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EXHIBIT 10.25
AGREEMENT FOR PURCHASE AND SALE OF PROPERTY
THIS AGREEMENT is made and entered into as of this 29th day of May,
1998, by and between UNIVERSAL ELECTRONICS INC., a Delaware corporation
("Seller"), and DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Buyer").
WITNESSETH THAT:
WHEREAS, Buyer wishes to purchase, and Seller wishes to sell, the
Property (as hereinafter defined), but only upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the Earnest
Money, the mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
Section 1. Definitions and Exhibits.
1.1 Definitions. For purposes of this Agreement, each of the following
terms, when used herein with an initial capital letter, shall have the meaning
ascribed to it as follows:
1.1.1 Agreement. This Agreement for Purchase and Sale of
Property.
1.1.2 [Intentionally Omitted]
1.1.3 Building. A building containing approximately 64,432
square feet located at 1864 Enterprise Parkway in Twinsburg, Ohio.
1.1.4 Closing. The closing and consummation of the purchase
and sale of the Property pursuant hereto.
1.1.5 Closing Date. The date on which the Closing occurs as
provided in Section 11.1 hereof.
1.1.6 Confidential Information. The confidential information
described in Section 6.1 hereof.
1.1.7 Contract Date. The date upon which this Agreement shall
be deemed effective, which shall be the date first above written.
1.1.8 Deed. The General Warranty Deed to be executed by Seller
in the form attached hereto as Exhibit J.
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1.1.9 Earnest Money. The amount deposited by Buyer in escrow
with Escrow Agent as earnest money pursuant to the terms and conditions of
Section 3 hereof, together with any interest earned thereon.
1.1.10 Environmental Laws. Any applicable statute, code,
enactment, ordinance, rule, regulation, permit, consent, approval,
authorization, license, judgment, order, writ, common law rule (including
without limitation the common law respecting nuisance and tortious liability),
decree, injunction, or other requirement having the force and effect of law,
whether local, state, territorial or national, at any time in force or effect
relating to: (i) Emissions, discharges, spills, releases or threatened releases
of Hazardous Substances into ambient air, surface water, ground water,
watercourses, publicly or privately owned treatment works, drains, sewer
systems, wetlands, septic systems or onto land; (ii) The use, treatment,
storage, disposal, handling, manufacturing, transportation or shipment of
Hazardous Substances; (iii) The regulation of storage tanks; or (iv) Otherwise
relating to pollution or the protection of human health or the environment.
1.1.11 Escrow Agent. Land Title Agency, Inc., as agent for
First American Title Insurance Company, and which is acting as Escrow Agent
pursuant to the terms and conditions of the Escrow Agreement and Section 3
hereof.
1.1.12 Escrow Agreement. That certain Escrow Agreement of
even date herewith among Seller, Buyer and Escrow Agent referred to in Section 3
hereof and attached hereto as Exhibit A and by this reference made a part
hereof.
1.1.13 Hazardous Substances. All substances, wastes,
pollutants, contaminants and materials regulated, or defined or designated as
hazardous, extremely or imminently hazardous, dangerous, or toxic, under the
following federal statutes and their state counterparts, as well as these
statutes' implementing regulations: the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sections 9601 et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sections 136 et seq., the
Atomic Energy Act, 42 U.S.C. Sections 2011 et seq, and the Hazardous Materials
Transportation Act, 42 U.S.C. Sections 1801 et seq.; petroleum and petroleum
products including crude oil and any fractions thereof, asbestos; and Natural
gas, synthetic gas, and any mixtures thereof.
1.1.14 [Intentionally Omitted]
1.1.15 [Intentionally Omitted]
1.1.16 Improvements. The Building and any other buildings,
structures and improvements located upon the Land, including Seller's interest
in all systems, facilities, fixtures, machinery, equipment and conduits to
provide fire protection, security, heat, exhaust, ventilation, air conditioning,
electrical power, light, plumbing, refrigeration, gas, sewer and water thereto
(including all replacements or additions thereto between the date hereof and the
Closing Date).
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1.1.17 Inspection Date. The Inspection Date set forth in
Section 6.3 hereof.
1.1.18 Land. All those tracts or parcels of land described in
Exhibit B attached hereto and by this reference made a part hereof and all
privileges, rights, easements, hereditaments and appurtenances thereto
belonging, and all right, title and interest of Seller in and to any streets,
alleys, passages and other rights of way included therein or adjacent thereto
(before or after the vacation thereof).
1.1.19 [Intentionally Omitted]
1.1.20 Permitted Title Exceptions. Those matters identified on
Exhibit D attached hereto and by this reference made a part hereof.
1.1.21 Property. All of Seller's right, title and interest in,
to and under the following property:
(i) The Land;
(ii) The Improvements;
(iii) The personal property, together with all
replacements or additions thereto between the date hereof and the Closing Date
(the "Personal Property") listed on Exhibit E attached hereto and by this
reference made a part hereof;
(iv) The Surviving Service Contracts and Warranties;
and
(v) All rights of way or use, licenses, permits,
trade names and marks, plans, drawings, specifications, surveys, engineering
reports, technical descriptions, tenements, hereditaments, appurtenances and
easements now or hereafter belonging or pertaining to any of the foregoing,
except those, if any, hereinafter reserved to Seller.
1.1.22 Proration Date. The effective date of the prorations
provided in Section 4.2 hereof, which is midnight on the eve of the Closing
Date.
1.1.23 Purchase Price. The purchase price for the Property
described in Section 4.1 hereof.
1.1.24 [Intentionally Omitted]
1.1.25 [Intentionally Omitted]
1.1.26 [Intentionally Omitted]
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1.1.27 Service Contracts. All of the service or management
contracts, equipment, labor or material contracts, maintenance or repair
contracts or other agreements that are in force and effect and affect the
Property or the operation, repair or maintenance thereof, a complete list of
such contracts or agreements being contained in Exhibit G attached hereto and by
this reference made a part hereof.
1.1.28 Survey. The survey of the Land described in Section 6.4
hereof.
1.1.29 Surviving Service Contracts. Those Service Contracts
which Buyer may elect in writing to assume, with Seller's consent, pursuant to
Section 7 below and which shall be assigned to Buyer at the Closing.
1.1.30 [Intentionally Omitted]
1.1.31 [Intentionally 0mitted]
1.1.32 Title Commitment. A commitment for an ALTA Form
B (1992) Owner's Title Insurance Policy for the Property issued by the Title
Insurer in the full amount of the Purchase Price, covering title to the Property
on or after the date hereof, showing Seller as owner of the Property, and
providing for full extended coverage over all general title exceptions contained
in such policies and the following special endorsements: Zoning 3.1 (amended to
include parking), Access, Restrictions, Utility, Comprehensive, Survey, Tax
Parcel, Contiguity and Location.
1.1.33 Title Insurer. Land Title Agency, Inc. as agent for
First American Title Insurance Company.
1.1.34 Warranties. Any and all warranties, guaranties and
similar contracts in favor of Seller on equipment and improvements pertaining to
the Property.
1.2 Exhibits. Attached hereto and forming an integral part of this
Agreement are the following exhibits, all of which are incorporated into this
Agreement as fully as if the contents thereof were set out in full herein at
each point of reference thereto:
Exhibit A - Escrow Agreement
Exhibit B - Description of Land
Exhibit C - [Intentionally Omitted]
Exhibit D - Permitted Title Exceptions
Exhibit E - List of Personal Property
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Exhibit F - [Intentionally Omitted]
Exhibit G - Service Contracts
Exhibit H - [Intentionally Omitted]
Exhibit I - Description of Litigation Affecting
Seller or the Property
Exhibit J - Form of Deed
Exhibit K - [Intentionally Omitted]
Exhibit L - Non-Foreign Certificate
Exhibit M - Bill of Sale
Exhibit N - Assignment and Assumption of Surviving
Service Contracts and Warranties
Exhibit O - [Intentionally Omitted]
Exhibit P - [Intentionally Omitted]
Exhibit Q - Lease
Section 2. Purchase and Sale Agreement. Subject to and in accordance
with the terms and provisions hereof, Seller agrees to sell and Buyer agrees to
purchase the Property.
Section 3. Earnest Money.
3.1 Earnest Money. Simultaneously herewith, Buyer has deposited with
Escrow Agent the sum of Twenty Thousand Dollars ($20,000.00) as the earnest
money deposit under this Agreement, which deposit, together with any interest or
other income earned thereon (collectively, the "Earnest Money"), shall be held,
invested and disbursed pursuant to the respective terms and provisions hereof
and of the Escrow Agreement.
3.2 Disbursement. Whenever the Earnest Money is by the terms hereof to
be disbursed by Escrow Agent, Seller and Buyer agree promptly to execute and
deliver such notice or notices as shall be necessary or, in the opinion of
Escrow Agent, appropriate to authorize Escrow Agent to make such disbursement.
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Section 4. Purchase Price.
4.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be One Million Seven Hundred Twenty Thousand Dollars
($1,720,000.00). The Purchase Price, as adjusted by the prorations provided in
Section 4.2 hereof and as reduced by the Earnest Money, which, unless otherwise
disbursed hereunder, shall be disbursed by Escrow Agent at the Closing to Seller
as a portion of the Purchase Price, shall be paid by Buyer to Seller at the
Closing in United States dollars, by Federal Reserve System wire transfer or
other immediately available funds acceptable to Seller.
4.2 Prorations. The following adjustments and prorations shall be made
at Closing with Buyer treated as the owner of the Property on the date of
Closing:
4.2.2 Property Operating Expenses. Operating expenses for the
Property (including payments under Surviving Services Contracts and any land
lease assigned to Buyer pursuant hereto) shall be prorated and utilities shall
be switched over by the parties outside of escrow as of midnight of the day
prior to the Closing Date. Regardless of when invoices for same are received,
Seller shall pay all utility charges and other operating expenses attributable
to the Property to, but not including the Closing Date and Buyer shall pay all
utility charges and other operating expenses attributable to the Property on or
after the Closing Date. Seller shall not assign to Buyer any deposits which
Seller has with any of the utility services or companies servicing the Property
unless Buyer, at Buyer's option, shall purchase the deposits at Closing, in
which event Seller shall assign to Buyer all of Seller's right, title and
interest in such deposits. Buyer shall arrange with such services and companies
to have accounts opened in Buyer's name beginning at 12:01 a.m. on the Closing
Date.
4.2.3 Closing Costs. Buyer shall pay one-half (1/2) of the
premium of the Title Insurer for the Owner's Title Policy all recording and
filing charges in connection with the instrument by which Seller conveys the
Property, one-half (1/2) of all escrow or closing agent charges, the cost of any
endorsements to Owner's Title Policy all costs of Buyer's Due Diligence, the
cost of the Survey, and any other costs customarily paid by the Buyer pursuant
to local practice. Seller shall pay one-half (1/2) of the premium of the Title
Insurer for the Owner's Title Policy, all transfer taxes and similar charges,
one-half (1/2) of all escrow or closing agent charges, and any other costs
customarily paid by the Seller pursuant to local practice. Each party shall pay
its own attorneys. The obligations of the parties to pay applicable escrow or
closing charges shall survive the termination of this Agreement.
4.2.4 Apportionment Credit. In the event the apportionments to
be made at the Closing result in a credit balance (i) to Buyer, such sum shall
be paid at the Closing by giving Buyer a credit against the Purchase Price in
the amount of such credit balance, or (ii) to Seller, Buyer shall pay the amount
thereof to Seller at the Closing in United States dollars, by Federal Reserve
System by wire transfer or other immediately available funds to the account or
accounts to be designated by Seller for the payment of the Purchase Price.
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4.2.5 Delayed Adjustment. If at any time following the Closing
Date, the amount of an item listed in any section of this Section 4.2 shall
prove to be incorrect (whether as a result in an error in calculation or a lack
of complete and accurate information as of the Closing), the party in whose
favor the error was made shall promptly pay to the other party the sum necessary
to correct such error upon receipt of proof of such error, provided that such
proof is delivered to the party from whom payment is requested on or before six
(6) months after Closing. The provisions of this Section 4.2 shall survive the
Closing for the aforesaid six (6) months period and not be merged therein.
Seller's auditors and accountants shall be permitted full access to the books
and records of the Property following Closing, without unreasonable interference
with Buyer's operation of the Property, as reasonably necessary to permit such
auditors and accountants to complete their audit of the Property for the Closing
and for periods prior to Closing to complete Seller's records and to participate
in any final adjustments pursuant to this Section 4.2.5.
Section 5. Title to the Property. Seller, at Seller's expense, shall
deliver the Title Commitment to Buyer within ten (10) days of the Contract
Date. Seller shall convey merchantable and marketable fee simple title to the
Land and the Improvements to Buyer in the form of the Deed in recordable form,
which shall expressly be made subject to the Permitted Title Exceptions. Buyer
shall have until fifteen (15) days after receipt of the Title Commitment
(together with legible copies of all documents noted as exceptions therein) and
the Survey by which to examine title to the Property and to give written notice
to Seller of any objections which Buyer may have. If Buyer fails to give any
notice to Seller by such date, Buyer shall be deemed to have waived such right
to object to any title exceptions or defects. If Buyer does give Seller timely
notice of objection to any other title exceptions or defects, Seller shall use
commercially reasonable efforts to cure or satisfy such objection by the
Closing. If such objection is not so timely and reasonably cured or satisfied or
undertaken to be reasonably cured or satisfied by Seller, then Buyer shall,
within ten (10) days thereafter, elect, by written notice to be received by
Seller on or before such tenth (10th) day, either to (a) terminate this
Agreement, in which case the Earnest Money shall be returned to Buyer by Escrow
Agent, and the parties shall have no further rights or obligations hereunder,
except for those which expressly survive any such termination, or (b) waive its
objections hereunder and proceeds with the transaction pursuant to the remaining
terms and conditions of this Agreement. If Buyer fails to give Seller notice of
its election by such time, it shall be deemed to have elected the option
contained in subparagraph (a) above. If Seller does so reasonably cure or
satisfy, or undertake to reasonably cure or satisfy, such objection to the
satisfaction of Buyer, as determined in its sole discretion, then this Agreement
shall continue in full force and effect. Buyer shall have the right at any time
to waive any objections that it may have made and, thereby, to preserve this
Agreement in full force and effect. Seller agrees not to further voluntarily
alter or encumber in any way Seller's title to the Property after the Contract
Date (except to the extent provided in Section 9 below) without Buyer's written
consent. Notwithstanding anything to the contrary contained herein, Seller shall
be obligated to remove as a title exception (i) all mortgages, security deeds or
other security instruments encumbering the Property, and (ii) all past due ad
valorem taxes and assessments, owners association, roadway or other easement
fees, dues or assessments of any kind, whether or not of record, which
constitute, or may constitute, a lien against the Property. In addition, Seller
shall be obligated to remove, bond over or insure over any judgments against the
Seller (which do
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not result from acts or omissions on the part of Buyer) which have attached to
and become a lien against the Property.
