the Leased Premises and shall become and remain the property of Landlord.
All Tenant's fixtures, installations, and personal property not removed
from the Leased Premises upon expiration or termination and not required
by Landlord to have been removed as provided in this paragraph shall be
conclusively presumed to have been abandoned by Tenant, and title thereto
shall pass to Landlord under this Lease as by a bill of sale.
(19) WINDOW COVERINGS AND SIGNAGE:
Landlord shall, at Tenant's expense, install signage identifying Tenant's
occupancy. Signage shall meet Landlord's standard specification for Tenant
signage, in order to provide harmony of the Building as to the exterior
and interior appearances and also for safety and fire hazard purposes.
Tenant shall not install signs in the windows of the Leased Premises or
any other part of the Building or Developed Parcel without first securing
Landlord's written consent. Any such signage permitted shall meet
Landlord's standard specification for Tenant signage. Any signs installed
by Tenant with Landlord's permission shall be removed by Tenant at the
expiration of this Lease, at its expense, and the Leased Premises shall be
restored by Tenant.
(20) INTERRUPTION OF SERVICE:
Landlord does not warrant that any services to be provided by Landlord
will be free from interruption due to causes beyond Landlord's reasonable
control. Temporary interruption of services or unavoidable delay in the
making of repairs shall not be deemed an eviction or disturbance of
Tenant's use and possession nor render Landlord liable to Tenant for
damage by abatement of rent or otherwise nor relieve Tenant from
performance of its obligations under this Lease. However, if utilities
and/or other building services necessary to the customary operation of
Tenant's business at the Leased Premises ("Essential Services") are
interrupted or stopped as the result of damage or other factors relating
to the portion of the service or utility line running from the "main line"
located in the street right-of-way or adjoining the street right-of-way to
the exterior wall of the Building ("Exterior Cause"), then Landlord shall
use commercially reasonable efforts to assure that the Essential Services
are promptly restored. If the Essential Services interrupted as the result
of any Exterior Cause are not restored within five (5) business days, then
Tenant's obligation to pay Rent shall abate on a per diem basis from the
6th business day until the date that Essential Services are restored, and
if the Essential Services interrupted as the result of any Exterior Cause
are not restored within sixty (60) business days, then Tenant shall have
the right to terminate this Lease (unless the interruption or stoppage is
the result of Tenant's negligence or willful misconduct, in which case
Tenant's obligation to pay Rent shall not abate and Tenant shall not have
the right to terminate the Lease). If Essential Services are interrupted
or stopped for any other reason and service is not restored within 120
days, then Tenant shall have the right to terminate this Lease by written
notice to Landlord.
(21) INDEMNIFICATION:
Tenant shall pay all loss or damage occasioned by or growing out of the
use and occupancy of the Leased Premises by Tenant, its agents, employees
and contractors, and Tenant will
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indemnify, protect, and save Landlord harmless from and against any loss
or liability thereby or therefore and from and against any expense, cost,
and attorney fees incurred in connection with any such claim; except that
Tenant shall not be required to indemnify Landlord for any costs,
expenses, damages or other losses to the extent that they arise out of:
(a) the negligence or willful misconduct or strict or statutory liability
of Landlord or its employees, agents and contractors; (b) Landlord's
failure to perform its obligations under this Lease; or (c) any defect or
deficiency in the Building or the Leased Premises which was not created by
Tenant's use of the Leased Premises or by improvements installed by Tenant
or its employees, agents and contractors. Landlord shall indemnify, defend
and hold Tenant, its agents, employees and contractors harmless from all
claims, suits, losses, damages, fines, penalties, liabilities and expenses
(including attorneys' fees) resulting from any actual or alleged injury
(including death) of any person or from any actual or alleged loss of or
damage to any property arising out of or in connection with the occupancy
and use of the common areas in the Building and on the Developed Parcel,
except to the extent that they arise out of the negligence or willful
misconduct of Tenant or its employees, agents or contractors.
(22) WARRANTY OF QUIET ENJOYMENT:
Tenant, upon paying the rents and keeping and performing the covenants of
this Lease to be performed by Tenant, shall peacefully and quietly hold,
occupy, and enjoy said Leased Premises during said term or any renewal
thereof.
