Exhibit 10.35
10/29/99
METRO I
Standard Office Lease
This Lease ("Lease") entered into as of the 30th day of January, 2001
between CB PARTNERS LIMITED PARTNERSHIP, an Ohio limited partnership
("Landlord"), and KARLNET, INC., a(n) Ohio Corporation ("Tenant").
Witnesseth:
1. DEMISE AND TERM: Landlord leases to Tenant and Tenant leases from Landlord
the premises (the "Premises") containing approximately 0000 Xxxxxxxx Xxxxxx Feet
(hereinafter defined) and identified as Suite No. 100 on the first floor of the
building (the "Building") known as Metro I Office Building and located at 000
Xxxxx Xxxxx Xxxxx, Xxxxxxxx Xxxx 00000. The Building is located within and on
that certain parcel of land (the "Land") described on Exhibit A attached hereto
and made a part hereof. The Land, the Building and the other improvements
located-within and on the Land are collectively hereinafter referred to as the
"Development"., The initial term of this Lease shall be for a term of Two (2)
years and One (1) months commencing on February 1, 2001, (the "Commencement
Date") and ending on February 28, 2003, unless sooner terminated as hereinafter
provided.
2. POSSESSION: If Landlord shall be unable to deliver possession of the Premises
to Tenant on the Commencement Date because of the holding over of any existing
tenant or occupant thereof, or for any other cause beyond Landlord's reasonable
control, then Base Rent (hereinafter defined) and other charges payable by
Tenant shall not commence until the date possession of the Premises is tendered
to Tenant. Such abatement of Base Rent and other charges shall be in full
satisfaction of any claim against Landlord for failure to deliver possession of
the Premises on the Commencement Date. Failure to deliver possession of the
Premises on the Commencement Date shall in no event extend, or be deemed to
extend, the term of this Lease. Notwithstanding the foregoing, if Landlord fails
for any reason to tender possession of the Premises to Tenant within one hundred
twenty (120) days of the Commencement Date, either Landlord or Tenant shall have
the right to terminate this Lease upon notice to the other party; provided,
however, if Landlord tenders possession of the Premises within ten (10) days
after receipt of Tenant's termination notice, such notice shall be deemed
withdrawn and Landlord and Tenant shall proceed as if no such notice were given.
If either Landlord or Tenant terminates this Lease as aforesaid, all sums
deposited by Tenant with Landlord shall be returned to Tenant and this Lease
shall be null and void and of no further force or effect.
If Landlord shall be unable to deliver possession of the Premises to
Tenant on the Commencement Date because Landlord has not substantially completed
(hereinafter defined) any space preparation work in the Premises pursuant to
Landlord's work letter ("Work Letter") attached hereto as Exhibit B, and made a
part hereof, and if the delay in completion of such work has not been caused by
Tenant's failure to submit its plans and specifications to Landlord on or before
the time called for in the Work Letter, or caused by any other act or failure to
act by Tenant, then the term of this Lease shall commence on the day following
written notice by Landlord that such work has been substantially completed. If
such date shall be other than the first day of a calendar month, Base Rent for
the month in question shall be prorated on a per diem basis (based upon a thirty
(30) day month). For purposes of this Lease, the term "substantially completed"
shall mean that (a) an occupancy permit has been issued for the Premises and (b)
the work to be performed by Landlord pursuant to the Work Letter has been
completed except for minor "punch list" items which can and shall be completed
by Landlord within thirty (30) days following the Commencement Date. Unfinished
work, if any, undertaken by Landlord for Tenant and not included in the Work
Letter shall not be considered in determining whether the Premises are
substantially completed.
