LEASE
EXHIBIT
10.37
between
OTR
and
ANATRACE,
INC.
WAREHOUSE
THIS
LEASE ("Lease"), made and entered into this 14th day of February, 2001, between
OTR, an
Ohio general partnership, whose address is 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, acting as the duly authorized nominee of The State Teachers Retirement
System of Ohio ("XXXXX"), whose address is 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000 ("Landlord"), and ANATRACE, INC., an Ohio corporation, whose
address is 000 Xxxxxx Xxxxx, Xxxxxx, Xxxx 43 53 7-1685 ("Tenant").
W I T N E S S E T H:
In
consideration of the rent and other sums to be paid and of the covenants
andagreements
to be kept and performed by Tenant and subject to all covenants, conditions,
easements,
restrictions and agreements of record, Landlord hereby leases to Tenant, and
Tenant hereby
rents from Landlord, the interior of those certain premises containing
approximately twelve
thousand one hundred seventy-six (12,176) square feet of floor area, which
premises are depicted
as Units 6 and 6A and outlined in red on the plot plan attached hereto as Exhibit A and
incorporated
herein by reference (the "Premises"), and which Premises are located in the
building
(the "Building") situated on land (collectively, the "Property") more
particularly described
on Exhibit B
attached hereto and incorporated herein. During the term of this Lease, Landlord
grants to Tenant and Tenant's customers and invitees a nonexclusive license to
use, in common with all others to whom Landlord has or may hereafter grant a
license to use, the common areas located on the Property. The term of 'this
Lease shall be for ten (10) years, beginning on the Commencement Date
(hereinafter defined), and ending on the last day of the tenth (10th) Lease Year
(hereinafter defined) unless sooner terminated as provided for in this Lease..
The Premises do not include the use of the roof (except for the repair or
replacement of any heating or air conditioning equipment thereon serving the
Premises) or extend beyond the exterior faces of the exterior walls of the
Building.
The term
"Commencement Date" shall mean the date Landlord substantially completes
Landlord's Work as set forth on Exhibit C attached
hereto and made a part hereof Upon the request of either party, the other shall
confirm in writing the Commencement Date once it has been determined. The term
"Lease Year" shall mean the twelve (12) month period commencing on the
Commencement Date, and each successive period of twelve (12) months thereafter;
provided, however, that if the Commencement Date shall not be the first (1st)
day of a calendar month, the first (1st) Lease Year shall include the period of
time from the Commencement Date until the first (l st) day of the next following
month.
1. Rent. Tenant shall
pay rent without deduction, set-off, notice or demand to Landlord
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or at such other place as
Landlord may, in
writing, from time to time require, during the term hereof as
follows:
(a) Base
Rent.
(i) During
the first (1st) through the fifth (5th) Lease Years, Tenant shall pay
to Landlord as base rent (the "Base Rent") an annual sum of One Hundred
Thirty-Nine Thousand One Hundred Seventy One and 68/100 Dollars ($139,171.68)
payable in equal monthly installments of Eleven Thousand Five Hundred
Ninety-Seven and 641100 ($11,597.64), payable on or before the first day of each
and every month commencing with the Commencement Date; and
(ii) During
the sixth (6th) through the tenth (10th) Lease Years, Tenant shall pay
to Landlord as Base Rent an annual sum of One Hundred Fifty-Six Thousand Three
Hundred Thirty-Nine and 89/100 Dollars ($156,339.89), payable in equal monthly
installments of Thirteen Thousand Twenty-Eight and 32/100 Dollars ($13,028.32)
payable on or before the first day of each and every month.
(iii) If
the cost of Landlord's Contribution, as defined in Exhibit C hereto,
is less than Two Hundred Fifteen Thousand Dollars ($215,000.00), Tenant shall
receive a credit
equal to the difference between Two Hundred Fifteen Thousand Dollars
($215,000.00) and Landlord's
Contribution which credit shall be used by Tenant to satisfy the first
installment(s) of Base Rent
due Landlord.
(b) Additional
Rent.
(i) In
addition to Base Rent, Tenant agrees to pay Landlord, at the times
hereinafter set forth, without deduction, set-off, notice, demand or abatement,
the following
additional charges ("Additional Rent"), the nonpayment of which shall be subject
to all
provisions of this Lease and of law as to default in the payment of
money:
(A) Common Area Charge.
Tenant's Prorata Share (hereinafter defined)
of Landlord's total annual costs of operating, maintaining and supervising the
Common Areas
(hereinafter defined) of the Property which includes, but is not limited to,
removing snow, ice,
trash, refuse, rubbish and garbage; cleaning, gardening and landscaping the
Common Areas; providing
for sanitary control of and for the Common Areas; carrying insurance for the
Common Areas
(including, without limitation, public liability, property damage, automobile,
workmen's compensation
covering personnel, sign and other insurance in limits selected by Landlord);
installing,
acquiring or repairing security measures, including security personnel; paying
all management
fees; repairing and replacing the paving, curbs, walkways, electric power lines,
light
poles, bulbs, drainage and equipment used in the Common Areas; providing for
line painting;
attending the parking areas; paying all governmental charges, surcharges, fees,
or taxes on the
parking areas, parking spaces or on cars parking therein; paying for the cost of
all utilities used or
consumed in the Common Areas; repairing and/or replacing of the water lines,
sanitary sewer
lines and storm sewer lines serving the Property; renting or purchasing of
machinery, equipment
and tools used in such maintenance, inspection and repair of facilities; paying
the cost of signs,
sign maintenance and sound systems; paying the personal property and similar
taxes on Common
Area equipment, machinery, tools, supplies and other personal property and
facilities; paying
the cost of personnel to implement such services and similar
functions.
(B) Other Mechanical
System's
Maintenance, Repair. and Replacement. Tenant's
Prorata Share of Landlord's total annual cost of maintaining, repairing and
replacing the mechanical systems, including, but not limited to, electrical,
plumbing and sewer systems, which serve the Property and not otherwise the
responsibility of Tenant as set forth in Paragraph 4(a).
(C) Water and Sewer
Charges. Tenant's Prorata Share of all water and
sewer charges (if not separately metered) for water used or consumed on the
Property and the sewerage generated by the Property.
(D) Taxes. Tenant's
Prorata Share of the annual real property taxes and
assessments, both general and special, levied against the Property.
(E) Taxes on Rent. The
amount of any tax or excise on rent or on any
service or services provided by Landlord under this Lease (except income, estate
or similar
taxes) which is assessed or imposed by any governmental authority upon Landlord
or upon
Tenant but paid by Landlord and which is so assessed, imposed or paid as a
result of Landlord's
ownership of the Property or of this Lease or the rentals accruing under this
Lease, any tax
which may be in lieu of, as a substitute for or in addition to real property
taxes and assessments
or any tax or surcharge of any kind or nature imposed upon the Property or any
portion
thereof, it being the intention of the parties hereto that the rentals to be
paid hereunder shall be
paid to Landlord absolutely without deduction or set-off of any nature
whatsoever.
(F) Insurance. Tenant's
Prorata Share of Landlord's annual premiums
for casualty insurance covering the buildings on the Property (including,
without limitation, fire and extended coverage insurance and loss of rents
coverage insurance) and Landlord's general liability insurance covering the
Property, exclusive of Common Areas which is included within the Common Area
charges set forth in Item (A) of this Paragraph.
(ii) Payment. The
foregoing amounts may be estimated by Landlord, in which
event Landlord shall notify Tenant of Landlord's estimate. Tenant shall pay said
estimate
in advance, on the first day of each calendar month, with Tenant's Base Rent.
When Landlord
has calculated the exact amount actually payable by Tenant for the foregoing
amounts, Landlord
shall notify Tenant of said exact amount actually payable by Tenant for the
foregoing amounts.
Any deficiency in payment by Tenant for any item shall be paid by Tenant to
Landlord within
fifteen (15) days after receipt of the notice in respect of the item for which a
deficiency exists.
Any surplus in respect to any item paid by Tenant during the preceding calendar
year shall be
credited against the next ensuing installments of Landlord's estimate of
Tenant's share of that
item for the next year. The amounts payable by Tenant for the first Lease Year
and last Lease
Year of this Lease shall be prorated for the parts of such first Lease Year and
last Lease Year that
Tenant is obligated to pay annual Base Rent under this Lease.
(iii) Interest, Late Payment
Charges. Any payment due from Tenant to Landlord
not paid upon the date herein specified to be paid shall bear interest at the
lesser of eighteen
percent (18%) per annum or the maximum rate of interest permitted by law (the
"Default
Rate") from the date of such payment is due to the date of actual payment. In
addition,
Tenant
shall pay to Landlord a late payment charge equal to five percent (5%) of any
amount due if not
paid within two (2) days from the date required to be paid hereunder.
Notwithstanding the interest
charge and/or late payment charge, nonpayment of any Base Rent, Additional Rent,
interest
or late payment charge or other monies due under this Lease hereunder shall
constitute a default
of this Lease if not paid within five (5) days of written notice of such
nonpayment.
(iv) Definitions. The term
"Common Areas" means the parking areas, driveways,
aisles, sidewalks and other common and service areas on the Property with the
improvements therein, whether or not shown on Exhibit A. Landlord reserves the
right to change the Common Areas from time to time in its sole discretion.
