Exhibit 10.3
XXXXXXXXX
XXXXXX
[LOGO]
COLLIERS
International
STANDARD OFFICE LEASE
XXXXXXXXX-XXXXXX COMPANY
LEASE AGREEMENT (herein called the "Lease") entered into as of the__day
of__ , 199_ , between Sun Life Assurance Co. of Canada a Corporation (herein
called "Lessor"), and Xxxxxx Xxxx Co., Ltd a corporation (herein called
"Lessee").
WITNESSETH:
1. DEMISE. For the rent and term and upon the terms, conditions,
limitations and provisions hereinafter set forth, Lessor leases to Lessee and
Lessee hires from Lessor approximately 6,170 rentable square feet of office
space and 1,200 rentable square feet of retail space (herein called the
"Premises") and identified as Suite Number 406 and a portion of Suite 4408
respectively, as shown outlined and crosshatched in Black, on Exhibit A and
Exhibit B, respectively, attached hereto, in the building known as Xxxxxx
Village Tower (herein called the "Building") located at 0000 Xxxxxx Xxxxxxx
Xxxxxx, X.X., Xxxxxx, Xxxx, 00000.
2. TERM. The term of this Lease shall be two (2) years , beginning on the
1st day of October, 1996, and ending on the 30th day of September, 1998, unless
sooner terminated as hereinafter provided.
3. USE. Lessee shall use and occupy the premises only for office use and
retail sales and for no other purposes.
4. ANNUAL BASE RENT. Lessee shall pay Lessor as rent for the premises, the
sum AS SHOWN ON ATTACHED RIDER ONE PARAGRAPH 41 , payable in advance, without
deduction or set-off, in legal tender of the United States of America, on the
first day of each and every calendar month of the term, at the offices of
Xxxxxxxxx-Xxxxxx Company (hereinafter called the "Company"), The Diamond
Building, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or at such other place as
Lessor may, from time to time, in writing designate. Any rent or other sums
payable by Lessee to Lessor under this Lease which are not paid within five (5)
days after they first become due, will be subject to a late charge of five
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percent (5%) of the amount due. Such late charges will be due and payable as
additional rent on or before the next day on which an installment of rent is
due. Any rent, late charges or other sums payable by Lessee to Lessor under this
Lease which are not paid when due will bear interest at a rate equal to eighteen
percent (18%) per annum, such interest to commence on the date that said payment
was first due and payable, or, at the Lessor's election, if a late charge is
assessed, fifteen (15) days after the date said payment was first due and
payable. Such interest will be due and payable as additional rent on or before
the next installment of rent and will accrue until paid from the date thereof.
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6. SECURITY DEPOSIT. Lessee has deposited with Lessor the sum of Six
Thousand One Hundred Ninety Eight and 75/100 Dollars ($ 6,198.75) as security
(herein called the "security deposit" for the full and faithful performance of
every term and provision of this Lease by Lessee. If Lessee defaults in the
performance of any term or provision hereof, including failure to pay any rent,
adjustments to rent, additional rent or other charges which Lessee is or becomes
obligated to pay, or Lessor otherwise suffers any loss, cost, expense or damage
as a result of any default by Lessee hereunder, Lessor may apply the security
deposit in respect to such default. If all or any portion of the security
deposit is so applied, upon demand by Lessor or Company, Lessee shall
immediately deposit with Lessor a sum sufficient to restore the security deposit
to Lessor in full, and failure to do so shall constitute a further default
hereunder. Upon the expiration of the term of this Lease, provided Lessee has
fully performed every term and provision hereof, the security deposit (or amount
thereof then on deposit with Lessor) shall be returned to Lessee. In the event
of any sale of the Building during the term hereof, Lessor may transfer the
security deposit to the new
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owner, and upon such transfer, shall be relieved of any obligation for
return of the security deposit to Lessee. Lessor shall be under no obligation to
segregate the security deposit from its own funds and the security deposit shall
not bear interest.
7. BUILDING SERVICES FOR SUITE 406 ONLY. Provided Lessee is not in default
under any of the terms and provisions of this Lease, and except as otherwise
provided below as to Lessee's obligation to pay for certain services, Lessor
shall furnish Lessee with the following services:
(a) cleaning, janitor and window washing services standard for the
Building;
(b) heating or air-conditioning, subject to the terms hereof, on business
days, from 8:00 A.M. to 6:00 P.M., and on Saturdays, from 8:00 A.M. to 12:00
Noon, standard for the Building. Lessee shall pay for all heating and
air-conditioning requested and furnished prior to or following such hours at
rates to be established from time to time by Lessor, subject to all governmental
rules, regulations and guidelines applicable thereto. All requests for heating
or air-conditioning prior to or following such hours, must be submitted, in
writing, to the Company no later than 2:00 P.M. on the last prior business day;
Lessor shall pay all utilities for HVAC and electric service.
(c) water at standard Building temperatures for normal sanitary purposes
only. Lessee shall pay, at standard Building rates, for water used for other
than normal sanitary purposes and for water wasted;
(d) passenger elevator service on business days, from 8:00 A.M. to 8:00
P.M., and on Saturdays, from 8:00 A.M. to 6:00 P.M.; elevator service via at
least one (1) car per elevator bank at all other times;
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The term "business days", as used in this Paragraph 7, shall mean Monday to
Friday, inclusive, excluding (1) Saturdays (except such portion thereof as is
stipulated specifically in subparagraphs (b) and (d) of this Paragraph 7), (2)
Sundays, and (3) all days observed by the Federal and State governments as legal
holidays.
Lessee shall pay Lessor's charges for water, electrical and other services
within ten (10) days after the rendering by Lessor or Company of each statement
on account thereof.(INCLUDED IN BASE RENT). Failure to pay such charges when
due, or to pay any rent or other charge hereunder when due, shall entitle
Lessor, upon not less than five (5) days' written notice, to discontinue
furnishing water, electrical or other services to Lessee. No discontinuance of
services shall be deemed an eviction or disturbance of Lessee's use and
occupancy of the premises, nor render Lessor liable to Lessee for damages, nor
relieve Lessee from the performance of Lessee's covenants and agreements
hereunder.
Lessee agrees that Lessor shall not be liable for damages, by abatement of
Rent or otherwise, for failure to furnish or delay in furnishing any service, or
for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by any strike, lockout
or other labor trouble, by inability to secure electricity, gas, water, or other
fuel at the Building after reasonable effort so to do, by any accident or
casualty whatsoever, by act or default of Lessee or other parties, or by any
other cause beyond Lessor's reasonable control; and such failures or delays or
diminution shall not be deemed to constitute an eviction or disturbance of the
Lessee's use and possession of the premises or relieve the Lessee from paying
Rent or performing any of its obligations under this Lease. Lessor also reserves
the right to temporarily suspend, delay, or discontinue furnishing any of the
services to be provided by Lessor under this Lease, without abatement or
diminution in Rent and without any liability to Lessee as a result thereof, for
such inspections, cleaning, repairs, replacements, alterations, improvements or
renewals as may, in Lessor's judgment, be desirable or necessary to be made;
provided that such services shall not, to the extent reasonably feasible, be
suspended for such purposes during Lessee's normal business hours unless Lessor
shall, to the extent reasonably possible under the circumstance, have given
Lessee advance notice of any proposed suspension of services.
8. POSSESSION. Taking possession by Lessee shall be conclusive evidence as
against Lessee that the premises were in good order and satisfactory condition
when Lessee took possession. No representation respecting the condition of the
premises or the Building has been made by Lessor to Lessee unless contained
herein; and no promise of Lessor to prepare, alter, or improve the premises for
Lessee's use and occupancy shall be binding upon Lessor unless contained herein
or in Lessor's Work Letter, which Work Letter, if any, has been signed by Lessor
and Lessee and is attached hereto and made a part hereof.
If Lessor is required to perform any space preparation work in the premises
pursuant to a Work Letter, Lessee's obligation to pay the rent reserved
hereunder shall commence upon the date that Lessor has substantially completed
the work specified therein and has so notified Lessee, in writing, or if
Lessor's space preparation work has been delayed due to an act or omission of
Lessee, then at such earlier dare as the work would have been completed but for
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such act or omission. If such date shall be other than the first day of a
calendar month, the rent for such month shall be prorated on a per-diem basis.