(23) ASSIGNMENT AND SUBLETTING:
Tenant shall not assign, mortgage or encumber this Lease nor sublet or
permit the Leased Premises or any part thereof to be used by others,
without the prior written consent of Landlord in each instance, which
Landlord shall not unreasonably withhold, condition or delay. The consent
by Landlord to an assignment or subletting shall not be construed to
relieve Tenant from obtaining the consent of the Landlord to any further
assignment or subletting. The consent by Landlord will not be given
unless: (a) the subtenant or assignee assumes the Tenant's obligations
under this Lease; and (b) Tenant remains liable for all its obligations
under this Lease, including extensions or renewals provided for herein.
Nor will consent be given if Tenant is in default under this Lease. Tenant
shall notify Landlord of the name of each proposed assignee or subtenant
and shall provide information to Landlord pursuant to the financial
standing of the proposed assignee or subtenant.
Despite the foregoing, Tenant shall have the absolute right without the
consent of Landlord, but upon notice to Landlord, to assign all of its
rights under the Lease or sublet all or a portion of the Leased Premises
to any (i) parent or subsidiary, including the parent of a parent or the
subsidiary of a subsidiary; (ii) successor by merger; (iii) any person or
entity who acquires all or substantially all of the Tenant's assets or a
majority of the ownership interests or shares in tenants; or (iv) any
person or entity controlled by, under common control with or controlling
Tenant (each being an "Affiliate"), provided that Tenant shall remain
liable for the full performance of all obligations of Tenant under this
Lease and provided further that Tenant is not, at the time of such
assignment, in default under this Lease.
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No permitted assignment or sublease on the part of Tenant pursuant to this
paragraph shall trigger any right of Landlord to terminate this Lease.
In no event shall any proposed subtenant or assignee (other than an
Affiliate) be an existing tenant of the Building or its subtenant or
assignee. In no event shall the proposed subtenant or assignee be a person
or entity with whom Landlord or its agent is negotiating and to or from
whom Landlord, or its agent, has given or received any written or oral
proposal within the past one hundred twenty (120) days regarding a lease
of space in the Building.
Landlord reserves the right to require as additional rent, fifty percent
(50%) of any subtenant or assignee rent which is in excess of the base
rent and additional rent then being paid by Tenant pursuant to this Lease
(but only after Tenant has recovered the full amount of all expenses of
obtaining the assignment or sublease, including but not limited to
commissions, attorneys' fees and alteration costs), and any other profit
or gain realized by Tenant from such assignment or subletting. All sums
payable hereunder by Tenant shall be paid as additional rent upon receipt
by Tenant or upon request by Landlord.
(24) EMINENT DOMAIN:
Tenant agrees that if the Leased Premises, or any part thereof (including
the exclusive parking spaces or access to the parking area), shall be
taken or condemned for public or quasi-public use or purpose by any
competent authority, Tenant shall have no claim against Landlord and shall
not have any claim or right to any portion of the amount that may be
awarded as damages or paid as a result of any such condemnation, whether
such amount be awarded for diminution in value to the leasehold or to the
fee. It is agreed that the full amount of such award, if any, made by the
taking authorities shall be paid to and retained by Landlord, free of any
claim by Tenant to any portion thereof, and all rights of Tenant to
damages therefor, if any, are hereby assigned by Tenant to Landlord. In
the event that all or substantially all of the Leased Premises shall be
taken or condemned by any governmental authority, then the term of this
Lease shall cease and terminate from the date on which the Tenant is
required, by such taking authority, to surrender possession of said Leased
Premises and the Tenant shall not have nor make any claim against Landlord
for the value of any unexpired term of this Lease. In the event that a
portion of the Leased Premises shall be taken or condemned by any
governmental authority, then this Lease shall continue in full force and
effect, and rent shall abate in an amount which bears the same ratio to
the annual base rent as the value of the floor space taken bears to the
value of the total floor space of the Leased Premises. All rentals and
other sums payable by Tenant hereunder shall be adjusted to the date on
which Tenant is required, by the taking authority, to surrender possession
of the Leased Premises or portion of the Leased Premises so taken.
(25) NOTICES:
(a). Notice Defined. "Notice" means any notice, demand, request, or other
communication or document to be provided under this Lease.
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(b). Notice in Writing to Address or Facsimile Transmission Number. The
Notice shall be in writing and shall be given to the party at its
regular mail address, e-mail address or facsimile transmission
number or such other address or facsimile transmission number as the
party may later specify for that purpose by notice to the other
party.