The term
"Prorata Share" shall mean the ratio or percentage which the number of
leasable square feet in the Premises bears to the total number of leasable
square feet on the Property-
(v) Additional Sums.
Tenant shall pay to Landlord all additional sums,
charges or amounts of whatever nature to be paid by Tenant to Landlord in
accordance with the provisions of this Lease, whether or not such sums, charges
or amounts are otherwise referred to as additional rent or rental.
(c) Obligations Not
Affected. Except as otherwise expressly provided herein, this
Lease shall not terminate, nor shall Tenant have any right to terminate this
Lease or be entitled
to the abatement of any rent or any reduction thereof nor shall the obligations
hereunder of Tenant
be otherwise affected, by reason of any damage to or destruction of all or any
part of the
Premises or of the Property from whatever cause, the taking of the Premises or
of the Property
or any portion thereof by condemnation or otherwise, the prohibition, limitation
or restriction
of Tenant's use of the Premises, or interference with such use by any private
person or corporation,
or by reason of any eviction by paramount title or otherwise, or Tenant's
acquisition of
ownership of the Premises, or for any other cause whether similar or dissimilar
to the foregoing,
any present or future law to the contrary notwithstanding, it being the
intention of the parties
hereto that the Base Rent, Additional Rent and all other rents and charges
payable hereunder
to or on behalf of Landlord, shall continue to be payable in all events and the
obligations
of Tenant hereunder shall continue unaffected, unless the requirement to pay or
perform
the same shall be suspended or terminated pursuant to an express provision of
this Lease.
(d) Partial Month.
Monthly installments of Base Rent and Additional Rent shall be
prorated based on a thirty (30) day month for any partial month occurring during
the term
hereof
2. Utility
Payments.
(a) Tenant
shall promptly pay for utilities rendered or furnished to the Premises
from the date Landlord delivers possession of the Premises to Tenant and
continuing throughout
the term of this Lease, including water and sewerage charges (if separately
metered), electricity,
telephone and gas ("Utility Expenses"). Landlord shall not be liable for any
permanent
or temporary interruption of utility services nor shall any of Tenant's
obligations under this Lease be affected by any such interruption of utility
services.
(b) Tenant
shall indemnify and hold Landlord harmless from and against any and all
costs, liabilities, suits, penalties, claims and demands, including attorneys'
fees, as a result of a lien being imposed upon the Premises by virtue of
Tenant's failure to pay all or any part of Utility Expenses.
3. Use of Premises and
Conditions on Use.
(a) Tenant
shall use the Premises for chemical research, laboratories and office
use, and related production, and for no other uses or purposes whatsoever.
Tenant shall procure, at its sole cost and expense, any permits and/or licenses
required for the transaction of Tenant's business in the
Premises.
(b) Tenant
will not conduct any auction, fire, bankruptcy or going out of business
sale in the Premises without Landlord's prior written consent.
4. Repairs and Maintenance of
Premises.
(a) Tenant,
at Tenant's expense, shall make all repairs and replacements to keep and
maintain the interior of the Premises in good condition and repair, including
but not limited to, the electrical and other mechanical installations serving
the Premises, the heating, ventilating and air conditioning systems serving the
Premises, the plumbing and sewer systems located in and serving the Premises,
the exterior and interior portions of all doors including door checks and
hardware, any security gates and ceiling tiles. Tenant shall promptly replace
all broken and cracked glass. All items that Tenant shall replace during the
term of this Lease shall be of equal or better quality, type and style than the
item being replaced. Tenant shall not permit any waste, damage or injury to the
Premises. Tenant shall further keep the Premises clean, attractive and free of
rubbish, rubble and debris.
(b) Except
as otherwise provided in this Lease, Landlord will, within a reasonable
time after receipt from Tenant of written notice of the necessity of such
repair, keep the roof,
structural portions and exterior of the Premises in good and tenantable
condition and repair
during the term of this Lease. Notwithstanding the above, Landlord shall make
all repairs and
replacements to any portion of the Premises or of the building in which Premises
are located
necessary
by reason of (a) the acts, neglect, fault or default of Tenant, or Tenant's
agents, employees,
contractors or customers, (b) the operations of Tenant or the storage of
Tenant's merchandise
within the Premises, (c) acts of trespassers, thieves or other unauthorized
persons who enter
or attempt to enter the Premises, or the building in which the Premises are
located, or (d)
structural and exterior work done or installed by Tenant; and Tenant shall
reimburse Landlord for such sums expended for such repairs and replacements,
such sums being additional rental hereunder.
Further,
and notwithstanding anything in this Lease to the contrary, Tenant, not
Landlord,
shall make all repairs, alterations and replacements to the property that
Landlord is
required
to maintain which may be required as the result of repairs, alterations, other
improvements or installations made by Tenant or any assignee, subtenant or
concessionaire of Tenant or the agents of any of them.
(c) On
default of Tenant in making any repairs or replacements required to be
made by
Tenant hereunder or in maintaining the Premises, Landlord may, but shall not be
required to, make such repairs or replacements or maintain the Premises for
Tenant's account, and the expense thereof shall constitute and be collectible as
additional rent, payable by Tenant on demand, or, at Landlord's election,
together with the next installment of rent due hereunder, and all sums not paid
when due shall bear interest at the Default Rate from the date of payment by
Landlord until paid by Tenant.
5. Requirements of Public
Authority.
(a) During
the term of this Lease, Tenant shall, at its own cost and expense, promptly
observe and comply with all present and future laws, ordinances, requirements,
orders, directives, rules and regulations of federal, state, county, town,
village and city governments and of all other governmental authorities affecting
the Premises or any part thereof whether the same are in force at the
commencement of the term of this Lease or may in the future be passed, enacted
or directed, and Tenant shall pay all costs, expenses, liabilities, losses,
damages, fines, penalties, claims and demands that may in any manner arise out
of or be imposed because of the failure of Tenant to comply with the covenants
of this Paragraph S.
(b) Tenant
shall have the right to contest by appropriate legal proceedings diligently
conducted in good faith, in the name of Tenant, or Landlord (if legally
required), or both (if
legally required), without cost or expense to Landlord, the validity or
application of any law,
ordinance, rule, regulation or requirement of the nature referred to in
subparagraph (a) above
and, if by the terms of any such law, ordinance, order, rule, regulation or
requirement, compliance
therewith may legally be delayed pending the prosecution of any such proceeding,
Tenant
may delay compliance therewith until the final determination of such
proceeding.
(c) Landlord
agrees to execute and deliver any appropriate papers or other instruments
which may be necessary or proper to permit Tenant so to contest the validity or
application of any such law, ordinance, order, rule, regulation or requirement
and to fully cooperate with Tenant in such contest.
6. Nuisance and Care.
Tenant shall use and occupy the Premises so that no other occupant
of any adjoining property will be unreasonably disturbed and shall create no
nuisance in, upon
or about the Premises. Tenant shall take good care of the Premises and of the
fixtures and
appurtenances thereto, and all alterations, additions and improvements thereto.
Tenant will not make
or permit to be made any use of the Premises or any part thereof which would
violate any of
the covenants, agreements, terms, provisions and conditions of this Lease or
which directly
or indirectly is forbidden by public law, ordinance or regulation of any
governmental or public
authority (including zoning ordinances) or which may be dangerous to life, limb
or property,
or which will suffer or permit the Premises or any part thereof to be used in
any manner
which, in the judgment of Landlord, shall in any way impair or tend to impair
the
character,
reputation or appearance of the Premises or the Property, or which will impair
or interfere with any of the services performed by Landlord for the
Premises.
7. Signs. Tenant may
erect (or permit or cause to be erected) upon the exterior of the
Premises or upon the Property only such signs as shall be (a) in accordance with
any restriction
of record or applicable regulations of any governmental agency having
jurisdiction and (b)
approved by Landlord, which approval shall not be unreasonably withheld or
delayed. Tenant
shall erect such signs in such manner as to cause no permanent damage to the
Premises or the
Property and shall maintain such signs in a good, safe and sightly condition at
all times. At the end
of the term, Tenant shall remove such signs and repair all damage caused by the
installation,
maintenance and/or removal of such signs to the reasonable satisfaction of
Landlord,
8. Alterations. Additions and
Improvements. Tenant shall make no alterations, additions,
or improvements in or to the Premises without the express prior written consent
of Landlord,
which consent shall not be unreasonably withheld or delayed. If a building
permit is required
in connection with any alterations, additions, or improvements proposed by
Tenant, Tenant
shall furnish Landlord for its approval (which approval shall not be
unreasonably withheld
or delayed) detailed plans and specifications therefor. All additions,
alterations and improvements
made by Tenant hereunder shall be installed in a good and workmanlike manner,
using
only materials of the same or higher quality as those originally installed in
the Premises. Whether
Tenant furnishes Landlord with the foregoing or not, Tenant hereby agrees to
indemnify,
defend and hold harmless Landlord from and against any and all liabilities,
costs and expenses
of every kind and description, including attorneys' fees, which may arise out of
or be in any
manner connected with said alterations, additions, or improvements. Tenant shall
pay the cost of
all such alterations, additions or improvements. Upon completion of any such
alterations, additions,
or improvements, Tenant shall furnish Landlord with contractors' affidavits and
full and final
waivers of lien, together with receipted bills covering all labor and materials
expended and used,
in full compliance with the applicable mechanics' lien law. \
Notice is
hereby given that Landlord shall not be liable for any labor or materials
furnished
or to be furnished to Tenant upon credit, and that no mechanic's or other lien
for any such
labor or material shall attach to or affect the reversion or other estate or
interest of Landlord in and to
the Premises. All alterations, additions or improvements shall comply with all
requirements
of all insurance carriers providing insurance coverage on the Premises and with
all laws,
rules, ordinances and regulations of any lawful authority. Tenant shall permit
Landlord to observe
construction operations and to inspect any alterations, additions, or
improvements if Landlord
requests the right to do so (but Landlord shall have no obligation to make such
request).
