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Exhibit 10.2.1
LEASE
THIS LEASE is entered into and made as of the 30th day of December,
1986, by and between 0000 X. XXXXXX PROPERTIES, an Ohio General Partnership,
which has its principal office at 00 Xxxxx Xxxxxx Xxxx, Xxxxx, Xxxx 00000,
hereinafter called "Landlord" and TELXON CORPORATION, a Delaware corporation,
which has its principal office at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, hereinafter called "Tenant".
W I T N E S S E T H:
Landlord, in consideration of the rents and covenants hereinafter set
forth, does hereby demise, let and lease to Tenant, and Tenant does hereby
hire, take and lease from Landlord, on the terms and conditions hereinafter set
forth, the following described space, hereinafter called the "Premises", to
have and to hold the same, with all appurtenances, unto Tenant for the term
hereinafter specified.
1. Description of the Premises.
The Premises are located in the City of Fairlawn, County of Summit,
State of Ohio, and include: (a) a certain tract of land containing
approximately 7.67 acres and commonly known as Summit Park Square, 3320, 3330
and 0000 Xxxx Xxxxxx Xxxxxx, on which Landlord's office buildings, hereinafter
called the "Buildings," containing a total of approximately 98,921 rentable
square feet, excluding those portions of the Buildings from time to time
subject to leaseholds in favor of third parties; and (b) a certain tract of
land contiguous with and south of the aforementioned 7.67 acre tract of land.
The Premises are more particularly described in Exhibit A attached to and made
a part of this Lease. Upon termination by expiration of the term or otherwise
of any lease in favor of a third party encumbering any part of the Buildings,
the premises covered by such lease shall be added to the Premises upon
restoration of such premises to "Building Standard" condition, i.e.,
broom-clean and freshly painted to Tenant's specifications.
2. Term and Possession.
(a) Term. Notwithstanding Section 2(b), the term of this Lease
shall be fifteen (15) years, beginning on the first day of January,
1987 (the "Commencement Date") and ending on the 31st day of December,
2001, unless terminated earlier as provided in this Lease.
(b) Early Occupancy. If Tenant begins to conduct business in
all or any portion of the Premises before the Commencement Date,
Tenant shall pay to Landlord on the Commencement Date a rental in
respect thereof for the period from the date Tenant begins to conduct
business therein to the Commencement Date, which rental shall be that
proportion of Rent for the calendar year 1987 which the number of days
in such period bears to 365. Except where clearly inappropriate, the
provisions of this Lease shall be applicable during such period.
(c) Acceptance of Premises. Taking possession of all or any
portion of the Premises by Tenant shall be conclusive as
against Tenant that the Premises or such portion thereof are in
satisfactory condition on the date of taking possession, subject only
to (i) matters specified in Tenant's written notice delivered to
Landlord on or before the date on which Tenant thus takes possession,
and (ii) latent defects.
3. Rent.
(a) Base Rent. Tenant shall pay to Landlord as base rent for
the Premises in respect of each year of the term of this Lease,
payable in advance and without notice in equal monthly installments
during each such
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year on the first day of each month during the term of this Lease, the
amount per square foot times the number of square feet from time to time
included in the Premises, as set forth below.
Years Annual Rent Per Square Foot
1987-1989 $13.78
1990-1994 14.75
1995-1999 16.23
2000-2001 17.85
At such time as the number of square feet included in the Premises varies
such that the amount of base rent payable under this Lease is affected,
Landlord shall promptly deliver written notice of the new number of
square feet included in the Premises and the date from which the change
in the number of square feet included in the Premises shall have been
effective. Unless Tenant objects to the content of such notice within
thirty (30) days after its receipt thereof, Landlord's notice shall be
deemed conclusive and binding for purposes of calculating the amount of
base rent.
In addition to the base rent specified above, Tenant shall pay to
Landlord not later than thirty (30) days after either the end of each year
included in the term of this Lease or Tenant's receipt of Landlord's
statement therefor, whichever is later, the amount, if any, by which the
aggregate rent payable by third parties for all rentable premises other than
the Premises within the Buildings, including base rent and Annual Rental
Adjustment (as hereinafter defined) or the equivalent thereof, is less than the
aggregate number of square feet of such premises times the annual rent per
square foot specified above applicable to the year in question plus the Annual
Rental Adjustment applicable to such premises. Nothing contained in this
Section shall be deemed to constitute a guaranty by Tenant of Landlord's
collection of such amount payable, Tenant's obligation being limited to, and
defined by, the amount of rent payable (not collected) for such premises.
(b) Annual Rental Adjustment. In addition to the base rent
specified in Section 3(a) hereof, Tenant shall pay to Landlord as
additional rent for the Premises, in each calendar year throughout the
term of this Lease, a sum equal to Tenant's proportionate share of the
increase, if any, in Landlord's Total Cost of Operation of the Buildings
(as hereinafter defined) over the Base Expenses (as hereinafter defined)
and Tenant's proportionate share of the increase in real estate taxes
over Base Real Estate Taxes (as hereinafter defined). The amount of
Tenant's proportionate share of the increase in Landlord's Total Cost of
Operation of the Buildings and increase in real estate taxes for a
particular calendar year over the Base Expenses and Base Real Estate
Taxes (sometimes hereinafter referred to as the "Annual Rental
Adjustment") shall be estimated annually by Landlord, and written notice
thereof shall be given to Tenant at least thirty (30) days prior to the
beginning of each calendar year (in the case of 1987, not later than
March 31, 1987). Tenant shall pay each month, at the same time the
monthly installment of base rent is due, an amount equal to one-twelfth
(1/12) of the estimated Annual Rental Adjustment. Within ninety (90)
days after the end of each such calendar year, Landlord shall prepare and
deliver to Tenant a statement showing in reasonable detail the actual
amount of Landlord's Total Cost of Operation of the Building and real
estate taxes for the preceding calendar year and the actual amount of
Tenant's Annual Rental Adjustment. Within thirty (30) days after receipt
of the aforementioned statement, Tenant shall pay to Landlord, or
Landlord shall remit to Tenant, as the case may be, the difference
between the actual amount of Tenant's Annual Rental Adjustment for the
preceding calendar year and the estimated amount paid by Tenant during
such year.
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If the actual amount of Landlord's Total Cost of Operation of the
Buildings and real estate taxes for a particular calendar year is equal
to or less than that established for the Base Expenses and Base Real
Estate Taxes, then Tenant shall not be obligated to pay any Annual Rental
Adjustment, but Tenant shall not be entitled to any reimbursement or
abatement of base rent. If this Lease shall expire or be terminated on
any date other than the last day of a calendar year, the actual amount of
Tenant's Annual Rental Adjustment for such partial year shall be prorated
accordingly.
For purposes of this Section, the following definitions shall
apply:
(i) "Base Expenses" shall mean Landlord's predecessor's
Total Cost of Operation of the Buildings during 1986, which was
$3.871 per square foot or a total of $382,926 for the Buildings.
(ii) "Base Real Estate Taxes" shall mean real estate taxes
payable in respect of 1986 (other than penalties for late payment)
on the Buildings and the land included in the Premises, which were
$0.7893 per square foot or a total of $78,074 for the Buildings and
such land.
(iii) "Tenant's proportionate share" of the increase in
Base Expenses and the increase in Base Real Estate Taxes shall mean
the percentage determined by dividing the rentable area of the
Buildings from time to time included in the Premises by the total
rentable area within the Buildings (approximately 98,921 square
feet). For purposes of this lease, Tenant's proportionate share of
the increase in Base Expenses and Base Real Estate Taxes shall not
be combined but shall be calculated and billed separately.
(iv) "Landlord's Total Cost of Operation of the Buildings"
shall mean all of Landlord's direct costs and expenses of operation
and maintenance of the Buildings and the surrounding walks,
driveways, parking lot and landscaped areas (within the area
described in Exhibit A and outlined in Exhibit B) as determined by
Landlord in accordance with generally accepted accounting
principles or other recognized accounting practices, consistently
applied, plus all additional direct costs and expenses of operation
and maintenance which Landlord determines that it would have paid
or incurred if the Buildings had been one-hundred percent (100%)
occupied, including by way of illustration and not limitation:
insurance premiums, personal property taxes on personal property
used by Landlord in the Buildings; water, electrical and other
utility charges other than the separately billed electrical and
other charges paid by Tenant; service and other charges incurred in
the operation and maintenance of the elevators and the heating,
ventilation and air-conditioning system; cleaning services; tools
and supplies; landscape maintenance costs; building security
services; license and permit fees; building management fees; wages
and related employee benefits payable by Landlord to the on-site
employees of Landlord or its building management agent; and in
general all other costs and expenses which would, under generally
accepted accounting principles, consistently applied, be regarded
as operating and maintenance costs and expenses. "Landlord's Total
Cost of Operation of the Buildings" shall not include the cost of
tenant finish improvements or capital improvements' depreciation,
real estate brokerage and leasing commissions; principal and
interest payments on any mortgages or similar encumbrances; wages
and related employee benefits of Landlord's off-site management
personnel; and in general any other costs and expenses which would
not, under generally accepted accounting principles, consistently
applied, be regarded as operating and maintenance costs and
expenses incurred in connection with the Buildings.