If, with Lessor's consent, Lessee is allowed to occupy or enter the
premises prior to the date of the commencement of the term of this Lease, then
all provisions hereof shall be in full force and effect as soon as Lessee
occupies the premises, and Lessee shall immediately commence paying rent on a
per-diem basis to the date of commencement of the term.
If Lessor shall be unable to deliver possession of the premises on the date
of the commencement of the term hereby created because of the holding over of
any tenant, or tenants, or for any other cause beyond Lessor's reasonable
control, then the payment of rent shall not commence until the date possession
of the premises is delivered to Lessee. Lessee agrees to accept such allowance
and abatement of rent as liquidated damages, in full satisfaction for the
failure of Lessor to deliver possession on the date of the commencement of the
term, and to the exclusion of all claims and rights which Lessee might otherwise
have by reason of delivery of possession not being made on that date. Failure to
deliver possession on the date of commencement of the term shall not, in any
event, extend or be deemed to extend, the term of this Lease. Unfinished extra
work, if any, undertaken by Lessor for Lessee shall not be considered in
determining the date of delivery of possession to Lessee.
This Lease does not grant any possessory or other rights to light or air
over property except over public streets kept open by public authority, and
Lessor shall not be liable to Lessee for any expense, injury, loss, or damages
resulting from work done in or upon, or by reason of the use of, any adjacent or
nearby building, land, street, or alley.
Lessor and Lessee agree that (a) Lessee shall have the right to place in
the premises, at such locations therein as Lessee may, from time to time,
determine without overloading floors, Lessee's furniture, trade fixtures and
standard business office machines and equipment; and (b) the foregoing types of
personal property shall be and remain the property of Lessee, and may be removed
by Lessee at any time during the lease term, upon its expiration, or upon its
earlier termination in any manner, Lessee, however, agreeing to repair, at
Lessee's expense, any damage to the premises or the Building caused by such
removal.
9. SURRENDER OF POSSESSION. Upon the expiration of the term or upon the
termination of Lessee's right of possession, whether by lapse of time or at the
option of Lessor as herein provided, Lessee shall, at Lessee's sole cost and
expense, forthwith surrender the premises to Lessor in good order, repair and
condition, ordinary wear excepted, and shall, at Lessee's sole cost and expense,
if Lessor so requires, restore the premises to the condition existing at the
beginning of the term. Any interest of Lessee in the alterations, improvements,
and additions to the premises made or paid for by Lessor or Lessee shall,
without compensation to Lessee, become Lessor's property at the termination of
this Lease by lapse of time or otherwise, and such alterations, improvements,
and additions (including floor coverings) shall be relinquished to Lessor in
good condition, ordinary wear excepted. Prior to the termination of the term of
Lessee's right of possession, Lessee shall remove its office furniture, trade
fixtures, office equipment, and all other items of Lessee's property on the
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premises. Lessee shall pay to Lessor, upon demand, the cost of repairing
any damage to the premises and to the Building caused by any such removal. If
Lessee shall fail or refuse to remove any such property from the premises,
Lessee shall be conclusively presumed to have abandoned the same, and title
thereto shall thereupon pass to Lessor without any cost either by set-off,
credit, allowance, or otherwise, and Lessor may, at its option, accept the title
to such property or, at Lessee's expense, may (a) remove the same or any part in
any manner that Lessor shall choose, repairing any damage to the premises caused
by such removal, and (b) store, destroy, or otherwise dispose of the same
without incurring liability to Lessee or any other person.
10. USE AND OCCUPANCY. In the use and occupancy of the premises, Lessee
shall:
(a) comply with all laws, ordinances, rules, regulations, and orders of any
governmental authorities having jurisdiction over the premises or over the use
and occupancy thereof;
(b) keep and maintain the premises in good order, condition and repair, and
promptly make all repairs or replacements becoming necessary during the term,
including, but without limitation, repairs or replacements of doors, glass
(which shall be replaced with glass of the same size and quality), electrical,
plumbing and sewage lines, equipment and fixtures within, and solely serving the
premises, interior walls, floor covering and ceilings and building appliances of
every kind;
(c) at Lessee's expense, promptly cause to be repaired by a contractor
approved by Lessor any damage to the Building or the premises which results or
arises from Lessee's use and occupancy of the premises;
(d) not install in the premises any apparatus or equipment which shall
interfere with or impair the maintenance or operation of any building system,
including, without limitation, the electrical, plumbing, heating, ventilating,
and air-conditioning systems;
(e) except with the prior written consent of Lessor, not install in the
premises any additional or supplementary air-conditioning equipment; and
(f) not conduct any activity or install in the premises any apparatus or
equipment which shall result (i) in the cancellation of any insurance covering
or relating to the Building, or (ii) without Lessor's prior written approval, in
any increase in insurance premiums in respect of any insurance covering or
relating to the Building. If Lessee shall conduct any activity or install any
apparatus or equipment which shall result in an increase in insurance premiums,
Lessee shall forthwith reimburse Lessor for the amount of the increase in the
insurance premiums;
(g) not to place, permit, or suffer any lien to attach to this Lease or the
leasehold estate created hereby;
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(h) not permit any so-called hazardous or toxic wastes or substances (as
defined under any applicable law) to be placed or maintained within the premises
or the Building unless otherwise approved by Lessor in writing.
In the event that Lessee does not timely perform its repair, replacement or
maintenance obligations hereunder, Lessor may, but shall not be obligated to,
perform any such repairs or replacements, or maintain the premises and the cost
and expense of such repair, replacement or maintenance shall be borne by Lessee
as additional rent hereunder due and payable with the next due installment of
rent.
11. ACCESS TO BUILDING. Lessee, for Lessee and for Lessee's agents,
employees, and invitees, agrees that all such persons desiring to enter or leave
the Building at other than normal business hours in the Building from Monday to
Saturday, both inclusive, and during all hours on Sundays and on all days
observed by the Federal and State governments as legal holidays, shall use such
entrances or exits as may be designated by Lessor, and shall comply with
Building security regulations established from time to time by Lessor with
respect to identification, registration and method of signaling for admission,
so as to establish the right of such persons to enter or to leave the Building.
12. COMMON AREAS. Lessee and Lessee's agents, employees and invitees shall
have the right to use, in common with Lessor and Lessor's tenants and the
agents, employees, and invitees of each, the public sidewalks, entrances,
lobbies, vestibules, stairways, corridors, elevators, public toilets, and other
public areas of the Building, subject, however, to applicable Building rules,
regulations, and security measures; and Lessee and Lessee's agents, employees,
and invitees shall not obstruct or litter, or use for storage, temporary or
otherwise, or for the display of merchandise or services, or for any purpose
other than the intended or normal purpose, any of the public sidewalks,
entrances, lobbies, vestibules, stairways, corridors, elevators, public toilets,
and other public areas of the Building; and no floor mats or runners shall be
placed by Lessee in any Building corridor, lobby or vestibule. Lessee shall not,
at any time, place, leave, or discard any rubbish, paper, articles, or other
objects of any kind whatsoever outside the doors of the premises or in the
corridors or other common areas of the Building.
13. ALTERATIONS AND ADDITIONS. (a) Lessee shall not, without the prior
written consent of Lessor, which consent shall be at Lessor's sole discretion,
make any alterations, improvements, or additions to the premises.
Notwithstanding Lessor's consent to any alteration, improvement or addition to
the premises, Lessor shall retain the option, upon the termination of this
Lease, of requiring Lessee, at its sole cost and expense, to remove any or all
of said alterations, improvements or additions and repair all the damage caused
by such removal. If Lessor consents to any alterations, improvements, or
additions, Lessor may impose such conditions with respect thereto as Lessor
deems appropriate, including, without limitation, requiring Lessee to furnish
Lessor with insurance against liabilities which may arise out of such work and
plans and specifications and permits necessary for such work. The work necessary
to make any alterations, improvements, or additions to the premises, whether
prior
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to or subsequent to the Commencement Date, shall be done at Lessee's
expense by contractors hired by Lessor, or the Company, except to the extent
Lessor gives its prior written consent to Lessee's hiring its own contractors,
which consent shall be solely within Lessor's discretion. If Lessor shall so
desire, Lessee shall submit to Lessor's or the Company's reasonable supervision
of Lessee's work at Lessee's expense. Lessee shall also pay Lessor for all other
costs and expenses arising in connection with such work, including, without
limitation, additional janitorial, elevator, security, and utility expense.