All alterations, additions, or improvements, whether temporary or permanent,
including
hardware, non-trade fixtures and wall and floor coverings, but excluding
removable trade
fixtures, in or upon the Premises, whether placed there by Landlord or Tenant,
shall become
Landlord's property and shall remain with the Premises at the termination of
this Lease, whether
by lapse of time or otherwise, without compensation, allowance of credit to
Tenant; provided,
however, that notwithstanding the foregoing, Landlord may request that any or
all of said
alterations, additions or improvements in or upon the Premises made by Tenant
shall be removed by Tenant at the
termination of this Lease. If Landlord requests such removal, Tenant
shall
remove the same prior to the end of the term and shall repair all damage to the
Premises
caused by
such removal; provided, however, that in removing any such alterations,
additions, or improvements,
Tenant shall not be required to expend more than the Cost Cap (hereinafter
defined),
Landlord hereby agreeing to be responsible for removal costs in excess of the
Cost Cap. If
Tenant does not remove any alterations, additions or improvements when requested
by Landlord
to do so, Landlord may remove the same and repair all damage caused thereby, and
Tenant
shall pay to Landlord the cost of such removal and repair, together with
interest at the Default
Rate, immediately upon demand therefor by Landlord. Tenant's obligation to
observe or perform
this covenant shall survive the expiration or termination of this Lease.
The Cost
Cap shall be the sum determined by multiplying Twenty-Five Thousand Dollars
($25,000)
by a fraction, the numerator of which is the Current Index and the denominator
is the Base
Index. The "Base Index" shall be the level of the Index for the month of
December 2000, and the
"Current Index" shall be the level of the Index for the month immediately
preceding the month
during which Tenant's alterations, additions, or improvements are required to be
removed.
The term "Index" shall mean the Consumer Price Index for Urban Consumers, U. S.
All
Cities Average, published by the United States Department of Labor (Base Year
1982-1984 = 100),
or any successor index thereto as hereinafter provided. If publication of the
Index is discontinued,
or if the basis of calculating the Index is materially changed, then the parties
shall accept
comparable statistics on the cost of living for all cities, as they shall be
computed and published
by an agency of the United States or by a responsible financial periodical or
recognized
authority to be selected by the parties. In the event of (i) use of comparable
statistics in place
of the Index or (ii) publication of the Index at other than monthly intervals,
there shall be made in
the method of calculation such revisions as the circumstances may require to
carry out the
intent of this Paragraph 8.
9. Liability for Personal
Injury or Property Damage.
(a) Landlord
shall not be liable for, and Tenant hereby waives all claims for, any and
all damage or loss to fixtures, equipment, merchandise or other property of
Tenant and of
Tenant's servants, agents, employees, contractors, suppliers, invitees, patrons
and guests, in, upon or
about the Premises, and/or injury or death to any person, occurring in, upon or
about the Premises
resulting from any cause whatsoever (except for any intentional act of
Landlord), including,
but not limited to, water, snow, frost, ice, explosion, falling plaster, fire or
gas, smoke or other
fumes, or by reason of the leaking, breaking, backing up or other malfunction of
any lines,
wires, pipes, tanks, boilers, lifts or any other appurtenances, regardless by
whom installed or
maintained (Tenant hereby expressly assuming all responsibility for the safety
and security of the
person and property of Tenant, and of Tenant's servants, agents, employees,
contractors, suppliers,
invitees, patrons and guests, while in, upon or about the
Premises).
(b) Tenant
covenants and agrees that it will protect, indemnify and save and keep
Landlord, its agents, servants, employees, officers, directors, and partners
forever harmless against
and from any penalty, damages, charges or costs imposed or resulting from any
violation of any
law, order of governmental agency or ordinance, whether occasioned by the
neglect of Tenant or
those holding under Tenant, and that Tenant will at all times protect, indemnify
and save and
keep harmless Landlord, its agents, servants, employees, officers and directors
against and from
all claims, losses, costs, damages or expenses, including attorneys' fees,
arising out of
or from
any accident or other occurrence on or about the Premises causing injury to any
person or
property whomsoever or whatsoever, and that Tenant will protect, indemnify, save
and keep harmless
Landlord, its agents, servants, employees, officers, directors and partners
against and from any
and all claims, losses, costs, damages or expenses, including attorneys' fees,
arising out of any
failure of Tenant in any respect to comply with or perform all the requirements
and provisions
of this Lease or arising out of any use of the Premises or the Property by
Tenant or any one
claiming by, through or under Tenant.
10. Liability and Casualty
Insurance.
(a) Tenant
agrees that, at its own cost and expense, it will procure and continue
in force, in the names of Landlord, Landlord's mortgagee(s) and Tenant, as their
interests
may appear, commercial general liability insurance coverage against injuries to
persons occurring
in, upon or about the Premises, including all damage from signs, glass, awnings,
fixtures
or other appurtenances now or hereafter erected on the Premises or the Property
during the term
of this Lease, such insurance at all times to be in an amount of not less than
Two Million
Dollars ($2,000,000.00) per occurrence, and not less than Two Million Dollars
($2,000,000.00)
aggregate coverage per one (1) accident or disaster, and Two Million Dollars
($2,000,000.00)
for injury to property. Such insurance shall be written with a 'company or companies
authorized to engage in the business of general liability insurance in the state
in which the
Premises are located, and there shall be delivered to Landlord customary
insurance certification
evidencing such paid-up insurance and copies of the policies. Such insurance
shall further
provide that the same may not be canceled, terminated or modified unless the
insurer gives
Landlord and Landlord's mortgagee(s) at least thirty (30) days prior written
notice thereof.
(b) Tenant
shall carry and pay for, for the account of Landlord during the entire
term of this Lease, and any renewals and extensions thereof, the following types
of insurance:
(i) Fire,
extended coverage, vandalism and malicious mischief, and sprinkler
damage and all-risk insurance coverage on all personal property, furnishings,
furniture, trade
fixtures, contents and merchandise for their full insurable value on a
replacement cost basis.
(ii) Workers'
compensation or similar insurance, if and to the extent required
by law and in form and amounts required by law.
(iii) Tenant
agrees to pay to Landlord any increase in each of Landlord's
insurance policies resulting from Tenant's particular use or occupancy of the
Premises.
(c) Landlord
shall maintain in force, at all times during the term of this Lease,
a policy
or policies of fire insurance to the extent of at least eighty percent (80%) of
the insurable value of
the Building.
11. Condition of
Premises. Except as otherwise agreed to in writing, Tenant's taking
possession
of the Premises shall be conclusive evidence as against Tenant that the Premises
were in good
order and satisfactory condition when Tenant took possession. No promise of
Landlord to alter,
remodel or improve the Premises and no representation respecting the condition
of the Premises
has been made by Landlord to Tenant, except as expressly set forth in Exhibit C.
12. Entrance and
Inspection. Upon reasonable notice from Landlord (except in the
event of
emergency, in which case no notice shall be required), Tenant shall permit
Landlord and Landlord's
authorized servants, agents, employees and contractors to enter the Premises and
any buildings
or other improvements now or hereafter located on and forming a part of the
Premises, at all
reasonable times for the purpose of examining the Premises to verify Tenant's
compliance with all
of the terms, covenants, obligations and conditions of this Lease, and for the
purpose of exercising
any rights with respect to the Premises which Landlord may exercise in the event
of default
by Tenant.
13. Prohibition on
Assignment.
(a) Tenant
shall not transfer, encumber, pledge, mortgage or assign this Lease or sublet
the Premises, in whole or in part, or permit the same to be occupied or used by
any other
person or entity without receiving Landlord's prior written consent, which
consent shall not be
unreasonably withheld. Landlord acknowledges that any proposed assignment of
this Lease or
sublease of the Premises may entail a change in the permitted use of the
Premises, and Landlord
shall not unreasonably withhold its consent to any such change in use. A
transfer by operation
of law, merger, or consolidation, or a change of more than forty-nine percent
(49%) in ownership
of the voting stock of Tenant or any direct or indirect parent of Tenant, shall
be deemed an
assignment for purposes of this Paragraph 13. Any purported transfer,
encumbrance, pledge,
mortgage, assignment or subletting not in compliance herewith shall be void and
of no force or
effect. Any transfer, encumbrance, pledge, mortgage, assignment, subletting or
other transfer,
even with the consent of Landlord, shall not relieve Tenant from its primary
liability for the
payment of rent and other charges or from its primary obligation to keep and be
bound by the terms,
conditions and covenants of this Lease. No consent of Landlord to a particular
assignment
or subletting shall be deemed a consent to further assignments or
subletting.