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If Landlord shall, at any time after the Commencement Date, install
a labor-saving device or other equipment which improves the operating
efficiency of any system within the Buildings (such as an energy
management computer system) and thereby reduces any portion of Landlord's
Total Cost of Operation of the Buildings, then Landlord may, in
determining the amount of Tenant's Annual Rental Adjustment, add to
Landlord's Total Cost of Operation of the Buildings in each year during
the useful life of such installed device or equipment, an amount equal to
the annual depreciation or amortization allowance of the cost of such
installed device or equipment as determined in accordance with applicable
regulations of the Internal Revenue Service or generally accepted
accounting principles consistently applied; provided, however, that the
amount of such allowance shall not exceed the annual cost or expense
reduction properly attributable to such installed device or equipment.
Landlord's statement of the actual amount of Landlord's Total Cost
of Operation of the Buildings and real estate taxes for any particular
calendar year shall be signed by a general partner of Landlord and shall
state that, to the best of his knowledge and belief, the costs and
expenses listed therein accurately reflect the actual amount of
Landlord's Total Cost of Operation of the Buildings and real estate taxes
for such year. Tenant or its accountants shall have the right to inspect
and copy, at reasonable times and in a reasonable manner, during the one
hundred eighty (180) day period following Tenant's receipt of any such
statement, such of Landlord's books and records as pertain to and contain
information concerning such costs and expenses in order to verify the
amounts thereof.
If Tenant shall dispute any item or items included in the
determination of Landlord's Total Cost of Operation of the Buildings or
real estate taxes for a given calendar year, and such dispute is not
resolved by the parties hereto within one hundred eighty (180) days after
the statement for such year was received by Tenant, then either party
may, within thirty (30) days thereafter, request that a firm of certified
public accountants (other than such firm as then regularly serves Tenant)
selected by Tenant render an opinion as to whether or not the disputed
item or items may properly be included in the determination of Landlord's
Total Cost of Operation of the Buildings or real estate taxes for such
year; and the opinion of such firm on the matter shall be conclusive and
binding upon the parties hereto. The fees and expenses incurred in
obtaining such an opinion shall be borne by the party adversely affected
thereby; and if more than one item is disputed and the opinion adversely
affects both parties, the fees and expenses shall be apportioned
accordingly. If Tenant shall not dispute any item or items included in
the determination of Landlord's Total Cost of Operation of the Buildings
or real estate taxes for a given calendar year within one hundred eighty
(180) days after the statement for such year was delivered to it, Tenant
shall be deemed to have approved such statement.
(c) Service Charge. If any installment of base rent or
additional rent provided for herein, including the Annual Rental
Adjustment, or any part thereof, is not paid within ten (10) days after
its due date and notice of nonpayment thereof to Tenant, it shall be
subject to a service charge of one percent (1%) of the unpaid rent due
for each month, or such lesser amounts as may be the maximum amount
permitted by law, until paid.
4. Use of the Premises.
(a) Specific Use. The Premises shall be occupied and used as
office space and for all uses and purposes incidental thereto, including
but not limited to any and all computer facilities as may be required by
Tenant in connection with its business. ln addition, the Premises or any
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part thereof may be used for laboratory purposes, which purposes shall
mean and include use as a laboratory for soldering, mechanical assembly
and chemical or mechanical testing.
(b) Covenants Regarding Use. In connection with its use of the
Premises, Tenant agrees to do the following:
(i) Tenant shall use the Premises and conduct its
business thereon in a safe, careful, reputable and lawful manner;
shall keep and maintain the Premises in as good condition as they
were when Tenant first took possession thereof, ordinary wear and
acts of God excepted, and shall make all necessary repairs to the
Premises other than those which Landlord is obligated to make as
provided in this Lease.
(ii) Tenant shall not commit, nor allow to be committed,
in, on or about the Premises or the Buildings, any act of waste,
including any act which might deface, damage or destroy the
Buildings or any part thereof; use or permit to be used on the
Premises any hazardous substance, equipment or other thing which
might cause injury to person or property or increase the danger of
fire or other casualty in, on or about the Premises; permit any
objectionable or offensive noise or odors to be emitted from the
Premises; or do anything or permit anything to be done which would,
in Landlord's reasonable opinion, disturb or tend to disturb other
tenants occupying leased space in the Buildings.
(iii) Tenant shall not overload the floors of the Premises
beyond their designed weight-bearing capacity, which Landlord has
determined to be eighty (80) pounds per square foot live load,
including an allowance for partition load. Landlord reserves the
right reasonably to direct the positioning of all heavy equipment,
furniture and fixture which Tenant desires to place in the Premises
so as to distribute properly the weight thereof, and to require the
removal of any equipment or furniture which exceeds the weight
limit specified herein.
(iv) Tenant shall not use the Premises or allow the
Premises to be used for any purpose or in any manner which would
invalidate any policy of insurance now or hereafter carried on the
Buildings or increase the rate of premiums payable on any such
insurance policy. Should Tenant fail to comply with this covenant,
Landlord may require Tenant to reimburse Landlord as additional
rent for any increase in premiums charged during the term of this
Lease on the insurance carried by Landlord on the Premises and
attributable to the use being made of the Premises by Tenant.
(c) Compliance with Laws. Tenant shall comply with all laws,
statutes, ordinances, rules, regulations and orders of any federal,
state, municipal or other government or agency thereof having
jurisdiction over and relating to the use, condition and occupancy of the
Premises, except that Tenant shall not be responsible for or required to
make structural repairs to the Buildings or the Premises unless, in the
case of the latter, the need therefor is caused by its own negligence.
(d) Compliance with Building Rules and Regulations. Rules and
regulations reasonably governing the use and occupancy of the Premises
and all other leased space in the Buildings may be adopted by Landlord
for the mutual benefit and protection of all the tenants in the
Buildings. Tenant shall comply with and conform to the rules and
regulations from time to time in effect, so long as Tenant has been
provided a true, correct and complete copy of such rules and regulations.
Landlord shall have the right to change such rules and regulations or to
make new rules and regulations from time to time in any reasonable manner
that it deems necessary or desirable in order to insure the safety, care
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and cleanliness of the Buildings and the preservation of order therein.
Any such amendments to the rules and regulations shall be reasonable,
shall be set forth in writing and shall be given to Tenant, who shall
thereafter comply with and conform to the same.
5. Utilities and Other Building Services.
(a) Services to be Provided. Landlord shall furnish Tenant,
between the hours of 6:00 a.m. and 11:00 p.m. on Monday through Friday
and 6:00 a.m. and 5:00 p.m. on Saturday of each week except on legal
holidays on which Tenant's offices are closed and except as noted below,
with the following utilities and other building services to the extent
reasonably considered by Landlord to be necessary for Tenant's
comfortable use and occupancy of the Premises for general office use or
as may be required by law or directed by governmental authority:
(i) Heating, ventilation and air-conditioning;
(ii) Electricity for normal lighting and operating
business machines in the Premises and the common areas and
facilities of the Buildings;
(iii) Water for lavatory and drinking purposes;
(iv) Automatic elevator service;
(v) Cleaning and janitorial service, including the
supplying and installing of paper towels, toilet tissue and soap on
Monday through Friday of each week except legal holidays;
(vi) The washing of windows at reasonable intervals;
(vii) Replacement of all lamps, bulbs, starters and
ballasts as required from time to time as a result of normal usage;
(viii) Cleaning and maintenance of the common areas and
facilities of the Buildings and the walks, driveways, parking lot
and landscaped areas adjacent to the Buildings, including the
removal of rubbish and snow; and
(ix) Repair and maintenance of the Buildings and certain
systems within the Premises to the extent specified in Section 8
hereof.
Landlord hereby agrees to obtain and retain separate metering for
all electricity used in the Premises.
(b) Additional Services. If Tenant requests any other utilities
or building services in addition to those identified above or any of the
above utilities or building services in frequency, scope, quality or
quantities substantially greater than those which Landlord reasonably
determines are normally required by other tenants in the Buildings (or
other buildings substantially similar thereto) for general office use,
then Landlord shall use reasonable efforts to furnish Tenant with such
additional utilities or building services. In the event Landlord is able
to and does furnish such additional utilities or building services, the
cost thereof shall be borne by Tenant, who shall reimburse Landlord for
the same as provided in Section 5(d) hereof.
