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Exhibit 10.18
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LEASE AGREEMENT
DATED: OCTOBER 15, 1996
DUKE REALTY LIMITED PARTNERSHIP, AN INDIANA LIMITED PARTNERSHIP,
LANDLORD
HEALTH O METER PRODUCTS, INC., TENANT
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LEASE AGREEMENT
TENANT: HEALTH O METER PRODUCTS, INC.
TABLE OF CONTENTS
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ARTICLE 1 TERM OF LEASE...........................................................................................2
SECTION 1.1 INITIAL TERM........................................................................2
SECTION 1.2 OPTIONS TO RENEW....................................................................2
SECTION 1.3 EXERCISE OF OPTIONS TO RENEW........................................................2
ARTICLE 2 CONSTRUCTION OF IMPROVEMENTS............................................................................2
INTENTIONALLY OMITTED...........................................................................2
SECTION 2.2 APPROVAL OF PLANS..................................................................3
SECTION 2.3 SCOPE OF WORK.......................................................................4
SECTION 2.4 CHANGES IN WORK....................................................................4
SECTION 2.5 COMPLETION.........................................................................5
(A) INITIAL IMPROVEMENT COMPLETION DATES...............................................5
(B) PERMITTED DELAYS-TENANT EXTENSION..................................................5
(C) AFFECT OF PERMITTED DELAYS OR TENANT EXTENSION.....................................6
(D) PROGRESS OF CONSTRUCTION...........................................................6
SECTION 2.6 SUBSTANTIAL COMPLETION..............................................................7
SECTION 2.7 TENANT'S REMEDIES FOR LANDLORD DELAY................................................7
SECTION 2.8 WARRANTY............................................................................8
SECTION 2.9 PUNCH LIST..........................................................................9
SECTION 2.10 INDEMNITY.........................................................................10
SECTION 2.10 EARLY OCCUPANCY...................................................................10
ARTICLE 2A EXPANSION OF DEMISED PREMISES.........................................................................11
SECTION 2A.1 OPTION TO EXPAND..................................................................11
(A) EXPANSION NOTICE..................................................................11
SECTION 2A.2 LANDLORD'S PROPOSED EXPANSION SPACE PARAMETERS....................................12
SECTION 2A.3 TENANT'S NOTICE TO PROCEED AND EXPANSION SPACE TERM...............................12
SECTION 2A.4 PREPARATION OF EXPANSION PLANS....................................................13
SECTION 2A.5 EXPANSION COMMENCEMENT DATE.......................................................14
SECTION 2A.6 SCOPE OF WORK - EXPANSION SPACE...................................................14
SECTION 2A.7 EXPANSION CHANGE ORDERS...........................................................14
SECTION 2A.8 WARRANTY AS TO EXPANSION SPACE....................................................15
SECTION 2A.9 EXPANSION PUNCH LIST..............................................................15
SECTION 2A.10 EXPANSION COSTS..................................................................15
ARTICLE 3 RENT...................................................................................................16
SECTION 3.1 BASE RENT.........................................................................16
(A) BASE RENT FOR INITIAL IMPROVEMENTS................................................16
(1) INITIAL TERM.............................................................16
(2) RENEWAL TERM.............................................................16
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(B) EXPANSION SPACE RENT..............................................................16
(1) EXPANSION SPACE TERM.....................................................17
(2) RENEWAL TERMS............................................................18
(C) FAIR MARKET BASE RENT DETERMINATION...............................................18
SECTION 3.2 RENT PAYABLE WITHOUT PRIOR DEMAND; MAXIMUM RATE OF INTEREST........................19
SECTION 3.3. GOVERNMENTAL ASSISTANCE...........................................................20
ARTICLE 4 PAYMENT OF TAXES, ASSESSMENTS, ETC.....................................................................21
SECTION 4.1 ADDITIONAL RENT....................................................................21
SECTION 4.2 RIGHT TO CONTEST IMPOSITIONS.......................................................23
SECTION 4.3 TAXES ON RENT......................................................................23
SECTION 4.4 RECEIPTS FOR IMPOSITIONS...........................................................24
SECTION 4.5 LANDLORD'S RIGHT TO CONTEST IMPOSITIONS............................................24
ARTICLE 5 INSURANCE..............................................................................................25
SECTION 5.1 PROPERTY INSURANCE.................................................................25
SECTION 5.2 MUTUAL WAIVER OF CLAIMS AND SUBROGATION RIGHTS....................................26
SECTION 5.3 COMMERCIAL GENERAL LIABILITY INSURANCE.............................................26
SECTION 5.4 TENANT'S PROPERTY INSURANCE........................................................27
SECTION 5.5 TENANT'S BUSINESS INTERRUPTION INSURANCE...........................................27
SECTION 5.6 PROCEEDS, PAYMENT AND POLICY PROVISIONS............................................27
SECTION 5.7 INSURANCE APPROVAL.................................................................27
ARTICLE 6 USE AND MAINTENANCE OF THE DEMISED PREMISES............................................................28
SECTION 6.1 PREMISES USE......................................................................28
SECTION 6.2 TENANT'S REPAIRS...................................................................28
SECTION 6.3 LANDLORD'S REPAIRS.................................................................30
SECTION 6.4 PROHIBITION AGAINST WASTE..........................................................30
SECTION 6.5 MISUSE OR NEGLECT..................................................................30
SECTION 6.6 LIMITATION ON TENANT'S REPAIRS.....................................................30
ARTICLE 7 COMPLIANCE WITH LAWS AND ORDINANCES....................................................................31
SECTION 7.1 COMPLIANCE.........................................................................31
SECTION 7.2 OTHER COMPLIANCE...................................................................32
SECTION 7.3 ENVIRONMENTAL MATTERS..............................................................33
(A) DEFINITIONS.......................................................................33
(B) LANDLORD INDEMNITY................................................................34
(C) TENANT INDEMNITY..................................................................34
(D) NOTICE............................................................................35
(E) EXCLUSIVE REMEDY AND SURVIVAL.....................................................35
(F) COMPLIANCE WITH OTHER LAWS........................................................35
(G) STORAGE OF HAZARDOUS MATERIALS....................................................35
(H) ENVIRONMENTAL AUDITS..............................................................35
(I) TERMINATION OF LEASE..............................................................36
ARTICLE 8 MECHANIC'S LIENS AND OTHER LIENS.......................................................................37
SECTION 8.1 LIENS AND RIGHT OF CONTEST.........................................................37
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SECTION 8.2 LIENS ON LANDLORD'S WORK...........................................................38
SECTION 8.3 OTHER LIENS........................................................................39
ARTICLE 9 INTENT OF PARTIES......................................................................................39
SECTION 9.1 NET RENT...........................................................................39
SECTION 9.2 LANDLORD'S PERFORMANCE FOR TENANT..................................................39
SECTION 9.3 PAYMENT FOR LANDLORD'S PERFORMANCE FOR TENANT......................................40
ARTICLE 10 DEFAULTS AND LANDLORD'S REMEDIES......................................................................40
SECTION 10.1 DEFAULT...........................................................................40
SECTION 10.2 RE-LETTING AFTER DEFAULT..........................................................41
SECTION 10.3 ACCEPTANCE AFTER DEFAULT..........................................................42
SECTION 10.4 REMEDIES CUMULATIVE...............................................................42
ARTICLE 11 DESTRUCTION AND RESTORATION...........................................................................43
SECTION 11.1 RESTORATION.......................................................................43
SECTION 11.2 INSURANCE PROCEEDS................................................................43
SECTION 11.3 TENANT'S OBLIGATIONS FOLLOWING A CASUALTY.........................................43
SECTION 11.4 DESTRUCTION PRIOR TO COMMENCEMENT DATE............................................44
SECTION 11.5 RESTORATION AT END OF TERM........................................................44
ARTICLE 12 CONDEMNATION..........................................................................................44
SECTION 12.1 TOTAL CONDEMNATION................................................................44
SECTION 12.2 PARTIAL CONDEMNATION..............................................................45
SECTION 12.3 RESTORATION AFTER CONDEMNATION....................................................45
SECTION 12.4 BASE RENT REDUCTION...............................................................45
ARTICLE 13 ASSIGNMENT AND SUBLETTING.............................................................................46
ARTICLE 14 SUBORDINATION, NON-DISTURBANCE, NOTICE TO MORTGAGEE AND ATTORNMENT....................................46
SECTION 14.1 SUBORDINATION.....................................................................46
SECTION 14.2 MORTGAGEE PROTECTION CLAUSE.......................................................46
SECTION 14.3 ATTORNMENT........................................................................47
SECTION 14.4 COSTS.............................................................................47
ARTICLE 15 SIGNS.................................................................................................47
ARTICLE 16 TRADE FIXTURES........................................................................................48
ARTICLE 17 CHANGES AND ALTERATIONS...............................................................................48
ARTICLE 18 SURRENDER OF PREMISES.................................................................................50
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SECTION 18.1 SURRENDER OF POSSESSION...........................................................50
SECTION 18.2 REMOVAL OF TENANT'S PROPERTY; HOLDOVER RENT.......................................50
ARTICLE 19 MISCELLANEOUS PROVISIONS..............................................................................51
SECTION 19.1 RIGHT OF INSPECTION..............................................................51
SECTION 19.2 DISPLAY OF DEMISED PREMISES.......................................................52
SECTION 19.3 INDEMNITIES.......................................................................52
(A) TENANT............................................................................52
(B) LANDLORD..........................................................................53
SECTION 19.4 NOTICES...........................................................................53
SECTION 19.5 QUIET ENJOYMENT...................................................................54
SECTION 19.6 LANDLORD AND SUCCESSORS...........................................................54
SECTION 19.7 ESTOPPELS.........................................................................54
SECTION 19.8 SEVERABILITY; GOVERNING LAWS......................................................55
SECTION 19.9 BINDING EFFECT....................................................................55
SECTION 19.10 CAPTIONS.........................................................................55
SECTION 19.11 LANDLORD TENANT RELATIONSHIP.....................................................55
SECTION 19.12 MERGER OF AGREEMENTS.............................................................55
SECTION 19.13 LANDLORD'S PROPERTY..............................................................55
SECTION 19.14 SURVIVAL.........................................................................55
SECTION 19.15 REASONABLENESS...................................................................56
SECTION 19.16 REAL ESTATE BROKER...............................................................56
SECTION 19.17 EXHIBITS; RIDER PROVISIONS.......................................................56
SECTION 19.18 RECORDING........................................................................56
SECTION 19.19 FINANCIAL STATEMENTS............................................................56
SECTION 19.20. LIMITATION OF LANDLORD'S LIABILITY.............................................56
ARTICLE 20 CONTINGENCIES.........................................................................................57
SECTION 20.1 LANDLORD'S CONTINGENCIES..........................................................57
SECTION 20.2 TENANT'S CONTINGENCIES............................................................57
SECTION 20.3 WAIVER............................................................................57
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LEASE AGREEMENT
TENANT: HEALTH O METER PRODUCTS, INC.
This LEASE AGREEMENT (the "Lease") is made this 15th day of October,
1996, by and between Duke Realty Limited Partnership, a limited partnership
existing under the laws of the State of Indiana (the "Landlord") and HEALTH O
METER PRODUCTS, INC., a corporation existing under the laws of the State of
Delaware, (the "Tenant").
WITNESSETH:
A. Landlord, for and in consideration of the rents, covenants and
agreements hereinafter contained, hereby leases, rents, lets and demises, unto
Tenant, and Tenant does hereby take and hire, upon and subject to the conditions
and limitations hereinafter expressed, all that parcel of land containing
approximately 35.059 acres, more or less, situated in the Village of Glenwillow
(the "Village"), County of Cuyahoga and State of Ohio, described in Exhibit A
attached hereto and made a part hereof (the "Land"), together with all
improvements located on and to be constructed thereon pursuant to the terms and
conditions hereof. The initial improvements to be constructed on the Land by
Landlord as provided in Article 2 hereto, are referred to as the "Initial
Improvements." The improvements, if any, to be constructed by Landlord pursuant
to Tenant's right to expand as provided in Article 2A hereof are referred to as
the "Expansion Space." The Initial Improvements and the Expansion Space, if any,
are collectively referred to as "Landlord's Improvements".
B. Landlord's Improvements and all other improvements, fixtures and
other property, real, personal or mixed, except those items of Tenant's attached
or unattached personalty, which are deemed to be Trade Fixtures (as discussed in
Article 16, the "Trade Fixtures") installed or located thereon, together with
all additions, alterations and replacements thereof are collectively referred to
as the "Improvements." The Land, Landlord's Improvements and any alterations,
modifications or additions thereto are hereafter collectively referred to as the
"Demised Premises." The structures located upon and forming a part of the
Demised Premises which are constructed for human occupancy or for manufacturing,
assembly or storage of goods, merchandise, equipment, or other personal property
are collectively called the "Building."
NOW THEREFORE, for and in consideration of the mutual covenants and
conditions herein contained and for other good and valuable consideration, the
parties hereto agree as follows:
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ARTICLE 1
TERM OF LEASE
SECTION 1.1 INITIAL TERM. The initial term of this Lease (the "Initial
Term") shall be for fifteen (15) years commencing on August 1, 1997 (the
"Commencement Date") and ending on July 31, 2012 (the "Termination Date").
Notwithstanding the foregoing, the Commencement Date and Termination Date are
subject to adjustment as set forth in Section 2.5 hereof, but in no instance
shall the Initial Term be less than fifteen (15) years, unless sooner terminated
as provided herein.
SECTION 1.2 OPTIONS TO RENEW. Tenant shall have the option (or the
requirement as provided in Section 2A.3 in respect to Expansion Space) to extend
the Initial Term for up to two (2) additional periods of five (5) years each
(individually a "Renewal Term," and collectively, the "Renewal Terms") upon the
terms and conditions contained in this Lease, except that the Base Rent for the
Renewal Terms shall be as set forth in Sections 3.1 hereof. The Initial Term and
Renewal Terms, if any, are sometimes collectively referred to as the "Term."
SECTION 1.3 EXERCISE OF OPTIONS TO RENEW. The options to renew granted
in Section 1.2 hereof may be exercised by Tenant giving written notice to
Landlord (herein the "Renewal Notice") not later than twelve (12) months prior
to the expiration of the then applicable portion of the Term. Should Tenant
neglect to provide Landlord with a Renewal Notice as provided herein, Tenant's
right to exercise Tenant's option to extend (and any succeeding option) shall
expire. It shall be a condition of exercise of each option to renew that Tenant
shall not be in Default (as defined in Section 10.1) of any of the terms and
conditions of this Lease, either at the time of delivery of the Renewal Notice
in question, or at the commencement of the Renewal Term in question.
Notwithstanding the foregoing, regardless of a Renewal Notice, Tenant shall be
deemed to have exercised its option for the applicable number of Renewal Terms
in the instance of Expansion Space as provided in Section 2A.3 hereof.
ARTICLE 2
CONSTRUCTION OF IMPROVEMENTS
SECTION 2.1 INTENTIONALLY OMITTED.
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SECTION 2.2 APPROVAL OF DESIGN PACKAGE PLANS.
Landlord will cause to be prepared and delivered to Tenant for
Tenant's approval by the following dates all of the design components of the
Building in four specific design plan packages (the "Design Plan Packages"):
DATE TO BE DATE TO BE
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DESIGN PLAN DELIVERED TO AGREED UPON BY
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PACKAGE NO. DESCRIPTION TENANT LANDLORD
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AND TENANT
1 Earthwork and Site Utilities Received prior to Date of October 14, 1996
this Lease
2 Building Shell October 7, 1996 October 21, 1996
3 Warehouse Finishes November 4, 1996 November 18, 1996
4 Office Finishes (including January 20, 1997 February 3, 1997
Landscaping Plans)
The Design Plan Package No. 1 shall be prepared by M-E Civil Engineering, Inc.
(the "Civil Engineer"), an Ohio licensed engineer, all of which shall be in
substantial compliance with Tenant's Performance Criteria Specifications and
Outline Plans (the "Performance Criteria") attached hereto as Exhibit B. The
Design Plan Packages Nos. 2, 3 and 4 shall be prepared by Ford, Berry
Architects, Inc. (the "Initial Architect") an Ohio licensed architect, all of
which shall be in substantial compliance with the Performance Criteria. Upon
receipt, Tenant shall either approve or disapprove the same. If a Design Plan
Package (or a portion thereof) is disapproved, Tenant shall notify Landlord in
writing, detailing, with appropriate specificity, that portion or element of the
Design Plan Package disapproved and the reasons for such disapproval. The Tenant
shall use the submitted documents to record the written commentary, and return a
copy to the Landlord. Upon Tenant's disapproval, Landlord shall undertake to
have such disapproved element of the Design Plan Package modified and shall
promptly resubmit same to Tenant. Such submission and resubmission process shall
continue until such time as all of the components comprising the Design Plan
Packages have been approved by Tenant and Landlord but in no event later than
the dates set forth in the table above.
In the event Landlord and Tenant fail to agree on the final content of
the Design Plan Packages, Tenant and the Civil Engineer, in the event the
failure to agree is with respect to Design Plan Package No. 1 shall appoint an
independent engineer to make such determination, and in the event the
disagreement is as to Design Plan Packages Nos. 2, 3 or 4, Tenant and the
Initial
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Architect shall appoint an Independent Architect to make such determination. The
decision of the Civil Engineer or Independent Architect, as the case may be,
shall be binding on the parties.
When each of the components of the Design Plan Packages have ultimately
been approved by Tenant, Tenant and Landlord shall each affix their respective
signatures or initials to each page comprising the Design Plan Packages, and
when all components comprising the Design Plan Packages have been so signed or
initialed they shall become a part of this Lease as Exhibit C and together shall
constitute the Final Plans.
SECTION 2.3 SCOPE OF WORK. Landlord agrees to furnish at Landlord's
sole cost and expense (except in the instance of Change Orders), all of the
material, labor and equipment necessary for the commencement and completion of
construction on the Land of the Initial Improvements specified on the Final
Plans. The Initial Improvements shall be constructed using new materials in a
good and workmanlike manner in accordance with the Final Plans. Landlord agrees
to complete the construction thereof in full compliance with all Laws as then in
effect (except as such compliance may be affected as a result of work performed
or to be performed in or about the Demised Premises by Tenant or Tenant's
separate contractors). In the event any materials specified in the Final Plans
are unavailable, Landlord reserves the right to substitute materials of higher
or equal quality, provided that Tenant consents, in writing, to such
substitutions, which consents shall not unreasonably be withheld or delayed.