(b) Upon
the occurrence of an event of "default" as set forth in Paragraph 18
hereof,
if all or any part of the Premises are then assigned, sublet, transferred or
occupied by someone
other than Tenant, Landlord, in addition to any other remedies provided by this
Lease or
provided by law, may, at Landlord's option, collect directly from the assignee,
subtenant, transferee
or occupant, all rents becoming due to Tenant by reason of the assignment,
sublease, transfer
or occupancy. Any
collection directly by Landlord
from the assignee or subtenant shall not be
construed to constitute a novation or release of Tenant from the performance of
its obligations
under this Lease.
(c) In
the event Tenant sublets all or a portion of the Premises for an amount
in excess
of the Base Rent set forth in Paragraph I of this Lease, Tenant shall pay to
Landlord, as additional
rent, fifty percent (50%) of such excess received by Tenant. Any sublease shall
contain a
provision whereby the subtenant agrees to comply with and be bound by all of
the
terms,
covenants, conditions, provisions and agreements of this Lease to the extent of
the space sublet, and Tenant shall deliver to Landlord promptly after execution,
an executed copy of each sublease and an agreement of compliance by each such
subtenant. Any sublease shall also contain a provision that, in the event of
default by Tenant hereunder and a termination of this Lease by Landlord, such
subtenant shall, at Landlord's option, attorn to Landlord as if Landlord were
the lessor under the sublease.
14. Mechanic's
Liens.
(a) If,
because of any act or omission of Tenant, any mechanic's lien or other
lien,
charge or order for the payment of money shall be filed against any portion of
the Premises, Tenant shall, at its own cost and expense, cause the same to be
discharged of record or bonded within thirty (30) days of the filing thereof
unless Tenant shall contest the validity of such lien by appropriate legal
proceedings diligently conducted in good faith and without expense to Landlord;
and Tenant shall indemnify, defend and save harmless Landlord against and from
all costs, liabilities, suits, penalties, claims and demands on account
thereof.
(b) If
Tenant shall fail to cause such liens to be discharged of record or bonded
within the aforesaid thirty (30) day period, then Landlord shall have the right
to cause the same to be discharged. All amounts paid by Landlord to cause such
liens to be discharged, together with interest thereon at the Default Rate,
shall constitute additional rent payable by Tenant to Landlord.
15. Estoppel
Certificates. Tenant shall, within ten (10) days after written request of
Landlord,
execute, acknowledge and deliver to Landlord or to Landlord's mortgagee,
proposed mortgagee,
land lessor or proposed purchaser of the Premises, the Property, or any part
thereof any
estoppel certificates requested by Landlord from time to time, it being intended
that any such statement
delivered pursuant to this Paragraph 15 may be relied upon by any prospective
purchaser,
mortgagee or assignee of the fee of the Property. Such estoppel certificates
shall state that this
Lease is in full force and effect and whether any changes may have been made
thereto; that the
term of the Lease has commenced and that full rental is accruing; that there are
no defaults
by Landlord, and if there are, the nature of such defaults; that possession has
been assumed
and that all improvements to be provided by Landlord have been completed; the
actual commencement
date and expiration date of this Lease; that rent has not been paid more than
thirty
(30) days in advance; that there are no liens, charges or offsets against rental
due or to become
due and that the address shown on such estoppel certificate is accurate; and
shall set forth
such other matters as to which Landlord reasonably may request; provided,
however, that Tenant
may make such modifications to such estoppel certificates as may be necessary to
make such
certificates true and accurate-
16. Holding Over. Except
as set forth in Paragraph 41 hereof, Tenant shall have no privilege
of renewal at the expiration of the original term of this Lease, and any holding
over after the
expiration of the original term or option term shall, at Landlord's option, be
from month to month
at the monthly rental rate in effect immediately prior to the termination of
this Lease multiplied
by one and one-half (1-1/2) for each month or portion thereof that Tenant
remains in possession,
and no acceptance of rent by, or other act or statement whatsoever on the part
of
Landlord,
or of any agent or employee of Landlord, in the absence of a writing signed by
Landlord, shall be construed as an extension or as a consent for further
occupancy. Tenant shall indemnify, defend, and hold harmless Landlord for all
damages, consequential as well as direct, sustained by reason of Tenant's
retention of possession.
17. Condemnation.
(a) If
all or substantially all of the Premises or of the Property shall be taken
for any
public or quasi-public use under any statute or by rights of eminent domain or
by private purchase in lieu thereof, this Lease shall terminate and all awards
from such taking shall belong to Landlord and Tenant hereby assigns to Landlord
all its right, title and interest to any such awards, provided, however, that
Tenant reserves unto itself the right to prosecute, in a separate proceeding,
any claim for any injury caused to trade fixtures and equipment or for moving
expenses, but only if such award shall be in addition to the award for the land
and the building (or portion thereof) containing the Premises.
(b) If
less than all or substantially all of the Premises or of the Property shall
be taken,
the term of this Lease shall cease only on the portion so taken as of the day
possession shall be so taken, and the rent shall be paid up to that day with a
proportionate refund by Landlord of such rent as may have been paid in advance,
and thereafter the rent shall be equitably abated, and Landlord shall at its own
cost and expense make all necessary repairs or alterations as to constitute the
remaining leased premises a complete architectural unit, provided that in no
event shall Landlord be required to expend an amount in excess of the net
proceeds received by Landlord as a result of the taking.
(c) In
the event of the temporary requisition of the use or occupancy of the
Premises
or any part thereof, by any governmental authority, civil or military, Tenant
shall retain any award or payment therefor, whether the same shall be paid or
payable in respect of Tenant's leasehold interest hereunder or otherwise;
provided, however, that Tenant shall continue to pay Base Rent during the period
of such temporary requisition.
(d) Landlord
shall notify Tenant of any taking of the Premises contemplated by a
public authority. No taking or temporary requisition shall constitute a breach
of Landlord's covenant
of quiet enjoyment.
18. Default.
(a) If
(i) Tenant shall fail to pay when due any rent, or any other sums required
to be paid hereunder by Tenant, and said amount shall remain unpaid for five (5)
days after
receipt of written notice thereof by Landlord or (ii) Tenant shall default in
the performance or
observance of any other agreement or condition on its part to be performed or
observed, and Tenant
shall fail to cure said default within thirty (30) days after receipt of written
notice thereof by
Landlord; or (iii) Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt
or insolvent, or shall file any petition or answer seeking any arrangement,
composition, liquidation
or dissolution under any present or future federal, state or other statute, law
or regulation
relating to bankruptcy, insolvency or other relief for debtors or shall seek or
consent to
or
acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or
of all or any substantial
part of its properties, or of the Premises, or shall make any general assignment
for the benefit
of creditors, or shall admit in writing its inability to pay its debts generally
as they become
due; or (iv) a court shall enter an order, judgment or decree approving a
petition filed against
Tenant seeking any arrangement, composition, liquidation, dissolution or similar
relief under the
present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency
or other relief for debtors, and such order, judgment or decree shall remain
unvacated or
unstayed for an aggregate of sixty (60) days (whether or not consecutive); or
(v) Tenant fails to
operate or closes its business upon the Premises for reasons other than fire or
other casualty or condemnation
for a period of thirty (30) consecutive days; or (vi) Tenant abandons or vacates
the Premises,
then, and in any such event, Landlord, at any time thereafter, may, without
further notice to
Tenant, and, in addition to and not in lieu of any other rights or remedies
available to Landlord
at law or in equity, exercise any one or more of the following rights:
Notwithstanding
the provisions of clause (i) of this subparagraph (a), Landlord shall not be
required to give Tenant more than two (2) notices of payment default in any
period of twelve (12) consecutive months, it being understood that Landlord
shall have the right to avail itself of any and all rights and remedies set
forth herein without notice to Tenant in the event of a third (3rd) or any
subsequent default during such twelve (12) month period.
(x) Landlord
may (A) terminate this Lease and the tenancy created hereby by
giving notice of such election to Tenant, and (B) reenter the Premises, by
summary proceedings or otherwise, and remove Tenant and all other persons and
property from the Premises and store such property in a public warehouse or
elsewhere at the sole cost and expense of and for the account of Tenant without
Landlord being deemed guilty of trespass or becoming liable for any loss or
damage occasioned thereby.
(y) Landlord
may reenter and take possession of the Premises, without terminating
this Lease and without relieving Tenant of its obligations under this Lease, and
divide or subdivide the Premises in any manner Landlord may desire and lease or
let the Premises or portions thereof; alone or together with other Premises, for
such term or terms (which may be greater or less than the balance of the
remaining portion of the term of this Lease) and on such terms and conditions
(which may include concessions or free rent and alterations of the Premises) as
Landlord, in its discretion, may determine.
(b) If
this Lease is terminated by Landlord pursuant to this Paragraph 18,
Tenant
nevertheless shall remain liable for any rent, other sums required to be paid
hereunder and
damages which may be due or sustained prior to such termination, and for all
reasonable costs,
fees and expenses incurred by Landlord in pursuit of its remedies hereunder,
including attorneys',
brokers' and other professional fees (all such rents, damages, costs, fees and
expenses being
referred to herein collectively as "Termination Damages") plus additional
damages (the "Liquidated
Damages") which are hereby stipulated to be equal to the difference between the
(i) the Base
Rent and other sums required to be paid hereunder which, but for termination of
this Lease,
would have become due during the remainder of the term multiplied by the number
of Lease
Years or fraction thereof remaining in the term of this Lease, and (ii) the fair
rental value of the
Premises for such period ("Liquidated Damages"). Termination Damages and
Liquidated
Damages
shall be due and payable immediately upon demand by Landlord following any
termination of this Lease pursuant to this Paragraph 18.