If any lights, machines or equipment (including but not limited to
computers) used by Tenant in the Premises materially affect the
temperature otherwise maintained by the Buildings' air-conditioning
system or generate substantially more heat in the Premises than that
which would normally be generated by the lights and business machines
typically used by other tenants in the Buildings or by tenants in
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substantially similar office buildings, then Landlord shall have the
right to install any machinery or equipment which Landlord considers
reasonably necessary in order to restore the temperature balance between
the Premises and the rest of the Buildings, including that which modifies
the Buildings' air-conditioning system. All costs expended by Landlord
to install any such machinery and equipment and any additional cost of
operation and maintenance occasioned thereby shall be borne by Tenant,
who shall reimburse Landlord for the same as provided in Section 5(d)
hereof.
Tenant shall not install or connect any electrical equipment other
than (i) that heretofore installed or connected, including but not
limited to a computer unit, special air-conditioning for the computer
unit, and a burglar alarm system, or replacements thereof, or (ii) the
business machines typically used for general office use by tenants in
office buildings comparable to the Buildings, without Landlord's prior
written consent, which consent shall not be unreasonably withheld. If
Landlord determines that electrical equipment to be so installed or
connected exceeds the designed load capacity of the Building's electrical
system or is in any way incompatible therewith, then Landlord shall have
the right, as a condition to granting its consent, to make such
modifications to the electrical system or other parts of the Buildings or
the Premises as are reasonably required, or to require Tenant to make
such modifications to the equipment to be installed or connected, as
Landlord reasonably considers to be necessary before such equipment may
be so installed or connected. The cost of any such modifications shall
be borne by Tenant, who shall reimburse Landlord for the same (or any
portion thereof paid by Landlord) as provided in Section 5(d) hereof.
Tenant shall have the right, after normal business hours, to take actions
which would prohibit the elevators from stopping at any floor on which
Tenant is the only tenant, provided that Tenant shall provide Landlord
with any cards or keys necessary to enable Landlord to have access to all
such floors at any time.
(c) Interruption of Services. Tenant understands, acknowledges
and agrees that any one or more of the utilities or other building
services identified above may be interrupted by reason of accident,
emergency or other causes beyond Landlord's control, or may be
discontinued or diminished temporarily by Landlord or other persons until
certain repairs, alterations or improvements can be made; that Landlord
does not represent or warrant the uninterrupted availability of such
utilities or building services; and that any such interruption shall not
be deemed an eviction or disturbance of Tenant's right to possession,
occupancy and use of the Premises or any part thereof, or, except in the
case of an interruption caused by the negligence or willful tort of
Landlord, its agents or employees, render Landlord liable to Tenant in
damages by abatement of rent or otherwise, or relieve Tenant from the
obligation to perform its covenants under this Lease. Landlord shall,
however, use its best efforts to restore any interrupted services as
promptly as possible.
(d) Payment of Utilities and Building Services. The cost of the
following utilities and other building services shall be borne by Tenant,
who shall be separately billed therefor and who shall reimburse and pay
Landlord monthly for the same as additional rent, at the same time the
monthly installment of base rent and other additional rent is due:
(i) Except to the extent paid by Tenant directly to the
utility providing same, all electricity used by Tenant for lighting
and operating business machines and equipment in the Premises. The
monthly amount to be billed for electricity so used by Tenant shall
be determined by Landlord on the basis of (A) the prevailing rates
for electrical usage charged in the municipality where the
Buildings are located, including any taxes levied thereon, and
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(B) the total number of kilowatt hours of electricity actually
consumed per month by Tenant in lighting and operating business
machines and equipment in the Premises;
(ii) All replacement lamps, bulbs, starters and ballasts
used in the Premises to the extent furnished by Landlord at
Tenant's request and the cost of their installation if done by
Landlord; and
(iii) All additional utilities or other building services
furnished by Landlord at the request of Tenant or as a result of
Tenant's activities as provided in Section 5(b) hereof.
The cost of all other utilities and building services identified in
Section 5(a) hereof shall be borne by Landlord.
6. Parking.
Landlord hereby gives to Tenant, its employees, agents, customers and
invitees, the privilege of parking in the parking lot adjacent to
the Buildings. The same privilege has been or will be given to other tenants
in the Buildings and to their employees, agents, customers and invitees, and it
does not entitle Tenant or the other tenants to any particular assigned spaces
in the parking lot. Landlord shall, however, reserve ten (10) parking spaces
in close proximity to the Buildings and shall xxxx such spaces with the words
"Visitor Parking".
7. Signs.
Tenant shall be permitted to have tenant identification information
included or shown on the directory board in the main lobby and on the tenant
access door to the Premises. Tenant shall be permitted to install an exterior
sign so long as such sign is approved by the appropriate public authority, is
in front of Building C (and/or such other Building(s) of which Tenant is the
sole occupant), is substantially similar to the signs in front of the
other Buildings and is approved by Landlord, which approval shall not be
unreasonably withheld or delayed. In addition, at such time as Tenant is the
sole occupant of the Buildings, Tenant shall have the right to rename the
Buildings to identify same with Tenant (e.g., "Telxon World Headquarters" or
"The Telxon Building," such examples being for purposes of illustration only
and not by way of limitation).
8. Repairs, Maintenance, Alterations, Improvements and Fixtures.
(a) Repair and Maintenance of Buildings. Landlord shall keep and
maintain in good order, condition and repair the roof, exterior and
interior structural walls (including any plate glass windows which are
a part thereof), foundation, basement, the common areas and facilities
of the Buildings and the electrical, plumbing, heating, ventilation and
air-conditioning systems serving the Premises and other parts of the
Buildings. The cost of all repairs required to be made by Landlord
shall be borne by Landlord unless made necessary by the negligence,
misuse or default of Tenant, its employees, agents, customers or
invitees, in which event they shall be borne by Tenant, who shall be
separately billed and shall reimburse Landlord for the same as
additional rent.
(b) Repair and Maintenance of the Premises. Except as provided
in Section 8(a) hereof, Tenant shall, at its own expense, keep and
maintain the Premises in good order, condition and repair.
(c) Alterations or Improvements. Tenant may make, or permit to
be made, alterations or improvements to the Premises, but in the case of
alterations or improvements requiring an expenditure in excess of Five
Thousand Dollars ($5,000.00) only if Tenant obtains the prior written
consent of Landlord thereto, which consent shall not be unreasonably
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withheld or delayed. Tenant shall make any and all such alterations and
improvements in accordance with all applicable laws and building codes,
in a good and workmanlike manner and in quality equal to or better than
the original construction of the Buildings and shall comply with such
requirements as Landlord reasonably considers necessary or desirable,
including without limitation requirements as to the manner in which and
the times at which such work shall be done. Tenant shall promptly pay
all costs attributable to such alterations and improvements and shall
indemnify Landlord against any mechanics' liens or other liens or claims
filed or asserted as a result thereof and against any costs or expenses
which may be incurred as a result of building code violations
attributable to such work. Tenant shall promptly repair any damage to
the Premises or the Buildings caused by any such alterations or
improvements. Any alterations or improvements to the Premises, except
movable office furniture and equipment and trade fixtures, shall become a
part of the realty and the property of Landlord, and shall not be removed
by Tenant without the consent of Landlord, which consent shall not be
unreasonably withheld or delayed.
Tenant's rights under this Section shall include without limitation
the right to construct or cause to be constructed additions to the
Buildings and/or expansion of the parking areas, provided that Tenant
complies with all the requirements of this Section and those of
applicable laws and ordinances, including but not limited to zoning
ordinances, and governmental rules and regulations promulgated
thereunder, and provided further that prior to any such construction or
expansion Landlord and Tenant shall have agreed in writing with respect
to responsibility for payment of the costs thus incurred and any
additional rent payable for such additions to the Premises. In the event
Landlord and Tenant shall be unable to agree in this connection within
ninety (90) days following Tenant's submission to Landlord of a written
proposal, including plans and specifications, for such additions and/or
expansion, then either Landlord or Tenant shall have the right to submit
the matter as to which Landlord and Tenant have been unable to agree to
the American Arbitration Association in Akron, Ohio for arbitration in
accordance with the commercial rules thereof then in effect, which
arbitration shall be conclusive and binding upon the parties for the
purposes of this Lease. In the event Landlord or an affiliate thereof is
known by Tenant to be engaged in the construction business, Tenant shall
afford Landlord or such affiliate an opportunity to bid for the contract
to construct any and all alterations, improvements, additions or
expansion contemplated under this Section, but Tenant shall nonetheless
retain unrestricted discretion in electing to accept or reject any bid
submitted by Landlord or its affiliate, whether or not such bid is the
most favorable submitted in strictly monetary terms.
Promptly on execution of this Lease, or at a mutually agreed time,
Landlord shall at its sole cost and expense, without any obligation on
Tenant's part under Section 3(b) hereof or otherwise, commence and, as
soon as practicable, complete a landscaping plan and remodeling and
redecorating of the main reception area of Tenant so as to enhance the
image of Tenant's main reception area and raise same to a level
commensurate with the status of the Premises as Tenant's world
headquarters.
