EXHIBIT 10.2
LEASE
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THIS LEASE (this "Lease"), is made and entered into this 19TH day of
JANUARY_, 2001, between Xx Xxxxx, Inc., an Ohio corporation, ("Landlord") and
Cintech Solutions, Inc., an Ohio corporation, ("Tenant") under the following
circumstances:
A. Under a Lease, dated 1-19-01 (the "First Lease"), Landlord
leases to Tenant and Tenant leases from Landlord approximately
2.25 acres of land located on Lake Forest Drive in the City of
Blue Ash, Xxxxxxxx County, Ohio, as more particularly
described in the First Lease (the "Other Land"), on which
Landlord is to construct the Building Improvements (as defined
by the First Lease) (collectively, the Other Land and the
Building Improvements shall be referred to herein as the
"First Premises") pursuant to the terms of the First Lease.
B. As of the date of this Lease, Landlord owns an approximately
1.50 acre parcel of land which is contiguous to the Other Land
and which is more particularly described on Exhibit "A"
attached hereto (the "Land").
C. Tenant anticipates that, in the future, it may need to extend
its business operation on the First Premises to the Land; and
in order to prevent Landlord from leasing, subleasing,
encumbering, selling, developing or otherwise altering the
character of the Land and to otherwise reserve the Land for
said business expansion during the term of the First Lease,
Tenant desires to lease the Land from Landlord and Landlord
has agreed to same subject to the terms and conditions hereof.
NOW, THEREFORE, Landlord, for and in consideration of the rents to be
paid and the covenants and promises of Tenant as hereinafter set forth, hereby
leases the Land to Tenant; TO HAVE AND TO HOLD the same subject to all terms,
conditions, covenants and agreements of this Lease.
1. LEASE OF LAND
a) Landlord, for and in consideration of the rents, covenants and
agreements to be paid and performed by Tenant hereunder, hereby leases to Tenant
and Tenant hereby leases from Landlord, subject to the terms of this Lease, the
Land, together with any and all of Landlord's easements and appurtenances in
adjoining and adjacent land, highways, roads, streets and lanes, whether public
or private, and for driveways and approaches to and from abutting highways, for
the use and benefit of the Land, and including any and all buildings, additions
and improvements now located on the Land. Tenant further agrees to pay all rents
and perform all covenants and agreements provided for herein in accordance with
the terms and conditions specified herein.
b) Within ten (10) days from the date hereof, Landlord shall, at its
sole cost and expense, retain the services of a licensed surveyor to prepare a
legal description of the Land and a plat or survey thereof, sufficient in form
and substance to be acceptable to the Xxxxxxxx County, Ohio Auditor's office,
and otherwise cause the Land to be legally described and treated as a separate
parcel from the Other Land by the Xxxxxxxx County, Ohio Auditor's and
Treasurer's offices (which may include, without limitation, obtaining approval
from the applicable planning commissions to have the Other Land and the Land
treated as separate parcels). Upon completion of the foregoing, the new legal
description of the Land, as so prepared and approved, shall replace the Exhibit
"A" currently attached to this Lease and shall be deemed to be the description
of the Land.
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2. TERM
The term of this Lease shall commence on the Commencement Date (as
defined by the First Lease) and shall end on the last day of the one hundred
twentieth (120th) month following the Commencement Date. As used in this Lease,
the phrase "the term of this Lease," "Lease term," or any similar phrase shall
mean the term as described in the preceding sentence.
3. RENT
a) Tenant covenants and agrees to pay rent (the "Basic Rent") during
the term of this Lease in the amount of Fifty-Five Thousand Three Hundred
Fifty-One and 25/100 Dollars ($55,351.25) per year, which is based upon One and
25/100 Dollar ($1.25) per square foot of space (the "Basic Rent Rate") within
the Building (as defined by the First Lease) and which shall be paid in twelve
(12) equal monthly installments of Four Thousand Six Hundred Twelve and 60/100
Dollars ($4,612.60); provided that the foregoing amount of Basic Rent shall be
subject to adjustment based upon the product of the Basic Rent Rate and the
Actual Square Feet (as defined by the First Lease) and substantially upon the
same terms for adjustment of the Base Rent (as defined by the First Lease) as
are set forth in Section 3(c) of the First Lease. All Basic Rent shall be paid
in advance to Landlord by Tenant, without demand or setoff, except as may be
specifically permitted herein, no later than the first (1st) day of each month
during the term of this Lease and shall be sent to Landlord at the address set
forth in Section 30 hereof or at such other address as Landlord may specify in
writing from time to time. The first payment of monthly Basic Rent shall be due
to Landlord on the day which is the three hundred sixty-sixth (366th) day from
the Commencement Date; provided that if such three hundred sixty-sixth (366th)
day is on a day other than the first day of a month or the last day of the term
of this Lease is on a day other than the last day of a month, the payment of
monthly Basic Rent due for such partial month shall be prorated on a per diem
basis.
b) In addition to the Basic Rent, Tenant agrees to pay additional rent,
which is the product of Tenant's Proportionate Share (as hereinafter defined) of
the Operating Expenses (as defined in Section 7(a) hereof) for any calendar year
(the "Additional Rent") (collectively, the Basic Rent and the Additional Rent
shall be referred to herein as "Rent"). For purposes of this Lease, "Tenant's
Proportionate Share" shall be one hundred percent (100%) of the square feet
within the Land. Prior to each calendar year during the term of this Lease,
Landlord shall estimate the amount of the Additional Rent due for such calendar
year, and Tenant shall pay Landlord one-twelfth of such estimate on the first
day of each month during such calendar year, with the first of such payments of
the Additional Rent being due on the Commencement Date; however, in the event
that the Commencement Date occurs on a day other than the first day of a
calendar year or the last day of this Lease occurs on a day other than the last
day of a calendar year, the Additional Rent due for such partial year shall be
prorated on a per diem basis and/or if the Commencement Date is on a day other
than the first day of a month or the last day of the term of this Lease is on a
day other than the last day of a month, the payment of the Additional Rent due
for such partial month shall be prorated on a per diem basis. For the first
calendar year of the term of this Lease, which is 2001, the estimate shall be
Thirteen Thousand and 00/100 Dollars ($13,000.00). The estimate of the
Additional Rent for a calendar year may be revised by Landlord whenever it
obtains information reasonably relevant to making such estimate more accurate;
provided that any such revision shall be made, if at all, no more frequently
than once in January and once in June of each calendar year and provided further
that Tenant shall not be obligated to pay the revised estimate of the Additional
Rent until it has received at least thirty (30) days advance written notice of
same, which notice shall set forth the reason(s) for the revised estimate.
Within ninety (90) days after the end of each calendar year (including the
calendar year of the term of this Lease in which this Lease expires or
terminates), Landlord shall deliver to Tenant a report (the "Annual Report")
setting forth the actual Operating Expenses for such calendar year and a
statement of the amount of the Additional Rent that Tenant has paid and of the
amount by which Tenant's Proportionate Share of the actual Operating Expenses
for such calendar year exceeds or is less than the Additional Rent paid by
Tenant for such calendar year. Subject to the remaining portions of this Section
3(b), within thirty (30) days after receipt of the Annual Report, to the
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extent Tenant's Proportionate Share of the actual Operating Expenses as forth on
the Annual Report exceeds the Additional Rent paid by Tenant for such calendar
year, Tenant shall pay to Landlord the amount of such excess or to the extent
Tenant's Proportionate Share of the actual Operating Expenses as set forth on
the Annual Report is less than the Additional Rent paid by Tenant for such
calendar year, Landlord shall pay to Tenant the amount of such difference,
without interest to Tenant. Notwithstanding anything herein to the contrary,
Tenant, at its expense, shall have the right, at any reasonable time within
twelve (12) months after the end of an applicable calendar year for which
Additional Rent is due and upon prior written notice to Landlord, to audit
Landlord's books and records relating to this Lease for the immediately
preceding calendar year in which the Additional Rent was adjusted pursuant to
this Section 3(b); provided, however, that if such audit discloses that the
estimated Operating Costs for the calendar year were overstated by more than
five (5%) percent, then Landlord shall reimburse Tenant for the cost of such
audit and, regardless of such five (5%) percent overstatement, shall reimburse
Tenant to the extent Tenant paid for such overstated Operating Expenses. In the
event that this Lease has not otherwise expired or terminated, to the extent
that Landlord fails to pay Tenant for the cost of such audit and/or the amount
of such overstated Operating Expenses within thirty (30) days from the date
Tenant provides Landlord with written demand therefor, Tenant shall have the
right to set off such cost and/or amount against Rent. This Section 3(b) shall
survive expiration or termination of this Lease. This Section 3(b) shall survive
expiration or termination of this Lease.
c) Intentionally deleted.