(c) If
Landlord reenters and takes possession of the Premises pursuant to this
Paragraph
IS without terminating this Lease, and relets the Premises or any part thereof,
the net rentals
from such letting shall be applied first to the costs, fees and expenses
incurred by Landlord
in pursuit of its remedies hereunder, including attorneys', brokers' and other
professional
fees, in renting the Premises or part thereof to others from time to time
(including the
reasonable costs and expenses of making such improvements to the Premises as may
be necessary,
in Landlord's sole discretion, to enable Landlord to relet same). The balance,
if any, shall be
applied by Landlord from time to time on account of the rent and other payments
due from
Tenant hereunder, with the right reserved to Landlord to bring such actions or
proceedings for the
recovery of any deficits remaining unpaid as Landlord may deem favorable from
time to time
without being obligated to await the end of the term hereof for the final
determination of Tenant's
account. Any balance remaining, however, after full payment and liquidation of
Tenant's
account as aforesaid shall be paid to Tenant with the right reserved to Landlord
at any time to
give notice in writing to Tenant of Landlord's election to cancel and terminate
this Lease and the
giving of such notice and the simultaneous payment by Landlord to Tenant of any
credit balance
in Tenant's favor that may at the time be owing to Tenant shall constitute a
final and effective
cancellation and termination of this Lease and the obligations hereunder on the
part of either
party to the other. Landlord shall not be liable for, nor shall Tenant's
obligations be diminished
by reason of, any failure by Landlord to relet the Premises or any failure of
Landlord to
collect any rent due upon such reletting.
(d) Upon
the termination of this Lease or Tenant's right to possession of the
Premises
by lapse of time or earlier termination as herein provided, Tenant shall remove
its property from the Premises. Any such property of Tenant not removed from the
Premises by Tenant within thirty (30) days after the end of the term or of
Tenant's right to possession of the Premises, however terminated, shall be
conclusively deemed to have been forever abandoned by Tenant and either may be
retained by Landlord as its property or may be disposed of in such manner as
Landlord may see fit.
(e) Notwithstanding
anything contained herein, if Landlord shall have given written
notice of three (3) defaults in any calendar year, no further prior notice by
Landlord shall be required in that same calendar year for Landlord to declare
this Lease to be in default.
(f) Tenant
agrees that if it shall at any time fail to make any payment or perform
any other act on its part to be made or performed under this Lease, Landlord
may, but shall not
be obligated to, and after reasonable notice or demand and without waiving or
releasing Tenant
from any obligation under this Lease, make such payment or perform such other
act to the
extent Landlord may deem desirable, and in connection therewith to pay expenses
and employ
counsel. Tenant shall pay upon demand all of Landlord's costs, charges and
expenses, including
the fees of counsel, agents and others retained by Landlord, incurred in
enforcing Tenant's
obligations hereunder or incurred by Landlord in any litigation, negotiations or
transactions
in which Tenant causes Landlord, without Landlord's fault, to become involved or
concerned,
plus interest at the Default Rate from the date of payment, which amount shall
be
deemed to
be additional rental due and payable by Tenant, upon demand by Landlord, and
Landlord shall have the same rights and remedies for the nonpayment thereof, as
in the case of default in the payment of rent.
(g) All
rights and remedies of Landlord herein enumerated shall be cumulative,
and none shall exclude any other right or remedy allowed by law. In addition to
the other
remedies in this Lease provided, Landlord shall be entitled to the restraint by
injunction of the
violation or attempted violation of any of the covenants, agreements or
conditions of this Lease.
19. Fire or Other
Casualty.
If the
Premises are damaged by fire or other casualty, upon notice thereof given to
Landlord
by Tenant, the damages shall be repaired by and at the expense of Landlord,
except as otherwise
provided herein, and rent until such repairs shall be made shall be reduced in
the proportion
which the part of the Premises which is not usable by Tenant bears to the
rentable space in
the Premises. Landlord shall not be obligated to repair damage to or replace
alterations, installations,
or additions made by Tenant or any fixtures, furniture, furnishing, equipment or
other
property of Tenant. Such repairs and replacements shall be made by and at the
expense of Tenant.
If the Premises shall be so damaged that, in Landlord's opinion, substantial
alterations, demolition
or reconstruction shall be required, then Landlord may, not later than ninety
(90) days following
the damage, give Tenant notice in writing terminating this Lease. If Landlord
elects to restore
the Premises, then Landlord shall commence such restoration within ninety (90)
days following
the damage and shall complete such restoration within a reasonable time. If
Landlord does not
commence such repairs within ninety (90) days, Tenant shall have the right to
terminate this
Lease by giving written notice to Landlord anytime after said ninety (90)-days
and prior to the date
Landlord commences repairs. If Tenant so terminates this Lease, rent hereunder
shall be due from
Tenant to Landlord up to the date Tenant vacated the Premises-
If (i)
the Premises or the Building shall be damaged as a result of a risk which is
not
covered by Landlord's insurance, or (ii) the Building shall be damaged to the
extent of fifty percent
(50%) or more of the cost of replacement thereof, whether or not the Premises
shall be damaged;
then in either such event Landlord may terminate this Lease by notice given
within ninety
(90) days after such event and upon the date specified in such notice, which
shall be not less than
thirty (30) days nor more than sixty (60) days after the giving of said notice,
this Lease shall
terminate and come to an end, and Tenant shall vacate and surrender the Premises
to Landlord.
20. For Sale Signs.
Landlord and Landlord's agents, employees or representatives may enter
upon the Premises to place the usual "For Rent" or "For
Sale" signs and to conduct interested
parties through said Premises at reasonable hours during the six (6) month
period preceding the expiration of the term of this Lease.
21. Notices. All notices,
demands, requests, consents or approvals which may or are required
to be given by either party to the other shall be in writing and shall be deemed
given when sent
by United States mail, registered or certified, return receipt requested,
postage fully
prepaid
(a) if for Tenant, addressed to Tenant at 000 X. Xxxxxx, Xxxxxx, Xxxx 00000 with
a copy to
LaValley, LaValley, Xxxxx & Xxxxxxxx Co., L.P.A., 0000 Xxxxxx Xx., Xxxx. X,
Xxxxxxxx, Xxxx
00000 Attention: Xxxxxxx X. Xxxxx, or at such other place as Tenant may from
time to time designate
by notice to Landlord, or (b) if for Landlord, addressed to OTR, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx,
Xxxx 00000, Attention: Investment Department, or at such other place as Landlord
may from
time to time designate by notice to Tenant. All consents and approvals provided
for must be in writing to be valid. Notices shall be deemed to have been given
if addressed and mailed as above provided on the date same were deposited in the
United States mail.
22. Waiver of
Subrogation. Neither Landlord nor Tenant shall be liable to the other
for any
business interruption or any loss or damage to property occurring on the
Premises or the Property,
or in any manner growing out of or connected with Tenant's use and occupation of
the Premises
or the Property, or the condition thereof, or of the adjoining property, whether
or not caused by
the negligence or other fault of Landlord or Tenant or of their respective
agents, employees,
subtenants, licensees or assignees; provided, however, that this release shall
apply only to
the extent that such business interruption, loss or damage to property, is
covered by insurance
or required to be covered hereunder by insurance, regardless of whether such
insurance is
payable to or protects Landlord or Tenant or both. Nothing in this Paragraph
shall be construed
to impose any other or greater liability upon either Landlord or Tenant than
would have
existed in the absence hereof Because this Paragraph 22 will preclude the
assignment of any claim
mentioned in it by way of subrogation (or otherwise) to an insurance company (or
any other
person), each party to this Lease agrees immediately to give to each insurance
company which has
issued to it policies of fire and extended coverage insurance, written notice of
the terms of
the mutual waivers contained herein, and to have the insurance policies properly
endorsed,
if necessary, to prevent the invalidation of the insurance coverages by reason
of the mutual
waivers contained herein.
23. Subordination of
Lease.
(a) Landlord
reserves the right and privilege to subject and subordinate this Lease to
any and all mortgages, deeds of trust or land leases now existing upon or that
may hereafter be placed upon the Premises and the Property and to all advances
made or to be made thereon and all renewals, modifications, consolidations,
replacements or extensions thereof and if such right is exercised, the lien of
any such mortgages, deeds of trust and land leases shall be superior to all
rights hereby or hereunder vested in Tenant, to the full extent of all sums
secured thereby. In confirmation of such subordination, Tenant shall, on request
of Landlord or the holder of any such mortgage, deed of trust or land lease
execute and deliver to Landlord within ten (10) days of such request, any
instrument that Landlord or such holder may reasonably request and Tenant hereby constitutes
and appoint Landlord as Tenant's attorney-in-fact to execute any such
certificate for and on behalf of Tenant.