(d) Trade Fixtures. Any trade fixtures installed on the Premises
by Tenant at its own expense, including but not limited to movable
partitions, counters, shelving, showcases, mirrors and the like, may and,
at the request of Landlord, shall be removed on the Expiration Date or
earlier termination of this Lease, provided that Tenant is not then in
default, that Tenant bears the cost of such removal, and further that
Tenant repairs at its own expense any and all damage to the Premises
resulting from such removal. If Tenant fails to remove any and all such
trade fixtures from the Premises on the Expiration Date or earlier
termination of this Lease, all such trade fixtures shall become the
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property of Landlord unless Landlord elects to require their removal, in
which case Tenant shall promptly remove same and restore the Premises to
their prior condition.
9. Fire or Other Casualty; Casualty Insurance
(a) Substantial Destruction of the Buildings. If the Buildings
should be substantially destroyed (which, as used herein, means
destruction or material damage to at least 50% of the Buildings) by fire
or other casualty or the Premises rendered wholly or substantially
untenantable for the purposes for which they were leased, Tenant may, at
its option, terminate this Lease by giving written notice thereof to the
other party within thirty (30) days of such casualty. In such event, the
rent shall be apportioned to and shall cease as of the date of such
casualty. In the event Tenant does not exercise this option, then the
Premises shall be reconstructed and restored at Landlord's expense.
(b) Partial Destruction of the Premises. If the Premises should
be rendered partially untenantable for the purpose for which they were
leased (which, as used herein, means such destruction or damage as would
prevent Tenant from carrying on its business on the Premises to an extent
exceeding 20% of its normal business activity) by fire or other casualty,
then such damaged part of the Premises shall be reconstructed and
restored, at Landlord's expense; rent shall be abated in the proportion
which the approximate area of the damaged part bears to the total area in
the Premises from the date of the casualty until substantial completion
of the reconstruction repairs; and this Lease shall continue in full
force and effect for the balance of the term. Landlord shall use
reasonable diligence in completing such reconstruction repairs, but in
the event Landlord fails to complete the same within one hundred eighty
(180) days from the date of the casualty, or if at such time it is
apparent that Landlord will not be able to reconstruct the Premises in
one hundred eighty (180) days, or if such casualty occurs during the last
twelve (12) months of the term of this Lease, then Tenant may, at its
option, terminate this Lease upon giving Landlord written notice to that
effect, whereupon both parties shall be released from all further
obligations and liability hereunder.
(c) Casualty Insurance. Landlord shall be responsible for
insuring and shall at all times during the term of this Lease carry, at
its own expense, a policy of insurance which insures the Buildings,
including the Premises, against loss or damage by fire or other casualty
(namely, the perils against which insurance is afforded by the standard
fire insurance policy and extended coverage endorsement); provided,
however, that Landlord shall not be responsible for, and shall not be
obligated to insure against, any loss or damage to personal property
(including, but not limited to, any furniture, machinery, equipment,
goods or supplies) of Tenant or which Tenant may have on the Premises or
any trade fixtures installed by or paid for by Tenant on the Premises or
any additional improvements which Tenant may construct on the Premises.
(d) Waiver of Subrogation. Landlord and Tenant hereby release
each other and each other's employees, agents, customers and invitees
from any and all liability for any loss, damage or injury to person or
property occurring in, on or about or to the Premises, improvements to
the Buildings or personal property within the Buildings, by reason of
fire or other casualty which could be insured against under a standard
fire and extended coverage insurance policy, regardless of cause,
including the negligence of Landlord or Tenant and their employees,
agents, customers and invitees. Because the provisions of this Section
will preclude the assignment of any claim mentioned herein by way of
subrogation or otherwise to an insurance company or any other person,
each party to this Lease shall give to each insurance company which has
issued to it one or more policies of fire and extended coverage insurance
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notice of the terms of the mutual releases contained in this Section, and
have such insurance policies properly endorsed, if necessary, to prevent
the invalidation of insurance coverages by reason of the mutual releases
contained in this Section.
10. General Public Liability, Indemnification and Insurance.
(a) Tenant shall be responsible for, shall have the obligation to
insure against and shall indemnify Landlord and hold it harmless from any
and all liability for any loss, damage or injury to person or property
occurring in, on or about the Premises, regardless of cause, including
the negligence of Landlord and its employees, agents, customers and
invitees, and Tenant hereby releases Landlord from any and all liability
for the same. Tenant's obligation to indemnify Landlord hereunder shall
include the duty to defend against any claims asserted by reason of such
loss, damage or injury and to pay any judgments, settlements, costs, fees
and expenses, including attorneys' fees, incurred in connection
therewith.
(b) Tenant, in order to enable it to meet its obligation to
insure against the liabilities specified in Section 10(a) hereof, shall
at all times during the term of this Lease carry, at its own expense, for
the protection of Tenant, Landlord and Landlord's management agent, if
any, as their interests may appear, one or more policies of general
public liability and property damage insurance, issued by one or more
insurance companies acceptable to Landlord, with minimum coverages of
$300,000 for injury to one person in any one accident, $500,000 for
injuries to more than one person in any one accident and $100,000 in
property damage per accident and insuring against any and all liability
for which Tenant is responsible hereunder. Such insurance policy or
policies shall name Landlord as an insured and shall provide that same
may not be cancelled on less than ten (10) days prior written notice to
Landlord. Tenant shall furnish Landlord with a copy of all certificates
evidencing such insurance. Should Tenant fail to carry such insurance
and furnish Landlord with a copy of all such policies after a request to
do so, Landlord shall have the right to obtain such insurance and collect
the cost thereof from Tenant as additional rent.
(c) Landlord shall be responsible for, shall have the obligation
to insure against, and shall indemnify Tenant and hold it harmless from
any and all liability for any loss, damage or injury to person or
property occurring in, on or about the common areas and facilities of the
Buildings and the walks, driveways, parking lot and landscaped areas
adjacent to the Buildings, regardless of cause, including the negligence
of Tenant and its employees, agents, customers and invitees; and Landlord
hereby releases Tenant from any and all liability for the same.
Landlord's obligation to indemnify Tenant hereunder shall include the
duty to defend against any claims asserted by reason of such loss, damage
or injury and to pay any judgments, settlements, costs, fees and
expenses, including attorneys' fees, incurred in connection therewith.
11. Eminent Domain.
If the whole or any part of the Premises shall be taken for public or
quasi-public use by a governmental authority under the power of eminent domain
or shall be conveyed to a governmental authority in lieu of such taking, and if
such taking or conveyance shall cause the remaining part of the Premises to be
untenantable or inadequate for use by Tenant for the purposes for which they
were leased, then Tenant may, at its option, terminate this Lease as of the
date Tenant is required to surrender possession of the Premises. If all or any
portion of the parking area shall be taken or conveyed and such taking or
conveyance substantially interferes with the contemplated use of the Premises
by Tenant, then Tenant shall have the right to terminate this Lease as of the
date of surrender of possession. Landlord shall have the right to provide
parking on adjoining parcels of land in substitution for any parking area so
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taken or conveyed. All compensation awarded for such taking or conveyance
shall be the property of Landlord without any deduction therefrom for any
present or future estate of Tenant, and Tenant hereby assigns to Landlord all
its right, title and interest in and to any such award. However, Tenant shall
have the right to recover from Landlord such compensation as may be awarded to
Tenant on account of moving and relocation expenses and depreciation to and
removal of Tenant's trade fixtures and personal property.
12. Liens.
If, because of any act or omission of Tenant or anyone claiming by,
through or under Tenant, any mechanic's liens or other lien shall be filed
against the Premises or the Buildings or against other property of Landlord
(whether or not such lien is valid or enforceable as such), Tenant shall, at
its own expense, cause the same to be discharged of record by payment, bonding
or otherwise within a reasonable time, not to exceed thirty (30) days, after
the date of filing and notice thereof to Tenant, and shall also indemnify
Landlord and hold it harmless from any and all claims, losses, damages,
judgments, settlements, costs and expenses, including attorneys' fees,
resulting therefrom or by reason thereof.
13. Rental, Personal Property and Other Taxes.
(a) Tenant shall pay before delinquency any and all taxes,
assessments, fees or charges (hereinafter referred to as "taxes"),
including any sales, gross income, rental, business occupation or other
taxes, levied or imposed upon Tenant's business operations in the
Premises and any personal property or similar taxes levied or imposed
upon Tenant's trade fixtures, leasehold improvements or personal property
located within the Premises. In the event any such taxes are charged to
the account of, or are levied or imposed upon the property of, Landlord,
Tenant shall reimburse Landlord for the same as additional rent.
Notwithstanding the foregoing, Tenant shall have the right to contest in
good faith any such tax and to defer payment, if required, until after
Tenant's liability therefor is finally determined.