4. FORCE MAJEURE
In the event that Landlord shall be delayed or hindered in or prevented
from the performance of any obligation required under this Lease by reason of
acts of God, riots, insurrection, war, unanticipated weather conditions, strikes
or lockouts, inability to procure labor or inability to procure materials (or
reasonable substitutes therefor) which have been timely ordered (each, a "Force
Majeure"), then the performance of such obligation shall be excused for the
period of such delay, and the period for the performance of any such act shall
be extended for a period equivalent to the period of such delay. Landlord shall
notify Tenant in writing within five (5) days of any incident of Force Majeure.
Notwithstanding the foregoing, any increase in the costs or expenses to Landlord
in connection with the procuring of labor or materials, alone, shall not, in any
event, be deemed or construed to be an incident of Force Majeure.
5. USE OF LAND
Tenant shall have the right to use the Land for parking and related
uses and for no other purpose, without the express written permission of
Landlord in each instance.
Tenant shall, at its own expense, comply with the requirements of law
and with all ordinances, enactments or requirements of any federal, state,
municipal or other lawful authority affecting the Land whether now existing or
hereafter enacted, and shall hold Landlord in all respects harmless therefrom;
provided that the foregoing obligation of compliance and to hold Landlord
harmless in connection with such compliance shall be limited to the extent that
those requirements of law, ordinances, enactments or requirements of federal,
state, municipal or other lawful authority relate to Tenant's particular use of
the Land as contemplated and authorized by this Lease and shall be subject to
the covenants and warranties made by Landlord under Section 17 of this Lease.
The foregoing notwithstanding, in the event Tenant does or permits anything to
be done on the Land, other than authorized by this Section, which increases the
premium payable for any insurance which the Landlord might then be carrying,
either by way of all risk or special peril insurance, or by way of liability
insurance, Tenant agrees to pay any such increase in premium caused by its use
of the Land within ten (10) days from the date Tenant receives from Landlord
satisfactory written evidence that the premium has been increased and that such
increase was caused by Tenant.
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Without Tenant's prior written consent, Landlord shall not sell,
transfer, assign, lease, sublease or otherwise, encumber, develop, subdivide
(except in connection with the separation of the Land and the Other Land as
separate parcels as provided in Section 1(b) hereof) or otherwise alter the
Land, or any zoning classification applicable thereto, for a period of time
commencing on the date of this Lease and expiring on the day which is the date
on which this Lease expires or terminates. The foregoing notwithstanding, the
consent of Tenant shall not be required in connection with the encumbering of
the Land by a mortgage granted by Landlord if Tenant is provided with a
nondisturbance agreement, in a form reasonably satisfactory to Tenant's counsel,
which shall be executed by the mortgagee or holder of such mortgage and which
shall state that (i) Tenant will not be evicted in the event of foreclosure or
ejectment of Landlord for noncompliance with the conditions of any mortgage or
lien on the Land so long as Tenant shall pay the Rent and shall otherwise comply
with all of the other terms and provisions of this Lease, and (ii) the successor
landlord will honor the terms of this Lease (including, without limitation,
Tenant's right to the Option and the Additional Options, as such terms are
defined in Section 39 hereof), and (iii) such instrument will not impose further
obligations on Tenant.
6. TAXES AND ASSESSMENTS
a) Tenant agrees to pay all Taxes (as hereinafter defined) against and
applicable to the Land and becoming a lien during the term of this Lease and a
pro rata portion of the installments of Taxes which become a lien in the
calendar years in which the Commencement Date occurs or the day on which this
Lease expires or terminates, such pro rata share to be determined as of the
Commencement Date and the day on which this Lease expires or terminates in
accordance with the customary method of prorating real estate taxes in Xxxxxxxx
County, Ohio. Tenant shall not be obligated to pay any installment of any
special assessment that may be assessed, levied or confirmed during the term of
this Lease, but does not fall due and is not required to be paid until after the
expiration or termination of this Lease, except for a pro rata share of the
installments becoming payable following the expiration or termination of this
Lease.
b) As used in this Lease, the term "Taxes" means all taxes, assessments
and levies, whether general or special, ordinary or extraordinary, of every
nature or kind whatsoever that may be taxed, charged, assessed, levied or
imposed at any time during the term of this Lease by any governmental authority
upon or against the Land; provided that Tenant shall not be required to pay any
franchise, estate, inheritance, transfer, income or similar tax of Landlord
unless that tax is imposed, levied or assessed in substitution for any other
tax, assessment, charge or levy that Tenant is required to pay pursuant to this
Section 6 and except as such taxes specifically relate to the Land.
c) Landlord and Tenant shall endeavor to ensure that the Treasurer of
Xxxxxxxx County, Ohio sends the tax xxxx applicable to the Land directly to
Tenant; provided that if the tax xxxx is sent to Landlord, Landlord shall
promptly deliver such tax xxxx to Tenant for payment hereunder. Tenant shall pay
the Taxes set forth on such tax xxxx directly to the Treasurer of Xxxxxxxx
County, Ohio prior to delinquency, with proof of payment being delivered
promptly to Landlord. Notwithstanding the foregoing, until a separate tax xxxx
for the Land is issued by the Treasurer of Xxxxxxxx County, Ohio, the Taxes
applicable to the Land shall be deemed to have been paid by Tenant so long as
Tenant pays the tax xxxx applicable to the Other Land pursuant to the terms of
the First Lease. If Tenant fails to pay any Taxes when due, then, in addition to
any other remedy of Landlord, Landlord may (but shall not be obligated to) pay
the same plus any penalties or interest, and Tenant shall reimburse Landlord for
all amounts so paid within ten (10) days after Landlord notifies Tenant of the
payment.
7. MAINTENANCE/OPERATING EXPENSES.
a) The term "Operating Expenses" shall mean all expenses, costs and
disbursements (other than Taxes) that are customary and/or necessary, in
Landlord's reasonable discretion, and which are actually and directly paid by
Landlord in connection with the management, maintenance, operation and
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insuring the Land, to the extent not excluded below, including, but not limited
to, liability insurance; provided that Tenant shall, at all times during the
term of this Lease, have the right to participate with Landlord in the decision
making and selection process regarding the number and types of services, the
costs and expenses for which are included within Operating Expenses. In
connection with the foregoing right to participate, Landlord shall actively
involve Tenant in the initial decision making and selection process prior to the
Commencement Date; provided that after such initial decision making and
selections, Landlord shall only be required to allow Tenant to participate in
such decision and making and selections upon the request of Tenant. Landlord
shall competitively bid all third-party vendor contracts entered into in
connection with the services Landlord is to provide under this Lease to ensure
that the cost of such third-party vendor contracts is consistent with markets
applicable to the geographic area in which the Land is located, and Tenant shall
not be charged a management fee in connection with any services Landlord renders
under this Lease. Further, Tenant shall have the right, upon reasonable request
and at reasonable times, to review such bids and third-party vendor contracts to
confirm that Landlord is complying with its obligations under the preceding
sentence.
Notwithstanding the foregoing, Operating Expenses shall not include:
(i) costs of tenant alterations;
(ii) costs of capital improvements (except for costs of any
capital improvements made or installed for the purpose of reducing Operating
Expenses or made or installed pursuant to governmental requirements or insurance
requirements, which costs shall be amortized by Landlord in accordance with
sound accounting and management principles over the reasonable life of the
capital improvement);
(iii) interest and principal payments on mortgages and the
costs related to financing and refinancing (except interest on the cost of any
capital improvements for which amortization may be included in the definition of
Operating Expenses as provided above) or any rental payments on any ground
leases (except for rental payments which constitute reimbursement for Operating
Expenses);
(iv) advertising expenses and leasing commissions;
(v) any reimbursement, refund, credit or insurance payments
received or receivable by Landlord, except through Additional Rent, the
intention being that all such payments shall be only for Landlord's actual net
expense;
(vi) the cost of any kind of service furnished to any other
tenant of the Land which Landlord does not generally make available to all
tenants of the Land;
(vii) legal expenses of negotiating leases and/or enforcing
leases.
