EXHIBIT 10.1
LEASE AGREEMENT
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PARK PLACE, LLC, an Ohio limited liability company ("Lessor"), and SIGHT
RESOURCE CORPORATION, a Delaware corporation ("Lessee") hereby enter into the
following Lease Agreement ("Lease") this ninth day of July 2001.
Basic Lease Provisions.
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(A) Building: Approximately 20,474 square foot building
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located at 0000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000.
(B) Property: The Land and Improvements located at 0000
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Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 and more
particularly described on Exhibit "B"
attached hereto.
(C) Proportionate Share: 35.9%
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(D) Premises: Approximately 7348 square feet of space
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located within the Building and more
particularly identified on Exhibit "A"
attached hereto.
(E) Commencement Date: The date Lessor and Lessee mutually agree in
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writing that Lessor has substantially
completed the Tenant Finish Improvements in
accordance with construction plans and
specifications approved by Lessee subject
only to minor punch list items which do not
materially affect Lessee's ability to use the
Premises for intended purposes.
(F) Initial Lease Term: Five Lease Years commencing on the
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Commencement Date and ending at 12 noon on
the Termination Date.
(G) Termination Date: The last day of the calendar month in which
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occurs the fifth anniversary of the day
immediately preceding the Commencement Date.
(H) Renewal Term(s): None.
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(I) Base Rent: See Section 5.1.
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(J) Operating Expenses: Shall be paid in equal monthly installments
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and shall include, Taxes [as defined in
Section 7.2.1 (1)], Insurance Costs [as
defined in Section 7.2.1 (2)], Maintenance
[as defined in Section 7.2.1 (3)], and
Utility Costs [as defined in Section
7.2.1(4)].
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Operating Expenses for the First Lease Year
shall be $4.38 per square foot (such
Operating Expenses are included in Base
Rent). Increases in Operating Expenses shall
not exceed 5% for each year for Controllable
Expenses [as defined herein], but there shall
be no cap on Uncontrollable Expenses.
(K) Security Deposit: Ten Thousand Four Hundred Nine Dollars and
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67/100 ($10,409.67).
(L) Permitted Use: Use for general office purposes and for no
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other purpose.
(M) Lessor's Notice Address: Park Place, LLC
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00000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
(N) Lessee's Notice Address: "Eyeshop" USA
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c/o Sight Resource Corporation
0000 Xxxxxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx
(O) Broker: Xxxxx & Xxxxx/West Shell Commercial (Lessor)
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1. THE PREMISES. Lessor leases to Lessee, and Lessee leases from Lessor,
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on the terms and conditions set forth herein, that portion of the approximately
20,474 square foot building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxx 00000
(the "Building") consisting of approximately 7,348 leasable square feet of space
and being shown outlined on Exhibit A attached hereto (the "Premises") . The
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Building is part of the real property owned by Lessor which is described in
Exhibit B attached hereto (the "Property"). Lessor additionally grants to
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Lessee, during the term of this Lease, the right to use, in common with other
tenants and occupants of the Building (a) all easements and rights appurtenant
to the Property, (b) all portions of the Building (if any) designed for the
common use of all tenants and occupants of the Building, (c) all utility lines,
pipes, conduits and other similar facilities on the Property necessary for the
use of the Premises, and (d) all parking areas and drives located on the
Property. The Lessor represents and warrants to Lessee there are 80 parking
spaces in the parking lot for the exclusive use of tenants in the Building which
Lessee may use in common with other tenants of the Building.
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2. TERM.
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2.1 Definition. As used in this Lease, "Lease Year" shall mean twelve
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(12) one-month periods with the first such Lease Year beginning on the
Commencement Date, unless the Commencement Date is on a day other than the first
day of a calendar month, in which event the first Lease Year shall commence on
the first day of the first calendar month after the Commencement Date, and,
thereafter, on each anniversary of the first day of the first Lease Year
throughout the term of this Lease and any renewals or extensions.
2.2 Term. This Lease shall be for a term (the "Initial Term") of five
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(5) Lease Years, plus the period beginning on the Commencement Date to the first
day of the first Lease Year, if any. Once the Commencement Date has been
established, upon request by either party, Lessor and Lessee shall execute a
recordable memorandum of lease reflecting the Commencement Date and the date the
Initial Term will expire (the "Termination Date").
3. RENEWAL TERM. Intentionally Deleted.
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4. TENANT FINISH IMPROVEMENTS; COMMENCEMENT DATE.
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4.1 Definitions. The following terms as used in this Lease shall have
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the meanings set forth below:
4.1.1 Tenant Finish Improvements are shown and described on
Exhibit "C" attached hereto for general office purposes containing approximately
7,348 square feet of leasable space. The Tenant Finish Improvements shall be
performed by Lessor at its sole cost in a good and workmanlike manner, using
first-class materials in accordance with all applicable laws, codes and
regulations and plans and specifications approved by Lessee. Lessor shall enter
into a contract for the Tenant Finish Improvements with a contractor selected by
Lessor. Lessor and its contractor shall permit, and coordinate with, Lessee or
its contractor to enter the Premises during construction of the Tenant Finish
Improvements for purposes of installing cabling, fixtures and doing other work.
Upon delivery of possession of the Premises to Lessee as herein above provided,
Lessee shall execute a letter of understanding acknowledging (i) the
Commencement Date and Expiration Date of this Lease, and (ii) that Lessee has
accepted the Premises for occupancy and that the condition of the Premises
including the Tenant Finish Improvements and the Building was at the time
satisfactory except for any defects as to which Lessee shall have given written
notice to Lessor within sixty (60) days after such delivery, and latent defects.
Lessor shall promptly after such notice cause the defects to be corrected. Such
letter of understanding shall become a part of this Lease. Should Lessee open
for business in the Premises, Lessee shall be deemed to have accepted the
Premises in the manner described in this Section even though the letter of
understanding provided herein may not have been executed by Lessee, except to
the extent Lessee notifies Lessor in writing. Lessor hereby warrants that the
Tenant Finish Improvements shall be constructed in accordance with the
provisions of this Section 4 and Lessor shall repair or replace any portion of
the Tenant Finish Improvements which are found to not be so constructed within
one (1) year after the Commencement Date. Lessee shall have
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the right to request changes in the Tenant Finish Improvements, provided that
Lessee shall be responsible to pay within ten (10) days after invoice to Lessee,
any increased costs as a result of such changes.
Notwithstanding anything in this Lease to the contrary, in the event Lessor
fails to complete the Tenant Finish Improvements in accordance with the
provisions of the second sentence of the first paragraph of this Section 4 on or
before that date which is ninety (90) days after the date of this Lease and
provided that such delay is not the result of events or causes beyond Lessor's
control, Lessee may terminate this Lease by written notice to Lessor.
Notwithstanding anything in this Lease to the contrary, Lessee shall be
permitted to terminate this Lease if Lessor fails to complete the Tenant Finish
Improvements by October 15, 2001. Upon such termination, the parties shall be
relieved of any and all further liabilities and responsibilities hereunder and
Lessor shall return to Lessee the security deposit, the first month's rent and
any other sums previously paid by Lessee to Lessor.
Lessee shall be permitted to enter the Leased Premises approximately sixty
(60) days after the building permit for the Leased Premises has been issued for
installation of Lessee's trade fixtures and other items. Lessee may enter the
Leased Premises for such purpose so long as Lessee coordinates its entry with
Lessor and such entry does not adversely affect Lessor's ability to complete the
Tenant Finish Improvements in a timely fashion. The building permit for the
Leased Premises shall be obtained within thirty (30) days from the date the
plans and specifications are approved by Lessor and Lessee.
4.1.2 Cabling Allowances. Upon execution of this Lease,
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Lessor shall make a Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00)
contribution to Lessee for cabling expenses. If Lessor and Lessee agree on a
renewal term for this Lease, upon commencement of said renewal term, Lessor
shall provide lessee with an additional Seven Thousand Five Hundred Dollars and
00/100 ($7,500.00) for such cabling expenses. Lessee shall timely submit to
Lessor all invoices for actual cabling work completed by Lessee.
4.1.3 Lessor shall contact its architect to prepare a floor
plan. If this Lease is not executed, Lessee shall pay fifty percent (50%) of the
expenses of any architectural fees within ten (10) days from the date Lessee is
invoiced by Lessor. Such architectural fees to be paid by Lessee shall not
exceed Seven Hundred Fifty Dollars and 00/100 ($750.00).