3. BASE RENT: Tenant shall pay landlord as Base Rent ("Base Rent") for the
Premises as follows:
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RENT PER SQUARE FOOT ANNUAL MONTHLY RENT FROM To
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$0.00 $0.00 $0.00 February 1, 2001 February 28, 2001
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$17.00 $108,392.00 $9032.67 March 1, 2001 February 28, 2003
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OPTION
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$18.00 $114,768.00 $9564.00 March 1, 2003 February 28, 2004
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Each payment of Base Rent shall be payable in advance, without demand, deduction
or set-off, in legal tender of the United States of America, on the first day of
each and every calendar month during the term of this Lease at the office of
Landlord's agent, or at such other place as Landlord may designate, from time to
time, in writing. Base Rent is subject to adjustment, from time to time, as set
forth in Section 4 below. Base Rent and all other charges payable hereunder
which are not paid when due shall bear interest from the due date until paid at
the maximum lawful rate of interest permitted in the State of Ohio. Any payment
obligation of Tenant under this Lease other than for Base Rent shall be deemed
to be an obligation for and shall be xxxx.xx additional rent ("Additional
Rent").
Notwithstanding anything contained in this Lease, in order to cover the added
expense involved in handling delinquent accounts, Tenant shall pay Landlord, in
addition to any Base Rent or other charges payable hereunder .a late charge of
$250.00 for any installment of Base Rent or any other charge not paid in full
within five (5) days of its due date. The late charge shall be in addition to
any interest charge that may be due for late payment.
4. ADJUSTMENTS TO BASE RENT AND ADDITIONAL RENT: Tenant shall pay Landlord the
adjustments to Base Rent and the other charges hereinafter set forth, all of
which shall be adjusted or computed as of the times and in the manner provided
in this Section 4:
(a) Definitions. For the purposes of this Section, the following
definitions shall apply:
(i) The term "Rentable Square Feet" shall mean the number of
Usable Square Feet (hereinafter defined) within the Premises
or the Building, as the case may be, plus a common areas/load
factor of twelve percent (12%) which represents an allocation
of the square footage of the Common Areas (hereinafter
defined) within the Building. Landlord and Tenant have
determined and agreed that the Rentable Square Feet of the
Premises are (6376) square feet and the Rentable Square Feet
of the Building are ( 73,491) square feet as of the date of
this Lease.
(ii) The term "Usable Square Feet" shall mean the area of the
Premises, expressed in square feet, which is capable of being
utilized by Tenant for its
2
tenancy purposes. Notwithstanding the foregoing, the Usable
Square Feet of the Premises shall be subject to re-measurement
within thirty (30) days following the Commencement Date at
Landlord's option and Landlord shall have the right to change
the Usable Square Feet in the Building, from time to time, to
the extent portions thereof are or are not to be leased to
tenants of the Building. If any such re-measurement discloses
that the Usable Square Feet of the Premises are different than
the Usable Square Feet of the Premises set forth above, Base
Rent, the Rentable Square Feet of the Premises and Tenant's
Share (hereinafter deemed), shall be proportionately adjusted
to reflect such re-measured Usable Square Feet. If Landlord
changes the Usable Square Feet in the Building as aforesaid,
Tenant's Share also shall be proportionately adjusted.
(iii) The term "Tenant's Share" shall mean the percentage which the
Usable Square Feet of the Premises is of the total Usable
Square Feet of the Building, which percentage is agreed upon
as being percent (8.68%). If additional Usable Square Feet
shall be included under this Lease, or the total Usable Square
Feet of the Building change, Tenant's Share shall be
proportionately adjusted.
(iv) The term "Base Year" shall mean the calendar year during which
the term of this Lease commences.
(v) The term "Price Index" shall mean the "Consumer Price Index"
for Urban Wage Earners and Clerical Workers, United States
City Average, all items -Series A (1982-84 = 100) published by
the Bureau of Labor Statistics of the U.S. Department of Labor
("Bureau"), or if such index shall be discontinued, then any
index designated by the Bureau to replace such index shall be
used. If no index is so designated, then Landlord shall
select, in its sole judgment, a comparable substitute index.
No adjustment or re-computation, retroactive or otherwise,
shall be made due to any revision made to the first published
figure of the Price Index for any month.
