Exhibit 10.19
LEASE
Between
7655 CORPORATION
and
SIMON PROPERTY GROUP, L.P.
INDEX OF LEASE
Between
7655 CORPORATION
and
SIMON PROPERTY GROUP, L.P.
Article/Heading Page
- --------------- ----
ARTICLE I - Basic Lease Information 1
ARTICLE II - Definition of Terms 2
ARTICLE III - Premises 3
ARTICLE IV - Term of Lease 3
ARTICLE V - Minimum Rent 3
ARTICLE VI - Condition of Premises 4
ARTICLE VII - Use of Premises 4
ARTICLE VIII - Alterations 7
ARTICLE IX - Maintenance of Premises, Indemnification and Insurance 7
ARTICLE X - Common Areas 11
ARTICLE XI - Mechanic's Lien or Claims 12
ARTICLE XII - Destruction and Restoration 12
ARTICLE XIII - Property in Premises 13
ARTICLE XIV - Access to Premises 13
ARTICLE XV - Surrender of Premises 13
ARTICLE XVI - Utilities 14
ARTICLE XVII - Assignment and Subletting 14
ARTICLE XVIII - Eminent Domain 15
ARTICLE XIX - Default by Tenant 16
ARTICLE XX - Default by Landlord 20
ARTICLE XXI - Estoppel Certificate, Attornment and Subordination 20
ARTICLE XXII - Holding Over 21
-i-
ARTICLE XXIII - Quiet Enjoyment 22
ARTICLE XXIV - Reimbursement 22
ARTICLE XXV - Changes and Additions to Landlord's Parcel 22
ARTICLE XXVI - Notices 23
ARTICLE XXVII - Brokerage 23
ARTICLE XXVIII - General Provisions 23
ARTICLE XXIX - Warranty and Authority 24
ARTICLE XXX.- Master Lease Termination Agreement 24
ARTICLE XXXI - Complete Agreement 25
-ii-
LEASE
THIS LEASE, made and entered into by and between 7655 Corporation, ("Landlord"),
and Simon Property Group, L.P., ("Tenant"), as of the 1st day of January, 1999
("Effective Date").
WITNESSETH:
IN CONSIDERATION of the payments of rents and other charges provided for herein
and the covenants and conditions hereinafter set forth, Landlord and Tenant
hereby covenant and agree as follows:
ARTICLE I Basic Lease Information
1.1. This Article I is an integral part of this Lease and all of the terms
hereof are incorporated into this Lease in all respects. In addition to the
other provisions which are elsewhere defined in this Lease, the following,
whenever used in this Lease, shall have the meanings set forth in this Section
1.1:
1.1.1. Building: Southwoods Executive Centre, 100 DeBartolo Place,
situated in the Township of Boardman, County of Mahoning,
State of Ohio .
1.1.2. Premises: Approximately seven thousand ninety-two (7,092)
square feet of Floor Area (irregular in shape) on the ground
floor and approximately thirty- three thousand six hundred
eighteen (33,618) square feet of Floor Area (irregular in
shape) on the first floor of the Building, located
approximately as delineated in red on Exhibit "A" hereto
(Article III).
1.1.3. Office Space: A portion of the Premises consisting of
approximately three thousand six hundred sixty-seven (3,667)
square feet of Floor Area (irregular in shape) on the ground
floor and approximately thirty-three thousand (33,000) square
feet of Floor Area (irregular in shape) on the first floor of
the Building, located approximately as delineated in yellow on
Exhibit "A" hereto (Article III).
1.1.4. Storage Space: A portion of the Premises consisting of
approximately three thousand four hundred twenty-five (3,425)
square feet of Floor Area (irregular in shape) on the ground
floor, located approximately as delineated in green on Exhibit
"A" hereto (Article III).
1.1.5. Initial Term: Three (3) Lease Years following the Effective
Date (Article IV).
1.1.6. Renewal Terms: Two (2) consecutive periods of two (2) Lease
Years each (Article IV).
1.1.7. Term: The Initial Term, together with the Option Term(s), if
exercised (Article IV).
1.1.8. Minimum Rent:
--------------------------------------------------------------
Term Annual Minimum Rent
--------------------------------------------------------------
Initial Term Eleven and 50/100 Dollars ($11.50) per square
foot of Floor Area within the Office Space and
Five and no/100 Dollars ($5.00) per square
foot of Floor Area within the Storage Space
--------------------------------------------------------------
-1-
- --------------------------------------------------------------------------------
--------------------------------------------------------------
First Renewal Term Twelve and 50/100 Dollars ($12.50) per
square foot of Floor Area and Five and
no/100 Dollars ($5.00) per square foot
of Floor Area within the Storage Space
--------------------------------------------------------------
(Article V).
1.1.9. Permitted Use: The Premises shall be occupied and used for the
purpose of general office purposes and for no other purpose
(Article VIII).
1.1.10. Notice Address:
(i) Landlord: 7620 Market Street, Post Office Box 9128,
Youngstown, Ohio 44513-9128;
(ii) Tenant: 115 West Washington Street, Indianapolis IN
46204 (Article XXVII).
1.2. Reference to Articles and Exhibits appearing in Section 1.1 are
intended to designate some of the other places in this Lease where additional
provisions applicable to the particular Lease provision appear. These references
are for convenience only and shall not be deemed all inclusive. Each reference
in this Lease to any of the Lease provisions contained in Section 1.1 shall be
construed to incorporate all of the terms provided for under such provisions and
such provisions shall be read in conjunction with all other provisions of this
Lease applicable thereto. If there is any conflict between any of the Lease
provisions set forth in Section 1.1 and any other provisions of this Lease, the
latter shall control.
ARTICLE II Definition of Terms
2.1. "Lease Year" shall mean each twelve (12) month period beginning with
the Effective Date, and each anniversary thereof. "Partial Lease Year" shall
mean any period of less than twelve (12) full calendar months.
2.2. "Floor Area" shall mean the "usable area" as such term is defined in
the American National Standard Method for Measuring Floor Area in Office
Buildings, ANSI Z65.1 -- 1989, approved June 21, 1989, by American National
Standards Institute, Inc. and commonly known as the "BOMA Standard."
2.3. "Landlord's Parcel" shall mean that portion (or portions) of the land
delineated in red on Exhibit "B-1" hereto and more particularly described in
Exhibit "B-2" hereto and the buildings and other improvements thereon which at
any time in question Landlord owns or which Landlord leases as tenant under a
sale leaseback or under a ground lease or sublease.
2.4. "Common Areas" shall mean all areas, facilities and improvements
provided from time to time for the general common use or benefit of the tenants
and other occupants, their officers, agents, employees, invitees and customers,
including, without limitation, all parking areas, roadways, pedestrian
sidewalks, truckways, access roads, driveways, ramps, loading docks, delivery
areas, parking lots and garages, courts, service corridors, hallways, roofs,
concourses, landscaped and vacant areas, elevators and escalators and stairs not
contained in leased areas, retaining walls, drinking fountains, public restrooms
and comfort stations, lounges, first aid stations, directory equipment,
information facilities, public meeting rooms, auditoriums, maintenance rooms,
Building management office rooms, lighting facilities, storm and sanitary sewer
systems, utility lines, and water filtration and treatment facilities,
including, but not limited to, disposal plants and lift stations and retention
ponds or basins, located within Landlord's Parcel.
-2-
ARTICLE III Premises
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
Premises. The Premises consist of both the Office Space and the Storage Space.
Nothing herein shall be deemed to distinguish the rights and obligations of
Landlord and Tenant between the Office Space and the Storage Space, the sole
reason for the distinction between such portions of the Premises being the
difference in applicable rate of Minimum Rent as provided in Section 5.2. The
Premises shall be deemed not to include either the land lying thereunder or the
exterior walls or roof of the Building.
ARTICLE IV Term of Lease
4.1. TO HAVE AND TO HOLD for a term to commence as of the Effective Date
and ending after the expiration of three (3) Lease Years set forth in Article I,
unless extended as provided in Section 4.2 hereof, or sooner terminated as
herein provided. Upon the request of either party, the parties hereto shall join
in the execution of an agreement stipulating the expiration date of the Initial
Term.
4.2. Provided no Event of Default has occurred with respect to Tenant and
is then continuing, Tenant may extend the Term for one (1) consecutive term (the
"First Renewal Term")of two (2) Lease Years by giving notice of its intention to
do so to Landlord. Provided no Event of Default has occurred with respect to
Tenant and is then continuing, and Tenant elects to extend the Term for the
First Renewal Term as aforesaid, then Tenant may further extend the Term for one
(1) further consecutive term (the "Second Renewal Term")of two (2) Lease Years
by giving an additional notice of its intention to do so to Landlord. Any such
notice of extension must be given by Tenant and received by Landlord at least
one (1) year prior to the expiration of the Initial Term, and, if Tenant elects
to extend the Term as aforesaid, at least one (1) year prior to the expiration
of this Lease as extended, the timeliness of such receipt being the essence of
this Article. Said renewal(s) shall be upon all the terms and provisions of this
Lease except that no further renewals or options shall be included, and the
Minimum Rent for the Renewal Period(s) shall be as provided in Section 5.2.
ARTICLE V Minimum Rent
5.1. Tenant shall pay to Landlord from and after the Effective Date the
Minimum Rent in equal monthly installments, all in advance, on the first day of
every calendar month during the Term. If the Effective Date should occur on a
day other than the first day of the month or if the Term ends on a day other
than the last day of the month, Tenant shall pay Minimum Rent and all items of
additional rent prorated based upon the number of rental days in such fractional
month over the number of days contained in such month.
5.2. During the Initial Term and the First Renewal Term, Tenant shall pay
Minimum Rent at the annual minimum rent rates set forth in Section 1.1, as
provided in Section 5.1. If Tenant elects to extend the Term for the Second
Renewal Term, Tenant shall pay Minimum Rent during the Second Renewal Term equal
to the Market Rent. The term "Market Rent" means the amount of rent that would
be charged for comparable premises with comparable levels of finish in a
suburban location in the Youngstown, Ohio metropolitan area, assuming a lease
containing terms and conditions (other than Minimum Rent) comparable to this
Lease. Promptly after delivery of Tenant's notice, Landlord and Tenant shall
seek to agree upon the Market Rent. If Landlord and Tenant are unable to reach
agreement upon the Market Rent within sixty (60) days after delivery of Tenant's
notice, either Landlord or Tenant may institute the appraisal procedure set
forth herein by notice to the other party. In the event the parties are unable
to mutually agree upon the Market Rent within thirty (30) days of the date the
appraisal procedure of this Section 5.2 is instituted as provided in this
Agreement, they shall each select one (1) appraiser to determine the Market
Rent. Each appraiser so selected shall furnish Landlord and Tenant with a
written appraisal within thirty (30) days of his or her selection, setting forth
his or her determination of Market Rent. If only one appraisal is submitted
within the requisite time period, the determination of the Market Rent pursuant
to such appraisal shall be final and binding on Landlord and Tenant. If both
appraisals are submitted within such time period, and if the two appraisals so
submitted differ by less than ten percent (10%) of the lower of the two, the
average of the two (2) shall be the determination of fair
-3-
market value and shall be final and binding on Landlord and Tenant. If the two
appraisals differ by more than ten percent (10%) of the lower of the two (2),
then the two (2) appraisers shall immediately select a third appraiser who shall
within thirty (30) days after his or her selection make a determination of the
Market Rent and submit such determination to Landlord and Tenant. The third
appraisal will then be averaged with the closer of the two (2) previous
appraisals and the result shall be the determination of fair market value and
shall be final and binding on Landlord and Tenant, unless the first two (2)
appraisals differ from the third appraisal by the same amount, in which case the
first two (2) appraisals shall be disregarded and the determination of the fair
market value pursuant to the third appraisal shall be final and binding on
Landlord and Tenant. All appraisers appointed pursuant to this Section 5.2 shall
be professional commercial real estate appraisers, experienced in the appraisal
of office properties in the northeast Ohio region. The cost of each appraiser
shall be borne by equally by Landlord and Tenant.