(viii) depreciation and amortization;
(ix) overhead or profit increment paid to subsidiaries or
affiliates of Landlord for services in connection with the Land to the extent
that the cost of such services exceeds the competitive cost of such services if
they were not rendered by a subsidiary or affiliate;
(x) Landlord's general overhead, including payments to
personnel of Landlord above the grade of Building Superintendent/Property
Manager or any payments to personnel in excess of the percentage of their work
hours spent directly on management issues directed solely toward the operation,
maintenance and management of the Land;
(xi) any costs, fines or penalties or the cost of remediating,
modifying or correcting
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any code or rule violation of any governing authority.
(xii) the costs or expenses attributable to correcting
violations of codes and life safety requirements;
(xiii) the costs or expenses of repairs or maintenance
actually included or covered by any warranties and service contracts in
existence on the Commencement Date;
(xiv) any expenses and costs billed directly to or to be paid
directly by any of Landlord's other tenants;
(xv) any costs incurred in connection with environmental
compliance; and
(xvi) any costs or expenses related to maintaining Landlord's
existence as a corporation, partnership or other entity or related to Landlord's
general corporate overhead, home office and administrative expenses. Operating
Expenses shall be determined on a cash or accrual basis, as Landlord may elect.
b) Landlord shall furnish regular grass cutting and landscaping
services to the Land. Landlord shall not be obligated to furnish any services
other than the foregoing. The foregoing notwithstanding, Landlord shall provide
any additional services requested by Tenant in addition to those stated above
(including services at times other than those stated above); provided that such
additional services are of the type which the Landlord is reasonably capable of
performing in connection with its property management functions with respect to
the Land and that Tenant pays Landlord's then prevailing charges for such
additional services, which charges shall be reasonable and shall be based upon
comparable charges for similar services on real property in the surrounding area
If Tenant shall fail to make any such payment subject to the notice requirements
and cure period for such default, Landlord may, in addition to all other
remedies available to Landlord, discontinue any additional services. No
discontinuance of any such service shall result in any liability of Landlord to
Tenant or be considered as an eviction or a disturbance of Tenant's use of the
Land; provided that in the event Landlord fails to provide the foregoing
services for a period of thirty (30) days after having received from Tenant
written notice of same, Tenant shall have the right to performed or to have
performed such services and to charge the costs thereof to Landlord or to charge
said costs against Rent.
8. INSURANCE
a) LIABILITY INSURANCE. Landlord agrees to carry Commercial General
Liability insurance against claims for bodily injury, death or property damage
covering the Land and adjoining streets and sidewalks and providing coverage
with maximum limits of liability of not less than $3,000,000.00 for personal
injury or death and property damage in any one occurrence, $5,000,000.00 in the
aggregate per policy year, naming Tenant as additional insured. Only the actual
cost of such insurance shall be included in Operating Expenses.
b) CANCELLATION. All policies of insurance evidencing the coverage
required by this Section 8 (collectively, "Insurance") shall contain a provision
that thirty (30) days prior written notice will be provided to both Landlord and
Tenant in the event of cancellation, non-renewal or material change in the
insurance coverage, and that any loss otherwise payable under the insurance
policy shall be payable notwithstanding any act or negligence of Landlord or
Tenant that might, absent such agreement, result in a forfeiture of all or part
of the insurance proceeds.
c) INSURANCE FAILURE. If Landlord fails to effect, maintain or renew
any Insurance, or to pay the premiums for the same, or to deliver to Tenant any
certificates evidencing same after ten (10) days' written notice from Tenant
requesting same, then, in addition to any other remedy available to Tenant,
Tenant may (but shall not be obligated), upon five (5) days notice to Landlord,
procure such insurance.
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Landlord shall reimburse Tenant for all amounts so paid within ten (10) days
after Tenant notifies Landlord of any such payment; and if Tenant does not
receive such reimbursement within said ten (10) day period, it shall have the
right to set of the costs of such insurance against Rent.
9. ASSIGNMENT AND SUBLETTING
a) Except as otherwise provided herein, Tenant shall not assign this
Lease or any interest under this Lease, sublet the Land, in whole or in part,
mortgage or provide any other security interest in its leasehold interest or
place or suffer to be placed any other lien on the Land or its leasehold
interest, without the express written consent of the Landlord as provided in
this Section 9. Any such assignment or subletting or granting of a security
interest or lien in Tenant's leasehold interest shall not, in any way, affect or
limit the liability of Tenant under the terms of this Lease. Any purported or
attempted sublease or assignment of this Lease or granting of a security
interest or lien in Tenant's leasehold interest without Landlord's consent shall
be void. In the event that Tenant desires to assign or sublet this Lease or to
grant a security interest in its leasehold interest, Tenant shall reimburse
Landlord for Landlord's reasonable out-of-pocket expenses in reviewing all
pertinent information relating to the proposed assignment or subletting or
security interest, including, but not limited, Landlord's attorneys' fees;
provided that the aggregate reimbursement for any requested consent to an
assignment or sublease or to a security interest in Tenant's leasehold interest
shall not exceed two thousand and 00/100 dollars ($2,000.00).
b) If Tenant requests Landlord's consent to an assignment of this Lease
or to a subletting of all or a part of the Land or to the granting of any
security interest in Tenant's leasehold interest (as to each, the "Requested
Assignment"), Tenant shall submit to Landlord, in writing, at least twenty (20)
days in advance of the date on which Tenant desires to make the Requested
Assignment, notice of the name of the proposed assignee or subtenant or security
interest holder, as the case may be, under the Requested Assignment and the
proposed commencement date of the Requested Assignment, together with copies of
all agreements entered into or contemplated to be entered into regarding the
Requested Assignment, and such information as Landlord may reasonably request
regarding, as applicable, the nature and character of the business of the
proposed assignee or subtenant or the nature and character of the security
interest proposed to be granted with respect to Tenant's leasehold interest
under the Requested Assignment. Landlord shall have the option (to be exercised
within fifteen (15) days from Landlord's receipt of Tenant's submission of
written request for consent to the Requested Assignment), (i) to consent to the
Requested Assignment (in which event Tenant shall deliver to Landlord
fully-executed legible, correct and complete copies of all agreements relating
to the Requested Assignment); or (ii) to refuse to consent (BASED UPON
REASONABLE GROUNDS) to the Requested Assignment. If Landlord should fail to
notify Tenant in writing of such election within such fifteen (15) day period,
Landlord shall be deemed to have elected option (i) above. Notwithstanding
Landlord's consent to any Requested Assignment, no further or subsequent
assignment or subletting or granting of a security interest in Tenant's
leasehold interest shall be permitted unless Landlord consents in writing
thereto as provided above.
c) Notwithstanding the foregoing, Tenant shall have the right, without
the prior written consent of Landlord, to assign this Lease or to sublease all
or any portion of the Land ("Permitted Assignment") to any person or entity who
(i) has Control (as hereinafter defined) of Tenant; (ii) is under Control by an
entity which also has Control of Tenant; (iii) is under Control by Tenant; (iv)
is the successor to Tenant by merger or consolidation; or (v) is the purchaser
of all or substantially all of the assets or capital stock of Tenant. "Control"
shall mean the ownership of fifty percent (50%) or more of the subject entity's
capital stock or other analogous ownership interest. Tenant shall provide
Landlord with written notice of each Permitted Assignment, within ten (10) days
from the date that such Permitted Assignment is to be effective, which written
notice shall identify the name and address of the assignee or subtenant under
said Permitted Assignment and the effective date of such Permitted Assignment.
Further, as an additional Permitted Assignment, Tenant shall have the right to
sublease to "Xxxxxx'x Restaurant space on the Land for purposes of an outdoor,
paved parking facility.
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d) Landlord shall not have the right to assign this Lease, in whole or
in part, without the prior consent of Tenant, which consent shall not be
unreasonably withheld or conditioned or unduly delayed. The foregoing
notwithstanding, Tenant hereby consents to the assignment by Landlord of its
interest under this Lease to a new limited liability company, to be formed under
the name of Xxxxx Lake Forest II, LLC. Upon such assignment, Landlord shall
promptly provide Tenant with written notice of same and confirm the name and
notice address of the new Landlord.