Lessee shall promptly pay to Lessor, the Company, or the Lessee's contractors,
as the case may be, when due, the cost of all such work, supervision, and other
charges.
(b) Upon completion of such work, or from time to time as Lessor may reasonably
require, Lessee shall deliver to Lessor, if payment is made directly to
contractors, evidence of payment, contractors' affidavits and full and final
waivers of all liens for labor, services, or materials all in form satisfactory
to Lessor. Lessee shall defend and hold Lessor harmless from all costs, damages,
liens and expenses related to such work Lessee further covenants and agrees not
to suffer or permit any mechanics or materialmen liens or any other liens to be
placed against the Building or premises with respect to work or services claimed
to have been performed for, or materials claimed to have been furnished to, the
Lessee or the premises. If any lien shall at any time be filed against the
Building or premises in connection with such work, services, or materials,
Lessee shall immediately cause it to be released and removed of record. If
Lessee fails to do so, Lessor may, at Lessor's option, cause the same to be
released and removed of record using funds from the security deposit provided
for in Paragraph 6 of this Lease. If such funds are insufficient for such
purpose, Lessor may, at Lessor's option, advance such additional funds for such
purpose. In addition to Lessee's obligation to replenish the security deposit as
provided in Xxxxxxxxx 0, Xxxxxx shall immediately, upon demand, pay Lessor the
amount of any such additional funds so advanced.
(c) All work done by Lessee, or its contractors, pursuant to this Lease shall be
done in a first-class workmanlike manner using only good grades of materials,
and shall comply with all insurance requirements and all applicable laws and
ordinances and rules and regulations of governmental departments or agencies.
All such work shall be performed so as not to interfere with or impair the use
and enjoyment of the Building by Lessor and other tenants, and Lessor may
require all or a portion of such world be performed outside business hours.
Subject to Lessor's option contained in the second sentence of subparagraph a)
of this Paragraph 13, all additions, alterations, fixtures, and improvements
(temporary or permanent) in and upon the premises, whether installed by Lessee
or Lessor, shall become Lessor's property, and shall remain upon, and be
surrendered with the premises without disturbance or injury upon the termination
of this Lease by lapse of time or otherwise, all without payment or credit to
Lessee.
14 ASSIGNMENT AND SUBLETTING. (a) Lessee shall not sublet the premises or
any part thereof, not assign this Lease or any interest therein, nor permit any
business to be operated in or from the premises by any person, firm or
corporation other than Lessee, without, in each case, first obtaining the prior
written consent of Lessor, which consent may be given or withheld in Lessor's
sole discretion. Any attempt to assign this Lease or to sublet all or any
portion of the premises, without Lessor's prior written consent, shall be void
and, at
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Lessor's option, shall constitute an event of default under this Lease.
Any merger, consolidation, liquidation, or sale of substantially all of the
assets of Lessee, or any other assignment, transfer, mortgage, pledge or
encumbrance of this Lease or any interest therein, whether voluntary,
involuntary, by operation of law or otherwise, shall constitute an assignment of
this Lease.
(b) Lessor may impose such conditions to its consent to any subletting or
assignment (which may be withheld by Lessor in its sole discretion) as it may
determine, and notwithstanding any consent to assignment or subletting, both
Lessee and its guarantor, if any, will continue to be liable under this Lease
with the same force and effect as though no assignment or sublease had been
made. If Lessee requests Lessor to consent to any assignment or sublease, Lessee
shall provide Lessor with the name, address, and a description of the business
of the proposed assignee or subtenant and its most recent financial statement
and such other evidence of financial responsibility as Lessor may request.
(c) Consent by Lessor to any assignment or subletting shall be consent only
as to that particular assignment and subletting, and not to any further
assignment or subletting. In the event Lessor consents to any assignment, both
Lessee and the assignee shall be primarily liable to Lessor hereunder.
(d) In the event any such proposed assignment or sublease provides for, or
Lessee otherwise receives, rent, additional rent, or other consideration in
excess of that provided for in this Lease, Lessee agrees that in the event
Lessor grants its consent, Lessee shall pay Lessor the amount of such excess as
it is received by, or becomes due to, Lessee. Any violation hereof shall be
deemed a material breach of this Lease, as well as an event of default
hereunder.
(e) In the event of any assignment or subletting, whether or not consented
to by Lessor, any ophons to renew this Lease or expand the premises shall
terminate without further action.
(f) Lessee shall submit any request for Lessor's consent to a sublease or
assignment in writing together with a non-refundable fee of $300.00 to cover
Lessor's consideration of the request.
15 RECAPTURE. (a) Within thirty (30) days after receiving Lessee's request
for Lessor's consent to an assignment of this Lease and the requisite
accompanying information, Lessor shall have the right to (i) grant its consent,
subject to such conditions as it may determine, (ii) withhold its consent, or
(iii) terminate this Lease, on a date reasonably determined by the Lessor, and
release Lessee from its future obligations hereunder.
(b) Within thirty (30) days after receiving Lessee's request for Lessor's
consent to a sublease of all or any portion of the premises and the requisite
accompanying information, Lessor shall have the right to (i) grant its consent,
subject to such conditions as it may determine, (ii) withhold its consent, or
(iii) elect to remove that portion of the premises
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proposed to be sublet from this Lease, on a date reasonably determined by
the Lessor, in which event this Lease shall be terminated and suspended as to
such proposed sublet space only and rent for the balance of the premises shall
be adjusted from the date of such suspension on the basis of the remaining
square feet compared to the total square feet in the premises prior to such
suspension, all as determined by Lessor.
16. HOLDING OVER. If Lessee shall remain in possession of the premises
after the expiration of the term of this Lease, then Lessee shall be a tenant
from month to month, and such tenancy shall otherwise be subject to all of the
terms, provisions, covenants, and agreements of this Lease, except that rent
shall be a rate equal to one hundred fifty percent (150%) of the Adjusted Annual
Rental due hereunder over the last twelve (12) months determined on a monthly
basis, and, if Lessor shall suffer any damage or loss as a result of such
holdover, such as losses or damages which may result from Lessor's inability to
timely deliver the premises to a subsequent tenant of the premises, Lessee shall
promptly pay the amount thereof to Lessor.
17. RIGHTS RESERVED BY LESSOR. Lessor reserves the following rights:
(a) to change the street address of the Building; the name of the Building;
the unit number of the premises; and the arrangement or location of entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets, or other
public parts of the Building without liability to Lessee;
(b) to designate all sources furnishing sign painting, lettering, vending
machines, towel or toilet supplies, or other similar services required in the
premises;
(c) to enter the premises during the last ninety (90) days of the term,
provided Lessee shall have removed substantially all of Lessee's property from
the premises, for the purpose of altering, remodeling, repairing, renovating, or
otherwise preparing the premises for tenanting to others;
(d) to grant anyone the exclusive privilege of conducting any particular
business or activity in the Building;
(e) to enter the premises at all reasonable times (1) for the making of
such inspections, repairs, alterations, improvements, or additions of, or to,
the premises or the Building as Lessor may deem necessary or desirable; (2) to
exhibit the premises to others, and (3) for any purpose whatsoever related to
the safety, protection, preservation, or improvement of the premises or of the
Building or of Lessor's interest therein;
(f) at any time or times, Lessor, either voluntarily or pursuant to
governmental requirement, may, at Lessor's expense, make repairs, alterations,
or improvements in or to the Building or any part thereof, and, during such
times, may temporarily close entrances, doors, corridors, elevators, or other
public facilities; and
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(g) to charge Lessee any additional expense (including overtime or premium
costs incurred by Lessor) in the event repairs, alterations, decorating, or
other work in the premises or the Building are, at Lessee's request, not made
during ordinary business hours.
Lessor may exercise all or any of the foregoing rights hereby reserved
without being deemed guilty of an eviction or disturbance of Lessee's use and
occupancy, without being liable in any manner to Lessee, and without elimination
or abatement of rent, or payment of other compensation, and such acts shall in
no way affect this Lease.
18. REMEDIES OF LESSOR. All rights and remedies of Lessor herein set forth
are in addition to any and all rights: and remedies which are or may be
available to Lessor at law or in equity.