Landlord shall cause the Initial Improvements to be constructed, and,
as of the Commencement Date, to be in full compliance with the requirements of
the Americans With Disabilities Act of 1990, and any and all rules and
regulations theretofore issued pursuant thereto ("ADA").
SECTION 2.4 CHANGES IN WORK. Although it may constitute a Tenant
Extension (as hereafter defined), Tenant, without invalidating this Lease, may
order changes in the work (or may be deemed to have ordered changes in the work)
consisting of additions or deletions to, or other revisions in, the Final Plans
(or the Expansion Plans, if applicable and as hereafter defined), with an
appropriate adjustment, if any, for a credit to or payment by Tenant as
hereafter provided and with an appropriate adjustment, if any, to the following
hereafter defined dates: The Initial Completion Date; Commencement Date;
Expansion Commencement Date; and any applicable dates on which Landlord is
required to deliver components of the Final Plans (or Expansion Plans). Any such
changes in work which have been authorized by a written change order (which
shall be executed as hereafter provided), or have otherwise been deemed
hereunder to have been so authorized and executed, is herein sometimes referred
to as "Change Order."
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Except as hereafter provided, a Change Order is a written order signed
by Tenant and accepted, in writing, by Landlord stating in detail the change in
the work, any adjustment in the foregoing dates or the time for the preparation
of components of the Final Plans (or Expansion Plans, if applicable), and any
credit to be afforded to Tenant or any additional payment obligation to be made
by Tenant as a result thereof. If, in the instance of the Initial Improvements a
Change Order results in a credit to Tenant, meaning that the Change Order Cost
(as hereafter defined) is less than the original charge for the work being
changed, such credit shall be effected by a credit to the Base Rent first owing
under this Lease. If in the instance of either the Initial Improvements or the
Expansion Space, a Change Order results in an additional charge to Tenant,
meaning that the Change Order Cost is greater than the original charge for the
work being changed, Tenant shall pay to Landlord the Change Order Cost with
Tenant's first payment of Base Rent. The "Change Order Cost" shall be equal to
the sum of all actual costs incurred in connection with the subject change. The
actual costs of the subject change shall be the aggregate of all payment
obligations under those contracts or modifications to contracts entered into by
Landlord, including standard construction management fees, plus applicable
general conditions, which are necessary to effectuate the specific Change Order.
SECTION 2.5 COMPLETION.
(a) INITIAL IMPROVEMENT COMPLETION DATES. Subject to Permitted
Delays and Tenant Extensions, the Initial Improvements shall be Substantially
Complete (as defined in Section 2.6) or if not Substantially Complete, at least
completed to the extent that Tenant may begin to perform certain of its facility
preparation work (as described in Section 2.11), on or before June 30, 1997
(herein the "Initial Completion Date"). Subject to Tenant Extensions, all of the
Initial Improvements shall be Substantially Complete on or before the
Commencement Date.
(b) PERMITTED DELAYS-TENANT EXTENSION. The Initial Completion
Date and Commencement Date (and Expansion Commencement Date, if applicable)
shall be extended if Landlord is delayed as a result of: (1) strikes, labor
disputes, unusual delays or shortages encountered in weather, transportation,
fuel, material or labor shortages; (2) casualties, acts of God or the public
enemy; or (3) governmental embargo restrictions or action or inaction of local,
state or federal governments affecting the work (clauses (1) through (3) above
are hereinafter individually referred to as a "Permitted Delay" and collectively
as "Permitted Delays").
A "Tenant Extension" shall mean any delay encountered by Landlord as a
result of any act or omission or neglect of Tenant, including the requesting and
negotiating of Change Orders, or any act or neglect of any employee of Tenant or
by any separate
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contractor employed by Tenant, including, but not limited to the failure of
Tenant or any of Tenant's contractors to complete interior construction or
racking causing the Village to withhold its certificate of occupancy for the
Initial Improvements (or Expansion Space) as a result thereof or causing the
Initial Improvements (or Expansion Space) not to be in compliance with all
applicable laws as a result thereof.
(c) EFFECT OF PERMITTED DELAYS OR TENANT EXTENSION. Landlord
shall use best efforts to overcome or mitigate the effect of a Permitted Delay.
"Best efforts" (as used throughout this Lease) shall mean those efforts that are
commercially reasonable under the circumstances. Promptly following the
occurrence of a Permitted Delay or a Tenant Extension, Landlord, in writing,
shall notify Tenant of such occurrence. Thereafter, promptly following
Landlord's determination of the effect such occurrence will have, if any, on the
time within which the Initial Improvements (or the Expansion Space, as the case
may be) shall be Substantially Completed and ready for occupancy by Tenant and,
in the instance of a Tenant Extension, only, the additional cost, if any, to
Tenant, Landlord shall notify Tenant of same. Landlord shall endeavor to make
such determination within ten (10) days following the occurrence, but in any
event it shall be made with due diligence. In the case of continuing Permitted
Delays or Tenant Extensions, only one such notice from Landlord is necessary. In
the instance of a Permitted Delay, the Initial Completion Date, Commencement
Date, Expansion Commencement Date (as hereafter defined) shall be moved back to
the date necessary as a result of a Permitted Delay. In the instance of a Tenant
Extension, the Commencement Date or the Expansion Commencement Date, if
applicable, shall be the date on which the Initial Improvements or Expansion
Space, respectively, would have been Substantially Complete, but for the Tenant
Extension. Also, in the instance of a Tenant Extension, the Initial Completion
Date and the dates when the applicable components of the Design Plan Packages
(or Expansion Plans) must be prepared shall be moved back to the date necessary
as a result of a Tenant Extension.
(d) PROGRESS OF CONSTRUCTION. Landlord agrees to provide to
Tenant construction schedules monthly which will depict the various stages of
construction of the Initial Improvements, the progress to date, and Landlord's
estimates for completion of future stages of construction. Such schedules shall
also be updated by the Landlord from time to time in order to reflect any major
changes in construction conditions and/or in the estimated time for delivery of
the various stages of completion. Tenant may consult with the Initial Architect
in the presence of Landlord in regard to the construction schedule and suggest
methods in which such schedule may be modified in order to facilitate
Substantial Completion in accordance with the dates provided herein. If, in
Tenant's reasonable judgment, and after consultation with Landlord and the
Initial Architect, Tenant believes that the dates contained herein for the
delivery of the various stages of the
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Initial Improvements cannot be met, then Tenant shall notify Landlord in writing
of same. Landlord, upon receipt of such a notice agrees to consult with the,
Initial Architect, and the major subcontractors to insure that all reasonable
steps necessary to meet the time requirements set forth herein are being taken.
In no event, however, shall the failure of Landlord to comply with or implement
any suggestions or requests by Tenant be deemed to be a default by Landlord
hereunder. Nothing contained in the previous sentence shall be construed as a
limitation on the obligation of Landlord to use their best efforts to mitigate
the effect of any Permitted Delay hereunder.
SECTION 2.6 SUBSTANTIAL COMPLETION. Except for Tenant Extensions, the
Initial Improvements and the Expansion Space, as the case may be, shall be
deemed to be "Substantially Complete" or be deemed to have achieved "Substantial
Completion" on the date on which: (i) the improvements in question are completed
in compliance with all applicable laws (except as provided in Section 2.3
hereof) and in conformity in all material respects with the Final Plans (or the
Expansion Plans, as the case may be); and (ii) when the Village (or other
governmental authority having jurisdiction) has issued a certificate of
occupancy (or other consent to or approval of Tenant's use and occupancy as may
be necessary) of the Initial Improvements (or Expansion Space). In the event of
any disagreement between Landlord and Tenant on the issue of whether Substantial
Completion has been achieved under clause (i) above, Tenant and the Initial
Architect shall appoint an independent third party architect (the "Independent
Architect") to make such determination and the decision of the Independent
Architect shall be binding on the parties. The issuance of a certificate of
occupancy (or other consent or approval, as aforesaid, if necessary) by the
Village (or other governmental authority having jurisdiction) which is temporary
or conditional on the subsequent completion of weather-sensitive work, if any,
or completion of minor Punch List Items (as defined in Section 2.9) which do not
interfere with Tenant's use and occupancy of the Demised Premises, shall
nevertheless fulfill the requirement of clause (ii) above. In the instance of
the occurrence of Tenant Extensions, Substantial Completion of the Initial
Improvements (or the Expansion Space, if applicable) shall be the date on which
the improvements in question would have been completed in compliance with all
applicable Laws (except as provided in Section 2.3 hereof) and in conformity in
all material respects with the Final Plans (or the Expansion Plans, if
applicable) and the Village (or other governmental authority having
jurisdiction) would have issued a certificate of occupancy (or other consent or
approval, as aforesaid, as may be necessary), but for the occurrence of a Tenant
Extension.
SECTION 2.7 TENANT'S REMEDIES FOR LANDLORD DELAY. Landlord acknowledges
that Tenant's current lease expires on June 30, 1997 and Tenant will incur
significant expense in the event
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the time periods for Substantial Completion as set forth in this Lease are not
met. Accordingly, Landlord agrees as follows:
(a) Subject to Permitted Delays and Tenant Extensions, in the event
that Substantial Completion of all of the Initial Improvements is not achieved
on or before July 31, 1997, then for each day that Substantial Completion is
delayed beyond said date, the Commencement Date shall be extended by one day.
(b) In addition, subject to Permitted Delays and Tenant Extension, in
the event that Substantial Completion of all of the Initial Improvements is not
achieved on or before August 22, 1997, then for each day that Substantial
Completion is delayed beyond said date, Tenant shall be entitled to full
abatement of one (1) day of Base Rent following the Commencement Date.
SECTION 2.8 WARRANTY. Subject to Section 2.3 hereof with respect to
compliance with ADA and Landlord's, and Tenant's respective obligations in
regard thereto, Landlord represents and warrants that all Initial Improvements
to be constructed hereunder shall be constructed in full compliance with all
applicable Laws and Landlord represents and warrants that the Initial
Improvements shall be constructed in full compliance with all Laws (except as
provided in Section 2.3 hereof) and in accordance with the Final Plans in all
material respects. Landlord warrants all portions of the Initial Improvements
constructed pursuant to the Final Plans for a period of one (1) year after
Substantial Completion thereof, plus, for any Warranty Work, one (1) year after
the date of completion of such Warranty Work (herein the "Warranty Period").
After the conclusion of the Warranty Period, Landlord shall assign and transfer
to Tenant all warranties then in effect which were given to Landlord (except any
such warranties with respect to portions of the Initial Improvements for which
Landlord retains Landlord's Repair obligations). If, during the Warranty Period,
Tenant notifies Landlord in writing of defective work in the design or
construction of the Initial Improvements, Landlord shall promptly cause such
defective work to be corrected.
In the event Landlord performs any work during the Warranty Period for
purposes of correcting any specific defect in the work (hereinafter referred to
as "Warranty Work"), such Warranty Work, as provided above, shall be warranted
by Landlord for a period of one (1) year from the date performed. The warranty
which is provided hereunder is limited in certain respects, and is conditioned
on certain user performance criteria, as follows:
(a) Tenant agrees to use Landlord's Improvements in accordance with the
design capacities and criteria established for same. Tenant acknowledges that
any material misuse of same may void the warranty hereunder, and may void any
manufacturers' warranties which may be assigned to Tenant hereunder.
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(b) In addition to the foregoing, the warranty hereunder shall not
extend to the electrical, plumbing and mechanical systems servicing the Building
unless said systems are maintained and operated in substantial compliance with
the manufacturers' specifications for same by one or more professionals
experienced in the maintenance and servicing of such systems at least through
the Warranty Period (provided that Landlord provides Tenant with copies of
manufacturers' specifications or maintenance manuals or other similar
information to enable Tenant to properly meet its obligations hereunder).
Landlord shall be responsible for initially providing training to Tenant's
operating and maintenance personnel (up to three people) with respect to the
above referenced Building Systems
(c) Warranty Work hereunder shall not in any way include, or require
Landlord to perform, any routine and appropriate regular maintenance of the
Landlord's Improvements required to be performed by Tenant during the Warranty
Period as part of Tenant's Repairs (see Section 6.2 below).
(d) The warranty hereunder specifically excludes (and Tenant waives any
claims with respect to) damages to Tenant's products, equipment, or other
personal property which may be located within the Demised Premises, Tenant
hereby acknowledging and agreeing that it has acquired (or will acquire), and
will maintain, appropriate amounts of insurance in order to manage said risks.
(e) The obligations under this warranty shall be to correct those
portions of the Landlord's Improvements which are not constructed in conformance
with Final Plans (or Expansion Plans, as the case may be), are defective, or
which fail due to faulty design or workmanship.
SECTION 2.9 PUNCH LIST. Landlord shall notify Tenant of the date which
is approximately seven (7) days prior to the estimated date on which Substantial
Completion for the Initial Improvements is expected to be achieved (herein
referred to as "Inspection Date"). Landlord, and Tenant shall, on the Inspection
Date, make a joint physical inspection of the Building to list the items of work
to be completed (herein referred to as "Punch List Items"). Landlord shall
deliver, in writing, Landlord's promise to complete the Punch List Items within
such reasonable period of time in respect to each item as is necessary to
complete same, taking into account diligence and good workmanlike practices. In
the event of a disagreement between the parties as to the inclusion or the
exclusion of an item on the "Punch List," Tenant and the Initial Architect shall
appoint an Independent Architect to make such determination and the decision of
the Independent Architect (which decision shall be based solely on the
determination of whether the item in question was constructed in conformity with
Final Plans) shall control.
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SECTION 2.10 INDEMNITY.
(a) Landlord agrees to indemnify and save Tenant harmless from
and against any and all loss, cost or damage that Tenant may sustain, including,
without limitation, reasonable attorney's fees incurred by Tenant in connection
with any claim, lien, charge, encumbrance or action brought, maintained or filed
by any party for any labor performed or materials furnished for or in connection
with the Initial Improvements.
(b) Further, Landlord shall indemnify and hold harmless
Tenant, its agents and employees from and against all claims, damages, losses
and expenses, including reasonable attorney's fees (except to the extent caused
by the negligence or willful misconduct of Tenant, its agents, employees or
contractors) to the extent arising out of or resulting from the performance of
any work in connection with the construction of the Initial Improvements,
provided that any such claim, damage, loss or expense is (i) attributable to
bodily injury, sickness, disease or death, or due to injury to or destruction of
tangible property (other than the Improvements); and (ii) caused by any
negligent or willful misconduct of Landlord or any of Landlord's employees,
contractors, subcontractors or anyone directly or indirectly employed by any of
them or anyone for whose acts any of them may be liable.
(c) Tenant shall indemnify and hold harmless Landlord, its
agents and employees from and against all claims, damages, losses and expenses,
including reasonable attorney's fees (except to the extent caused by the willful
misconduct of Landlord, Landlord's agents, employees or contractors) to the
extent arising out of or resulting from the performance of any work in
connection with Tenant's use and occupancy of the Demised Premises to complete
its facility preparation provided that such claim, damages, loss or expense is
(i) attributable to bodily injury, sickness, disease or death, or due to injury
to or destruction of tangible property; and (ii) caused by any negligent or
willful misconduct of Tenant or any of Tenant's employees, contractors,
subcontractors or anyone directly or indirectly employed by any of them or
anyone of whose acts any for them may be liable.
(d) Tenant and Landlord shall promptly notify the other party
of any claim under the indemnities contained in this Section 2.10 of which
Landlord or Tenant has knowledge.
SECTION 2.11 EARLY OCCUPANCY . Landlord will use good faith efforts to
allow Tenant to take possession of the warehouse portion of the Leased Premises
on or before June 30, 1997 for fixturing purposes. Tenant agrees to coordinate
its fixturing work with the work of the Landlord such that Tenant's work does
not interfere with or delay Landlord's work; provided, however, that neither
Landlord nor any of Landlord's affiliates shall have
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any responsibility or liability whatsoever for any injury (including death) to
any persons or loss or damage to any of Tenant's leasehold improvements,
fixtures, equipment or any other materials installed or left in the Leased
Premises prior to the Commencement Date unless and to the extent such injury or
damage is caused by the negligence or willful misconduct of Landlord or any of
Landlord's employees, contractors, subcontractors or anyone directly or
indirectly employed by any one of them or anyone for whose acts any of them may
be liable. All of the terms and conditions of this Lease will become effective
upon Tenant taking possession of the Leased Premises except for the payment of
rent, which will commence on the Commencement Date.
ARTICLE 2A
EXPANSION OF DEMISED PREMISES
SECTION 2A.1 OPTION TO EXPAND.
(a) EXPANSION NOTICE. Provided (i) Tenant is not then in
material default hereunder, and (ii) Tenant's "Stockholder's Equity" as shown on
Tenant's most recently prepared quarterly consolidated balance sheet, as of the
date of Tenant's delivery of the Expansion Notice, is greater than or equal to
Tenant's "Stockholder's Equity," as of the date hereof, by written notice
provided to Landlord (herein an "Expansion Notice"), Tenant shall have the
right, at any time (or times, up to a maximum of twice) during the Initial Term,
to direct Landlord to prepare Expansion Plans (defined below) and to construct
the Expansion Space. Tenant's Expansion Notice shall request Expansion Space of
at least 80,000 square feet but not more than 160,000 square feet of additional
manufacturing, assembly, warehouse or office space as Tenant may determine is
necessary or desirable, provided such size is in compliance with the parameters
hereafter provided and would then be in compliance with all Village codes, and
other applicable governmental laws, statutes, ordinances, rules and regulations
and further provided that the percentage of office space to be included within
the Expansion shall not exceed twenty percent (20%) of the Total Expansion
Space. Tenant shall have the right to direct Landlord to construct the Expansion
Space in increments of 80,000 square feet over the Initial Term of this Lease.
The Expansion Space shall be constructed on that portion of the Land delineated
as "Expansion" on the Final Plans.