4.1.4 Lessor shall contribute up to Two Thousand and 00/100
Dollars ($2,000.00) for an electronic, key-card access security system to be
selected by Lessee. Any costs incurred above Two Thousand and 00/100 Dollars
shall by the paid by the Lessee.
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5. RENT.
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5.1 Base Rent. Lessee shall pay Base Rent for the Premises for each
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Lessor shall make a Seven (the "Base Rent") as follows:
Lease Year(s) Rent per Sq. Ft.* Annual Base Rent Monthly Base Rent**
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1-2 $16.50 $121,242.00 $10,103.50
3 $17.00 $124,916.00 $10,409.67
4-5 $17.50 $128,590.00 $10,715.83
* Base Rent includes Operating Expenses which for the first Lease Year
shall be $4.38 per square foot. Such Operating Expenses may be adjusted as
specified in Section 7 of this Lease.
** Lessee shall not be required to pay Base Rent for the first month of
the first Lease Year. Lessee shall, however, be responsible for all Cincinnati
Gas and Electric charges during the first month of the first Lease Year.
5.2 Manner of Payment of Base Rent. Lessee shall pay the Base Rent in
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the equal monthly installments set forth in Section 5.1, in advance, on or
before the first day of each month during the Term, without demand, deduction,
counterclaim or set off, at Lessor's notice address or at such other address as
Lessor may designate by notice to Lessee.
5.3 Late Charges. If any installment of Base Rent, Additional Rent
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(as hereinafter defined) or any other amount required to be paid by Lessee under
this Lease (collectively, all such amounts sometimes being referred to herein as
"Rent") is not paid within seven (7) days from the date such Rent is due, Lessee
shall immediately pay Lessor a service fee in the amount of five percent (5%) of
such installment or amount. In addition, if any installment of Base Rent,
Additional Rent or any other amount required to be paid under this Lease is not
paid within seven (7) days from the date when it is due, each such unpaid
installment or amount shall bear interest from the date it was due until paid at
the "Default Rate" (as defined in Section 10.2).
6. SECURITY DEPOSIT.
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6.1 Security Deposit. Concurrently with Lessee's execution of this
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Lease, Lessee has deposited with Lessor the sum of Ten Thousand Four Hundred
Nine and Dollars 67/100 ($10,409.67) as security for the payment by Lessee of
the Base Rent and other charges set forth in this Lease, and for the performance
by Lessee of all the terms and conditions of this Lease. If at any time during
the term of this Lease, Lessee is in default in the performance of any provision
of this Lease, Lessor shall have the right to use all or any part of the
security deposit in payment of any Base Rent or other charges, reimbursement of
any expense incurred by Lessor or payment of any damages incurred by Lessor
because of Lessee's default. If any portion of the deposit is so used or
applied, Lessee shall, within ten (10) days after written demand from Lessor,
remit to Lessor a sufficient
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amount to restore the security deposit to its original amount. If any portion of
the security deposit is so used or applied, Lessor shall, within thirty (30)
days after written demand from Lessee, remit to Lessee an itemized statement
evidencing how the security deposit was used.
6.2 Refund. If the security deposit has not been utilized as provided
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in Section 6.1, then the security deposit, or so much of it as has not been so
utilized, shall be refunded to Lessee, without interest, upon full performance
of all the terms of this Lease by Lessee. Lessor shall have the right to retain
the entire security deposit, or so much as Lessor deems necessary, until either
Lessee vacates the Premises or this Lease is terminated, whichever is later.
6.3 Use and Transfer of Security Deposit. Lessor shall have the right
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to commingle the security deposit with other funds of Lessor. Lessor shall also
have the right to deliver the security deposit to any successor to Lessor's
interest in the Premises, and upon that delivery, Lessor shall be discharged
from further liability with respect to the security deposit. If claims of Lessor
exceed the security deposit, Lessee shall remain liable for the balance of the
claims. Lessee may not assign its right to the security deposit in whole or in
part.
7. ADDITIONAL RENT.
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7.1 Additional Rent. In addition to the Base Rent (which includes
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Additional Rent in the amount of $4.38 per square foot) set forth in Section
5.1, Lessee shall pay to Lessor, as Additional Rent, Lessee's Proportionate
Share (as hereinafter defined) of Operating Expenses (as hereinafter defined) in
excess of $4.38 per square foot for the Building and the Property subject to the
limitations on increases in Controllable Expenses.
7.2 Definitions.
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7.2.1 "Lessee's Proportionate Share" is equal to the number of
leasable square feet of space in the Premises divided by the total number of
square feet of space in the Building.
"Operating Expenses" shall mean all expenses, costs and
disbursements expended by Lessor, including management fees, expenses of a non-
capital nature incurred in any calendar year in operating, maintaining,
servicing and repairing the nonstructural portions of the Building and Property,
including but not limited to, the following:
(1) Taxes. "Taxes" shall mean all real estate taxes and
installments of assessments, or substitutes therefor, all charges in lieu of
taxes, and all other payments in lieu of taxes made by special agreement or
otherwise incurred during any calendar year on the Property, and any personal
property taxes imposed upon the Property. Expenses incurred by Lessor in
obtaining or attempting to obtain a reduction of any Taxes shall be included in
the amount of any such Taxes, up to the extent of any reduction obtained. Taxes
that are being contested by Lessor shall nevertheless be included for purposes
of the computation of Additional Rent; provided,
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however, that if Lessee shall have paid any amount of such Taxes as Additional
Rent and Lessor thereafter receives a refund of any portion of any Taxes on
which such payment was based, Lessor shall refund to Lessee the pro rata share
of such refund, after deducting all expenses, if any, incurred by Lessor in
obtaining such reduction. Except as indicated below, Lessor shall have no
obligation to contest the imposition of any Taxes and, unless Lessee has
requested a challenge as described below, in which event Lessor shall not settle
any dispute unless approved by Lessee, Lessor may settle, consent to, waive or
otherwise resolve any such contest in its sole discretion.
(2) Insurance Costs. "Insurance Costs" shall mean
Lessor's cost of maintaining insurance with respect to the Building and the
Property, including, without limitation, all-risk property and casualty
insurance, liability insurance and rent insurance. Such insurance may be carried
in such amounts and with such companies as Lessor shall determine appropriate or
as Lessor's lender may require.
(3) Maintenance. All driveway and parking
maintenance, including but not limited to, repair, cleaning, striping, snow and
ice removal; planting, replanting, landscaping (but not additional new
landscaping); lobby and restroom cleaning costs, maintenance and cleaning of all
common portions of the Building and garbage removal.
(4) Utility costs (to the extent not separately
metered) associated with the operation of the in-common portions of the Building
and Property, including, if applicable, but not limited to, water, parking area
lights, walkway lights and exterior security lights, waste and sewage charges.
Utility costs shall not include any utility costs incurred by other tenants in
the Building.
Operating Expenses shall not include the cost of work done to space leased
to other tenants or legal fees and all other costs in connection with tenant
leases and enforcing tenant obligations; financing fees, late penalties and
interest or any principal amortization on loans; depreciation or amortization of
the Building and equipment thereon; management fees in excess of 3% of Base
Rent; any costs or expenses associated with damage or destruction to the
Property; costs of any removal, abatement, remediation or containment of any
toxic or hazardous material; costs and expenses incurred for repairs and
replacements due to faulty workmanship or materials used in the construction of
the Building or due structural or design defects; or costs incurred by Landlord
in connection with complying with laws, rules, orders or regulations of
governmental authorities (unless such compliance relates to Lessee's use of the
Premises which is different from office use generally).
Upon fifteen (15) days written notice to Lessor, Lessee shall have the
right each lease year to conduct one audit of Lessor's books and records
relating to Operating Expenses for the prior lease year. In the event such audit
reveals a discrepancy of more than five percent (5%) between Lessor's costs and
the amount Lessee has paid in Additional Rent, Lessee may audit prior lease
years. Lessor shall keep books and records regarding the Operating Expenses.
Furthermore, in the event of a
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discrepancy either Lessor or Lessee shall remit the amount of such discrepancy
to the other party within niney (90) days from the date such audit has been
completed.
(5) "Uncontrollable Expenses" shall be defined as
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water/sewer expenses, real estate taxes, governmental taxes and assessments,
insurance costs and snow removal.
(6) "Controllable Expenses" shall be defined as all
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expenses except Uncontrollable Expenses.