(a) If Lessee shall fail to pay any rent reserved herein when due, or fails
to pay Lessor's charges for water, electrical, or other services within ten (10)
days after the rendition of a statement, or defaults in the prompt and full
performance of any of Lessee's covenants and agreements hereunder, or if the
leasehold interest of Lessee be levied upon, under execution or be attached, or
if Lessee makes an assignment for the benefit of creditors, or if a receiver be
appointed for any property of Lessee, or if Lessee abandons the premises, then,
and in any such event, Lessor may, if Lessor so elects, and with or without
notice of such election and with or without demand whatsoever, forthwith
terminates this Lease and the Lessee's right to possession of the premises, or
Lessor may, without terminating this Lease, terminate Lessee's right to
possession of the premises. Lessee hereby waives Lessee's right to trial by jury
in connection with any proceedings by Lessor to enforce any of its rights
against Lessee under this Lease, including, without limitation, any proceedings
to remove Lessee from the premises.
(b) Upon the filing of a petition by or against Lessee under the United
States Bankruptcy Code, (the "Code"), Lessee, as debtor and as debtor in
possession, and any trustee who may be appointed shall (i) timely perform each
and every obligation of Lessee under this Lease until such time as this Lease is
either rejected or assumed by order of the United States Bankruptcy Court; (ii)
pay monthly in advance on the first day of each month as reasonable compensation
for use and occupancy of the premises an amount equal to the Rent and other
charges otherwise due pursuant to this Lease; (iii) provide adequate assurance
of future performance under the Lease; (iv) reject or assume this Lease within
sixty (60) days of the filing of such petition under the Code, and (v) do all
other things of benefit to Lessor otherwise required or permitted under the
Code. Lessee, as debtor and as debtor in possession, and any trustee, shall be
deemed to have rejected this Lease in the event of the failure to comply with
any of the above. Included within and in addition to any other conditions or
obligations imposed upon Lessee or its successor in the event of assumption
and/or assignment is the prior written consent of any mortgagee to which this
Lease has been assigned as collateral security.
(c) Upon termination of this Lease, or upon the termination of Lessee's
right to possession without termination of the Lease, Lessee shall surrender
possession and vacate the
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premises immediately, and Lessor may enter into and repossess the premises
with or without process of law and remove all persons and property therefrom in
the same manner and with the same right as if this Lease had not been made, and
for the purpose of such entry and repossession, Lessee waives any notices
provided by law or otherwise to be given in connection therewith.
(d) If Lessee abandons the premises, or if Lessor elects to terminate
Lessee's right to possession only, without terminating the Lease as above
provided, Lessor may remove from the premises any and all property found therein
and such repossession shall not release Lessee from Lessee's obligation to pay
the rent reserved herein. After any such repossession by Lessor without
termination of the Lease, Lessor shall make reasonable efforts to relet the
premises, or any part thereof, as agent of Lessee to any person, firm, or
corporation and for such time and upon such terms as Lessor, in Lessor's sole
discretion, may determine. Lessor may make repairs, alterations, and additions
in and to the premises and redecorate the same to the extent deemed by Lessor
necessary or desirable, and Lessee shall, upon demand, pay the cost thereof,
together with Lessor's expense (including any broker's commission) of reletting.
If the rents collected by Lessor upon any such reletting are not sufficient to
pay monthly the full amount of all rent reserved herein, together with the costs
of such repairs, alterations, additions, redecorating, and expenses, Lessee
shall pay to Lessor the amount of each monthly deficiency upon demand.
(e) Any and all property which may be removed from the premises by Lessor
may be handled, removed, stored, or otherwise disposed of by Lessor at the risk
and expense of Lessee, and Lessor shall, in no event, be responsible for the
preservation or safekeeping thereof. Lessee shall pay to Lessor, upon demand,
any and all expenses incurred in such removal and all storage charges against
such property so long as the same shall be in Lessor's possession or under
Lessor's control. If any property shall remain in the premises or in the
possession of Lessor and shall not be removed by Lessee within a period of ten
(10) days from and after the time when the premises are either abandoned by
Lessee or repossessed by Lessor under the terms of this Lease, the properly
shall conclusively be deemed to have been forever abandoned by Lessee.
(f) Lessor and Lessee agree that all of the goods, chattels, trade
fixtures, and other personal property belonging to Lessee which are or may be
put into the premises during the term, whether exempt or not from sale under
execution or attachment, shall, at all times, be bound with a lien in favor of
Lessor, and shall be chargeable for all rents hereunder and for the fulfillment
of the other covenants and agreements of Lessee herein contained. In the event
that Lessee shall have abandoned the premises, or in the event of any default of
Lessee hereunder, Lessor shall have the right to sell all or any part of said
property at public or private sale, without giving notice to Lessee or any
notice of sale, all notices required by statute or otherwise being hereby
expressly waived, and to apply the proceeds of such sale, first to the payment
of all costs and expenses of conducting the same, or caring for or storing said
property; second, toward the payment of any indebtedness which may be or may
become due from Lessee to Lessor; and, third, to pay to Lessee, on demand, in
writing, any surplus remaining after all indebtedness of Lessee to Lessor has
been fully paid.
13
(g) In addition to all other rights and remedies of Lessor hereunder, if
Lessee fails to timely perform any of its obligations hereunder, including,
without limitation, monetary obligations, and whether or not Lessor has
terminated this Lease or Lessee's right to possession of the premises, or
either, Lessor may elect to accelerate and make immediately due and payable all
of the rent, additional rent, adjusted rent and any other charges or fees which
are due or may become due hereunder for the remainder of the term of this Lease.
Lessee agrees that Lessor may file suit to recover any sums due under this Lease
from time to time and that no suit or recovery of any portion due Lessor
hereunder shall be any defense to any subsequent action brought for any amount
not theretofore reduced to judgment in favor of Lessor.
19. LOSS OR DAMAGE TO PROPERTY. (a) All personal property belonging to
Lessee or to any other person located in or about the premises or the Building
shall be there at the sole risk of Lessee or such other person, and neither
Lessor nor Lessor's Company or employees shall be liable for the theft or
misappropriation thereof, nor for any damage or injury thereto, nor for damage
or injury to Lessee, to other persons, or to property caused by water, snow,
frost, steam, heat, cold, dampness, falling plaster, sewers or sewerage, gas,
odors, noise, the bursting or leaking of pipes, plumbing, electrical wiring, and
equipment and fixtures of all kinds, or by any act or neglect of other tenants
or occupants of the Building, or of any other person, or caused in any manner
whatsoever, unless the same shall solely and proximately result from the
negligence of Lessor or Lessor's Company or employees. Lessee will protect,
indemnify, and save harmless Lessor or Lessor's Company or employees from all
losses, costs, or damages sustained by reason of any act or other occurrence
causing injury to any person or property due directly or indirectly to the use
of the premises or any part thereof by Lessee, except losses, costs, or damages
solely and proximately resulting from the negligence of Lessor or Lessor's
Company or employees.
(b) Lessee shall indemnify and save Lessor and mortgagees of the Building
harmless from and against any clean-up costs, remedial or restoration work,
claims, judgments, damages, penalties, fines, costs, liabilities or losses,
including, without limitation, diminution in value of the premises, damages for
the loss or restriction on use of space within the Building, damages due to
adverse impact on marketing of space in the Building, and attorneys',
consultants' and experts' fees, which arise during or after the term of this
Lease as a result of any hazardous or toxic substances being generated or
disposed of in or on, or brought to, the Building by Lessee or any other
occupant of the Premises.
20. INSURANCE. Lessee shall, during the term of this Lease and at Lessee's
own expense, carry comprehensive general liability insurance with a combined
single limit of at least One Million Dollars ($1,000,000) for all injuries to or
death of persons and loss of or damage to property in any one occurrence, and
insurance at no less than the replacement value of (i) all alterations,
additions and improvements Lessee may make to the premises, and (ii) all of the
personal property that Lessee brings within the premises. Such insurance policy
shall name Lessor, the Company and, if requested by Lessor, any mortgagee of
Lessor as additional insureds, and shall contain a provision requiring that
the policy shall not be modified,
14
cancelled, or terminated without at least thirty (30) days prior written
notice to Lessor and the Company, and, if requested by Lessor, any mortgagee of
Lessor. At least twenty (20) days prior to the time such insurance is first
required to be carried by Lessee and thereafter at least thirty (30) days prior
to the expiration of any such policy, Lessee shall deliver to Lessor a
certificate of insurance validly stamped by the issuing insurance carrier
evidencing both the payment of all premiums due thereon and the coverage
outlined above.