Tenant's Expansion Notice shall contain the following information:
(1) The desired size of the Expansion Space (at least 80,000
square feet but not greater than 160,000 square feet;
(2) The proposed configuration and other relevant data
concerning the desired Expansion Space (provided the
Expansion Space shall be in conformity with the clear height
of the Initial Improvements, and in conformity with the
architecture, engineering
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and general aesthetics of the Initial Improvements), all in
sufficient detail to enable Landlord to reasonably determine
the Expansion Cost (as hereafter defined) thereof; and
(3) The estimated date on which Tenant requests that the
Expansion Space be completed and ready for occupancy for
Tenant's use (which date shall in no case be earlier than
nine (9) months after Tenant's approval of the Expansion
Plans).
SECTION 2A.2 LANDLORD'S PROPOSED EXPANSION SPACE PARAMETERS. Within
thirty (30) days following Landlord's receipt of the Expansion Notice, Landlord
shall consult with Tenant concerning Tenant's specific requirements in regard to
its need for expansion, and within said time period shall notify Tenant, in
writing, of Landlord's proposal (which shall not be binding on Landlord or
Tenant, but shall nonetheless be given, in good faith, by Landlord) of: (a) the
size of the Expansion Space that Landlord is willing and able to construct in
accordance with the then applicable ordinances of all governmental authority
having jurisdiction over the Demised Premises and in accordance with the
parameters set forth in Section 2A.1 above; (b) Landlord's estimate of the total
Expansion Costs (defined in Section 2A.10 hereof) which will be incurred in
planning and constructing the Expansion Space and other Land improvements or
modifications necessary to accommodate the Expansion Space; and (c) Landlord's
estimate, based on the Expansion Costs, of the Expansion Space Rent as provided
in Section 3.1 (b) hereof.
SECTION 2A.3 TENANT'S NOTICE TO PROCEED AND EXPANSION SPACE TERM.
Within thirty (30) days following receipt of Landlord's proposal set forth in
Section 2A.2 above, Tenant shall notify Landlord, in writing ("Notice to
Proceed"), that (i) Tenant authorizes Landlord to proceed with the preparation
of Expansion Plans, and the commencement of construction of the Expansion Space
(as hereafter provided); or (ii) Tenant elects not to expand. If Tenant fails to
serve said Notice to Proceed on Landlord within said thirty (30) day period,
then Tenant shall be deemed to have elected not to expand. However, if a Notice
to Proceed is given by Tenant authorizing the planning and construction of the
Expansion Space, then concurrently therewith Tenant shall be deemed to have
exercised that number of Renewal Terms that is necessary to extend the Term for
a period of not less than fifteen (15) years following the Expansion
Commencement Date (as hereafter defined). That portion of the Term equal to
fifteen (15) years on and after the Expansion Commencement Date plus that
portion of the applicable Renewal Term remaining after the expiration of said
fifteen (15) years is hereafter referred to as the "Expansion Space Term." By
way of example, if the Expansion Commencement Date occurs on the seventh (7th)
anniversary of the Commencement Date, by delivery of the Notice to Proceed,
Tenant shall be deemed to have elected to extend the Term for two (2) Renewal
Terms, the
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Term will be for not less than eighteen (18) years and the Expansion Space Term
shall be for fifteen (15) years.
SECTION 2A.4 PREPARATION OF EXPANSION PLANS. Following the date
Landlord receives the Tenant's Notice to Proceed, Landlord shall cause to be
prepared and delivered to Tenant all of the components of plans and
specifications for the Expansion Space (herein, the "Expansion Plans") prepared
by an Ohio licensed architect ("Expansion Architect") reasonably acceptable to
Tenant, and in substantial conformity with the Expansion Notice.
Said components of the Expansion Plans will be prepared for delivery as
follows: (i) on or prior to the date sixty (60) days following Landlord's
receipt of the Notice to Proceed, Landlord shall cause to be delivered to Tenant
the base building plans component of the Expansion Plans in substantial
compliance with the Landlord's proposal set forth in Section 2A.2, and which
shall be in a form sufficiently complete to enable the issuance of a building
permit by the Village for the construction of the base building portion of the
Expansion Space. Within thirty (30) days after Tenant's approval of said base
building plans component of the Expansion Plans as hereafter provided, Landlord
shall cause to be delivered to Tenant the final plan component of the Expansion
Plans (which shall contain substantially similar components as the Final Plans
for the Initial Improvements).
If: (i) each component submitted by Landlord is in substantial
compliance with the Expansion Notice; and (ii) the character and quality of the
systems and improvements described in the final plan component of the Expansion
Plans are consistent with the character and quality of the improvements
described in the base building component of the Expansion Plans, Tenant agrees
that it will not unreasonably withhold its approval of any such submitted
component, except for just and reasonable cause, and Tenant further agrees not
to act in an arbitrary and capricious manner with respect to approval of such
components. Any disapproval of the components by Tenant which, in order to
obtain Tenant's approval upon resubmission, requires a revision thereto, which
revision in Landlord's reasonable opinion is a substantial deviation from the
Expansion Notice shall be deemed a Change Order as set forth in Section 2.7
hereof. Landlord, within seven (7) days following Landlord's receipt of such
deviating disapproved component shall notify Tenant, in writing, of Landlord's
good faith estimate of the amount, if any, of delay in the completion of
construction of the Expansion Space and, if applicable, the extra cost to or
savings to Tenant resulting from the requested revision. In no instance shall
Tenant be permitted to order such deviation if such deviation would cause the
Expansion Plans not to be in compliance with all applicable laws.
When each of the components of the Expansion Plans have been ultimately
approved by Tenant, Tenant and Landlord shall each affix their respective
signatures or initials to each page
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comprising such component. Thereafter, such approved components shall constitute
the Expansion Plans and shall be deemed a part of this Lease as Exhibit C.
SECTION 2A.5 EXPANSION COMMENCEMENT DATE. Except for Permitted Delays
and Tenant Extensions, the Expansion Space shall be Substantially Completed on
the date (herein the "Expansion Completion Date") which is nine (9) months
following the final approval of all of the Expansion Plans. In the event that
the Landlord Substantially Completes the Expansion Space on a date which is
later than the date nine (9) months after the approval of the Expansion Plans
(or earlier if Tenant commences use or occupancy of the Expansion Space) such
later or earlier date, as the case may be, shall be the "Expansion Commencement
Date." On the Expansion Commencement Date, the Expansion Space shall be deemed
to be part of the Demised Premises. Notwithstanding the foregoing, in the event
of Tenant Extensions, the Expansion Commencement Date shall be the date on which
the Expansion Space would have been Substantially Complete, but for Tenant
Extensions.
SECTION 2A.6 SCOPE OF WORK - EXPANSION SPACE Subject to Permitted
Delays, promptly following the approval of the Expansion Plans, Landlord agrees
to furnish, at Landlord's sole cost and expense (except in the instance of
Change Orders), all the material, labor and equipment necessary for the
commencement and completion of construction of the Expansion Space. The
Expansion Space shall be constructed in a good and workmanlike manner using new
materials in accordance with the Expansion Plans, and Landlord agrees to
complete the construction thereof in full compliance with all Laws as then in
effect, except as such compliance may be affected as a result of any work to be
performed by or on behalf of Tenant (other than by Landlord) in the Expansion
Space on or prior to the Expansion Commencement Date. In the event Tenant
requires any such work to be performed, Tenant shall timely advise Landlord, in
writing, of the plans and specifications for such work. In the event Landlord
approves such plans and specifications, Landlord shall cause the Expansion
Space, on the Expansion Commencement Date to be in full compliance with all
Laws, including ADA. In the event Tenant subsequently modifies such approved
plans and specifications or Tenant's separate contractors fail to perform such
work in compliance with such approved plans and specifications, then the
procedures in respect to such subsequent modification or the affect of Tenant's
separate contractors to comply with the approved plans and specifications shall
be considered a Tenant Extension with respect to the Expansion Space.
SECTION 2A.7 EXPANSION CHANGE ORDERS. Tenant shall be allowed to
request Change Orders with respect to the Expansion Space in the same manner and
with the same effect as Change Orders to the Initial Improvements. Any Change
Orders with respect to the Expansion Space shall modify the Expansion Costs,
upwards or downwards, as the case may be, that is set forth in the proposal
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required to be delivered by Landlord to Tenant pursuant to Section 2A.2 hereof.
Any increase in the amount of the Expansion Costs set forth in said Landlord's
proposal as a result of a Change Order in respect to the Expansion Space shall
be paid by Tenant within thirty (30) days of Tenant's receipt of an invoice
therefor.
SECTION 2A.8 WARRANTY AS TO EXPANSION SPACE. Landlord shall warrant all
portions of the improvements constructed pursuant to the Expansion Plans for a
period of one (1) year after Substantial Completion thereof, under the same
terms, conditions and undertakings, and with the same limitations as set forth
in Section 2.8 above.
SECTION 2A.9 EXPANSION PUNCH LIST. Landlord shall notify Tenant of the
date which is approximately seven (7) days prior to the estimated date on which
Substantial Completion for the Expansion Space is expected to be achieved
(herein referred to as "Expansion Inspection Date"). Landlord and Tenant shall,
on the Expansion Inspection Date, make a joint physical inspection of the
Expansion Space to list any items of work to be completed or corrected (herein
referred to as "Expansion Punch List Items"). Landlord shall deliver, in
writing, its promise to complete the Expansion Punch List Items, within such
reasonable period of time in respect to each item as is necessary to complete
same, taking into account diligence and good workmanlike practices. In the event
of a disagreement between the parties as to the inclusion or the exclusion of an
item as an Expansion Punch List Item, Tenant and the Expansion Architect shall
appoint an Independent Architect to make such determination, and the decision of
the Independent Architect (which decision shall be based solely on the
determination of whether the item in question was constructed in substantial
conformity with the Expansion Plans) shall control.
SECTION 2A.10 EXPANSION COSTS. For purposes of determining the Base
Rent for the Expansion Space for the fifteen (15) year period of the Term
occurring on and after the Expansion Commencement Date, "Expansion Costs" shall
be the aggregate of all payment obligations of those contracts for so-called
"hard costs" and "soft costs," including, but not necessarily limited to, all
actual construction costs, direct project overhead, insurance, reasonable
construction interest costs, architect's and engineer's fees, permit fees
(including impact fees imposed by any governmental authority) and other
municipality costs, which are incurred by or on behalf of Landlord for the
construction of the Expansion Space pursuant to the Expansion Plans. Landlord
agrees to conduct its construction of the Expansion Space on an "open-book"
basis so that Tenant shall have the opportunity to review and verify all of the
component elements that comprise the Expansion Costs.
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ARTICLE 3
RENT
SECTION 3.1 BASE RENT. Tenant shall pay to Landlord at such place or to
such other party as Landlord may from time to time designate in writing, in coin
or currency which, at the time of payment, is legal tender for private or public
debts of the United States of America, base rent (the "Base Rent") during the
Term, which shall be the sum applicable for the Initial Improvements described
in sub-paragraph (a) below, plus the sum applicable for the Expansion Space Rent
(if any) described in sub-paragraph (b) below.
(a) BASE RENT FOR INITIAL IMPROVEMENTS. Subject to adjustments referred
to in Section 3.3, if any, for each of the following periods during the Term,
the Base Rent applicable for the Initial Improvements shall be as follows:
(1) INITIAL TERM. Base Rent for the Initial Improvements for the
Initial Term shall be as follows:.
Years 1-5 $3.32 per square foot
Years 6-10 $3.74 per square foot
Years 11-15 $4.19 per square foot
On or before the Commencement Date, Landlord shall deliver to
Tenant the Initial Architect's determination of the square
footage contained within the Building. Tenant shall have the
right to review and approve such determination and in the event
of a disagreement between the parties as to the square footage
contained within the Building, Tenant and the Initial Architect
shall appoint an Independent Architect to make such
determination, and the decision of the Independent Architect
shall control.
(2) RENEWAL TERM. Base Rent for the Initial Improvements
for the Renewal Term shall be the greater of (a) Base
Rent for the Initial Improvements during the Initial
Term or the last year of the preceding Renewal Term, as
the case may be, and (b) ninety-five percent (95%) of
the "Fair Market Base Rent" determined pursuant to
Section 3.1(c) below.
(b) EXPANSION SPACE RENT. For each of the following periods during the
Term on and after the Expansion Commencement Date, Tenant shall pay to Landlord,
as Base Rent for the Expansion Space, the following amounts ("Expansion Space
Rent"):
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(1) EXPANSION SPACE TERM. As of the date this Lease is executed,
Landlord shall determine the "Spread" defined as the difference
between the yield on 20-year United States Treasury Bonds on the
date this Lease is executed and 9.75%. For the period commencing
on the Expansion Commencement Date to the end of the fifth year
of the Expansion Space Term, the Expansion Space Rent shall be
the annual amount equal to the Expansion Costs (as defined in
Section 2A.10 hereof) multiplied by the greater of (i) the sum of
the Spread plus the yield on 20-year United States Treasury Bonds
on the Expansion Commencement Date or (ii) 9.00%, with such
product then being divided by 97.5% to take into account a 2.5%
vacancy factor, and then adding a $.05 per square foot structural
reserve. Notwithstanding the foregoing sentence, in the event
that at the time that Tenant delivers the Expansion Notice to
Landlord, the yield on 20-year Treasury Bonds has increased to
such an extent that it would be advantageous for Tenant to fund
the proposed expansion through other sources available to Tenant,
then Tenant, at the time of delivery of such Expansion Notice,
shall be given the opportunity to negotiate with Landlord with
respect to such other funding of the expansion, provided that an
acceptable return for Landlord with respect to the expansion
project can be agreed upon by the parties. Based upon the
foregoing computations, within seven (7) days after the Expansion
Commencement Date, Landlord shall advise Tenant, in writing, of
the amount of the Expansion Space Rent and Landlord's calculation
thereof as provided above. The Expansion Space Rent shall
increase every five (5) years of the Expansion Space Term
commencing on the fifth (5th) anniversary date of the Expansion
Commencement Date and every five (5) years thereafter by twelve
and one-half percent (12 1/2%) over the Expansion Space Rent
payable during the immediately preceding five (5) year period.
For example, assuming the 20-year Treasury Bond rate on the Lease
execution date is 6.94%, and such rate is 8.00% on the Expansion
Commencement Date, and the Expansion Costs for a requested
160,000 square foot expansion totaled $4,800,000, the annual
Expansion Space Rent for the first five years of the Expansion
Space Term would be $540,185.00, calculated as follows:
$4,800,000 x (9.75% - 6.94% + 8.00%) / 97.5% + (160,000 x $.05) =
$540,185.00
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(2) RENEWAL TERMS. The Expansion Space Rent for the Renewal Terms
shall be the greater of (a) the Expansion Space Rent required to
be paid by Tenant during the last year of the Expansion Space
Term or the last preceding Renewal Term, as the case may be, and
(b) ninety five percent (95%) of the Fair Market Base Rent for
the Expansion Space determined pursuant to Section 3.1(c) below.
(c) FAIR MARKET BASE RENT DETERMINATION. The parties agree that the
Base Rent for the Initial Improvements or for the entire Demised
Premises, as applicable, for the applicable Renewal Term, shall
be the current market rent then being charged by landlords for
new tenants (as opposed to a "renewing tenant") in arms length
bona fide negotiations of similar size and stature to Tenant for
buildings comparable to the Building in the Solon/Glenwillow
suburban market and taking into account all allowances and
concessions provided, or paid to tenants, including, but not
limited to: free rent, tenant improvements, buy-out of existing
leases, signing bonuses, relocation expenses, and payment of
service providers such as architects and brokers.
In the event that the foregoing rent determination cannot
reasonably be made, then, the Fair Market Base Rent for the
applicable Renewal Term shall be determined by appraisal, and
Landlord, in a notice to Tenant sent fifteen (15) months prior to
the commencement of a Renewal Term, shall notify Tenant of the
identity of Landlord's third-party appraiser. Tenant, within
fifteen (15) days of receipt of Landlord's notice, shall
identify, in writing, its third-party appraiser. Thereafter,
within fifteen (15) days after Tenant identifies to Landlord its
third-party appraiser, both third-party appraisers shall mutually
agree on the designation of a third-party, independent appraiser
("Independent Appraiser"). If a party fails to identify its
third-party appraiser or the identified appraisers fail to
mutually agree on the designation of an Independent Appraiser,
then such unidentified or undesignated appraiser shall be
appointed by the Chief Judge of the United States District Court
for the Northern District of Ohio, Eastern Division. Landlord
shall pay all costs associated with the appraiser designated by
Landlord; Tenant shall pay all costs associated with the
appraiser designated by Tenant; and Landlord and Tenant shall
share equally in all costs associated with the Independent
Appraiser. All three appraisers shall be reputable real estate
appraisers, each of whom shall be knowledgeable and experienced
in the appraisals of
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rent for office-warehouse-manufacturing buildings in the Cuyahoga
County, Ohio suburban and, in particular, the Solon/Glenwillow
market.
Fair Market Base Rent shall be determined based upon such
criteria as the appraisers deem appropriate, but such criteria
shall include: (1) the then current use of the Demised Premises;
(2) the size and condition of the entire Demised Premises; (3)
the duration of the Renewal Term; and (4) rental rates then being
charged by landlords for new tenants of similar size and stature
in the Solon/Glenwillow suburban market.
After their appointment, the appraisers shall be directed to
independently determine the Fair Market Base Rent, which shall
include a determination of appropriate periodic increases to the
Fair Market Base Rent as so determined during the period for
which the determination is being made, and which shall be
determined on a per square foot basis. Within thirty (30) days
after the designation of the Independent Appraiser, all three
appraisals of the Fair Market Base Rent shall be submitted, in
writing, to Landlord and Tenant. The weighted-average of the Fair
Market Base Rent determined by the appraisers as aforesaid shall
be used in determining the Base Rent for the applicable Renewal
Term as provided in Section 3.1(a) and (b) hereof.
If the Fair Market Base Rent is not determined until after the
commencement of any such subsequent period, Tenant shall continue
to pay the Base Rent paid in the year immediately preceding. When
the Fair Market Base Rent is determined as provided above, and if
such determination would have caused the Base Rent for the
Initial Improvements or the entire Demised Premises, as
applicable, for the subsequent period to increase, within thirty
(30) days following such determination, Tenant shall pay to
Landlord the deficiency of the Base Rent theretofore paid,
prorated from the commencement of the subsequent period to the
date paid.