5.3. At any time during the Initial Term, either Landlord or Tenant may
elect to cause a licensed engineering or architectural firm measure and
calculate the Floor Area contained within the Premises, the Office Space and the
Storage Space. Such engineering or architectural firm shall certify its
measurements and calculations to Landlord and Tenant. Unless and until such
determination is made, the Floor Area of the Premises shall be deemed to be
forty thousand (40,000) square feet, the Floor Area of the Office Space shall be
deemed to be thirty-six thousand six hundred sixty-seven (36,667) square feet,
and the Floor Area of the Storage Space shall be deemed to be three thousand
four hundred twenty-five (3,425) square feet.
5.4. If Tenant shall fail to pay any installment of Minimum Rent or any
item of additional rent within ten (10) days after the date the same become due
and payable, then Tenant shall pay to Landlord a late payment service charge
("Late Charge") covering administrative and overhead expenses equal to the
greater of (a) Two Hundred Fifty and 00/100 Dollars ($250.00), or (b) five cents
(5) per each dollar so overdue. The provision herein for the payment of the Late
Charge shall not be construed to extend the date for payment of any sums
required to be paid by Tenant hereunder or to relieve Tenant of its obligation
to pay all such sums at the time or times herein stipulated.
5.5. All sums, other than Minimum Rent, payable under any provisions of
this Lease shall be deemed additional rent, and upon failure of Tenant to pay
any such sum, Landlord shall be entitled to exercise any and all rights and
remedies contained herein or at law for the failure to pay Minimum Rent.
ARTICLE VI Condition of Premises
Tenant has inspected the Premises prior to executing this Lease and accepts
the Premises on an "as is," "where is" basis and with all faults, and Tenant
expressly acknowledges that, in consideration of the agreements of Landlord
herein, except as otherwise specified herein, Landlord makes no warranty or
representation, express or implied, or arising by operation of law, including,
but not limited to, any warranty of condition, habitability, merchantability,
tenantability or fitness for a particular purpose, in respect of the Premises,
the Building or Landlord's Parcel. Tenant waives and releases any claim that
Tenant or any of its successors, assigns, or tenants may have against Landlord
now or in the future arising from or relating to any condition, including any
environmental condition, within the Premises or Building or on Landlord's
Parcel.
ARTICLE VII Use of Premises
7.1. Tenant represents, warrants and covenants as follows:
7.1.1. The Premises shall be occupied and used only for the
Permitted Use.
7.1.2. Throughout the Term, Tenant shall operate its business at
the Premises in a respectable, reputable, tasteful,
competent and dignified manner in a manner consistent with
Tenant's prior conduct.
-4-
7.1.3. Landlord is executing this Lease in reliance upon the
covenants contained in this Section 7.1 and such covenants
are a material element of the consideration inducing
Landlord to enter into and execute this Lease.
Nothing in this Lease shall be construed as creating an obligation for Tenant to
continuously occupy all or any portion of the Premises. If Tenant ceases
occupying any material portion of the Premises, Tenant shall notify Landlord and
shall secure such portion against intrusion by unauthorized personnel.
7.2. Tenant shall abide by all reasonable rules and regulations
established by Landlord, from time to time, with respect to the use and care of
the Premises and Landlord's Parcel, including the Building and all Common Areas,
and shall:
7.2.1. Conduct no auction, fire or bankruptcy sales or similar
practices.
7.2.2. Not in any way obstruct the hallways within or sidewalks
adjacent to the Building and store all trash and refuse in
appropriate containers within the Premises. Tenant shall not
burn any trash or rubbish in or about the Premises or
anywhere else within the confines of the Landlord's Parcel.
7.2.3. Load or unload all supplies, fixtures, equipment and
furniture only through the entrances designated by Landlord
for such activities. Tenant shall not permit trailers or
trucks servicing the Premises to remain parked on Landlord's
Parcel beyond those periods necessary to service Tenant's
operations.
7.2.4. Not permit any rubbish or refuse of any nature emanating
from the Premises to accumulate; and not permit the plumbing
facilities within or servicing the Premises to be used for
any purposes other than that for which they were
constructed, and no foreign substances of any kind shall be
thrown therein.
7.2.5. Not solicit business in Common Areas or distribute any
handbills or other advertising matter in the Common Areas.
7.2.6. Prevent the Premises from being used in any way which may be
a nuisance, annoyance, inconvenience or damage to the other
tenants or occupants of the Building, including, without
limiting the generality of the foregoing, the operation of
any instrument or apparatus or equipment or the emission of
an odor discernible outside of the Premises and which may be
deemed offensive in nature or noise by the playing of any
musical instrument or radio or television or the use of a
microphone, loudspeaker, electrical equipment or other
equipment which may be heard outside of the Premises.
Landlord acknowledges that (i) odors from coffee makers and
occasional cooking odors from the operation of the limited
kitchen facility Tenant has constructed within the Premises;
and (ii) customary ammonia odors from the normal operation
of the blueprint machines installed by Tenant shall not be
deemed to be a violation of the preceding provision.
7.2.7. Not use, occupy, suffer or permit the Premises or any part
thereof to be used or occupied for any purpose which may be
contrary to law or to the rules or regulations of any public
authority or which may be prohibited by or violate any of
Landlord's insurance policies or the rules or regulations of
the Fire Insurance Rating Organization having jurisdiction
or any similar body of which Tenant has actual knowledge, or
which will increase any insurance rates and premiums on the
Premises, the Building or any other buildings or
improvements on Landlord's Parcel.
-5-
7.2.8. Promptly comply with all present and future laws,
regulations or rules of any county, state, federal and other
governmental authority and any bureau and department
thereof, and of the National Board of Fire Underwriters or
any other body exercising similar function which may be
applicable to the Premises and Tenant's specific use
thereof, subject to the supervision of Landlord, excluding
the making of any required changes to structural and other
components of the Building which are Landlord's obligation
to maintain hereunder. If Tenant shall install any
electrical equipment that overloads the lines in the
Premises, Tenant shall make whatever changes are necessary
to comply with the requirements of the insurance
underwriters and governmental authorities having
jurisdiction thereover.
7.2.9. Not specify or use or permit its architect, contractors,
subcontractors or any parties performing any work on behalf
of Tenant to specify or use any materials known, at the time
of such work, to contain any hazardous substance or
explosive, carcinogenic or otherwise environmentally
impacting materials, other than those that are usual and
customary in connection with the construction of any
alterations, improvements or additions, the plans and
specifications of which have been approved by Landlord
(which approval shall be not unreasonably withheld or
delayed) and provided, that the use, storage,
transportation, handling and disposal of such substances
shall at all times be in accordance with all applicable
federal, state, and local laws, statutes, ordinances, rules
and regulations. Upon completion of such work, Tenant, its
architect, contractor, subcontractor or other performing
party, as the case may be, shall deliver to Landlord or
Landlord's designee a certification stating that no,
hazardous substance or explosive, carcinogenic or otherwise
environmentally impacting materials have been specified or
used in such work except as permitted herein. Tenant shall
obligate its architect, contractor, subcontractor or other
performing party to provide such certification.
7.2.10. Not store, handle, use, sell, generate or release either
directly or indirectly on the Premises or elsewhere on
Landlord's Parcel, any hazardous substances. The term
"hazardous substances" shall mean any hazardous or toxic
substances, materials or wastes regulated under any federal,
state or local statute, ordinance, rule, regulation or other
law now or hereafter in effect pertaining to environmental
protection, contamination, remediation or worker safety,
including, without limitation, any substance, waste or
material, which now or hereafter (i) is listed by the United
States Department of Transportation or by the Environmental
Protection Agency as a "hazardous substance"; (ii) is
designated as a "hazardous substance" under or pursuant to
the Federal Water Pollution Control Act, as amended; (iii)
is defined as a "hazardous waste" under or pursuant to the
Resource Conservation and Recovery Act, as amended; (iv) is
defined as a "hazardous substance" under or pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act, as amended; or (v) is similarly designated or
defined under or pursuant to the Superfund Amendments and
Reauthorization Act and all other federal, state and local
laws relating in any way to the protection of the
environment. Upon notice to Tenant, Landlord may conduct an
environmental audit or similar related procedure of the
Premises. Notwithstanding the foregoing provisions, Tenant
will be using lubricants and cleaners, as well as other
items which are usual and customary in Tenant's type of
business, but not in any quantity greater than that which
would be found in a similar type business, which may be
deemed hazardous substances under the above definition.
Landlord consents to the presence and use of the same on the
Premises; provided, however, that the use, storage,
transportation, handling and disposal of such substances by
Tenant shall at all
-6-
times be in accordance with all applicable federal, state,
and local laws, statutes, ordinances, rules and regulations.
Landlord acknowledges that, as of the Effective Date and to the actual
knowledge of Landlord, Tenant's occupancy of the Premises for the Permitted Use
does not violate the provisions of this Article VII.
7.3. If Tenant fails to keep or perform any covenant or term included in
Section 7.3 or violates any such covenant or term, and if Tenant fails to cure
such failure or violation promptly upon receipt of notice from Landlord and with
all due diligence, Landlord may, in addition to any and all other remedies
Landlord may have under this Lease or at law or in equity, cure or prosecute the
curing of such failure or violation and all third party expenses in connection
with such cure or prosecution of such cure of such failure or violation,
including without limitation legal fees, shall be paid by Tenant with the next
installment of Minimum Rent due under this Lease.