(vi) The term "Price Index for the Base Year" shall mean the
average of each monthly Price Index for the twelve (12) months
of the Base Year.
(vii) The term "Adjusted Base Rent' 'shall mean Base Rent as
adjusted in accordance with the provisions hereinafter set
forth.
(viii) The term "Comparison Year" shall mean the first full calendar
year following the Base Year and each subsequent full calendar
year, or fraction thereof at the commencement or termination
of this Lease.
(ix) The term "Operating Expenses" shall mean those expenses
incurred by Landlord during any calendar year, whether the
Base Year or a Comparison Year, in respect of the operation,
repair and maintenance of the Development, in accordance with
generally accepted principles of sound management, as applied
to the operation, repair and maintenance of similar
developments in the Greater Columbus. area. Operating Expenses
shall include, but not be limited to, costs of management,
cleaning, heating, -decorating, lighting, utilities provided
to and not paid separately by tenants of the Building and for
the Common Areas, repairs and replacements of all. kinds
(except to the extent proceeds of insurance or condemnation
awards are available therefore), snow, ice and trash removal,
sanitary control, line painting, gardening and landscaping,
security, repair and replacement of the paving, curbs,
walkways, roads, windows, electric power lines, gas lines,
light poles, bulbs, ceiling tiles and drainage, repairs and
maintenance of the exterior structure of 'the buildings in the
Development, including the foundation, exterior walls and
roof, interior walls and partitions thereof, repair and
replacement of water lines, sanitary sewers and storm sewer
lines serving the Development, rental or purchase of
machinery, equipment and tools used in the maintenance of the
Common Areas, the cost of inspections of the Development or
any part thereof, repairs and replacements of facilities in
the Common Areas, including washrooms, drinking fountains,
toilets and other public facilities, signs, and sound systems,
liability and property insurance, including any and all
deductible payments or insurance claims paid by Landlord for
losses of any kind or nature paid either to any insurance
company or individuals and such other insurance coverage as
Landlord or any mortgagee of Landlord deems appropriate,
compensation and benefits (including premiums for workers'
compensation and other insurance) paid to or on behalf of
employees of Landlord to the extent involved in the operation,
repair or maintenance of the Development, personal property
taxes, fire protection and fire hydrant charges, utility
licenses and permit fees and the cost of any capital
improvement or expense made to or for the Development,
including without limitation, those required to comply with
applicable laws, to the extent expensed or amortized (over a
period determined by Landlord) in any calendar year together
with interest on the un-amortized balance thereof at the rate
of eighteen percent (18%) per annum or such higher rate as may
have been paid by Landlord on funds borrowed for such
purposes. If at any time the Building is not fully occupied or
Landlord is not supplying services to all Usable Square Feet
in the Building during an entire calendar year, then Landlord
may adjust actual Operating Expenses to Landlord's estimate of
that amount, which would have been paid or incurred by
Landlord as Operating Expenses had the Building been
ninety-five percent (95%) occupied or serviced, and the
Operating Expenses as so adjusted shall be deemed to be the
actual Operating Expenses for such calendar year. The
provisions of the preceding sentence shall apply only to those
Operating Expenses that either vary with occupancy or by
reason of one or more tenants not receiving goods or services,
the cost of which constitutes all or part of such Operating
Expenses. Operating Expenses shall not include: expenses for
painting, decorating, or other work performed for individual
tenants of the Building, expenses for repairs 'and other work
covered by the property insurance to be maintained by
Landlord, expenses incurred in leasing or procuring new
tenants for the Building, including lease commissions,
advertising expenses and expenses of renovating space for new
tenants, legal expenses incurred in enforcing the terms of any
lease of any portions of the Building, and interest and
amortization payments on any mortgage. Tenant hereby
acknowledges that Operating Expenses for the Base Year are
$5.25 per rentable square foot of the Building.