Section 6. Buyer's Inspection.
6.1 Document Inspection. Buyer and Seller acknowledge that Buyer shall
inspect the Property and shall examine, review and inspect the books and records
relating to the ownership and operation of the Property pursuant to the terms
hereof. To the extent Seller has such documents, Seller has made available to
Buyer complete copies of each of the following documents related to the Property
that it has in its possession as of the Contract Date:
(a) Copies of all service, management or brokerage contracts,
personal property leases and other executory contracts respecting the Property.
Seller shall update such list to a date which is not more than thirty (30) days
prior to the Closing Date;
(b) Copies of real estate tax bills and assessments for the
Property for the current year and for the past three (3) years;
(c) All engineering and architectural plans and
specifications, drawings, site plans, surveys, soil boring test results, other
test results, studies and as-built plans and specifications of the Property,
traffic studies, and other construction and zoning materials for the Property;
(d) Operating statements and related documents and records for
the Property, if any such documents exist;
(e) Copies of all certificates of occupancy for the building
shell and for all occupied spaces, licenses, permits, authorizations and
approvals required by law or by any governmental authority having jurisdiction
over the Property, relating to the construction, occupancy, operation or present
use of the Property;
(f) The most recent budget for the Property, including income,
operating expenses, property taxes and assessments and capital expenditures, if
any such documents exist;
(g) A list of all personal property located on the Property
and owned by Seller;
(h) Copies of all warranties and guaranties issued in
connection with the Property;
(i) Copies of all environmental reports of the Property;
(j) Copies of any prior surveys of the Property;
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(k) Copies of insurance policies and claims documentation for
the current year and for the past three (3) years respecting the insurance
maintained on the Property or any portion thereof;
(1) Any other information or documentation relating to the
design, construction, layout, structure, mechanical, electrical and plumbing
systems, fire protection systems and subsurface conditions relating to the
Property; and
(m) Copies of all books, records, bills, invoices, and other
documentation related to the ownership, construction and operation of the
Property.
6.2 Physical Inspection. Subject to any rights or restrictions under
any of the Permitted Title Exceptions, Buyer and its agents shall have the
right, from time to time prior to the Closing, to enter upon the Property to
examine the same and the condition thereof, and to conduct such surveys and to
make such engineering and other inspections, tests and studies as Buyer shall
determine to be reasonably necessary, all at Buyer's sole cost and expense.
Buyer agrees to give Seller advance notice of such examinations or surveys and
to conduct such examinations or surveys during normal business hours to the
extent practicable. Buyer agrees to conduct all examinations and surveys of the
Property in a manner that will not harm or damage the Property or cause any
claim adverse to Seller and agrees to restore the Property to its condition
prior to any such examinations or surveys immediately after conducting the same.
Buyer hereby indemnifies and holds Seller harmless from and against any claims
for injury or death to persons, damage to property or other losses, damages or
claims, and including, in each instance, attorneys' fees and litigation costs,
arising out of any action of any person or firm entering the Property on Buyer's
behalf as aforesaid, which indemnity shall survive the Closing and any
termination of this Agreement without the Closing having occurred.
Notwithstanding the foregoing, Buyer shall not be liable merely for the
discovery of a pre-existing condition at the Property.
6.3 Formal Inspection Period. Notwithstanding Buyer's right of
inspection contained in Section 6.2 above, with respect to the condition of the
Property, Buyer's obligation to close under this Agreement is subject to and
conditioned upon Buyer's investigation and study of and satisfaction with the
Property. Buyer shall have until forty-five (45) days after receipt of the items
set forth in Section 6.1, and the Title Commitment with legible copies of the
exception documents (the "Inspection Date") in which to make such investigations
and studies with respect to the Property as Buyer deems appropriate, and to
terminate this Agreement, by written notice to Seller, to be received on or
before the Inspection Date, if Buyer is not, for any reason, satisfied with the
Property. If Buyer falls to give notice of such termination, to be received by
Seller on or before the Inspection Date, then Buyer's rights under this Section
6.3) to terminate shall be deemed to have been waived by Buyer.
6.4 Survey. Buyer, at Buyer s expense shall obtain a current, ALTA/ACSM
as-built survey of the Property in the form acceptable to Buyer (the "Survey").
The Survey shall (a) be completed in accordance with the minimum standard detail
requirements for the ALTA Urban
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survey and certified to Seller, Buyer, Buyer's lender, Buyer's counsel, and the
Title Company by such surveyor; (b) have one perimeter description of the
Property; (c) show all casements, right-of-way, setback lines, encroachments and
other matters affecting the use or development of the Property; (d) show the
number and location of all parking spaces; (e) show the address, dimensions and
location of the Improvements and the height and square footage thereof; (f) show
the acreage of the Property; (g) certify the zoning of the Property; and (h)
certify that no portion of the Property lies within a flood plain or wetlands
area. The Deed to be delivered by Seller to Buyer at the Closing shall contain
the legal description of the Property as shown on the Survey.
6.5 Environmental Assessment. Buyer shall obtain, at Buyer's expense, a
current ASTM Phase I environmental site assessment for the Property, performed
by an environmental consultant acceptable to Buyer. If the Phase I environmental
site assessment recommends that Phase II environmental site assessment be
prepared, Buyer shall immediately notify Seller and the parties shall mutually
determine how to allocate the cost of such Phase II assessment. Seller shall
extend the Inspection Date until a reasonable period following completion of
that Phase II assessment.
Section 7. Service Contracts. Seller shall, at Seller's sole cost and
expense, at or prior to the Closing, terminate all Service Contracts, except
those Service Contracts, designated by Buyer within ten (10) days of the
Closing Date to be Surviving Service Contracts, which Buyer elects to assume
with Seller's consent.
Section 8. Representations and Warranties. As of the Contract Date,
Seller hereby warrants and represents to Buyer as follows:
8.1 Service Contracts. A complete and accurate list and description of
all of the Service Contracts is set forth in Exhibit G hereto. To Seller's
knowledge, all such Service Contracts are in full force and effect in accordance
with their respective terms. Seller has not given or received any notice of
default under the Service Contracts, and Seller has no knowledge of any event
which, with the passage of time or the giving of notice, would constitute a
default thereunder.
8.2 No Litigation. Except as described in Exhibit I attached hereto and
by this reference made a part hereof, Seller has no knowledge nor has Seller
received notice, of (a) any actual or pending litigation or proceeding by any
organization, person, individual or governmental agency against Seller with
respect to the Property or against the Property, (b) any violation of the
Property's compliance with applicable fire safety laws, building code
ordinances, zoning ordinances or any similar statutes, ordinances, laws, rules
or regulations, (c) any condition, defect or inadequacy which, if not corrected,
would result in the termination of, or increase in the cost of, insurance
coverage, (d) any proceedings which could cause the change, redefinition or
other modification of the zoning classifications or of other legal requirements
applicable to the Property or any part thereof, or (e) any pending or threatened
condemnation proceeding that would affect the Property.
8.3 Boundary Lines of Land. There is no pending litigation or dispute,
and Seller has no knowledge nor has Seller received notice, of any dispute,
concerning the location of the lines and
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corners of the Land, and Seller has not been served with any legal action
concerning the location of the lines and corners of the Land.
8.4 Authority. Seller is a duly organized and validly formed
corporation under the laws of the State of Delaware, is in good standing in the
State of Ohio, is qualified to do business in the State in which the Land is
located, is not subject to any involuntary proceeding for dissolution or
liquidation thereof, and has obtained all requisite authorizations to enter into
this Agreement with Buyer and to consummate and close the purchase and sale of
the Property pursuant hereto. Seller's execution, delivery and performance of
its obligations under this Agreement will not conflict with or result in a
breach of, or constitute a default under, any of the provisions of Seller's
organizational documents or of any contract, instrument, law, governmental rule,
regulation, judgment, decree or order to which Seller is a party or by which
Seller is bound.
8.5 No Rights to Purchase. Seller is the sole owner of the Property
and, no person, other than Buyer, has any right, agreement, commitment, option,
right of first refusal or any other agreement, whether oral or written, with
respect to the purchase, assignment or transfer of all or any portion of the
Property. No party other than Seller has or claims any unrecorded or undisclosed
legal or equitable interest in the Property.
8.6 Taxes and Assessments. Except as may be revealed in the public
records where the Land is located, the Land is not subject to or affected by any
special assessment for public improvements or otherwise, whether or not
presently a lien upon the Land. Seller has made no commitment to any
governmental authority, utility company, school board, church or other religious
body, homeowner or homeowner's association or any other organization, group or
individual relating to the Property which would impose an obligation upon Seller
or its successors or assigns to make any contributions or dedications of money
or land, or to construct, install or maintain any improvements of a public or
private nature as part of the Property or upon separate lands. No governmental
authority has imposed any requirement that Seller pay, directly or indirectly,
any special fees or contributions or incur any expenses or obligations in
connection with the development of the Property or any portion thereof, other
than any regular and nondiscriminatory local real estate or school taxes
assessed against the Property. No federal, state or local taxing authority has
asserted any tax deficiency, lien, interest or penalty, special assessment or
other assessment against the Property or Seller which has not been paid; and
there is no pending audit or inquiry from any federal, state or local tax
authority or other matter relating to the Property or Seller of which Seller has
notice or knowledge which reasonably may be expected to result in a tax
deficiency, lien, interest, penalty, special assessment or other assessment
against the Property or Seller.
8.7 Environmental Matters. To Seller's knowledge, and except as may be
revealed in any environmental report delivered to Buyer pursuant to Section 6.1
and 6.5 hereof:
(a) Hazardous Substances have not been used, generated,
transported, treated, stored, released, discharged or disposed of in, onto,
under or from the Property in violation of any
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Environmental Laws by Seller or by any predecessor-in-title or agent of Seller
or by any other person at any time;
(b) no notification of release of a Hazardous Substance has
been filed as to the Property, nor is the Property listed on the National
Priority List promulgated pursuant to CERCLA or on any other Federal or state
list of Hazardous Substance sites requiring investigation or cleanup;
(c) there are no above-ground or underground tanks or any
other underground storage facilities located on the Property, and there have
never been such tanks or facilities on the Property;
(d) the Property does not contain any PCBs, asbestos or urea
formaldehyde; and
(e) the Property does not lie within or contain, in whole or
in any part, any wetlands.
Seller has received no written or oral notice or other communication of pending
or threatened claims, actions, suits, proceedings or investigations against
Seller or occupant of the Property related to (i) the disposal or release of
solid, liquid or gaseous waste into the environment from the Property, (ii) the
use, generation, transportation, treatment, storage, release, discharge,
disposal or other handling of any Hazardous Substance on the Property, or (iii)
any alleged violation of any Environmental Laws in relation to the Property.
8.8 Non-Foreign Status. Seller is not a "foreign person" as that term
is defined in the Internal Revenue Code of 1986, as amended and the Regulations
promulgated pursuant thereto.
8.9 [Intentionally Omitted]
8.10 Prorations. The information to be furnished by Seller on which the
computation of prorations is based shall be true, correct and complete in all
material respects.
8.11 Personal Property. Except as shown on Exhibit E, Seller has good
and marketable title to the Personal Property and each item thereof is free and
clear of liens, security interests, encumbrances, leases and restrictions of
every kind and description, except the Permitted Title Exceptions.
8.12 Title to Property. The interest of Seller in the Service
Contracts, Leases, and other Property is free and clear of all encumbrances and
has not been assigned to any other person, except as reflected in the Permitted
Title Exceptions.
8.13 Utilities. All water, sewer, electric, natural gas, telephone and
drainage facilities, and all other utilities required for the intended operation
of the Property, are installed to the Property and are connected with valid
permits. All utility lines serving the Property are located within the
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boundaries of the Property, within lands dedicated to public use, or within
recorded easements for such purpose.
8.14 Warranties. The warranties and guaranties made available to Buyer
pursuant to Section 6.1 hereof are complete and accurate. All such warranties
and guaranties are in full force and effect in accordance with their respective
terms.
8.15 Compliance. To the best of Seller's knowledge, after due inquiry
(i) all governmental approvals necessary for the construction and operation of
the Property have been obtained and are in full force and effect, and (ii) the
Property is in compliance with all zoning, building, health, traffic,
environmental, flood control, fire safety and all other applicable rules,
regulations, ordinances and statutes of all governmental entities having
jurisdiction over the Property.