7.3 Budget. For each calendar year during the Term, Lessor
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shall prepare and submit to Lessee a budget showing estimated Operating Expenses
for such calendar year ("Budgeted Expenses") which shall not increase
Controllable Expenses by more than five percent (5%) from year to year. Lessee
shall pay as Additional Rent, in equal monthly installments, in advance, in the
same manner as Base Rent, one twelfth (1/12th) of Lessee's Proportionate Share
of the Budgeted Expenses. For the first Lease Year Operating Expenses are $4.38
per square foot.
7.4 Statements. Following the end of each calendar year ending
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during the Term, Lessor shall furnish to Lessee a itemized statement (the
"Statement") showing a comparison of Lessee's Proportionate Share of the actual
Operating Expenses incurred for the calendar year just ended, with the amount of
Additional Rent paid by Lessee during such year for Budgeted Expenses. If the
amount of Additional Rent for Budgeted Expenses paid by Lessee is less than
Lessee's Proportionate Share of the actual Operating Expenses for such year, the
Statement shall specify the amount of such deficiency (a "Deficiency"), and
Lessee shall pay the amount of such Deficiency within thirty (30) days of such
Statement. If the amount of Additional Rent for Budgeted Expenses paid by Lessee
for the calendar year just ended is greater than Lessee's Proportionate Share of
the Operating Expenses for such year, the Statement shall specify the amount of
such excess (an "Excess"), and Lessee shall be entitled to a credit against the
Additional Rent next becoming due, or, if the Term has ended, a refund in the
amount of any unapplied portion of the Excess.
7.5 Fines Etc. Every fine, penalty, cost and interest payment
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which may be added for nonpayment or late payment of any amounts which Lessee is
required to pay pursuant to this Lease shall also constitute Additional Rent. If
Lessee fails to pay any Additional Rent when due, Lessor shall have all rights,
powers and remedies with respect thereto as are provided herein or by law in the
case of nonpayment of Base Rent.
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8. MAINTENANCE.
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8.1 Lessor's Maintenance and Other Obligations. Lessor shall, at its
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expense except for any of the following which are included as Common Area
Maintenance in Operating Expenses, perform all repairs and maintenance and make
all replacements as are necessary to keep in good order, condition and repair
(i) the roof and all structural elements and portions of the Premises and the
including structural walls, floors and foundations, (ii) all exterior elements
and portions of the Building and the Property, including without limitation
driveways, sidewalks and parking lots, and (iii) any utility lines, pipes,
conduits, equipment and building systems that serve the Premises or the
Building. In addition, Lessor, at its expense, shall repair, replace or restore
all damage to the Premises or the Building caused by the negligent acts or
omissions of Lessor or its agents, contractors, employees or invitees, or by a
breach by Lessor of its obligations under this Lease. In addition to Lessor's
Maintenance Obligations, Lessor shall provide, hot and cold running water,
lights on the exterior at the Premises, common areas and parking lot, janitorial
services, snow removal and signage outside the entrance to the Premises and on
the tenant roster board in the lobby of the Building.
8.2 Lessee's Maintenance. Lessee shall, at its expense, perform all
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repairs and maintenance and make all replacements as are necessary to keep in
good order, condition and repair, all portions of the interior of the Premises,
including, but not limited to, interior walls, floor coverings, carpeting,
finished ceilings, light fixtures, doors and entranceways, glass, windows and
all plumbing, and electrical fixtures and HVAC Systems in the Premises and not
used in common with other present or future lessees of the Building. Lessee
further agrees that it will not cause or permit any waste or damage to the
Premises, subject, however, to ordinary wear and tear, nor allow the
accumulation of boxes, barrels, packages, wastepaper or other trash to the
extent such accumulation is maintained within the Premises and creates an
unreasonably dangerous condition. In addition, Lessee at its expense shall
repair, replace or restore all damage to the Premises or the Building caused by
the negligent acts or omissions of Lessee or its agents, contractors, employees
or invitees, or by a breach by Lessee of its obligations under this Lease.
Lessor shall assign to Lessee any and all warranties in connection with the HVAC
System in the premises. In the event such warranty is not assignable, Lessor
shall pay for such repair or maintenance of the HVAC System to the extent not
covered by warranty and Lessee shall reimburse Lessor its out of pocket expenses
incurred in effectuating such repair or maintenance within thirty (30) days
after receipt of Lessor's invoice.
9. OBLIGATIONS OF LESSEE. During the Term of this Lease, Lessee agrees
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as follows:
9.1 Use of Premises. Lessee shall only use the premises for general
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office purposes and for no other purpose.
9.2 Compliance with Laws and Covenants. During the Term of this
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Lease, and in connection with this Lease and Lessee's possession and occupancy
of the Premises, Lessee shall comply with all laws, regulations and orders of
any governmental authority, in effect as of the
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Commencement Date or thereafter, and related to the use, occupancy, maintenance
and alteration of the Premises and with all restrictive covenants in effect as
of the Commencement Date or thereafter with respect to the Property and/or
Property Improvements. Lessee shall not do or permit anything to be done which
will increase the premiums for fire insurance for the Building. At no time
during the Term shall Lessee store any inventory, equipment or any other
materials, outside the Building. Notwithstanding anything to the contrary
herein, Lessor shall be responsible, at its costs, to construct any alterations
or improvements to the Premises required by any laws, regulations or rules of
any governmental authority except to the extent necessitated by Lessee's use the
Premises which is different from typical office uses.
9.3 Alterations. Except for alterations that (i) are non-structural
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in nature; (ii) do not have an adverse and material impact upon the mechanical,
electrical, plumbing or heating, ventilation and air conditioning systems and
equipment incorporated into the Property Improvements; (iii) do not affect the
exterior appearance of the Property Improvements; and (iv) do not cost in excess
of Five Thousand Dollars ($5,000.00), Lessee shall make no alterations in or to
the Premises, including the parking lots, driveways or open areas as located
thereon, unless and until plans and specifications therefor and the contractors
to be used have been approved by Lessor in writing which shall not be
unreasonably withheld, conditioned or delayed. Lessee may remove its trade
fixtures, personal property and machinery prior to the expiration or earlier
termination of this Lease, provided that Lessee repairs any damage to the
Premises caused by such removal, ordinary wear and tear excepted. Nothing in
this Lease shall, however, be construed to constitute the consent of Lessor to
the creation of any lien, and no person shall be entitled to any lien on the
Premises. In the event, despite this provision, a lien is placed thereon by an
entity or person claiming under Lessee, Lessee shall cause such lien to be
removed or shall, immediately upon request of Lessor, provide a corporate surety
bond satisfactory to Lessor which shall save Lessor harmless under such lien and
from any interest, costs and attorneys' fees incurred by Lessor in connection
therewith. Lessee shall indemnify Lessor from any and all costs and expenses
incurred by Lessor as a result of such liens. All approved installations,
alterations, additions or other improvements made by Lessee shall be made in a
good and workmanlike manner and after the initial move-in, by such contractors
or mechanics as may be approved in writing by Lessor.
9.4 Assignment and Subletting Prohibited. Lessee shall not, without
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the prior written consent of Lessor which shall not be unreasonably withheld,
delayed or conditioned (i) assign, mortgage or encumber this Lease or any
interest under this Lease; (ii) permit any assignment of this Lease by operation
of law; or (iii) permit the use or occupancy of the Premises by any party or
parties other than Lessee or Lessee's agents and employees, provided that
Lessor's consent shall not be needed in connection with an assignment or
sublease arising out of a merger or consolidation, or sale of substantially all
of the assets of Lessee, or any changes or transfers of ownership and or control
of Lessee or Lessee's business.
9.5 Right of Recapture. If Lessee desires to assign this Lease or
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sublet the Premises in whole or in part, Lessee shall give Lessor written notice
at least thirty (30) days prior to the proposed effective date of the assignment
or subletting. Lessee's notice shall include all of the
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terms of the proposed assignment or sublease and shall state the consideration
therefor. Lessee's notice shall state the name and address of the proposed
assignee or subtenant and a true and complete copy of the proposed assignee or
subtenant and a true and complete copy of the proposed assignment or sublease,
shall be delivered to lessor with Lessee's notice. In such event, if Lessor's
consent is required for such subleasing or assignment, Lessor shall have the
right, to be exercised by giving notice to Lessee within ten (10) days after
receipt of Lessee's notice, to recapture the space described in Lessee's notice
and such recapture notice shall, if given, cancel and terminate this Lease with
respect to the affected space as of the date stated in Lessee's notice. If
Lessee's proposed assignment or sublease covers all of the Premises, and Lessor
exercise its recapture right, the Term of this Lease shall expire on the date of
commencement of the Term of the proposed sublease, or on the effective date of
the proposed assignment stated in Lessee's notice as if that date had been fixed
for the expiration of the term hereof. If, however, this Lease is canceled with
respect to less than the entire Premises, the Base Rent shall be adjusted on the
basis of the number of square feet retained by Lessee in proportion to the
number of square feet contained in the Premises, and this Lease as so amended
shall continue in full force and effect.