ARTICLE VIII Alterations
Tenant shall not make any alterations, improvements or additions of any
kind or nature to the Premises or any part thereof which affect the structural
components, mechanical, electrical or HVAC components or the roof of the
Building except with the prior approval of Landlord, which approval shall be in
Landlord's sole discretion. Tenant may make material alterations, improvements
or additions to the Premises or any part thereof which do not affect the
structural components, mechanical, electrical or HVAC components or the roof of
the Building, provided Tenant has received the prior approval of Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed. Tenant may
make alterations, improvements or additions to the Premises or any part thereof
which are not material and do not affect the structural components, mechanical,
electrical or HVAC components or the roof of the Building, without prior
approval of Landlord. All alterations, improvements and additions to the
Premises shall be made in accordance with the plans and specifications prepared
by Tenant and approved by Landlord and in accordance with all applicable
building codes. The approval by Landlord of the plans and specifications shall
not constitute the assumption of any liability on the part of Landlord for their
compliance or conformity with applicable building codes and the requirements of
this Lease or for their accuracy, and Tenant shall be solely responsible for
such plans and specifications. Such alterations, improvements and additions to
the Premises shall be done in a good workmanlike manner using first-quality
materials and shall at once when made or installed be deemed to have attached to
the fee and to have become the property of Landlord (excluding all of Tenant's
furniture, fixtures and equipment, regardless of the method of installation in
the Premises) and shall remain for the benefit of Landlord at the end of the
Term, or other expiration of this Lease, in as good order and condition as they
were when installed, reasonable wear and tear excepted. Tenant shall require its
contractor and subcontractors to furnish Landlord Certificates of Insurance
evidencing insurance coverages with the limits as specified and referenced in
Exhibit "C".
ARTICLE IX Maintenance of Premises, Indemnification and Insurance
9.1. Provided no Event of Default has occurred and is continuing, Landlord
shall furnish Tenant with the services listed below during business hours.
9.1.1. Elevator and escalator service.
9.1.2. Electric facilities for lighting and small standard business
machines as currently available in the Premises. Landlord
will furnish the original installation of lamps or bulbs.
Replacement of lamps or bulbs, ballasts and starters shall
be at Tenant's expense.
9.1.3. Heating, ventilating and air conditioning, electric, water,
and sewer services as currently available in the Premises.
-7-
9.1.4. Cleaning, janitorial and window washing services standard
for the Premises and Building's Common Areas, Monday through
Friday, inclusive but excluding New Years Day, Memorial Day,
the Fourth of July, Labor Day, Thanksgiving Day, and
Christmas Day.
The term "business hours" as used herein shall mean Monday through Friday,
inclusive, from 8:00 A.M. to 6:00 P.M. and from 9:00 A.M. to 2:00 P.M. on
Saturday, but excluding New Years Day, Memorial Day, the Fourth of July, Labor
Day, Thanksgiving Day, and Christmas Day. Tenant shall have access to the
Premises on all days of the year and all hours per day. If Tenant chooses to
operate areas of the Premises, other than its computer area, beyond the stated
business hours, Tenant may notify Landlord at least twenty-four (24) hours in
advance and Landlord shall provide the aforesaid services to such areas of the
Premises and Tenant will pay monthly, as billed, the sum of One Hundred Dollars
($100.00) per hour for such services. Provision of services at other times shall
be at Landlord's option and when so provided shall never be deemed a continuing
obligation of Landlord. Any new or additional electrical, plumbing or other
facilities required to service equipment installed by Tenant and all changes in
existing electrical, plumbing, mechanical and other facilities required by
Tenant (if permitted) shall be installed, furnished or made at Tenant's expense
in accordance with Article VIII. Landlord, while not warranting that any of the
above services will be free from interruptions or suspensions caused by repairs,
renewals, improvements, alterations, strikes, lockouts, accidents, inability of
Landlord to procure such service or to obtain fuel or supplies, or for other
cause or causes beyond Landlord's reasonable control, will nevertheless
diligently attempt to make such repairs or renewals to Building distribution
lines and facilities as may be required to restore any such service so
interrupted or suspended, and shall do so in a manner calculated to minimize, to
the extent commercially practicable, any interference with or interruption in
Tenant's use and occupancy of the Premises in accordance with this Lease. An
interruption or suspension of, or fluctuation in, any service resulting
aforesaid cause or causes shall not be construed as an eviction or disturbance
of possession or as an election by Landlord to terminate this Lease, nor shall
Landlord be in any way responsible or liable for damages, nor shall Tenant be
relieved from the performance of Tenant's obligations under this Lease.
Notwithstanding the foregoing, if an interruption or suspension of, or
fluctuation in, any service resulting from the aforesaid cause or causes shall
render the Premises untenantable for a period of forty-eight (48) hours the
Minimum Rent hereunder shall be abated until such service is resumed.
9.2. Except for those items which Landlord is expressly obligated to
maintain or repair hereunder, Tenant shall keep and maintain in good order,
condition and repair the Premises and every part thereof and the fixtures and
improvements therein. If Tenant refuses or neglects to commence or complete any
of the obligations above set forth promptly and with reasonable diligence
following receipt of notice from Landlord describing the nature of such failure,
Landlord may, but shall not be required to, make or complete said maintenance or
repairs and Tenant shall pay the reasonable cost thereof to Landlord upon demand
as additional rent.
9.3. Tenant represents, warrants and covenants as follows:
9.3.1. Tenant shall protect, defend, indemnify, save and hold
harmless Landlord and any fee owner or ground or underlying
landlords of Landlord's Parcel, or of the Building, against
and from any and all claims, liabilities, demands, fines,
suits, actions, proceedings, orders, decrees and judgments
of any kind or nature by, or in favor of, anyone whomsoever,
and against and from any and all costs, damages and
expenses, including reasonable attorneys' fees, resulting
from, or in connection with, loss of life, bodily or
personal injury or property damage arising, directly or
indirectly, out of, or from, or on account of: (i) any
accident or other occurrence in, upon, at or from the
Premises, or occasioned in whole or in part through the use
and occupancy of the Premises or any improvements therein or
appurtenances thereto, including, without limitation, the
negligence of Landlord (but excluding the gross negligence
or willful misconduct of Landlord), or by any act or
omission of Tenant or any subtenant, concessionaire or
licensee of Tenant, or their respective employees, agents,
contractors or
-8-
invitees in, upon, at or from the Premises or its
appurtenances or any Common Areas; or (ii) any action of
Landlord or Landlord's agents or employees which is taken in
reliance upon any act, omission or statement of Tenant or
any subtenant, concessionaire or licensee of Tenant, or
their respective employees, agents or contractors.
9.3.2. Tenant, and all those claiming by, through and under Tenant,
shall store their property in and shall occupy and use the
Premises and any improvements therein and appurtenances
thereto, and all other portions of the Landlord's Parcel,
solely at their own risk, and except as set forth in Section
9.7 below, Tenant, and all those claiming by, through or
under Tenant, hereby release Landlord, to the full extent
permitted by law, from all claims of every kind, including
loss of life, personal or bodily injury, damage to
merchandise, equipment, fixtures or other property, or
damage to business or for business interruption, arising,
directly or indirectly, out of, or from, or on account of,
such occupancy and use, including, without limitation, the
negligence of Landlord, or resulting from any present or
future condition or state of repair thereof. The foregoing
sentence shall not be construed to exculpate Landlord from
liability for the failure to perform its contractual
obligations under this Lease.
9.3.3. Landlord shall not be responsible or liable at any time to
Tenant, or to those claiming by, through or under Tenant,
for any loss of life, bodily or personal injury, or damage
to property or business, or for business interruption, that
may be occasioned by any failure by any tenants or occupants
of Landlord's Parcel to comply with any of the terms of
their leases or agreements or that may be occasioned by or
through the acts, omissions or negligence of any other
persons, or any other tenants or occupants of Landlord's
Parcel; and Tenant hereby expressly waives any claim for
such damages against Landlord.
9.3.4. Landlord shall not be responsible or liable at any time for
any defects, latent or otherwise, in any buildings or
improvements in Landlord's Parcel or any of the equipment,
machinery, utilities, appliances or apparatus therein, nor
shall Landlord be responsible or liable at any time for loss
of life, or injury or damage to any person or to any
property or business of Tenant, or those claiming by,
through or under Tenant, caused by, or resulting from, the
bursting, breaking, leaking, running, seeping, overflowing
or backing up of water, steam, gas, sewage, snow or ice in
any part of the Premises or caused by, or resulting from,
acts of God or the element, or resulting from any defect or
negligence in the occupancy, construction, operation or use
of any buildings or improvements in Landlord's Parcel,
including the Premises, or any of the equipment, fixtures,
machinery, appliances or apparatus therein. The foregoing
sentence shall not be construed to exculpate Landlord from
liability for the failure to perform its contractual
obligations under this Lease.
9.3.5. Tenant shall give prompt notice to Landlord in case of fire
or other casualty or accidents in the Premises, or in the
building of which the Premises forms a part, or of any
defects therein or in any of Landlord's fixtures, machinery
or equipment.
9.4. Landlord shall procure and continue in force from and after the
earlier to occur of the date Landlord delivers possession of the Premises to
Tenant, or the date Tenant enters upon the Premises, and throughout the Term:
(a) Workers Compensation coverage as required by the state of Ohio and Employers
Liability coverage with a limit of not less than One Million Dollars
($1,000,000) per accident and per employee; (b) Commercial General Liability
Insurance on an Occurrence form including Products/Completed Operations,
Personal/Advertising Injury and Fire Damage Liability coverages, with a
-9-
limit of not less than One Million Dollars ($1,000,000) per occurrence; (c)
Umbrella or Excess insurance in an amount of not less than Five Million Dollars
($5,000,000); (d) Property insurance with Special Causes of Loss (All Risk) form
in an amount to cover the full replacement value of the Building; and (e)
property insurance with Special Causes of Loss (All Risk) form in an amount to
cover the full replacement value of the fixtures, furnishings, wallcoverings,
carpeting, drapes, equipment and all other items of personal property of
Landlord located on or within the Landlord's Parcel and the Building. The
policies required under the preceding clauses (b) and (c) shall name Tenant as
an additional insured. All such insurance policies shall contain the following
endorsements: (a) that such insurance may not be canceled or amended with
respect to Tenant except upon thirty (30) days prior notice from the insurance
company to Tenant; (b) that Landlord shall be solely responsible for the payment
of all premiums under such policy and that Tenant shall have no obligation for
the payment thereof; and (c) a waiver of subrogation as required in Section
12.4.
9.5. Tenant shall procure and continue in force from and after the earlier
to occur of the date Landlord delivers possession of the Premises to Tenant, or
the date Tenant enters upon the Premises, and throughout the Term: (a) Workers
Compensation coverage as required by the state in which the Premises is located
and Employers Liability coverage with a limit of not less than One Million
Dollars ($1,000,000) per accident and per employee; (b) Commercial General
Liability Insurance on an Occurrence form including Products/Completed
Operations, Personal/Advertising Injury and Fire Damage Liability coverages,
with a limit of not less than One Million Dollars ($1,000,000) per occurrence;
(c) Umbrella or Excess insurance in an amount of not less than Five Million
Dollars ($5,000,000); (d) Property insurance with Special Causes of Loss (All
Risk) form in an amount to cover the full replacement value of all improvements
provided by Tenant and the full replacement value of Tenant's trade fixtures,
furnishings, wallcoverings, carpeting, drapes, equipment and all other items of
personal property of Tenant located on or within the Premises.