(x) The term "Taxes" shall mean all taxes of any kind or nature,
including without limitation, real estate taxes and
assessments, general or special, which any governmental agency
may now or in the future impose on the Land or any part of the
Development or the use and operation thereof or as a
substitute or in addition to any such taxes payable by
Landlord with respect to the Development or any part thereof,
and all expenses incurred in connection with disputing or
contesting such Taxes. Should any governmental authority
having jurisdiction impose a tax and/or assessment
(other than an income or franchise tax unless such income tax
is a substitute for any existing real estate tax) upon or
against the rentals payable hereunder or on the privilege of
renting. or leasing real property, such tax and/or assessment
shall be deemed to be included within the meaning of Taxes. If
the amount of Taxes payable by Landlord with respect to the
Development includes any special assessment(s) that expire(s)
at any time during the term of this Lease, then, at such time
as the applicable portion of an assessment is paid in full,
Taxes for the Base Year shall be recalculated to exclude the
amount of the applicable portion of the assessment that was
paid in full. Commencing as of the year of such recalculation
and continuing for each and every calendar year or partial
calendar year following such recalculation or until such time
as Taxes are again recalculated, Tenant shall pay Tenant's
Share of any increase in Taxes based upon the recalculated
amount. In determining Taxes for any given year, there shall
be a, further adjustment made by Landlord in the event of the
filing of a tax complaint as to the amount of Taxes, once the
final Taxes for the tax year in question have been determined.
Tenant hereby acknowledges that Taxes for the Base Year are $
$1.49 per rentable square foot of the Building.
(b) Cost of Living Adjustment. (Intentionally deleted).
(c) Operating Expenses and Taxes. In addition to adjustments to Base
Rent as above provided, Tenant shall pay, on an estimated basis,
monthly to Landlord Tenant's Share of the net aggregate increase, if
any, in the amount of Operating Expenses and Taxes for the
Comparison Year in question over those for the Base Year. Such
payments shall not in any event reduce Base Rent or any adjustment
to Base Rent or entitle Tenant to any refund or credit if Operating
Expenses or Taxes for a Comparison Year are. less than those for the
Base Year. Landlord's reasonable estimate of increases in Operating
Expenses and Taxes over those for the Base Year may be used as a
basis for the estimate of the increase in Operating Expenses and
Taxes for any Comparison Year.
(d) Reconciliation. All monthly installments of Tenant's Share of
increases in Operating Expenses and Taxes, as estimated by Landlord,
shall be adjusted as soon as practicable after the end of the
calendar year in question so that Tenant shall pay the exact amount
due for such calendar year. Any overpayments or under payments by
reason of the use of Landlord's estimate shall be settled and
accounted for at such time. Landlord shall pay or credit to Tenant
any overpayment. Tenant shall pay to Landlord any under payment
within ten (10) days of Landlord's invoice therefore. Tenant's Share
of increases in Operating Expenses and Taxes for any calendar year
during which the term of this Lease expires or terminates shall be
prorated to the expiration or termination date. All obligations of
Tenant for Tenant's Share of Operating Expenses and Taxes under this
Section 4 shall survive the expiration or earlier termination of
this Lease.
(e) Landlord's Books. Landlord shall keep and make available to Tenant
at Landlord's. office, for a period of sixty (60) days after
statements are rendered to Tenant, records in reasonable detail of
Operating Expenses and Taxes for the period covered by such
statements and shall permit Tenant and the representatives-of Tenant
to, examine and audit such statements at any reasonable time during
Business Hours (hereinafter deemed). If Tenant shall dispute one (1)
or more items included by Landlord in determining Operating Expenses
-or Taxes for the Base Year or any Comparison Year, and such dispute
is not amicably settled between Landlord and Tenant within thirty
(30) days after the statement in question has been rendered, Tenant
may, during the twenty (20) days next following the expiration of
said thirty (30) day period, notify Landlord of its election to
arbitrate said dispute and refer such disputed item or items to a
reputable firm of certified public accountants, reasonably
acceptable to Landlord, for decision. The decision of such firm
shall be conclusive and binding upon Landlord and Tenant. The
expense involved in such determination shall be borne by the party
against whom a decision is rendered; provided, however, if more than
one (1) item is disputed, and the decision shall be in part against
each party, the expense shall be fairly apportioned by said firm.