SECTION 3.2 RENT PAYABLE WITHOUT PRIOR DEMAND; MAXIMUM RATE OF
INTEREST. Except as set forth herein, all payments of Base Rent for the Initial
Improvements and, if applicable, Expansion Space and Additional Rent (as
hereafter defined) shall be payable without previous demand therefor. If the
Initial Term or any Renewal Term commences other than on the first day of a
month or ends other than on the last day of a month, the Base Rent for such
month and such portion of the Demised Premises shall be pro-rated accordingly.
Except as specifically provided herein, the Base Rent shall be absolutely net to
Landlord so that this Lease shall yield, net to Landlord, the Base Rent
specified in
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Section 3.1. Except as otherwise provided herein, in each year of the Term, all
impositions, insurance premiums, utility charges, maintenance, repair and
replacement expenses (except for Warranty Work, Landlord's Repairs and Punch
List Items), all expenses relating to Compliance with Laws (as hereafter
defined) chargeable to Tenant in accordance with the terms of Section 7.1
hereof, and all other costs, fees, charges, expenses, reimbursements and
obligations of every kind and nature whatsoever relating to the Demised Premises
which may arise or become due during the Term or by reason of events then
occurring shall be paid or discharged by Tenant as additional rent
(collectively, the "Additional Rent"). Tenant hereby agrees to indemnify, defend
and save Landlord harmless from and against any and all such impositions,
insurance premiums, utility charges, maintenance, repair and replacement
expenses, all expenses relating to Compliance with Laws chargeable to Tenant in
accordance with the terms of Section 7.1 hereof, and all other costs, fees,
charges, expenses, reimbursements and obligations. Base Rent, Additional Rent
and all other payment obligations of Tenant to Landlord hereunder are sometimes
hereinafter collectively referred to as "Rent." In case of nonpayment by Tenant
of any item of Rent payable to Landlord when the same is due, Landlord,
following five (5) days' notice to Tenant, shall have, in addition to all its
other rights and remedies, all of the rights and remedies available to Landlord
under the provisions of this Lease or by law as if in the case of nonpayment of
Base Rent. The performance and observance by Tenant of all the terms, covenants,
conditions and agreements to be performed or observed by Tenant hereunder shall
be performed and observed by Tenant at Tenant's sole cost and expense.
Any installment of Base Rent or Additional Rent payable to Landlord or
any other charges payable by Tenant to Landlord under the provisions hereof
which shall not be paid when due shall bear interest at an annual rate equal to
three (3.0%) percentage points per annum in excess of the rate of interest from
time to time announced by KeyBank National Association (or similar institution
if said bank shall cease to exist or to publish such a rate) as its corporate
base rate of interest, but in no event in excess of the maximum lawful rate
permitted to be charged by Landlord against Tenant plus an administrative charge
equal to one percent (1%) of such late payments. Said rate of interest is
sometimes hereinafter referred to as the "Maximum Rate of Interest".
Notwithstanding the foregoing, Tenant shall be granted a "grace" period two (2)
times per any consecutive twelve (12) month period during the Term for which
interest on late payments shall not be charged provided same are received by
Landlord within five (5) days following written notice from Landlord to Tenant.
SECTION 3.3. GOVERNMENTAL ASSISTANCE. Base Rent shall be reduced in the
event Landlord receives contributions from any governmental entity for on-site
costs which are part of Landlord's original scope of work. The reduction in Base
Rent
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shall be calculated as the product of the total cost savings multiplied by
9.75%. Such reduction, however, does not apply to off-site costs, such as road
curb cuts, deceleration lanes or sewer extensions which are not a part of
Landlord's original cost estimates.
ARTICLE 4
PAYMENT OF TAXES, ASSESSMENTS, ETC.
SECTION 4.1 ADDITIONAL RENT. Tenant covenants and agrees to pay as
Additional Rent, before any fine, penalty, interest or cost may be added thereto
for the nonpayment thereof, all real estate taxes, special assessments, water
rates and charges, sewer rates and charges, including any sum or sums payable
for sewer or water capacity, charges for public utilities (the charges for the
electric power portion thereof to be at rates charged by the applicable
regulated utility providing such electricity, at Tenant's request), insurance
premiums, street lighting, excise levies, licenses, permits, governmental
inspection fees (incurred after Substantial Completion) and all other charges or
burdens of whatsoever kind and nature (including costs, fees, and expenses of
complying with any restrictive covenants or similar agreements to which the
Demised Premises is subject) incurred in the use, occupancy, operation, leasing
or possession of the Demised Premises (except as otherwise provided in Section
4.3 hereof), without particularizing by any known name or by whatever name
hereafter called, and whether any of the foregoing be general or special,
ordinary or extraordinary, foreseen or unforeseen (collectively, "Impositions"),
which at any time during the Term may be payable. Landlord represents that it
has received no notice of any change in the assessed valuation of the Land or
any special assessment applicable to the Land. Tenant shall pay all components
of Additional Rent as set forth in this Section 4.1 directly to the applicable
public utility or other entity.
Notwithstanding anything to the contrary herein, Landlord agrees that
Impositions shall not include: (i) leasing commissions and attorneys fees
incurred in connection with the negotiation and execution of this Lease; (2)
costs incurred by Landlord in the discharge of its obligations under this Lease;
(3) any amortization or depreciation on the Building; (4) costs incurred by
Landlord to the extent due to a violation by Landlord of any of the terms of
this Lease; (5) interest on debt or amortization payments on any mortgages or
any other debt for borrowed money; (6) repairs or other work occasioned by fire,
windstorm, or other casualty to the extent same are paid by the proceeds of
insurance or condemnation awards; and (7) costs incurred to the extent resulting
from the failure of the Building to comply with any applicable law, rule,
regulation, or code in effect as of the Commencement Date of any governmental
authority having jurisdiction over the Building.
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Tenant shall pay all special (or similar) assessments or installments
thereof (including interest thereon) for public improvements or benefits which,
during the Term shall be laid, assessed, levied or imposed upon or become a lien
upon the Demised Premises and which are payable during the Term, or any portion
thereof; provided, however, that if by law any special assessment is payable
(without default) or, at the option of the party obligated to make such payment,
may be paid (without default) in installments (whether or not interest shall
accrue on the unpaid balance of such special assessment), Tenant may pay the
same, together with any interest accrued on the unpaid balance of such special
assessment in installments as the same respectively become payable and before
any fine, penalty, interest or cost may be added thereto for the nonpayment of
any such installment and the interest thereon.
Except as hereafter provided, Tenant shall pay all special assessments
or installments thereof (including interest accrued thereon), whether heretofore
or hereafter laid, assessed, levied or imposed upon the Demised Premises, or any
portion thereof, which are due and payable during the Term (regardless of the
period to which such assessments relate). Landlord shall pay all installments of
special assessments (including interest accrued on the unpaid balance) which are
payable prior to the commencement and after the termination of this Lease.
Except as hereafter provided, Tenant shall pay all real estate taxes, whether
heretofore or hereafter levied or assessed upon the Demised Premises, or any
portion thereof, which are due and payable during the Term (regardless of the
period to which such taxes relate). Provisions herein to the contrary
notwithstanding, Landlord shall pay that portion of the real estate taxes and
installments of special assessments due and payable in respect to the Demised
Premises during the year the Term commences and the year in which the Term ends
which the number of days in said year not within the Term of this Lease bears to
365, and except as hereafter provided, Tenant shall pay the balance of said real
estate taxes and installments of special assessments during said years. The
provisions of this Section 4.1 shall survive the expiration or earlier
termination of this Lease.
In the event the Land is currently taxed as part of a larger parcel for
real estate tax purposes, promptly upon the execution of this Lease, Landlord
will use good faith efforts to have the Land divided into a separate and
distinct real estate tax parcel. Until such time as said tax division occurs,
Landlord shall compute the portion of the real estate tax bill attributable to
the Demised Premises and which portion is attributable to other property, if
necessary.
Landlord agrees to provide copies of all tax bills and Landlord's
calculation of Tenant's proportionate share of the Real Estate taxes (until the
tax division) promptly upon receipt of the tax bill. After the tax division of
the Land occurs, Landlord will cause all real estate tax bills, assessments and
notices to
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be sent directly to Tenant, and Tenant agrees promptly to furnish copies of same
to Landlord. Tenant's address for real estate tax purposes shall be the address
for the Leased Premises.
SECTION 4.2 RIGHT TO CONTEST IMPOSITIONS. Landlord agrees to notify
Tenant of any Impositions as soon as possible so as to enable Tenant, if it so
elects, to contest the validity, amount, propriety, or accuracy of any
Imposition in a timely manner. If Tenant desires to contest the validity,
amount, propriety, or accuracy of any Imposition, Tenant shall notify Landlord
of same which notice shall state the nature of the Imposition being contested
and the grounds for such contest.
Tenant shall have the right, at its own expense, to contest the amount,
propriety, accuracy, or validity, in whole or in part, of any Imposition by
appropriate proceedings diligently conducted in good faith, but only after
payment of such Imposition, unless non-payment would not cause a lien to be
filed against title to the Demised Premises or would otherwise jeopardize title
to the Demised Premises or Tenant's leasehold interest therein; in which event,
notwithstanding the provisions of Section 4.1 hereof, Tenant may postpone or
defer payment of such Imposition. Upon the termination of any such proceedings,
Tenant shall pay the amount of such Imposition or part thereof, if any, as
finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with any costs,
fees, including attorney's fees, interest, penalties, fines and other liability
in connection therewith. Tenant shall be entitled to the refund of any
Imposition, penalty, fine and interest thereon received by Landlord or that are
paid directly to Tenant which have been paid by Tenant or which have been paid
by Landlord but for which Landlord has been previously reimbursed in full by
Tenant.
Landlord shall not be required to join in any proceedings referred to
in this Section 4.2 unless the provisions of any law, rule or regulation at the
time in effect shall require that such proceedings by brought by or in the name
of Landlord, in which event Landlord shall join in such proceedings or permit
the same to be brought in Landlord's name upon compliance with such conditions
as Landlord may reasonably require. Landlord shall not ultimately be subject to
any liability for the payment of any fees, including attorney's fees, costs and
expenses in connection with such proceedings. Tenant agrees to pay all such fees
(including reasonable attorney's fees), costs and expenses or, on demand, to
make reimbursement to Landlord for such payment.
SECTION 4.3 TAXES ON RENT. Except for any net income tax, if at any
time during the Term, any method of taxation shall be such that there shall be
levied, assessed or imposed on Landlord, or on the Base Rent or Additional Rent,
or on the Demised Premises, or any portion thereof, in lieu of real property
taxes, a capital levy, gross receipts tax (based on receipts from
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the Demised Premises only) or other tax on the rents received therefrom, or a
franchise tax, or an assessment, gross levy or charge measured by or based in
whole or in part upon such gross Rents, Tenant, to the extent permitted by law,
covenants to pay and discharge the same, it being the intention of the parties
hereto that the Base Rent to be paid hereunder shall be paid to Landlord
absolutely net without deduction or charge of any nature whatsoever, foreseeable
or unforeseeable, ordinary or extraordinary, or of any nature, kind or
description, except as otherwise expressly provided in this Lease.
Notwithstanding the foregoing sentence, in the event that any method of taxation
shall be such that there shall be levied, assessed, or imposed on Landlord, or
on the Base Rent or Additional Rent, in lieu of a net income tax, a gross
receipts tax (based on receipts from the Demised Premises only) or other tax on
the rents received therefrom, Landlord shall be responsible for such tax without
any right to pass the cost thereof through to Tenant. If such is the case that
it cannot reasonably be determined whether a gross receipts tax is imposed in
lieu of real property taxes or in lieu of a net income tax, Landlord and Tenant
shall share the cost of such tax equally. Nothing contained in this Lease shall
require Tenant to pay any Municipal, County, State or Federal net income or
excess profits taxes assessed against Landlord, or any Municipal, State, County
or Federal, estate, succession, inheritance or transfer taxes of Landlord, or
corporation franchise taxes imposed upon any corporate owner of the fee of the
Demised Premises.
SECTION 4.4 RECEIPTS FOR IMPOSITIONS. Tenant covenants to furnish
Landlord, within ten (10) days after the date upon which any Imposition or other
tax, assessment, levy or charge is finally payable by Tenant, official receipts
of the appropriate taxing authority, or other appropriate proof satisfactory to
Landlord, evidencing the payment of the same. The certificate, advice or bill of
the appropriate official designated by law to make or issue the same or to
receive payment of any Imposition or other tax, assessment, levy or charge may
be relied upon by Landlord as sufficient evidence that such Imposition or other
tax, assessment, levy or charge is due and unpaid at the time of the making or
issuance of such certificate, advice or bill.
SECTION 4.5 LANDLORD'S RIGHT TO CONTEST IMPOSITIONS. In addition to the
right of Tenant under Section 4.2 to contest the amount or validity of
Impositions, Landlord shall also have the right, but not the obligation, to
contest the amount or validity, in whole or in part, of any Impositions not
contested by Tenant, by appropriate proceedings conducted in the name of
Landlord or in the name of Landlord and Tenant. If Landlord elects to contest
the amount or validity, in whole or in part, of any Impositions, such contests
by Landlord shall be at Landlord's expense, provided, however, that if the
amounts payable by Tenant for Impositions are reduced (or if a proposed increase
in such amounts is avoided or reduced) by reason of Landlord's contest of
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Impositions, Tenant shall reimburse Landlord for costs incurred by Landlord in
contesting Impositions, but such reimbursements shall not be in excess of the
amount saved by Tenant by reason of Landlord's actions in contesting such
Impositions.
ARTICLE 5
INSURANCE
SECTION 5.1 PROPERTY INSURANCE. Tenant shall obtain and continuously
maintain in full force and effect at all times during the Term, at Tenant's sole
cost and expense, policies of insurance covering Landlord's Improvements
constructed, installed or located on the Demised Premises, which insurance shall
be for the benefit of Landlord and Landlord's designated mortgagee, trust deed
holder or ground lessor (individually, "Mortgagee," and collectively,
"Mortgagees"), as the named insured, against (i) loss or damage by fire; (ii)
loss or damage from such other risks or hazards now or hereafter embraced by an
"Extended Coverage Endorsement," including, but not limited to, windstorm, hail,
explosion, vandalism, riot and civil commotion, damage from vehicles, smoke
damage, water damage and debris removal; (iii) loss from flood if the Demised
Premises is in a Federally designated flood area; (iv) loss from so-called
explosion, earthquake (if appropriate), collapse and underground hazards; and
(v) loss or damage from such other risks or hazards of a similar or dissimilar
nature which are now or may hereafter be customarily insured against with
respect to improvements similar in construction, design, general location, use
and occupancy to the Demised Premises (hereinafter referred to as "Property
Insurance").
At all times the Property Insurance coverage shall be in an amount
equal to one hundred percent (100%) of the then "Full Replacement Cost" of
Landlord's Improvements and shall include a so-called "Agreed Value
Endorsement." Full Replacement Cost shall be interpreted to mean the cost of
replacing Landlord's Improvements without deduction for depreciation,
obsolescence, or wear and tear, and it shall include a reasonable sum for
architectural, engineering, legal, interest charges, administrative and
supervisory fees connected with the restoration or replacement of Landlord's
Improvements in the event of damages thereto or destruction thereof. Full
Replacement Cost shall be determined from time to time, at the request of Tenant
or of Landlord or its mortgagee or trust deed holder, by an appraiser, engineer,
architect or contractor designated by the party requesting such determination
and at such party's expense.
The Property Insurance provided by Tenant under this Section 5.1 shall:
(a) be written with companies licensed to do business in the State of Ohio,
having a Best's "General Policy Holding Rating" of A+ or better and a financial
rating class of IX or better; (b) cite the interest of Landlord and Landlord's
mortgagee(s) or trust deed holder(s) in standard mortgagee clauses
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effective as of the Commencement Date (or earlier if required elsewhere herein);
and (c) be maintained continuously through the Term hereof.
During any period of construction of Landlord's Improvements, Landlord
shall maintain in full force and effect, (i) worker's compensation insurance as
may be required by the statutes of the State of Ohio or any applicable federal
or municipal laws or regulations and (ii) on a completed value basis, insurance
coverage on the Initial Improvements and the Expansion Space, as the case may
be, through "builder's risk" insurance, an installation floater, or other
comparable coverage.
SECTION 5.2 MUTUAL WAIVER OF CLAIMS AND SUBROGATION RIGHTS. Whenever
any loss, cost, damage, or expense resulting from fire, explosion or any other
casualty or occurrence is incurred by either of the parties to this Lease, or
anyone claiming by through, or under them in connection with the Demised
Premises, and such party is then covered in whole or in part by insurance with
respect to such loss, cost, damage or expense, which is required under this
Lease to be so insured, the party so insured (or required to be insured) hereby
waives all claims against and releases the other party from any liability which
such other party may have on account of such loss, cost, damage or expense to
the extent of any amount recovered by reason of such insurance (or which could
have been recovered had such insurance been carried as so required) and waives
any right of subrogation which might otherwise exist in or accrue to any person
on account thereof.
SECTION 5.3 COMMERCIAL GENERAL LIABILITY INSURANCE. Landlord and
Tenant, during the Term, shall obtain and continuously maintain in full force
and effect, at such party's sole cost and expense, commercial general liability
insurance with broad liability endorsement for personal injury or property
damage for any loss, liability or damage on, about or relating to the Demised
Premises, or any portion thereof, having limits of not less than Five Million
and 00/100 Dollars ($5,000,000.00) combined single limit coverage on an
occurrence basis written by a reputable and financially sound insurance company
authorized to insure such risks in the State of Ohio. Tenant's policy shall name
Landlord, its mortgagee(s), beneficiaries, partners, and agents as additional
insureds and Landlord's policy shall name Tenant and its beneficiaries and
agent's as additional insureds. Tenant's and Landlord's insurance shall
specifically insure (by contractual liability endorsement) Tenant's indemnity
obligations under Section 19.3(a) and Section 2.10(c) of this Lease, and
Landlord's indemnity obligations under Sections 2.10(a), 2.10(b) and 19.3(b) of
this Lease respectively, but only to the extent that same directly or indirectly
relate to death, bodily or personal injuries, and/or property damage.