9.6. All insurance policies required under (i) clause (a) of Section 9.5,
as it relates to Employers Liability insurance, (ii) clauses (b) and (c) of
Section 9.5 and (iii) Exhibit "C" shall name Landlord, Landlord's property
manager and Landlord's designee(s) as additional insureds, and shall be
considered primary insurance applying without the contribution of any other
insurance which may be available to Landlord, Landlord's property manager or
Landlord's designee(s). All insurance policies required under clauses (d) and
(e) of Section 9.5 shall be issued in the names and for the benefit of Landlord,
Landlord's property manager, Landlord's designee(s) and Tenant. All insurance
policies shall be issued by one or more insurance companies rated A VI or better
by the A.M. Best Co. and licensed to do business in the state of Ohio. At
Tenant's option, such insurance may be carried under a blanket policy covering
the Premises and any other of Tenant's properties provided the provisions of
such blanket policy comply with the terms of this Lease and coverage with
respect to the Premises is as provided in Section 9.5. The Commercial General
liability insurance shall specifically insure Tenant's liability under Section
9.3 hereof. All insurance policies required under Section 9.5 shall contain the
following endorsements: (a) that such insurance may not be canceled or amended
with respect to Landlord, Landlord's property manager and Landlord's designee(s)
except upon thirty (30) days prior notice from the insurance company to
Landlord; (b) that Tenant shall be solely responsible for the payment of all
premiums under such policy and that Landlord shall have no obligation for the
payment thereof; and (c) a waiver of subrogation as required in Section 12.4. In
the event of payment of any loss covered by any property damage policy, Landlord
shall be paid first by the insurance company for its loss. Tenant shall deliver
to Landlord, original Certificates of Insurance evidencing insurance policies
required under Section 9.5 and endorsements required by Section 9.6 within ten
(10) days of the inception of such policies and endorsements. At least ten (10)
days prior to the expiration of any such policies and endorsements, Tenant shall
deliver to Landlord original Certificates of Insurance evidencing the renewal of
such policies and endorsements. The minimum limits of any insurance coverage to
be maintained by Tenant hereunder shall not limit Tenant's liability under
Section 9.3 or elsewhere in this Lease.
9.7. Landlord shall protect, defend, indemnify, save and hold harmless
Tenant against and from any and all claims, liabilities, demands, fines, suits,
actions, proceedings, orders, decrees and judgments of any kind or nature by, or
in favor of, anyone whomsoever, and against and from any and all costs, damages
and expenses, including reasonable attorneys' fees, resulting from, or in
connection with,
-10-
loss of life, bodily or personal injury or property damage arising, directly or
indirectly, out of, or from, or on account of: (i) any accident or other
occurrence in, upon, at or from the Landlord's Parcel or the Building, excluding
the Premises, or occasioned in whole or in part through the use and occupancy of
the Landlord's Parcel or the Building, excluding the Premises or any
improvements therein or appurtenances thereto, including, without limitation,
the negligence of Tenant (but excluding the gross negligence or willful
misconduct of Tenant), or by any act or omission of Landlord, or Landlord's
employees, agents, contractors or invitees in, upon, at or from the Landlord's
Parcel or the Building, excluding the Premises; or (ii) any action of Tenant or
Tenant's agents or employees which is taken in reliance upon any act, omission
or statement of Landlord or Landlord's employees, agents or contractors.
ARTICLE X Common Areas
10.1. Landlord hereby grants to Tenant, its employees, invitees and
permitted sublessees and assigns, during the Term, the nonexclusive right to
use, in common with all others so entitled, the Common Areas for pedestrian and
vehicular traffic. The Common Areas shall be subject to the exclusive control
and management of Landlord and to such reasonable rules and regulations as
Landlord may, from time to time, adopt and Landlord reserves the right to change
the areas, locations and arrangement of parking areas and other Common Areas; to
enter into, modify and terminate easements and other agreements pertaining to
the maintenance and use of the parking areas and other Common Areas; to close
any or all portions of the Common Areas to such extent and for such time as may,
in the sole discretion of Landlord's counsel, be legally necessary to prevent a
dedication thereof or the accrual of any rights to any person or to the public
therein; to close temporarily, if necessary, any part of the Common Areas in
order to discourage noncustomer parking; and to make changes, additions,
deletions, alterations or improvements in and to such Common Areas, including
methods of ingress to and egress from such Common Areas, provided that there
shall be no material obstruction of Tenant's right of ingress to or egress from
the Premises, nor shall there be any change in the location of the primary
entrances to the Building, or in the configuration of the interior Common Areas
providing access and ingress and egress to and from the Premises, or in the
configuration of the parking areas set aside for Tenant's use as provided in
Section 10.3. Landlord shall enforce any rules and regulations adopted in a
nondiscriminatory manner.
10.2. Subject to the express provisions and limitations of this Lease,
Landlord shall operate, maintain and repair all Common Areas and all major
Building components, including structural, mechanical, electrical and heating,
ventilating and air conditioning systems, in a manner consistent with the
standards of operation, maintenance and repair employed by Tenant during its
occupancy under that certain lease agreement captioned "Lease" between Landlord
and Tenant, dated June 1, 1995, as amended
10.3. Tenant shall cause it and its employees to park only in the areas of
the parking lot as provided and designated from time to time by Landlord for
employee parking. Tenant shall have the exclusive right to use those spaces in
the southeast parking lot numbered 1, 2, 3, 4, 5, 8, 9, 23, 24, 25, 26, 27, 28,
29, 40, 41, 42 and 43 and the handicapped space marked "Stone" (provided it is
used only by a disabled employee) on Exhibit "B-3" for parking of its vehicles
and those of its employees. Within ten (10) days after a request by Landlord,
Tenant shall deliver to Landlord a list of Tenant's and its employees'
automobiles, which such list shall set forth the description of and the license
numbers assigned to such automobiles and their state of issue. Thereafter,
Tenant shall promptly advise Landlord of any changes, additions or deletions in
such list. If any automobile appearing on said list is parked in any area of the
Landlord's Parcel other than the area designated by Landlord at any time after
Landlord has given notice to Tenant that the same automobile has previously been
parked in violation of this provision, then Tenant shall pay to Landlord the sum
of Ten Dollars ($10) per day for each such automobile for each day (or part
thereof) it is parked in violation of this provision. Tenant shall pay such sum
to Landlord within ten (10) days after receipt of notice from Landlord. In
addition to the foregoing, Tenant hereby authorizes Landlord in such event to
attach violation stickers or notices to any of Tenant's automobiles, or
automobiles belonging to Tenant's employees parked in violation of the foregoing
covenant and to remove from the Landlord's Parcel at Tenant's cost and expense
any such automobiles that are parked in parking spaces designated by Landlord as
"Visitor" spaces or for the exclusive use of
-11-
other tenants of the Building. Tenant hereby waives and releases Landlord and
hereby indemnifies and holds Landlord harmless from all claims, liabilities,
costs and expenses which may arise therefrom.
ARTICLE XI Mechanic's Lien or Claims
Tenant shall not permit to be created nor to remain undischarged any lien,
encumbrance or charge arising out of any work of any contractor, mechanic,
laborer or materialman which might be or become a lien or encumbrance or charge
upon the Premises or Landlord's Parcel or the income therefrom and Tenant shall
not suffer any other matter or thing whereby the estate, right and interest of
Landlord in the Premises or in Landlord's Parcel might be impaired. Landlord's
Parcel shall be subject to attachment. Tenant shall include in all contracts and
subcontracts for work to be performed on Tenant's behalf at the Premises
provisions wherein such contractor or subcontractor acknowledges that Landlord
has no liability under such contracts and subcontracts and that such contractor
or subcontractor waives, to the fullest extent permitted by law, any right it
may have to lien or attach Landlord's Parcel. If any lien or notice of lien on
account of an alleged debt of Tenant or any notice of contract by a party
engaged by Tenant or Tenant's contractor to work in the Premises shall be filed
against the Premises or Landlord's Parcel, Tenant shall, within twenty (20) days
after notice of the filing thereof, cause the same to be discharged of record by
payment, deposit, bond, order of a court of competent jurisdiction or otherwise.
If Tenant shall fail to cause such lien or notice of lien to be discharged
within the period provided, then Landlord, in addition to any other rights or
remedies, may, but shall not be obligated to, discharge the same by either
paying the amounts claimed to be due or by procuring the discharge of such lien
by deposit or by bonding proceedings; and in any such event, Landlord shall be
entitled, if Landlord so elects, to defend any prosecution of an action for
foreclosure of such lien by the lienor or to compel the prosecution of an action
for foreclosure of such lien by the lienor and to pay the amount of the judgment
in favor of the lienor with interest, costs and allowances. Any amount paid by
Landlord and all costs and expenses, including attorneys' fees, incurred by
Landlord in connection therewith shall be paid by Tenant to Landlord on demand.
Nothing in this Lease shall be construed as in any way constituting a consent or
request by Landlord, expressed or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific or general
improvement, alteration or repair of or to the Premises or to any part thereof.
ARTICLE XII Destruction and Restoration
12.1. If the Premises or the Building shall be damaged to the extent of
twenty- five percent (25%) or more of the cost of replacement thereof by any
insured casualty, or damaged by any uninsured casualty, Landlord and Tenant each
shall have the option to terminate this Lease to be exercised by notice to the
other party given not more than three (3) months from the later to occur of the
date of such damage or, if an insured loss, the date Landlord receives its final
insurance adjustment. If neither party elects to rebuild, Landlord shall, at its
expense, proceed to restore the Premises to substantially the state in which it
existed prior to the Effective Date, except that Landlord shall not be obligated
to restore any component that was demolished or replaced by Tenant. All repairs
and restorations of the Premises not so included shall be performed by Tenant in
conformance with Article VII and Exhibit "C". The parties shall promptly
commence and diligently proceed with their restoration obligations hereunder.
12.2. If the Premises shall be damaged to the extent of less than
twenty-five percent (25%) of the cost of replacement by fire or other casualty
covered by Landlord's All Risk Property coverage during the Term, except for the
last year of this Lease, then Landlord shall, at its expense, proceed to restore
the Premises to substantially the state in which it existed prior to the
Effective Date, except that Landlord shall not be obligated to restore any
component that was demolished or replaced by Tenant. All repairs and
restorations of the Premises not so included shall be performed by Tenant in
conformance with Article VII and Exhibit "C". The parties shall promptly
commence and diligently proceed with their restoration obligations hereunder. If
such an event occurs during the last year of this Lease, then Landlord shall
have the option to rebuild or terminate this Lease to be exercised by notice to
Tenant given not more than thirty (30) days from the later to occur of the date
of such damage or the date Landlord receives its final insurance adjustment.
-12-
12.3. In the event of total destruction of the Premises, Tenant's rent
shall completely abate from the date of such destruction. If Landlord elects to
rebuild as aforesaid, Tenant's rent shall completely abate from the date of such
destruction until thirty (30) days after the date when Landlord notifies Tenant
that Landlord's work in the Premises is complete, or upon the date when Tenant
completes its restoration of the Premises, whichever event shall first occur. In
the event of a partial destruction or damage whereby Tenant shall be deprived of
the occupancy and use of only a portion of the Premises, then Minimum Rent shall
be equitably apportioned according to the Floor Area of the Premises which is
unusable by Tenant, until such time as the Premises are repaired or restored as
provided herein.