(b) If
the interest of Landlord under this Lease shall be transferred by reason
of
foreclosure or other proceedings for enforcement of any mortgage or deed of
trust on the Premises
or the Property, Tenant shall be bound to the transferee (the "Purchaser") under
the terms,
covenants and conditions of this Lease for the balance of the term remaining,
and any extensions
or renewals, with the same force and effect as if the Purchaser were the
landlord
under
this Lease, and, at the option of the Purchaser, Tenant shall attorn to the
Purchaser, including the mortgagee under any such mortgage, if it be the
Purchaser, as its landlord, the attorrunent to be effective and self-operative
without the execution of any further instruments upon the Purchaser succeeding
to the interest of Landlord under this Lease. The respective rights and
obligations of Tenant and the Purchaser upon the attornment, to the extent of
the then remaining balance of the term of this Lease, and any extensions and
renewals, shall be and are the same as those set forth in this
Lease.
24. Quiet Enjoyment. If
Tenant shall pay the rents and other sums due to be paid by Tenant
hereunder, as and when same become due and payable, and if Tenant shall keep,
observe and
perform all of the other terms, covenants, obligations and conditions of this
Lease on Tenant's
part to be kept, observed and performed, Tenant (or anyone claiming under Tenant
to the
extent permitted in this Lease), shall be entitled to lawfully, peaceably and
quietly hold and occupy
the Premises during the term of this Lease, except by reason of regulations
imposed by any
governmental or quasi-governmental agency on the occupancy of Tenant or the
conduct of Tenant's
business operations.
25. Waiver. No waiver of
any covenant or condition or of the breach of any covenant or
condition of this Lease shall be taken to constitute a waiver of any subsequent
breach of such covenant
or condition nor to justify or authorize the nonobservance on any other occasion
of the same or
of any other covenant or condition hereof, nor shall the acceptance of rent by
Landlord at any
time when Tenant is in default under any covenant or condition hereof be
construed as a waiver of
such default or of Landlord's right to terminate this Lease on account of such
default, nor shall
any waiver or indulgence granted by Landlord to Tenant be taken as an estoppel
against Landlord,
it being expressly understood that if at any time Tenant shall be in default in
any of its covenants
or conditions hereunder an acceptance by Landlord of rental during the
continuance of such
default or the failure on the part of Landlord promptly to avail itself of such
rights or remedies
as Landlord may have, shall not be construed as a waiver of such default, but
Landlord may at
any time thereafter, if such default continues, terminate this Lease or assert
any other rights or
remedies available to it on account of such default in the manner hereinbefore
provided.
26. Recording Memorandum of
Lease. The parties agree that this Lease shall not be recorded,
but a Short Form Lease or Memorandum of Lease, complying in form with applicable
state
law, shall be executed, setting forth the description of the Premises, the term
of this Lease and other pertinent provisions, which Short Form Lease or
Memorandum of Lease may be recorded by either party in lieu of recordation of
this Lease.
27. Exculpation.
(a) This
Lease is executed by certain employees of XXXXX, not individually, but
solely on behalf of Landlord, the authorized nominee and agent for XXXXX. In
consideration
for entering into this Lease, Tenant hereby waives any rights to bring a cause
of action
against the individuals executing this Lease on behalf of Landlord (except for
any cause of action
based upon lack of authority .or fraud), and all persons dealing with Landlord
must look solely to
Landlord's assets for the enforcement of any claim against Landlord, and
the
obligations
hereunder are not binding upon, nor shall resort be had to the private property
of any of, the trustees, officers, directors, employees or agents of
XXXXX.
(b) Anything
contained in this Lease to the contrary notwithstanding, Tenant agrees
that Tenant shall look solely to the estate and property of Landlord in the real
estate of which the
Premises is a part and the rentals therefrom for the collection of any judgment
(or other
judicial process) requiring the payment of money by Landlord in the event of any
default or breach by
Landlord with respect to any condition, covenant, or agreement of this Lease to
be observed
and/or performed by Landlord, subject, however, to the prior rights of any
mortgagee of the
real estate of which the Premises is a part, or part thereof; and no other
assets of Landlord or any
partner, member, shareholder, board member, officer, agent or employee thereof
shall be subject
to levy, execution or other judicial process for the satisfaction of Tenant's
claims. In the event
Landlord conveys or transfers its interest in the Building or in this Lease,
except as collateral
security for a loan, upon such conveyance or transfer Landlord (and in the case
of any subsequent
conveyances or transfers, the then grantor or transferor) shall be entirely
released and relieved
from all liability with respect to the performance of any covenants and
obligations on the part
of the landlord to be performed hereunder from and after the date of such
conveyance or transfer;
it being intended hereby that the covenants and obligations on the part of the
landlord to be
performed hereunder shall, subject as aforesaid, be binding on Landlord, its
successors and assigns
only during and in respect of their respective periods of ownership of any
interest in the Building
or in this Lease. This provision shall not be deemed, construed or interpreted
to be or constitute
any agreement, express or implied, between Landlord and Tenant that the
Landlord's interest
hereunder and in the Building shall be subject to imposition of an equitable
lien or otherwise."
28. Time of Essence. It
is expressly stipulated that time shall be of the essence of this Lease.
29. Governing Law; Invalidity of
Particular Provisions.
(a) This
Lease and the rights and obligations of the parties hereunder shall be
construed
in accordance with the laws of the state in which the Premises are
located.
(b) If
any term or provision of this Lease or the application thereof to any
person or
circumstance shall to any extent be invalid or unenforceable, the other terms of
this Lease, or
the application of such term or provision to persons or circumstances other than
those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision
of this Lease shall be valid and be enforced to the fullest extent permitted by
law.
30. Brokerage
Commission. Except for Xxxxxxx Realty Company, whose commission
and fees are to be paid by Landlord, Landlord and Tenant represent and warrant
each to
the other that it has dealt with no broker, agent or other person in connection
with this transaction
and that no broker, agent or other person brought about this transaction.
Landlord and Tenant
each agree to indemnify and hold harmless the other from and against any
claims by any
broker,
agent or other person claiming a commission or other form of compensation by
virtue of
having
dealt with the indemnifying party with regard to this leasing transaction. The
provisions of this Paragraph 32 shall survive the termination of this
Lease.
31. Hazardous Devices and
Contaminants.
(a) Prohibition. Tenant
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, except
for those necessary
for use in Tenant's ordinary course of business or with the prior written
consent of Landlord.
Except for Contaminants (as hereinafter defined) used in the ordinary course of
business
and in compliance with Requirements of Law (as hereinafter defined), Tenant and
its agents,
employees, contractors and invitees shall not use, store, release, generate or
dispose of or permit to
be used, stored, released, generated or disposed of any Contaminants on or in
the Premises.
(b) Indemnification by
Tenant. Tenant shall indemnify, defend and hold harmless
Landlord, its agents, servants, employees, officers and directors forever from
and against
any and all liability, claims, demands and causes of action, including, but not
limited to, any and
all liability, claims, demands and causes of action by any governmental
authority, property
owner or any other third person and any and all expenses, including attorneys'
fees (including,
but not limited to, attorneys' fees to enforce Tenant's obligation of
indemnification under
this Paragraph 33(b), relating to any environmental liability resulting from (i)
any Release (as
hereinafter defined) of any Contaminant at the Premises or emanating from the
Premises to adjacent
properties or the surrounding environment during the Term of this Lease; (ii)
during the Term of
this Lease, any generation, transport, storage, disposal, treatment or other
handling of any
Contaminant at the Premises, including but not limited to, any and all off site
transport, storage,
disposal, treatment or other handling of any Contaminant generated, produced,
used and/or
originating in whole or in part from the Premises; and (iii) any activity at the
Premises during
the Term of this Lease that in any way might be alleged to fail to comply with
any Requirements
of Law.
(c) Definitions.
(i) "Contaminant"
shall mean any substance or waste containing hazardous
substances, pollutants and contaminants as those terms are defined in the
federal Comprehensive Environmental Response Compensation and Liability Act, 42
U.S.C. Section 9601, et seq. and any substance similarly defined or identified
in any other federal, provincial or state law, rule or regulation governing the
manufacture, import, use, handling, storage, processing, release or disposal of
substances or wastes deemed hazardous, toxic, dangerous or injurious to public
health or to the environment. This definition includes friable asbestos and
petroleum or petroleum-based products.
(ii) "Requirements
of Law" shall mean any federal, state or local law, rule,
regulation, permit, agreement, order or other binding determination of any
governmental authority relating to the environment, health or
safety.
(iii) "Release"
shall have the same meaning as in the federal Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. Section
9601, et
seq.
32. No Partnership/ Any
intention to create a joint venture or partnership relation between
the parties hereto is hereby expressly disclaimed.
33. Corporate Tenants. If
Tenant is a corporation, then those persons executing this Lease on
behalf of Tenant hereby individually covenant and warrant that: (a) Tenant is a
duly constituted
corporation qualified to do business in the state in which the Premises are
located; (b) all of Tenant's franchise and corporate taxes have been paid to
date; (c) all future forms, reports, fees and other documents necessary for
Tenant to comply with applicable laws will be filed by Tenant when due; and (d)
the actions of the persons executing and delivering this Lease on behalf of
Tenant have been duly authorized by the board of directors of
Tenant.