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SECTION 5.4 TENANT'S PROPERTY INSURANCE. Tenant shall maintain
insurance coverage upon all personal property of Tenant (including boiler and
pressure vessel and machinery peculiar to Tenant's use of the Demised Premises),
and the personal property of others kept, stored or maintained on the Demised
Premises against loss or damage by fire, windstorm or other casualties or causes
for the full replacement cost thereof. Tenant shall also maintain such other
insurance and in such amounts as may from time to time be reasonably required by
Landlord, against other insurable hazards which at the time are commonly insured
against in the case of premises and/or buildings and/or improvements similar in
construction, design, general location, use and occupancy to those on or
appurtenant to the Demised Premises. At Tenant's election, Tenant may choose not
to obtain insurance to manage the risks described in this Section, and shall be
entitled to self-insure as to same; provided, however, that Tenant releases
Landlord from any damages that would otherwise have been covered had Tenant
maintained such insurance, and agrees to indemnify and hold harmless Landlord
against such damages.
SECTION 5.5 TENANT'S BUSINESS INTERRUPTION INSURANCE. Tenant shall
maintain business interruption insurance with a coverage period of not less than
one (1) year and policy limits equal to the Rent paid for the preceding twelve
(12) month period. For the first year of the Initial Term, the policy limits
shall be One Million Five Hundred Thousand Dollars ($1,500,000).
SECTION 5.6 PROCEEDS, PAYMENT AND POLICY PROVISIONS. All policies of
insurance required by Section 5.1 shall provide that the proceeds thereof shall
be payable to Landlord and shall be applied to the repair, replacement or
Restoration (as that term is defined in Section 11.1) of Landlord's Improvements
(or paid to Landlord in the event of Lease termination). Each policy of
insurance required of Tenant or Landlord under this Article 5 shall have
attached thereto (i) an endorsement that such policy shall not be canceled or
materially changed without at least thirty (30) days' prior written notice to
the other party, and (ii) an endorsement to the effect that the insurance as to
the interests of the other party shall not be invalidated by any act or neglect
of any person.
SECTION 5.7 INSURANCE APPROVAL. All policies of insurance required of
Tenant and Landlord under this Article shall be written in such form and by such
companies licensed to do business in the State of Ohio as shall be reasonably
satisfactory to Landlord. Certificates of insurance acceptable to Landlord and
Tenant shall be delivered to the other party on or before the Commencement Date
(or upon the date upon which Tenant exercises its rights to Early Access
described herein). A new or replacement certificate of insurance acceptable to
each party shall be delivered to both parties not less than fifteen (15) days
prior to the expiration of the then current policy term.
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ARTICLE 6
USE AND MAINTENANCE OF THE DEMISED PREMISES
SECTION 6.1 PREMISES USE. Tenant shall use and occupy the Demised
Premises as a manufacturing, storage, assembly facility, sales office and for
general office purposes, and for such other purposes consistent with all zoning
and other applicable laws (the "Premises Use"). Tenant shall not use or occupy
the same, or knowingly permit them to be used or occupied, contrary to any
statute, rule, order, ordinance, requirement or regulation applicable thereto,
or in any manner which would violate any certificate of occupancy affecting the
same, or which would make void or voidable any insurance then in force with
respect thereto or which would make it impossible to obtain fire or other
insurance thereon required to be furnished hereunder by Tenant, or which would
cause structural injury to Landlord's Improvements or which would constitute a
public or private nuisance or waste. Tenant agrees that it will promptly, upon
discovery of any such use, compel the discontinuance of such use.
Tenant shall not use, suffer or permit the Demised Premises, or any
portion thereof, to be used by Tenant, any third party or the public (as such),
without restriction or in such manner as might reasonably tend to impair
Landlord's title to the Demised Premises, or in such manner as might reasonably
make possible a claim or claims of adverse usage or adverse possession by the
public, as such, or third persons, or of implied dedication of the Demised
Premises, or any portion thereof. Nothing contained in this Lease and no action
or inaction by Landlord shall be deemed or construed to mean that Landlord has
granted to Tenant any right, power or permission to do any act or make any
agreement that may create, or give rise to or be the foundation for any such
right, title, interest, lien, charge or other encumbrance upon the estate of
Landlord in the Demised Premises.
SECTION 6.2 TENANT'S REPAIRS. Except for Landlord's Repairs, Warranty
Work and subject to the limitation set forth in Section 6.6 below, Tenant, at
its sole cost and expense, throughout the Term of this Lease, shall take good
care of the Demised Premises, and shall keep the same in good order, condition
and repair, and shall make and perform all routine maintenance thereof and all
necessary repairs thereto, interior and exterior. All repairs made by Tenant,
except as hereafter provided, shall be at least equal in quality to the original
work and, in all events, shall be made by Tenant in Compliance with Laws. The
necessity for or adequacy of maintenance and repairs shall be measured by the
standards which are appropriate for improvements of similar construction and
class, provided that Tenant shall in any event make all repairs necessary to
avoid any structural damage or other damage or injury to the Improvements.
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In addition, Tenant shall timely and properly maintain all of the
Demised Premises, including, but not necessarily limited to mechanical systems,
electrical systems, plumbing and sewage systems, fire protection systems, floor
slabs, roof, foundation walls and footings, structural steel, driveways,
roadways, sidewalks, curbs, parking areas, loading areas, and landscaping.
Tenant shall obtain a preventative maintenance contract on the heating,
ventilating and air conditioning systems which shall be subject to Landlord's
reasonable approval. Tenant shall provide Landlord with a copy of the
preventative maintenance contract no later than ninety (90) days after the
Commencement Date. The preventative maintenance contract shall provide for the
inspection and maintenance of the heating, ventilating and air conditioning
system on not less than a semi-annual basis. Tenant shall also keep all portions
of the Demised Premises in a clean and orderly condition, free from unreasonable
accumulations of snow, ice, dirt rubbish, debris and unlawful obstructions. All
of Tenant's obligations and requirements described above in this Section 6.2 are
collectively called "Tenant's Repairs." In addition to the foregoing, except for
Landlord's Repairs, Warranty Work and the limitation set forth in Section 6.6
hereof, Tenant's Repairs shall include the following maintenance (but not repair
or replacement obligations that are a part of Landlord's Repair) of the
following portions of the Demised Premises:
(a) ROOF. Tenant shall maintain the roof of the Demised Premises in
accordance with the specifications therefor established by the
manufacturer of the roof membrane. Such maintenance shall not
include repair or replacement of the roof provided Tenant
maintains the same as described in the foregoing sentence.
(b) STRUCTURAL MEMBERS. Tenant shall maintain the structural members
of the Demised Premises which shall include, but shall not
necessarily be limited to, painting, snow removal and prevention
of undermining.
The time permitted by Tenant to effectuate Tenant's Repairs shall be extended
for such period as may reasonably be necessary provided Tenant is continuously,
diligently and in good faith prosecuting the same. In addition, Landlord, may
cause at Landlord's expense, independent private building inspectors, qualified
in the specific discipline, to make inspections of the Building and Building
systems or segments thereof to determine Tenant's compliance under this Section.
If Tenant does not timely or properly perform Tenant's Repairs as above
provided, Landlord may, but need not, after thirty (30) days' notice to Tenant,
make such repairs, replacements or maintenance in a reasonably diligent fashion,
and Tenant shall pay Landlord forthwith upon being billed for same by Landlord
all of Landlord's actual costs incurred in connection therewith. Landlord may,
but shall not be required to, enter the Demised Premises at all reasonable times
upon reasonable notice
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(except in the instance of an emergency) to make such repairs, alterations,
improvements and additions to the Demised Premises or to any equipment, fixtures
or landscaping located on the Demised Premises as Landlord deems reasonably
necessary and which Tenant failed to do as required in this Lease after written
notice from Landlord. However, any and all repairs, replacements or maintenance
made by Landlord pursuant to this Lease shall be done in a reasonably diligent
manner and so as to minimize any disruption to Tenant's business operations.
SECTION 6.3 LANDLORD'S REPAIRS. Notwithstanding anything to the
contrary contained in Section 6.2, from and after the date constructed and
during the Term, at Landlord's sole cost and expense, Landlord shall repair and
replace the roof, and repair any defect in materials or workmanship relating to
the foundation walls, footings, and structural steel which comprise a part of
the Landlord's Improvements (collectively, "Landlord's Repairs").
Notwithstanding the foregoing, that portion of Landlord's Repairs the scope of
which was materially increased or necessitated as a result of (a) the willful or
negligent failure of Tenant to timely (except in emergency conditions) notify
Landlord of a condition which does or, with the passage of time, could
necessitate Landlord's Repairs; (b) the willful or negligent failure of Tenant
to make Tenant's Repairs; and (c) any act or omission of Tenant in contravention
to the provisions of this Lease, shall be performed by Landlord at Tenant's cost
and expense.
SECTION 6.4 PROHIBITION AGAINST WASTE. Tenant shall not do or suffer
any waste or damage, disfigurement or injury to the Demised Premises, or any
improvements hereinafter erected thereon, or to the fixtures or equipment
therein, or permit or suffer any overloading of the floors or other use of the
Improvements that would place an undue stress on the same or any portion thereof
beyond that for which the same was designed.
SECTION 6.5 MISUSE OR NEGLECT. Tenant shall be responsible for all
repairs to the Demised Premises which are made necessary by any misuse or
neglect by: (i) Tenant or any of its officers, agents, employees, contractors,
licensees, or subtenants; or (ii) any visitors, patrons, guests, or invitees of
Tenant or its subtenant while in or upon the Demised Premises, exclusive of
Landlord and its contractors, sub-contractors, employees or agents.
SECTION 6.6 LIMITATION ON TENANT'S REPAIRS. If: (i) Tenant's Repairs
requires Tenant to replace a capital item, being an item which is reasonably
expected to have a useful life in excess of one year ("Capital Replacement"),
and (ii) such Capital Replacement is required at any time during the last sixty
(60) months of the Term, and (iii) the Capital Replacement is expected to cost
in excess of $10,000.00, and (iv) the Capital Replacement has a "Recovery
Period" (as determined under the Internal Revenue Code and Regulations
applicable thereto) which exceeds the balance
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of the Term, then Tenant shall so notify Landlord in writing, and of the cost
and other specific arrangements in regard to Tenant's proposed Capital
Replacement, and the remaining provisions of this Section shall apply. Landlord
and Tenant shall reasonably and mutually agree whether the Capital Replacement
proposed by Tenant is appropriate under the circumstances, or whether a less
costly Capital Replacement is appropriate, or whether a satisfactory repair not
including a Capital Replacement is practicable. Such agreement shall be based
on, among other things, local industry standards for properties comparable to
the Demised Premises. Neither party's agreement shall be unreasonably withheld
or delayed.
The cost of each and every Capital Replacement upon which Landlord and
Tenant agree, as aforesaid, shall be shared by Landlord and Tenant as follows:
(i) Landlord shall pay the amount determined by multiplying the total costs paid
for such Capital Replacement by a fraction, the numerator of which is the total
number of days contained in the Recovery Period of the Capital Replacement less
the number of days from the date the Capital Replacement was placed in service
to the date of the expiration of the Term, and the denominator of which is the
total number of days contained in the Recovery Period of the Capital
Replacement; and (ii) Tenant shall pay the entire balance of the total costs for
such Capital Replacement. Each of the parties shall pay its portion of the costs
of a Capital Replacement as and when payment for the same is due with respect to
all such Capital Replacement work. If after the computation of the cost of the
Capital Replacement as aforesaid, the Term is extended for either the Expansion
Space Term or a Renewal Term, Landlord's portion of the cost of Capital
Replacement shall be re-computed within thirty (30) days after each such
extension, and Tenant shall then pay to Landlord the difference between that
which the Landlord paid as of the date of the original computation and that
which Landlord is required to pay as a result of such re-computation.
ARTICLE 7
COMPLIANCE WITH LAWS AND ORDINANCES
SECTION 7.1 COMPLIANCE. Except as required of the Landlord to construct
the Initial Improvements as provided in Section 2.3 hereof, and except as
required of Landlord to construct the Expansion Space as provided in Section
2A.6, Tenant shall, throughout the Term and at Tenant's sole cost and expense,
promptly fully comply or cause full compliance with or remove or cure any
violation of any and all present and future laws, ordinances (zoning or
otherwise), orders, rules, regulations and requirements of all Federal, State,
County, Municipal and other governmental bodies having jurisdiction over the
Demised Premises and the appropriate departments, commissions, boards and
officers thereof (excluding only Environmental Laws which are separately
addressed in Section 7.3), and the orders, rules and regulations
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of the Board of Fire Underwriters where the Demised Premises is situated, or any
other body now or hereafter constituted exercising lawful or valid authority
over the Demised Premises, or any portion thereof, or the sidewalks, curbs,
roadways, alleys or entrances adjacent or appurtenant thereto, or exercising
authority with respect to the use or manner of use of the Demised Premises and
whether the compliance, curing or removal of any such violation and the costs
and expenses necessitated thereby shall have been foreseen or unforeseen,
ordinary or extraordinary, and whether or not the same shall be presently within
the contemplation of Landlord or Tenant or shall involve any change of
governmental policy, or require structural or extraordinary repairs, alterations
or additions by Tenant and irrespective of the costs thereof (hereafter referred
to as "Laws" and the compliance therewith as aforesaid is hereafter referred to
as "Compliance with Laws").
Notwithstanding the foregoing, in the event of a change in any laws,
statutes or ordinances of any governmental authority having jurisdiction over
the Demised Premises or over Tenant and Tenant's business operations, and such
change in the law requires physical alterations or improvements to be made to
the Building, then if such change in law is such that the required physical
alterations or improvements to the Building are specific or peculiar to Tenant
or to Tenant's business operations, all costs associated with making such
physical alterations or improvements and otherwise complying with the changes in
said law shall be borne by Tenant. Otherwise all costs associated with making
such physical alterations or improvements and otherwise complying with the
changes in said law shall be borne initially by Landlord and such costs shall be
amortized over the Recovery Period of such alteration or physical improvement
and Tenant shall reimburse Landlord the amount determined by multiplying the
total costs paid for such alteration or improvement by a fraction, the numerator
of which is the total number of days remaining in the Term and the denominator
of which is the total number of days in the Recovery Period. If after the
computation of the cost of an alteration or improvement described in this
Section 7.1, the Term is extended for either the Expansion Space Term or a
Renewal Term, Landlord's portion of the cost of Capital Replacement shall be
recomputed within thirty (30) days after each such extension, and Tenant shall
then pay to Landlord the difference between that which the Landlord paid as of
the date of the original computation and that which Landlord is required to pay
as a result of such re-computation.
SECTION 7.2 OTHER COMPLIANCE. Tenant, at its sole cost and expense,
shall comply with all agreements, contracts, easements, restrictions,
reservations or covenants, if any, running with the Land, or hereafter created
by Tenant or consented to, in writing, by Tenant or requested, in writing, by
Tenant. Tenant shall also comply with, observe and perform all provisions and
requirements of all policies of insurance at any time in force
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with respect to the Demised Premises and required to be obtained and maintained
under the terms of Article 5 hereof and shall comply with all development
permits issued by governmental authorities issued in connection with development
of the Demised Premises.
SECTION 7.3 ENVIRONMENTAL MATTERS. Tenant acknowledges receipt of a
copy of the environmental report (the "Environmental Report") prepared by EDP
Consultants, Inc. as attached hereto as Exhibit D. In addition to the compliance
requirements set forth herein, and not by way of limitation thereof, Tenant and
Landlord mutually covenant and agree as follows:
(a) DEFINITIONS: As used in this Section 7.3:
(1) "Environmental Condition(s)" means the presence
on, in, under, or migrations from the Demised Premises of a
Hazardous Substance(s), except naturally occurring substances,
which exceed any applicable and effective state or federal
cleanup standards, whether such presence is in ambient air,
surface water, groundwater, land surface or subsurface strata.
(2) "Environmental Liability(ies)" means any
Environmental Conditions with respect to which there are
effective and applicable Environmental Laws pursuant to which
the regulatory authorities having jurisdiction over the
Demised Premises would have authority to require remediation
activities. Designation of a condition as an Environmental
Liability by regulatory authorities or other third parties,
pursuant to this Agreement shall not be construed as an
admission by either party.
(3) "Environmental Laws" means all federal and state
environmental laws and regulations thereunder that are
applicable to the Demised Premises, including, but not limited
to, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq. (CERCLA); the
Solid Waste Disposal Act (SWDA) and Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. Section 6901, et seq.; the
Clean Water Act, 33 U.S.C. Section 1251, et seq.; the Clean
Air Act, 42 U.S.C. Section 7401, et seq.; the Toxic Substances
Control Act, 15 U.S.C. Section 2601, et seq.; and the Safe
Drinking Water Act, 42 U.S.C. Section 300f through 300j, and
the Ohio Environmental Protection Act, Ohio Revised Code
Section 3745, et. seq.
(4) "Hazardous Substances" means all hazardous
substances, as that term is defined in CERCLA or other
Environmental Laws, petroleum or petroleum products,
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and any other federal, state or local environmental law,
ordinance, rule or regulation now or hereafter in effect.
(b) LANDLORD INDEMNITY. Except to the extent Tenant, its
employees, agents, contractors or subcontractors cause
Environmental Conditions, to the extent Landlord is
indemnified by Milstein (as defined in Section 20.1)
pursuant to Section 15 of that certain Real Property
Purchase Agreement dated as of August 29, 1996, Landlord
shall defend, hold harmless and indemnify Tenant and its
directors, officers, parent, subsidiaries and affiliates
from and against any and all claims, liabilities, damages,
costs, penalties, forfeitures, losses, or expenses
(including attorney fees) that such indemnified party or
person may sustain, suffer, or incur arising out of any
Environmental Liabilities based on Environmental Laws in
existence, effective and applicable to the Demised Premises
and attributable to Environmental Conditions existing as of
the Commencement Date.