12.4. Each party hereto ("Releasing Party") hereby releases the other
("Released Party") from any liability which the Released Party would, but for
this Section 12.4, have had to the Releasing Party arising out of or in
connection with any accident or occurrence or casualty (a) which is or would be
covered by an All Risk Property coverage policy, including Sprinkler Leakage
Legal Liability coverage policy, in the state in which the Premises is located
regardless of whether or not such coverage is being carried by the Releasing
Party, and (b) to the extent of recovery under any other casualty or property
damage insurance being carried by the Releasing Party at the time of such
accident or occurrence or casualty, which accident or occurrence or casualty may
have resulted in whole or in part from any act or neglect of the Released Party,
its officers, agents or employees; provided, however, the release hereinabove
set forth shall become inoperative and null and void if the Releasing Party
contracts for the insurance required to be carried under the terms of this Lease
with an insurance company which (a) takes the position that the existence of
such release vitiates or would adversely affect any policy so insuring the
Releasing Party in a substantial manner and notice thereof is given to the
Released Party, or (b) requires the payment of a higher premium by reason of the
existence of such release, unless in the latter case the Released Party, within
ten (10) days after notice thereof from the Releasing Party, pays such increase
in premium.
ARTICLE XIII Property in Premises
13.1. All leasehold improvements done by or on behalf of Tenant, including
the items constructed or installed by Tenant (but excluding Tenant's
furnishings, fixtures, equipment and other personal property), shall when
installed attach to the fee and become and remain the property of Landlord. Such
property shall not be removed unless replaced with like property. Tenant shall
not seek or pursue so-called "industrial revenue bond" financing with respect to
the Premises without the consent of Landlord, which consent shall be given or
withheld in Landlord's sole discretion.
13.2. Tenant shall pay before delinquency any and all taxes assessed
against Tenant's fixtures, furnishings, leasehold improvements, equipment and
stock-in- trade placed in or on the Premises. Any such taxes included in
Landlord's tax bills and paid by Landlord shall be due and payable within ten
(10) days after billings therefor are rendered to Tenant.
ARTICLE XIV Access to Premises
Tenant shall permit Landlord or Landlord's agents to inspect or examine the
Premises at any reasonable time and during the last Lease Year of the Term to
show the Premises to prospective tenants. Tenant shall permit Landlord to make
such repairs, alterations, improvements or additions in the Premises or to the
building of which the Premises is a part, that Landlord may deem desirable or
necessary or which Tenant has covenanted herein to do and has failed so to do
after notice from Landlord, without the same being construed as an eviction of
Tenant in whole or in part and Minimum Rent and all items of additional rent
shall in no manner abate while such repairs, alterations, improvements or
additions are being made by reason of loss or interruption of the business of
Tenant because of the prosecution of such work.
ARTICLE XV Surrender of Premises
-13-
15.1. Tenant shall deliver and surrender to Landlord possession of the
Premises upon expiration of this Lease, or its earlier termination as herein
provided, broom clean, and in good condition and repair, ordinary wear and tear
and damage by fire or the elements beyond Tenant's control excepted.
15.2. Tenant shall remove all property of Tenant, repair all damage to the
Premises caused by such removal and restore the Premises to the condition in
which they were prior to the installation of the articles so removed. Any
property not so removed at the expiration of the Term shall be deemed to have
been abandoned by Tenant, and may be retained or disposed of by Landlord, as
Landlord shall desire.
ARTICLE XVI Utilities
16.1. Landlord shall contract and pay for all utility services rendered or
furnished to the Premises, including heat, air-conditioning, water, gas,
electricity, fire protection, sewer rental, sewage treatment facilities and the
like, together with all taxes levied or other charges on such utilities.
Landlord may, with reasonable prior notice to Tenant, or without notice in the
case of an emergency, cut off and discontinue gas, water, electricity and any or
all other utilities whenever such discontinuance is necessary in order to make
repairs or alterations. Landlord shall use commercially reasonable efforts to
minimize any discontinuance of service. No such action by Landlord shall be
construed as an eviction or disturbance of possession or as an election by
Landlord to terminate this Lease, nor shall Landlord be in any way responsible
or liable under such action. Notwithstanding the foregoing, if an interruption
or suspension of, or fluctuation in, any utility service shall render the
Premises untenantable for a period of forty-eight (48) consecutive hours the
Minimum Rent hereunder shall be abated until such utility service is resumed.
16.2. Tenant shall cooperate with Landlord's reasonable directives to
reduce energy consumption. In the event any governmental authority shall order
mandatory energy conservation then Tenant shall comply with such requirements.
Tenant's compliance with such requirements shall not entitle Tenant to any
abatement of rent or damages for any injury or inconvenience occasioned thereby,
nor shall it be construed as an eviction or disturbance of possession.
ARTICLE XVII Assignment and Subletting
17.1. Except as provided below, Tenant shall not assign this Lease nor
sublet the Premises in whole or in part without the Landlord's prior written
consent. The transfer or transfers aggregating fifty percent (50%) or more of
the capital stock of Tenant (if Tenant is a non-public corporation) or the
partnership or other ownership interests of Tenant (if Tenant is a partnership,
joint venture, limited liability company or proprietorship) shall be deemed an
assignment of this Lease within the meaning of this Article. Notwithstanding the
provisions of this Article XVII to the contrary, Tenant may (i) assign this
Lease or sublet all or any portion of the Premises to any entity in which a
majority of the economic interests are owned, directly or indirectly, by any one
or more of Simon Property Group, Inc., Simon Property Group, L.P., Melvin Simon
& Associates, Inc., Melvin Simon, Herbert Simon or David Simon or any successor
by merger to Simon Property Group, Inc. or Simon Property Group, L.P.
(collectively or separately being referred to herein as "Tenant's Affiliate"),
or (ii) sublet up to fifty percent (50%) of the leasable area within the
Premises to one or more proposed sublessees at any time during the Term hereof
or any renewal period without Landlord's prior written consent, provide that
notwithstanding any such subletting as provided in (ii) above, Tenant shall
remain primarily liable for the performance of all of Tenant's obligations under
this Lease. Tenant shall in no event be relieved of any liability under the
Lease as a result of any such assignment or subletting.
17.2. Other than an assignment or subletting that does not require
Landlord's approval pursuant to Section 7.1 hereof, Tenant may assign this Lease
or sublet more than fifty percent (50%) of the Premises at any time during the
Term hereof (as the same may be extended) only after Landlord's prior written
approval, which shall not be reasonably withheld, delayed or conditioned and
shall be granted if Tenant notifies Landlord of the proposed assignment or
subletting, setting forth in such notification the basic terms and conditions
(including any tenant inducements) applicable to such assignment or sublease,
and the following conditions are met:
-14-
(a) The proposed assignee or sublessee intends to use the Premises
only for uses and purposes compatible with those of then existing occupants
of the Building; and
(b) Tenant shall in no event be relieved of any liability under the
Lease as a result of any such assignment or subletting; provided, however,
if Tenant proposes an assignment of all its rights and interest under the
Lease and Tenant requests to be relieved of such liability the proposed
assignee or any proposed guarantor of all obligations of such proposed
assignee shall possess the necessary financial resources (as may be
reasonably determined by the Landlord), including without limitation, a net
worth of not less than Ten Million Dollars ($10,000,000), to perform all of
Tenant's obligations under this Lease, in which event Tenant shall be
relieved of liability hereunder accruing from and after the date of such
assignment provided assignee deliveries the written instrument described in
Section 17.3 below.
17.3. In the event of any such assignment in which Tenant is relieved of
liability hereunder, the assignee shall agree, in writing, to assume and be
bound by all the terms, covenants and conditions of this Lease accruing from and
after the date of such assignment.
17.4. If Tenant notifies Landlord of Tenant's intention to assign this
Lease or sublet the Premises at any time during the Term hereof (as the same may
be extended) and Landlord's approval is required pursuant to Section 17.2
hereof, Landlord shall have the option to recapture all of the Premises covered
by this Lease in the case of an assignment or the portion of the Premises
covered by the proposed sublease, in the case of any sublease. Landlord may
exercise said option by giving Tenant written notice thereof within twenty (20)
days after receipt by Landlord of Tenant's notice of proposed assignment or
sublease. In the event Landlord exercises said option, Tenant shall surrender
possession of the proposed recaptured space to Landlord on the proposed
effective date of the assignment or sublease or such other date as Landlord and
Tenant shall mutually agree (the "Proposed Commencement Date") and neither party
hereto shall have any further rights or liabilities to the other with respect to
the recaptured space accruing or occurring from and after the Proposed
Commencement Date. In the event Landlord recaptures less than the entire
Premises, effective as of the Proposed Commencement Date, the Minimum Rent
(using the applicable amounts for Office Space and/or Storage Space) shall be
reduced in the same proportion as the number of square feet of Floor Area
contained in the Premises prior to such exclusion, and Landlord and Tenant shall
sign a modification agreement of this Lease reflecting such changes. If Landlord
exercises its recapture right, it shall be solely responsible for the payment of
any tenant inducements (including, without limitation, any leasing commissions)
payable with respect to such assignment or sublease.
ARTICLE XVIII Eminent Domain
18.1. In the event the Premises or any part thereof shall be permanently
taken or condemned or transferred by agreement in lieu of condemnation for any
public or quasi-public use or purpose by any competent authority, whether or not
this Lease shall be terminated, the entire compensation award therefor, both
leasehold and reversion, shall belong to Landlord without any deduction
therefrom for any present or future estate of Tenant and Tenant hereby assigns
to Landlord all its right, title and interest to any such award. Tenant shall
execute all documents required to evidence such result. Tenant shall, however,
be entitled to claim, prove and receive in such condemnation proceedings such
award as may be allowed for trade fixtures and other equipment installed by it,
but only if or to the extent such award shall be in addition to the award for
the land and the building and other improvements (or portions thereof)
containing the Premises and only if or to the extent such award does not
diminish any award to Landlord.
18.2. If more than twenty-five percent (25%) of the Premises or the
Building shall be taken, condemned or transferred as aforesaid, Landlord and
Tenant each shall have the option to terminate this Lease to be exercised by
notice to the other party given not more than three (3) months from the later to
-15-
occur of the date of taking, condemnation or transfer. If neither party elects
to rebuild, Landlord shall, at its expense, proceed to restore the remainder of
the Premises to substantially the state in which it existed prior to the
Effective Date, except that Landlord shall not be obligated to restore any
component that was demolished or replaced by Tenant. All repairs and
restorations of the Premises not so included shall be performed by Tenant in
conformance with Article VII and Exhibit "C". The parties shall promptly
commence and diligently proceed with their restoration obligations hereunder.
18.3. If less than twenty-five percent (25%) of the Building or the
Premises shall be taken, condemned or transferred as aforesaid, except for the
last year of this Lease, then Landlord shall, at its expense, proceed to restore
the Premises to substantially the state in which it existed prior to the
Effective Date, except that Landlord shall not be obligated to restore any
component that was demolished or replaced by Tenant. All repairs and
restorations of the Premises not so included shall be performed by Tenant in
conformance with Article VII and Exhibit "C". The parties shall promptly
commence and diligently proceed with their restoration obligations hereunder. If
such an event occurs during the last year of this Lease, then Landlord shall
have the option to rebuild or terminate this Lease to be exercised by notice to
Tenant given not more than three (3) months from the date of such taking,
condemnation or transfer.