(b) If any tenant finish improvements, trade fixtures,
alterations or improvements or business machines and equipment located
in, on or about the Premises, regardless of whether they are installed or
paid for by Landlord or Tenant and whether or not they are affixed to and
become a part of the realty and the property of Landlord, are assessed
for real property tax purposes at a valuation higher than that at which
other such property in other leased space in the Buildings is assessed,
then Tenant shall reimburse Landlord as additional rent for the amount of
real property taxes shown on the appropriate county official's records as
having been levied upon the Building or other property of Landlord by
reason of such excess assessed valuation.
14. Assignment and Subletting.
(a) Except as expressly permitted pursuant to this section,
Tenant shall not, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed, assign or
hypothecate this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use of the Premises by any party other
than Tenant. Any of the foregoing acts without such consent shall be
void and shall, at the option of Landlord, terminate this Lease. This
Lease shall not, nor shall any interest herein, be assignable as to the
interest of Tenant by operation of law without the written consent of
Landlord.
(b) Notwithstanding the provisions of Section (a) above, Tenant
may assign this Lease or sublet the Premises or any portion thereof,
without Landlord's consent and without extending any option to Landlord,
to any corporation which controls, is controlled by or is under common
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control with Tenant, or to any corporation resulting from the merger or
consolidation with Tenant, or to any person or entity which acquires all
the assets of Tenant as a going concern of the business that is being
conducted on the Premises, provided that said assignee assumes, in full,
the obligations of Tenant under this Lease.
(c) Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the rental and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent
by Landlord from any other person shall not be deemed to be a waiver by
Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by an assignee of Tenant or any
successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such assignee or successor. Landlord may
consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Tenant,
without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and such action shall not relieve
Tenant of liability under this Lease.
15. Transfers by Landlord.
(a) Sales, Conveyance and Assignment. Nothing in this Lease
shall restrict the right of Landlord to sell, convey, assign or otherwise
deal with the Buildings, subject to the rights of Tenant under this
Lease.
(b) Effect of Sale, Conveyance or Assignment. A sale, conveyance
or assignment of the Buildings shall operate to release Landlord from
liability from and after the effective date thereof upon all of the
covenants, terms and conditions of this Lease, express or implied, except
as such may relate to the period prior to such effective date, and Tenant
shall thereafter look solely to Landlord's successor in interest in and
to this Lease. This Lease shall not be affected by any such sale,
conveyance or assignment, and Tenant shall attorn to Landlord's successor
in interest thereunder, provided such successor shall expressly assume
all of the obligations of Landlord under this Lease.
(c) Subordination. Landlord reserves the right to subject and
subordinate this Lease at all times to the lien of any first mortgage(s)
now or hereafter placed upon Landlord's interest in the leased premises
and on the land and buildings of which the leased premises are a part or
upon any buildings hereafter placed upon the land which the leased
premises are a part, and Tenant shall execute and deliver any and all
documents necessary to evidence such subordination. No default by
Landlord under any such first mortgage(s) shall affect Tenant's rights
hereunder so long as Tenant is not in default under this Lease. Tenant
shall, in the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under any mortgage made
by Landlord covering the leased premises, attorn to the purchaser upon
any such foreclosure or sale and recognize such purchaser as Landlord
under this Lease.
(d) It is a condition, however, of the sale, subordination and
lien provisions set forth in this Section, that Landlord shall procure
from any such successor, purchaser, mortgagee or trustee an agreement in
writing, which shall be delivered to Tenant, providing in substance that
so long as Tenant shall faithfully discharge the obligations on its part
to be kept and performed under the terms of this Lease, Tenant's tenancy
will not be disturbed nor this Lease affected by any default under such
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mortgage or deed of trust, and the successor, purchaser, mortgagee or
trustee agrees that this Lease shall remain in full force and effect even
though default in the mortgage or deed of trust may occur.
(e) As a condition precedent to Tenant's obligations hereunder,
Landlord shall procure from any person, company, partnership, corporation
or entity which now has or may have at the commencement of this Lease a
mortgage lien encumbering the Demised Premises, an agreement in writing,
which shall be delivered to Tenant, providing in substance that so long
as Tenant shall faithfully discharge the obligations on its part to be
kept and performed under the terms of this Lease, its tenancy will not be
disturbed nor this Lease affected by any default under such mortgage, and
the agreement and acknowledgment of any such mortgagee that this Lease
shall remain in full force and effect even though default in the mortgage
may occur.
16. Defaults and Remedies.
(a) Default by Tenant. The occurrence of any one or more of the
following events shall be a default and breach of this Lease by Tenant:
(i) Tenant shall fail to pay (A) any monthly installment
of base rent or the Annual Rental Adjustment and such nonpayment
shall not have been cured within five (5) business days after the
date of Tenant's receipt of notice of such nonpayment, or (B) any
other additional rent and such nonpayment shall not have been cured
within thirty (30) days after the date of Tenant's receipt of
notice of such nonpayment;
(ii) Tenant shall fail to perform or observe any term,
condition, covenant or obligation required to be performed or
observed by it under this Lease for a period of thirty (30) days
after notice thereof from Landlord; provided, however, that if the
term, condition, covenant or obligation to be performed by Tenant
is of such nature that the same cannot reasonably be performed
within such thirty (30) day period, such default shall be deemed to
have been cured if Tenant commences such performance within said
thirty (30) day period and thereafter diligently undertakes to
complete the same;
(iii) A trustee or receiver shall be appointed to take
possession of substantially all of Tenant's assets in, on or about
the Premises or of Tenant's interest in this Lease (and Tenant does
not regain possession within sixty (60) days after such
appointment); Tenant makes an assignment for the benefit of
creditors; or substantially all of Tenant's assets in, on or about
the Premises or Tenant's interest in this Lease are attached or
levied upon under execution (and Tenant does not discharge the same
within sixty (60) days thereafter); and
(iv) A petition in bankruptcy, insolvency, or for
reorganization or arrangement is filed by or against Tenant
pursuant to any federal or state statute (and, with respect to any
such petition filed against it, Tenant fails to secure a stay or
discharge thereof within sixty (60) days after the filing of the
same).
(b) Remedies of landlord. Upon the occurrence of any event of
default set forth in Section 16(a) hereof, Landlord shall have the
following rights and remedies, in addition to those allowed by law, any
one or more of which may be exercised without further notice to or demand
upon Tenant:
(i) Landlord may re-enter the Premises and cure any
default of Tenant, in which event Tenant shall reimburse Landlord
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as additional rent for any cost and expenses which Landlord may
incur to cure such default; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of
Landlord's action, regardless of whether caused by Landlord's
negligence or otherwise;
(ii) Landlord may terminate this Lease as of the date of
such default, in which event: (A) neither Tenant nor any person
claiming under or through Tenant shall thereafter be entitled to
possession of the Premises, and Tenant shall immediately thereafter
surrender the Premises to Landlord; (B) Landlord may re-enter the
Premises and dispossess Tenant or any other occupants of the
Premises by force, summary proceedings, ejectment or otherwise, and
may remove their effects, without prejudice to any other remedy
which Landlord may have for possession or arrearages in rent; and
(C) upon the termination of this Lease Landlord shall use its best
efforts to re-let all or any part of the Premises for a term which
may be different from that which would otherwise have constituted
the balance of the term of this Lease and for rent and on terms and
conditions which may be different from those contained herein,
whereupon Tenant shall be obligated to pay to Landlord as
liquidated damages the difference between the rent provided for
herein and that actually received pursuant to any lease covering a
subsequent re-letting of the Premises, for the period which would
otherwise have constituted the balance of the term of this Lease,
together with all of Landlord's costs and expenses for preparing
the Premises for re-letting, including all repairs, tenant finish
improvements, brokers' and attorneys' fees, and all loss or damage
which Landlord may sustain by reason of such termination, re-entry
and re-letting, it being expressly understood and agreed that the
liabilities and remedies specified in this Section 16(b)(ii) shall
survive the termination of this Lease; and
(iii) Landlord may xxx for injunctive relief or to recover
damages for any loss resulting from the breach.
Any agreement for an extension or renewal of the term of this Lease
or any additional period thereafter, shall not thereby prevent Landlord
from terminating this Lease during the term hereof for any reason
specified in this Lease. If any such right of termination is exercised
by Landlord during the term of this Lease or any extension or renewal
hereof, Tenant's right to any further extension or renewal of this Lease
shall thereby be automatically cancelled. Any such right of termination
of Landlord contained herein shall continue during the term of this Lease
and any subsequent extension or renewal hereof.
(c) Non-Waiver of Defaults. The failure or delay by either party
hereto to enforce or exercise at any time any of the rights or remedies
or other provisions of this Lease shall not be construed to be a waiver
thereof, nor affect the validity of any part of this Lease or the right
of either party thereafter to enforce each and every such right or remedy
or other provisions. No waiver of any default and breach of this Lease
shall be held to be a waiver of any other default and breach. The
receipt of rent by Landlord at a time after rent is due under this Lease
shall not be construed as a waiver of such default. The receipt by
Landlord of less than the full rent due shall not be construed to be
other than a payment on account of rent then due, nor shall any statement
on Tenant's check or any letter accompanying Tenant's check be deemed an
accord and satisfaction, and Landlord may accept such payment without
prejudice to Landlord's right to recover the balance of the rent due or
to pursue any other remedies provided in this Lease. No act or omission
by Landlord or its employees or agents during the term of this Lease
shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such a surrender shall be valid unless in writing and
signed by Landlord.