9.6 Subletting Adjustment. For the purposes of this Section 9.6,
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the following terms shall have the following meanings:
(A) "Subletting Rent" shall mean the gross amount of rent or other
consideration paid during the term of this Lease to Lessee, as a
sublessor or assignor, by a sublessee or assignee, pursuant to a
sublease or assignment, less Lessee's actual out-of-pocket
expenses of subletting.
(B) "Excess Subletting Rent" shall mean that amount of Subletting
Rent for any month during the term of this Lease which is in
excess of the amount of Base Rent owed by Lessee to Lessor under
Section 5 of this Lease for the same month. Excess Subletting
Rent shall be deemed "rent" for all purposes under this Lease.
During the Term of this Lease, Lessee shall pay to Lessor, in addition
to rent and other sums due Lessor hereunder, one hundred (100%) of the amount of
any Excess Subletting Rent.
Notwithstanding the foregoing, Sections 9.5 and 9.6 of this Lease
shall not apply to those sublessee's that Lessor approves in writing on such
forms pre-approved by Lessor. Such subleases shall be in the ordinary course of
Lessee's business and shall not, in the aggregate, constitute more than twenty
percent (20%) of the Premises.
Nothing contained in this Section 9.6 shall be construed at any time
to reduce the monthly installments of Base Rent payable by Lessee to Lessor, or
to permit or authorize a subletting or assignment other than in accordance with
Section 9.4.
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9.7 Lessee Not Released. Except as provided in Section 9.5, and
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notwithstanding Lessor's consent, no subletting or assignment shall release or
discharge Lessee from any past, present or future liability under this Lease.
Each permitted subtenant or assignee shall agree to comply with and be bound by
all of the terms, conditions, and agreements of this Lease to the extent of the
space sublet or assigned, and Lessee shall deliver to Lessor, promptly after
execution, an executed copy of each such sublease or assignment and an agreement
of compliance by each such subtenant or assignee in a form satisfactory to
Lessor. If this Lease is assigned or if any part of the Premises is sublet or
occupied by anyone other than Lessee, Lessor may, after default by Lessee,
collect rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Base Rent reserved in this Lease, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of Lessee's
covenants contained in this Lease or the acceptance of the assignee, subtenant
or occupant as Lessee, or a release of Lessee from further performance by Lessee
of Lessee's covenants contained in this Lease.
9.8 Reimbursement of Lessor's Costs. Lessee agrees to pay to Lessor,
-------------------------------
on demand, all reasonable costs up to a maximum of $1,000 including, but not
limited to, reasonable attorneys' fees and fees for the preparation and/or
review of all applicable documents, incurred by Lessor in connection with any
request by Lessee that Lessor consent to any assignment or subletting of the
Premises except for Lessor's initial review of any subleasing documents
referenced in Section 9.4 above.
9.9 Effect of Prohibited Transaction. Lessor shall not be bound by
--------------------------------
any sale, assignment, mortgage, transfer, or subletting of this Lease or
transfer of control of Lessee which is not in compliance with the provisions of
this Section 9.
9.10 Signs. Lessor shall either approve or disapprove (which
-----
disapproval shall be accompanied by the reasons for Lessor's disapproval) any
requests for signage within ten (10) days after Lessor's receipt of Lessee's
request and all information and details reasonably necessary for Lessor to make
its decision. Lessee shall be responsible, at its expense, for obtaining any
permits relating to its signage requirements. Lessor shall remove the word
"medical" for the interior lobby plaque. Lessor shall also have the Lessee's
name, Sight Resource Corporation, inserted on the main entrance door.
9.11 Utilities. Lessor shall provide (via the respective utility
---------
company) all utility services to the Premises. To the extent Lessee's utilities
are separately metered, Lessee shall directly pay the provider for all utilities
furnished to or consumed solely on the Premises, with the exception of water
which shall be included in Operating Expenses. If such utilities are not
separately metered, Lessee shall pay Lessor directly for Lessee's Proportionate
Share of Lessor's out-of-pocket cost for utilities within ten (10) days from the
date of Lessor's invoice, which shall be itemized.
-13-
10. RIGHTS RESERVED TO LESSOR. Lessor shall have the following rights:
-------------------------
10.1 Entrance. Lessor shall have the right to inspect and to show
--------
the Premises at all reasonable times, after 24-hour notice, for appraisal
purposes or to show to prospective Purchasers or Lenders. Lessor shall have the
right to enter, after 24-hours notice, and show the Premises at all reasonable
times to prospective Lessee's provided that this Lease is in the final One
Hundred Eighty (180) days of the Initial Lease Term or Renewal Term in which
Tenant declines to exercise its option to renew or within One Hundred Eighty
(180) days prior to the expiration of the final Renewal Term, and to enter the
Premises at any reasonable time, after 24-hour notice, to make such repairs,
additions or alterations as it may deem necessary for the safety, improvement,
or preservation of the Premises, all of which shall be done during normal
business hours in such a manner as not to interfere materially with Lessee's use
of the Premises, except in the case of an emergency.
10.2 Right to Cure. All costs, charges, adjustments and expenses
-------------
which Lessee is obligated to pay under this Lease (including but not limited to
amounts payable in order to release liens) shall be deemed to be Additional Rent
and shall be collectible in the same manner as the Rent and, in the event of
nonpayment, Lessor shall have the same rights and remedies provided for in the
case of nonpayment of Rent. If Lessee fails to make any payment which it is
required to make (other than the payment of Rent), including but not limited to
payment of any utility costs, whether or not separately metered, or shall
default in performing any of its obligations under this Lease, Lessor, at its
option, at any time after ten (10) days' notice to Lessee, may (but shall not be
obligated to) make such payment, or cause any such obligation of Lessee to be
performed for and on behalf of Lessee, expending such sums as may be necessary
to perform or satisfy any such obligation of Lessee. All sums so expended by
Lessor, together with interest at a rate (the "Default Rate") equal to the
lesser of four percent (4%) over the prime rate then in effect at The Provident
Bank, or its successor, or the maximum rate allowable by law, from the date of
such expenditure until paid in full, shall be deemed Additional Rent, and shall
be repaid by Lessee to Lessor on demand; but no such payment, act or expenditure
by Lessor shall be deemed a waiver of Lessee's default nor shall it affect any
other remedy of Lessor by reason of such default.
11. RIGHTS OF THE PARTIES IN THE EVENT OF EMINENT DOMAIN OR CASUALTY.
----------------------------------------------------------------
11.1 Eminent Domain. In the event the Premises or any "material
--------------
portion" thereof (as hereinafter defined) shall be acquired by the exercise of
eminent domain by any public or quasipublic body or otherwise taken or
condemned, then Lessor may terminate this Lease as of the date that possession
thereof is taken by the condemning authority by giving written notice to Lessee.
Lessor shall also have the right to terminate this Lease if all or any
substantial part of the Building or Property is taken or condemned or sold under
threat of taking. The rights of termination of Lessor under this Section 11.1
shall be exercised within a reasonable time after notice of the taking, but in
no event later than the effective date of the taking or sale. Lessee shall have
no claim against Lessor or the condemning authority on account of such taking
for the value of the remaining unexpired term of this Lease, and all damages
awarded or compensation given as a result of such taking shall belong
-14-
to and be the sole property of Lessor, except Lessee shall be entitled to any
specific award or compensation allocated to the cost of removal of equipment or
property of Lessee or relocation by Lessee. A portion of the Premises so
acquired shall be deemed to be a "material portion" thereof if the remainder
thereof is not suitable for the conduct of Lessee's business, as determined in
Lessee's reasonable discretion.
11.2 Fire and Casualty.
-----------------
11.2.1 If less than a substantial portion of the Premises (as
described in Section 11.2.5) is partially damaged by fire or other casualty,
Lessor shall repair and restore the damaged portion of the Premises to
substantially the same condition prior to such fire or other casualty within one
hundred eighty (180) days after the date of such destruction or damage, except
that Lessor shall not be required to repair or restore any leasehold
improvements installed in the Premises by Lessee. If Lessor fails to repair and
restore the Premises within one hundred eighty (180) days after the date of such
damage or destruction, then Lessee may elect (1) to make or complete such
repairs, and Lessor shall reimburse Lessee promptly upon demand for any costs
thereof, or (2) terminate this Lease after having provided thirty (30) days
prior notice of such termination.