ARTICLE XIX Default by Tenant
19.1. Tenant expressly agrees as follows:
19.1.1. In the event of any failure of Tenant to pay any installment
of Minimum Rent or additional rent or any other payment
required to be made by Tenant within ten (10) days after it
is due hereunder, or if this Lease or any portion of
Tenant's interest hereunder be assigned or the Premises or
any portion thereof be sublet, either voluntarily or by
operation of law, except as herein provided, or if Tenant
defaults in performing any of the other terms, conditions or
covenants of this Lease to be observed or performed by
Tenant for more than thirty (30) days after notice of such
other default shall have been given to Tenant [or if the
default is of such nature as cannot be cured within such
thirty (30) day period, such additional times (not to exceed
ninety (90) days) as shall be reasonably required so long as
Tenant commences to cure such default within said thirty
(30) day period and diligently and in good faith pursues the
same to completion], or if Tenant's interest in this Lease
shall be taken under any writ of execution, then, and in any
one or more of such events (herein sometimes referred to as
an "Event of Default"), Landlord shall have the immediate
right to reenter the Premises, either by summary
proceedings, by force or otherwise, and to dispossess Tenant
and all other occupants therefrom and remove and dispose of
all property therein or, at Landlord's election, to store
such property in a public warehouse or elsewhere at the cost
of, and for the account of, Tenant, all without service of
any notice of intention to reenter and with or without
resort to legal process and without Landlord being deemed
guilty of trespass or becoming liable for any loss or damage
which may be occasioned thereby. Upon the occurrence of any
such Event of Default, Landlord shall also have the right,
at its option, in addition to and not in limitation of any
other right or remedy, to terminate this Lease by giving
Tenant notice of cancellation and upon mailing of said
notice, this Lease and the Term shall end and expire as
fully and completely as if the date of said notice were the
date herein definitely fixed for the end and expiration of
this Lease and the Term and thereupon, unless Landlord shall
have theretofore elected to reenter the Premises, Landlord
shall have the immediate right of reentry, in the manner
aforesaid, and Tenant and all other occupants shall quit and
surrender the Premises to Landlord, but Tenant shall remain
liable as hereinafter provided; provided, however, that if
Tenant shall default (i) in the timely payment of any
Minimum Rent or any item of additional rent payable
hereunder and any such default
-16-
shall continue or be repeated for two (2) consecutive
months, or for a total of four (4) months in any period of
twelve (12) months, or (ii) in the performance of any other
covenants of this Lease more than six (6) times, in the
aggregate, in any period of twelve (12) months, then,
notwithstanding that such defaults shall have been cured
within the period after notice as above provided, any
further similar default shall be deemed to be deliberate and
Landlord thereafter may serve said notice of cancellation
without affording to Tenant an opportunity to cure such
further default.
19.1.2. If by reason of the occurrence of any such Event of Default,
the Term shall end before the date therefore originally
fixed herein, or Landlord shall reenter the Premises, or
Tenant shall be ejected, dispossessed, or removed therefrom
by summary proceedings or in any other manner, Landlord at
any time thereafter may relet the Premises, or any part or
parts thereof, either in the name of Landlord or as agent
for Tenant, for a term or terms which, at Landlord's option,
may be less than or exceed the period of the remainder of
the Term or which otherwise would have constituted the
balance of the Term and grant concessions or free rent.
Landlord shall receive the rents from such reletting and
shall apply the same, first, to the payment of any
indebtedness other than Minimum Rent or any item of
additional rent due hereunder from Tenant to Landlord;
second, to the payment of such third party expenses as
Landlord may have incurred in connection with reentering,
ejecting, removing, dispossessing, reletting, altering,
repairing, redecorating, subdividing, or otherwise preparing
the Premises for reletting, including brokerage and
attorneys' fees; and the residue, if any, Landlord shall
apply to the fulfillment of the terms, conditions and
covenants of Tenant hereunder and Tenant hereby waives all
claims to the surplus, if any. Tenant shall be liable for
and shall pay Landlord any deficiency between the Minimum
Rent and all items of additional rent reserved herein and
the net avails as aforesaid, of reletting, if any, for each
month of the period which otherwise would have constituted
the balance of the Term. Tenant shall pay such deficiency on
an accelerated basis as provided under Section 19.1.4 below
(including the discount provided therein) or, at Landlord's
sole option, in monthly installments on the rent days
specified in this Lease, and any suit or proceeding brought
to collect the deficiency for any month, either during the
Term or after any termination thereof, shall not prejudice
or preclude in any way the rights of Landlord to collect the
deficiency for any subsequent month by a similar suit or
proceeding. Landlord shall in no event be liable in any way
whatsoever for the failure to relet the Premises or, in the
event of such reletting, for failure to collect the rents
reserved thereunder. Landlord is hereby authorized and
empowered to make such repairs, alterations, decorations,
subdivisions or other preparations for the reletting of the
Premises as Landlord shall deem fit, advisable and
necessary, without in any way releasing Tenant from any
liability hereunder, as aforesaid.
19.1.3. No such reentry or taking possession of the Premises by
Landlord shall be construed as an election on its part to
terminate this Lease unless notice of such intention be
given to Tenant or unless the termination thereof shall
result as a matter of law or be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter
elect to terminate this Lease for such previous breach.
19.1.4. In the event this Lease is terminated pursuant to the
provisions of 19.1, or terminates pursuant to the provisions
of Section 19.2 hereof, Landlord may recover from Tenant all
damages it may sustain by reason of Tenant's default,
including the third party cost of recovering the Premises
and attorneys' fees, and, upon so electing and in lieu of
the damages that may be recoverable
-17-
under subsection (b) above, Landlord shall be entitled to
recover from Tenant, as and for Landlord's damages, an
amount equal to the difference between the Minimum Rent and
all items of additional rents reserved hereunder for the
period which otherwise would have constituted the balance of
Term and the then present rental value of the Premises for
such period, both discounted in accordance with accepted
financial practice to the then present worth, at the average
rate established and announced for United States Treasury
Bills, with a maturity of thirteen (13) weeks at the four
(4) weekly auctions held immediately prior to the date of
such termination [the four (4) week average bill rate], all
of which shall immediately be due and payable by Tenant to
Landlord. In determining the rental value of the Premises,
the rental realized by any reletting, if such reletting be
accomplished by Landlord within a reasonable time after the
termination of this Lease, shall be deemed prima facie to be
the rental value, but if Landlord shall not undertake to
relet or having undertaken to relet, has not accomplished
reletting, then it will be conclusively presumed that the
Minimum Rent and all items of additional rent reserved under
this Lease represent the rental value of the Premises for
the purposes hereof (in which event Landlord may recover
from Tenant, the full total of all Minimum Rent and all
items of additional rent due hereunder, discounted to
present value as hereinbefore provided). Landlord shall be
obliged, however, to account to Tenant for the Minimum Rent
and additional rents received from persons using or
occupying the Premises during the period representing that
which would have constituted the balance of the Term, but
only at the end of said period, and only if Tenant shall
have paid to Landlord its damages as provided herein, and
only to the extent of sums recovered from Tenant as
Landlord's damages, Tenant waiving any claim to any surplus.
Nothing herein contained, however, shall limit or prejudice
the right of Landlord to prove and obtain as damages by
reason of such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount be greater,
equal to, or less than the amounts referred to in Section
19.1.2 or Section 19.1.4.
19.1.5. In the event Landlord commences any action or proceeding
under this Lease, including, but not limited to, actions for
recovery of Minimum Rent and items of additional rent and
actions for recovery of possession, Tenant shall not
interpose any counterclaim of any nature or description in
any such action or proceeding (other than a compulsory
counterclaim under Ohio Rule of Civil Procedure 13 or any
comparable rule of civil procedure). The foregoing, however,
shall not be construed as a waiver of Tenant's right to
assert such claim in a separate action or proceeding
instituted by Tenant.
19.1.6. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws,
in the event Tenant shall be evicted or dispossessed from
the Premises for any cause, or Landlord reenters the
Premises following the occurrence of any Event of Default
hereunder, or this Lease is terminated before the expiration
date thereof originally fixed herein.
19.1.7. No waiver of any covenant or condition or of the breach of
any covenant or condition of this Lease shall be taken to
constitute a waiver of any subsequent breach of such
covenant or condition nor to justify or authorize the
nonobservance on any other occasion of the same or of any
other covenant or condition hereof, nor shall the acceptance
of Minimum Rent or any item of additional rent by Landlord
at any time when Tenant is in default under any covenant or
condition hereof, be construed as a waiver of such default
or of Landlord's right to terminate this Lease on account of
such default, nor shall
-18-
any waiver or indulgence granted by Landlord to Tenant be
taken as an estoppel against Landlord, it being expressly
understood that if at any time Tenant shall be in default in
any of its covenants or conditions hereunder, an acceptance
by Landlord of Minimum Rent or any item of additional rent
during the continuance of such default or the failure on the
part of Landlord promptly to avail itself of such other
rights or remedies as Landlord may have, shall not be
construed as a waiver of such default, but Landlord may at
any time thereafter, if such default continues, terminate
this Lease on account of such default in the manner herein
provided.
19.1.8. In the event of any breach or threatened breach by Tenant of
any of the terms and provisions of this Lease, Landlord
shall have the right to seek injunctive relief as if no
other remedies were provided herein for such breach.
19.1.9. The rights and remedies herein reserved by, or granted to,
Landlord are distinct, separate and cumulative, and the
exercise of any one of them shall not be deemed to preclude,
waive or prejudice Landlord's right to exercise any or all
others.
19.1.10. If an Event of Default shall occur hereunder prior to the
date fixed as the commencement of any renewal or extension
of this Lease, whether by a renewal option herein contained
or by a separate agreement, Landlord may, prior to the
commence of the Renewal Term, cancel such option or
agreement for renewal or extension of this Lease, upon two
(2) days' notice to Tenant.
19.1.11. Wherever in this Lease Landlord has reserved or is granted
the right of "reentry" into the Premises, the use of such
word is not intended, nor shall it be construed, to be
limited to its technical legal meaning.
19.1.12. In addition to any other remedies Landlord may have at law
or in equity or under this Lease, Tenant shall pay upon
demand all Landlord's third party costs, charges and
expenses, including fees of counsel, agents and others
retained by Landlord, incurred in connection with the
recovery of sums due under this Lease, or because of the
breach of any covenant under this Lease or for any other
relief against Tenant.
19.1.13. Any action, suit or proceeding relating to, arising out of
or in connection with the terms, conditions and covenants of
this Lease may be brought by Landlord against Tenant in the
Court of Common Pleas of Mahoning County, Ohio. Tenant
hereby waives any objection to jurisdiction or venue in any
proceeding before said Court. Nothing contained herein shall
affect the right of Landlord to bring any action, suit or
proceeding against Tenant in the courts of any other
jurisdictions.