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17. Access to the Premises.
Landlord, its employees and agents and any mortgagee of the Buildings
shall have the right to enter any part of the Premises upon reasonable notice
to Tenant at all reasonable times for the purposes of examining or inspecting
the same, showing the same to prospective purchasers, mortgagees or tenants and
for making such repairs, alterations or improvements to the Premises or the
Buildings as Landlord may deem necessary or desirable. If representatives of
Tenant shall not be present to open and permit such entry into the Premises at
any time when such entry is necessary by reason of emergency, Landlord and its
employees and agents may enter the Premises by means of a master key or
otherwise. Such entry shall not constitute an eviction of Tenant or a
termination of this Lease, or entitle Tenant to any abatement of rent therefor.
18. Surrender of Premises.
Upon the expiration or earlier termination of this Lease, Tenant shall
surrender the Premises to Landlord, together with all alterations, improvements
and other property as provided elsewhere herein, in broom-clean condition and
in good order, condition and repair, except for ordinary wear and tear and
damage which Tenant is not obligated to repair, failing which Landlord may
restore the Premises to such condition at Tenant's expense. Upon such
expiration or termination, Tenant's trade fixtures, furniture and equipment,
including but not limited to computer equipment, shall remain Tenant's
property, and if Tenant shall not be in default under this Lease, Tenant shall
have the right to remove the same. Tenant shall promptly repair any damage
caused by any such removal, and shall restore the Premises to the condition
existing prior to the installation of the items so removed.
19. Holding Over.
In the event Tenant remains in possession of the Premises with the
consent of Landlord after the expiration or earlier termination of this Lease,
Tenant shall be deemed to hold the Premises as a tenant at will, subject to all
of the terms, conditions, covenants and provisions of this Lease (which shall
be applicable during the holdover period), except that Tenant shall pay to
Landlord such rent as Landlord shall then specify, which rent shall be payable
to Landlord on demand. Tenant shall vacate and surrender the Premises to
Landlord upon Tenant's receipt of notice from Landlord to vacate. No holding
over by Tenant, whether with or without the consent of Landlord, shall operate
to extend this Lease except as otherwise expressly provided herein.
20. Definition of Landlord, Landlord's Liability.
The term "Landlord" as used in this Lease so far as covenants or
obligations on the part of Landlord are concerned shall be limited to mean and
include only the owner or owners at the time in question of the fee of the
leased premises, and in the event of any transfer or transfers of the title to
such fee the Landlord herein named (and in case of any subsequent transfers or
conveyances the then grantor) shall be automatically freed and relieved from
and after the date of such transfer or conveyance of all personal liability as
respects the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed, provided that any
funds in the hands of such Landlord or the then grantor at the time of such
transfer, in which Tenant has an interest, shall be turned over to the grantee
and any amount then due and payable to Tenant by Landlord of the then grantor
under any provision of this Lease shall be paid to Tenant, it being intended
hereby that the covenants and obligations contained in this Lease on the part
of Landlord shall, subject as aforesaid, be binding on Landlord, its successors
and assigns, only during and in respect of their respective successive periods
of ownership.
If Landlord shall fail to perform any covenant, term or condition of
this Lease upon Landlord's part to be performed, and if as a consequence of
such default Tenant shall recover a money judgment against Landlord, such
judgment
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shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied against the right, title and interest of Landlord in
the Buildings and out of rents or other income from such property receivable by
Landlord, or out of the consideration received by Landlord from the sale or
other disposition of all or any part of Landlord's right, title and interest in
the Buildings, and Landlord shall not be liable for any deficiency.
21. Quiet Enjoyment.
Landlord hereby covenants and agrees that if Tenant shall perform all
the covenants and agreements herein stipulated to be performed on Tenant's
part, Tenant shall at all times during the term of this Lease have the
peaceable and quiet enjoyment and possession of the Premises without any manner
of let or hindrance from Landlord or any persons lawfully claiming under or
through Landlord.
22. Default by Landlord.
It shall be a default and breach of this Lease by Landlord if it shall
fail to perform or observe any term, condition, covenant or obligation required
to be performed or observed by it under this Lease for a period of thirty (30)
days after notice thereof from Tenant; provided, however, that if the term,
condition, covenant or obligation to be performed by Landlord is of such nature
that the same cannot reasonably be performed within such thirty (30)
day period, such default shall be deemed to have been cured if Landlord
commences such performance within said thirty (30) day period and thereafter
diligently undertakes to complete the same.
23. Notice and Place of Payment.
(a) All rent and other payments required to be made by Tenant to
Landlord shall be delivered or mailed to Landlord at the address set
forth below or any other address Landlord may specify from time to time
by written notice given to Tenant:
0000 X. Xxxxxx Properties
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: Xx. Xxx Xxxxxxxxx
(b) All payments required to be made by Landlord to Tenant shall
be delivered or mailed to Tenant at the address set forth in
Section 23(c) hereof or at any other address within the United States as
Tenant may specify from time to time by written notice given to Landlord.
(c) Any notice required or permitted to be given under this Lease
shall be deemed to have been given if reduced in writing and delivered in
person or mailed by registered or certified mail, return receipt
requested, postage prepaid, to the party who is to receive such notice at
the address set forth below. When so mailed, the notice shall be deemed
to have been given as of the date it was mailed.
Landlord: 0000 X. Xxxxxx Properties
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: Xx. Xxx Xxxxxxxxx
With a
copy to: Xxxxxxx X. Xxxx, Esq.
00 Xxxx Xxxxxxxxx
Xxxxx, Xxxx 00000
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Tenant: Telxon Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000-0000
Attention: President
With a
copy to: Xxxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
24. Miscellaneous General Provisions.
(a) Any amounts of money to be paid by Tenant to Landlord
pursuant to the provisions of this Lease, whether or not such payments
are denominated "rent" or "additional rent" and whether or not they are
to be periodic or recurring, shall be deemed "rent" or "additional rent"
for purposes of this Lease; and any failure to pay any of the same as
provided in this Lease shall entitle Landlord to exercise all of the
rights and remedies afforded hereby or by law for the collection and
enforcement of Tenant's obligation to pay rent. Tenant's obligation to
pay any such rent or additional rent pursuant to the provisions of this
Lease shall survive the expiration or other termination of this Lease and
the surrender of possession of the Premises after any holdover period.
(b) Tenant shall, within ten (10) days following receipt of a
written request from Landlord, execute, acknowledge and deliver to
Landlord or to any lender, purchaser or prospective lender or purchaser
designated by Landlord a written statement certifying (i) that this Lease
is in full force and effect and unmodified (or, if modified, stating the
nature of such modification), (ii) the date to which rent has been paid,
and (iii) that there are not, to Tenant's knowledge, any uncured defaults
(or specifying such defaults if any are claimed). Any such statement may
be relied upon by any prospective purchaser or mortgagee for all or any
part of the Buildings. Tenant's failure to deliver such statement within
such period shall be conclusive upon Tenant that this Lease is in full
force and effect and unmodified, and that there are no uncured defaults
in Landlord's performance hereunder.
(c) If requested by either party, a Memorandum of Lease,
containing the information required by Ohio law concerning this Lease
shall be prepared, executed by both parties and filed for record in the
office of the Recorder of Summit County, Ohio.
(d) Landlord and Tenant hereby represent and warrant that no real
estate broker or finder was involved in this transaction. Each party
hereto shall indemnify and hold harmless the other party for any and all
liability (and related expense, including reasonable attorneys' fees)
incurred in connection with the negotiation or execution of this Lease
for any real estate broker's commission or finder's fee which has been
earned by a real estate broker or other person on such party's behalf.
(e) This Lease is being executed and delivered by Landlord in the
State of Ohio and shall be construed and enforced in accordance with the
laws of that state.
(f) This Lease, including all Exhibits, constitutes the entire
agreement between the parties hereto and may not be modified except by an
instrument in writing executed by the parties hereto.
(g) This Lease and the respective rights and obligations of the
parties hereto shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto as well as the parties
themselves; provided, however, that Landlord, its successors and assigns
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shall be obligated to perform Landlord's covenants under this Lease only
during and in respect of their successive periods as Landlord during the
term of this Lease.
(h) If any provision of this Lease shall be held to be invalid,
void or unenforceable, the remaining provisions hereof shall not be
affected or impaired, and such remaining provisions shall remain in full
force and effect.
(i) Landlord shall not, by virtue of the execution of this Lease
or the leasing of the Premises to Tenant, become or be deemed a partner
of Tenant in the conduct of Tenant's business on the Premises or
otherwise.