11.2.2 If all or a substantial portion of the Premises is
damaged, destroyed or rendered unfit for occupancy as a result of fire or other
casualty such that it is reasonably determined by Lessor that the Premises can
be restored to substantially its condition prior to the casualty within one
hundred eighty (180) days after the casualty date, Lessor may elect, by giving
written notice to Lessee within thirty (30) days after the casualty date (i) to
terminate this Lease as of the casualty date; or (ii) to repair and restore the
Premises. If the Premises or a substantial portion thereof is so damaged,
destroyed or rendered unfit such that Lessor determines that it cannot be
restored to substantially its condition prior to such casualty within one
hundred eighty (180) days after the casualty date, or if the insurance proceeds
are insufficient to restore the Premises to substantially its condition prior to
the casualty, either party may elect, by giving written notice to the other
within thirty (30) days after the casualty date, to terminate this Lease. If
this Lease has not been terminated by a party having the right to do so in
accordance with this Section 11.2.2 by the date thirty (30) days after the
casualty date, then Lessor shall with due diligence repair and restore the
Premises to substantially its condition prior to the casualty. If Lessor fails
to repair and restore the Premises as specified above within one hundred eighty
(180) days after the casualty date, then Lessee may elect to terminate this
Lease. If this Lease is terminated in accordance with this Section 11.2.2, the
Rent and all additional charges shall be prorated as of the date of the
casualty.
11.2.3 All Rent, until such repairs as Lessor elects or is
required to undertake are substantially completed, shall be abated according to
a pro-rata calculation in proportion to the part of the Premises which is not
tenantable by Lessee, as determined in Lessee's reasonable discretion.
11.2.4 If this Lease is not terminated pursuant to Section
11.2.2, Lessee shall as promptly as practicable after the occurrence of any
damage or destruction make such repairs and
-15-
replacements in the Premises as are necessary to restore Lessee's leasehold
improvements, as determined by Lessee.
11.2.5 A substantial portion of the Premises for the purposes
of this Article 13 shall be deemed to mean (1) that Lessee is unable to use
forty percent (40%) or more of the space in the Premises for the operation of
Lessee's business or (2) material damage to the mechanical systems that service
the Premises.
12. INSURANCE; DAMAGE TO LESSEE'S PROPERTY.
--------------------------------------
12.1 Insurance. During the term of this Lease, Lessor shall maintain
---------
insurance against fire and such other risks as are from time to time included in
an "all-risk" of loss insurance policy, including earthquake coverage, insuring
the full replacement cost of the Building and the Premises including without
limitation the Tenant Finish Improvements. Lessor's insurance may also include
plate glass coverage and such rent and/or business interruption coverage as
Lessor may deem appropriate or as Lessor's lender may require in order to
protect the rent payments that would otherwise be paid by Lessee during any
period of restoration. All of Lessee's personal property placed in or about the
Premises shall be at Lessee's sole risk, and Lessor and its agents and employees
shall not be liable to Lessee, or its agent or employees for theft, loss or
misappropriation, or for any damage or injury due to explosion, water, rain,
snow, frost, steam, gas, electricity, heat, cold, dampness, falling plaster,
sewage, odors, noise, leaks from any part of the Building or the roof, the
bursting or leaking of pipes, plumbing, electrical wiring and equipment and
fixtures of all kinds, or any act or neglect of any other person or from any
other cause whatsoever, except for the negligence or willful misconduct of
Landlord or its employees or agents. Lessee shall give immediate notice to
Lessor in case of fire or accident in the Premises or of any defects, damage or
injury in the Premises or in any fixtures or equipment.
12.2 Waiver of Claims. Notwithstanding any other provisions of this
----------------
Lease, to the extent that insurance coverage is required to be maintained by
this Lease, Lessor shall not be liable for loss or damage to any fixtures,
furnishings, leasehold improvements or personal property located or found in or
around the Premises caused by fire or other perils usually covered by an "all-
risk" of loss insurance policy, and to the extent permitted by its insurance,
Lessee waives all rights of subrogation against Lessor with respect to such
perils. Notwithstanding any other provision of this Lease, to the extent that
insurance coverage is required to be maintained by this Lease, Lessee shall not
be liable for loss or damage to the Premises or the Building caused by fire or
other perils usually covered by "all-risk" of loss insurance policy, and to the
extent permitted by its insurance, Lessor waives all rights of subrogation
against Lessee with respect to such perils. Lessor and Lessee shall each cause
their respective insurance policies to be maintained pursuant to this Article 12
to contain waivers of subrogation as described in this Section 12.2.
12.3 Lessee's Insurance. Lessee shall carry and maintain public
------------------
liability insurance on the Premises throughout the Term covering Lessor as an
additional insured and any mortgagee of the Premises as an additional insured,
with terms and companies satisfactory to Lessor and for limits
-16-
of not less than Two Million Dollars and 00/100 ($2,000,000.00) for personal
injury or death arising out of any one occurrence and not less than One Million
Dollars and 00/100 ($1,000,000.00) for damage to property arising out of any one
occurrence. Lessee shall also carry insurance against fire and such other risks
as are from time to time included in an "all-risk" of loss insurance policy,
insuring the full replacement cost of all items of personal property located on
or within the Premises, regardless of whether any such items will constitute
fixtures and be surrendered to Lessor upon expiration of the Term, and all
leasehold improvements installed by Lessee. All such policies shall be
cancelable only upon thirty (30) days prior written notice to Lessee and Lessor.
Prior to the commencement of the Term and within fifteen (15) days prior to the
expiration of each such policy, Lessee, upon any request by Lessor, shall
furnish Lessor with copies of such policies or certificates evidencing that such
insurance is in full force and effect and stating the terms of the insurance.
13. INDEMNIFICATION.
---------------
13.1 Lessee's Indemnification. Lessee shall be responsible and
------------------------
liable to Lessor for any damage to the Premises resulting from the negligence of
Lessee, its employees, licensees, invitees, or agents, except as provided in
Section 12.2. Lessee shall defend, indemnify and save harmless Lessor against
any and all claims arising in any way from Lessee's use and occupancy of the
Premises or from any work or thing done by or on behalf of Lessee in or about
the Premises (other than the Tenant Finish Improvement), and Lessee will further
defend, indemnify and save Lessor harmless from and against any and all claims
arising from any breach or default in the performance of any of Lessee's
obligations under this Lease or arising from any act or negligence of Lessee,
its agents, contractors, employees, invitees and licensees, and from and against
all costs, counsel fees, expenses and liabilities incurred in connection with
any such claim.
13.2 Lessor's Indemnification. Lessor shall be responsible and
------------------------
liable to Lessee for any damage to the Premises resulting from the negligence of
Lessor, its employees, licensees, invitees, or agents, except as provided in
Section 12.2. Lessor shall defend, indemnify and save harmless Lessee against
any and all claims arising in any way from Lessor's use and occupancy of the
Premises or from any work or thing done by or on behalf of Lessor in or about
the Premises, and Lessor will further defend, indemnify and save Lessee harmless
from and against any and all claims arising from any breach or default in the
performance of any of Lessor's obligations under this Lease or arising from any
act or negligence of Lessor, its agents, contractors, employees, invitees and
licensees, and from and against all costs, counsel fees, expenses and
liabilities incurred in connection with any such claim.
14. REPRESENTATIONS AND WARRANTIES OF LESSOR. In order to induce Lessee to
----------------------------------------
enter into this Lease, Lessor represents and warrants to Lessee as follows,
which representations and warranties are true on the date Lessor is executing
this Lease. In addition, Lessor covenants to notify Lessee promptly in writing
if Lessor becomes aware that any of the following representations and warranties
will not be materially true as of the Commencement Date, in which
-17-
event Lessee shall have no obligations hereunder, including, without limitation,
the obligation to pay any Rent hereunder, until such time as the following
matters are true in all material respects:
14.1 Title. Lessor holds fee simple title to the Premises, free,
-----
clear and unencumbered, subject only to record exceptions to title, which will
not impair the rights of Lessee under this Lease and which will not interfere
with Lessee's use and occupancy of the Premises pursuant to the terms of this
Lease.