8.16 Condition. To the best of Seller's knowledge, after due inquiry,
all Improvements (including without limitation all pavement; elevators; roofs;
mechanical, plumbing, drainage, structural, heating, ventilating and
air-conditioning systems; or other systems at or servicing the Property and all
other facilities and equipment relating thereto) are in good order and operating
condition, free from physical or mechanical defects (whether latent or patent),
and fully usable for their intended purpose.
8.17 Seller's Knowledge. Whenever a representation and warranty made by
Seller in this Section 8 is limited to Seller's knowledge, the phrase "Seller's
knowledge" or any derivation thereof shall mean that Seller has made due inquiry
as to the accuracy of the representations and warranties to those of its
officers and supervising employees who are currently employed by Seller and who
are or were responsible on behalf of Seller for the acquisition, development,
management, operation and disposition of the Property and construction of the
Improvements.
8.18 Miscellaneous. It shall be a condition of Closing that the
representations and warranties contained in this Section 8 are true and correct
at Closing and Seller shall be deemed to have reaffirmed these representations
and warranties at Closing. In the event that Seller or Buyer learns that any of
said representations or warranties becomes inaccurate between the Contract Date
and the Closing Date, Seller or Buyer shall immediately notify the other party
in writing of such change. Seller shall then use its good faith efforts to cure
such change after giving or receiving notice thereof as require herein. The
Closing Date shall be automatically extended in order to allow Seller to cure
such change. In the event Seller so cures such change, this Agreement shall
remain in full force and effect. If Seller is unable to cure such change, Buyer
may either (a) terminate this Agreement by written notice to Seller, in which
case the Earnest Money shall be returned to Buyer and the parties shall have no
further rights or obligations hereunder, except for those which expressly
survive such termination, or (b) waive such right to terminate and proceed with
the transaction pursuant to the remaining terms and conditions of this
Agreement. In the event Buyer elects option (b) in the preceding sentence or in
the event Buyer elects to Close with the knowledge that a representation or
warranty of Seller herein is untrue or incorrect, the representations and
warranties shall be deemed to be automatically amended to reflect said change.
The representations and
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warranties contained in this Section 8 shall survive Closing but shall terminate
two (2) years after the Closing Date, unless a suit is filed thereupon in a
court of competent jurisdiction on or before the expiration of said two (2) year
period.
Section 9. Operations Pending Closing. Seller, at its expense, shall
use reasonable efforts to maintain the Property until the Closing Date or until
the termination of this Agreement, whichever is earlier, substantially in its
present condition, insured damage by fire or other casualty and condemnation
excepted. Prior to the Inspection Date, Seller may enter into or agree to enter
into any lease or other agreement concerning occupancy or use of any of the
Property, other agreements concerning operation of the Property or any
modification or amendment of any existing Service Contract, or any other
agreement relating to the Property; and institute any summary or other eviction
proceeding or action against any occupant; provided, however, that Seller shall
deliver to Buyer a copy of any and all offers, proposals, claims or demands or
amendments thereto and final agreements or settlements, at the same time such
offers, proposals, claims or demands are delivered to the prospective occupant,
service contractor or other entity; and provided further that Seller shall not
enter into any lease, service, management or other agreement relating to the
management or operation of the Property, including without limitation any
personal property lease or purchase agreement, which is not terminable upon
thirty (30) days notice to the other party. Seller agrees to consult with Buyer
from time to time in connection with such activities. Within five (5) days after
execution, Seller shall furnish Buyer with copies of any executed lease,
agreement, modification or amendment entered into by Seller, or of any pleadings
from any legal action filed by Seller against any occupant after the Contract
Date and prior to Closing.
On and after the Inspection Date and prior to Closing, Seller shall
not, without the prior written consent of Buyer , enter into or agree to enter
into any lease or other agreement concerning occupancy or use of any of the
Property, other agreements concerning operation or ownership of the Property, or
any modification or amendment of any existing Service Contract or any other
agreement relating to the Property; or institute any summary or other eviction
proceeding or action against any occupant of the Property.
Seller hereby agrees, through and including the Closing Date and at
Seller's sole cost and expense, to:
(a) keep all existing insurance policies affecting the
Property or any portion thereof in full force and effect;
(b) use due diligence and commercially reasonable efforts to
keep in full force and effect and/or to renew all licenses and permits, if any,
pertaining to Seller's ownership or operation of the Property or any portion
thereof;
(c) continue to provide all services currently provided by
Seller with respect to the Property or any portion thereof, and to continue to
operate, manage and maintain the Property
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in substantially the same manner as Seller currently operates, manages, repairs,
replaces and maintains the Property; and
(d) keep Buyer timely advised of any repair or improvements
required to keep the Property or any portion thereof in the condition required
by this Agreement, and which cost in excess of Ten Thousand Dollars
($10,000.00).
Seller hereby agrees to give Buyer written notice of any citation or
other notice which Seller may receive, subsequent to the Contract Date and prior
to the Closing Date, from any governmental authority and concerning any
violation of any law, ordinance, code rule, regulation or order regulating the
Property or the use thereof. Seller shall pay in full, prior to the Closing
Date, all bills and invoices for labor, material and services relating to the
Property which are attributable to the period prior to the Closing Date, subject
to Closing prorations, and which Buyer is not otherwise responsible for paying
pursuant to this Agreement.
Section 10. Conditions to Closing. Buyer's obligation to proceed to
Closing under this Agreement is subject to the following conditions precedent:
(a) Seller shall have performed and satisfied each and all of
Seller's obligations under this Agreement;
(b) Each and all of Seller's representations and warranties
set forth in this Agreement shall be true and correct at the Contract Date and
at the Closing Date;
(c) There shall be no material change between the Contract
Date and the Closing Date in the physical or financial condition or
profitability of the Property or Improvements or in Seller's obligations with
respect thereto;
(d) Buyer shall have received all corporate and partnership
approvals to complete this transaction on or before the Inspection Date.
(e) Buyer, as Landlord, and Seller, as Tenant, shall have
executed a lease for approximately 6,832 square feet located on the second floor
mezzanine of the Building, which lease shall be in substantially the form
attached hereto as Exhibit Q. The lease shall be for a term of four (4) years,
with a modified gross rent of $4.75 per square foot, all as more particularly
set forth in Exhibit Q.
In the event any of the foregoing conditions are not satisfied on the Closing
Date, Buyer shall have no obligation to proceed to Closing and, unless Buyer
shall deliver written notice to Seller that Buyer has waived any unsatisfied
condition and will proceed to Closing, this Agreement shall cease and terminate,
the Earnest Money shall be returned and paid to Buyer, and neither party shall
have any further obligation hereunder. Notwithstanding the foregoing, nothing
contained herein shall waive or diminish any right or remedy Buyer may have for
Seller's default or breach of this Agreement.
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Section 11. Closing.
11.1 Time and Place. Provided that all of the conditions set forth in
this Agreement are theretofore fully satisfied or performed, the Closing shall
be held at the offices of the Escrow Agent, on a date selected by Buyer and
reasonably acceptable to Seller, which shall be on or before fifteen (15) days
after the expiration of the Inspection Period, unless the Closing Date is
postponed pursuant to the express terms of this Agreement or as otherwise agreed
by Seller and Buyer in writing.
11.2 Closing Documents. For and in consideration of, and as a condition
precedent to Buyer's delivery to Seller of the Purchase Price, Seller shall
obtain and deliver to Buyer at the Closing the following documents (all of which
shall be duly executed and witnessed, which documents Buyer agrees to execute
where required):
11.2.1 A Deed, in the form attached as Exhibit J here to and
by this reference made a part hereof, conveying to Buyer all of Seller's right,
title and interest in and to the Property, subject to the Permitted Title
Exceptions and such other exceptions as are permitted by Section 5 hereof;
11.2.2 A Non-Foreign Certificate, in the form attached as
Exhibit L hereto and by this reference made a part hereof;
11.2.3 Such evidence as the Title Insurer shall reasonably
require as to the authority of the parties acting on behalf of Seller and Buyer
to enter into this Agreement and to discharge the obligations of Seller and
Buyer pursuant hereto;
11.2.4 An original executed counterpart or certified copy of
each Surviving Service Contract;
11.2.5 A Bill of Sale for all Personal Property, in the form
attached as Exhibit M hereto and by this reference made a part hereof;
11.2.6 An Assignment and Assumption of Surviving Service
Contracts and Warranties, in the form attached hereto as Exhibit N and by this
reference made a part hereof;
11.2.7 If applicable, a properly-completed property transfer
tax return, in form and substance appropriate to the jurisdiction in which the
Property is located;
11.2.8 A Closing Statement;
11.2.9 An affidavit of title or other affidavit customarily
required of sellers by the Title Insurer to remove the standard exceptions from
an owner's title insurance policy which are capable of being removed by such an
affidavit; and
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11.2.10 Such further instructions, documents and information,
including, but not limited to a Form 1099, as Buyer, Seller or Title Insurer may
reasonably request as necessary to consummate the purchase and sale contemplated
by this Agreement.
Section 12. Default and Remedies.
12.1 Buyer's Default. In the event of a default by Buyer under the
terms of this Agreement, Escrow Agent shall disburse the Earnest Money to
Seller, and Seller shall be entitled, as its sole and exclusive remedy
hereunder, to retain the Earnest Money as full liquidated damages for such
default of Buyer, whereupon this Agreement shall terminate and the parties
shall have no further rights or obligations hereunder, except for those which
expressly survive any such termination. It is hereby agreed that Seller's
damages in the event of a default by Buyer hereunder are uncertain and difficult
to ascertain, and that the Earnest Money constitutes a reasonable liquidation of
such damages and is intended not as a penalty, but as full liquidated damages.
Buyer covenants not to bring any action or suit challenging the amount of
liquidated damages provided hereunder in the event of such default. This
provision shall expressly survive the termination of this Agreement.
12.2 Seller's Default. In the event of a default by Seller under the
terms of this Agreement which is first discovered by Buyer prior to the Closing
and is not cured by Seller as provided hereunder, Buyer's sole and exclusive
remedies hereunder shall be to either terminate this Agreement and receive a
refund of the Earnest Money from Escrow Agent, or to seek specific performance
of Seller's obligations under this Agreement, together with any damages caused
by Seller's default hereunder.
Section 13. Condemnation or Destruction.
13.1 Condemnation. Seller hereby represents and warrants that Seller
has no knowledge of any action or proceeding pending, instituted or threatened
for condemnation or other taking of all or any part of the Property by friendly
acquisition or statutory proceeding. Seller agrees to give Buyer immediate
written notice of such actions or proceedings that may result in the taking of
all or a part of the Property. If, prior to the Closing, all or any material
part of the Property is subject to a bona fide threat of condemnation by a body
having the power of eminent domain, or is taken by eminent domain or
condemnation, or sale in lieu thereof, then Buyer, by written notice to Seller,
to be received within thirty (30) calendar days of Buyer's receiving Seller's
notice of such threat, condemnation or taking, or by the Closing Date, whichever
is earlier, may elect to terminate this Agreement.
13.2 Damage or Destruction. If, prior to the Closing, all or any
material part of the Property is damaged or destroyed by any cause, Seller
agrees to give Buyer immediate written notice of such occurrence and the nature
and extent of such damage and destruction, and Buyer, by written notice to
Seller, to be received within thirty (30) calendar days of Buyer's receipt of
Seller's notice
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of such damage or destruction, or by the Closing Date, whichever is earlier, may
elect to terminate this Agreement.
13.3 Termination. If this Agreement is terminated as a result of the
provisions of either Section 13.1 or Section 13.2 hereof, Buyer shall be
entitled to receive a refund of the Earnest Money from Escrow Agent, whereupon
the parties shall have no further rights or obligations hereunder, except for
those which expressly survive any such termination.
13.4 Awards and Proceeds. If Buyer does not elect to terminate this
Agreement following any notice of a threat of taking or taking by condemnation
or notice of damage or destruction to the Property, as provided above, this
Agreement shall remain in full force and effect and the conveyance of the
Property contemplated herein, less any interest taken by eminent domain or
condemnation, or sale in lieu thereof, shall be effected with no further
adjustments. At the Closing, Seller shall assign, transfer and set over to Buyer
all of Seller's right, title and interest in and to any awards, payments or
insurance proceeds for the actual value of the property lost or destroyed, up to
but not in excess of the Purchase Price, that have been or may thereafter be
made for any such taking, sale in lieu thereof or damage or destruction, to the
extent such awards, payments or proceeds shall not have theretofore been used
for restoration of the Property pursuant to a plan of restoration approved in
writing by Buyer. In addition there shall be credited to Buyer against the
Purchase Price the amount of any insurance deductible or other limitation on
insurance proceeds.
Section 14. Assignment.
14.1 Assignment by Buyer. Except as herein expressly provided, Buyer
shall not, without the prior written consent of Seller, which Seller may
withhold in its sole and absolute discretion, assign any of Buyer's rights
hereunder or any part thereof to any person, firm, partnership, corporation or
other entity. If any assignment is made with the consent of Seller, then the
sale contemplated by this Agreement shall be consummated in the name of, and by
and through the authorized officials of, any such assignee. Notwithstanding
anything to the contrary contained herein, Buyer may assign this Agreement and
all of its interests herein to an entity related to Buyer without the consent
of, but with notice to, Seller. Upon such assignment or nomination, the assignee
or nominee shall have and be subject to all the rights, benefits, duties and
obligations of Buyer hereunder, but Buyer shall not be released from any
liability or obligation of Buyer hereunder.
14.2 Assignment by Seller. From and after the Contract Date, Seller
shall not, without the prior written consent of Buyer, which consent Buyer may
withhold in its sole discretion, assign, transfer, convey, hypothecate or
otherwise dispose of all or any part of its right, title and interest in the
Property.