10. ALTERATIONS
Except for the installation of improvements necessary to use the Land
as an outdoor, paved parking facility, Tenant shall make no alterations or any
improvements to the Land without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or conditioned or unduly delayed. If
Landlord desires that Tenant remove any alterations at the expiration of this
Lease, it must notify Tenant of same in writing at the time it gives Tenant
consent to make such alterations (provided Tenant shall not be required to
remove any outdoor, paved parking facility installed by or behalf of Tenant as
permitted by this Lease). Except to the extent that Landlord has otherwise
directed Tenant to remove the alterations as provided in the preceding sentence,
any such alterations shall become a part of the Land and shall not be removed by
Tenant from the Land, such alterations being the property of Landlord. In the
event any such alterations are made by Tenant to the Land with Landlord's
consent, Tenant shall (i) use such contractors as are reasonably acceptable to
Landlord, (ii) make or cause to be made such improvements in a good and
workmanlike manner, (iii) secure all required permits and approvals, and (iv)
promptly remove and discharge any and all liens or claims made as a result
thereof. Tenant agrees to indemnify and hold Landlord harmless from all costs,
expenses and attorneys' fees arising directly or indirectly from any such
alterations. Tenant's contractors shall carry insurance, including worker's
compensation, builder's risk and liability insurance in such amounts and form as
are reasonably acceptable to Landlord.
11. SIGNS
Tenant shall have the right to install such signs on the Land as it
determines are necessary or desirable; provided that Tenant shall comply and
shall be responsible for compliance with all applicable governmental rules,
regulations and codes in connection with such signs. Notwithstanding the
foregoing, Tenant shall be required to obtain the prior written consent of
Landlord (which consent shall not be unreasonably withheld, conditioned or
unduly delayed) in connection with signs Tenant intends to erect for a new
subtenant or assignee, which new subtenant or assignee has been approved by
Landlord pursuant to Section 9 hereof or which is a new subtenant or assignee
under a Permitted Assignment.
12. EMINENT DOMAIN
If all or any part of the Land shall be taken, condemned or
appropriated under power of eminent domain or by any competent authority for any
public or quasi-public use or purpose, whether such taking, condemnation or
appropriation be by agreement (i.e. negotiated settlement) or by suit, then this
Lease shall terminate as to the part so taken on the day when Tenant is required
to yield possession thereof, and Landlord shall use its best efforts to make
such repairs and alterations as may be necessary in order to restore the part
not so taken to useful condition within (60) days from the date Tenant is
required to yield possession, and the Rent due hereunder shall be reduced
equitably. If Landlord fails to use its best efforts to repair and restore the
Land within said sixty (60) day period, then Tenant may, after providing
Landlord with thirty (30) days' written notice of such failure, terminate this
Lease by written notice thereof to Landlord or Tenant may elect to make or
complete such repairs and alterations, and Landlord shall reimburse Tenant
promptly upon demand for the reasonable costs thereof. To the extent that
Landlord fails to reimburse Tenant within ten (10) days from the date Tenant has
made a written demand for such reasonable costs, Tenant shall have the right to
set off such unreimbursed costs against Rent. Notwithstanding the foregoing, to
the extent Landlord's failure to timely repair and restore the Land is the
result of the acts or omissions of Landlord or Landlord's agents, employees or
contractors, the
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exercise by Tenant of the foregoing right to terminate or the right to restore
on Landlord's behalf shall not preclude or otherwise prevent Tenant from
pursuing any other rights or remedies which are available at law or in equity.
To the extent such repairs and alterations in connection with said restoration
render any portion of the remaining Land untenantable, Rent shall be abated
equitably as to that part of the remaining Land which has been rendered
untenantable during the period of such restoration. Tenant shall have the option
to terminate this Lease if a Substantial Portion (as defined in Section 13
hereof) of the Land is so taken. The option to terminate shall exist as of the
date when Tenant is required to yield possession of such portion of the Land.
In the event of any such taking or appropriation, Landlord shall be
entitled to all judgments, awards or compensation paid on account thereof;
provided, however, that Tenant shall be entitled to any compensation awarded by
any said governmental agency (or any division thereof) (to the extent the
compensation awarded does not reduce Landlord's award) for loss of business,
cost of removal of stock and fixtures and re-location costs and expenses
(including, without limitation, increased rental) as well as the loss of its
interest under this Lease and the value of any unamortized investment Tenant has
made in improvements or alterations to the Land.
13. FIRE AND CASUALTY
If less than a Substantial Portion of the Land is damaged by fire or
other casualty ("Casualty"), Landlord shall repair and restore the damaged
portion of the Land to substantially the same condition prior to such Casualty
within one hundred eighty (180) days after the date of such Casualty, except
that Landlord shall not be required to repair or restore any leasehold
improvements installed in the Land by Tenant. If Landlord fails to repair and
restore the Land within one hundred eighty (180) days after the date of such
Casualty, then Tenant may, at any time after expiration of said one hundred
eighty (180) day period and before such repair and restoration is completed by
Landlord, elect to terminate this Lease by written notice thereof to Landlord or
to make or complete such repairs and restoration, and Landlord shall reimburse
Tenant promptly upon demand for the reasonable costs thereof. To the extent that
Landlord fails to reimburse Tenant within ten (10) days from the date Tenant has
made a written demand for such reasonable costs, Tenant shall have the right to
set off such unreimbursed costs against Rent. Notwithstanding the foregoing, to
the extent Landlord's failure to timely repair and restore the Land is the
result of the acts or omissions of Landlord or Landlord's agents, employees or
contractors, the exercise by Tenant of the foregoing right to terminate or the
right to restore on Landlord's behalf shall not preclude or otherwise prevent
Tenant from pursuing any other rights or remedies which are available at law or
in equity.
If the entire Land or a Substantial Portion thereof is damaged by a
Casualty such that it cannot be restored to substantially its condition prior to
such Casualty within one hundred eighty (180) days (as determined by mutual
agreement of Landlord and Tenant) after the Casualty date, or if the Casualty
occurs during the last twelve (12) months of the term of this Lease, or if the
insurance proceeds received by Landlord are insufficient to restore the Land to
substantially its condition prior to the Casualty, then either party hereto may
elect, by giving written notice to the other within sixty (60) days after the
Casualty date, to terminate this Lease. If this Lease has not been terminated by
the date sixty (60) days after the Casualty date, then Landlord shall with due
diligence repair and restore the Land to substantially its condition prior to
the Casualty.
Rent shall be abated equitably with respect to that portion of the Land
which is rendered untenantable as a result of a Casualty and/or as a result of
repair and restoration activities in connection with a Casualty from the date of
casualty until the date on which the Land have been restored to substantially
its condition prior to such Casualty.
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If this Lease is not terminated pursuant to this Section 13, Tenant
shall as promptly as practicable after the occurrence of any damage or
destruction make such repairs and replacements in the Land as are necessary to
restore Tenant's leasehold improvements.
A "Substantial Portion" of the Land, for the purposes of Section 12 and
13 of this Lease, shall be deemed to mean that Tenant is unable to use
thirty-five percent (35%) or more of the space on the Land for expansion of its
business from the First Premises to the Land as contemplated by this Lease.
14. INDEMNIFICATION
Subject to Section 31 hereof, each of the Parties hereto (the
"Indemnifying Party") shall indemnify and save harmless the other (the
"Indemnified Party") against and from all expenses, liabilities, obligations,
damages, penalties, claims, accidents, costs and expenses, including reasonable
attorneys' fees paid, suffered or incurred for death or damage or injury to
persons or property in whole or in part as a result of any breach by the
Indemnifying Party, its agent, independent contractors, servants, employees or
licensees, of any covenant, representation, warranty, or condition of this Lease
or arising out of the carelessness, negligence, or improper conduct of the
Indemnifying Party, its agents, servants, employees or licensees resulting from
its performance of its obligations under this Lease or its use and occupancy of
the Land. The indemnification obligations contained in this Section 14 are
expressly conditioned on the Indemnified Party's giving the Indemnifying Party
prompt written notice of any action, proceeding, claim or demand which may
trigger the indemnification obligation. Tenant's liability under this Lease
extends to the acts and omissions of any subtenants, and any agent, servant,
employee, or licensee of any subtenant. The obligations of indemnity under this
Section shall survive the expiration or earlier termination of this Lease.