(c). Parties Addresses. The parties current addresses and facsimile
transmission numbers are set forth below:
(i) If to Landlord, Notice shall be sent to the attention of :
Director of Property Management, at one of the following:
Regular mail address: Key Property Development Corporation,
P. O. Box 75020, Cincinnati, Ohio 45275
Facsimile transmission number: 859-292-7985
E-mail address: brettenmaier@corporex.com
With a copy to: Corporex Companies, Inc.,
Attention: William P. Butler, at one of the following:
Regular mail address: P. O. Box 75020, Cincinnati, Ohio 45275
Facsimile transmission number: 859-292-5518
(ii) If to Tenant, Notice shall be sent to the attention of: Legal
Department, at one of the following:
Regular mail address: Wire One Technologies, Inc.,
Attention: General Counsel, 225 Long Avenue, Hillside,
New Jersey 07205
Facsimile transmission number: 973-391-9776
E-mail address: jbirkhahn@wireone.com
With a copy to: Meredith Ann Trott at one of the following:
Regular mail address: Dinsmore & Shohl, LLP,
50 East Third Street, Dayton, Ohio 45402
Facsimile transmission number: 937-449-6405
E-mail address: trott@dinslaw.com
(d). Deemed Receipt. Notice shall only be given in the manner set forth
below and shall, for all purposes be deemed given and received:
(i) if given by facsimile transmission, when the facsimile
transmission is transmitted to the party's facsimile
transmission number specified above and confirmation of
complete receipt is received by that transmitting party during
normal business hours or on the next business day if confirmed
outside normal business hours:
(ii) if given by e-mail, when the e-mail is transmitted to the
party's e-mail address specified above and confirmation of
receipt is received by that
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transmitting party during normal business hours or on the next
business day if confirmed outside normal business hours;
(iii) if hand delivered to a party at the regular mail address of
the party specified above, against receipted copy,
(iv) if given by a nationally recognized and reputable overnight
delivery service at the regular mail address of the party
specified above, the day on which the notice is actually
received by the party; or
(v) if given by certified mail, return receipt requested, postage
prepaid at the regular mail address of the party specified
above, three (3) business days after it is posted with the
United States Postal Service.
If a copy is required above, then Notice shall not be deemed
received until the last of the Notice and the copy of the
Notice is deemed received as provided above.
(e). Refusal to Accept. If Notice is tendered under the provisions of
this Lease and is refused by the intended recipient of the Notice,
the Notice shall nonetheless be considered to have been given and
shall be effective as of the date provided in this Lease.
(26) REDELIVERY OF PREMISES
Tenant shall, on the expiration of this Lease, deliver up the Leased
Premises in as good order and condition as it now is or may be put by
Landlord, reasonable use and ordinary wear and tear thereof and damage by
fire or other unavoidable casualty, condemnation or appropriation
excepted. Tenant shall promptly surrender all keys to the Leased Premises
to Landlord.
(27) DEFAULT: REMEDIES UPON DEFAULT:
(a) It shall be an event of default under this Lease if any voluntary or
involuntary petition in bankruptcy shall be filed by or against
Tenant, or any voluntary or involuntary proceeding in any court
shall be instituted to declare Tenant insolvent or unable to pay
Tenant's debts, or Tenant makes an assignment for the benefit of its
creditors, or a trustee or receiver is appointed for Tenant or for
the major part of Tenant's property; except that in the case of any
involuntary proceedings, so long as Tenant is not in default for
payment of rent, and continues to pay its rent on a current basis
thereafter, Tenant shall have sixty (60) days to obtain an order
dismissing the proceedings.
(b) It shall be an event of default under this Lease (a "Monetary
Default") if: (i) Tenant fails to pay rent when due; or (ii) there
is any lapse in the insurance which Tenant is required to carry
under this Lease; or (iii) Tenant takes any action or causes any
situation which creates an immediate hazard to the health, safety
and security of persons or property at the Leased Premises or to the
safe use and operation of the Building; and such nonpayment, lapse
or failure shall continue for five days after
17
Landlord's notice to Tenant. It shall be an event of default under
this Lease (a "Non-Monetary Default") if Tenant fails to perform or
observe any other provisions of this Lease and such failure shall
continue for thirty (30) days after notice thereof shall have been
given to Tenant; except that no event of default shall occur if
Tenant commences a cure of such Non-Monetary Default within this
thirty (30) day period and diligently and continuously pursues the
cure thereafter.
(c) Following any event of default under this Lease, Landlord shall have
the right to terminate this Lease. Following any Monetary Default
under this Lease, Landlord shall also have the option to terminate
Tenant's right to possession without terminating the Lease or to
terminate this Lease. In either case, Tenant shall surrender
possession and vacate the Leased Premises immediately, and Landlord
may enter the Leased Premises in such event with or without process
of law and retake possession of the Leased Premises and may expel or
remove the Tenant and any others who may be occupying or within the
Leased Premises and remove all property therefrom without
relinquishing any other right given to the Landlord hereunder or by
operation of law.