Section 15. Buyer's Representation and Warranty. Buyer does hereby
represent and warrant to Seller as of the Contract Date and the Closing Date
that it is a validly formed limited partnership under the laws of Indiana; that
it is in good standing in the state of its organization and qualified to do
business in the State in which the Land is located; that it is not subject to
any involuntary
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proceeding for the dissolution or liquidation thereof; that it has all requisite
authorizations to enter into this Agreement; and that the parties executing this
Agreement on behalf of Buyer are duly authorized to so do. If Buyer does not
terminate this Agreement on or before the Inspection Date, Buyer shall be deemed
to have represented and warranted to Seller as of the Inspection Date and the
Closing Date that Buyer has all requisite authorization to consummate the
transactions contemplated hereby.
Section 16. Broker and Broker's Commission. Buyer and Seller each
warrant and represent to the other that such party has not employed a real
estate broker or agent in connection with the transaction contemplated. Each
party agrees to indemnify and hold the other harmless from any loss or cost
suffered or incurred by it as a result of the other's representation herein
being untrue. This Section 16 shall expressly survive the Closing hereunder.
Section 17. Notices. Wherever any notice or other communication is
required or permitted hereunder, such notice or other communication shall be in
writing and shall be delivered by hand, by nationally-recognized overnight
express delivery service, by U.S. registered or certified mail, return receipt
requested, postage prepaid, or by electronic transfer with prompt telephone
confirmation to the addresses set out below or at such other addresses as are
specified by written notice delivered in accordance herewith:
SELLER: Universal Electronics Inc.
Attn: Paul Arling
1864 Enterprise Parkway
Twinsburg, OH 44087
Phone: (216)487-1110
Fax: (216) 963-7652
BUYER: Duke Realty Limited Partnership
Attn: Peter N. Anderson
8888 Keystone Crossing, Suite 1200
Indianapolis, IN 46240
Phone: (317) 574-3520
Fax: (317) 574-3509
With a copy to: Bose McKinney & Evans
Attn: Tammy K. Haney, Esq.
8888 Keystone Crossing, Suite 1500
Indianapolis, IN 46240
Phone: (317) 574-3708
Fax: (317) 574-3716
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Such notices shall be deemed received (a) on the date of delivery, if delivered
by hand or overnight express delivery service; (b) on the date indicated on the
return receipt if mailed; or (c) on the date of transmission, if sent by
electronic transfer device.
Section 18. Miscellaneous.
18.1 Governing Law; Headings; Rules of Construction. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State in which the Land is located, without reference to the conflicts of laws
or choice of law provisions thereof. The titles of sections and subsections
herein have been inserted as a matter of convenience of reference only and shall
not control or affect the meaning or construction of any of the terms or
provisions herein. All references herein to the singular shall include the
plural, and vice versa. The parties agree that this Agreement is the result of
negotiation by the parties, each of whom was represented by counsel, and thus,
this Agreement shall not be construed against the maker thereof.
18.2 No Waiver. Neither the failure of either party to exercise any
power given such party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder, nor any custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
18.3 Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the Property, and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein or incorporated herein by reference shall be of any force or
effect.
18.4 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns
(subject to Section 14 above).
18.5 Amendments. No amendment to this Agreement shall be binding on any
of the parties hereto unless such amendment is in writing and is executed by the
party against whom enforcement of such amendment is sought.
18.6 Possession. Possession of the Property shall be granted by Seller
to Buyer no later than the Closing Date, subject to the Permitted Title
Exceptions and other title matters allowed under Section 5 hereof.
18.7 Date For Performance. If the time period by which any right,
option or election provided under this Agreement must be exercised, or by which
any act required hereunder must be performed, or by which the Closing must be
held, expires on a Saturday, Sunday or legal or bank holiday, then such time
period shall be automatically extended through the close of business on the next
regularly scheduled business day.
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18.8 Recording. Seller and Buyer agree that they will not record this
Agreement and that they will not record a short form of this Agreement.
18.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute but one and the same instrument.
18.10 Time of the Essence. Time shall be of the essence of this
Agreement and each and every term and condition hereof.
18.11 Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations, and is intended, and shall for all purposes
be deemed to be, a single, integrated document setting forth all of the
agreements and understandings of the parties hereto, and superseding all prior
negotiations, understandings and agreements of such parties. If any term or
provision of this Agreement or the application thereof to any person or
circumstance shall for any reason and to any extent be held to be invalid or
unenforceable, then such term or provision shall be ignored, and to the maximum
extent possible, this Agreement shall continue in full force and effect, but
without giving effect to such term or provision.
18.12 Confidentiality. Buyer and Seller covenant and agree that the
terms of this Agreement, as well as the identity of the parties to the
transactions contemplated thereby and hereby, and all information concerning the
Property (including, without limitation, all information obtained by Buyer prior
to the Closing Date) shall be kept in strictest confidence by Buyer and Seller
prior to the Closing, and thereafter, if the Closing fails to occur for any
reason. After the occurrence of the Closing, Buyer may disclose that the
transactions contemplated hereby have occurred and that the Property has been
sold, but shall not disclose the Purchase Price, except to actual or prospective
lenders, investors, shareholders, analysts, consultants and governmental
agencies. Notwithstanding the foregoing, nothing contained herein shall be
construed so as to prohibit Buyer and Seller from making (a) a disclosure to
officers, employees and those agents, contractors or vendors which need to know
in order to assist Buyer in its purchase of the Property, (b) any disclosure
required by law, including any such disclosure required by any Federal, state or
local governmental agency or court of competent jurisdiction, or (c) any
disclosure which is reasonably necessary to protect any such party's interest in
any action, suit or proceeding brought by or against such party and relating to
the Properties or the subject matter of this Agreement.
18.13 Attorneys' Fees. In the event that either party shall bring an
action or legal proceeding for an alleged breach of any provision of this
Agreement or any representation, warranty, covenant or agreement herein set
forth, or to enforce, protect, determine or establish any term, covenant or
provision of this Agreement or the rights hereunder of either party, the
prevailing party shall be entitled to recover from the nonprevailing party, as a
part of such action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and costs, expert witness fees and court
costs as may be fixed by the court or jury.
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18.14 Like-Kind Exchange. Buyer shall have the right to acquire the
Property as part of a transaction that Buyer intends to qualify as a
tax-deferred exchange under Section 1031 of the Internal Revenue Code. Seller
shall make all reasonable efforts to cooperate with Buyer, provided, however,
that the date of Closing hereunder shall not thereby be delayed, Seller shall
not be obligated to incur any additional expenses and Buyer shall defend,
indemnify and hold harmless Seller against any and all losses, costs, expenses
and liabilities which may arise out of such tax-deferred exchange. To facilitate
such exchange, Buyer shall have the right to assign all of its right, title and
interest in this Agreement to a qualified intermediary and to require Seller to
convey the Property to that intermediary pursuant to the terms of this
Agreement.
18.15 Financial Information. At Buyer's request, Seller shall provide
buyer with whatever financial information Seller may have with respect to the
operation and maintenance of the Property.
18.16 Sign. Seller agrees that Buyer may install Buyer's sign
advertising the Property for lease in a location mutually acceptable to Buyer
and Seller upon the execution of this Agreement. Buyer shall pay the cost and
expense of installing, maintaining, repairing and removing such sign. If this
Agreement is terminated by Buyer prior to the expiration of the Inspection Date,
Buyer will promptly remove such sign.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and sealed by its duly authorized signatory, effective
as of the day and year first above written.
SELLER:
UNIVERSAL ELECTRONICS INC.,
a Delaware corporation
By: /s/ PAUL ARLING
------------------------------------
Printed: PAUL ARLING
--------------------------------
Title: CHIEF FINANCIAL OFFICER
BUYER:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc.,
an Indiana corporation, as general
partner
By: /s/ PETER N. ANDERSON
-----------------------------------
Peter N. Anderson, Assistant
Vice President Acquisitions
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EXHIBIT A
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into this _ day of 199__, by and
among ________________________________________________ a(n) ("Seller"), and DUKE
REALTY LIMITED PARTNERSHIP, an Indiana limited partnership ("Buyer"), and
_____________________________("Escrow Agent").
WHEREAS, Seller and Buyer have entered into that certain Agreement for
Purchase and Sale of Property (the "Purchase Agreement") dated as of __________,
199_, for the sale and purchase of that certain real property described therein;
the Purchase Agreement is attached hereto as Exhibit A and by this reference
made a part hereof, and all terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement; and
WHEREAS, Buyer and Seller desire to have Escrow Agent hold the Earnest
Money in escrow, as required by the Purchase Agreement and pursuant to the terms
hereof.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Buyer and Seller appoint ________________ as Escrow Agent hereunder.
2. Simultaneous with the execution of this Escrow Agreement, Buyer will
deliver and deposit with Escrow Agent the amount of $ _________________,
representing the initial earnest money deposit required by Section 3 of the
Purchase Agreement (such deposit, together with the earnings thereon, the
"Earnest Money"). The Escrow Agent agrees to immediately deposit the Earnest
Money in an interest-bearing account in a national banking association and to
hold and disburse the same, together with any interest earned thereon, as
required by the Purchase Agreement, using Buyer's e.i.d. number.
3. Upon the Closing Date, Escrow Agent shall apply the Earnest Money,
together with any accrued interest thereon, to the Purchase Price as required by
the Purchase Agreement.
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4. Within fifteen (15) days after written notification from both Buyer
and Seller that the sale contemplated by the Purchase Agreement shall not take
place, Escrow Agent shall deliver the Earnest Money as required by the Purchase
Agreement.
5 . Buyer and Seller hereby covenant and agree that Escrow Agent shall
not be liable for any loss, cost or damage which it may incur as a result of
serving as Escrow Agent hereunder, except for any loss, cost or damage arising
out of Escrow Agent's gross negligence or willful misconduct. Accordingly,
Escrow Agent shall not incur any liability with respect to (a) any action taken
or Omitted to be taken in good faith upon advice of its counsel, given with
respect to any questions relating to its duties and responsibilities hereunder,
or (b) any action taken or Omitted to be taken in reliance upon any document,
including any written notice of instruction provided for herein or in the
Purchase Agreement, not only as to the due execution and the validity and
effectiveness thereof, but also as to the truth and accuracy of any information
contained therein, which Escrow Agent shall in good faith believe to be genuine
and to have been signed or presented by proper person or persons in conformity
with the provisions of this Agreement. Buyer and Seller hereby agree to
indemnify and hold harmless Escrow Agent against any and all losses, claims,
damages, liabilities and expenses, including, without limitation, reasonable
costs of investigation and reasonable attorneys' fees and disbursements actually
incurred, which may be imposed upon and incurred by Escrow Agent in connection
with its serving as Escrow Agent hereunder. In the event of a dispute between
Buyer and Seller, Escrow Agent shall be entitled to tender unto the registry or
custody of any court of competent jurisdiction in Summit County, Ohio all money
or property in Escrow Agent's hands held under the terms of this Agreement and
the Purchase Agreement, together with such legal pleadings as it deems
appropriate, and thereupon shall be discharged of its obligations hereunder and
under the Purchase Agreement.
6. Any notice required hereunder shall be delivered to the parties and
in the manner as required by the Purchase Agreement. Escrow Agent's address for
notice purposes is as follows:
----------------------------------------
Attn:
-----------------------------------
----------------------------------------
----------------------------------------
Telephone:
------------------------------
Facsimile:
------------------------------
7. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Ohio, without reference to the conflicts of
laws or choice of law provisions thereof.
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8. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
legal representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and sealed as of the date first written above.
----------------------------------------
By:
-------------------------------------
Signature
-------------------------------------
Printed Name and Title
"SELLER"
DUKE REALTY LIMITED
PARTNERSHIP, an Indiana limited
partnership
By: Duke Realty Investments, Inc.,
its general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
"BUYER"
ESCROW AGENT:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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EXHIBIT A TO ESCROW AGREEMENT
[THE PURCHASE AGREEMENT]
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EXHIBIT B
DESCRIPTION OF LAND
[To be attached upon receipt of survey]
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EXHIBIT C
[Intentionally Omitted]
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EXHIBIT D
PERMITTED TITLE EXCEPTIONS
1. Taxes and assessments becoming a lien in the calendar year in which the
Closing occurs but which are not, as of the date of Closing, due and payable.
2. Other title exceptions listed in Buyer's Title Commitment and acceptable to
Buyer.
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EXHIBIT E
LIST OF PERSONAL PROPERTY
[To be provided by Seller]
1
31
EXHIBIT F
[Intentionally Omitted]
1
32
EXHIBIT G
SERVICE CONTRACTS
None
1
33
EXHIBIT H
[Intentionally Omitted]
1
34
EXHIBIT I
DESCRIPTION OF LITIGATION AFFECTING SELLER OR THE PROPERTY
None
1
35
EXHIBIT J
GENERAL WARRANTY DEED
__________________________________, a(n) _______________________ ("Grantor"),
for valuable consideration paid, GRANTS WITH GENERAL WARRANTY COVENANTS unto
_______________________________________, a(n) _______________________
("Grantee"), whose tax mailing address is ______________________________, the
real property situated in the County of _________________________, City of
__________________, State of Ohio and being further described in the attached
Exhibit A, incorporated herein by reference, subject to real estate taxes not
delinquent, public rights-of-way, matters that would be disclosed by an accurate
survey or physical inspection of the real estate and all matters of record.
Prior instrument reference: Volume __________, Page __________ of the
Official Records of ___________ County, Ohio.
Parcel #________________
Address:________________
________________
The undersigned person executing this deed on behalf of Grantor
represents and certifies that he is a duly elected officer of Grantor and has
been fully empowered, by proper resolution of the Board of Directors of Grantor,
to execute and deliver this deed; that Grantor has full corporate capacity to
convey the real estate described herein; and that all necessary corporate action
for the making of such conveyance has been taken and done.