34. Force Majeure. In the
event that Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder (other than the
payment of rent and other
charges payable by Tenant) by reason of strikes, lockouts, labor troubles,
inability to procure
materials, failure of power, riots, insurrection, the act, failure to act or
default of the other
party, war or any other reason beyond the reasonable control of the party who is
seeking additional
time for the performance of such act, then performance of such act shall be
excused for the
period of the delay and the period for the performance of any such act shall be
extended for a
reasonable period, in no event to exceed a period equivalent to the period of
such delay.
35. Words Genders and
Numbers. Whenever words are used herein in any gender, they
shall be construed as though they were used in the gender appropriate to the
context and the circumstances,
and whenever words are used herein in the singular or plural form, they both
shall be
construed as though they were used in the form appropriate to the context and
the circumstances.
36. Topic Headings.
Headings and captions in this Lease are inserted for convenience
and reference only and in no way define, limit or describe the scope or intent
of this Lease or
constitute any part of this Lease and are not to be considered in the
construction of this Lease.
37. Binding Effect. This
Lease shall be binding upon and shall inure to the benefit of the
parties hereto, and their respective successors and assigns, provided that this
provision shall in no
manner enlarge Tenant's right of assignment, which right of assignment has been
restricted under the foregoing provisions of this Lease.
38. Entire Agreement.
This Lease contains the entire understanding between the parties
and supersedes any prior understandings or agreements between them respecting
the subject
matter. No representations, arrangements, or understandings, except those fully
expressed
herein, are or shall be binding upon the parties. No changes, alterations,
modifications,
additions or qualifications to the terms of this Lease shall be made or be
binding unless made in writing and signed by each of the
parties.
39. Related Parties.
Tenant represents to Landlord that Tenant is not (a) an individual who is,
or (b) a partnership, association, or corporation that is owned or controlled
by, a person who during the preceding three (3) years was employed by, an
officer of, or a board member of State Teachers Retirement System of Ohio, and
no employee of Tenant who holds a fiduciary, administrative, supervisory, or
trust position, or any other position in which such person would be involved on
behalf of Tenant in decisions or recommendations pertaining to the Building, is
a person who during the preceding three (3) years was employed by, an officer
of, or a board member of State Teachers Retirement System of Ohio.
40. Existing Lease. The
parties acknowledge that Tenant presently occupies a portion of the
Premises (i.e., Unit 6 as depicted on Exhibit A), and that
such portion of the Premises (the "Existing
Premises") is occupied on a month-to-month basis pursuant to the terms and
conditions of that
certain Lease dated April 18, 1985, between Landlord's predecessor in interest
(Krasl) and
Tenant, as amended by that certain First Amendment to Lease dated as of February
1994 between Landlord and Tenant (the Lease, as so amended, hereinafter is
referred to as the "Existing Lease"). The terms and provisions of the Existing
Lease shall continue to govern the rights and obligations of Landlord and Tenant
in respect of the Existing Premises until the Commencement Date. Upon the
Commencement Date, the terms and provisions of this Lease shall amend and
restate in their entirety the terms and provisions of the Existing Lease, it
being understood that from and after the Commencement Date this Lease shall
govern and control all of the rights and obligations of the parties in respect
of the Premises (including the Existing Premises) which arise or accrue from and
after the Commencement Date. Nothing herein shall be deemed to release Tenant
from any liabilities or obligations under the Existing Lease which accrue under
the Existing Lease prior to the Commencement Date.
41. Option.
(a) Tenant
is hereby granted the option, exercisable by written notice to Lessor at
least 180 days prior to the end of the term hereof, to extend the term hereof by
a period of five
(5) years subject to each and every, of the terms and conditions hereof except
that commencing
on the first day of the first month following the tenth (10th) Lease Year the
Base Rent
stated in Paragraph 1(a) shall be increased in accordance with the provisions of
Paragraph 41 (b)
hereof
(b) In
the event Tenant exercises its option under Paragraph 41(a) to extend
the term
of this Lease, the Base Rent specified in Paragraph 1(a) for such extension
shall be the Fair
Market Rent (hereinafter defined) for the Premises-
(c) The
Fair Market Rent for the option term shall be determined assuming the
Premises are free and clear of all leases and tenancies (including this Lease),
that the Premises
were available in the then rental market for comparable buildings of similar
quality, age and
character as the Building located in Maumee, Ohio, assuming that Landlord has
had a reasonable
time to locate a tenant who rents with the knowledge of the uses to which the
Premises
can be adapted, and that neither Landlord nor the prospective tenant is under
any compulsion
to rent. Fair Market Rent shall exclude all concessions, inducements to
rent,
commissions,
tenant improvements, free rent, bonuses or similar concessions or allowances. In
addition, the determination of Fair Market Rent shall not take into account (i)
Landlord's Work, or (ii) any alteration, addition, or improvement of the
Premises performed by Tenant.
(i) For
purposes of determining the Fair Market Rent, the followingprocedure
shall apply.
(x) During
the thirty (30) day period which begins one hundred eighty (180) days prior to
the commencement of the option term, Landlord and Tenant shall attempt, in good
faith, to reach agreement as to the Fair Market Rent for the option
term.
(y) If
Landlord and Tenant are unable to agree before the expiration of such
thirty (30) day period (the "Impasse Date"), the amount of Fair
Market Rent for the option term shall be determined by appraisal
as follows. Within ten (10) days of the Impasse Date, Landlord
and Tenant shall each retain a single appraiser (each of whom
shall be independent of each of Landlord and Tenant and shall be
a Member of the American Institute of ' Real Estate Appraisers
or shall have a corresponding professional designation acceptable
to each of Landlord and Tenant; an appraiser who satisfies
such criteria is referred to herein as an "Appraiser") to determine
the Fair Market Rent. Landlord and Tenant shall jointly instruct
each such Appraiser to determine the Fair Market Rent of the
Premises for the option term and to issue its written report to each of
Landlord, Tenant and the other Appraiser within thirty (30) days
after its retention. If either Landlord or Tenant shall fail to appoint
an Appraiser as aforesaid, the determination of the sole Appraiser
so appointed shall govern.
(z) If the
conclusions of the two Appraisers as to Fair Market Rent shall be
identical, the Fair Market Rent for the option term shall be the Fair
Market Rent as so established. If the conclusions of the two
Appraisers shall differ, but if the Fair Market Rent as indicated on the
higher of the two shall be less than one hundred ten percent (110%) of
the Fair Market Rent as indicated on the lower, the Fair Market
Rent for the option term shall be the simple average of the two. In
the event of any greater deviation between the two original Appraisers'
conclusions regarding Fair Market Rent, the two original
Appraisers shall jointly appoint a third Appraiser (who shall be
unrelated to each of the original Appraisers and shall otherwise
satisfy the criteria set forth above for an "Appraiser") not later
than fifteen (15) days after the issuance of the later of the two
original Appraisers' reports. The third Appraiser shall be provided
with true and complete copies of each of the written reports
issued by the original Appraisers, and shall be instructed
to
evaluate
such reports (and such other evidence as the third Appraiser
shall deem to be necessary or reasonably appropriate in connection
therewith). Within thirty (30) days after its appointment,
the third Appraiser shall issue its written report to each of
Landlord and Tenant, indicating which of the original Appraisers'
conclusions regarding Fair Market Rent it believes to be the
more accurate. In such event, Fair Market Rent for the option
term shall be the Fair Market Rent as so designated by the third
Appraiser. The Fair Market Rent as established as aforesaid shall be
final and binding upon Landlord and Tenant. Landlord and
Tenant shall each pay the costs and expenses of the Appraiser retained
by it as provided above. All costs and fees of the third Appraiser
shall be paid in equal shares by Landlord and Tenant.
(ii) After
a determination has been made of the Fair Market Rent for the
option term, the parties shall execute and deliver to each other an agreement
setting forth the Fair Market Rent as hereinabove determined.
(d) Notwithstanding
the provisions of subparagraph (b) of this Paragraph 41, in no
event shall the Base Rent for the option term be less than the Base Rent payable
by Tenant for the sixth (6th) through tenth (lath) Lease Years.
IN
WITNESS WHEREOF, each of the parties has caused this Lease to be executed on the
day and year first above written.
Signed
and Acknowledged in the
Presence of
/s/ Xxxxxx X.
Xxxxx
/s/ Xxxxxxx
Xxxxxxx
LANDLORD:
OTR, an Ohio general partnership
acting as the duly authorized nominee of The State Teachers' Retirement System
of Ohio
By:./s/ Xxxx X.
Xxxxxx
Its: Director,
Midwestern Region
/s/ Xxxx X.
Xxxxxxxx
/s/
Illegible
TENANT:
ANATRACE, INC.
By: /s/ Xxx X.
Xxxx
Its: President
STATE OF
OHIO )
) SS:
COUNTY OF
FRANKLIN
)
BE IT
REMEMBERED, that on this 14th day of
February, 2001, before me, the subscriber,
a Notary Public, personally appeared the above-named OTR' a partnership
organized under the
laws of the State of Ohio, by Xxxx X. Xxxxxx, Director
Midwest a
general partner,
known to me and known to me to be the person who signed the-
Tforegoing instrument as such
partner, who acknowledged to me that he signed said instrument as such partner,
duly authorized
by the partnership so to do, and that the signing of the same was his free act
and deed, as such
partner, for and on behalf of said partnership, for the uses and purposes
therein set forth.
IN
TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the
official
seal of my office at Columbus, Ohio above
written.
/s/ Xxxxxx X.