15. TENANT DEFAULT
If any one or more of the following events shall occur and be
continuing: (i) the Rent or any part thereof or any other payment due from
Tenant to Landlord hereunder shall at any time be past due in arrears and unpaid
for a period of ten (10) days from the date Tenant has received written notice
thereof from Landlord (provided that Landlord shall have no obligation to
provide more than two (2) notices of such monetary default in any consecutive
twelve (12) month period during the term of this Lease), or (ii) Tenant shall
default in the performance of any of the other covenants and agreements of this
Lease, except failure to maintain insurance coverage which shall be an immediate
default, and shall fail to remedy such default within thirty (30) days after
Tenant has received written notice of such default from Landlord, or if such
default cannot with reasonable diligence be cured within thirty (30) days,
Tenant shall fail to commence a remedy of such default within thirty (30) days,
or (iii) Tenant shall make any assignment of substantially all of Tenant's
assets for the benefit of its creditors or be adjudicated a bankrupt, or (iv)
Tenant shall file an application in Federal District Court for the
reorganization seeking a compromise or settlement of its indebtedness, or (v)
the interest of Tenant shall be sold under execution or other legal process, or
(vi) a receiver or trustee is appointed for substantially all of the property of
Tenant and shall not be discharged within forty-five (45) days after such
appointment, then, and in any one or more of such events, Landlord, at its
option, may do any one or more or all of the following:
a) Terminate this Lease and re-enter into and upon the Land and again
have, repossess, and enjoy the same with all of the improvements then located
thereon as if this Lease had not been made, in which event this Lease and
everything therein contained on the part of the Landlord to be kept and
performed shall cease, and be utterly void without prejudice, however to
Landlord's right of action for unpaid Rent and/or breach of this Lease.
b) Relet the Land upon such terms as Landlord may, from time to time,
elect, and apply the net proceeds towards Tenant's obligations hereunder;
notwithstanding the foregoing, Tenant agrees, regardless of whether Landlord has
relet the Land, to pay to Landlord the Rent herein agreed to be paid by Tenant,
less the proceeds of reletting, if any, plus the cost of tenant improvements,
leasing
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commissions and any and all costs related to reletting the Land. Landlord shall
use reasonable efforts to relet the Land.
c) Charge a late payment fee of five percent (5%) on any overdue
payment to cover the extra expense incident to handling delinquent accounts.
16. HOLDING OVER
Unless otherwise agreed to in writing by Landlord and Tenant, Tenant
shall have no right to retain possession of the Land or any part thereof after
the termination of the term of this Lease. The foregoing notwithstanding, if
Tenant shall not have vacated the Land by the termination date of the term of
this Lease, Tenant shall be deemed a tenant from month to month only and shall
pay Landlord Rent at a monthly rate of 125% of the Rent in effect immediately
prior to the termination date for the time that Tenant remains in possession. In
such event, the rights and obligations of Landlord and Tenant shall be governed,
except as to Rent and duration (which shall be governed by the preceding
sentence), by the provisions of this Lease. No such holding over shall be deemed
to constitute a renewal or extension of the term hereof.
17. LANDLORD'S WARRANTIES AND REPRESENTATIONS
Landlord warrants and represents to Tenant that:
a) Landlord has full right and power to execute and perform this Lease
and to grant the estate demised herein and that Tenant, on payment of Rent and
performance of the covenants and agreements hereof, shall peaceably and quietly
have, hold and enjoy the Land.
b) Landlord own fees simple title to the Land, free and clear of any
liens, encumbrances, restrictions and violations (or claims or notices thereof),
except as set forth on Exhibit "B" attached hereto and incorporated herein.
c) To the best of Landlord's knowledge, no notification of release of a
hazardous substance pursuant to CERCLA (as defined in Section 19 hereof) or the
Federal Clean Water Act, or any environmental law, regulation or ordinance has
been filed as to the Land.
d) To the best of Landlord's knowledge, no hazardous, toxic or
polluting substances (including petroleum products) have been released,
discharged or disposed of on the Land.
e) To the best of Landlord's knowledge, no underground storage tanks,
asbestos or PCB's are or have been located anywhere on the Land.
f) Landlord has not received any request for information, notices of
claim, demand letters, or other notification relevant to the Land with respect
to any investigation or clean up of hazardous substance releases.
The foregoing representations and warranties of Landlord shall survive the
expiration or earlier termination of this Lease.
18. LANDLORD'S AND TENANT'S REMEDIES
All rights and remedies of Landlord and Tenant herein 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 and Tenant shall
each have and enjoy all rights and remedies to which each is
63
entitled under law and in equity. Further, all rights and remedies of Landlord
and Tenant shall survive the expiration or earlier termination of this Lease.
19. ENVIRONMENTAL
a) Tenant covenants and agrees with Landlord as follows:
a.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 Land by Tenant (except for those notices, permits, licenses or
similar authorizations which Landlord is required to file or obtain under this
Lease), or anyone claiming by, through or under Tenant, 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 Tenant at
its expense.
a.2) All hazardous substances or solid waste generated at the
Land by Tenant shall be transported, treated and disposed of only by carriers
maintaining valid permits under the Resource Conservation and Recovery Act (42
U.S.C. xx.xx. 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.
a.3) The use of the Land by Tenant, or anyone claiming by,
through or under Tenant, shall not result in the unlawful or unauthorized
disposal or other release of any hazardous substance or solid waste on or to the
Land.
a.4) DEFINITIONS. 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. 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
Land 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.
a.5) Tenant, for itself and its successors and assigns, hereby
undertakes to protect, indemnify and save Landlord, and its successors and
assigns, harmless from any and all liability, loss or damage that Landlord 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 actual or alleged violation by Tenant or anyone
claiming by through or under Tenant (except Landlord acting on behalf of Tenant
in Landlord's capacity as manager pursuant to its property management functions
under this Lease) 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 the expiration or
earlier termination of this Lease, but shall only apply to claims, demands,
costs or judgments arising due to occurrences or
64
activities which occur on or after the date Tenant takes possession and during
the term of this Lease.
b) Landlord, for itself and its successors and assigns, hereby
undertakes to protect, indemnify and save Tenant, and its successors and
assigns, harmless from any and all liability, loss or damage that Tenant, 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 actual or alleged violation by Landlord or anyone
claiming by, through or under Landlord (including violations committed or
alleged to have been committed by Landlord while acting on behalf of Tenant in
Landlord's capacity as manager pursuant to its property management functions
under this Lease), 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. The provisions of this indemnity
shall survive the expiration or earlier termination of this Lease.
20. TENANT'S PROPERTY
All trade fixtures, equipment and other property owned by Tenant shall
remain the property of Tenant without regard to the means by which, or the
person by whom the same are installed in or attached to the Land, and Landlord
agrees that Tenant shall have the right at any time, and from time to time, to
remove any and all of its trade fixtures, equipment and other property provided
that Tenant restores the Land to its original condition, normal wear and tear
excepted. Further, Landlord hereby waives any and all lien rights it may have,
statutory or otherwise, concerning the trade fixtures, equipment and other
property owned by Tenant and located on the Land.
21. LABOR
Landlord and Tenant agree to comply with and to require their
respective contractors to comply with all federal, state and local laws,
ordinances, regulations and requirements relating to the employment, conditions
of employment and hours of labor in connection with any demolition,
construction, alteration or repair work done by or for Landlord or Tenant in or
about the Land.
22. SPECIAL STIPULATIONS
a) No waiver of any default of Landlord or Tenant hereunder shall be
implied from any omission by the other party to take any action on account of
such default if such default persists or be repeated, and no express waiver
shall affect any default other than the default specified in the express waiver
and that only for the time and to the extent therein stated.
b) All of the covenants of the parties hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though the words
specifically expressing or importing covenants and conditions were used in each
separate instance.
c) Landlord and Tenant agree that this Lease shall not be recorded;
however, Landlord agrees that, at the request of Tenant, it will promptly
execute a Memorandum of Lease describing Tenant's rights hereunder to Tenant's
reasonable satisfaction, in the form prescribed by statute, which Memorandum of
Lease shall then be so filed for record.
d) Neither party has made any representations or promises, except as
contained herein or in some further writing signed by the party making such
representation or promise.
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e) This Lease shall not be binding until and unless all parties have
signed it; provided, however, that this Lease may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
f) Any person executing this Lease as agent for or officer of a
principal, corporation or partnership warrants his authority to do so and
further warrants his authority to execute any and all other documents in
connection with this Lease and the transactions contemplated herein.
g) Any dispute between the parties with respect to a material breach of
this Lease which cannot be settled by Landlord and Tenant shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, as amended and in effect on the date notice is given of
the intention to arbitrate, which arbitration shall be conducted in the City of
Cincinnati, Ohio. The determination of the arbitrators shall be final, binding
and conclusive on all the parties, and judgement may be rendered thereon by any
court having jurisdiction, upon application of either Landlord or Tenant.