Pending such decision, Tenant shall pay the Adjusted Base Rent
subject to a proper adjustment upon rendition of such decision. If
Tenant shall not dispute any item or items in any such statement
within sixty (60) days after such statement has been rendered,
Tenant shall be deemed to have approved such statement.
5. USE OF PREMISES: The Premises shall be occupied and used exclusively as
office space and for purposes incidental thereto, and shall not be used for any
other purpose. Tenant shall not use or occupy or permit the user or occupancy of
the Premises for any purpose which is forbidden by applicable law, which may be
dangerous to life, limb or property or which creates any public or private
nuisance, nor do or permit any other thing to be done which may disturb the
quiet enjoyment of any other tenant of the Building, nor keep any substance or
carry on or permit any operation which might emit offensive odors or conditions
into other portions of the Development, nor use any apparatus which might make
undue noise or cause vibrations, nor permit anything to be done which would
increase the property insurance rates for the Development or of the other
tenants thereof; provided, however, if there is any increase in such rates by
reason of the acts of Tenant, then Tenant shall pay such increase promptly upon
demand therefore by Landlord. Payment by Tenant of any such rate increase shall
not be a waiver of Tenant's duty to comply with the provisions of this Section
5.
6. COMMON AREAS: Tenant. and Tenant's agents, employees, licensees and invitees
shall have the right to use, in common with other tenants of the Building,
Landlord and Landlord's agents, employees, licensees and invitees, the public
sidewalks, entrances, lobbies, vestibules, stairways, corridors, passenger and
freight elevators, toilets and other public areas of the Development (the
"Common Areas"); subject, however, to such rules, regulations and security
measures as may be promulgated, from time to time, by Landlord. Tenant and
Tenant's agents, employees, licensees and invitees, however, shall not obstruct,
litter, use for storage (temporary or otherwise) or the display of merchandise
or services or for any purpose other than the intended and normal purpose, any
of the Common Areas. In no event shall floor mats or runners be placed by Tenant
in the corridor, lobby or vestibule of any Common Areas. Landlord shall have the
right, at any time and from time to time, to change the size, location,
elevation or nature of the Common Areas, or any part thereof, including, without
limitation, the right to erect buildings or other structures of any type
thereon. All Common Areas shall be subject to the exclusive control and
management of Landlord. Landlord shall have the right to close all or any
portion of the Common Areas as may be deemed necessary by Landlord's counsel to
prevent a. dedication thereof or the accrual of any rights to any person or the
public therein.
7. BUILDING SERVICES: Provided Tenant is not in default under any of the terms
of this Lease, Landlord shall furnish Tenant the following services:
(a) lighting of the Common Areas, garbage removal, snow and ice removal,
landscaping, and other routine services necessary to maintain the
Development in good condition;.