(d) If a Monetary Default occurs and the Landlord elects to terminate
the Tenant's right to possession only without terminating this
Lease, the Landlord may, at its option, enter into the Leased
Premises, remove the Tenant's signs and other evidences of tenancy,
and take and hold possession thereof as provided in Subparagraph (c)
without such entry terminating this Lease or releasing the Tenant
from the Tenant's obligation to pay the rent for the full term, and
in any such case, the Tenant shall pay forthwith to the Landlord a
sum equal to the present value of the entire amount of the rent
specified in Paragraphs 8, 9 and 10 of this Lease for the residue of
the stated term plus any other sums then due hereunder. Upon and
after entry into possession without termination of this Lease, the
Landlord shall use commercially reasonable efforts to relet the
Leased Premises or any part thereof for the account of the Tenant
for such rent, for such time and upon such terms as the Landlord in
its sole discretion shall determine. Landlord shall not be required
to accept any tenant offered by the Tenant or to observe any
instructions given by the Tenant about such reletting, but Landlord
agrees to work with Tenant in a commercially reasonable manner to
mitigate damages. In any such case, the Landlord may make repairs,
alterations, and additions in or to the Leased Premises and
redecorate the same to the extent deemed by the Landlord necessary
or desirable, and the Tenant shall, upon demand, pay the cost
thereof together with the Landlord's expenses of the reletting. If
the consideration collected for the remaining term of this Lease by
the Landlord upon any such reletting for the Tenant's account is not
sufficient to pay the full amount of unpaid rent reserved in this
Lease together with cost of repairs, alterations, additions,
redecorating and the Landlord's expenses, costs, fees, and
commissions the Tenant shall pay to the Landlord the amount of each
deficiency upon demand. If the consideration collected for the
remaining term of this Lease from any such reletting, after
deducting therefrom the cost of repairs, alterations, additions,
redecorating and the Landlord's expenses, costs, fees, and
commissions, is in excess of the full amount of the rent reserved
herein, the Landlord at the end of the stated term of this Lease
shall account for the surplus thereof to Tenant. Notwithstanding the
foregoing, so
18
long as Landlord has not entered into good faith negotiations with a
replacement Tenant, Tenant shall have the right to cure any Monetary
Default, whereupon Tenant's right to possession shall be
automatically restored and the Lease reinstated.
(e) Any property which may be removed from the Leased Premises by the
Landlord pursuant to the authority of this Lease or of law to which
the Tenant is or may be entitled may be handled, removed, or stored
in a commercial warehouse or otherwise by the Landlord at the risk,
cost, and expense of the Tenant. Landlord shall in no event be
responsible for the value, preservation, or safekeeping thereof. The
Tenant shall pay to the Landlord, upon demand, all expenses incurred
in such removal and all storage charges against such property. Any
such property of Tenant not removed from the Leased Premises or
retaken from storage by Tenant within thirty (30) days after the end
of the term of this Lease, however terminated, shall be conclusively
deemed to have been forever abandoned by Tenant.
(f) If Tenant violates any of the terms and provisions of this Lease or
defaults in any of its obligations hereunder other than the payment
of rent or other sums payable hereunder, such violation may be
restrained or such obligation enforced by injunction.
(g) All rights and remedies of Landlord herein enumerated shall be
cumulative and none shall exclude any other right or remedy allowed
by law.
(h) Any costs and expenses incurred by Landlord (including, without
limitation, reasonable attorney's fees) in enforcing any of its
rights or remedies under this Lease shall be deemed to be Additional
Rental and shall be repaid to Landlord by Tenant upon demand.
Landlord shall punctually perform all the obligations imposed upon
Landlord under this Lease. If Landlord fails to perform any such
obligation within thirty (30) days after written notice from Tenant
specifically describing the nature of Landlord's failure to perform (a
"Landlord Default") (except that it shall not be a Landlords' Default if
the work to be performed by Landlord cannot be completed within thirty
days of such notice, and Landlord has commenced such work and diligently
and continuously pursues the cure or completion of such obligation), then
Tenant shall have the right to perform the obligations described in the
notice and set-off the actual and reasonable cost of the performance
against amounts due to Landlord under this Lease. The Landlord Default
shall be deemed to have been cured when Tenant's expense has been
reimbursed in full (whether through payment, set-off or otherwise). The
rights afforded to Tenant under this paragraph shall be construed to be
cumulative, and not exclusive of any other lawful right or remedy that
Tenant may have.