23. DEFAULT BY LANDLORD
If Landlord shall breach any material agreement, condition or other
provision in this Lease, and shall not cure such breach within thirty (30) days
after notice in writing from the Tenant specifying the breach (or, if such
breach cannot reasonably be cured with said thirty (30) day period, shall not
commence to cure within thirty (30) days after receipt of written notice from
Tenant of such breach and thereafter prosecute the curing of such breach to
completion with due diligence), Tenant, at its option, may cure such a breach of
this Lease by Landlord by exercising any rights and remedies available under the
laws of the State of Ohio. Tenant may also, at its option, and after thirty (30)
days written notice to Landlord specifying any default, in the performance or
observance of any agreement, condition or other provision in this Lease, without
waiving any claims for breach of agreement, cure such default for the account of
Landlord, and the Landlord shall reimburse Tenant for any amount paid and any
expense or contractual liability so incurred within ten (10) days after the
giving of notice thereof to Landlord by Tenant. To the extent that Landlord
fails to reimburse Tenant within said ten (10) day period, Tenant shall have the
right to set off such unreimbursed costs against Rent.
24. LIABILITY OF LANDLORD
Intentionally deleted.
25. TENANT'S RIGHT TO DEFEND
Tenant shall have the right to defend or otherwise contest, at its own
expense and in its own name, or in the name of Landlord, after due notice to
Landlord, to such extent as Tenant may deem necessary, any suits, actions or
claims filed or made by any third party which may in the judgment of Tenant
threaten any rights of Tenant relating to the Land or in any way Tenant's
possession or right of possession of the Land, but nothing herein contained
shall restrict Landlord, at Landlord's sole cost and expense, from defending,
contesting or participating in the defense or contest of any such suit or action
if in the judgment of Landlord the interests of Landlord shall so require. The
provisions of this Section shall survive the expiration or earlier termination
of this Lease.
26. ACCESS TO LAND
Landlord, or its agents, shall have the right, upon prior notice of at
least one (1) business day, except in case of emergency, to enter upon the Land
at times mutually acceptable to Landlord and Tenant for the purpose of
inspecting same, or of performing maintenance thereon or repairing or
maintaining any property owned or controlled by Landlord. Landlord shall have
the right, during the last twelve (12) months of the term of this Lease, to (i)
show the Land, after providing prior notice to Tenant of at least one (1)
business day and at times mutually acceptable to Landlord and Tenant, to
prospective tenants and
66
other interested parties, while at all times during such showings being
accompanied by an authorized agent or employee of Tenant; and (iii) maintain
signage indicating the Land's availability.
27. QUIET ENJOYMENT
Landlord agrees that Tenant, paying the rents and performing the
covenants of this Lease, may quietly have, hold and enjoy the Land during the
term of this Lease.
28. SURRENDER
At the expiration or earlier termination of this Lease, Tenant shall
surrender the Land, including any improvements, additions and other leasehold
improvements made by Tenant (including, without limitation, any paved or other
surface parking installed by Tenant in connection with a Permitted Assignment to
"Xxxxxx'x Restaurant"), to Landlord in as good condition as on the Commencement
Date, excepting ordinary wear and tear and casualty and condemnation damage. By
the expiration or earlier termination of this Lease, Tenant shall remove all of
Tenant's personal property and trade fixtures from the Land, and Tenant shall
repair any damage to the Land caused by the removal of Tenant's personal
property and trade fixtures. If Tenant fails to so remove Tenant's personal
property and trade fixtures, Landlord may (but shall not be obligated to) remove
Tenant's personal property and trade fixtures and store the same and repair all
damage caused by the removal, all at Tenant's expense. In that event, Tenant
shall reimburse Landlord for all costs and expenses incurred in the removal, the
storage or personal property and trade fixtures and the repair of the Land,
within ten (10) days after Landlord notifies Tenant of the amount of the costs
and expenses.
29. WAIVER
The waiver by Landlord of the breach of any of the covenants or
conditions by Tenant, or the consent by Landlord to any assignment by Tenant,
shall not affect the right of remedy of the Landlord for any future breach or
assignment without consent; but such right of remedy may be pursued as if no
such waver or consent had been given.
The waiver by Tenant of the breach of any of the covenants or
conditions by Landlord, or the consent by Tenant to any assignment by Landlord,
shall not affect the right of remedy of the Tenant for any future breach or
assignment without consent; but such right of remedy may be pursued as if no
such waiver or consent had been given.
30. NOTICE
Wherever in this Lease it shall be required or permitted that notice or
demand be given or served by either party of this Lease to the other, such
notice or demand shall be given in writing and forwarded by certified mail or
overnight courier delivery, and shall take effect upon receipt by the receiving
party, addressed as follows:
To Landlord: Xx Xxxxx, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Property Management Department
With a Copy To: Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L.
1400 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
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To Tenant: Cintech Solutions, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx
With a Copy To: Xxxxxxxx & Shohl, LLP
1900 Chemed Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Such address may be changed from time to time by either party by
serving notices as above provided. The provisions of this Section shall survive
the expiration or earlier termination of this Lease.
31. WAIVER OF CLAIMS AGAINST PARTIES
Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant each hereby waives all rights of recovery, claim, action, or cause of
action, against the other, its agents, officers, or employees, for any loss or
damage that may occur to the Land or to either such party, their respective
agents, employees, invitees or contractors, by reason of fire, the elements, or
any other cause which is insured against under the terms of standard fire and
extended coverage insurance policies referred to in Section 8 hereof or is
otherwise insured against under an insurance policy maintained by the party
suffering such loss or damage, regardless of cause or origin, including any
negligence of the other party hereto and/or its agents, officers, or employees,
and each party covenants that no insurer shall hold any right of subrogation
against such other party; provided, however, that the foregoing waivers shall
only apply to the extent of any recovery made by the parties hereto under any
policy of insurance now or hereafter issued. Each party hereto agrees to give
immediately to any insurer that has issued to it policies of fire and extended
coverage insurance written notice of the mutual waiver contained in this
provision and to have such policies endorsed, if necessary, to prevent the
invalidation of insurance coverage by reason of such mutual waiver.
32. SUBORDINATION
Tenant agrees that its rights hereunder are subordinated to the lien of
any mortgage or mortgages to any bank, insurance company or any other lender now
or hereafter enforced against the Land or any part thereof, and to all advances
made or hereafter to be made upon the security thereof, subject, however, to the
requirement that Tenant be provided a Non-Disturbance Agreement (as hereinafter
defined) with respect to each such lien or mortgage.
Tenant will cooperate in executing any instrument of subordination and
nondisturbance required by any mortgagee, provided that the mortgagee shall
execute and deliver to Tenant a nondisturbance agreement in a form reasonably
satisfactory to Tenant's counsel which shall state that (i) Tenant will not be
evicted in the event of foreclosure or ejectment of Landlord for noncompliance
with the conditions of any mortgage or lien on the Land so long as Tenant shall
pay the Rent and shall otherwise comply with all of the other terms and
provisions of this Lease, and (ii) the successor landlord will honor the terms
of this Lease, and (iii) such instrument will not impose further obligations on
Tenant (collectively, a "Non-Disturbance Agreement").
33. SUCCESSORS AND ASSIGNS
This Lease and all of its terms, covenants and provisions shall inure
to the benefit of, and be binding upon, the parties and their respective
administrators, executors, successors and assigns.
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34. MISCELLANEOUS
This Lease and all of its terms, covenants and provisions shall be
governed by and construed under the laws of the State of Ohio.
35. ESTOPPEL CERTIFICATES
Each party hereto will, within ten (10) days after receipt from the
other, execute an estoppel certificate certifying as to such facts (if true) and
agreeing to such notice provisions and other matters as such person(s)
requesting the estoppel certificate may reasonably require with respect to the
status of this Lease.