Xxxxx
Notary
Public
[Notary
Seal]
STATE OF
OHIO
) SS::
COUNTY OF
XXXXX
BE IT
REMEMBERED, that on this 8th
day of February, 2001, before me, the subscriber,
a Notary Public in and for said County and State personally a geared the
above-n ed
Anatrace, Inc_, an Ohio corporation, by Xxx X. Xxxx its
President known to me and known to me to
be the person who signed the foregoing instrument as such officer, who
acknowledged to me that ______________ signed said instrument
as such officer, duly authorized by the Board of Directors of said corporation
so to do, and
that the signing of the same was _________________ free act and deed, as
such officer, for and on behalf of
said corporation, for the uses and purposes therein set forth.
IN
TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the
official
seal of my office at ______________, ____________,on the day and year
last
above written.
/s/ Xxxx X.
Xxxxxxxx
Notary
Public
[Notary
Seal]
Exhibit
A
[Building
Diagram]
Exhibit B
Legal Description
A parcel
of land being part of Xxx 00 xx Xxxxxxxxx Xxxx Xxxxx, a subdivision in the City
of Maumee, Xxxxx County, Ohio,
recorded in Volume 81. pages 14, 15 & 16 Xxxxx County Plat Records, which is
bounded and described as follows:
BEGINNING
at the Southeasterly corner of said Lot 33; thence South 55° 32'37" West along
the Southerly line of said Lot
33, a distance of 220.00 feet to the Southwesterly corner of said Lot 33; thence
North 34° 27'23" West along the
Westerly line of said Lot 33, a distance of 200.00 feet to a point; thence North
55° 32' 37" East along a line that
is parallel with the Southerly line of said Lot 33, a distance of 220.00 feet to
a point on the Easterly line of said Lot
33; thence South 34° 2723" East along the Easterly line of said Lot 33, a
distance of 200.00 feet to the point of
BEGINNING.
Containing 1.01 acres of land, more or
less, but subject to legal highways, and subject to all legal easements,
restrictions, leases of record and of records in respective utility
offices and other conveyances, if any.
The
bearing referred to hereon are based on the bearings that appear on the record
plat of Arrowhead Plat Three an assumed meridian and are used only for the
purpose of describing angular measurement.
Lot number 29 in ARROWHEAD FLAT THREE,
a SUBDIVISION in the CITY of MAUMEE, XXXXX COUNTY, OHIO, recorded in
Volume 81, pages 14, 15, 16, Xxxxx County Plat Records.
AND ALSO That part of lot number 34 in
ARROWHEAD PLAT THREE, a SUBDIVISION in the CITY OF MAUMEE, XXXXX COUNTY, OHIO,
recorded in Volume 81, pages 14, 15, 16, Xxxxx County Plat Records, which
is bounded and described as follows:
Beginning
at the southeast corner of said lot number 29; thence northwesterly along the
easterly line of said lot number 29, a distance of 4 10.00 feet to the northeast
corner of said lot number 29; thence northeasterly along the northerly line of
said lot number 34 and the southerly line of lots numbers 31, 32, 33 and said
lines extended in said Arrowhead Plat Three, a distance of 641.40 feet to a
point: thence southeasterly perpendicular to the last described line a distance of 410.00 feet to a
point on the southerly line of said lot number 34; thence southwesterly along
the southerly line of said lot number 34 a distance of 641.40 feet to the
point of beginning.
And also
that part of said lot number 34 which is bounded and described as
follows:
Commencing
at the Northeast corner of Lot 29 in said ARROWHEAD PLAT 3, thence North 55
degrees 32 minutes 37 seconds East along the Northerly line of said Lot 34 and
the Southerly lines of Lots 31, 32, 33 and said
lines extended in said Arrowhead Plat 3, a distance of 641.40 feet to the point
of beginning; thence South 34 degrees
27 minutes 23 seconds East perpendicular to the last described line, a distance
of 4 10.00 feet to a point on the Southerly line of said Lot 34; thence North 55
degrees 32 minutes 37 seconds East along the Southerly line of said Lot 34, a
distance of 129.85 feet to a point; thence North 34 degrees 27 minutes 23
seconds West perpendicular to the last described line, a distance of 410.00 feet
to a point; thence South 55 degrees 32 minutes 37 seconds West., a distance of
129.85 feet to the point of beginning.
That part of Lots 34 and 35 in
ARROWHEAD PLAT THREE, a SUBDIVISION in the CITY of MAUMEE, XXXXX COUNTY, OHIO,
recorded in Volume 81, pages 14, 15, and 16, Xxxxx County Plat Records,
which is bounded and described as follows:
Beginning
at a point on the Northerly line of said Lot 34 that is 488.37 fee Easterly of
the Northwesterly corner of
said Lot 34, as measured along the Northerly line of said Lot 34; thence North
55 degrees 32 minutes 37 seconds
East along the Northerly line of said Lot 34, a distance of 6.11 feet to a
point; thence South 79 degrees 27
minutes
23 seconds East continuing along the Northerly line of said Lot 34, a distance
of 62.07 feet to a point; thence
South 34 degrees 27 minutes 23 seconds East perpendicular to the Northerly line
of said Lot 34, a distance of 396.11
feet to a point; then North 55 degrees 32 minutes 37 seconds East parallel to
the Northerly line of said Lot 34, a
distance of 200.00 feet to a point; thence South 34 degrees 27 minutes 23
seconds East, a distance of 70.00 feet to a
point; thence North 55 degrees 32 minutes 37 seconds East parallel to the
Northerly line of said Lot 35, a distance
of 182.19 feet to a point; thence South 47 degrees 54 minutes 09 seconds East
parallel to the Easterly line of said
Lot 35, a distance of 253.54 feet to a point; thence South 34 degrees 27 minutes
23 seconds East along a line that is
perpendicular to the Southerly line of said Lot 35, a distance of 209.79 feet to
a point on the Southerly line of said Lot
35, said point also being a point of curve; thence South 55 degrees 32 minutes
37 seconds West along the Southerly
line of said Lots 34 and 35, a distance of 648.28 feet to a point, said point
being 771.25 feet Northeasterly of the
Southeasterly point, said point being 771.25 feet Northeasterly of the
Southeasterly corner of Lot 29 in said Arrowhead
Plat Three, as measured along the Southerly line of said Lot 34; thence North 34
degrees 27 minutes 23 seconds
West, a distance of 410.00 feet to a point on the Easterly extension of the
Southerly line of Xxx 00 xx xxxx Xxxxxxxxx
Xxxx Xxxxx; thence North 55 degrees 32 minutes 37 seconds East along the
Easterly extension of the Southerly
line of said Lot 33, a distance of 157.12 feet to a point; thence North 34
degrees 27 minutes 23 seconds West
along a line that is perpendicular to the Northerly line of said Lot 34, a
distance of 556,36 feet to the point of beginning.
Containing
7.342 acres of land, more or less, but subject to legal highways, all legal
easements and restrictions and leases of record and of records in respective
utility offices.
The bearing referred to hereon are
based upon an assumed meridian and are used only for the purpose of
describing angular measurement.
That part
of Lot 34 in ARROWHEAD PLAT THREE, a SUBDIVISION in the CITY of MAUMEE XXXXX COUNTY, OHIO, recorded in
Volume 81, pages 14, 15 and 16, Xxxxx County Plat Records, which is
bounded and described as follows:
Beginning
at the Northwesterly corner of said Lot 34; thence North 55 degrees 32 minutes
37 seconds East along the
Northerly lines of said Lot 34, a distance of 488.37 feet to a point; thence
South 34 degrees 27 minutes 23 seconds
East, a distance of 556.36 feet to a point on the Easterly extension of the
Southerly line of Xxx 00 xx xxxx Xxxxxxxxx
Xxxx Xxxxx; thence South 55 degrees 32 minutes 37 seconds West along the
Easterly extension of the Southerly
line of said Lot 33, a distance of 488.37 feet to the Southeasterly corner of
said Lot 33; thence North 34 degrees
27 minutes 23 seconds West along the Easterly line of said Lot 33, a distance of
556.36 feet to the Northeasterly
corner of said Lot 3 3 and the point of beginning.
Containing
6,238 acres of land, more or less, but subject to legal highways.
The
bearings referred to hereon are based upon an assumed meridian and are used only
for the purpose of describing angular measurement.
EXHIBIT
C
Landlord
shall perform the following work (collectively, "Landlord's Work") in accordance
with all applicable building, fire, and safety codes and
regulations:
(i) The
work on the plans and specifications dated February 6, 2001, prepared by
Xxxxxx
Design Group Architects ("Landlord's Construction"); and
(ii) The
installation of additional carpeting and vinyl, the replacement of floor
covering
and the cost of levelling the floor between Units 6 and 6A (as depicted on
Exhibit A).
Notwithstanding
the foregoing, the cost of Landlord's Work shall not exceed Two Hundred
Fifteen
Thousand Dollars ($215,000) ("Landlord's Contribution"), which contribution
shall include
all hard and soft costs (including all architectural and engineering fees)
required to prepare
such plans and specifications and to perform Landlord's Work. In the event the
cost of Landlord's
Work shall exceed the amount of Landlord's Contribution, Tenant .shall pay to
Landlord,
as additional rent, the amount of such excess within ten (10) days after demand
therefore.
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