(28) HOLDING OVER:
So long as Landlord and Tenant are engaged in good faith negotiations for
the execution of a new lease or an extension of this Lease, Tenant may
hold over on the same terms and conditions of this Lease for up to two (2)
months after the termination date. In any other circumstance, Tenant shall
pay Landlord for each month, or part thereof, that Tenant retains
19
possession of the Leased Premises or any part thereof after termination or
expiration of the term of this Lease double the amount of the monthly rent
then required by the terms hereof and also pay all damages sustained by
Landlord by reason of such retention; but acceptance by Landlord of rent
after such termination shall not constitute a renewal nor waive Landlord's
right of re-entry or any other right.
(29) RIGHTS RESERVED BY LANDLORD:
Landlord shall have the following rights exercisable without notice and
without liability to Tenant:
(a) To change the name or street address of the Building if
dictated by the town or state;
(b) To have pass keys to the Leased Premises;
(c) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably
determine to identify themselves to a watchman by registration
or otherwise, and to establish their right to enter or leave,
and to exclude or expel any peddler, solicitor or beggar at
any time from the Developed Parcel or the Building;
(d) To approve the weight, size and location of safes, computers,
and other heavy articles or equipment in and about the Leased
Premises and to require all such items and other office
furniture and equipment to be moved in and out of the Building
only at such times and in such manner as Landlord shall direct
and in all events at Tenant's sole risk and responsibility;
(e) Intentionally Omitted;
(f) Landlord or its agents shall have the right to enter the
Leased Premises at reasonable times after at least one (1)
business day advance notice to Tenant, for the purpose of
inspecting the same, showing the same to prospective
purchasers and lenders, or making such alterations, repairs,
improvements or additions to the Leased Premises as Landlord
may deem necessary or desirable. Landlord may at any time
place on or about the Leased Premises any ordinary "For Sale"
signs; and,
(g) Within twelve (12) months prior to the date of the expiration
of this Lease, Landlord or its agents shall have the right to
enter the Leased Premises at all reasonable times after at
least one (1) business day advance notice to Tenant for the
purpose of exhibiting the Leased Premises to prospective
tenants, but Landlord shall not post a "For Lease" or other
similar sign at the Leased Premises until the last six (6)
months of the term.
(30) BROKER'S COMMISSION
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Tenant represents that it has dealt directly with (and only with)
Landlord's broker (identified in the letter attached as Exhibit I) in
connection with this Lease and that no other broker negotiated or
participated in the negotiations of this Lease or submitted or showed the
Leased Premises to it or is entitled to any commission in connection
therewith. Landlord shall be liable for the payment of any commission due
to the broker named in this paragraph; however, if there is a violation of
the representation herein made by Tenant, and any other broker claims a
commission from Landlord, Tenant shall indemnify and hold the Landlord
harmless from such claim.
(31) ESTOPPEL CERTIFICATE:
(a) Tenant shall at any time upon not less than ten (10) days' prior
written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing: (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease as so
modified, is in full force and effect) and the date to which rent
and other charges are paid in advance, if any, and (ii)
acknowledging that there are no uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed.
Such statement shall be substantially in the form attached as
Exhibit G, subject to reasonable modifications as may be required by
such prospective purchaser, mortgagee, or Landlord mutually
acceptable to Tenant, Landlord, and the mortgagee or prospective
purchaser. Any such statement may be conclusively relied upon by any
prospective purchaser or mortgagee of the Leased Premises.
(b) Tenant's failure to deliver such statement within ten (10) business
days after receipt of Landlord's written request shall be a material
default under this Lease.
(c) Intentionally Omitted.
(32) LANDLORD'S LIABILITY:
(a) The term "Landlord" as used herein shall mean only the owner or
owners at the time in question of the fee title. In the event of any
transfer of such title, Landlord herein named (and in case of any
subsequent transfers, then the grantor) shall be relieved from and
after the date of such transfer of all liability as respects
Landlord's obligations thereafter to be performed (but not from
liability for obligations arising prior to the transfer date, for
which Landlord shall remain liable to the extent of the net proceeds
of the sale of the Developed Parcel), provided that: (i) any funds
in the hands of Landlord or the then grantor at the time of such
transfer, in which Tenant has an interest, shall be delivered to the
grantee; (ii) the grantee shall assume and agree to be bound by the
obligations arising under this Lease from and after the transfer
date. The obligations contained in this Lease to be performed by
Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only with respect to their respective
periods of ownership.