(c) TENANT INDEMNITY. Except to the extent Landlord, its
employees, agents, contractors, or subcontractors cause
Environmental Conditions, and except to the extent Landlord
indemnifies Tenant pursuant to Section 7.3(b) hereof, Tenant
shall defend, hold harmless and indemnify Landlord and its
beneficiaries, officers, agents, partners and affiliates
from and against any and all claims, liabilities, damages,
costs, penalties, forfeitures, losses or expenses (including
attorneys fees) that such indemnified party or person may
sustain, suffer, or incur arising out of Environmental
Liabilities based on Environmental Laws in existence as of
the Commencement Date or enacted or adopted at any time
thereafter, arising out of, or as a direct result of the
acts or omissions of Tenant, its employees, contractors,
agents, subtenants, assignees, or business invitees, or as a
direct result of a spill, discharge or other release of
Hazardous Substances onto the Demised Premises caused by the
acts or omissions of Tenant, its employees, contractors,
agents, subtenants, assignees or business invitees during
the Term. In the event the Environmental Condition which
gives rise to an Environmental Liability for which a claim
for indemnification is made by Landlord hereunder, is the
migration onto or within the Demised Premises during the
Term of Hazardous Substances from a source or sources other
than the Demised Premises, then Tenant's obligations to
indemnify Landlord hereunder shall only be effective if (i)
Tenant has actual knowledge of such Environmental Condition,
or in the exercise of reasonable business practices should
have known thereof, and (ii) Tenant failed to promptly take
all
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reasonable steps necessary to abate, mitigate or otherwise
prevent such migrating Hazardous Substances onto the Demised
Premises. If Tenant becomes aware of an Environmental
Condition which could give rise to any Environmental
Liability, Tenant shall promptly notify Landlord of same.
(d) NOTICE. If a claim by a third person (including without
limitation any governmental entity) is made against any
person indemnified hereunder and the party against which
said claim is made intends to seek indemnification with
respect to such claim under this Section 7.3, the party
seeking such indemnification shall promptly give notice of
such claim to the indemnifying party. In addition, if a
party indemnified under this Section 7.3 comes into
possession of facts which could reasonably lead to a claim
for indemnification under this Section 7.3, such party shall
promptly give notice of such facts to the indemnifying
party.
(e) EXCLUSIVE REMEDY AND SURVIVAL. Notwithstanding the indemnity
provided in Section 19.3 of this Lease, the parties agree
that the foregoing indemnifications shall exclusively define
their rights and obligations with respect to Environmental
Liabilities arising from or related to the Demised Premises.
Except as expressly provided otherwise in this Lease, the
provisions of this Section 7.3 shall survive the termination
of the Lease and be effective for so long as Landlord or
Tenant may have any liability whatsoever with respect to the
Demised Premises.
(f) COMPLIANCE WITH OTHER LAWS. Tenant, at its sole cost and
expense, shall fully comply with, and provide to Landlord
all information needed from time to time in regard to, all
provisions of the federal and state environmental protection
acts, responsible property transfer laws, RCRA, CERCLA, and
any other applicable federal, state or local environmental
liability or protection or cleanup responsibility laws,
either currently in effect or hereafter enacted which affect
Tenant's operations at the Demised Premises.
(g) STORAGE OF HAZARDOUS MATERIALS. Tenant agrees not to use or
store on or in the Demised Premise, any Hazardous Substances
or any material deemed to be toxic or hazardous by any
governmental authority having jurisdiction over the Land,
except in full compliance with all applicable laws,
statutes, regulations or ordinances.
(h) ENVIRONMENTAL AUDITS. Upon request by Landlord during the
Term of this Lease, prior to the exercise of any
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option to renew for any Renewal Term and/or prior to
Tenant's vacation of the Demised Premises, Tenant shall
undertake and submit to Landlord an environmental audit from
an environmental company reasonably acceptable to Landlord
which audit shall evidence Tenant's compliance with this
Article 7. If Tenant, at any time during the Term prior to
Landlord's request for an environmental audit, has been
cited for violation of any Environmental Requirements, or
other hazardous materials laws by any governmental body
having jurisdiction thereof, or if a violation of an
Environmental Law or a breach of this Section 7.3 is
discovered or confirmed by such audits, then such
environmental audits shall be at Tenant's sole cost and
expense. In all other instances, Landlord shall pay the cost
and expense of such requested environmental audits.
(i) TERMINATION OF LEASE. In the event of an Environmental
Liability affecting the health and welfare of the occupants
and invitees of the Land, Building or any portion thereof
that is not the subject of the Landlord indemnity set forth
in subparagraph (b) above or the Tenant indemnity contained
in sub-paragraph (c) above (a "Third Party Cause"),
Landlord, at its option, upon written notice to Tenant
within sixty (60) days following the date of such Third
Party Cause (or such later date that Landlord knew of the
occurrence of such Third Party Cause), shall elect to either
remediate such Third Party Cause or decline the obligation
of such remediation. If Landlord fails to give such notice,
it shall be presumed that Landlord has elected not to
remediate. If Landlord elects to remediate, it shall do so,
at its sole cost and expense, as promptly as practical under
the circumstances, but in any event with diligence. If
Landlord elects or is presumed to have elected not to
remediate, Tenant, at its option upon written notice to
Landlord within sixty (60) days following the date Landlord
elected or was presumed to have elected not to remediate the
Third Party Cause, shall elect to either remediate such
Third Party Cause or terminate this Lease effective on the
date provided below. If Tenant elects to remediate, it shall
do so, at its sole cost and expense, as promptly as
practical under the circumstances, but in any event with
diligence. If Tenant has elected to terminate this Lease,
Landlord, within ten (10) business days thereafter, upon
written notice to Tenant, shall have the further option to
either elect to remediate the Third Party Cause (thereby
voiding Tenant's option to terminate this Lease as above
provided) or to decline such remediation. If Landlord fails
to give such ten (10) business day notice, it shall be
presumed that Landlord has elected to decline remediation
and this
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Lease shall terminate as hereafter provided. However, if
Landlord elects to remediate, it shall do so at its sole
cost and expense, as promptly as possible under the
circumstances, but in any event with diligence, and this
Lease shall remain in full force and effect in such event.
However, if Landlord elected or is presumed to have elected
not to remediate as last above provided, within ten (10)
business days following Landlord's election or presumed
election (whichever first occurs), Tenant may notify
Landlord, in writing, that Tenant elects to have the Term
remain in effect, on a year to year basis, on the same terms
and conditions as provided in this Lease (except as
hereafter provided), commencing on the first to occur of the
date Landlord last above elected or is presumed to have
elected not to remediate, and ending on the day before the
first anniversary of such commencement (but in no instance
longer than the Term provided for in Article 1 hereof),
unless, one hundred twenty (120) days prior to such
anniversary, Tenant, by written notification to Landlord,
elects to further cause the Term to remain in effect for one
(1) additional calendar year (but in no instance longer than
the Term provided for in Article 1 hereof). If Tenant so
elects to cause the Term to remain in effect for one (1) or
two (2) more years as above provided, it shall be on the
same terms and conditions provided for in this Lease, except
that Landlord, in no instance, shall be liable to Tenant or
anyone claiming by, through or under Tenant for any loss,
damage, injury, claim, demand, action or cause of action
(Tenant hereby releasing and waiving the same) resulting
from the subject Third Party Cause Environmental
Liabilities. If Tenant does not elect to have the Term
remain in effect as aforesaid, this Lease shall terminate on
the date Landlord last above elected or is presumed to have
elected not to remediate, whichever first occurs.
ARTICLE 8
MECHANIC'S LIENS AND OTHER LIENS
SECTION 8.1 LIENS AND RIGHT OF CONTEST. Tenant shall not suffer or
permit any mechanic's lien or other lien to be filed against the Demised
Premises, or any portion thereof, by reason of work, labor, skill, services,
equipment or materials supplied or claimed to have been supplied to the Demised
Premises at the request of Tenant, or any one holding the Demised Premises, or
any portion thereof, through or under Tenant. If any such mechanic's lien or
other lien shall at any time be filed against the Demised Premises, or any
portion thereof, Tenant shall, within forty-five (45) days after the date of
filing the same, either cause the same to be discharged of record or bond over
the same, if pursuant to
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Ohio law such bonding over has the effect of expunging the encumbrance of the
lien. However, in the event Tenant desires to contest the validity of any lien,
it shall, within forty-five (45) days of the date such lien was recorded, notify
Landlord, in writing, that Tenant intends to so contest same, and either (i)
bond over the lien, if pursuant to Ohio law such bonding over has the effect of
expunging the encumbrances of the lien; or (ii) cause a title insurer
satisfactory to Landlord to insure over such lien, in form and content
satisfactory to Landlord.
If Tenant complies with the foregoing, and Tenant continues, in good
faith, to contest the validity of such lien by appropriate legal proceedings
which shall operate to prevent the collection thereof and the sale or forfeiture
of the Demised Premises, or any part thereof, to satisfy the same, Tenant shall
be under no obligation to pay such lien until such time as the same has been
decreed, by court order, to be a valid lien on the Demised Premises. Provided
that nonpayment of such lien does not cause Landlord to be in violation of any
of its contractual undertakings, Landlord agrees not to pay such lien during the
period of Tenant's contest. Tenant shall indemnify and defend Landlord against
and save Landlord and the Demised Premises, and any portion thereof, harmless
from and against all losses, costs, damages, expenses, liabilities, suits,
penalties, claims, demands and obligations, including, without limitation,
reasonable attorney's fees, resulting from the assertion, filing, foreclosure or
other legal proceedings with respect to any such mechanic's lien or other lien
or the attempt by Tenant to discharge same as above provided.
All materialmen, contractors, artisans, mechanics, laborers and any
other person now or hereafter furnishing any labor, services, materials,
supplies or equipment to Tenant with respect to the Demised Premises, or any
portion thereof, are hereby charged with notice that they must look exclusively
to Tenant to obtain payment for the same. Notice is hereby given that Landlord
shall not be liable for any labor, services, materials, supplies, skill,
machinery, fixtures or equipment furnished or to be furnished to Tenant upon
credit, and that no mechanic's lien or other lien for any such labor, services,
materials, supplies, machinery, fixtures or equipment shall attach to or affect
the estate or interest of Landlord in and to the Demised Premises, or any
portion thereof.
SECTION 8.2 LIENS ON LANDLORD'S WORK. The provisions of Section 8.1
above shall not apply to any mechanic's lien or other lien for labor, services,
materials, supplies, machinery, fixtures or equipment furnished to the Demised
Premises in the performance of Landlord's obligations to construct the
Landlord's Improvements, provide Warranty Work, or Punch List Item or Expansion
Punch List Item work required herein. Landlord agrees to indemnify and defend
Tenant against and save Tenant and the Demised Premises, and any portion
thereof, harmless from all
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losses, costs, damages, expenses, liabilities and obligations, including,
without limitation, reasonable attorney's fees resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
SECTION 8.3 OTHER LIENS. Tenant shall not create, permit or suffer,
and, subject to the right to contest as set forth in Section 8.1 hereof, shall
promptly discharge and satisfy of record, any other lien, encumbrance, charge,
security interest, or other right or interest which, as a result of Tenant's
action or inaction contrary to the provisions hereof, shall be or become a lien,
encumbrance, charge or security interest upon the Demised Premises, or any
portion thereof, or the income therefrom.
ARTICLE 9
INTENT OF PARTIES
SECTION 9.1 NET RENT. Landlord and Tenant do each state and represent
that it is their respective intention that this Lease be interpreted and
construed as an absolute net lease and all Base Rent and Additional Rent shall
be paid by Tenant without abatement, deduction, diminution, deferment,
suspension, reduction, set off, defense or counterclaim with respect to the same
(except as expressly provided herein). Except as otherwise provided herein, the
obligations of Tenant shall not be affected by reason of damage to or
destruction of the Demised Premises from whatever cause, nor shall the
obligations of Tenant be affected by reason of any condemnation, eminent domain
or like proceedings. Except as provided herein, all Impositions, insurance
premiums, utility expense, repair and maintenance expenses, and all other costs,
fees, interest, charges, expenses, reimbursements and obligations of every kind
and nature whatsoever relating to the Demised Premises, or any portion thereof,
which may arise or become due during the Term, or any extension or renewal
thereof, shall be paid or discharged by Tenant as Additional Rent.
SECTION 9.2 LANDLORD'S PERFORMANCE FOR TENANT. If Tenant shall at any
time fail to pay any Imposition in accordance with the provisions of Article 4,
or to take out, pay for, maintain and deliver any of the insurance policies or
certificates of insurance provided for in Article 5, or shall fail to make any
other payment or perform any other act on its part to be made or performed, then
Landlord, after fifteen (15) days prior written notice to Tenant (or without
notice in case of emergency), and without waiving or releasing Tenant from any
obligation of Tenant contained in this Lease, may, but shall be under no
obligation to do so, (i) pay after said fifteen (15) days' written notice to
Tenant, any Imposition payable by Tenant pursuant to the provisions of Article
4; (ii) take out, pay for and maintain any of the insurance policies provided
for in this Lease; or (iii) make any other payment on Tenant's part to be paid
hereunder. Landlord may enter
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upon the Demised Premises for any such purpose and take all such action therein
or thereon as may be necessary therefor and all such action taken by Landlord
shall be in a reasonably diligent fashion.
SECTION 9.3 PAYMENT FOR LANDLORD'S PERFORMANCE FOR TENANT. All sums so
paid by Landlord and all costs and expenses, including reasonable attorney's
fees, reasonably incurred by Landlord in connection with the performance of any
such act, together with interest thereon at the Maximum Rate of Interest from
the respective dates of Landlord's making of each payment of such cost and
expense, including reasonable attorney's fees, shall be paid by Tenant to
Landlord on demand.
ARTICLE 10
DEFAULTS AND LANDLORD'S REMEDIES
SECTION 10.1 DEFAULT. The following events, following the expiration of
the applicable cure periods, in this Article are sometimes referred to as an
event of "Default:"
(a) If default shall be made by Tenant, under the provisions of
Article 13 hereof relating to assignment, sublease, mortgage or
other transfer of Tenant's interest in this Lease or in the
Demised Premises or in the income arising therefrom;
(b) If default shall be made in the due and punctual payment of Base
Rent or any installment thereof and such default shall continue
for five (5) business days after written notice to Tenant, or if
default shall be made in the payment of Additional Rent or in the
payment of any other sum required to be paid by Tenant under this
Lease and such default shall continue for seven (7) business days
after written notice to Tenant;
(c) If default shall be made in the observance or performance of any
of the other covenants or conditions in this Lease which Tenant
is required to observe and perform and such default shall
continue for thirty (30) days after written notice to Tenant, or
if a default involves a hazardous or emergency condition and is
not cured by Tenant immediately; provided, however, the time
allowed Tenant (except in the instance of hazardous or emergency
conditions) within which Tenant is permitted to cure the same
shall be extended for such reasonable period as may be necessary
for the curing provided Tenant is continuously, diligently and in
good faith prosecuting such cure; and
(d) If, during the term of this Lease: (1) Tenant shall make an
assignment for the benefit of creditors; (2) a
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voluntary petition shall be filed by Tenant under any law having
for its purpose the adjudication of Tenant a bankrupt, or Tenant
shall be adjudged a bankrupt pursuant to an involuntary petition
in bankruptcy; (3) a receiver is appointed for the property of
Tenant; (4) any department of the state or federal government, or
any officer thereof duly authorized, shall take possession of the
business or property of Tenant; or (5) any involuntary petition
in bankruptcy shall be filed against Tenant under any federal or
state bankruptcy or insolvency laws and shall not have been
dismissed within ninety (90) days from the filing thereof.
Landlord may treat the occurrence of any one or more of the foregoing
events of Default as a breach of this Lease. In any such event, Landlord, at any
time thereafter during the continuance of any such event of Default, may give
written notice to Tenant specifying such event of Default or events of Default
and stating that this Lease and the Term hereby demised shall expire and
terminate on the date specified in such notice, and upon the date specified in
such notice this Lease and the Term hereby demised, and all rights of Tenant
under this Lease, including all rights of renewal whether exercised or not,
shall expire and terminate, or in the alternative or in addition to the
foregoing remedy, Landlord may assert and have the benefit of any and all other
remedies and rights provided at law or in equity.
SECTION 10.2 RE-LETTING AFTER DEFAULT. To the extent permitted by law,
in the event of a Default, Landlord may terminate Tenant's right of possession
and may repossess the Demised Premises by forcible entry and detainer suit, by
taking peaceful possession or otherwise, without terminating this Lease, in
which event Landlord shall use commercially reasonable efforts to relet the same
for the account of Tenant, for such rent and upon such terms as may be
satisfactory to Landlord. For the purpose of such re-letting, Landlord is
authorized to repair the Demised Premises. If Landlord shall fail to relet the
Demised Premises, Tenant shall pay to Landlord, as damages, a sum equal to the
amount of Rent reserved in this Lease for the balance of the Initial Term or the
Renewal Term, as the case may be, as the same becomes due and payable. If the
Demised Premises is relet and a sufficient sum shall not be realized from such
re-letting after paying all of the costs and expenses of all repairs and the
reasonable expenses of such re-letting (which expenses shall be limited to
attorneys' fees and brokerage commissions) and of the collection of the rent
accruing therefrom to satisfy the Rent provided for in this Lease, Tenant shall
satisfy and pay the same upon demand therefor from time to time. For purposes of
this Article 10, costs relating to remodeling or altering the Demised Premises
shall not be deemed expenses of re-letting. It is understood and agreed that if
Landlord incurs any cost or expense for re-letting as described above, such cost
and expense shall be
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amortized over the term of the lease that is the subject of such re-letting, and
Tenant's obligation to Landlord in respect thereto shall be an amount equal to
such cost and expense multiplied by a fraction, the numerator of which is the
number of days remaining in the unexpired Term hereof, and the denominator of
which is the number of days in the term of the lease that is the subject of the
re-letting. Tenant agrees that Landlord may file suit to recover any sums
falling due under the terms of this Article 10 from time to time and that no
suit or recovery of any portion due to Landlord hereunder shall be any defense
to any subsequent action brought for any amount not theretofore reduced to
judgment in favor of Landlord.
SECTION 10.3 ACCEPTANCE AFTER DEFAULT. No failure by Landlord or
Tenant, as the case may be, to insist upon the performance of any of the terms
of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by Landlord of full or partial Rent from Tenant or
any third party during the continuance of any such breach, shall constitute a
waiver of any such breach or of any of the terms of this Lease. None of the
terms of this Lease to be kept, observed or performed by either party hereunder,
and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord and by Tenant. No waiver of any breach shall
affect or alter this Lease, but each of the terms of this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
breach of this Lease. No waiver of any Default of Tenant herein shall be implied
from any omission by Landlord to take any action on account of such Default, if
such Default persists or is repeated and no express waiver shall affect any
Default other than the Default specified in the express waiver and that only for
the time and to the extent therein stated. One or more waivers by Landlord or by
Tenant, as the case may be, shall not be construed as a waiver of a subsequent
breach of the same covenant, term or condition.