21. WAIVER OF SUBROGATION. In the event either party hereto requests a
waiver of subrogation with respect to the Building, premises, and property
therein or occurrences thereon, and if such waiver can be written without
additional premium, or with an additional premium if the party making the
request agrees to pay such additional premium for the other party, as well as
any additional premium for the requesting party's insurance, then there shall
exist mutual waivers of subrogation and each party hereto will waive any and
every claim which arises or may arise in its favor and against the other party
hereto, or anyone claiming through or under them, by way of subrogation or
otherwise, during the term of this Lease or any extension or renewal thereof for
any and all loss of, or damage to, any of its property (whether or not such loss
or damage is caused by the fault or negligence of the other party or anyone for
whom such other party may be responsible), which loss or damage is covered (or
required to be covered hereunder) by valid and collectible fire and extended
coverage insurance policies, to the extent that such loss or damage is recovered
or recoverable under insurance policies required to be carried hereunder or
insurance policies actually carried by the party, and further provided that the
aforesaid waiver shall not affect any "deductibles" on such policies. Such
waivers shall be in addition to, and not in limitation or derogation of, any
other waiver or release contained in this Lease with respect to any loss or
damage to property of the parties hereto. Each party hereto will then
immediately give to each insurance company which has issued to it policies of
fire and extended coverage insurance written notice of the terms of such mutual
waivers, and to have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of such insurance coverages by reason of such waivers.
Upon request, each party shall provide the other party with confirmation from
its insurance company(ies) of compliance with the terms of this Paragraph.
22. UNTENANTABILITY. If the premises or the Building are made unfit for
occupancy by fire or other casualty, acts of God, or other cause, Lessor may
elect (a) to terminate this Lease as of the date when the premises or the
Building are so made unfit for occupancy, by written notice to Lessee within
ninety (90) days after that date, or (b) to repair, restore, or rehabilitate the
premises or the Building at Lessor's expense within one hundred eighty (180)
days after Lessor is enabled to take possession of all damaged areas and to
undertake reconstruction or repairs; and if Lessor elects so to repair, restore,
or rehabilitate the premises or the Building, this Lease shall not terminate,
but rent shall be abated on a per-diem basis to the extent and for the period
that the premises are unfit for occupancy. In the event Lessor shall proceed
under (b) above and shall not substantially complete the work within said one
hundred eighty (180) day period (excluding from said period loss of time
resulting from delays beyond the reasonable control of Lessor) either Lessor or
Lessee may then terminate this Lease, as of the last day of such one hundred
eighty (180) day period, by
15
written notice to the other not later than ten (10) days after the
expiration of said one hundred eighty (180) day period, computed as herein
provided, and Lessor shall have no liability to Lessee for failure to restore,
repair, or rehabilitate the premises. In the event of termination of this Lease
pursuant to this Paragraph, rent shall be apportioned on a per-diem basis to and
including the effective date of such termination. Except as provided in this
Paragraph, neither party hereto shall have the right to terminate this Lease by
reason of damage to, or destruction of, the premises or the Building.
23. ESTOPPEL CERTIFICATE BY LESSEE. Lessee agrees that from time to time,
upon not less than ten (10) days' prior request by Lessor, Lessee will deliver
to Lessor (without cost or expense to Lessor or such other party designated by
Lessor) a statement, in writing, certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified, and identifying the modifications), (b)
the dates to which the Rent and other charges have been paid, (c) that, so far
as the person making the certificate knows, Lessor is not in default under any
provision of this Lease, and, if Lessor is in default, specifying each such
default of which the person making the certificate may have knowledge, and (d)
such other information as is reasonably requested by Lessor, it being understood
that any such statement so delivered may be relied upon by any landlord under
any ground or underlying lease, or any prospective purchaser, mortgagee, or any
assignee of any mortgage on the Building.
24. SUBORDINATION OF LEASE. Lessor shall have the right at any time, and
from time to time, to place upon the Building and the land of which the premises
are a part, a mortgage or mortgages which, together with all renewals,
extensions, modifications, and replacements thereof, shall be wholly prior to
the rights of Lessee and this Lease. It is the intention of the parties that
such priority shall be established automatically and that no separate instrument
shall be required to effectuate such subordination of this Lease. Lessee will,
however, at any time and from time to time, upon request of Lessor, promptly
execute and deliver to Lessor, without expense to Lessor, any and all
instruments deemed by Lessor necessary or advisable to subject and subordinate
this Lease and all rights given Lessee hereunder to such mortgage or mortgages.
In the event any proceedings are brought for the foreclosure of any such
mortgage, Lessee covenants that it will, to the extent of the Lessor's interest
affected by such foreclosure, attorn to the purchaser upon any such foreclosure
sale and recognize such purchaser as Lessor under this Lease. Lessee agrees to
execute and delivery to Lessor, without expense to Lessor, at any time and from
time to time, upon the request of Lessor or of any such holder, any instrument
which, in the sole judgment of Lessor, may be necessary or appropriate in any
such foreclosure proceeding or otherwise to evidence such attornment. Lessee
hereby appoints Lessor and the holder of any such mortgage or either of them,
the attorney-in-fact irrevocably, of Lessee to execute and deliver for and on
behalf of Lessee any such instrument. Lessee further waives the provisions of
any statute or rule of law, now or hereafter in effect, which may give or
purport to give Lessee any right or election to terminate or otherwise adversely
affect this Lease and the obligation of Lessee hereunder in the event any such
foreclosure proceeding is brought, and agrees that this Lease shall not be
affected in any way whatsoever by any such foreclosure proceeding.
16
25. EMINENT DOMAIN. Lessee agrees with Lessor that if the whole or any part
of the premises shall be appropriated, condemned, taken, or otherwise acquired
by any public or quasi-public authority under power of eminent domain,
condemnation, or other proceedings, this Lease and the estate hereby created
shall terminate and wholly expire on the date legal title shall vest in the
appropriator or condemnor, and all rent shall be prorated and adjusted as of
that date. In no event whatsoever shall Lessee have any claim against Lessor by
reason of any appropriation, condemnation, or taking of the whole or any part of
the premises or of the Building, nor shall Lessee have any claim to the amount,
or any portion thereof, that may be awarded as compensation or as damages or
paid as a result of such appropriation and taking; provided, however, that
Lessee shall have the right, to the extent the same does not reduce Lessor's
award of compensation and damages, to bring a separate action against the
condemning authority (but not against Lessor) for the recovery of Lessee's
moving expenses, displacement expenses, loss of business, and damage to Lessee's
personal property which is removable hereunder.
26. NO WAIVER. (a) No receipt of money by Lessor from Lessee with knowledge
of default or breach of any covenants of this Lease, or after the termination of
any suit, or after final judgment for possession of the premises, shall be
deemed a waiver of such default or breach, nor shall it reinstate, continue, or
extend the term of this Lease or effect any such notice, demand, or suit.
(b) No delay on the part of Lessor in exercising any right, power, or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power, or privilege preclude any other, or
further, exercise thereof or the exercise of any other right, power, or
privilege.
(c) No act done or thing said by Lessor or Lessor's Company or employees
shall constitute a cancellation, termination, or modification of this Lease, or
a waiver of any covenant, agreement, or condition hereof, nor relieve Lessee
from Lessee's obligation to pay the rents reserved herein. Any waiver or release
by Lessor and any cancellation, termination, or modification of this Lease must
be in writing signed by Lessor.
27. EXPENSES OF ENFORCEMENT. Lessee shall pay, upon demand, all of Lessor's
costs, charges and expenses, including, without limitation, attorneys' fees and
out-of-pocket expenses of counsel, Company and others retained by Lessor
incurred in enforcing Lessee's obligations hereunder or incurred by Lessor in
any litigation, negotiation or transaction in which Lessee causes Lessor to
become involved or concerned.
QUIET ENJOYMENT. If Lessee shall (1) pay all rent reserved and all charges
for services stipulated herein to be paid by Lessee to Lessor, and (2) well and
faithfully keep, perform, and observe all of the covenants, agreements, and
conditions herein stipulated to be kept, performed, and observed by Lessee,
Lessee shall, at all times during the term of this
17
Lease, have peaceable and quiet enjoyment of the premises without hindrance
of Lessor or any person lawfully claiming under Lessor, subject, however, to the
terms of this Lease and to any underlying lease or to any mortgage to which this
Lease is or has become subordinate.