(b) cleaning, janitor and window washing services based upon a Schedule
of Service, a copy of which may be obtained from Landlord; provided,
however, such schedule shall be subject to change, at Landlord's
discretion, so long as the services provided by Landlord are
comparable to other similar developments in the general area of the
Development. Tenant shall not engage or provide cleaning, janitor,
window washing or maintenance services without Landlord's prior
written consent. If consent is given, such services shall be subject
to supervision by Landlord and at Tenant's sole responsibility and
expense;
(c) heat during Business Hours with temperatures between sixty-eight
(68) degrees and seventy-four (74) degrees Fahrenheit;
(d) cold and hot water to facilities in the Premises and the Common
Areas at Building standard temperatures for sanitary purposes only;
(e) passenger elevator service during Business Hours. Freight elevator
service shall be at times other than during Business Hours as are
deemed reasonable by Landlord. Elevator service at other times shall
be optional with Landlord, and when so provided, shall never be
deemed a continuing obligation of Landlord;
(f) electrical service for customary office purposes as long as Landlord
provides such service; provided, however, upon not less than sixty
(60) days' prior written notice to Tenant, Landlord may cease to
provide, electrical service to the Premises without liability or
responsibility to Tenant except to connect, within the period of
said notice, the electrical system of the Premises with another
source of electrical service. Thereafter, Tenant shall pay the
charges for such service directly to the utility provider supplying
the same upon xxxxxxxx therefore. Any installation by Tenant of
special equipment, including intermittent operating equipment, must
have the prior written approval of Landlord, and shall be subject to
special charges and regulations. Any new or additional electrical
facilities required to service equipment installed by Tenant and all
changes in existing electrical facilities in or serving the Premises
required by Tenant, if permitted, shall be installed, furnished or
made by Landlord, at Tenant's expense. Tenant may purchase from
Landlord all light bulbs, fluorescent tubes, ballasts or starters
used in the Premises; and
(g) air conditioning service during Business Hours with temperatures
between seventy-two (72) degrees and seventy-eight (78) degrees
Fahrenheit.
The term "Business Hours" as used in this Lease shall mean Monday to Friday,
inclusive from 8:00 A.M. to 6:00 P.M. and Saturdays from 8:00 A.M. to 1:00 P.M.,
but excluding all legal holidays. Upon not less than twenty-four (24) hours'
prior written notice, Landlord shall supply heat and air conditioning to the
Premises after Business Hours at a cost to Tenant of Twenty Five Dollars (
$25.00 ) per hour; provided, however, Landlord shall have the right to deny
Tenant's request if Tenant fails to comply with Landlord's Rules and Regulations
(hereinafter defined).
Tenant shall pay Landlord's charges for any extraordinary usage of water
and electricity (as determined by Landlord), and for after Business Hours heat
and air conditioning and other services within ten (10) days after the date of
Landlord's invoice therefore. Failure to pay either Base Rent or any other
charges hereunder when due shall entitle Landlord, in addition to any other
remedies available to Landlord, upon not less than five (5) days' written
notice, to discontinue water, electrical service or other services to Tenant,
and no such discontinuance of services shall be deemed an eviction or
disturbance of Tenant's use of the Premises, render Landlord liable to Tenant
for damages, or relieve Tenant from the performance of Tenant's obligations
hereunder.
Landlord, while not warranting that any Building service shall be free
from interruptions or suspensions caused by repairs, renewals, improvements,
alterations, strikes, lockouts, accidents, inability of Landlord to procure such
service, or to obtain fuel or supplies, or for any other cause or causes beyond
Landlord's reasonable control, nevertheless shall make commercially reasonable
efforts to repair or restore any such service so interrupted or suspended. An
interruption or suspension of, or fluctuation in, any Building service shall
never be deemed an eviction or disturbance of Tenant's use and possession of the
Premises, or any part thereof, or render Landlord liable to Tenant for damages,
or relieve Tenant from the performance of Tenant's obligations hereunder.