19.2. If at any time after the execution of this Lease, an order for relief
is entered in any bankruptcy, insolvency or similar proceeding commenced by or
against Tenant or any Surety of this Lease, or if Tenant or any Surety of this
Lease becomes insolvent or is unable or admits in writing its inability to pay
its debts as they become due, or makes an assignment for the benefit of
creditors or petitions for or enters into an arrangement with its creditors or a
custodian is appointed or takes possession of Tenant's or any such Surety's
property, whether or not a judicial proceeding is instituted in connection with
such arrangement or in connection with the appointment of such custodian, then
Landlord, besides other rights or remedies it may have, shall have the immediate
right to terminate this Lease or reenter without terminating this Lease and to
dispossess Tenant and all other occupants therefrom and remove and dispose of
all property therein or, at Landlord's election, to store such property in a
public warehouse or elsewhere at the cost of, and for the account of, Tenant,
all without service of any notice of intention to reenter and with or without
resort to legal process (which Tenant hereby
-19-
expressly waives) and without being deemed guilty of trespass, or becoming
liable for any loss or damage which may be occasioned thereby. In any such
event, Landlord may retain as partial damages, and not as a penalty, any prepaid
rents and Landlord shall also be entitled to exercise such rights and remedies
to recover from Tenant as damages such amounts as are specified in Section 19.1
hereof, unless any statute or rule of law governing the proceedings in which
such damages are to be proved shall lawfully limit the amount of such claims
capable of being so proved, in which case Landlord shall be entitled to recover,
as and for liquidated damages, the maximum amount which may be allowed under any
such statute or rule of law.
ARTICLE XX Default by Landlord
20.1. It shall be a default under and breach of this Lease if Landlord
shall fail to perform or observe any term, condition, covenant or obligation
required to be performed or observed by it under this Lease for a period of
thirty (30) days after notice thereof to Landlord from Tenant, or any period
less than thirty (30) days if an emergency exists that poses an immediate threat
to life or Tenant's property or would have a material adverse affect on Tenant's
operations ("Tenant Emergency"); provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is not a Tenant Emergency and
is of such nature that the same cannot reasonably be performed within such
thirty (30) day period, such default shall be deemed to have been cured if
Landlord commences such performance within said thirty (30) day period and
thereafter diligently and continuously pursues and completes the same within
ninety (90) days of Tenant's original notice. Upon the occurrence and during the
continuance of any such default by Landlord, following Tenant's notice and the
applicable cure period, Tenant may effect a cure on behalf of the Landlord and
deduct the actual and reasonable costs of such cure from any Minimum Rent
thereafter coming due from Tenant under the Lease. Upon request from Landlord,
Tenant shall provide Landlord with satisfactory evidence detailing Tenant's
actual costs of cure.
20.2. If the holder of record of any mortgage(s) covering all or any
portion of Landlord's Parcel shall have given prior notice to Tenant that it is
the holder thereof and such notice includes the address at which notices to such
mortgagee(s) are to be sent, then Tenant shall give to said holder notice
simultaneously with any notice given to Landlord to correct any default of
Landlord as hereinabove provided. The holder of record of such mortgage(s) shall
have the right, but not the obligation, within thirty (30) days after receipt of
said notice, to correct or remedy such default before Tenant may take any action
under this Lease by reason of such default; provided, however, that if such
default cannot by its nature be cured within said thirty (30) days, then Tenant
shall not take any action under this Lease by reason of such default provided
the correction or remedy of such default commences within said thirty (30) days
and is diligently prosecuted thereafter. Any notice of default given Landlord
shall be null and void unless simultaneous notice has been given to said
mortgagee(s).
ARTICLE XXI Estoppel Certificate, Attornment and Subordination
21.1. Within ten (10) days after the request by Landlord, Tenant shall
deliver to Landlord a written and acknowledged statement in favor of Landlord or
any prospective purchaser or mortgagee of Landlord's Parcel or any other part
thereof certifying (a) that Tenant is the tenant under this Lease; (b) that
Landlord has completed construction of the Premises (or if Landlord has not
completed construction of the Premises, then stating the construction items to
be completed by Landlord); (c) that all contributions, if any, required by
Landlord for improvements to the Premises have been paid in full to Tenant (or
if such contributions, if any, have not been paid in full to Tenant, then
stating the amount of contribution remaining to be paid to Tenant); (d) that
Tenant has accepted possession of and, if true, now occupies the Premises; (e)
the date on which the Term commenced, the date on which the Effective Date
occurred and the date on which the Term expires; (f) that no defaults exist
under this Lease on the part of Tenant, or, to the knowledge of Tenant, on the
part of Landlord (or if defaults exist, then specifically stating such
defaults); (g) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications); (h) that Tenant's interest under this
Lease has not been assigned or encumbered, and the Premises have not been sublet
(or if there have been assignments or encumbrances or the Premises have been
sublet, then stating such assignments, encumbrances or subleases and providing
copies of all documents relevant
-20-
thereto); (i) the amount of Minimum Rent and all items of additional rent
payable under this Lease and the dates to which any Minimum Rent and all items
of additional rent payable under this Lease have been paid; (j) that Tenant is
not entitled to any credit, offset or deduction against any Minimum Rent and any
item of additional rent due under this Lease (or if Tenant is entitled to a
credit, offset or deduction, then stating the amount of such credit, offset or
deduction and the basis therefor); (k) that Tenant does not have any options or
rights to renew or cancel this Lease (or if Tenant shall have options or rights
to renew or cancel this Lease, then stating such options or rights); (l) that
there are no actions, whether voluntary or otherwise, pending against Tenant
under the bankruptcy or insolvency laws of the United States or any state
thereof (or if there are actions pending against Tenant under bankruptcy or
insolvency laws of the United States or any state thereof, then stating such
actions); and (m) such other matters or information as Landlord may reasonably
require, it being intended that any such statement delivered pursuant to this
Article may be relied upon by Landlord or any prospective purchaser or mortgagee
of Landlord's Parcel, any part thereof or any interest therein, direct or
indirect.
21.2. Tenant shall, in the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage made by Landlord covering the Premises, attorn to the purchaser upon
any such foreclosure or sale and recognize such purchaser as Landlord under this
Lease, whether this Lease is subordinate to said mortgage or said mortgage is
subordinate to this Lease. In such event, the purchaser shall not be liable for
any previous act or omission by Landlord under this Lease or bound by any
previous prepayments of Minimum Rent or items of additional rent for a period
greater than thirty (30) days.
21.3. Tenant shall promptly execute and deliver such instrument that
Landlord or the holder of any Superior Lease (as hereinafter defined) or
Superior Mortgage (as hereinafter defined) requests to evidence that this Lease
and all rights of Tenant hereunder are subject and subordinate in all respects
to (a) all present and future ground leases of the Landlord's Parcel, or any
portion thereof of which the Premises is a part and all renewals, modifications,
replacements, supplements, substitutions and extensions thereof, hereinafter
collectively referred to as "Superior Lease" and (b) all mortgages or other
methods of financing which may now or hereafter encumber Landlord's interest in
the Landlord's Parcel or any portion thereof of which the Premises is a part and
all renewals, modifications, replacements, supplements, substitutions and
extensions thereof and all advances made or to be made thereunder hereinafter
collectively referred to as "Superior Mortgage". The foregoing provisions shall
be self-operative and no further instrument of subordination shall be required.
However, in confirmation of such subordination. Notwithstanding anything
contained in Section 21.3 of the Lease to the contrary, Tenant's obligation to
subordinate the Lease and its rights hereunder to the lien and rights of any
Superior Mortgage or Superior Lease is subject to such mortgage holder or lessor
agreeing, in writing, in form and content reasonably satisfactory to Tenant, not
to disturb Tenant and its possession of the Premises so long as there is no
uncured Event of Default by Tenant under the Lease. Landlord will obtain, within
thirty (30) days after the date hereof, a nondisturbance agreement from the
holder of any current Superior Mortgage, and the lessor under any current
Superior Lease, the form or forms of which shall be furnished by Tenant and
shall be reasonably satisfactory to the holder of any such Superior Mortgage or
Superior Lease. Notwithstanding the foregoing provisions, Landlord's lender
shall have the right to subordinate or cause to be subordinated the lien of any
mortgage or mortgages, or the lien resulting from any other method of financing
or refinancing, now or hereafter in force against Landlord's Parcel, or any
portion thereof of which the Premises is a part, or against any buildings
hereafter placed upon Landlord's Parcel of which the Premises is a part, to this
Lease, hereinafter referred to as "Subordinate Mortgage". In such event, this
Lease shall not be subordinate to the lien of any other mortgage or mortgages,
or the lien resulting from any other method of financing or refinancing so long
as said Subordinate Mortgage is a lien.
21.4. This Lease shall not be recorded without the prior consent of
Landlord and if Tenant records this Lease without Landlord's consent, then
Tenant shall be deemed in default of this Lease. Upon the request of Landlord,
Tenant shall execute a short form of this Lease which may be recorded in
Landlord's sole discretion.
ARTICLE XXII Holding Over
-21-
If Tenant or any party claiming under Tenant shall remain in possession of
all or any part of the Premises after the expiration of the Term, no tenancy or
interest in the Premises shall result therefrom but such holding over shall be
an unlawful detainer and all such parties shall be subject to immediate eviction
and removal, and Tenant shall pay upon demand to Landlord during any period
which Tenant shall hold the Premises after the Term has expired, as rent for
said period, a sum equal to all items of additional rent provided for in this
Lease plus an amount computed at the rate of one hundred fifty percent (150%) of
the Minimum Rent for such period.
ARTICLE XXIII Quiet Enjoyment
Landlord agrees that if Tenant pays the Minimum Rent and all items of
additional rent herein provided and shall perform all of the covenants and
agreements herein stipulated to be performed on Tenant's part, Tenant shall, at
all times during said term, have the peaceable and quiet enjoyment and
possession of the Premises, subject to the terms, conditions and covenants of
this Lease and any mortgages or ground leases superior to this Lease, without
any manner of hindrance from Landlord or any persons lawfully claiming through
Landlord.
ARTICLE XXIV Reimbursement
All terms, covenants and conditions herein contained, to be performed by
Tenant, shall be performed at its sole cost and expense. If Landlord shall pay
any sum of money or do any act which requires the payment of money, by reason of
the failure, neglect or refusal of Tenant to perform such term, covenant or
condition, the sum of money so paid by Landlord shall be payable by Tenant to
Landlord with the next succeeding installment of rent. If Tenant shall fail to
pay Landlord any sums when due under this Lease or if Landlord shall pay any sum
of money or do any act which requires the payment of money as aforesaid, such
sums shall bear interest from the due date or from the respective dates of
Landlord's making of the payment, as the case may be, at the lesser of (a) the
interest rate reported publicly by the Wall Street Journal in its "Money Rates"
column from time to time as its prime or base rate plus two percent (2%), or (b)
the maximum rate permitted by law. All sums payable by Tenant to Landlord under
this Lease shall be paid in legal tender of the United States of America without
any prior demand or notice therefor and without any deduction or setoff
whatsoever and shall be payable at the place designated for the delivery of
notices to Landlord at the time of payment unless otherwise designated by
Landlord.