(j) As used in this Lease, the word "person" shall mean and
include, where appropriate, an individual, corporation, partnership or
other entity; the plural shall be substituted for the singular, and the
singular for the plural, where appropriate; and words of any gender shall
include any other gender. The topical headings of the several Sections
of this Lease are inserted only as a matter of convenience and reference,
and do not affect, define, limit or describe the scope or intent of this
Lease.
25. Option to Purchase.
Provided Tenant is not then materially in default of any of its
obligations under this Lease, Tenant shall have the right and option to
purchase the Buildings and the parcels of land included in the Premises, in
their entirety, together with all improvements and personal property owned by
Landlord thereon (the "Property"), for such purchase price as may be agreed
between Landlord and Tenant or, failing such agreement, within thirty (30) days
following Tenant's exercise of its option to purchase, for a price equal to the
fair market value of the Property as determined by two qualified professional
M.I.A. real estate appraisers, one of whom shall be selected by Landlord and
the other of whom shall be selected by Tenant. The appraisers thus selected
shall submit their respective appraisals to Landlord and Tenant not later than
thirty (30) days following their selection and, provided that such appraisals
do not vary from the average thereof by a factor of ten percent (10%) or more,
the purchase price shall be equal to the average of such appraisals. In the
event such appraisals vary from the average thereof by ten percent (10%) or
more, the two appraisers thus selected shall jointly select a third
qualified professional M.I.A. real estate appraiser, who shall within thirty
(30) days following his selection render his appraisal, which shall not be
greater than the higher appraisal theretofore rendered pursuant to this Section
nor lower than the lower appraisal theretofore rendered pursuant to this
Section, and the purchase price for the Property shall be equal to the average
of the three appraisals. Tenant may exercise such option by written notice to
Landlord at either of the following times: (a) not later than September 1,
1993, in which event such purchase would be consummated on or before December
31, 1993, and Tenant would reimburse Landlord for any mortgage prepayment or
assumption fees incurred by Landlord as a result of such purchase; or (b)
September 1, 2001, in which event such purchase would be consummated on or
before December 31, 2001.
Such purchase would be consummated by deposit with Chicago Title
Insurance Company ("Chicago Title") or such other title company or financial
institution as Tenant may select as escrow agent (the "Escrow Agent") of a
recordable limited warranty deed (or deeds), which conveys fee simple
marketable title to the Property to Tenant or its nominee free and clear of any
and all liens and encumbrances whatsoever, except (a) those certain matters set
forth in Schedule B, Section 2, Items 3,4,5,6,7, and 10 of Commitment for Title
Insurance No. AK-220,630 (effective date: December 22, 1986) issued by Chicago
Title, a copy of the pertinent part of which is attached hereto and made a part
hereof as Exhibit B; (b) those certain matters set forth in Schedule B,
Section 2, Items 4,5, and 6 of Commitment for Title Insurance No. AK-220,643
(effective date: December 22, 1986) issued by Chicago Title, a copy of the
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20
pertinent part of which is attached hereto and made a part hereof as Exhibit C;
and (c) zoning and building ordinances, if any, and general real estate taxes
not then due and payable; such items to be deposited with the Escrow Agent not
later than fifteen (15) days prior to consummation of such purchase (the
"Closing"). In addition, not later than fifteen (15) days prior to the
Closing, Landlord shall deposit with the Escrow Agent an assignment to Tenant
of all existing leases affecting the Property, a copy of Landlord's closing
affidavit given to the Escrow Agent with respect to payment of bills for work
performed and materials furnished to the Property within ninety (90) days of
Closing, a certificate of Landlord that it is not a foreign person within the
meaning of Section 1445 of the Internal Revenue Code, a xxxx of sale to Tenant
for the personal property included in the Property, and such other and further
documents and instruments as may be reasonably requested by Tenant, all in form
reasonably satisfactory to Tenant. Closing shall be accomplished by and upon
the following: (a) deposit in escrow of all documents and funds respectively
required of Landlord and Tenant; (b) payment of the purchase price; (c)
issuance by the Escrow Agent of an Owner's Title of Insurance Policy in the
amount of the purchase price, insuring fee simple title ownership of the
Property as of the Closing to Tenant or its nominee, free and clear of any
liens and encumbrances whatsoever except those matters stated above; and (d)
disbursement to Landlord of the net amount due it after giving effect to the
following cost allocations: Landlord shall pay the premium for title insurance
to the extent of the premium for a title guarantee in the same amount, and
Tenant shall pay the balance of such premium; real estate taxes shall be
apportioned as of the date of transfer of title according to the calendar year,
using the last available County Treasurer's tax duplicate for the purpose of
closing the escrow, with any current assessments, re-assessed assessments
and/or re-spread taxes upon the Premises to be paid out of Landlord's funds at
Closing; Tenant shall pay one-half (1/2) of the escrow fees and all recording
fees; Landlord shall pay real property conveyance fees and one-half (1/2) the
escrow fees; rents receivable, security deposits, utility and service contract
charges, and accounts payable and leasing commissions shall be equitably
adjusted as of the Closing by Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written:
Witnesses as to Landlord: LANDLORD: 0000 X. XXXXXX PROPERTIES
/s/ Xxxxxxx X. Xxxx By: /s/ Xxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx General Partner
Witnesses as to Tenant: TENANT: TELXON CORPORATION
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx Vice President
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STATE OF OHIO )
) SS
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above named , to me known to be
the person who executed the within and foregoing instrument, who acknowledged
that he is duly authorized to execute such instrument on behalf of 0000 X.
Xxxxxx Properties, that he did execute said instrument on behalf of said
partnership and that the same is his free and voluntary act and deed as General
Partner of said partnership and is the free and voluntary act and deed of said
partnership for the uses and purposes therein set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Akron, Ohio, this 16th day of March, 1987.
/s/ Xxxxxx X. Xxxxxxxx
Notary Public
STATE OF OHIO )
) SS
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above named Xxxxxx X. Xxxxx, known to me to be the Vice President
of Telxon Corporation, the corporation which executed the foregoing instrument,
who acknowledged that he did sign and seal the foregoing instrument for, and on
behalf of said corporation, being thereunto duly authorized by its Board of
Directors, that the same is his free act and deed as such officer and the free
act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Akron, Ohio, this 16th day of March, 1987.
/s/ Xxxxxx X. Xxxxxxxx
Notary Public
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LEGAL DESCRIPTION
PARCEL I:
Situated in the City of Fairlawn, County of Summit and State of Ohio: and
known as being part of Xxx 0, xxxxxxxx Xxxxxx Xxxxxxxx, and more fully
described as follows:
Beginning at the point of intersection of the East line of Fairlawn
Village Heights Estates, as recorded in Plat Book 62, Page 18 of the Summit
County Records of Plats, produced northerly and the original centerline of
West Market Street;
thence S. 58 deg. 23' 30" E. along the said original centerline, 378.00
feet to the true place of beginning;
thence continuing S. 58 deg. 23' 30" E. along said original centerline,
150.00 feet to a point;
thence S. 31 deg. 36' 10" W., 435.60 feet to an I.P.;
thence S. 58 deg. 23' 30" E., 115.67 feet to an I.P.;
thence S. 31 deg. 36' 30" W., 150.00 feet to an I.P.;
thence N. 58 deg. 23' 30" W. along the northerly line of land conveyed
to the First Universalist Church of Akron and recorded in Volume 3585, Page
548, Summit County Records, 282.45 feet to an I.P. on the southerly extension
of the Easterly line of said Fairlawn Village Heights Estates;
thence N. 00 deg. 09' 52" W. along the Easterly line of said Fairlawn
Village Heights Estates and the southerly extension thereof, 118.69 feet to
an I.P. at the southwesterly corner of land conveyed to Xxxxxxx X. XxXxxx
and Xxxx Xxx XxXxxx and recorded in Volume 4931, Page 9 of the Summit County
Records;
thence N. 89 deg. 50' 08" E. along the southerly line of said XxXxxx
parcel, 93.25 feet to an I.P. at the southeasterly corner of said XxXxxx
parcel;
thence N. 31 deg. 36' 10" E. along the easterly line of said XxXxxx
parcel, 435.60 feet to the true place of beginning, as surveyed by Xxxxxxx
X. Xxxxxxxx, Registered Surveyor, in December, 1978, but subject to all
legal roads and highways.
PARCEL II:
Situated--in the City of Fairlawn, County of Summit and State of Ohio, and
known as being part of Xxx 0, xxxxxxxx Xxxxxx Xxxxxxxx, and being more fully
described as follows:
Beginning at the intersection of the original Centerline of West Market
Street and the Westerly line of Morewood Road, as dedicated in Plat Book 49,
Page 73 of the Summit County Record of Plats; Thence S. 31 deg. 36' 30" W.,
along said Westerly Street line, 435.60 feet to an I. P.; Thence N. 58 deg.