IN WITNESS WHEREOF, Grantor has caused this General Warranty Deed to be
executed this ___________ day of __________, 19__.
Signed and Acknowledged
in the Presence of:
_________________________________________
__________________________ By:______________________________________
__________________________
(Printed)
Printed:_________________________________
__________________________
__________________________
(Printed) Title:___________________________________
2
36
STATE )
)SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared ____________, by me known and by me known to be the ______________ of
______________ _____________, who acknowledged the execution of the foregoing
"General Warranty Deed" on behalf of said ______________.
WITNESS my hand and Notarial Seal this _______ day of ____, 199__.
-----------------------------------------
Notary Public
-----------------------------------------
(Printed Signature)
My Commission Expires:_________________
My County of Residence:________________
This instrument prepared by _______________________, Attorney-at-Law, Duke
Realty Investments, Inc., 8888 Keystone Crossing, Suite 1200, Indianapolis,
Indiana 46240.
3
37
EXHIBIT K
[Intentionally Omitted]
1
38
EXHIBIT L
CERTIFICATE AND AFFIDAVIT OF NON-FOREIGN STATUS
The undersigned, being duly sworn, hereby deposes, certifies and states
on oath as follows:
1. The undersigned is currently the __________________________, of
_____________________________________, a(n) _____________________________
organized and existing under the laws of the State of __________________ (the
"Corporation"), and that the address of the Corporation is
_______________________ Suite _________, __________________________.
2. The Corporation is not a "non-resident alien" for purposes of
United States income taxation or otherwise a "foreign person," as defined in
Section 1445 of the United States Internal Revenue Code of 1986 (as amended, the
"Code").
3. The Corporation's United States taxpayer identification number
or, if applicable, Social Security Number is ______________.
4. The undersigned is making this Certificate and Affidavit
pursuant to the provisions of the Code in connection with the sale of the real
property described on Exhibit A, attached hereto and incorporated herein by
reference, by the Corporation to Duke Realty Limited Partnership (the
"Transferee"), which sale constitutes the disposition by the
Corporation/Partnership of a United States real property interest, for the
purposes of establishing that the Transferee is not required to withhold tax
pursuant to Section 1445 of the Code in connection with such disposition.
5. The undersigned acknowledges that this Certificate and Affidavit
may be disclosed to the Internal Revenue Service by the Transferee, that this
Certificate and Affidavit is made under penalty of perjury, and that any false
statement made herein could be punished by fine, imprisonment or both.
6. Under penalty of perjury, I declare that I have examined the
foregoing Certificate and Affidavit and hereby certify that it is true, correct
and complete.
1
39
Certified, sworn to and subscribed before
me this _______ day of __________, 19__.
___________________________
Notary Public ...........................(SEAL)
My Commission Expires:
___________________________
(NOTARIAL SEAL)
2
40
EXHIBIT M
BILL OF SALE
THIS BILL OF SALE is executed and delivered as of the ____ day of
____________, 19___, by ________________________________, a(n)
_________________________ (hereinafter referred to as "Seller"), to DUKE REALTY
LIMITED PARTNERSHIP, an Indiana limited partnership (hereinafter referred to as
"Purchaser").
WITNESSETH:
WHEREAS, contemporaneously with the execution and delivery of this Bill
of Sale, Seller has sold and conveyed to Purchaser the improved real property
(the "Property") described on Exhibit A attached hereto and incorporated herein
by reference; and
WHEREAS, in connection with such conveyance of the Property, Seller has
agreed to sell to Purchaser and Purchaser has agreed to purchase from Seller all
right, title and interest of Seller in and to the personal property, if any,
owned by Seller and located on the Property (hereinafter referred to as the
"Personal Property") and identified on Exhibit B attached hereto and
incorporated herein by reference;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) in hand paid at or before the execution, sealing and delivery
hereof, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Seller, Seller hereby agrees as follows:
1. Sale and Conveyance. Seller hereby sells, transfers and conveys
unto Purchaser, its successors and assigns, all right, title and interest of
Seller in and to the Personal Property.
2. Governing Law. This Bill of Sale shall be governed by and
construed in accordance with the internal laws of the State of
_________________________, without reference to the conflicts of laws or choice
of law provisions thereof.
3. Binding Effect. This Bill of Sale shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators legal representatives, successors and assigns.
1
41
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed
and sealed by its duly authorized signatory as of the day and year first above
written.
_________________________________________
By:______________________________________
Signature
_________________________________________
Printed Name and Title
2
42
EXHIBIT A TO BILL OF SALE
[LEGAL DESCRIPTION OF PROPERTY]
1
43
EXHIBIT B TO BILL OF SALE
[PERSONAL PROPERTY SOLD TO BUYER]
1
44
EXHIBIT N
ASSIGNMENT AND ASSUMPTION OF
SURVIVING SERVICE CONTRACTS AND WARRANTIES
THIS ASSIGNMENT is made and entered into as of this _____ day of
___________, 19___, by and between ______________________, a(n)
__________________ (hereinafter referred to as "Assignor"), and DUKE REALTY
LIMITED PARTNERSHIP, an Indiana limited partnership (hereinafter referred to as
"Assignee").
WIINESSETH:
WHEREAS, contemporaneously with the execution and delivery hereof,
Assignor has sold and conveyed to Assignee all that tract or parcel of land more
particularly described in Exhibit A attached hereto and incorporated herein by
reference, together with all improvements thereon and all rights, easements and
appurtenances thereto (hereinafter collectively referred to as the "Property");
and
WHEREAS, in connection with such conveyance of the Property, Assignor
and Assignee have agreed that Assignor shall transfer and assign to Assignee all
right, title and interest of Assignor in and to all service, management,
equipment, labor, material, maintenance, repair, lease commission and other
contracts relating to the maintenance, repair or operation of the Property which
have not been terminated by Assignor as of the date hereof and continue in force
and effect which are set forth in Exhibit B attached hereto and incorporated
herein (hereinafter collectively referred to as the "Surviving Service
Contracts"); and
WHEREAS, Assignor and Assignee have further agreed that Assignee shall
expressly assume all of the obligations of Assignor arising under the Surviving
Service Contracts from and after the date of this Assignment;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, Assignor and
Assignee hereby agree as follows:
1. Transfer and Assignment. Assignor hereby sells, transfers and
assigns to Assignee, its successors and assigns, all right, title and interest
of Assignor in, to and under the Surviving Service Contracts, together with all
warranties and guaranties (collectively,
1
45
the "Warranties") in favor of Assignor on equipment and improvements on the
Property (to the extent said Warranties are assignable by Assignor), including
those set forth in Exhibit C attached hereto and incorporated herein. If any of
the Warranties are not assignable by Assignor, Assignor agrees to fully
cooperate with Assignee, but without cost or expense to Assignor, to enforce
such Warranties for the benefit of Assignee.
2. Assumption of Obligations. Assignee hereby assumes and agrees to
observe and perform all of the obligations and duties of Assignor under each of
the Surviving Service Contracts and the Warranties arising from and after, but
not before, the date of this Assignment.
3. Indemnity. Assignor hereby indemnifies and holds Assignee
harmless from and against all claims, demands, losses, damages, expenses and
costs including, but not limited to, reasonable attorneys' fees and expenses
actually incurred, arising out of or in connection with Assignor's failure,
prior to the date hereof, to observe, perform and discharge each and every one
of the covenants, obligations and liabilities of the Assignor under the
Surviving Service Contracts and the Warranties to be observed, performed or
discharged with respect to the period prior to the date of this Assignment.
Assignee hereby indemnifies and holds Assignor harmless from and against all
claims, demands, losses, damages, expenses and costs including, but not limited
to, reasonable attorneys' fees and expenses actually incurred, arising out of or
in connection with Assignee's failure, from and after the delivery of this
Assignment, to observe, perform and discharge all covenants, obligations and
liabilities with respect to the period on and after, but not before, the date of
this Assignment.
4. Governing Law. This Assignment shall be governed by and
construed in accordance with the internal laws of the State of ______________,
without reference to the conflicts of laws or choice of law provisions thereof.
5. Binding Effect. This Assignment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
6. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute but one and the same instrument.
2
46
IN WITNESS WHEREOF, Assignor and Assignee have each caused this
Assignment to be executed and sealed by its duly authorized signatory as of the
day and year first above written.
ASSIGNOR:
--------------------------------------------
By:
----------------------------------------
Signature
----------------------------------------
Printed Name and Title
ASSIGNEE:
DUKE REALTY LIMITED
PARTNERSHIP, an Indiana limited
partnership
By: Duke Realty Investments, Inc.,
an Indiana corporation, as general
partner
By:
----------------------------------
Signature
----------------------------------
Printed Name and Title
3
47
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF SURVIVING SERVICE
CONTRACTS AND WARRATIES
[LEGAL DESCRIPTION OF PROPERTY]
EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF SURVIVING SERVICE
CONTRACTS AND WARRANTIES
[LIST OF SURVIVING SERVICE CONTRACTS, INCLUDING LEASE
COMMISSION AGREEMENTS]
EXHIBIT C TO ASSIGNMENT AND ASSUMPTION OF SURVIVING SERVICE
CONTRACTS AND WARRANTIES
[LIST OF WARRANTIES AND GUARANTIES]
4
48
EXHIBIT 0
[Intentionally Omitted]
1
49
EXHIBIT P
[Intentionally Omitted]
1
50
EXHIBIT Q
LEASE AGREEMENT
THIS LEASE is executed this day ___ of ________________, 1998, by and
between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and Universal Electronics, a(n) _________________ ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Building Address: 1864 Enterprise Parkway, Twinsburg, Ohio, (the
"Building"); located in Business Center (the "Park");
B. Rentable Area: approximately 6832 rentable square feet;
Landlord shall use commercially reasonable standards, consistently
applied, in determining the Rentable Area and the rentable area of the
Building. The Rentable Area shall include the area within the Leased
Premises plus a pro rata portion of the area covered by the common areas
within the Building, as reasonably determined by Landlord from time to
time. Landlord's determination of Rentable Area made in good faith shall
conclusively be deemed correct for all purposes hereunder, including
without limitation the calculation of Tenant's Building Expense Percentage
and Tenant's Minimum Annual Rent.
C. Tenant's Proportionate Share: 10.60%;
D. Minimum Annual Rent: $32,452.00
E. Monthly Rental Installments: $2,704.33
F. Term: Four (4) years and N/A ( ) months;
G. Commencement Date: April 1, 1998 or upon closing and title transfer.
H. Security Deposit: $ to be mutually agreed upon between tenant and
landlord.
I. Guarantor(s): Universal Electronics;
J. Brokers: Duke Realty Limited Partnership representing Landlord and N/A
representing Tenant,
Duke Realty Limited Partnership will [not] share the broker's compensation
with other brokers who may represent Tenant
K. Permitted Use: Customer service and telemarketing center.
L. Address for notices:
Landlord: Duke Realty Limited Partnership
6000 Freedom Square Drive, Suite 500
Independence, OH 44131
51
Tenant:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Address for rental and other payments;
Duke Realty Limited Partnership
P.O. Box 931845
Cleveland, OH 44193-1186
Section 1.02. Leased Premises. Landlord hereby leases to Tenant and Tenant
leases from Landlord, subject to all of the terms and conditions set forth
herein, that portion of the Building described in the Basic Lease Provisions and
outlined on Exhibit A attached hereto (the "Leased Premises"). Landlord also
grants to Tenant, together with and subject to the rights granted from time to
time by Landlord to other tenants and occupants of Landlord's premises, the
right to use the common parking area adjoining the Building.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease ("Lease Term") shall be the
period of time specified in the Basic Lease Provisions and shall commence on the
Commencement Date described in the Basic Lease Provisions. Upon delivery of
possession of the Leased Premises to Tenant, Tenant shall execute a letter of
understanding acknowledging (i) the Commencement Date of this Lease, and (ii)
that Tenant has accepted the Leased Premises for occupancy and that the
condition of the Leased Premises (including any tenant finish improvements
constructed thereon) and the Building was at the time satisfactory and in
conformity with the provisions of this Lease in all respects. Such letter of
understanding shall become a part of this Lease. If Tenant takes possession of
and occupies the Leased Premises, Tenant shall be deemed to have accepted the
Leased Premises as described above, even though Tenant may not have executed the
letter of understanding.
Section 2.02. Construction of Tenant Improvements. Tenant has personally
inspected the Leased Premises and accepts the same "as is" without
representation or warranty by Landlord of any kind and with the understanding
that Landlord shall have no responsibility with respect thereto except to
construct in a good and workmanlike manner the improvements designated as
Landlord's obligations in the attached Exhibit B, so that the Leased Premises
will be available for Tenant's occupancy by the Commencement Date, unless
prevented by causes beyond Landlord's reasonable control. Such improvements
shall be in accordance with and at the expense of the party indicated on Exhibit
B.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to
re-enter the Leased Premises without terminating this Lease, Tenant shall
immediately surrender the Leased Premises to Landlord, in broomclean condition
and in good order, condition and repair, except for ordinary wear and tear and
damage which Tenant is not obligated to repair. Tenant shall also remove its
personal property, trade fixtures and any of Tenant's alterations
-2-
52
designated by Landlord; promptly repair any damage caused by such removal; and
restore the Leased Premises to the condition existing prior to the installation
of the items so removed. If Tenant fails to do so, Landlord may restore the
Leased Premises to such condition at Tenant's expense, and Landlord may cause
all of said property to be removed at Tenant's expense, and Tenant hereby agrees
to pay all the costs and expenses thereby reasonably incurred. All property of
Tenant which is not removed within ten (10) days following Landlord's written
demand therefor shall be conclusively deemed to have been abandoned by Tenant,
and Landlord shall be entitled to dispose of such property without thereby
incurring any liability to Tenant. The provisions of this section shall survive
the expiration or other termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at 150% of the Monthly Rental Installment in
effect at the end of the Lease Term (plus Additional Rent as provided in Article
3 hereof), and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease,
and Tenant shall vacate and surrender the Leased Premises to Landlord upon
Tenant being given thirty (30) days prior written notice from Landlord to
vacate.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord as Minimum Annual
Rent for the Leased Premises the sum specified in the Basic Lease Provisions,
payable in equal consecutive Monthly Rental Installments, in advance, without
deduction or offset, beginning on the Commencement Date and on or before the
first day of each and every calendar month thereafter during the Lease Term. The
Monthly Rental Installment for partial calendar months shall be prorated based
on the number of days during the month this Lease was in effect in relation to
the total number of days in such month.