ARTICLE XXV Changes and Additions to Landlord's Parcel
25.1. Subject to the express limitations set forth in this Lease (which
shall be applicable to all of the rights and limitations set forth in this
Article XXV), Landlord shall have the exclusive right to use all or any part of
the roof over the Premises and exterior walls of the Premises for any purpose;
to erect in connection with the construction thereof, temporary scaffolds and
other aids to construction on the exterior of the Premises, provided that access
to the Premises shall not be denied; and to install, maintain, use, repair and
replace pipes, ducts, conduits and wires leading through the Premises and
serving other parts of Landlord's Parcel in locations which will not materially
interfere with Tenant's use thereof. In addition to the foregoing, Landlord may
make any use it desires of the side and rear walls of the Premises, provided
that there shall be no encroachment upon the interior of the Premises. Landlord
hereby reserves the right at any time to make alterations or additions to, and
to build additional stories on, the building in which the Premises are contained
and to build adjoining the same. Landlord also reserves the right to construct
other buildings or improvements in Landlord's Parcel from time to time and to
make alterations thereof or additions thereto and to build additional stories on
such building or buildings and to construct deck or elevated parking facilities
in Landlord's Parcel and to change the methods of ingress to and egress from the
Building and the Premises and to incorporate additional land into Landlord's
Parcel and build thereon.
25.2. In the event Landlord exercises any rights reserved under this
Article or granted by any other provisions of this Lease and makes any use of,
or alterations, modifications, improvements or
-22-
additions to, Landlord's Parcel or the Premises, Landlord shall in no way be
responsible or liable for any effect on Tenant's business of any nature
whatsoever, either during or after such use, alterations, modifications,
improvements or additions.
ARTICLE XXVI Notices
Any notice, request, demand, approval, consent or other communication
herein required or permitted to be given shall be in writing and may be
personally served, telecopied, or sent by nationally-recognized courier service
(e.g., Federal Express, Airborne Courier, DHL or U.S. Postal Service Express
Mail) or United States mail (registered or certified, with return receipt
requested) addressed to the Notice Address, or to the Premises if such
communication is to Tenant, or to such other Notice Address as either party
shall have designated by notice to the other. Any such notice, request, demand,
approval, consent or other communication so sent and addressed shall be deemed
to have been given when delivered in person or by courier service, upon sending
of a telecopy (as evidenced by electronic confirmation), or three (3) Business
Days after deposit in the United States mail (registered or certified, return
receipt requested).
ARTICLE XXVII Brokerage
Tenant covenants, warrants and represents to Landlord that there was no
broker instrumental in consummating this Lease and that no conversation or prior
negotiations were had by Tenant with any broker concerning the renting of the
Premises. Tenant shall protect, indemnify, save and hold harmless Landlord
against and from all liabilities, claims, losses, costs, damages and expenses,
including attorneys' fees, arising out of, resulting from or in connection with
a breach of the foregoing covenants, warranties and representations.
ARTICLE XXVIII General Provisions
28.1. "Landlord", so far as covenants or obligations on the part of
Landlord are concerned, shall be limited to mean and include only the owner (or
tenant of the ground or underlying lease of which this Lease is a sublease) for
the time being of Landlord's Parcel. If Landlord's Parcel, or the ground or
underlying lease, be sold or transferred, the seller (or assignor of the ground
or underlying lease of which this Lease is a sublease) shall be automatically
and entirely released of all covenants and obligations under this Lease arising
from and after the date of such conveyance or transfer, provided the purchaser
of such sale (or the subtenant or assignee of the ground or underlying lease as
aforesaid) has assumed and agreed to carry out all covenants and obligations of
Landlord hereunder from and after the date thereof, it being intended hereby
that the covenants and obligations contained in this Lease to be performed on
the part of Landlord shall be binding upon Landlord, its successors and assigns,
only during their respective successive periods of ownership. The covenants and
undertakings herein made and entered into by Landlord are solely for the purpose
of binding Landlord to the extent specifically of Landlord's interest in
Landlord's Parcel only, and it is expressly agreed by Landlord and Tenant and by
all persons claiming by, through or under Tenant that no personal liability is
assumed by or shall at any time arise or be asserted or enforced against
Landlord, or against any general or limited partner of Landlord, or any of their
respective agents, employees, officers, partners, successors or assigns, on
account of this Lease or on account of the covenants herein contained, either
express or implied, all such liability, if any, being expressly waived and
released by Tenant and by any persons claiming by, through or under Tenant, and
that recourse hereunder, if any, by Tenant, its successors or assigns, shall be
limited specifically and exclusively to Landlord's interest in Landlord's
Parcel.
28.2. Tenant's obligations with respect to (a) the payment of Minimum Rent
and all items of additional rent; (b) any provisions of this Lease with respect
to indemnities given to Landlord, including, without limitation, the provisions
of Section 9.3; and (c) the removal of all property of Tenant and the repair of
all damage to the Premises caused by such removal at the expiration or
termination of this Lease, shall survive the expiration or termination of this
Lease.
-23-
28.3. If any term or provision of this Lease or the application thereof to
any person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
28.4. Except as herein otherwise expressly provided, the terms and
provisions hereof shall be binding upon and shall inure to the benefit of the
heirs, executors, administrators, successors and permitted assigns,
respectively, of Landlord and Tenant. Each term and each provision of this Lease
to be performed by Tenant shall be construed to be both an independent covenant
and a condition. The reference contained to successors and assigns of Tenant is
not intended to constitute a consent to assignment by Tenant, but has reference
only to those instances in which Landlord may have given consent to a particular
assignment.
28.5. Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal and
agent or of partnership or of joint venture or of any association whatsoever
between Landlord and Tenant, it being expressly understood and agreed that
neither the computation of rent nor any other provisions contained in this Lease
nor any act or acts of the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than the relationship of landlord
and tenant.
28.6. The titles of the articles throughout this Lease are for convenience
and reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this instrument.
28.7. As used in this indenture of Lease and when required by the context,
each number (singular or plural) shall include all numbers, and each gender
shall include all genders; and, unless the context otherwise requires, the word
"person" shall include "corporation, firm or association".
ARTICLE XXIX Warranty and Authority
Tenant hereby represents and warrants that (a) there are no proceedings
pending or so far as Tenant knows threatened before any court or administrative
agency that would materially adversely affect the financial condition of Tenant,
the ability of Tenant to enter into this Lease or the validity or enforceability
of this Lease; (b) there is no provision of any existing mortgage, indenture,
contract or agreement binding on Tenant which would conflict with or in any way
prevent the execution, delivery or performance of the terms of this Lease; and
(c) there has been no material adverse change in the financial condition of
Tenant since the date of Tenant's most recently published financial statement
and to the knowledge of Tenant, no such material adverse changes are pending or
threatened. Tenant acknowledges that Landlord is executing this Lease in
reliance upon the foregoing representation and warranty and that such
representation and warranty is a material element of the consideration inducing
Landlord to enter into and execute this Lease. This Lease has been authorized
and approved by all necessary partnership action and by the Board of Directors
of the managing general partners of Tenant at a duly held meeting of the Board
of Directors (or pursuant to a valid unanimous vote of the Board of Directors)
and copies of the applicable partnership actions and the resolutions of such
Board of Directors approving this Lease shall be certified and delivered to
Landlord within five (5) days after request.
ARTICLE XXX Master Lease Termination Agreement
30.1. The effectiveness of this Lease is expressly conditioned upon the
execution and delivery of an agreement between Landlord and Tenant terminating
that certain lease dated as of June 1, 1995 under which Landlord hired, leased
and let unto Tenant the Building, as the same may have been amended from time to
time (the "Master Lease Termination Agreement"). If the Master Lease Termination
Agreement has not been executed and delivered as of the Effective Date, this
Lease shall have no force or effect.
-24-
30.2. Tenant shall comply with all obligations under the Master Lease
Termination Agreement and a default thereunder shall be an Event of Default
hereunder.
ARTICLE XXXI Complete Agreement
This writing contains the entire agreement between the parties hereto, and
no agent, representative, salesman or officer of Landlord hereto has authority
to make, or has made, any statement, agreement or representation, either oral or
written, in connection herewith, modifying, adding or changing the terms and
conditions herein set forth. FURTHER, TENANT ACKNOWLEDGES AND AGREES THAT
NEITHER LANDLORD NOR ANY AGENT OR REPRESENTATIVE OF LANDLORD, INCLUDING ANY
LEASING AGENT ACTING ON BEHALF OF LANDLORD, HAS MADE, AND TENANT HAS NOT RELIED
UPON, ANY REPRESENTATIONS OR ASSURANCES. No modification of this Lease shall be
binding unless such modification shall be in writing and signed by the parties
hereto. Tenant hereby further recognizes and agrees that the submission of this
Lease for examination by Tenant does not constitute an offer or an option to
lease the Premises, nor is it intended as a reservation of the Premises for the
benefit of Tenant, nor shall this Lease have any force or validity until and
unless a copy of it is returned to Tenant duly executed by Landlord.
SIGNATURE PAGES FOLLOW
-25-
IN TESTIMONY WHEREOF, Landlord and Tenant have caused this Lease to be
signed as of the Effective Date.
Signed in the presence of: LANDLORD
7655 CORPORATION, an Ohio corporation
By
- ------------------------------- -----------------------------------
Name:
-------------------------------
Title:
- ------------------------------- -------------------------------
TENANT
SIMON PROPERTY GROUP, L.P.,
a Delaware limited partnership
BY Simon Property Group, Inc.,
a Delaware corporation,
Managing General Partner
By
- ------------------------------- -----------------------------------
Name:
-------------------------------
Title:
- ------------------------------- -------------------------------
-26-
STATE OF OHIO )
)
COUNTY OF MAHONING )SS.
Personally appeared before me, the undersigned, a Notary Public in and for
said County and State, _______________________ and _______________________,
known to me to be the __________________ and, _________________________,
respectively, of 7655 Corporation, who acknowledged that they did sign and seal
the foregoing instrument for, and on behalf of said Corporation, being thereunto
duly authorized by its Board of Directors and that the same is their free act
and deed as such officers and the free act and deed of said Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Youngstown, Ohio, this ________ day of _____________________________, 19_______.
_________________________________
Notary Public
STATE OF INDIANA )
)
COUNTY OF MARION )SS.
Personally appeared before me, the undersigned, a Notary Public in and for
said County and State, ________________________________________________________,
personally known by me or has produced ___________________________________ as
identification and has proved to my satisfaction to be the person described in
and who executed the foregoing instrument as of _______________________________,
who acknowledged that he did sign and seal the foregoing instrument for, and on
behalf of said Corporation, in its capacity as General Partner of said Limited
Partnership, being thereunto duly authorized by its Board of Directors, and that
the same is his free act and deed as such officer and the free act and deed of
said Corporation and said Limited Partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
___________________________, ___________________________, this ________ day of
_____________________________, 19_______.
__________________________________
Notary Public
-27-