14.2 Utilities. All water, sewer, gas, electric and drainage
---------
facilities necessary for the Building's use and operation and all other
utilities required by law are available to service the Premises for Lessee's use
and occupancy of the Premises pursuant to the terms of this Lease.
14.3 Lessor's Organizational Status. Lessor is an Ohio limited
------------------------------
liability company duly organized, validly existing and has filed all
certificates and other documents necessary under Ohio law.
14.4 Legal Access. That there will be ingress and egress to the
------------
Premises from a dedicated and accepted public street or highway or a recorded
easement suitable for Lessee's use and occupancy of the Premises pursuant to the
terms of this Lease.
14.5 Compliance With Law. As of the Commencement Date, the Building,
-------------------
the Premises and the Tenant Finish Improvements shall comply with all applicable
federal, state and local laws, rules, orders, regulations and ordinances.
14.6 Zoning. The Property is zoned for office use.
------
14.7 Lobby. Lessor shall provide Lessee for use in common with other
-----
tenants in the Building, a furnished lobby. Such furnishings shall be comparable
to other first class office buildings of similar size and character located
within the greater Cincinnati area.
15. DEFAULTS AND REMEDIES.
---------------------
15.1 Defaults by Lessee. Each of the following shall be deemed an
------------------
"Event of Default" by Lessee:
15.1.1 Failure to pay Rent, or any other amounts herein
provided to be paid within seven (7) days from the date Lessor provides Lessee
written notice that such Rent or other amounts are due or seven (7) days from
the date due if Lessor is not obligated to provide notice pursuant to the
immediately preceding sentence. Lessor shall only be required to provide such
notice of default once per Lease Year;
15.1.2 Failure to perform any other act to be performed by
Lessee hereunder or to comply with any condition or covenant contained herein on
Lessee's part to be kept or
-18-
performed, and such failure continues for a period of thirty (30) days after
written notice from Lessor to Lessee; provided that such period shall be
extended for the period of time reasonably necessary to cure such failure so
long as Lessee promptly commences such cure within such thirty (30) day period
and thereafter diligently prosecutes such cure to completion; or
15.1.3 Lessee's adjudication as a bankrupt; the making by
Lessee of a general assignment for the benefit of creditors by or against
Lessee; Lessee's taking the benefit of any insolvency action or law; the
appointment of a permanent receiver or trustee or custodian in bankruptcy for
Lessee or its assets; the appointment of a temporary receiver for Lessee or its
assets if such temporary receivership has not been vacated or set aside within
thirty (30) days from the date of such appointment; the initiation of an
arrangement or similar proceedings for the benefit of creditors by or against
Lessee; or the termination of Lessee's existence, whether by dissolution,
agreement, death or otherwise.
15.2 Remedies of Lessor. Upon the occurrence of any Event of Default
------------------
by Lessee as provided in Section 15.1, Lessor shall have the immediate right to
re-enter and may remove all persons and property from the Premises. Whether or
not Lessor elects to re-enter, as herein provided, or take possession pursuant
to legal proceedings or pursuant to any notice provided by law, Lessor may (i)
at its option terminate this Lease by giving written notice to Lessee specifying
a date on which this Lease shall terminate, and upon such date, this Lease shall
terminate, and/or (ii) from time to time, without terminating this Lease, relet
the Premises or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Lessor in the exercise of its sole discretion
may deem advisable, with the right to make alterations and repairs to the
Premises as necessary in order to so relet the Premises. Lessor may from time to
time, without terminating this Lease, enforce all of its rights and remedies
under this Lease or available to Lessor at law or in equity. Nothing contained
in this Lease shall be deemed a limitation upon any remedies available to
lessor. Lessor shall use reasonable, good faith efforts to mitigate its damages
upon the occurrence of an Event of Default. The proceeds of any re-letting shall
be applied first to pay Lessor all costs and expenses of such re-letting
(including without limitation costs and expenses of retaking or repossessing the
Premises, removing persons and property therefrom, securing new tenants,
including expenses for redecoration, alterations and other costs in connection
with preparing the Premises for the new tenant) and receivers' fees incurred in
connection with the appointment of and performance by a receiver to protect the
Premises and Lessor's interest under this Lease and any necessary or reasonable
alterations; second, to the payment of any indebtedness of Lessee to Lessor
other than Rent due and unpaid hereunder; third, to the payment of Rent due and
unpaid hereunder; and the residue, if any, shall be held by Lessor and applied
in payment of other or future obligations of Lessee to Lessor as the same may
become due and payable, and Lessee shall not be entitled to receive any portion
of such revenue.
Upon the occurrence of any Event of Default and termination, re-entry,
expiration and/or dispossession by summary proceedings or otherwise, (1) all
Rent up to the date of such occurrence shall become due thereupon and be paid up
to the time of such re-entry, dispossession
-19-
and/or expiration; and/or (2) Lessee shall also pay Lessor as liquidated damages
for the failure of Lessee to observe and perform Lessee's covenants herein
contained, any deficiency between the Rent hereby reserved and/or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
lease or leases of the Premises for each month of the period which would
otherwise have constituted the balance of the term of this Lease. The failure of
Lessor to re-let the Premises or any part or parts thereof shall not release or
affect Lessee's liability for damages and in any event, Lessee shall remain
liable for all Rent and other amounts which become due before or after the Event
of Default, even if Lessor retakes possession of the Premises. In computing such
liquidated damages there shall be added to such deficiency such reasonable
expenses as Lessor may incur in connection with re-letting such as legal
expenses, reasonable attorneys' fees, brokerage and for keeping the Premises in
good order. Any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Lessor to collect the
deficiency for any subsequent month by a similar proceeding. Lessor shall in no
event be liable in any way whatsoever for failure to re-let the Premises, or in
the event the Premises are re-let, for failure to collect the rent under such
re-letting. Mention in this Lease of any particular remedy shall not preclude
Lessor from any other remedy, in law or in equity. Lessee hereby expressly
waives any and all rights of redemption granted by or under any laws in effect
as of the Commencement Date or thereafter in the event of Lessor obtaining
possession of the Premises, by reason of the violation by Lessee of any of the
covenants and conditions of this Lease, or otherwise.
If Lessee shall fail to make any payment or perform any act required
to be made or performed under this Lease, Lessor, without waiving or releasing
any obligation or default, may (but shall not be obligated to) at any time, and
upon reasonable notice to Lessee, make the payment or perform the act for the
account and at the expense of Lessee, and may enter upon the Leased Premises for
that purpose and take all actions as may be necessary to correct Lessee's
breach. No such entry shall be deemed an eviction of Lessee. All sums so paid by
Lessor and all costs and expenses (including, but not limited to, reasonable
attorney's fees and expenses) so incurred, together with interest at the rate of
18% per annum from the date of payment, shall constitute additional rent and
shall be payable by Lessee to Lessor on demand.
15.3 Attorneys' Fees. In the event either party defaults in the
---------------
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and the non-defaulting party places the enforcement of this Lease,
or the collection of any Rent due or to become due, or recovery of possession of
the Premises, in the hands of an attorney, or files suit upon the same, the
defaulting party agrees to pay all reasonable attorneys' fees incurred by the
non-defaulting party.
15.4 Condition on Lessor's Liability. Lessee shall not be entitled
-------------------------------
to claim a constructive eviction from the Premises unless Lessee shall have
first notified Lessor of the condition or conditions giving rise to such claim,
and Lessor shall have failed within a reasonable time after receipt of such
notice to remedy such conditions to Lessee's reasonable satisfaction.
15.5 Lessee's Remedies. In the event that Lessor fails to perform
-----------------
any act to be performed by Lessor hereunder or to comply with any material
condition or covenant contained
-20-
herein on Lessor's part to be kept or performed and such failure continues for a
period of thirty (30) days after written notice from Lessee to Lessor; provided
that such period shall be extended for the period of time reasonably necessary
to cure such failure so long as Lessee promptly commences such cure within such
30-day period and thereafter diligently prosecutes such cure to completion, then
Lessee, in addition to any other remedy herein, may terminate this Lease without
further liability to Lessor and pursue any remedies, at law or in equity, to
which Lessee is entitled.
16. BROKER. As part of the consideration for the granting of this Lease,
------
Lessee represents and warrants to Lessor that no broker negotiated this Lease or
was instrumental in negotiating or consummating this Lease on behalf of Lessee.
Lessee agrees to indemnity Lessor for any breach of the foregoing warranty.