(b) Tenant shall look solely to the estate and property of Landlord in
the Developed Parcel for the collection of any judgment (or other
judicial process) requiring the
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payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms and provisions of this
Lease to be kept, observed, and performed by Landlord, subject,
however, to the prior rights of any mortgagee of all or any part of
the property; no other assets of Landlord shall be subject to levy,
execution or other judicial process for the satisfaction of Tenant's
claim (except that Tenant may set-off the amount of any such
judgment against rent and other amounts due under this Lease).
Nothing in this Lease shall be construed in any event whatsoever to
impose any personal liability upon the trustees, officers or the
shareholders of the Landlord, or of the general or limited partners
comprising the Landlord, as Landlord herein or otherwise. Nothing in
Section 32(b) shall be interpreted to limit Tenant's right to seek
injunctive relief or specific performance, or Tenant's right to
claim the proceeds of insurance specifically maintained for Tenant's
benefit.
(33) INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS:
This Lease including any exhibits, schedules or attachments, hereto,
contains all agreements of the parties with respect to any matter
mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified in writing
only, signed by the parties in interest at the time of the modification.
Except as otherwise stated in this Lease, Tenant hereby acknowledges that
neither any cooperating broker on this transaction nor the Landlord or any
employees or agents of any of said persons has made any oral or written
warranties or representations to Tenant relative to the condition or use
by Tenant of said Leased Premises, the Building or the Developed Parcel.
(34) WAIVERS:
(a) No waiver by either party of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by
the other party of the same or any other provision. Landlord's
consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of
any subsequent act by Tenant.
(b) The acceptance of rent hereunder by Landlord shall not be a waiver
of any preceding breach by Tenant of any provision hereof, other
than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
(35) SEVERABILITY:
If any provision of this Lease shall at any time be deemed to be invalid
or illegal by any court of competent jurisdiction, this Lease shall not be
invalidated thereby; and in such event this Lease shall be read and
construed as if such invalid or illegal provision had not been contained
herein.
(36) RECORDING:
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This Lease shall not be placed of record; however, either Landlord or
Tenant shall, upon request of the other, execute, acknowledge and deliver
to the other a "short form" memorandum of this Lease on the form attached
as Exhibit H, which may be recorded in Montgomery County, Ohio.
(37) CUMULATIVE REMEDIES:
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in
equity.
(38) INTEREST ON PAST DUE OBLIGATIONS:
Any amount owed by Tenant to Landlord which is not paid within five (5)
days after the date said amount is due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount; except
that because this charge is imposed in order to deter "frequent" offences,
Landlord agrees to waive any such interest charge once during each
calendar year of the Lease term and any renewal terms. However, interest
shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not (in and of
itself) excuse or cure any default by Tenant under this Lease. If the
interest rate specified in this Lease is higher than the rate permitted by
law, the interest rate is hereby decreased to the maximum legal interest
rate permitted by law.
(39) BINDING EFFECT:
Subject to any provisions hereof restricting assignment or subletting by
Tenant, this Lease shall be binding upon and inure to the benefit of the
parties, their heirs, personal representatives, successors and assigns.
(40) SUBORDINATION:
(a) The Tenant accepts this Lease subject and subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or
security now or hereafter placed upon the Developed Parcel,
notwithstanding the recording of the Memorandum of Lease, and to any
and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof,
and Landlord warrants that the mortgagee will deliver a
subordination, non-disturbance and attornment agreement in the form
attached as Exhibit J. If any mortgagee shall elect to have this
Lease prior to the lien of its mortgage, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, whether this Lease is dated prior or subsequent to the
date of said mortgage, or the date of recording thereof.
(b) Although the provisions of Paragraph 40(a) shall be self operative,
Tenant agrees, upon request of Landlord or Landlord's lender, to
execute any documents required to effectuate any attornment, a
subordination or to make this Lease prior to the lien of any
mortgage, so long as such mortgagee executes a subordination,
non-disturbance and attornment agreement in a form reasonably
satisfactory to Tenant and the
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mortgagee. Tenant's failure to execute such documents within ten
(10) business days after written demand shall constitute a material
default by Tenant hereunder.
(41) AUTHORITY:
Each individual executing this Lease on behalf of either party represents
and warrants that he or she is duly authorized to execute and deliver this
Lease on behalf of said party and shall, at the execution of this Lease,
deliver to the other party, satisfactory evidence of such authority.