36. NET LEASE
The parties do hereby declare and state that this Lease is of a kind
commonly known as "Net Lease." Accordingly, Tenant agrees to bear and pay for
all items as previously specified in other Sections of this Lease, subject to
other Sections of the Lease:
a) Subject to the other Sections of this Lease, Landlord shall receive
from Tenant the Rent agreed to be paid by Tenant hereunder without reduction on
account of any matter or thing; and
b) Landlord, at the expiration of or termination of this Lease, shall
receive possession of the Land, in accordance with the covenants of Tenant
contained herein, free and clear of all claims, liens, charges and encumbrances,
except those to which the Land are now subject, or which may be placed thereon
by Landlord, or which shall arise because of breach by Landlord of any covenant
or covenants of Landlord contained herein or which have not been caused by the
act or omission of Tenant or of Tenant's employees, agents or contractors.
37. TIME IS OF THE ESSENCE
In all instances where either party is required to pay any sum or do
any other act at a particular time or within a specified period, it is
understood that time is of the essence, subject to applicable cure periods.
38. FINANCIAL STATEMENTS
a) Tenant acknowledges that it has provided Landlord with its financial
statement(s) as a primary inducement to Landlord's agreement to lease the Land
to Tenant, and that Landlord has relied on the accuracy of said financial
statement(s) in entering into this Lease. Tenant represents and warrants that
the information contained in said financial statement(s) is true, complete and
correct in all material aspects, and agrees that the foregoing representations
shall be a precondition to this Lease.
b) At the reasonable request of Landlord, upon Landlord's refinancing
of the property debt or of a potential property sale, Tenant shall furnish to
Landlord a balance sheet of Tenant as of the end of the most current fiscal year
and a statement of income and expense for that same year, along with a
certificate of the chief financial officer, owner or partner of Tenant to the
effect that the financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied and fairly present
the financial condition and results of operations of Tenant as of and for the
period covered. Notwithstanding the foregoing, so long as Tenant is a public
company, Tenant shall only be obligated to provide or disclose to Landlord those
balance sheets, statements of income and expense
69
and other financial statements and information which are in the public domain
and will have no obligation to provide or disclose any interim statements.
39. NEW LEASE
a) Tenant is hereby granted an option (the "Option") to cancel this
Lease and to enter into a new lease of the Land for the purpose of expanding its
business conducted on the First Premises to the Land, which Option may be
exercised by Tenant at any time during the term of this Lease by written notice
to Landlord that Tenant is exercising the Option. In the event Tenant exercises
the Option as provided in the preceding sentence, Tenant's obligation to pay
Rent hereunder shall automatically cease and this Lease shall terminate;
provided that Landlord's obligation to comply with the last paragraph of Section
5 of this Lease shall survive such termination and shall continue to be binding
upon Landlord until such time as Landlord and Tenant enter into a new lease for
the Land as provided herein (the "New Lease"). Within one hundred and twenty
(120) days from the date Landlord receives Tenant's written notice exercising
the Option (the "Execution Period"), Landlord and Tenant shall (both to act with
due diligence and in good faith) enter into the New Lease, the terms and
conditions of which shall include the following terms:
(i) that Landlord shall construct on the Land a commercial
building, containing a minimum of twenty-five thousand (25,000) square feet of
space (the "New Building"), together with the parking areas, drives, utility
facilities and related improvements which are mutually acceptable to Landlord
and Tenant and which are comparable in quality, design and aesthetics to the
Building Improvements;
(ii) that, if the Option is exercised during the first
twenty-four (24) months of the Initial Term (as defined by the First Lease, and
collectively, with any renewal terms which may be exercised under the First
Lease, the "Term"), the initial term of the New Lease (the "New Initial Term")
shall be co-terminus with the Initial Term but if the Option is exercised after
the first twenty-four (24) months of the Initial Term, the New Initial Term
shall be a minimum of eighty-four (84) months;
(iii) that Tenant shall have two (2) options of renewing the
New Lease for a period of sixty (60) months with respect to each such option to
renew (collectively, "New Renewal Terms" or, individually, "New Renewal Term");
(iv) that the initial base rent to be paid under the New Lease
for the New Initial Term shall be determined as follows:
(1) if the Option is exercised during (A) the first
twelve (12) months of the Initial Term (the "First Rate
Period") or (B) the sixty-first (61st) month through the
seventy-second (72nd) month of the Initial Term (the "Second
Rate Period"), the initial base rent to be paid during the New
Initial Term shall be the same rent per square foot which is
then in effect under the First Lease during the First Rate
Period or the Second Rate Period, as the case may be, as set
forth in the rent chart attached hereto as Exhibit "C" (the
"Rent Chart"). For purposes of this Lease, the first twelve
(12) months of the first renewal term of the First Lease shall
be referred to herein as the "Third Rate Period", and the
first twelve (12) months of the second renewal term of the
First Lease shall be referred to herein as the "Fourth Rate
Period" (collectively, the First Rate Period, the Second Rate
Period, the Third Rate Period and the Fourth Rate Period shall
be referred to herein as the "Rate Periods" or, as to any one
of them, "Rate Period"); or
(2) if the Option is exercised in a month other than
a month occurring during the First Rate Period or the Second
Rate Period (a "Non Rate Period"), then the initial base rent
under the New Lease for the New Initial Term shall be the rent
per square foot which corresponds to the month during the Term
in which the Option was
70
exercised as set forth in the Rent Chart, which initial base
rent shall remain the same during the New Initial Term until
the commencement of the next Rate Period. Commencing with the
first day of such next Rate Period, the initial base rent
under the New Lease for the New Initial Term shall be equal to
the rent per square foot charged for such next Rate Period as
shown on the Rent Chart; and
(3) Anything herein to the contrary notwithstanding
and for purposes of clarification, after the initial base rent
for the New Initial Term has been established pursuant to
subparagraph (1) or (2) of this subsection (iv), in the event
that a subsequent Rate Period occurs or subsequent Rate
Periods occur within the New Initial Term, the initial base
rent in the New Initial Term shall be adjusted such that the
initial base rent charged in the New Initial Term is equal to
the rent per square foot charged under the First Lease for
each such subsequent Rate Period.
(v) that base rent under the New Lease shall increase by ten
(10%) for each New Renewal Term elected by Tenant;
(vi) that the tenant improvement allowance under the New Lease
shall be based upon the amount per square foot which corresponds to the month
during the Initial Term in which the Option has been exercised as set forth in
the tenant improvement allowance chart attached hereto as Exhibit "D";
(vii) that the terms and conditions of the New Lease
(including, without limitation, those terms and conditions applicable to the
Building Improvements) shall be substantially similar to that which are
contained in the First Lease; and
(viii) that the New Lease shall include such other terms and
conditions as are mutually acceptable to Landlord and Tenant.
b) In the event that Landlord and Tenant have not entered into the New
Lease within the Execution Period after both have acted diligently and in good
faith, unless the Execution Period is extended by mutual agreement of Landlord
and Tenant, both parties' obligations to enter into the New Lease shall
terminate; provided that Tenant may still elect one of the following options as
of the date the Execution Period expires:
(i) Tenant may elect to cause this Lease to recommence and to
continue for the balance of the term of this Lease (the "Recommencement
Option"), subject to all of the same rights and obligations which are set forth
in this Lease, including, without limitation, Tenant's right to the Option. In
the event that Tenant desires to exercise the Recommencement Option, then,
within thirty (30) days from the date the Execution Period expires, Tenant shall
provide Landlord with written notice of Tenant's desire to exercise the
Recommencement Option and shall deliver to Landlord one (1) monthly payment of
Basic Rent and one (1) monthly payment of Additional Rent, and the term of this
Lease shall recommence on the date set forth in said written notice. The
foregoing monthly payments of Basic Rent and Additional Rent are for rent due in
the month in which the Recommencement Option is exercised and shall be treated
as advance payments of Basic Rent and Additional Rent. Notwithstanding the
foregoing, in the event that the date set forth in said written notice is other
than on the first day of a month, the monthly payment of Basic Rent and
Additional Rent delivered to Landlord pursuant to the preceding sentence shall
be prorated on a per diem basis for such partial month; or
(ii) Tenant may elect to purchase the Land from Landlord (the
"Purchase Option") (collectively, the Recommencement Option and the Purchase
Option shall be referred to herein as the "Additional Options") for a purchase
price which shall be determined by the following formula (the "Purchase Price"):
Purchase Price = 10 (Actual Square Feet x 1.25). In the event Tenant desires to
exercise the Purchase Option, Tenant shall provide Landlord with written notice
of same within thirty
71
(30) days from the date the Execution Period expires. Within sixty (60) days
from the date Landlord receives the foregoing written notice, the closing (the
"Closing") of the sale of the Land to Tenant shall occur at a time and place
which is mutually acceptable to Landlord and Tenant. At the Closing, the
following, which shall be concurrent conditions, shall occur: (1) Landlord shall
convey the Land to Tenant by general warranty deed (with release of dower if
applicable), which deed shall convey title free, clear and unencumbered, except
for and subject only to (A) easements and restrictions of record, (B) all liens
for real estate taxes and assessments not yet due and payable, and (C) legal
highways; (2) Tenant shall pay to Landlord the Purchase Price by cashier's or
certified check or bank wire transfer to Landlord's account, as directed by
Landlord, less (A) the amount of any transfer taxes to be paid in connection
with the transfer of the Land to Tenant, (B) the amount of any payments to
mortgage or other lien holders to release or cancel any encumbrances on the
Land, and (C) any other amounts customarily paid by sellers in a commercial real
estate sale transactions in Xxxxxxxx County, Ohio; and (3) Landlord and Tenant
shall each execute and deliver to the other such other documents and instruments
as each party may reasonably request (including, without limitation, any
documents customarily requested by title insurance companies in connection with
the issuance of an owner's or lender's policy of title insurance in a commercial
real estate transaction) in connection with the sale of the Land.