SECTION 10.4 REMEDIES CUMULATIVE. In the event of any breach or
threatened breach by Tenant of any of the terms contained in this Lease,
Landlord shall be entitled to invoke any right or remedy allowed at law or in
equity or by statute or otherwise (including injunctive relief) as though entry,
re-entry, summary proceedings and other remedies, as the case may be, were not
provided for in this Lease. Each remedy or right of Landlord provided for in
this Lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease, or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or the beginning of the
exercise by Landlord of any one or more of such rights or remedies except as
otherwise provided herein, shall not preclude the simultaneous or later exercise
by Landlord of any or all other rights or remedies.
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ARTICLE 11
DESTRUCTION AND RESTORATION
SECTION 11.1 RESTORATION. In case of damage to or destruction of all or
a portion of the Landlord's Improvements by fire or other casualty (a
"Casualty"), after the date on which Substantial Completion of the Initial
Improvements is achieved and during the Term, Landlord, to the extent of
insurance proceeds received shall promptly restore, repair, replace and rebuild
the same as nearly as possible to the condition for which the Property Insurance
set forth in Section 5.1 was procured. Tenant shall forthwith give Landlord
written notice, except in cases of emergency when Landlord may be notified by
telephone, of Casualty upon the occurrence thereof and specify in such notice,
in reasonable detail, the extent thereof. Such restoration, repairs,
replacements, rebuilding, including the cost of temporary repairs for the
protection of the Demised Premises, or any portion thereof, pending completion
thereof are sometimes hereinafter referred to as the "Restoration."
Landlord shall employ its diligent good faith efforts to complete the
Restoration reasonably promptly and with as little disruption as to the Premises
Use as is reasonably possible. If Landlord advises Tenant thirty (30) days after
damage or destruction that Landlord is unable to complete the Restoration within
nine (9) months following the destruction, Tenant, on not less than thirty (30)
days written notice to Landlord, may terminate this Lease provided Tenant
vacates the undamaged portion of the Demised Premises as otherwise provided in
this Lease.
SECTION 11.2 INSURANCE PROCEEDS. All insurance moneys recovered by
Landlord or its Mortgagee on account of such Casualty, less the costs, if any,
to Landlord or its Mortgagee of such recovery, shall be applied by Landlord to
the payment of the costs of the Restoration and shall be paid out from time to
time as the Restoration progresses. If the net amount of the insurance proceeds
(after deduction of all costs, expenses and fees related to recovery of the
insurance proceeds) recovered is insufficient to complete the Restoration of
such improvements (exclusive of Tenant's personal property and Tenant's Trade
Fixtures which shall be restored, repaired or rebuilt out of Tenant's separate
funds), Tenant shall provide all additional funds necessary to complete the
Restoration.
SECTION 11.3 TENANT'S OBLIGATIONS FOLLOWING A CASUALTY. If the Casualty
shall render the Demised Premises wholly untenantable or unusable for the
Premises Use in Tenant's reasonable judgment, Base Rent payable hereunder shall
abate from the date of Casualty to the date on which Restoration is complete. If
the Casualty shall render a portion of the Demised Premises untenantable or
unusable for the Premises Use in Tenant's reasonable judgment, Base Rent shall
abate proportionately to the square footage of the Demised Premises rendered
untenantable or
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unusable until Restoration of such portion of the Demised Premises is complete.
SECTION 11.4 DESTRUCTION PRIOR TO COMMENCEMENT DATE. The provisions of
this Article 11 apply only to a Casualty occurring (a) as to the Initial
Improvements, after the Commencement Date and (b) as to the Expansion Space,
after the Expansion Commencement Date. Any such Casualty occurring to the
Initial Improvements prior to the Commencement Date or occurring to the
Expansion Space prior to the Expansion Commencement Date shall be restored,
repaired, replaced and rebuilt by Landlord, and during such period of
construction, Landlord shall obtain and maintain the insurance coverage referred
to in Section 5.1 hereof. All moneys received by Landlord under its insurance
coverage shall be applied by Landlord to complete the Restoration of such
Casualty, and if such insurance proceeds are insufficient, Landlord shall
provide all additional funds necessary to complete the Restoration of the
Initial Improvements or the Expansion Space, as appropriate.
SECTION 11.5 RESTORATION AT END OF TERM. If, within twelve (12) full
calendar months prior to the expiration of the Initial Term, Expansion Space
Term or Renewal Term(s), as the case may be, Landlord's Improvements shall be
destroyed or damaged, Landlord shall be relieved of the obligation to make the
Restoration, and this Lease shall terminate, provided, however, if Tenant,
within thirty (30) days following such Casualty, elects, in writing with no
right of withdrawal, to extend the Term for whatever Renewal Term then is
available to Tenant (if such a Renewal Term is available), Landlord shall not be
permitted to terminate this Lease pursuant to the provisions of this Section
11.5 and shall be required to complete the necessary Restoration in accordance
with the terms of this Article 11.
ARTICLE 12
CONDEMNATION
SECTION 12.1 TOTAL CONDEMNATION. If, during the Term, the entire
Demised Premises shall be taken as the result of the exercise of the power of
eminent domain (the "Proceedings"), this Lease and all right, title and interest
of Tenant hereunder shall terminate on the date of vesting of title pursuant to
such Proceedings, and Landlord shall be entitled to and shall receive the total
award made in such Proceedings. Except in the instance of a separate award for
moving expenses and loss of Tenant's Trade Fixtures, or in the instance of a
single award where moving expenses and loss of Tenant's Trade Fixtures are
reasonably and separately ascertainable, Tenant hereby assigns any interest in
such award, damages, consequential damages and compensation to Landlord.
Landlord agrees that it will not object to the petition of Tenant for a separate
award as set forth herein provided such
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petition or award in no way diminishes the award otherwise payable to Landlord
hereunder.
SECTION 12.2 PARTIAL CONDEMNATION. If during the Term, less than the
entire Demised Premises shall be taken in any such Proceedings, this Lease
shall, upon vesting of title in the Proceedings, terminate as to the portion of
the Demised Premises so taken. If the portion of the Demised Premises taken
shall, in the good faith exercise of Tenant's reasonable business judgment,
substantially and materially interfere with or inhibit Tenant's use of the
Demised Premises, Tenant may, at its option, terminate this Lease as to the
remainder of the Demised Premises. Such termination as to the remainder of the
Demised Premises shall be effected by notice in writing given not more than
sixty (60) days after the date of vesting of title in such Proceedings, and
shall specify a date not more than sixty (60) days after the giving of such
notice as the date for such termination. Upon the date specified in such notice,
the Term, and all right, title and interest of Tenant hereunder, shall cease and
terminate. If this Lease is terminated as provided in this Section 12.2,
Landlord and Tenant shall receive so much of the award as is provided in Section
12.1 hereof In the event that Tenant elects not to terminate this Lease as to
the remainder of the Demised Premises, the rights and obligations of Landlord
and Tenant shall be governed by the provisions of Section 12.3 hereof.
SECTION 12.3 RESTORATION AFTER CONDEMNATION. If, in the case of partial
taking, this Lease is not terminated as provided in Section 12.2 hereof, this
Lease shall, upon vesting of title pursuant to the Proceedings, terminate as to
the parts so taken, and, except as provided in Section 12.1 hereof, Tenant shall
have no claim or interest in the award, damages, consequential damages and
compensation, or any part thereof. Landlord, in such case and to the extent
Landlord receives proceeds from such Proceedings, covenants and agrees to
promptly restore that portion of the Demised Premises not so taken to a complete
architectural and mechanical unit for Tenant's use as provided in this Lease.
SECTION 12.4 BASE RENT REDUCTION. In the event of a partial taking of
the Demised Premises under Section 12.2 hereof, followed by Tenant's election
not to terminate this Lease, the fixed Base Rent payable hereunder during the
period from and after the date of vesting of title pursuant to such Proceedings
to the earlier of the termination of this Lease or until the next date upon
which Rent is determined under Section 3.1 above, shall be determined by
multiplying the Base Rent then being paid by Tenant by a fraction, the numerator
of which is the square footage of the Building after such taking and after the
same has been restored to a complete architectural unit, and the denominator of
which is the square footage of the Building prior to such taking.
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ARTICLE 13
ASSIGNMENT AND SUBLETTING
Provided Tenant remains primarily liable for all of Tenant's
obligations under this Lease, Tenant may assign or sublet all or any portion of
the Demised Premises upon prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Landlord's consent shall be deemed to
have been unreasonably withheld if: (a) the proposed assignee's or sublessee's
stockholder's equity is equal to or greater than Tenant's Stockholder's Equity
as of the date of the proposed assignment or subletting, and (b) the proposed
assignee's or sublessee's business reputation is at least as good as Tenant's.
Thirty (30) days prior to Tenant assigning or subletting all or any portion of
the Premises or any assignee or sublessee subsequently assigning or subletting
all or any portion of the Demised Premises, Tenant shall notify Landlord, in
writing, with reasonable specificity, of the terms, provisions and conditions of
such assignment or sublease.
ARTICLE 14
SUBORDINATION, NON-DISTURBANCE,
NOTICE TO MORTGAGEE AND ATTORNMENT
SECTION 14.1 SUBORDINATION. This Lease and all rights of Tenant herein,
and any and all interest or estate of Tenant in the Demised Premises, or any
portion thereof, shall be subject and subordinate to the lien held by or in
favor of any Mortgage which at any time may be placed upon the Demised Premises,
or any portion thereof, by Landlord, and to any replacements, renewals,
amendments, modifications, extensions or refinancing thereof, and to each and
every advance made under any Mortgage; provided however, the subordination
herein agreed upon shall not be effective unless and until Landlord, Landlord's
mortgagee and Tenant execute and deliver a subordination, non-disturbance and
attornment agreement substantially in the form attached hereto as Exhibit F (the
"Subordination Agreement"). Landlord and Tenant agree at any time hereafter, and
from time to time on demand of the other party, to promptly execute and deliver
to each other any reasonable instruments, releases or other documents that may
reasonably be required to carry out the intent of this Section 14.1. The lien of
any Mortgage shall not cover Tenant's Trade Fixtures or other personal property
located in or on the Demised Premises.
SECTION 14.2 MORTGAGEE PROTECTION CLAUSE. In the event of any act or
omission of Landlord constituting a default by Landlord, Tenant shall not
exercise any remedy until Tenant has given Landlord and any mortgagee (whose
identity and address have been provided to Tenant) of the Demised Premises a
thirty (30) day written notice of such act or omission, and until a reasonable
period of time to allow Landlord or the mortgagee to remedy such
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act or omission shall have elapsed following the giving of such notice. However,
if such act or omission cannot, with due diligence and in good faith, be
remedied within such thirty (30) day period, Landlord and the mortgagee shall be
allowed such further reasonable period of time as may be reasonably necessary
provided that it commence remedying the same with due diligence and in good
faith within said thirty (30) day period. Nothing herein contained shall be
construed or interpreted as requiring any mortgagee to remedy such act or
omission.
SECTION 14.3 ATTORNMENT. If any mortgagee shall succeed to the rights
of Landlord under this Lease or to ownership of the Demised Premises, whether
through possession or foreclosure or delivery of a deed in lieu of foreclosure,
then, upon the written request of such mortgagee so succeeding to Landlord's
rights hereunder, provided such mortgagee assumes, in writing, the obligations
of Landlord hereunder accruing on and after the date such mortgagee acquired
title to the Demised Premises, and further provided such mortgagee executes and
delivers to Tenant a Subordination Agreement, Tenant shall attorn to and
recognize such mortgagee as Tenant's landlord under this Lease. In the event of
any other transfer of Landlord's interest hereunder, upon the written request of
the transferee and Landlord, provided such transferee assumes, in writing, the
obligations of Landlord hereunder accruing on and after the date of such
transfer, Tenant shall attorn to and recognize such transferee as Tenant's
landlord under this Lease and shall execute and deliver any reasonable
instrument that such transferee and Landlord may reasonably request to evidence
such attornment.
SECTION 14.4 COSTS. Landlord agrees to reimburse Tenant up to One
Thousand Dollars ($1,000.00) for its reasonable fees of outside counsel incurred
in connection with the review of any Subordination Agreements (other than the
form of Subordination Agreement set forth as Exhibit F attached hereto) or
estoppel letter described in Section 19.7 (other than the form of "Estoppel
Letter" set forth as Exhibit E attached hereto) which Landlord may request
Tenant to execute.
ARTICLE 15
SIGNS
Tenant may erect signs on the exterior or interior of the Building or
on the landscaped area adjacent thereto, provided that such sign or signs (i) do
not cause any structural damage or other damage to the Building; (ii) do not
violate applicable governmental laws, ordinances, rules or regulations; (iii) do
not violate any existing restrictions affecting the Demised Premises are
compatible with the architecture of the Building and the landscaped area
adjacent thereto and (iv) have been approved by Landlord, which approval shall
not be unreasonably withheld or delayed.
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ARTICLE 16
TRADE FIXTURES
It is the intent of the parties that Trade Fixtures shall include those
items of personal property which are specifically used by Tenant in the conduct
of the Tenant's business and shall belong to Tenant. The parties agree that all
items contained in the Final Plans and Expansion Plans shall be deemed not to be
Trade Fixtures, but shall (absent the written agreement of the parties to the
contrary) constitute fixtures or real property and shall belong to the Landlord
as part of the Landlord's Improvements.
ARTICLE 17
CHANGES AND ALTERATIONS
Tenant shall have the right at any time, and from time to time during
the Term, to make such changes and alterations, structural or otherwise, to the
Building, improvements and fixtures hereafter erected on the Demised Premises as
Tenant shall deem necessary or desirable in connection with the requirements of
its business, which changes and alterations (other than changes or alterations
of Tenant's Trade Fixtures and equipment) shall be made in all cases subject to
the following conditions, which Tenant covenants to observe and perform:
(a) No change or alteration shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required
from time to time, all Municipal, State and Federal permits and
authorizations of the various governmental bodies and departments
having jurisdiction thereof, and Landlord agrees to join in the
application for such permits or authorizations whenever such
action is necessary, all at Tenant's sole cost and expense,
provided such applications do not cause Landlord to become liable
for any cost, fees or expenses, and provided, at Landlord's
direction, such approval is terminated, at the option of
Landlord, at the expiration of the Term.
(b) In any undertaking of Tenant pursuant to this Article 17, except
in the instance of interior decorating, no structural change or
alteration shall be undertaken until detailed plans and
specifications have been first submitted to and approved in
writing by Landlord, which approval shall not unreasonably be
withheld or delayed. Before commencement of any such change,
alteration, restoration or construction ("New Work") which in
Landlord's reasonable judgment would alter the mechanical,
structural, or other Building systems, Tenant shall: (i) obtain
Landlord's prior written
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consent, (which consent may be withheld if the change or
alteration would, in the reasonable judgment of Landlord, impair
the value or usefulness to Landlord of the Land or Landlord's
Improvements, or any substantial part thereof or would
unreasonably alter the aesthetics of the Demised Premises); (ii)
guarantee the completion thereof within a reasonable time
thereafter (1) free and clear of all mechanic's liens or other
liens, encumbrances, security interests and charges, and (2) in
accordance with the plans and specifications approved by
Landlord; and (iii) Tenant shall promptly upon the completion of
the New Work deliver to Landlord two (2) complete sets of "as
built" drawings for the New Work.
(c) Any change or alteration shall, when completed, be of such
character as not to reduce the value or utility of the Demised
Premises below its value or utility to Landlord immediately
before such change or alteration, nor shall such change or
alteration reduce the area or cubic content of the Building, nor
change the character of the Demised Premises as to use without
Landlord's express written consent.
(d) All New Work shall be done promptly and in a good and workmanlike
manner and in Compliance with Laws and in accordance with the
orders, rules and regulations of the Board of Fire Underwriters
where the Demised Premises is located, or any other body
exercising similar functions. The cost of any such change or
alteration shall be paid by Tenant so that the Demised Premises
and all portions thereof shall at all times be free of liens for
labor and materials supplied to the Demised Premises, or any
portion thereof. The New Work shall be prosecuted with reasonable
dispatch, delays due to strikes, lockouts, acts of God, inability
to obtain labor or materials, governmental restrictions or
similar causes beyond the reasonable control of Tenant excepted.
Tenant shall obtain and maintain, at its sole cost and expense,
during the performance of the New Work, workers' compensation
insurance covering all persons employed in connection with the
New Work and with respect to which death or injury claims could
be asserted against Landlord or Tenant or against the Demised
Premised or any interest therein, together with comprehensive
general liability insurance for the mutual benefit of Landlord
and Tenant with limits of not less than One Million Dollars
($1,000,000.00) in the event of injury to one person, Three
Million Dollars ($3,000,000.00) in respect to any one accident or
occurrence, and Five Hundred Thousand Dollars ($500,000.00) for
property damage, and the fire insurance with "extended coverage"
endorsement required by Section 5.1 hereof shall be supplemented
with
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"builder's risk" insurance on a completed value form or other
comparable coverage on the New Work. All such insurance shall be
in a company or companies authorized to do business in Ohio and
reasonably satisfactory to Landlord. All such policies of
insurance or certificates of insurance shall be delivered to
Landlord endorsed "Premium Paid" by the company or agency issuing
the same, or with other evidence of payment of the premium
satisfactory to Landlord, prior to the commencement of any New
Work.
(e) All improvements and alterations (other than Tenant's Trade
Fixtures, equipment and signs) made or installed by Tenant shall
immediately, upon completion or installation thereof, become the
property of Landlord without payment therefor by Landlord, and
shall be surrendered to Landlord on the expiration of the Term
(unless the parties agree to the contrary).
(f) No change, alteration, restoration or new construction shall be
in or connect Landlord's Improvements with any property, building
or other improvement located outside the boundaries of the Land
and Expansion Land, nor shall the same obstruct or interfere with
any then existing easement.
ARTICLE 18
SURRENDER OF PREMISES
SECTION 18.1 SURRENDER OF POSSESSION. Tenant shall, upon termination of
this Lease for any reason whatsoever, surrender to Landlord the Demised
Premises, together with all buildings, structures, fixtures and building
equipment or real estate fixtures upon the Demised Premises, together with all
additions, alterations and replacements thereof (except Tenant's personalty and
Trade Fixtures) in good order, condition and repair, with all mechanical,
electrical and plumbing systems in good working order and repair, reasonable
wear and tear excepted (provided that said exception shall in no way be deemed
to relieve Tenant from its obligations to make all necessary and appropriate
Tenant Repairs as and when required hereunder).