Lessor represents and warrants to Lessee that no broker other than Xxxxx &
Xxxxx/West Shell Commercial on behalf of Lessor negotiated or was instrumental
in negotiating or consummating this Lease and Lessor agrees to indemnify the
Lessee for any breach of the foregoing warranty.
17. ENTRY BY LESSOR. Lessee shall provide Lessor with the names of two
---------------
persons Lessor may contact for entry into the Premises for emergencies and for
other matters arising in administering this Lease. If, after reasonable notice
to Lessee, except in the case of emergency, a representative of Lessee is not
present to permit Lessor to enter the Premises at any time that entry is
necessary or permissible, Lessor or its agents may enter by a master key or may,
if necessary, in the case of emergency, forcibly enter the same without any
liability, provided that, during such entry, reasonable care shall be used to
avoid damage or injury to Lessee's property.
18. LESSOR'S SUCCESSORS. The term "Lessor" as used in this Lease shall be
-------------------
limited to mean and include only the owner or owners, at the time, of the fee of
the Premises, their successors and assigns, so that in the event of any
subsequent bona fide sale or sales, conveyance or conveyances of the Premises,
the previous Lessor shall be entirely released with respect to the performance
of all subsequently accruing covenants and obligations on the part of Lessor
provided that Lessor is not in default under this Lease at the time of such
conveyance and the successor Lessor assumes all of such departing Lessor's
obligations hereunder. The retention of fee ownership by a Lessor of the
Building or of the land on which it is located under an underlying lease which
is now or hereafter in effect, shall not be deemed to impose on such underlying
lessor any liability, initial or continuing, for the performance of the
covenants and obligations of Lessor.
19. LIMITATION UPON LESSOR'S LIABILITY. Each and every term, covenant,
----------------------------------
condition, and provision of this Lease is hereby made specifically subject to
the provisions of this Article 19. It is specifically understood and agreed that
Lessee shall have no right to obtain a judgment against any member of Lessor or
any officer, manager or employee of Lessor, for any sum of money which is or may
be payable under this Lease, or for any deficiency after realization against the
Premises, or to enforce or attempt to enforce a claim for any such sum against
any of the assets of any shareholder or any officer, director or employee of
Lessor. Such exculpation of personal liability is absolute and without any
exception whatsoever.
-21-
20. ENVIRONMENTAL MATTERS.
---------------------
20.1 General. Lessee covenants and agrees with Lessor as
-------
follows:
20.1.1 All notices, permits, licenses or similar
authorizations, if any, required to be obtained or filed in connection with the
use and operation of the Premises by Lessee, or anyone claiming by, through or
under Lessee, including, without limitation, treatment, storage, disposal or
release of a hazardous substance or solid waste into the environment shall be
duly obtained or filed by Lessee at its expense;
20.1.2 All hazardous substances or solid waste
generated at the Premises shall be transported, treated and disposed of only by
carriers maintaining valid permits under the Resource Conservation and Recovery
Act (42 U.S.C. (S)(S) 6901 et seq.), as amended ("RCRA") and any other
environmental laws, and only at treatment, storage and disposal facilities
maintaining valid permits under RCRA and any other environmental laws; and
20.1.3 The use of the Premises by Lessee, or anyone
claiming by, through or under Lessee, shall not result in the unlawful or
unauthorized disposal or other release of any hazardous substance or solid waste
on or to the Premises.
20.2 Definitions.
-----------
20.2.1 The terms "hazardous substance," "release,"
and "threatened release" have meanings as specified in the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), and the terms
"solid waste" and "disposal" (or "disposed") have meanings as specified in RCRA;
provided, however, in the event either CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such broader meaning shall
apply after the effective date of such amendment, and provided further that to
the extent the laws of the State of Ohio establish a meaning for "hazardous
substance," "release," "solid waste," or "disposal" which is broader than that
specified in either CERCLA or RCRA, such broader meaning shall apply.
20.2.2 The term "environmental laws" means any and
all laws, statutes, ordinances, rules, regulations, orders, or determinations of
any governmental authority pertaining to health or the environment in effect in
any and all jurisdictions in which the Premises is located, including, without
limitation, the Clean Air Act, the Clean Water Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Occupational Safety
and Health Act, the Resource Conservation and Recovery Act, the Safe Drinking
Water Act, and the Toxic Substances Control Act, all as amended and including
all regulations, permits, and orders issued thereunder.
20.3 Lessee's Indemnity of Lessor. Lessee, for itself and
----------------------------
its successors and assigns, hereby undertakes to protect, indemnify and save
Lessor and its successors and assigns harmless
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from any and all liability, loss or damage that Lessor or its successors or
assigns may suffer as the result of claims, demands, costs, or judgments against
any or all of them, by any third party, including, without limitation, any
governmental authority arising from any actual or alleged violation by Lessee or
anyone claiming by through or under Lessee of any environmental law, including,
but not limited to, liability for costs and expenses of abatement, correction or
cleanup, fines, damages, defense costs and penalties, and liability for personal
injury or property damage arising under any statutory or common law tort theory,
including, without limitation, damages assessed for the maintenance of any
public or private nuisance, or for the carrying on of any abnormally dangerous
activity. The provisions of this indemnity shall survive this Lease, but shall
only apply to claims, demands, costs or judgments arising due to occurrences or
activities which occur on or after the date Lessee takes possession.
20.4 Lessor's Indemnity of Lessee. Lessor, for itself and its
----------------------------
successors and assigns, hereby undertakes to protect, indemnify and save Lessee,
and its successors and assigns, harmless from any and all liability, loss or
damage that Lessee, or its successors or assigns may suffer as a result of
claims, demands, costs or judgments against any or all of them by any third
party, including without limitation, any governmental authority, to the extent
any such liability, loss or damage arises from any condition of the Property
that existed prior to the Commencement Date or from any actual or alleged
violation by Lessor or anyone claiming by, through or under Lessor, or any
predecessor owner or occupant of the Land of any environmental law, including
but not limited to, liability for costs and expenses of abatement, correction or
clean up, fines, damages, defense costs and penalties, and liability for
personal injury or property damage arising under any statutory or common law
tort theory, including without limitation, damages assessed for the maintenance
of any public or private nuisance, or for the carrying on of any normally
dangerous activity.
21. MISCELLANEOUS PROVISIONS.
------------------------
21.1 Right of Quiet Enjoyment. If Lessee shall perform all
------------------------
covenants and agreements herein provided to be performed by Lessee, Lessee
shall, at all times during the Term, have the peaceable and quiet enjoyment of
possession of the Premises, free of hindrance and molestation by Lessor, or any
person or entity claiming by, through or under Lessor, subject to the provisions
of this Lease.
21.2 Subordination/Non-Disturbance. This Lease and all
-----------------------------
Lessee's rights under this Lease are subject and subordinate to all underlying
leases, trust indentures and mortgages (collectively, "Mortgages") now or
hereafter placed on or affecting the Premises, or any interest therein, and all
renewals, modifications, consolidations, replacements, substitutions, additions
and extensions of any such Mortgages, provided that as to any Mortgage now or
hereafter placed on the Premises, the holder thereof executes in recordable form
and delivers to Lessee a nondisturbance agreement in which such holder agrees
not to disturb Lessee's leasehold interest under this Lease and/or its rights
with respect to the Premises so long as no material default hereunder has
occurred and is continuing. This provision regarding subordination shall be
effective upon the recording of the non-disturbance agreement specified above.
In confirmation of such subordination, Lessee shall
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execute and deliver within seven (7) days after any request by Lessor any
subordination agreement that Lessor may reasonably request. In the event any
proceedings are brought for the foreclosure of any Mortgage or the termination
of any underlying lease, Lessee shall, upon request, attorn to the purchaser or
transferee upon foreclosure, and/or the holder of the reversion under any such
underlying lease, and recognize such purchaser, transferee or holder as the
Lessor under this Lease to the same extent and effect as the original Lessor.
Lessee agrees to execute and deliver upon the request of Lessor, or any such
purchaser, transferee or holder, any instrument necessary or desirable to
evidence such attornment. If the non-disturbance agreements are provided by the
holders of each of the Mortgages as provided above, then Lessee shall waive any
right which it may have by law to terminate this Lease or to surrender
possession of the Premises by reason of any such foreclosure proceedings or
termination of any underlying lease. Lessor shall use reasonable efforts to
obtain a Subordination, Nondisturbance and Attornment Agreement from the current
holder of the mortgage on the Property in form reasonably satisfactory to Lessee
within thirty (30) days after the date of this Lease.