29. NOTICES. In every instance where it shall be necessary or desirable for
Lessor to serve any notice or demand upon Lessee, such notice or demand shall be
deemed sufficiently given or made if, in writing, it is mailed to Lessee by
registered or certified United States mail, postage prepaid, addressed to Lessee
at the Building of which the premises are a part, or at such alternative address
as may be set forth at the end of this paragraph, and the time of giving or
making such notice or demand shall be deemed to be the time when the same was
mailed as herein provided. Any notice by Lessee to Lessor must be sent by
registered or certified United States mail, postage prepaid, addressed to Lessor
in care of:
Sun Life Assurance Co. of Canada
c/o Xxxxxxxxx-Xxxxxx Company
The Diamond Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or at such other place as Lessor or the Company may, from time to time,
designate in writing. Wherever in this Lease, in connection with the breach,
default, or performance of any of the terms, provisions, covenants, and
agreements of Lessee, no period of time or notice is required by the terms
hereof, no notice shall be required as a prerequisite to the exercise of any
right or remedy of Lessor.
ALTERNATIVE ADDRESS FOR LESSEE:
00 Xxxx Xxxxx, X.X. 000
Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone # 000-000-0000
30. RULES AND REGULATIONS. Lessee and Lessee's agents, employees, and
invitees shall faithfully observe, and strictly comply with, the Rules and
Regulations appearing at the end of this Lease and made a part hereof, and with
such further reasonable Rules and Regulations as Lessor may, notice to Lessee,
from time to time adopt and promulgate. Nothing in this Lease contained shall be
construed to impose upon Lessor any duty or obligation to enforce the Rules and
Regulations (as distinguished from the covenants and agreements) in any other
lease as against any other lessee, and Lessor shall not be liable to Lessee for
violation of the same by any other lessee or the Company, employees, or invitees
of such other lessee.
18
31. REPRESENTATIVE CAPACITY. In the absence of fraud, no person, firm, or
corporation, or the heirs, personal representatives, successors and assigns,
respectively, thereof, signing this Lease as Company, administrator, executor,
trustee, or in any other representative capacity, shall ever be deemed or held
individually liable hereunder for any reason or cause whatsoever.
32. OFFER BY COMPANY. This Lease is offered to Lessee by the Company solely
in the capacity of a broker and is subject to Lessor's acceptance, and Lessee
has executed this Lease upon the understanding that this Lease shall not in any
way bind Lessor until such time as it has been accepted and signed by Lessor and
an executed counterpart delivered to Lessee.
33. BROKER. Lessee represents and warrants to Lessor, and Lessor represents
and warrants to Lessee that, other than the Company, no broker negotiated or was
instrumental in negotiating or consummating this Lease. Lessor agrees to pay
all fees and commissions, if any, which may become due to Company by reason of
this Lease and renewals or expansions thereof. Lessor and Lessee agree to
indemnify and hold the other harmless from all damages, liability and expenses,
including, without limitation, expenses and reasonable attorneys, fees, arising
from any claims or demands of any broker or finder for any commission or fee
alleged to be due based upon the conduct or action on said indemnifying party.
34. RECORDING. This Lease shall not be filed for record or recorded. If
Lessee shall so request, Lessor shall provide Lessee with a Memorandum of Lease
satisfying all applicable statutory requirements which Lessee may then file for
record and have recorded.
35. PARTIES BOUND. The covenants, agreements, and conditions contained in
this Lease shall bind and inure to the benefit of Lessor and Lessee and their
respective heirs, legal representatives, successors and assigns, subject,
however, to the provisions hereof requiring the consent of Lessor to any
assignment of this Lease or subletting of the premises.
19
37. APPLICATION OF PAYMENTS. Lessor shall have the right to apply payments
received from Lessee pursuant to this Lease (regardless of Lessee's designation
of such payments) to satisfy any obligations of Lessee hereunder, in such order
and amounts as Lessor, in its sole discretion, may elect.
38. LIMITATION ON LESSOR'S LIABILITY. It is expressly understood and agreed
by Lessee that none of Lessor's covenants, undertakings, or agreements are made
or intended as personal covenants, undertakings or agreements by Lessor, and any
liability for damage or breach or nonperformance by Lessor shall be collectible
only out of Lessor's interest in the Building, and no personal liability its
assumed by, nor at any time may be asserted against, Lessor or any of its
officers, Company, employees, legal representatives, successors or assigns, all
such liability, if any, being expressly waived and released by Lessee. Lessee
acknowledges that Lessor has the right to transfer its interest in the land and
Building and in this Lease, and Lessee agrees that in the event of any such
transfer, Lessor shall automatically be released from all liability under this
Lease and Lessee agrees to look solely to such transferee for the performance of
Lessor's obligations hereunder.
39. HEADINGS. The captions of paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect, or alter
the meaning of such paragraphs or subparagraphs.
40. ENTIRE AGREEMENT. This Lease, together with the rider attached hereto,
contains the entire agreement of the parties hereto as to the subject matter
hereof, and there are no agreements, promises, covenants, warranties, or
representations other than as set forth herein. The rider attached hereto, and
which is made a part hereof, is particularly identified as Rider Number 1, and
consists of 4 page(s). Exhibits lettered A and B are also attached hereto and
made a part hereof.
20
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed triplicate
counterparts of this First Lease Amendment as of day, month, and year first
above written.
Signed and acknowledged LESSOR
in the presence of:
Sun Life Assurance Company
of Canada
/s/ XXXXXXXX X. XXXXXXXXX /s/ XXXXXX X. XXXXXXX
- ---------------------------------- --------------------------------
/s/ XXXXXXXX X. XXXXXXXXX For President
- ----------------------------------
Printed Name
/s/ XXXXX X. XXXXX /s/ XXXXXX X. XXXXXXX
----------------------------------- --------------------------------
Xxxxx X. Xxxxx For Secretary
-----------------------------------
Printed Name
LESSEE
Xxxxxx Xxxx Co., Ltd.
/s/ XXXXXXX X. XXXXXX /s/ ILLEGIBLE
----------------------------------- ----------------------------------
President
-----------------------------------
Printed Name
/s/ XXXXXX X. XXXXXX /s/ ILLEGIBLE
----------------------------------- ----------------------------------
Vice President
-----------------------------------
Printed Name
WITNESSES:
/s/ XXXXX X. XXXXXX
------------------------
Xxxxx X. Xxxxxx
/s/ ILLEGIBLE
------------------------
Illegible
21
ACKNOWLEDGMENT FOR LESSEE
CORPORATE
---------
STATE OF OHIO )
) SS:
COUNTY OF XXXXX )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Xxxxxx Xxxx Co., Ltd., by Xxxxxxx Xxxxxx, its President
and by Xxxxxx Xxxxxx, its Vice President, who acknowledged that they did sign
the foregoing instrument and that the same is the free authorized act and deed
of the corporation and their free act and deed personally and as officers of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at Canton, Ohio, this 13 day of September, 1996.
/s/ XXXXX X. XXXXXX
--------------------------
Notary Public
(Notarial Seal)
My commission expires ______________
XXXXX X. XXXXXX
Notary Public, State of Ohio
My Commission Expires
May 5, 1999
ACKNOWLEDGMENT FOR LESSOR
CORPORATE
---------
STATE OF MASSACHUSETTS
Commonwealth of Massachusetts )
County of Norfolk ) SS
On this 23rd day of September 1996 before me appeared Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx both to me known to be acting for the President and Secretary
respectively of the Sun Life Assurance Company of Canada, the corporation that
executed the annexed instrument, and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation, for the uses and purposes
therein mentioned, and on oath stated that they were authorized to execute said
instrument, and that the seal affixed is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ XXXXXXXX X. XXXXXXXXX
-----------------------------------------
Notary Public Xxxxxxxx X. Xxxxxxxxx
Notary Public
My Commission Expires: JUNE 15, 2001
------------------
_________________________________________
Notary Public
(Notarial Seal)
My commission expires ___________________
RULES AND REGULATIONS
Wherever in these Rules and Regulations the word "Lessee" is used, it shall
be taken to apply to and include the Lessee and his agents, employees, invitees,
licensees, subtenants, and contractors, and is to be deemed of such number and
gender as the circumstances require. The word "Lessor" shall be taken to include
the employees and agents of Lessor.