Section 3.02. Annual Rental Adjustment.
A. Definitions. For purposes of this Section 3.02, the following definitions
shall apply:
1. "Annual Rental Adjustment" - shall mean the amount of Tenant's
Proportionate Share of Operating Expenses, Tenant's Proportionate
Share of Real Estate Taxes and Insurance, and Tenant's Proportionate
Share of Groundskeeping Expenses for a particular calendar year.
2. "Operating Expenses" - shall mean the amount of all of Landlord's
direct costs and expenses paid or incurred in operating and
maintaining the Building (including the common areas and the land)
for a particular calendar year as determined by Landlord in
accordance with generally accepted accounting principles,
consistently applied, including all additional direct costs and
expenses of operation and maintenance of the Building which Landlord
reasonably determines that it would have paid or incurred during
such year if the Building had
-3-
53
been fully occupied including by way of illustration and not
limitation: water, sewer, electrical and other utility charges other
than the separately billed electrical and other charges paid by
Tenant as provided in this Lease; tools and supplies; repair costs;
security services; license, permit and inspection fees; commercially
reasonable management fees and administrative expenses; wages and
related employee benefits payable for the maintenance and operation
of the Building; amortization of capital improvements that produce a
reduction in operating costs together with interest at the rate of
twelve percent (12%) per annum on the unamortized balance thereof;
maintenance and repair costs, and in general all other costs and
expenses which would, under generally accepted accounting
principles, be regarded as operating and maintenance costs and
expenses, including those which would normally be amortized over a
period not to exceed five (5) years. There shall also be included in
Operating Expenses the cost or portion thereof reasonably allocable
to the Building, amortized over such period as Landlord shall
reasonably determine, together with interest at the rate of twelve
percent (12%) per annum on the unamortized balance, of any capital
improvements made to the Building by Landlord after the date of this
Lease which are required under any governmental law or regulation
that was not applicable to the Building at the time it was
constructed. Notwithstanding the foregoing, Operating Expenses as
defined herein shall exclude Groundskeeping Expenses (as hereinafter
defined).
3. "Real Estate Taxes and Insurance" - shall mean any form of real
estate tax or assessment, general, special, ordinary or
extraordinary, and any license or permit fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than federal or state
inheritance, personal income or estate taxes) imposed upon the
Building and/or the land by any authority having the direct or
indirect power to tax, including any city, state or federal
government or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, including costs and
expenses of contesting the validity or amount of any such taxes; and
all insurance premiums.
4. "Groundskeeping Expenses" - shall mean all costs and expenses
associated with landscaping, snow removal, parking lot maintenance
and exterior lighting incurred in the operation and maintenance of
the Building and common areas.
5. "Building Expense Percentage" - shall mean the percentage specified
in Item C of the Basic Lease Provisions. This Percentage was
determined by dividing the rentable area in the Leased Premises by
the total rentable area in the Building.
6. "Tenant's Proportionate Share of Operating Expenses" shall be an
amount equal to Tenant's Building Expense Percentage multiplied by
the remainder of (i) Operating Expenses for a particular calendar
year less (ii) the
-4-
54
actual operating Expenses for calendar year 1997, provided that such
amount shall not be less than zero.
7. "Tenant's Proportionate Share of Real Estate Taxes and Insurance" -
shall be an amount equal to Tenant's Building Expense Percentage
multiplied by the remainder of (i) Real Estate Taxes and Insurance
for a particular calendar year less (ii) the actual Real Estate
Taxes and Insurance for calendar year 1997, provided that such
amount shall not be less than zero.
8. "Tenant's Proportionate Share of Groundskeeping Expenses - shall be
an amount equal to Tenant's Building Expense Percentage times the
Groundskeeping Expenses for a particular calendar year.
B. Payment Obligation. In addition to the Minimum Annual Rent specified in
this Lease, Tenant shall pay to Landlord as additional rent for the Leased
Premises, the Annual Rental Adjustment for each such calendar year or
portion thereof.
1. Payment of Estimated Annual Rental Adjustment - The Annual Rental
Adjustment shall be estimated annually by Landlord, and written
notice thereof shall be given to Tenant at least thirty (30) days
prior to the beginning of each calendar year. In the event the Lease
Term shall commence in a calendar year, Tenant shall be furnished
with said notice on the Commencement Date. Tenant shall pay to
Landlord each month, at the same time the Monthly Rental installment
is due, an amount equal to one-twelfth (1/12) of the estimated
Annual Rental Adjustment.
2. Increases in Estimated Annual Rental Adjustment - If any expenses
comprising the Annual Rental Adjustment increase during a calendar
year, Landlord may increase the estimated Annual Rental Adjustment
during such year by giving Tenant written notice to that effect, and
thereafter Tenant shall pay to Landlord, in each of the remaining
months of such year, an amount equal to the amount of such increase
in the estimated Annual Rental Adjustment divided by the number of
months remaining in such year.
3. Adjustment to Actual Annual Rental Adjustment - Within a reasonable
time after the end of each calendar year, Landlord shall prepare and
deliver to Tenant a statement showing the actual Annual Rental
Adjustment. Within thirty (30) days after receipt of the
aforementioned statement, Tenant shall pay to Landlord, or Landlord
shall credit against the next rent payment or payments due from
Tenant, as the case may be, the difference between the actual Annual
Rental Adjustment for the preceding calendar year and the estimated
amount paid by Tenant during such year. For any fractional portion
of a calendar year at the commencement or termination of this Lease,
any such deficiency or overage shall be settled and adjusted between
the parties after the end of that calendar year in the same manner
as above, but prorated based on the number of days of the Lease Term
within such calendar year.
-5-
55
4. Tenant verification - Tenant or its accountants shall have the right
to inspect, at reasonable times and in a reasonable manner, during
the ninety (90) day period following the delivery of Landlord's
statement of the actual amount of the Annual Rental Adjustment, such
of Landlord's books of account and records as pertain to and contain
information concerning such costs and expenses in order to verify
the amounts thereof.
Section 3.03. Late Charges. Tenant acknowledges that Landlord shall incur
certain additional unanticipated costs and expenses, including administrative
costs and attorneys' fees, if Tenant fails to timely pay any payment required
hereunder. Therefore, as compensation for such additional expenses, and in
addition to the other remedies available to Landlord hereunder, if any payment
of Minimum Rent or any other sum or charge required to be paid by Tenant to
Landlord hereunder shall become overdue for a period of five (5) days, a late
charge of seven percent (7%) of the payment so due shall be paid by Tenant as
additional rent. In addition, if Tenant fails to pay within fifteen (15) days
after the same is due and payable any sum or charge required to be paid by
Tenant to Landlord, such unpaid amount shall bear interest from the due date
thereof to the date of payment at the rate of fifteen percent (15%) per annum.
ARTICLE 4 - SECURITY DEPOSIT
Tenant, upon execution of this Lease, shall deposit with Landlord the
Security Deposit as specified in the Basic Lease Provisions as security for the
full and faithful performance by Tenant of all of the terms, conditions and
covenants contained in this Lease on the part of Tenant to be performed,
including but not limited to the payment of the rent. In the event of a default
by Tenant of any term, condition or covenant herein contained, Landlord may
apply all or any part of such security deposit to curing all or any part of such
default; and Tenant agrees to promptly, upon demand, deposit such additional sum
with Landlord as may be required to maintain the full amount of the security
deposit. All sums held by Landlord pursuant to this section shall be without
interest. At the end of the Lease Term, provided that there is then no uncured
default, Landlord shall return the security deposit to Tenant.
ARTICLE 5 - USE
Section 5.01. Use of Leased Premises. The Leased Premises are to be used
by Tenant solely as provided in the Basic Lease Provisions, and for no other
purposes without the prior written consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use. In connection with its
use of the Leased Premises, Tenant agrees to do the following:
(a) Tenant shall (i) use and maintain the Leased Premises and conduct its
business thereon in a safe, careful, reputable and lawful manner, (ii) comply
with all laws, rules, regulations, orders, ordinances, directions and
requirements of any governmental authority or agency, now in force or which may
hereafter be in force, including without limitation those which shall impose
upon Landlord or Tenant any duty with respect to or triggered by a change in the
use or occupation of, or any
-6-
56
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions of the Landlord, including any Rules and
Regulations that may be adopted by Landlord from time to time.
(b) Tenant shall not (i) use the Leased Premises for any unlawful purpose
or act, (ii) commit or permit any waste or damage to the Leased Premises, (iii)
store any inventory, equipment or any other materials outside the Leased
Premises, or (iv) do or permit anything to be done in or about the Leased
Premises or appurtenant common areas which constitutes a nuisance or which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Building or injure or annoy them. Landlord shall not be responsible to
Tenant for the nonperformance by any other tenant or occupant of the Building of
its lease or of any Rules and Regulations.
(c) Tenant shall not overload the floors of the Leased Premises as to
cause damage to the floor. All damage to the floor structure or foundation of
the Building due to improper positioning or storage of items or materials shall
be repaired by Landlord at the sole expense of Tenant, who shall reimburse
Landlord immediately therefor upon demand.
(d) Tenant shall not use the Leased Premises, or allow the Leased Premises
to be used, for any purpose or in any manner which would, in Landlord's opinion,
invalidate any policy of insurance now or hereafter carried on the Building or
increase the rate of premiums payable on any such insurance policy. Should
Tenant fail to comply with this covenant, Landlord may, at its option, require
Tenant to stop engaging in such activity or to reimburse Landlord as Additional
Rent for any increase in premiums charged during the term of this Lease on the
insurance carried by Landlord on the Leased Premises and attributable to the use
being made of the Leased Premises by Tenant.
(e) Tenant may, at its own expense, erect a sign concerning its business
which shall be in keeping with the decor and other signs on the Building,
provided that such sign is first approved by Landlord in writing. Landlord's
approval, if given, may be conditioned upon such criteria as Landlord deems
appropriate to maintain the area in a neat and attractive manner. Tenant agrees
to maintain any sign in good state of repair, and upon expiration of the Lease
Term, Tenant shall promptly remove the sign and repair any resulting damage to
the Leased Premises or Building.
Section 5.03. Landlord's Rights Regarding Use. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the appurtenant common areas by
Tenant, its employees, agents, customers and invitees, each of which may be
exercised without notice or liability to Tenant:
(a) Landlord may install such signs, advertisements, notices or tenant
identification information as it shall deem necessary or proper.
(b) Landlord shall have the right at any time to change or otherwise alter
the appurtenant common areas. Landlord may control the appurtenant common areas
in such manner as it deems necessary or proper.
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(c) Landlord or Landlord's agent shall be permitted to inspect or examine
the Leased Premises at any reasonable time, and Landlord shall have the right to
make any repairs to the Leased Premises which are necessary for its
preservation; provided, however, that any repairs made by Landlord shall be at
Tenant's expense, except as provided in Section 7.02 hereof. If Tenant is not
present to open and permit such entry into the Leased Premises at any time when
such entry is necessary or permitted hereunder, Landlord and its employees and
agents may enter the Leased Premises by means of a master or pass key or
otherwise. Landlord shall incur no liability to Tenant for such entry, nor shall
such entry constitute an eviction of Tenant or a termination of this Lease, or
entitle Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and shall pay directly to the
appropriate supplier the cost of all utilities and services serving the Leased
Premises, including but not limited to: natural gas, heat, light, electrical
power, telephone, janitorial service, refuse disposal and other utilities and
services. However, if any services or utilities are jointly metered with other
property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement. Landlord shall not be liable in damages or otherwise for any
failure or interruption of any utility service or other service furnished to the
Leased Premises; and no such failure or interruption shall entitle Tenant to
terminate this Lease or withhold sums due hereunder.
ARTICLE 7 - MAINTENANCE AND REPAIRS
Section 7.01. Tenant's Responsibility. During the term of this Lease,
Tenant shall, at its own cost and expense, maintain in good condition and repair
the interior of the Leased Premises, including but not limited to the electrical
systems, heating and air conditioning systems, plate glass, floors, windows and
doors, sprinkler and plumbing systems. Tenant, at its expense, shall obtain a
preventative maintenance contract on the heating, ventilating and
air-conditioning systems which shall be subject to Landlord's reasonable
approval. Tenant shall provide Landlord with a copy of the preventative
maintenance contract no later than ninety (90) days after the Commencement Date.
The preventative maintenance contract shall provide for the inspection and
maintenance of the heating, ventilating and air conditioning system on not less
than a semi-annual basis.
Section 7.02. Landlord's Responsibility. During the term of this Lease,
Landlord shall maintain in good condition and repair the roof, exterior walls,
foundation and structural frame of the Building and the parking and landscaped
areas, the costs of which shall be included in Operating Expenses; provided,
however, that to the extent any of the foregoing items require repair because of
the negligence, misuse, or default of Tenant, its employees, agents, customers
or invitees, Landlord shall make such repairs at Tenant's expense.