(42) CONFLICT:
Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provision (provided each such change is
initialed by both parties).
(43) GOVERNING LAW; FORUM:
This Lease is made under and is to be governed by the laws of the State of
Ohio. Any action arising out of this Lease shall be brought only in a
court of competent jurisdiction in Montgomery County, Ohio.
(44) MECHANICS' LIEN:
In the event Tenant performs any alterations in accordance with Paragraph
17 of this Lease, Tenant will not cause or permit to stand, through any
action taken by it, any mechanics', laborer's, materialman's or other lien
against the Leased Premises or the Building or improvement thereon in
connection with work of any character performed or material furnished to
the Leased Premises. Nothing in this Lease may be construed as creating an
agency relationship between Landlord and Tenant for purposes of performing
alterations, improvements, or repairs. If Tenant in good faith desires to
contest the validity or amount of any such lien landlord agrees to
cooperate in the institution, defense and maintenance of any such action
or proceeding, provided that Tenant will indemnify and hold Landlord
harmless for and from any and all expenses, costs and liabilities in
connection with any such contest. Any such action or proceeding may be
instituted and maintained by Tenant only if and so long as the enforcement
of any such lien, by sale or otherwise, will be stayed by reason of such
action or proceeding or by bond filed or a monetary deposit paid into
court as a part of such action or proceeding. Promptly after the
determination of any such contest adverse to the Tenant and prior to the
enforcement of any such lien, Tenant will pay and discharge the amount of
any such lien, together with any related interest, costs and penalties.
(45) FINANCIAL STATEMENTS:
Within twenty (20) days of written request by Landlord, Tenant will
provide Landlord with its most recent financial statement, certified to be
true and correct by either Tenant's chief financial officer or an
independent certified public accountant; provided, however, Landlord may
share such statements only with its mortgagee, ground lessor, prospective
mortgagees and ground lessors, purchasers and partners, and attorneys,
accountants, and other advisors of
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Landlord and each of the foregoing. However, the Tenant is a public
company trading on the NASDAQ Stock Market (WONE). The Tenant files
current financial statements and other information with the Securities and
Exchange Commission, published at www.sec.gov. Landlord agrees that so
long as this information remains readily available to the public in this
format (or in any future format similarly designed to facilitate public
access to the information), then Tenant shall be construed to have
complied with the financial disclosure requirements of this Section.
Tenant represents and warrants that the financial statements and
information presented and maintained on its website shall at all times be
the most current financial statement for Tenant and that same shall at all
times be true, accurate and complete and that Landlord shall be entitled
to rely upon such information for all purposes of this Lease.
(46) JOINT VENTURE:
This Lease may not be deemed or construed to create or establish any
relationship of partnership, agency, or joint venture (or any other
similar relationship or arrangement) between Landlord and Tenant.
(47) HAZARDOUS SUBSTANCES:
The term "Hazardous Substance" shall be interpreted broadly to include
those substances defined as a "hazardous substance", "pollutant" or
"contaminant" pursuant to the Compensation Liability Act, 72 U.S.C., 9061
et sec, as amended and regulations thereunder, or any federal, state or
local regulation or ordinance; and shall also specifically include without
limitation petroleum and petroleum based derivatives, distillates and
byproducts, asbestos; and any hazardous waste or other similar material.
Tenant warrants and represents that it shall not use, store, treat,
accumulate or transport Hazardous Substances at, on, to or from the Leased
Premises during the Lease Term except in the ordinary conduct of its
business and in a manner that complies with all federal, state, and local
laws, regulations, and ordinances. Tenant additionally warrants and
represents that Tenant's occupancy of the Leased Premises and its
activities thereon shall not cause or result in any release, leak,
discharge, spill, disposal, or emission of Hazardous Substances at, in,
on, from or under the Leased Premises during or following the Lease Term.
Tenant agrees to indemnify and hold Landlord harmless from any and all
claims, damages, fines, judgements, penalties, costs, liabilities, or
losses (including, without limitation reasonable sums paid for settlement
of claims, attorneys fees, consultant and expert fees) arising during or
after the Lease Term from or in connection with the presence of any
Hazardous Substances in, on or under the Leased Premises during or after
the Lease Term where the presence of such Hazardous Substances is caused
by or arises from Tenant's occupancy of the Leased Premises or otherwise
from Tenant's activities. Without limitation the foregoing, this
Indemnification shall include reasonable costs incurred due to any
investigation of the Leased Premises or any clean-up, removal or
restoration mandated by a federal, state or local agency or political
subdivision with respect to any such Hazardous Substance present on the
Leased Premises during the Lease Term. The provisions of this paragraph
shall survive the expiration or termination of this Lease.