21.3 Estoppel Certificates. Within fifteen (15) days after
---------------------
receipt from Lessor, Lessee, any owner, transferee or purchaser at foreclosure
of the Building, any potential purchaser of the Building pursuant to contract,
or any holder or potential holder of a Mortgage, Lessor or Lessee will execute
estoppel certificates addressed to such person(s), certifying as to such facts
(if true) and agreeing to such notice provisions and other matters, as such
person(s) may reasonably require with respect to the status of this Lease.
21.4 Rights of Assigns. Except where specifically limited, the
-----------------
rights and liabilities of the parties hereto shall run to the benefit of and
shall be binding upon the representatives, heirs, devisees, assigns and
successors in interest of Lessor and Lessee.
21.5 Surrender at End of Term. Lessee shall quit and surrender
------------------------
the Premises at the expiration or earlier termination of this Lease. The
Premises shall be broom clean, in the same condition and repair as of the
Commencement Date, except for ordinary wear and tear damage by fire and casualty
and repairs which are Lessor's obligation hereunder, with alterations, additions
and improvements, except as otherwise provided herein. Lessee's obligations
under this Section shall survive the expiration or earlier termination of this
Lease.
21.6 Holding Over. At the expiration or earlier termination of
------------
the Term of this Lease, any holdover shall be from month to month on the same
terms and conditions as herein provided, except that monthly Base Rent shall be
an amount equal to one and one-half (1 1/2) the monthly Base Rent due at the
expiration of the Term, and in the event of such holdover this Lease may be
terminated by either party by providing thirty (30) days' prior written notice
to the other.
21.7 Waiver. No waiver of any covenant or condition, or the
------
breach of any covenant or condition of this Lease shall be taken to justify or
authorize a nonobservance on any other occasion of such covenant or condition or
any other covenant or condition or to constitute a waiver of any subsequent
breach of such covenant or condition. Acceptance of Base Rent,
-24-
Additional Rent or any other sums by Lessor at any time when Lessee is in
default of any covenant or condition hereof shall not be construed as a waiver
of any such default or of Lessor's right to terminate this Lease on account of
such default.
21.8 Notice. Any notice, consent or waiver required or
------
permitted to be given or served by either party to this Lease shall be in
writing and mailed by certified or registered mail, return receipt requested,
addressed as follows:
Lessor: Park Place, LLC
00000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
With a
Copy to: Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L.
1400 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Lessee: Sight Resource Corporation
0000 Xxxxxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Either party may, from time to time, change its notice address
by notice to the other in accordance with the provisions of this Section.
21.9 Inability to Perform. Neither party shall be deemed to
--------------------
be in default under this Lease if such party is unable to fulfill any of its
obligations under this Lease, or to supply, or is delayed in supplying, any
service expressly or impliedly to be furnished, or is unable to make, or is
delayed in making, any improvements, repairs, additions, alterations or
decorations, or is unable to supply or is delayed in supplying any equipment or
fixtures, if such party is so prevented or delayed by reason of strike, lockout
or labor dispute, lack or failure of customary sources of supply of fuel, labor
and materials, or due to any other cause beyond the reasonable control of such
party, including, but not limited to, national emergency, any law or
governmental rule, order or regulation, war, civil commotion, riot, interference
by civil or military authorities, fire or other casualty.
21.10 Severability. If any provision of this Lease or the
------------
application thereof to any person or circumstance is invalid, such invalidity
shall not affect other provisions or applications of this Lease which can be
given effect without the invalid provision or application, and to this end the
provisions of this Lease are declared to be severable.
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21.11 Counterparts. This Lease may be executed in any number
------------
of counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
21.12 Entire Agreement. This Lease is intended by the parties
----------------
hereto to be the final expression of their agreement with respect to the matters
herein contained and is the complete and exclusive statement of the terms
thereof, notwithstanding any representation or statement to the contrary
heretofore made.
21.13 Other Agreements. This Lease shall be merged into any
----------------
and every other agreement or understanding between the parties hereto with
respect to the matters herein contained.
21.14 Memorandum of Lease. If requested by either party,
-------------------
Lessor and Lessee shall execute a Memorandum of this Lease in recordable form in
accordance with the provisions of Section 5301.251 of the Ohio Revised Code, and
Lessee shall record the same in the Office of the Xxxxxxxx County, Ohio
Recorder.
21.15 Option to Lease. Provided Lessee is not in default of
---------------
this Lease after the expiration of any applicable cure periods, Lessee shall
have the option, at Lessee's sole cost and expense, prior to Lessor entering
into a binding lease agreement with a third party, to lease additional space
within the Building which becomes available for rental (the "Available Leased
Premises"). Lessor shall provide Lessee with written notice of an bona fide
offer from a third party to Lease the Available Leased Premises ("Lessor's
Notice"), which shall contain the terms of the offer. Lessee shall have two (2)
days from the date of receipt of Lessor's Notice in which to elect to lease the
Available Leased Premises in accordance with the terms and conditions of the
offer. In no event, however, shall Lessee's Base Rent in the Available Leased
Premises be less than Lessee's Base Rent in the Leased Premises. If Lessee fails
to exercise its right of first refusal by delivering written notice to Lessor
prior to expiration of such two (2) day period, Lessor shall be free to lease
the Available Leased Premises to a third party upon the same terms and
conditions contained in the offer. If Lessee elects to exercise its option, the
terms and conditions not identified in the offer shall be determined by this
Lease.
21.16 Storage. Lessee, at Lessee's sole risk, shall be
-------
permitted to store personal property in the storage area (the "Storage Area")
available on the first floor of the Building provided that Lessee is not then
currently in default of this Lease after the expiration of any applicable cure
periods and such use does not interfere with the use and access of the Storage
Area by Lessor. Any damage caused to the Storage Area by Lessee's use thereof
shall be promptly repaired and restored to the same condition prior to such
damage.
21.17 Lessee's Early Termination Right. Provided Lessee is not
--------------------------------
in default of this Lease after the expiration of any applicable cure period (and
Lessee shall not be deemed to be in default for purposes of this Section 21.17
if Lessor has accepted the payment for any sums due
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hereunder even if such acceptance occurs beyond any applicable cure periods),
Lessee shall have the right to terminate this Lease on the last day of the third
(3rd) Lease Year. If Lessee elects to terminate this Lease early, Lessee shall
reimburse Lessor the remaining unamortized cost of the Tenant Finish
Improvements and any unamortized leasing fees (including leasing commissions).
Furthermore, Lessee shall reimburse Lessor such amount necessary to ensure
Lessee's annual Base Rent for the preceding three (3) Lease Years averages
$17.00 per square foot. Lessor shall notify Lessee of the amount owed promptly
after receiving the termination notice from Lessee. Lessee shall have this early
termination right so long as Lessee provides Lessor with ninety (90) days
written notice. In addition to the other requirements of this Section 21.17,
Lessee may only exercise this early termination right if Lessee notifies Lessor
in advance that Lessee requires more space in the Building in order to operate
its business and Lessor is unable to provide such additional space as and when
required by Lessee.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as
of the day and year first above written.
SIGNED AND ACKNOWLEDGED LESSOR:
IN THE PRESENCE OF:
PARK PLACE, LLC, an Ohio limited
liability company
By: /s/ Xxxxx Xxxxxx
-----------------
Name: Xxxxx Xxxxxx
-------------
Title:Vice President
--------------
LESSEE:
SIGHT RESOURCE CORPORATION, a Delaware
corporation
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
--------------
Title:President
---------
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 9th day of
July, 2001 by Xxxxx Xxxxxx of Park Place, LLC, an Ohio limited liability
company, on behalf of the limited liability company
Xxxxx Xxxxxxx
-------------
Notary Public, State of Ohio
My Commission Expires May 19, 2002
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
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The foregoing instrument was acknowledged before me this 9th day of
July, 2001 by Xxxxxx Xxxxxxx of Sight Resource Corporation, a Delaware
corporation, on behalf of the corporation.
Xxxxx Xxxxxx
------------
Notary Public, State of Ohio
My Commission Expires June 1, 2003
This Instrument Prepared By:
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L.
1400 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
(000) 000-0000
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EXHIBIT "A"
----------
DRAWING OF SPACE
----------------
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EXHIBIT "B"
----------
LEGAL DESCRIPTION
-----------------
-31-
EXHIBIT "C"
----------
TENANT FINISH IMPROVEMENTS
--------------------------