The foregoing notwithstanding, Landlord's obligation to comply with
the last paragraph of Section 5 of this Lease shall survive the expiration of
the Execution Period until the first to occur of the following: (i) the periods
of time within which Tenant may exercise the Additional Options, as above
provided, have expired and Tenant has not exercised either of the Additional
Options or (ii) the Closing has occurred and the Land has been conveyed to
Tenant as above provided. In the event that Tenant fails to exercise either of
the Additional Options within thirty (30) days from the date the Execution
Period expires, Tenant shall be deemed to waived both of the Additional Options,
and the Option, the Purchase Options and this Lease, and all rights and
obligations thereunder, shall be deemed terminated and of no further force and
effect.
c) Notwithstanding anything herein to the contrary, in the
event that the First Lease is terminated due to the
default by Tenant under the terms thereof, this Lease, the
Option, the Additional Options and all other rights of
Tenant hereunder shall be deemed to have terminated on the
date on which the termination of the First Lease is
effective.
72
IN WITNESS WHEREOF, Landlord and Tenant, through their duly authorized
representatives, have caused this Lease to be executed s of the date and year
first above written.
WITNESSES: LANDLORD:
XX XXXXX, INC., an Ohio corporation
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------- --------------------------------
Xxxxx X. Xxxxx, Vice President
/s/ Xxxxxxx X. Xxxxx
-----------------------
TENANT:
CINTECH SOLUTIONS, INC.,
a(n) Ohio Corporation
------------------------------
/s/ Xxxxxxx X. Xxxxxx
----------------------
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
/s/ Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
--------------------- ------------------------------
Title: President
-----------------------------
73
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 19th day of
JANUARY, 2001, by Xxxxx X. Xxxxx, Vice President of Xx Xxxxx, Inc., an
Ohio corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 18th day of
JANUARY, 2001 by _Diane M. Kamionka_ of Cintech Solutions, Inc., a(n) OHIO
CORPORATION, on behalf of the CORPORATION.
/s/ Xxxxx X.Xxxxxx
-----------------------------------
Notary Public
74
Exhibit A
Page 1 of 1
[Drawing of Land]
-Phase I - 2.25 Acres
-Phase II - 1.5 Acres
Exhibit B
-6-
10. Slope Easement in favor of The City of Blue Ash as granted in Easement for
Highway Purposes recorded in Deed Book 4146, Page 1560, Xxxxxxxx County,
Ohio Records. (See attachment 2)
11. Limitation of Access to Xxxx-Xxxxxxx Highway and limitation of Railroad
Access recorded in Deed Book 4154, Page 1396, Xxxxxxxx County, Ohio
Records. (See attachment 3)
12. Terms and Conditions of Restrictions recorded in Deed Book 4155, Page 354,
Xxxxxxxx County, Ohio Records. (See attachment 4)
13. Right of Way and Easement for Storm Sewer to the City of Blue Ash recorded
in Deed Book 4244, Page 1678, Xxxxxxxx County, Ohio Records. (See
attachment 5)
14. Twenty (20) foot Private Storm Sewer Easement recorded in Deed Book 4323,
Page 1259, Xxxxxxxx County, Ohio Records. (See attachment 6)
15. Ten (10) foot Storm Sewer Easement to the City of Blue Ash recorded in Deed
Book 4323, Page 1261 and accepted by the city of Blue Ash in Deed Book
4341, Page 1067, Xxxxxxxx County, Ohio Records. (See attachment 7)
16. Ten (10) foot Utility Easement to The Cincinnati Gas and Electric Company
and the Cincinnati Xxxx Telephone Company recorded in Deed Book 4333, Page
1095, Xxxxxxxx County, Ohio Records. (See attachment 8)
17. Ten (10) foot Utility Easement to The Cincinnati Gas and Electric Company
recorded in Deed Book 4334, Page 943, Xxxxxxxx County, Ohio Records. (See
attachment 9)
18. Terms and Conditions of Restrictive Covenants recorded in Mortgage Book
4279, Page, 414, amended in Mortgage Book 4323, Page 1812, amended
in Mortgage Book 4521, Page 1803, and assigned in Mortgage Book 4966, Page
227, Xxxxxxxx County, Ohio Records. (See attachment 10)
19. Terms and Conditions of Agreement between the City of Cincinnati and the
Community Improvement Corporation of Greater Cincinnati recorded in
Miscellaneous Book 22, Page 818, Xxxxxxxx County, Ohio Records. (See
attachment 11)
This Commitment is invalid unless Schedule A, Commitment Number 36-0143-010-0733
is attached.
-7-
20. Terms and Conditions of Agreement between the City of Cincinnati and the
Community Improvement Corporation of Greater Cincinnati recorded in
Miscellaneous Book 28, Page 407, amended in Miscellaneous Book 28, Page
1079, Xxxxxxxx County, Ohio Records. (See attachment 12)
21. Terms and Conditions of Agreement between the City of Cincinnati and the
Community Improvement Corporation of Greater Cincinnati recorded in
Miscellaneous Book 29, Page 108, Xxxxxxxx County, Ohio Records. (See
attachment 13)
22. Terms and Conditions of Agreement between the City of Cincinnati and the
Community Improvement Corporation of Greater Cincinnati recorded in
Miscellaneous Book 28, Page 447, Xxxxxxxx County, Ohio Records. (See
attachment 14)
23. The following matters as set forth on the Subdivision Plat for Prudential
Business Park, Section One:
a) Blue Ash aerial easement
b) Restriction that land owner may not interfere with the function and/or
the effectiveness of the east and west lakes for use as a retention
basin
c) Building set back lines
e) Existing slope easement
f) Ten (10) foot storm sewer easement
24. Notwithstanding the reference to acreage in the legal description of the
land set forth on Exhibit A attached hereto, any policy issued pursuant
hereto does not insure the quantity of ground described as acreage.
This Commitment is invalid unless Schedule A, Commitment Number 36-0143-010-0733
is attached.
EXHIBIT C
RENT CHART
MONTHS DURING THE TERM RENT PER SQUARE FOOT APPLICABLE
IN WHICH THE OPTION IS TO THE MONTH DURING THE TERM
EXERCISED IN WHICH THE OPTION IS EXERCISED
INITIAL TERM
First Rate Period $15.45
13 - 24 $15.91
25-36 $16.39
37-48 $16.88
49-60 $17.39
Second Rate Period $17.45
73-84 $17.97
85-96 $18.51
97-108 $19.07
109-120 $19.20
FIRST RENEWAL TERM
Third Rate Period $19.20
13-24 $19.78
25-36 $20.37
37-48 $20.98
49-60 $21.12
SECOND RENEWAL TERM
Fourth Rate Period $21.12
13-24 $21.65
25-36 $22.19
37-48 $22.74
49-60 $23.31
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EXHIBIT D
TENANT IMPROVEMENT ALLOWANCE CHART
MONTHS DURING THE INITIAL TERM AMOUNT PER SQUARE FOOT OF SPACE
IN WHICH THE OPTION IS IN NEW BUILDING
EXERCISED
INITIAL TERM
1-12 $20.60
13 - 24 $21.22
25-36 $21.86
37-48 $22.00
49-60 $22.00
61-72 $22.66
73-84 $23.34
85-96 $24.04
97-108 $24.20
109-120 $24.20
76