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Landlord warrants and represents that, to the best of its knowledge, any
use, storage, treatment, accumulation, or transportation of Hazardous
Substances which has occurred in or on the Developed Parcel prior to the
date hereof has been in compliance with the applicable federal, state, or
local laws, regulations, and ordinances. Landlord additionally warrants
and represents that, to the best of its knowledge, no release, leak,
discharge, spill, disposal, or emission of Hazardous Substances has
occurred in, or under the Developed Parcel prior to the date hereof.
Landlord agrees to indemnify and hold the Tenant harmless from any and all
claims, damages, fines, judgements, penalties, costs, liabilities, or
losses (including without limitation reasonable sums paid for settlement
of claims, attorneys' fees, consultant and expert fees) arising during or
after the Lease Term from or in connection with the presence of any
Hazardous Substance in, or under the Premises prior to the Lease Term.
Without limiting the foregoing, this Indemnification shall include
reasonable cost incurred due to any investigation of the Premises or any
clean-up, removal or restoration mandated by a federal, state or local
agency or political subdivision, with respect to any Hazardous Substance
present on the Premises prior to the Lease Term other than such as may be
caused by or arise out of Tenant's occupancy of the Leased Premises or
from Tenant's activities. The provisions of this paragraph shall survive
the expiration or termination of this Lease.
(48) ADDITIONAL EXHIBITS:
The following exhibits are attached hereto and incorporated into this
Lease:
Exhibit A Leased Premises (floor plan)
Exhibit B Legal Description of Developed Parcel
Exhibit C Landlord's Work
Exhibit D Annual Base Rent
Exhibit E Blue Print Showing Measurement of Leased Premises
Exhibit F Rules and Regulations
Exhibit G Form of Estoppel Certificate
Exhibit H Form of Memorandum of Lease
Exhibit I Real Estate Broker's Commission Letter
Exhibit J Form of Subordination and Non-Disturbance Agreement
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this Lease as of
the day and year first above written.
WITNESSES: LANDLORD
/s/ Rebecca Tettenmaier KEY PROPERTY DEVELOPMENT
- ------------------------- CORPORATION, a Kentucky corporation.
/s/ Sally Pelsall
- -------------------------
BY: /s/ William P. Butler
-------------------------
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NAME: William P. Butler
-------------------
TITLE: President
-------------------
WITNESSES: TENANT
WIRE ONE TECHNOLOGIES, INC., a Delaware
corporation
/s/ Denise Mattos
- -------------------------
/s/ Katie McCrary-Shuster BY: /s/ Jonathan Birkhahn
- ------------------------- ----------------------------
NAME: Jonathan Birkhahn
-------------------------
TITLE: EVP & General Counsel
-------------------------
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STATE OF KENTUCKY )
) SS:
COUNTY OF KENTON )
Be It Remembered that on the 21th day of December, 2001, before me, a
Notary Public in and for said County and State, personally appeared William P.
Butler as President of Key Property Development Corporation, Landlord in the
foregoing Lease Aggrement, and for and on behalf of said corporation
acknowledged the signing and executing of said instrument, that the signing and
execution of said instrument is his free act and deed, his free act and deed as
such officer, and the free act and deed of said corporation for the uses and
purposes in said instrument mentioned.
In testimony Whereof I have hereunto subscrived my name and affixed my
name and affixed my Notarial Seal on the day and year last aforesaid.
My Commission Expires: June 13, 2004
/s/ Martin Butler
----------------------------------
Notary Public
STATE OF NEW JERSEY )
) SS:
COUNTY OF UNION )
Be It Remembered that on the 19th day of December, 2001, before me, a
Notary Public in and for said County and State, personally appeared Jon Birkhahn
as EVP, General Counsel of Wire One Technologies, Inc., Tenant in the foregoing
Lease Agreement, and for and on behalf of said corporation acknowledged the
signing and executing of said instrument, that the signing and execution of said
instrument is their free act and deed, their free act and deed as such officers,
and the free act and deed of said corporation for the uses and purposes in said
instrument mentioned.
In Testimony Whereof I have hereunto subscribed my name and affixed my
Notarial seal on the day and year last aforesaid.
My Commission Expires: August 29, 2006
/s/ Denise Mattos
----------------------------------
Notary Public
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