WINDOWS AND PROJECTIONS. Nothing shall be affixed to or projected beyond
the outside of the Building by Lessee without the prior written consent of
Lessor. If Lessee desires, and Lessor permits, blinds, shades, awnings, or other
form of window covering, ventilating equipment, or similar devices, they shall
be furnished and installed at the expense of Lessee and must be of such shape,
color, material, and make as are approved by Lessor. Lessee shall not place or
permit to be placed any article of any kind on the window ledges, and shall not
throw or drop, or permit to be thrown or dropped, any article from any window of
the Building.
ADVERTISING AND SIGNS. Unless expressly permitted by Lessor, no sign,
advertisement, notice, or other lettering shall be inscribed, painted, or
affixed on any part of the outside or inside of the Building, or otherwise
exhibited so as to be visible from outside the premises, except on the doors of
the leased premises, and then only of subject matter and in such color, size,
style, and material as shall conform to the specifications of Lessor. Lessor
reserves the right to remove all other signs or lettering, without notice to
Lessee, at the expense of Lessee. Any newspaper, magazine, or other advertising
done from the premises, or referring to the premises or the Building, which, in
the opinion of Lessor, is objectionable, shall be immediately discontinued upon
notice from Lessor.
BICYCLES AND ANIMALS. Unless expressly permitted by Lessor, no bicycle or
other vehicle, and no fish, bird, or animal shall be brought or permitted to be
in the Building or any part thereof.
CLOSING AND LOCKING DOORS AND WINDOWS. Unless expressly permitted by
Lessor, all doors to the premises are to be kept closed at all times except when
in actual use for entrance to or exit from the premises. Lessee shall be
responsible for the locking of doors and the closing of windows in and to the
premises. Lessee shall be responsible for any damage or loss resulting from
violation of this rule.
MACHINERY. Unless Lessor gives prior written consent in each and every
instance, Lessee shall not install or operate any steam or internal combustion
engine, boiler, machinery, refrigerating or heating device or air-conditioning
apparatus in or about the premises, or carry on any mechanical business therein.
All equipment of any electrical or mechanical nature shall be placed in settings
which absorb and prevent vibration, noise, or annoyance, or the spillage or
leakage of fluids, oils, or grease on the floors of the leased premises.
USE. Lessee shall not illegally sell or store therein any spirituous, malt,
or vinous Iiquors, or any narcotic drugs; shall not exhibit, sell, or offer for
sale on the premises or in the Building anything whatsoever except such as are
essentially connected with the stated use of the premises.
FURNITURE OR EQUIPMENT REMOVAL. Moving or delivery of furniture, trade
fixtures and equipment, and freight by or for Lessee shall be done at such times
and in such manner as may be required by Lessor. Lessee shall list with Lessor
any and all furniture, trade fixtures and equipment, and similar articles to be
removed from the Building, and the list must be approved at the office of the
Building before Building employees will permit any article to be removed. Lessor
reserves the right, but shall not be obligated, to inspect all articles being
moved in or out of the Building; and Lessor shall not be liable to Lessee or to
any other person for loss of, or damage to, any furniture, trade fixtures and
equipment, or other personal property from any cause.
UNSIGHTLY PLACEMENT OF EQUIPMENT. Unless expressly permitted by Lessor,
Lessee shall not place or allow anything to be against or near exterior windows,
the glass or corridor partitions, or doors of the premises which may diminish
the light in, or be unsightly, from halls, corridors, or the exterior of the
Building.
LOCKS. Unless expressly permitted by Lessor, no additional locks or similar
devices shall be attached to any door, and no keys other than those provided by
Lessor shall be made for any door. If more than two keys for one lock are
desired by Lessee, Lessor shall provide the same upon payment therefor by
Lessee; Lessee shall obtain keys from Lessor only and from no other source. Upon
termination of this Lease or of Lessee's possession, Lessee shall surrender all
keys to the premises and shall provide Lessor with the then-current combinations
for any combination locks or safes, cabinets, and vaults.
NOISES AND OTHER NUISANCES. Lessee shall not make or permit any noise or
odor that is objectionable to Lessor or to other occupants of the Building to
emanate from the premises, and shall not create or maintain a nuisance therein,
and shall not disturb, solicit, or canvass any occupant of the Building, and
shall not do any act tending to injure the reputation of the Building. Lessee
shall not install or operate any phonograph, musical instrument, radio or
television receiver or similar device in the Building without prior approval of
Lessor. The use thereof, if permitted, shall be subject to control by Lessor to
the end that others shall not be disturbed or annoyed.
SAFES OR HEAVY ARTICLES. Lessee shall not overload any floor or otherwise
impair the structural integrity of the Building. Lessor may, but shall not be
required to, direct the routing, time of movement, and placement of safes and
other heavy articles. Safes, furniture, and all large articles shall be brought
into the premises or removed therefrom at the Lessee's sole risk and
responsibility. Any damage done to the Building by reason of a safe or other
heavy article of Lessee being brought into, stored in, or removed from the
premises shall be repaired at Lessee's sole expense.
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SOLICITORS. Lessor reserves the right, but shall not be held obligated, to
exclude or eject from the Building any or all solicitors, canvassers or
peddlers, and any persons conducting themselves in such manner as, in the sole
judgment of Lessor, constitutes an annoyance to any of the tenants of the
Building or an interference with Lessor's operation of the Building, or who are
otherwise undesirable.
FLAMMABLE MATERIALS. No article of an extra hazardous nature and no
explosive shall be brought into the premises or into the Building. The storage
and use of all flammable and volatile materials and substances necessary in
Lessee's business operations shall be in conformity with applicable laws, rules,
and regulations of all duly-constituted public authorities.
LODGING. The premises hereby leased shall not be used for lodging or
sleeping purposes, and no cooking of food shall be done therein.
ADDITIONAL RULES. Lessor reserves the right to make such other and further
Rules and Regulations as in Lessor's judgment may, from time to time, be needful
or desirable for the safety, care, cleanliness, and efficient operation of the
Building, and for the preservation of good order therein.
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RIDER NUMBER ONE
THIS RIDER NUMBER ONE, COMPRISING PARAGRAPH 41 to 48, INCLUSIVE, IS ANNEXED TO
AND FORMS A PART OF THE LEASE AGREEMENT DATED AS OF THE _________ DAY OF
______________________ BETWEEN SUN LIFE OF CANADA, AS LESSOR, AND XXXXXX XXXX
GROUP, LTD AS LESSEE, COVERING SUITE 406 OF THE XXXXXX VILLAGE TOWER, 0000
XXXXXX XXXXXXX XXXXXX, X.X., XXXXXX, XX 00000.
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41. ANNUAL BASE RENT FOR SUITE 406:
a) Beginning October 1, 1996, Lessee shall pay to Lessor as rent for the
premises for year one the annual sum of Sixty Four Thousand Seven Hundred
Eighty Five and no/100 dollars ($64,785.00) payable in monthly installments
of Five Thousand Three Hundred Ninety Eight and 75/100 dollars ($5,398.75);
b) Beginning October 1, 1997, Lessee shall pay to Lessor as rent for the
premises for year two the annual sum of Sixty Seven Thousand Eight Hundred
Seventy and no/100 dollars ($67,870.00) payable in monthly installments of
Five Thousand Six Hundred Fifty Five and 83/100 dollars($5,655.83);
42. ANNUAL BASE RENT FOR SUITE 4408:
a) Beginning November 1, 1996, Lessee shall pay to Lessor as rent for the
premises for year one the annual sum of Nine Thousand Six Hundred and no/100
dollars ($9,600.00) payable in monthly installments of Eight Hundred and
nol100 dollars ($800.00).
b) Beginning October 1, 1997, Lessee shall pay to Lessor as rent for the
premises for year two the annual sum of Nine Thousand Six Hundred and no/100
dollars ($9,600.00) payable in monthly installments of Eight Hundred and
no/100 dollars ($800.00).
43. SPACE XXXXXXXXXXX - XXXXX 000: Lessor, at Lessor's sole expense, shall
provide the following improvements to suite 406:
a) Replace xxxxx cove base with xxxx cove base.
b) Paint entire suite with color selected by Lessee from building standard
selection.
c) Clean carpet in entire suite and repair "rolls", if possible, in three (3)
offices.
d) Replace damaged, bowed, missing or stained ceiling tile.
e) Provide door hardware and doors where missing.
f) Install electrical wall plates where missing.
g) Open three (3) offices into one (1) conference area in suite 407. Install two
(2) doors and frames into suite 406 and install demising wall separating the
conference area from the balance of suite
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407. Paint conference room, install new carpeting selection from building
standard selection book.
h) Complete construction of public corridor.
i) Lessor shall, at its expense, install ceiling terminations where missing.
j) Lessor shall relocate one (1) HVAC vent in reception area.
k) Lessor shall repair wall at window million in one office.
l) Lessor shall finish construction and level unfinished floor in the old suite
#409.