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Section 7.03. Alterations. Tenant shall not permit structural or
non-structural alterations or additions in or to the Leased Premises unless and
until the plans have been approved by Landlord in writing. As a condition of
such approval, Landlord may require Tenant to remove the alterations and restore
the Leased Premises upon termination of this Lease; otherwise, all such
alterations or improvements, except movable office furniture and equipment and
trade fixtures, shall at Landlord's option become a part of the realty and the
property of Landlord, and shall not be removed by Tenant. If Landlord consents
to Tenant's performance of alterations or additions to the Leased Premises,
Tenant shall ensure that all alterations and improvements which are made or
necessitated thereby shall be made in accordance with all applicable laws,
regulations and building codes, in a good and workmanlike manner and in quality
equal to or better than the original construction of the Building. Landlord's
approval of the plans, specifications and working drawings for Tenant's
alterations shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with all laws, rules
and regulations of governmental agencies or authorities. Tenant shall indemnify
and save harmless Landlord from all costs, loss or expense in connection with
any construction or installation. No person shall be entitled to any lien
directly or indirectly derived through or under Tenant or through or by virtue
of any act or omission of Tenant upon the Leased Premises for any improvements
or fixtures made thereon or installed therein or for or on account of any labor
or material furnished to the Leased Premises or for or on account of any matter
or thing whatsoever; and nothing in this Lease contained shall be construed to
constitute a consent by Landlord to the creation of any lien. If any lien is
filed against the Leased Premises for work claimed to have been done for, or
material claimed to have been furnished to, Tenant, Tenant shall cause such lien
to be discharged of record within thirty (30) days after filing by bonding or in
any other lawful manner. Tenant shall indemnify and save harmless Landlord from
all costs, losses, expenses, and attorneys' fees in connection with any such
lien.
ARTICLE 8 - CASUALTY
Section 8.01. Casualty. In the event of total or partial destruction of
the Building or the Leased Premises by fire or other casualty, Landlord agrees
to promptly restore and repair the Leased Premises; provided, however, that
Landlord's obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be made by
Landlord, if any. Any insurance proceeds not used by Landlord in restoring or
repairing the Leased Premises shall be the sole property of Landlord. Rent shall
proportionately abate during the time that the Leased Premises or part thereof
are unusable because of any such damage thereto. Notwithstanding the foregoing,
if the Leased Premises are (i) so destroyed that they cannot be repaired or
rebuilt within one hundred eighty (180) days from the date on which the
insurance claim is adjusted; or (ii) destroyed by a casualty which is not
covered by the insurance required hereunder or, if covered, such insurance
proceeds are not released by any mortgagee entitled thereto or are insufficient
to rebuild the Building and the Leased Premises; then, in case of a clause (i)
casualty, either Landlord or Tenant may, or, in the case of a clause (ii)
casualty, then Landlord may, upon thirty (30) days written
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notice to the other party, terminate and cancel this Lease; and all further
obligations hereunder shall thereupon cease and terminate.
Section 8.02. Fire and Extended Coverage Insurance. During the term of
this Lease, Landlord shall maintain fire and extended coverage insurance on the
Building, but shall not protect Tenant's property on the Leased Premises; and,
notwithstanding the provisions of Section 9.01, Landlord shall not be liable for
any damage to Tenant's property, regardless of cause, including the negligence
of Landlord and its employees, agents, and invitees. Tenant hereby expressly
waives any right of recovery against Landlord (or any other tenant of the
Building) for damage to any property of Tenant located in or about the Leased
Premises, however caused, including the negligence of Landlord and its
employees, agents, and invitees; and, notwithstanding the provisions of Section
9.01 below, Landlord hereby expressly waives any rights of recovery against
Tenant for damage to the Leased Premises or the Building which is insured
against under Landlord's fire and extended coverage insurance. All insurance
policies maintained by Landlord or Tenant as provided in this section shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease and agreeing not to acquire any rights of
recovery which the insured has expressly waived prior to loss.
ARTICLE 9 - LIABILITY INSURANCE
Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the
appurtenant common areas, or (ii) the occurrence of any accident in or about the
Leased Premises or the appurtenant common areas, or (iii) any act or neglect of
Tenant or any other tenant or occupant of the Building or of any other person,
unless such damage, injury or death is directly and solely the result of
Landlord's negligence; and Tenant hereby releases Landlord from any and all
liability for the same. Tenant shall be liable for, and shall indemnify and
defend Landlord and hold it harmless from, any and all liability for (i) any act
or neglect of Tenant and any person coming on the Leased Premises or appurtenant
common areas by the license of Tenant, express or implied, (ii) any damage to
the Leased Premises, and (iii) any loss of or damage or injury to any person
(including death resulting therefrom) or property occurring in, on or about the
Leased Premises, regardless of cause, except for any loss or damage from fire or
casualty insured as provided in Section 8.02 and except for that caused solely
and directly by Landlord's negligence. Notwithstanding the foregoing, Tenant
shall bear the risk of any loss or damage to its property as provided in Section
8.02.
Section 9.02. Tenant's Insurance. Tenant, in order to insure against the
liabilities specified in this Lease, shall at all times during the term of this
Lease carry, at its own expense, one or more policies of general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
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B. Comprehensive General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than $1,000,000
Combined Single Limit for both bodily injury and property damage.
C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and
Sprinkler Leakage insurance, if applicable, for the full cost of
replacement of Tenant's property.
D. Business interruption insurance.
The insurance policy or policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee as additional insureds, and shall provide that they may not be
cancelled on less than thirty (30) days prior written notice to Landlord. Tenant
shall furnish Landlord with Certificates of Insurance evidencing all required
coverage. Should Tenant fail to carry such insurance and furnish Landlord with
such Certificates of Insurance after a request to do so, Landlord shall have the
right to obtain such insurance and collect the cost thereof from Tenant as
additional rent.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or appurtenant common areas
shall be acquired by the exercise of eminent domain, Landlord may terminate this
Lease by giving written notice to Tenant within fifteen (15) days after
possession thereof is so taken. If all or any part of the Leased Premises shall
be acquired by the exercise of eminent domain in such a manner that the Leased
Premises shall become unusable by Tenant for the purpose for which it is then
being used, Tenant may terminate this Lease by giving written notice to Landlord
within fifteen (15) days after possession of the Leased Premises or part thereof
is so taken. Tenant shall have no claim against Landlord on account of any such
acquisition for the value of any unexpired lease term remaining after possession
of the Leased Premises is taken. All damages awarded shall belong to and be the
sole property of Landlord; provided, however, that Tenant shall be entitled to
any award expressly made to Tenant by any governmental authority for the cost of
or the removal of Tenant's stock, equipment and fixtures and other moving
expenses.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in whole
or in part without Landlord's prior written consent. If Landlord consents to
such assignment or subletting, Tenant shall remain primarily liable to perform
all of the covenants and conditions contained in this Lease, including but not
limited to payment of Minimum Rent and Additional Rent as provided herein. The
acceptance of rent from any other person shall not be deemed to be a waiver of
any of the provisions of this Lease or to be a consent to the assignment of this
Lease or the subletting of the Leased Premises. If Tenant shall make any
assignment or sublease, with Landlord's consent, for a rental in excess of the
rent payable under this Lease, Tenant shall not be
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entitled to keep such excess, and Tenant shall pay to Landlord one hundred
percent (100%) of any such excess rental upon receipt.
Without in any way limiting Landlord's right to refuse to consent to any
assignment or subletting of this Lease, Landlord reserves the right to refuse to
give such consent if in Landlord's discretion and opinion (i) the use of the
Leased Premises is or may be in any way adversely affected; (ii) the business
reputation of the proposed assignee or subtenant is deemed unacceptable; or
(iii) the financial worth of the proposed assignee or subtenant is insufficient
to meet the obligations hereunder or is less than that of Tenant. Landlord
further expressly reserves the right to refuse to give its consent to any
subletting if the proposed rent is to be less than the then current rent for
similar premises in the Park. Tenant agrees to reimburse Landlord for reasonable
accounting and attorneys' fees incurred in conjunction with the processing and
documentation of any such requested transfer, assignment, subletting or any
other hypothecation of this Lease or Tenant's interest in and to the Leased
Premises.
ARTICLE 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale and Conveyance of the Building. Landlord shall have
the right to sell and convey the Building at any time during the term of this
Lease, subject only to the rights of Tenant hereunder; and such sale and
conveyance shall operate to release Landlord from liability hereunder after the
date of such conveyance.
Section 12.02. Subordination and Estoppel Certificate. Landlord shall have
the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage; and the
recording of any such mortgage shall make it prior and superior to this Lease
regardless of the date of execution or recording of either document. Within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost:
(a) any instrument which Landlord may deem necessary or desirable to
confirm the subordination of this Lease. If Tenant fails or refuses to do so,
Landlord may execute such instrument in the name and as the act of Tenant.
(b) an estoppel certificate in such form as Landlord may reasonably
request certifying (i) that this Lease is in full force and effect and
unmodified (or, if modified, stating the nature of such modification), (ii) the
date to which rent has been paid, (iii) that there are not, to Tenant's
knowledge, any uncured defaults (or specifying such defaults if any are
claimed), and (iv) any other matters or state of facts reasonably required
respecting the Lease or Tenant's occupancy of the Leased Premises. Such estoppel
may be relied upon by Landlord and by any purchaser or mortgagee of all or any
part of the Building. Tenant's failure to deliver such statement within such
period shall be conclusive upon Tenant that this Lease is in full force and
effect and unmodified and that there are no uncured defaults in Landlord's
performance hereunder.
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(c) Notwithstanding the foregoing, if the mortgagee shall take title to
the Leased Premises through foreclosure or deed in lieu of foreclosure, Tenant
shall be allowed to continue in possession of the Leased Premises as provided
for in this Lease so long as Tenant shall not be in default. Tenant shall, in
the event any proceedings are brought to foreclose any such mortgage, attorn to
the purchaser through foreclosure or deed in be allowed to continue in as
provided for in this Lease default. Tenant shall, in the to foreclose any such
upon any such foreclosure and recognize such purchaser as the landlord under
this Lease.
Section 12.03. Lender's Rights. Landlord shall have the right, at any time
and from time to time, to notify Tenant in writing that Landlord has placed a
mortgage on the Building, specifying the identity of the Lender ("Lender").
Following receipt of such notice, Tenant agrees to give such Lender a copy of
any notice of default served by Tenant on Landlord. Tenant further agrees that
if Landlord fails to cure any default as provided in Section 13.03 herein,
Lender shall have an additional thirty (30) days within which to cure such
default; provided, however, that if the term, condition, covenant or obligation
to be performed by Landlord is of such nature that the same cannot reasonably
be performed within such thirty-day period, such default shall be deemed to have
been cured if Lender commences such performance within said thirty-day period
and thereafter diligently completes the same.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be
deemed an "Event of Default":
(a) Tenant shall fail to pay any Monthly Rental Installment or Additional
Rent within five (5) days after the same shall be due and payable, or Tenant
shall fail to pay any other amounts due Landlord from Tenant within ten (10)
days after the same shall be due and payable.
(b) Tenant shall fail to perform or observe any term, condition, covenant
or obligation as required under this Lease for a period of ten (10) days after
notice thereof from Landlord; provided, however, that if the nature of Tenant's
default is such that more than ten days are reasonably required to cure, then
such default shall be deemed to have been cured if Tenant commences such
performance within said ten-day period and thereafter diligently completes the
required action within a reasonable time.
(c) Tenant shall vacate or abandon the Leased Premises for any period, or
fail to occupy the Leased Premises or any substantial portion thereof for a
period of thirty (30) days.
(d) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency, or for reorganization or arrangement is
filed by or against Tenant (and Tenant fails to secure a stay or discharge
thereof within sixty (60) days thereafter); Tenant shall be insolvent and unable
to pay its debts as they become due; Tenant makes a general assignment for the
benefit of creditors; Tenant takes the benefit of any insolvency action or law;
the appointment of a receiver or trustee in bankruptcy for Tenant or its assets
if such receivership has not been vacated
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or set aside within thirty (30) days thereafter; dissolution or other
termination of Tenant's corporate charter if Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Event of Default,
Landlord shall have the following rights and remedies, in addition to those
allowed by law, any one or more of which may be exercised without further notice
to or demand upon Tenant:
(a) Landlord may apply the security deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action, regardless of whether caused by
Landlord's negligence or otherwise.
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such default, and thereafter (i) neither Tenant nor any person claiming under or
through Tenant shall be entitled to possession of the Leased Premises, and
Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (as determined
by Landlord) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, whereupon Tenant
shall be obligated to pay the same to Landlord, together with all loss or damage
which Landlord may sustain by reason of Tenant's default ("Default Damages"),
which shall include without limitation expenses of preparing the Leased Premises
for re-letting, demolition, repairs, tenant finish improvements, and brokers'
and attorneys' fees, it being expressly understood and agreed that the
liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
difference between the rent provided for herein and that provided for in any
lease covering a subsequent re-letting of the Leased Premises, for the period
which would otherwise have constituted the balance of the Lease Term, together
with all of Landlord's Default Damages.
(d) Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the breach.
(e) In addition to the defaults and remedies described above, the parties
hereto agree that if Tenant defaults in the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such defaults are
ultimately cured, then such conduct shall, at Landlord's
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option, represent a separate Event of Default. Tenant acknowledges that (i)
Landlord will incur additional unanticipated costs as a result of such
repetitive defaults, including but not limited to administrative costs and legal
fees, and (ii) the purpose of this provision is to adequately compensate
Landlord for those costs, which would be difficult to determine with certainty.