SECTION 18.2 REMOVAL OF TENANT'S PROPERTY; HOLDOVER RENT. Except as
otherwise provided herein, at the expiration of the Term, Tenant shall surrender
the Demised Premises and shall surrender all keys to the Demised Premises to
Landlord at the place then fixed for the payment of Base Rent and shall inform
Landlord of all combinations on locks, safes and vaults, if any. Except as
otherwise provided herein, Tenant shall at such time remove all of its property
(including its Trade Fixtures) therefrom and all alterations and improvements
placed thereon by Tenant if so requested by Landlord pursuant to Article 17
hereof.
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Tenant shall repair any damage to the Demised Premises caused by such removal,
and any and all such property not so removed when required shall, at Landlord's
option, become the exclusive property of Landlord or be disposed of by Landlord,
at Tenant's cost and expense, without further notice to or demand upon Tenant.
In addition to Additional Rent, Tenant shall pay to Landlord a sum
equal to 125% of the Base Rent herein provided for the month immediately prior
to the termination during each month or portion thereof for which Tenant shall
remain in possession of the Demised Premises or any part thereof after the
termination of the Term or of Tenant's rights of possession, whether by lapse of
time or otherwise and in such case, Tenant shall become a tenant from month to
month. The provisions of this Section 18.2 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
at law or at equity, and shall not be deemed to be a consent to any holdover nor
to grant Tenant any right to holdover.
All property of Tenant not removed on or before the last day of the
Term of this Lease shall be deemed abandoned. Tenant hereby appoints Landlord
its agent to remove all property of Tenant from the Demised Premises upon
termination of this Lease and to cause its transportation and storage for
Tenant's benefit, all at the sole cost and risk of Tenant and Landlord shall not
be liable for damage, theft, misappropriation or loss thereof and Landlord shall
not be liable in any manner in respect thereto. Tenant shall pay all costs and
expenses of such removal, transportation and storage. Tenant shall reimburse
Landlord upon demand for any expenses incurred by Landlord with respect to
removal or storage of abandoned property and with respect to restoring said
Demised Premises to good order, condition and repair.
ARTICLE 19
MISCELLANEOUS PROVISIONS
SECTION 19.1 RIGHT OF INSPECTION. Upon reasonable advance notice to
Tenant (except for emergency situations), Tenant agrees to permit Landlord and
its authorized representatives to enter upon the Demised Premises at all
reasonable times during ordinary business hours for the purpose of inspecting
the same and, pursuant to the terms of this Lease, making any necessary repairs
to comply with any laws, ordinances, rules, regulations or requirements of any
public body, or the Board of Fire Underwriters, or any similar body. Except as
otherwise provided herein, nothing shall imply any duty upon the part of
Landlord to do any such work which, under any provision of this Lease, Tenant
may be required to perform and the performance thereof by Landlord shall not
constitute a waiver of Default in failing to perform the same. Landlord shall
not unreasonably interfere with the use and occupancy of the Demised Premises
pursuant to the provisions of this Section 19.1.
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SECTION 19.2 DISPLAY OF DEMISED PREMISES. Upon reasonable advance
notice to Tenant, Landlord is hereby given the right during usual business hours
at any time during the Term to enter upon the Demised Premises and to exhibit
the same for the purpose of mortgaging or selling the same. During the final
year of the Term, Landlord shall be entitled to display the Demised Premises for
sale or lease without such prior notice, and shall be allowed to post
appropriate signage in or about the Demised Premises but in such manner as to
not unreasonably interfere with Tenant's business. Landlord shall not
unreasonably interfere with the use and occupancy of the Demised Premises
pursuant to the provisions of this Section 19.2.
SECTION 19.3 INDEMNITIES.
(a) TENANT. Tenant shall at all times indemnify, defend and hold
Landlord and Landlord's mortgagee(s), beneficiaries, partners, and managing
agent harmless against and from any and all claims, costs, liabilities, actions
and damages (including, without limitation, reasonable attorneys' fees and
costs) by or on behalf of any person or persons, firm or firms, corporation or
corporations, to the extent arising from the conduct or management, or from any
work or things whatsoever done in or about the Demised Premises during the Term,
and will further indemnify, defend and hold Landlord harmless against and from
any and all claims arising during the term of this Lease, to the extent arising
from any condition of the Improvements or any curb or sidewalk adjoining the
Demised Premises, or of any passageways or space therein or appurtenant thereto,
or to the extent arising from any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of Tenant to be performed,
pursuant to the terms of this Lease, or arising from any negligence of Tenant,
its agents, servants, employees or licensees, or arising from any accident,
injury or damage whatsoever caused to any person, firm or corporation occurring
during the term of this Lease, in or about the Demised Premises, or upon the
sidewalk and the land adjacent thereto, and from and against all costs,
reasonable attorney's fees, expenses and liabilities incurred in or about any
such claim or action or proceeding brought thereto; and in case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, covenants to defend such action proceeding by counsel
reasonably satisfactory to Landlord. The indemnity obligations of Tenant under
this Section 19.3(a) which relate directly or indirectly to death, bodily or
personal injury or property damage, shall be insured by contractual liability
endorsement on Tenant's policies of insurance required under the provisions of
Article 5. Notwithstanding anything contained herein to the contrary, Tenant's
obligations to indemnify, defend and hold Landlord harmless against and from any
and all claims, costs, liabilities, actions and damages shall not apply to any
claims, costs, liabilities, actions and damages to the extent
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arising as a result of (i) the negligence or willful misconduct or omissions of
Landlord; and/or (ii) the failure of Landlord to comply with a provision of this
Lease.
(b) LANDLORD. To the fullest extent permitted by law, Landlord shall
at all times indemnify, defend and hold Tenant and Tenant's shareholders and
employees harmless from any and all claims, costs, liabilities, actions and
damages (including, without limitation, reasonable attorneys' fees and costs) by
or on behalf of any person or persons, firm or firms, corporation or
corporations, to the extent arising from the conduct of or the failure to
conduct any of Landlord's obligations hereunder, or any negligence in the
performance thereof and from and against all costs, reasonable attorneys' fees,
expenses and liabilities incurred in or about any such claim, action or
proceeding brought thereon; and in case any action or proceeding be brought
against Tenant by reason of such claim, Landlord, upon notice from Tenant,
covenants to defend such action or proceeding by counsel reasonably satisfactory
to Tenant. The indemnity obligations of Landlord under this Section 19.3(b)
which relate directly or indirectly to death, bodily or personal injury or
property damage, shall be insured by contractual liability endorsement on
Landlord's policy of insurance required under the provisions of Section 5.
Notwithstanding anything contained herein to the contrary, Landlord's
obligations to indemnify, defend and hold Tenant harmless against and from any
and all claims, costs, liabilities, actions and damages shall not apply to any
claims, costs, liabilities, actions and damages to the extent arising as a
result of (i) the negligence or willful misconduct or omissions of Tenant;
and/or (ii) the failure of Tenant to comply with a provision of this Lease.
SECTION 19.4 NOTICES. All notices, demands and requests which may be or
are required to be given, demanded or requested by any party to the other shall
be in writing. All transmittals by Landlord or Tenant shall be delivered by
private messenger, or sent by United States registered or certified mail,
postage prepaid, or by Federal Express or similar overnight courier service,
addressed to Tenant (prior to the Commencement Date) as follows:
Health o meter Products, Inc.
24700 Miles Road
Bedford Heights, Ohio 44146
Attention: Steven M. Billick
and thereafter, to each of them, at the Demised Premises, or at such other place
as Tenant may from time to time designate by written notice to Landlord.
Tenant's address for billing and invoicing is same as above.
Any such transmittals by Tenant to Landlord shall be delivered by
private messenger, or sent by United States
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registered or certified mail, postage prepaid or by Federal Express or similar
overnight delivery service, addressed to Landlord at the following address:
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Attn: Legal Department
or at such other place as Landlord may from time to time designate by written
notice to Tenant. Notices, demands and requests which shall be served upon
Landlord by Tenant, or upon Tenant by Landlord, in the manner aforesaid, shall
be deemed to be sufficiently served or given for all purposes hereunder three
(3) days after the time such transmittals shall be mailed, or upon the actual
date of delivery to the addressee if sent by private messenger, or overnight
courier.
SECTION 19.5 QUIET ENJOYMENT. Landlord covenants and agrees that
Tenant, upon paying the Rent, and upon observing and keeping the covenants,
agreements and conditions of this Lease on its part to be kept, observed and
performed, shall lawfully and quietly hold, occupy, and enjoy the Demised
Premises during the Term without hindrance or molestation.
SECTION 19.6 LANDLORD AND SUCCESSORS. The term "Landlord", as used in
this Lease so far as covenants or obligations on the part of Landlord are
concerned, shall be limited to mean and include only the owner or owners at the
time in question of the fee of the Demised Premises, and in the event of any
transfer or transfers or conveyance (provided that such grantee assumes in
writing the obligations of Landlord hereunder on and after the date of such
conveyance), the then grantor shall be automatically freed and relieved, from
and after the date of such transfer or conveyance, of all liability with respect
to any covenants or obligations on the part of Landlord contained in this Lease,
the performance of which first accrues on or after the date of such transfer,
provided that any funds in the hands of such landlord or the then grantor at the
time of such transfer, in which Tenant has an interest, shall be turned over to
the grantee, and any amount then due and payable to Tenant by Landlord or the
then grantor under any provision of this Lease shall be paid to Tenant. It is
intended that the covenants and obligations contained in this Lease on the part
of Landlord shall, subject to the aforesaid, be binding on Landlord, its
successors and assigns, only during and in respect of their respective
successive periods of ownership.
SECTION 19.7 ESTOPPELS. Tenant shall, without charge at any time and
from time to time, within thirty (30) days after written request by Landlord,
certify by written instrument in substantially the form set forth as Exhibit E
hereto, duly executed, acknowledged, and delivered to any mortgagee, assignee
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of a mortgagee, proposed mortgagee, or to any purchaser or proposed purchaser,
or to any other person dealing with Landlord or the Demised Premises as to the
matters set forth in Exhibit E attached hereto.
SECTION 19.8 SEVERABILITY; GOVERNING LAWS. If any covenant, condition,
provision, term or agreement of this Lease shall, to any extent, be held invalid
or unenforceable, the remaining covenants, conditions, provisions, terms and
agreements of this Lease shall not be affected thereby, but each covenant,
condition, provision, term or agreement of this Lease shall be valid and in
force to the fullest extent permitted by law. This Lease shall be construed and
be enforceable in accordance with the laws of the State of Ohio.
SECTION 19.9 BINDING EFFECT. The covenants and agreements herein
contained shall bind and inure to the benefit of Landlord, its successors and
assigns, and Tenant and its permitted successors and assigns.
SECTION 19.10 CAPTIONS. The caption of each Article and Section of this
Lease is for convenience of reference only, and in no way defines, limits or
describes the scope or intent of such Article or Section of this Lease.
SECTION 19.11 LANDLORD TENANT RELATIONSHIP. This Lease does not create
the relationship of principal and agent, or of partnership, joint venture, or of
any association or relationship between Landlord and Tenant, the sole
relationship between Landlord and Tenant being that of landlord and tenant; nor,
except as otherwise provided herein, shall any person, firm or corporation be
entitled to claim any rights as a third party beneficiary hereof.
SECTION 19.12 MERGER OF AGREEMENTS. All preliminary and contemporaneous
negotiations are merged into and incorporated in this Lease. This Lease contains
the entire agreement between the parties and shall not be modified or amended in
any manner except by an instrument in writing executed by the parties hereto.
Submission of the form of the Lease for examination shall not bind Landlord in
any manner, and no Lease or obligations of Landlord shall arise until this
instrument is signed by both Landlord and Tenant and is delivered to each.
SECTION 19.13 LANDLORD'S PROPERTY. Tenant acknowledges that the Demised
Premises is the property of Landlord and that Tenant has only the right to
possession and use thereof upon the covenants, conditions, provisions, terms and
agreements set forth in this Lease.
SECTION 19.14 SURVIVAL. All obligations of the parties hereunder
(together with interest on Tenant's monetary obligations
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at the Maximum Rate of Interest) accruing prior to expiration of the Term shall
survive the expiration or other termination of this Lease.
SECTION 19.15 REASONABLENESS. Any consent, action or inaction required
to be given (or which may be withheld), done or not done by any of the parties
hereto shall, at all times, be given (or not withheld), done or not done in a
commercially reasonable fashion.
SECTION 19.16 REAL ESTATE BROKER. The Tenant represents that Tenant has
dealt with (and only with) Cleveland Real Estate Partners as its broker in
connection with this Lease (whose commission shall be paid by Landlord in
accordance with its agreement with same), and that insofar as Tenant knows, no
other outside broker negotiated this Lease (although Tenant acknowledges
Landlord is a broker but further understands Tenant is not paying Landlord a
commission) or is entitled to any commission in connection therewith. Tenant
agrees to indemnify, defend and hold Landlord harmless from and against any
claims made by any broker or finder other than the broker named above for a
commission or fee in connection with this Lease, provided that Landlord has not
in fact retained such broker or finder. Landlord agrees to indemnify, defend and
hold Tenant harmless from and against any claims made by any broker or finder
other than the broker named above for a commission or fee in connection with
this Lease.
SECTION 19.17 EXHIBITS; RIDER PROVISIONS. Any Exhibits attached hereto
are an integral part hereof and this Lease Agreement shall be construed as
though such Exhibits were set forth in full herein. In the event that there are
one or more Riders attached to this Lease, then the provisions of such Rider(s)
shall take precedent over any conflicting provisions contained herein.
SECTION 19.18 RECORDING. A Memorandum of Lease prepared by Tenant and
acceptable in form and content to Landlord, reciting the operative provisions of
this Lease, may, at the request of either party, be executed and recorded with
the Cuyahoga County, Ohio, Recorder of Deeds Office.
SECTION 19.19 FINANCIAL STATEMENTS. During the Term, Tenant shall
provide to Landlord on an annual basis, within one hundred twenty (120) days
following the end of the Tenant's fiscal year, a copy of Tenant's most recent
audited financial statements prepared as of the end of Tenant's fiscal year.
SECTION 19.20. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall
fail to perform or observe any term, condition, covenant or obligation required
to be performed or observed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord (whether
compensatory
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or punitive in nature), Tenant agrees that it shall look solely to Landlord's
right, title and interest in and to the Building and to Landlord's insurance for
indemnity obligations insured under the provisions of Article 5 for the
collection of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment and that Landlord shall not be personally
liable for any deficiency.
ARTICLE 20
CONTINGENCIES
SECTION 20.1 LANDLORD'S CONTINGENCIES. The obligations of Landlord
hereunder are contingent upon the following:
(a) Landlord's purchase by October 31, 1996 of the Land from Carl
Milstein, Trustee for the Carl Milstein Trust ("Milstein") on terms and
conditions satisfactory to Landlord, at a cost not to exceed Forty Thousand
Dollars ($40,000.00) per acre.
(b) The Village establishing by October 30, 1996 a Community
Reinvestment Area and abating 100% of the taxes of the real estate taxes
relating to the Demised Premises for fifteen (15) years.
SECTION 20.2 TENANT'S CONTINGENCIES. The obligations of Tenant
hereunder are contingent upon the Village establishing by October 30, 1996 a
Community Reinvestment Area and abating 100% of the real estate taxes relating
to the Demised Premises for fifteen (15) years.
SECTION 20.3 WAIVER. Landlord may waive in writing any of the
contingencies set forth in Section 20.1 and Tenant may waive in writing any of
the contingencies set forth in Section 20.2 and thereafter, such contingency
shall be of no further force or effect.
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IN WITNESS WHEREOF, each of the parties hereto has caused this LEASE
AGREEMENT, to be duly executed as of the day and year first above written.
Signed in the presence of: LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP
/s/ R.C. Farro
- ---------------------------- ------------------------------------------
Print Name: R.C. Farro
----------------- By: Duke Realty Investments, Inc.
/s/ Brent D. Ballard Its: General Partner
- ----------------------------
Print Name: Brent D. Ballard
----------------- By: /s/ William E. Linville, III
------------------------------------
William E. Linville, III,
Vice President-Indiana
Industrial Group
TENANT:
HEALTH O METER PRODUCTS, INC.
/s/ R.C. Farro By: /s/ Steven M. Billick
- ---------------------------- ---------------------------------------
Print Name: R.C. Farro Steven M. Billick,
----------------- Senior Vice President, Treasurer
and Chief Financial Officer
/s/ Brent D. Ballard
- ----------------------------
Print Name: Brent D. Ballard
-----------------
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STATE OF Ohio )
----------------- )ss
COUNTY OF Cuyahoga )
----------------
Before me, a Notary Public in and for said County and State, personally
appeared William E. Linville, III, Vice President, Indiana Industrial Group of
Duke Realty Investments, Inc., general partner of Duke Realty Limited
Partnership, who acknowledged that he did execute the foregoing on behalf of
said partnership and said corporation and that the same is his free act and deed
as such officer and the free act and deed of said partnership and corporation.
WITNESS my hand and Notarial Seal this 15th day of October, 1996.
/s/ Brent D. Ballard
-----------------------------------------
Notary Public
Printed Name: Brent D. Ballard
----------------------------
My commission expires: No Expiration Date
-------------------
STATE OF Ohio )
----------------- )ss
COUNTY OF Cuyahoga )
----------------
Before me, a Notary Public in and for said County and State, personally
appeared Steven M. Billick, Senior Vice President, Treasurer and Chief Financial
Officer of Health o Meter Products, Inc., who acknowledged that he did execute
the foregoing on behalf of said corporation and that the same is his free act
and deed as such officer and the free act and deed of said corporation.
WITNESS my hand and Notarial Seal this 15th day of October, 1996.
/s/ Brent D. Ballard
-----------------------------------------
Notary Public
Printed Name: Brent D. Ballard
----------------------------
My commission expires: No Expiration Date
-------------------
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LEASE AGREEMENT
TENANT: HEALTH O METER PRODUCTS, INC.
SCHEDULE OF EXHIBITS
--------------------
EXHIBITS DESCRIPTION
-------- -----------
A Legal Description of Land
B Performance Criteria
C Design Plan Packages (to be
attached when complete)
D Environmental Report
E Estoppel Letter
F Subordination Agreement
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