Lessee acknowledges that some of the above items will be completed after Lessee
has taken occupancy and will cooperate with Lessor and Lessor's contractors in
order to complete said improvements.
44. SPACE PREPARATION - SUITE 4408 (First Floor Retail): Lessee is responsible
for suite construction and all Xxxxxxx Twp. and Xxxxx County permits and
drawings. Lessor to approve final working drawings prior to commencement of
construction. Lessor, at Lessor's sole expense, shall sprinkle the entire space
and construct a wall to demise said premises. Lessor, at Lessor's sole expense
shall install a corridor wall from Lessee's space to rear existing entrance
door. Lessee and Lessee's architect and contractors will cooperate with Lessor
and Lessor's architect and contractors in scheduling Lessee's construction, to
allow for installation of fire suppression system and demising walls.
45. SUITE 4408 UTILITIES: Lessee shall pay to Lessor a seventy five percent
(75%) proration of the utilities for Suite 4408 (on a monthly basis) including
electric, gas, water and sewer.
46. RIGHT OF FIRST OFFER: Lessee shall have the right of first offer on vacant
contiguous fourth floor office space.
47. MAINTENANCE OF SUITE 4408 BY LESSEE: Lessor shall be under no obligation to
make repairs, alterations, or improvements in or to the premises except those
herein specifically agreed to be made or performed by Lessor.
All of the obligations of Lessee under this Paragraph 47 are in addition to
those obligations of Lessee set forth in Paragraph 10 or elsewhere in this
Lease.
Lessee, at Lessee's expense, shall keep and maintain the interior (including,
without limitation, the electrical; lighting, plumbing, heating, and any
air-conditioning or ventilating systems serving the premises, and any
installations made by Lessee which serve the premises, but which extend from
other portions of the Building, all door and window hardware and glass) of the
premises in good order, condition and repair.
In furtherance of, and not in limitation of, Lessee's obligation to keep and
maintain the premises in good order, condition and repair, Lessee agrees with
the Lessor that Lessee, at Lessee's expense:
a. will arrange for and provide all janitor, xxxxxx or cleaning
(including, without limitation, cleaning of interior windows and door
glass cleaning, all on a schedule reasonably satisfactory to the
Lessor) services necessary for the premises;
2
b. will keep the premises in a clean, slightly and sanitary condition,
complying with all applicable requirements of Xxxxxxx Twp. and/or
Xxxxx County, Ohio, and through Lessee's own employees or by means of
a competent exterminating service, free from vermin and rodents;
c. will keep open and clean all grease traps and all sewer and/or
discharge lines from the premises to the building primary sewer lines;
d. will permit Lessor, Lessor's Agent, contractors and employees access
to the premises at all reasonable times for the making of inspections,
repairs for which Lessor is responsible under this lease, alteration,
or improvements or additions of, or to, the Building or the premises;
e. will receive those shipments of food merchandise and any other items
being delivered through the Building's rear receiving area.
Lessee shall permit no waste, damage, or injury to the premises, not do, or
permit to be done, on the premises any act or thing which will invalidate or be
in conflict with any fire insurance policies or increase the rate for insurance
covering the Building, or which shall, or might, subject Lessor to any liability
or responsibility for injury to any person or persons, or to property, by reason
of any business or operation being carried on by Lessee in the premises.
48. EXTENSION PRIVILEGE OF LESSEE: Provided that Lessee is not then in default
under this Lease Agreement, Lessor hereby grants to Lessee the privilege of
extending, subject to the provisions of this paragraph, the term of this Lease
Agreement for two periods of one (1) year each, commencing on the first day
following the Lease Termination Date and ending twelve (12) months thereafter
(which said one {1} year period is hereinafter called "said extended term"),
for, upon and under all of the covenants, (excepting those relating to the
amount of Annual Base Rent to be paid by Lessee), agreements and conditions in
this Lease contained; and the amount of Annual Base Rent be paid by Lessee
during said extended terms shall be determined in accordance with the provisions
of subparagraphs (c) and (d) below:
a. Lessee shall exercise the extension privilege granted by subparagraph
(a) above by giving to Lessor not later than six (6) months prior to
the Lease Termination Date written notice of Lessee's election so to
extend the term of the Lease.
b. If Lessee does not notify Lessor, in accordance with subparagraph (a)
above, then Lessor shall be under no obligation to negotiate with
Lessee with respect to said extension, and Lessor, without liability
to Lessee, may lease said premises to any person, firm or corporation
for a term to commence after the Lease Termination Date. Furthermore,
Lessor shall be under no obligation, as outlined in Paragraph 17e
above, to provide Lessee prior notice for the purposes of showing or
exhibiting said space to prospects.
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c. During the first extended term for suite 406, Lessee shall pay to
lessor the annual sum of Seventy One Thousand Three Hundred Eighty and
50/100 dollars ($71,380.50) per year payable in equal monthly
installments of Five Thousand Nine Hundred Forty Eight and 38/100
dollars ($5,948.38).
During the first extended term for suite 4408, Lessee shall pay to
Lessor the annual sum of Nine Thousand Six Hundred and no/100 Dollars
($9,600.00), payable in equal monthly installments of Eight Hundred
and no/100 dollars ($800.00).
d. During the second extended term for suite 406, Lessee shall pay to
Lessor the annual sum of Seventy Four Thousand Four Hundred Eighty
Four and no/lO0 dollars ($74,040.00) payable in equal monthly
installments of Six Thousand Two Hundred seven and no/100 dollars
($6,170.00).
During the second extended term for suite 4408, Lessee shall pay to
Lessor the annual sum of Nine Thousand Six Hundred and no/100 dollars
($9,600.00), payable in equal monthly installments of Eight Hundred
and no/100 dollars ($800.00).
4
NOTICE TO PROSPECTIVE REAL ESTATE PURCHASERS/TENANTS
In Ohio, real estate licensees are required to disclose which party they
represent in a real estate transaction. Under Ohio law, a real estate licensee
is considered to be an agent of the owner of real estate unless there is an
agreement to the contrary and that agreement is disclosed to all parties.
Some of the duties of the licensee, as the agent of the owner, are to:
Treat all parties to a transaction honestly `
Offer the property without regard to race, color, religion, sex, ancestry,
national origin or handicap
Promote the best interest of the owner
Obtain the best price for the owner
Fully disclose to the owner all facts which might affect or influence a
decision
Present all offers to the owner
As a buyer, if you choose to have a real estate broker represent you as your
agent, you should enter into a written contract that clearly establishes the
obligations of both you and your agent and specifies how your agent will be
compensated.
Under Ohio law, the disclosure statement below must be submitted to the
prospective purchaser/tenant in each transaction. This form has been approved by
the Ohio Real Estate Commission for use by Ohio real estate licensees. Please
sign below.
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AGENCY DISCL0SURE STATEMENT
The listing broker and all agents associated with the listing broker
represent the owner.
The X.X. XXXXXX COMMERCIAL REAL ESTATE and XXXXX XXXXX represent (please
(Selling Broker) (Selling Agent)
(check one): the purchaser/tenant [X] ; the owner[ ].
If a broker/agent is representing both the purchaser/tenant and the owner as
a dual agent, he/she must attach a copy of the agreement signed by the
purchaser/tenant and owner acknowledging their agreement to this arrangement.
By signing below, the parties confirm that they have received, read and
understood the information in this Agency Disclosure Form and that this form
was provided to them before signing a contract to purchase/lease real estate.
/s/ ILLEGIBLE 9/9/96 /s/ ILLEGIBLE 9/23/96
------------------------------------ ------------------------------------
Purchaser/Tenant Date Owner Date
/s/ ILLEGIBLE 9/9/96
------------------------------------ ------------------------------------
Purchaser/Tenant Date Owner Date
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Any questions regarding the role or responsibilities of real estate brokers or
agents in Ohio can be directed to an attorney or to:
STATE OF OHIO
DEPARTMENT OF COMMERCE
DIVISION OF REAL ESTATE
Telephone: 614/000-0000