23' 30" W., 518.69 feet to an I. P. at the Southeasterly corner of land
conveyed to No. 547 Building Company by Deed dated June 8, 1972 and recorded
in Volume 4071, Page 644 of the Summit County Record of Deeds: Thence N. 31
deg. 36' 10" E., along the Easterly line of land so conveyed to No. 547
Building Company, 435.60 feet to a point on the original centerline of said
West Market Street (and passing through an I. P. set at 405.60 feet), said
point being S. 58 deg. 23' 30" E., 528.00 feet along said original centerline
from its intersection with the East line of Fairlawn Village Heights Estates,
as recorded in Plat Book 62, Page 18 of the Summit County Record of Plats;
Thence S. 58 deg. 23' 30" E., along said original street centerline, 518.72
feet to the place of beginning.
Exhibit A
Page 1 of 2
23
Exhibit A
Page 1 of 2
24
Situated in the City of Fairlawn, County of Summit and State of
Ohio and known as being part of Xxx 0, xxxxxxxx Xxxxxx Xxxxxxxx, and
more fully described as follows:
(forward)
(SCHEDULE A continued)
Beginning at a point on the Westerly line of Morewood Road as
dedicated in Plat Book 49, Page 73, of the Summit County Record of
Plats, said point being S 31 deg. 36' 30" W along said line 435.60
feet from its intersection with the original centerline of West
Market Street:
Thence S 31 deg. 36' 30" W along said street line 150.00 feet
to an I.P.;
Thence N 58 deg. 23' 30" W, 403.02 feet to an I.P.;
Thence N 31 deg. 36' 30" E, 150.00 feet to an I.P.;
Thence S 58 deg. 23' 30" E, 403.02 feet to the place of beginning,
as surveyed by Xxxxxxxx & Xxx, Registered Surveyors, in March, 1978.
EXHIBIT 1
Page 2 of 2
25
SCHEDULE B--continued
Number
AK-220,630 Page 1
SCHEDULE B - Section 2
Schedule B of the policy or policies to be issued will contain
exceptions to the following matters unless the same are disposed of to
the satisfaction of the Company.
1. Defects, liens, encumbrances, adverse claims or other matters, if any,
created first appearing in the public records or attaching subsequent to the
effective date hereof but prior to the date the proposed Insured acquires for
value of record the estate or interest or mortgage thereon covered by this
Commitment.
2. Any owner's policy issued pursuant hereto will contain under Schedule B
the standard exceptions set forth at the inside cover hereof. Any loan policy
will contain under Schedule B standard Exceptions 1, 2 and 3 unless a
satisfactory survey and inspection of the premises is made.
3. Restrictions and Reservations contained in the Warranty Deed from
Xxxxxxx Xxxxxx Packard Xxxxx to Xxxxxxx X. Xxxx, dated May 11, 1939, filed
for record May 16, 1939 at 9:40 A. M. and being recorded in Volume 1775,
Page 20 of Summit County Records, conveying a part of Parcel II of premises
described in Schedule C.
See Exhibit A attached hereto and made a part hereof.
Note: By the Dedication Plan of Moorewood Road filed for record July
1, 1957, at 1:05 P. M. and recorded in Plat Book 49, Page 73 of Summit County
Records, the Southeasterly 25 feet of the 35 feet reserved for street purposes
in the above deed was dedicated to the Public use for Highway purposes.
Note: Said restrictions contain no forfeiture clause and a violation
thereof would not work a forfeiture or reversion of title.
Note: This company insures against loss by reason of the present violation
of the restrictions.
RB:eb
EXHIBIT B
Page 1 of 2
26
Number AK-220,630 Page 2
4. An Electric Distribution Easement from Xxxxxxx X. Xxxx and Xxxxxxxx
X. Xxxx, to Ohio Edison Company, dated November 29, 1960, filed for record
December 19, 1960 at 10:21 A. M. and being recorded in Volume 3905, Page
221 of Summit County Records, for lines for the distribution of electric
current, including telephone and telegraph.
See Exhibit B attached hereto and made a part hereof.
5. An Underground Distribution Easement from Simon Joint Venture
IV to Ohio Edison Company, dated January 10, 1980, filed for record January
22, 1980 at 8:49 A. M. and being recorded in Volume 6333, Page 33 of
Summit County Records, for Distribution of electric current and the
operation of telephone and telegraph lines.
See Exhibit C attached hereto and made a part hereof.
6. Memorandum of Lease by and among Prudential Insurance Company
of America a New Jersey corporation and Simon & Company, an Ohio General
Partnership DBA Simon Joint Venture IV Landlord and Telxon Corporation
a Delaware Corporation, Tenant, dated June 4, 1981,1 filed for record
July 29, 1981 at 9:02 A. M. and recorded in Volume 6476, Page 170 of
Summit County Records.
Term 5 years commencing on the First Day of the calendar month succeed-
ing the date construction is substantially completed with an option of
1 renewal term of 5 years.
See Exhibit D attached hereto and made a part hereof.
7. Amendment to Memorandum of Lease by and among Prudential Insurance
Company of America, a New Jersey Corporation and Simon & Company an Ohio
General Partnership DBA Simon Joint Venture IV Landlord and Telxon Corporation
a Delaware Corporation, Tenant, dated May 15, 1982 filed for record May
20, 1982 at 9:40 A. M. and recorded in Volume 6554, Page 499 of Summit
County Records.
See Exhibit E attached hereto and made a part hereof.
8. Mortgage for $4,740,000.00 from Simon Joint Venture IV, an Ohio
Partnership to The Prudential Insurance Company of America, dated June
4, 1986, filed for record June 4, 1979 at 10:41 A. M. and being recorded
in Volume 6271, Page 587 of Summit County Records.
See Exhibit F attached hereto and made a part hereof.
9. Conditional Assignment of Rentals from Simon Joint Venture IV
an Ohio Partnership to The Prudential Insurance Company of America, dated
June 4, 1979, filed for record June 4, 1979 at 10:43 A. M. recorded in
Volume 6226, Page 59 of Summit County Records, in the amount of $4,740,000.00.
See Exhibit G attached hereto and made a part hereof.
10. Subject to two 0.5' curb encroachments from the most Southerly
side of Parcel I of caption premises upon the premises adjoining caption
and a 6.55' encroachment of a 2' in diameter catch basin from a storm
conduit on the Southwesterly side of Parcel II of caption premises upon
the premises adjoining caption as disclosed by Survey provided by X.
X. Xxxxxxxx & Associates, Inc. by Registered Surveyor X. X. Xxxxxxxx
#4512 Registered Surveyor.
EXHIBIT B
Page 2 of 2
27
Number AK-220,643 Page 2
4. Restrictions and Reservations as contained in the Warranty Deed from
Xxxxxxx X. Xxxxx to Xxxxxxx X. Xxxx, dated February 27, 1945, filed for
record on April 10, 1945 at 10:27 A.M., and recorded in Volume 2162,
Page 445 of Summit County Records, conveying premises described in Schedule
C.
See Exhibit A attached hereto and made a part hereof.
NOTE: By the Dedication Plan of Morewood Road, filed for record on
July 1, 1957 at 1:05 P.M., and recorded in Plat Book 49, Page 73 of
Summit County Records, the Southeasterly 25 feet of the 35 feet reserved
for street purposes in the above deed was dedicated to the Public Use
for Highway Purposes.
5. Easement and Right of Way for distribution of electric current, in-
cluding telephone and telegraph, from Xxxxxxx X. Xxxx and Xxxxxxxx X.
Xxxx to Ohio Edison Company, dated November 29, 1960, filed for record
on December 19, 1960 at 10:21 A.M., and recorded in Volume 3905, Page
271 of Summit County Records.
See Exhibit B attached hereto and made a part hereof.
EXHIBIT C
Page 1 of 2
28
Number AK-220,643 (SCHEDULE B continued) Page 3
6. There are no Special Taxes or Assessments charged against premises
described in Schedule C, except an assessment for Sewer Maintenance
which is payable in semi-annual installments of $27.00 each for the
year through 1986.
No examination has been made for Special Taxes or Assessments
which have not been certified to the County Auditor.
7. Premises described in Schedule C, are listed for Taxation on the
1986 Duplicate, Fairlawn City, in the name of Simon Joint Venture
IV.
PM No. 09-00509
PPN CP-0005-02-002
Lot 0 X xx Xxxxxxxx Xx
Special Assessments for the first half 1986 amounting to $27.00
are a lien due and payable.
Taxes for the first half 1986, $1,369.55
920 Credit 347.58
Roll Back Credit 102.20
Adjusted Tax $ 919.77 are a lien due and
payable.
Taxes and Assessments for the last half 1986 are a lien not yet
due and payable.
Taxes and Assessments for the year 1987, amount not yet determined,
are a lien not yet due and payable.
Additions or abatements which may hereafter be made by legally
constituted authorities as provided for in Chapter 5713 of the Ohio
Revised Code.
EXHIBIT C
Page 2 of 2