Therefore, Tenant agrees to pay to Landlord upon a default under this habitual
default provision the amount of One Thousand Dollars ($1,000.00) as liquidated
damages to cure such default, payable within ten (10) days after written demand
therefor to Tenant by Landlord.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall be
in default if it shall fail to perform or observe any term, condition, covenant
or obligation as required under this Lease for a period of thirty (30) days
after written notice thereof from Tenant to Landlord and to Lender, if any;
provided, however, that if the term, condition, covenant or obligation to be
performed by Landlord is of such nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be deemed to have
been cured if Landlord commences such performance within said thirty-day period
and thereafter diligently undertakes to complete the same. Upon the occurrence
of any such default, Tenant may sue for injunctive relief or to recover damages
for any loss resulting from the breach, but Tenant shall not be entitled to
terminate this Lease or withhold, offset or abate any rent due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
to perform or observe any term, condition, covenant or obligation required to be
performed or observed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord (whether
compensatory or punitive in nature), Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment and that Landlord shall not be personally liable for any
deficiency.
The references to "Landlord" in this Lease shall be limited to mean and
include only the owner or owners, at the time, of the fee simple interest in the
Building. In the event of a sale or transfer of such interest (except a mortgage
or other transfer as security for a debt), the "Landlord" named herein, or, in
the case of a subsequent transfer, the transferor, shall, after the date of such
transfer, be automatically released from all liability for the performance or
observance of any term, condition, covenant or obligation required to be
performed or observed by Landlord hereunder; and the transferee shall be deemed
to have assumed all of such terms, conditions, covenants and obligations.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
be construed to be a waiver thereof or affect its right thereafter to exercise
or enforce each and every such right or remedy or other provision. No waiver of
any default shall be deemed to be a waiver of any other default. Landlord's
receipt of less than the full rent
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due shall not be construed to be other than a payment on account of rent then
due, nor shall any statement on Tenant's check or any letter accompanying
Tenant's check be deemed an accord and satisfaction, and Landlord may accept
such payment without prejudice to Landlord's right to recover the balance of the
rent due or to pursue any other remedies provided in this Lease. No act or
omission by Landlord or its employees or agents during the term of this Lease
shall be deemed an acceptance of a surrender of the Leased Premises, and no
agreement to accept such a surrender shall be valid unless in writing and signed
by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in
the performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for the attorneys' fees incurred thereby.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right, at its option, upon at least thirty (30)
days' prior written notice to Tenant, to relocate Tenant and to substitute for
the Leased Premises other space in the Building or in the Park, containing at
least as much rentable area as the Leased Premises. Such substituted space shall
be improved by Landlord, at its expense, with improvements at least equal in
quantity and quality to those in the Leased Premises. Landlord shall reimburse
Tenant for all reasonable expenses incurred with and caused by such relocation
(including telephone installation, moving of equipment and furniture, and
printing of stationery with the Tenant's new address) within sixty (60) days
following receipt from Tenant of invoices or receipts marked "paid in full." In
no event shall Landlord be liable to Tenant for any consequential damages as a
result of any such relocation, including, but not limited to, loss of business
income or opportunity. Upon completion of the relocation, Landlord and Tenant
shall amend this Lease to change the description of the Leased Premises and any
other matters pertinent thereto.
ARTICLE 15 - NOTICE AND PLACE OF PAYMENT
Section 15.01. Notices. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by overnight courier or mailed by certified mail, postage
prepaid, to (i) the party who is to receive such notice at the address specified
in the Basic Lease Provisions and (ii) in the case of a default notice from
Tenant to Landlord, any Lender designated by Landlord. When so mailed, the
notice shall be deemed to have been given as of the date it was mailed. Either
party may change its address by giving written notice thereof to the other
party.
Section 15.02. Place of Payment. All payments required to be made by
Tenant to Landlord shall be delivered or mailed to Landlord's management agent
at the address specified in the Basic Lease Provisions or any other address
Landlord may specify from time to time by written notice to Tenant.
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ARTICLE 16 - TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL LAWS AND
HAZARDOUS SUBSTANCES.
Section 16.01. Definitions.
a. "Environmental Laws" - All federal, state and municipal laws,
ordinances, rules and regulations applicable to the environmental and ecological
condition of the Leased Premises, including, without limitation, the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended; the Federal Resource Conservation and Recovery Act; the Federal Toxic
Substance Control Act; the Clean Air Act; the Clean Water Act; the rules and
regulations of the Federal Environmental Protection Agency, or any other
federal, state or municipal agency or governmental board or entity having
jurisdiction over the Leased Premises.
b. "Hazardous Substances" - Includes:
(i) Those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances" "solid waste" or
"infectious waste" in any of the Environmental Laws; and
(ii) Such other substances, materials and wastes which are or become
regulated under applicable local, state or federal law, or which are classified
as hazardous, toxic or infectious under present or future Environmental Laws or
other federal, state, or local laws or regulations.
Section 16.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws which shall impose any duty upon
Tenant with respect to the use, occupancy, maintenance or alteration of the
Leased Premises. Tenant shall promptly comply with any notice from any source
issued pursuant to the Environmental Laws or with any notice from any insurance
company pertaining to Tenant's use, occupancy, maintenance or alteration of the
Leased Premises, whether such notice shall be served upon Landlord or Tenant.
Section 16.03. Restrictions on Tenant. Tenant shall not cause or permit to
occur:
a. Any violation of the Environmental Laws related to environmental
conditions on, under, or about the Leased Premises, or arising from Tenant's use
or occupancy of the Leased Premises, including, but not limited to, soil and
ground water conditions.
b. The use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substances on, under, or about
the Leased Premises, or the transportation to or from the Leased Premises of any
Hazardous Substances, except as necessary and appropriate for general office use
in which case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry.
Section 16.04. Notices, Affidavits, Etc.
a. Tenant shall immediately notify Landlord of (i) any violation by
Tenant, its employees, agents, representatives,
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customers, invitees or contractors of the Environmental Laws on, under or about
the Leased Premises, or (ii) the presence or suspected presence of any Hazardous
Substances on, under or about the Leased Premises and shall immediately deliver
to Landlord any notice received by Tenant relating to (i) and (ii) above from
any source.
b. Tenant shall execute affidavits, representations and the like from time
to time, within five (5) days of Landlord's request therefor, concerning
Tenant's best knowledge and belief regarding the presence of any Hazardous
Substances on, under or about the Leased Premises.
Section 16.05. Landlord's Rights.
a. Landlord and its agent shall have the right, but not the duty, upon
advance notice (except in the case of emergency when no notice shall be
required) to inspect the Leased Premises and conduct tests thereon at any time
to determine whether or the extent to which there has been a violation of
Environmental Laws by Tenant or whether there are Hazardous Substances on, under
or about the Leased Premises. In exercising its rights herein, Landlord shall
use reasonable efforts to minimize interference with Tenant's business but such
entry shall not constitute an eviction of Tenant, in whole or in part, and
Landlord shall not be liable for any interference, loss, or damage to Tenant's
property or business caused thereby.
b. If Landlord, any lender or governmental agency shall ever require
testing to ascertain whether there has been a release of Hazardous Substances
on, under or about the Leased Premises or a violation of the Environmental Laws,
and such requirement arose in whole or in part because of an act or omission on
the part of Tenant, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as Additional Rent.
Section 16.06. Tenant's Indemnification. Tenant shall indemnify and hold
harmless Landlord and Landlord's managing agent from any and all claims, loss,
liability, costs, expenses or damage, including attorneys' fees and costs of
remediation, incurred by Landlord in connection with any breach by Tenant of its
obligations under this Article 16. The covenants and obligations of Tenant under
this Article 16 shall survive the expiration or earlier termination of this
Lease.
ARTICLE 17 - MISCELLANEOUS
Section 17.01. Benefit of Landlord and Tenant. This Lease and all of the
terms and provisions hereof shall inure to the benefit of and be binding upon
Landlord and Tenant and their respective successors and assigns.
Section 17.02. Governing Law. This Lease shall be governed in accordance
with the laws of the State of Ohio.
Section 17.03. Guaranty. In consideration of Landlord's leasing the Leased
Premises to Tenant, Tenant shall provide Landlord with a Guaranty of Lease
executed by the guarantor(s) described in the Basic Lease Provisions.
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Section 17.04. Force Majeure. Landlord shall be excused for the period of
any delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including, but not limited to, war,
invasion or hostility; work stoppages, boycotts, slowdowns or strikes; shortages
of materials, equipment, labor or energy; man-made or natural casualties;
unusual weather conditions; acts or omissions of governmental or political
bodies; or civil disturbances or riots.
Section 17.05. Condition of Premises. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Leased Premises or the Building or with respect to the
suitability or condition of any part thereof for the conduct of Tenant's
business except as provided in this Lease.
Section 17.06. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 17.07. Indemnification for Leasing Commissions. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are those named in the Basic Lease
Provisions and that no other broker or person is entitled to any leasing
commission or compensation as a result of the negotiation or execution of this
Lease. Each party shall indemnify and hold the other harmless from any and all
liability for the breach of this representation and warranty on its part and
shall pay any compensation to any other broker or person who may be deemed or
held to be entitled thereto.
Section 17.08. Quiet Enjoyment. If Tenant shall perform all of the
covenants and agreements herein provided to be performed by Tenant, Tenant
shall, at all times during the Lease Term, have the quiet enjoyment and peaceful
possession of the Leased Premises without hindrance from Landlord or any persons
lawfully claiming under Landlord, except as may be provided in Section 12.02
hereunder.
Section 17.09. Severability of Invalid Provisions. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
Section 17.10. Financial Statements. [MINIMUM RENT UNDER $100,000 PER
YEAR] During the Lease Term and any extensions thereof, Tenant shall provide to
Landlord on an annual basis, within ninety (90) days following the end of
Tenant's fiscal year, a copy of Tenant's most recent financial statements
prepared as of the end of Tenant's fiscal year. Such financial statements shall
be signed by Tenant or an authorized officer or representative of Tenant who
shall attest to the truth and accuracy of the information set forth in such
statements. All financial statements provided by Tenant to Landlord hereunder
shall be prepared in conformity with generally accepted accounting principles,
consistently applied.
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-OR-
Section 17.10. Financial Statements. [MINIMUM RENT OVER $100,000 PER YEAR]
During the Lease Term and any extensions thereof, Tenant shall provide to
Landlord on an annual basis, within ninety (90) days following the end of
Tenant's fiscal year, a copy of Tenant's most recent certified and audited
financial statements prepared as of the end of Tenant's fiscal year. Such
financial statements shall be prepared in conformity with generally accepted
accounting principles, consistently applied.
Section 17.11. Tenant's Representations and Warranties. The undersigned
represents and warrants to Landlord that (i) Tenant is duly organized, validly
existing and in good standing in accordance with the laws of the state under
which it was organized; (ii) all action necessary to authorize the execution of
this Lease has been taken by Tenant; and (iii) the individual executing and
delivering this Lease on behalf of Tenant has been authorized to do so, and such
execution and delivery shall bind Tenant. Tenant, at Landlord's request, shall
provide Landlord with evidence of such authority.
Section 17.12. Representations and Indemnifications. Any representations
and indemnifications of Landlord contained in the Lease shall not be binding
upon (i) any mortgagee having a mortgage presently existing or hereafter placed
on the Building, or (ii) a successor to Landlord which has obtained or is in the
process of obtaining fee title interest to the Building as a result of a
foreclosure of any mortgage or a deed in lieu thereof.
Section 17.13. Agency Disclosure. Tenant acknowledges having reviewed the
Agency Disclosure Statement and Tenant acknowledges that said Statement is
signed and attached hereto and made a part hereof as Exhibit C. The broker
identified as representing Landlord in Item J of Section 1.01 hereof, and its
agents and employees, have represented only Landlord, and have not in any way
represented Tenant, in the marketing, negotiation and completion of this lease
transaction.
Section 17.14. Additional Provisions. Additional provisions, if any, are
attached hereto as an Addendum, the provisions of which are incorporated herein
by reference. In the event of any inconsistencies between the provisions of this
Lease and of the Addendum, the provisions of the Addendum shall control.
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IN WITNESS WHEREOF, the Parties hereto have executed this Lease the day
and year first above written.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
WITNESSES:
- - ------------------------------- By: Duke Realty Investments, Inc.
- - ------------------------------- its General Partner
(Printed)
- - -------------------------------
- - ------------------------------- By:
(Printed) ----------------------------------
Ross C. Farro
Vice President
Cleveland Group
TENANT:
--------------------------------,
a(n)
----------------------------
WITNESSES: By:
---------------------------------------
- - -------------------------------- Printed:
- - -------------------------------- -----------------------------------
(Printed) Title:
------------------------------------
- - --------------------------------
- - --------------------------------
(Printed)
STATE OF
--------------------- )
COUNTY OF ) SS:
--------------------- )
Before me, a Notary Public in and for said County and State, personally
appeared Ross C. Farro, by me known and by me known to be the Vice
President/Cleveland Group of Duke Realty Investments, Inc., the general partner
of Duke Realty Limited Partnership, an Indiana limited partnership, who
acknowledged the execution of the above and foregoing Lease Agreement for and on
behalf of said partnership.
WITNESS my hand and Notarial Seal this _______day of _________________,
1998.
-------------------------------------------
Notary Public
-------------------------------------------
(Printed Signature)
My Commission Expires: _________________________
My County of Residence: ________________________
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STATE OF
------------ )
COUNTY OF ) SS:
----------- )
Before me, a Notary Public in and for said County and State,
personally appeared ________________, by me known and by me known to be the
________________ of ________________ a(n) ________________, who acknowledged the
execution of the above and foregoing Lease Agreement for and on behalf of said
corporation.
WITNESS my hand and Notarial Seal this _____ day of _________________,
1998.
-------------------------------------------
Notary Public
-------------------------------------------
(Printed Signature)
My Commission Expires:
---------------------------------
My County of Residence:
---------------------------------
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