8. RIGHTS RESERVED BY LANDLORD: Landlord reserves the following rights:
(a) to change the name or street address of the Development and the
Building or the suite number of the Premises or the arrangement or
location of entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other parts of the Common Areas in the
Development without liability to Tenant; provided, however, sixty
(60) days' prior written notice shall be given to Tenant for any
change in the name or street address of the Development or the
Building;
(b) to designate all sources furnishing sign painting, lettering,
vending machines, towel or toilet supplies, or other similar
services required in the Premises;
(c) to enter the Premises during the last ninety (90) days of the term
of this Lease, provided Tenant shall have removed substantially all
of Tenant's property from the Premises, for the purpose of altering,
remodeling, repairing, renovating or otherwise preparing the
Premises for re-tenanting;
(d) to grant anyone the exclusive privilege of conducting any particular
business or activity in the Building;
(e) to enter the Premises at all reasonable times, upon reasonable
notice except in case of emergency when no notice shall be required,
for the making of such inspections, repairs, alterations,
improvements or additions of, or to, the Premises or the Development
as Landlord may deem necessary or desirable, to exhibit the Premises
to others during the last six (6) months of the term of this Lease
and for any purpose whatsoever related to the safety, protection,
preservation or improvement of the Premises, the Development or
Landlord's interest therein;
(f) at any time Landlord, either voluntarily or pursuant to governmental
requirements, may make repairs, alterations or improvements in or to
the Development or any part thereof and temporarily close entrances,
doors, corridors, elevators or other parts of the Common Areas;
(g) to charge Tenant any expense, including overtime or premium costs
incurred by Landlord, resulting from a request by Tenant for
repairs, alterations, decorating or other work performed in the
Premises or the Building other than during Business Hours; and
(h) Unless prohibited by applicable law, Landlord shall have the
exclusive right, at any time and from time to time during the term
of this Lease, to either contract for utility services for the
Development or any portions thereof and the tenants thereof from a
company or companies other than the company or companies currently
providing utility services to the Development and the tenants
thereof or continue to contract for utility services from the
current providers of such services. In the event of any change in a
utility provider to the Development, Tenant shall cooperate with
Landlord and any such utility provider at all times, and as
reasonably necessary, to allow Landlord and any such utility
provider reasonable access to the Premises and the various utility
lines within the Premises.
Landlord may exercise all or any of the foregoing reserved rights without being
deemed guilty of an eviction from or disturbance of Tenant's possession and use
of the Premises, without being liable in any manner to Tenant, without an
elimination or abatement of Base Rent, or other charges due hereunder and
without otherwise affecting the terms of this Lease.
9. TENANT'S ADDITIONAL COVENANTS WITH RESPECT TO OCCUPANCY:
Tenant, in addition to Tenant's other obligations hereunder, shall:
(a) occupy the Premises in a safe and careful manner and in compliance
with all applicable laws, ordinances, rules, regulations and orders
of any governmental bodies having jurisdiction over the Premises
including all federal, state and local laws, ordinances, rules and
regulations, whether present or future, relating to and/or dealing
with the protection of environmental and/or human health and safety
and/or applicable to the generation, handling, manufacture,
installation, treatment, storage, use, transportation, discharge,
disposal, presence and/or release into the air, soil, water at,
above or below ground level (whether accidental or intentional) of
Hazardous Materials (hereinafter defined) and the requirements of
all underwriters of policies of liability and property insurance at
any time in force with respect to the Premises, the Development or
any part thereof and without committing or permitting waste;
(b) permit or bring on the Premises or any other part of the Development
no Hazardous Materials; provided, however,
Tenant shall be permitted to use such Hazardous Materials as are
incidental to normal office operations so long as such materials are
properly used, containerized and stored in accordance with
applicable law. For purposes of this Lease, the term "Hazardous
Materials" shall mean asbestos, polychlorinated biphenyls, petroleum
or by-products thereof, radioactive materials, or any chemical,
material or substance included in the definitions of "hazardous
substances", "hazardous materials", "hazardous waste", "toxic
substances" and/or words of similar import under any federal, state
and local laws, ordinances, rules and regulations whether present or
future, relating to and/or dealing with the protection of
environmental and/or human health and safety and/or applicable to
the generation, handling, manufacture, installation, treatment,
storage, use, transportation, discharge, disposal, presence and/or
release into the air, soil, water at, above or below ground level
(whether accidental or intentional) of such substances or materials.
If Tenant's use of the Premises is for a medical office or a similar
or related use, (i) Tenant, at Tenant's sole cost and expense, shall
be responsible solely for the disposal and removal of all needles,
syringes and other "sharps" and infectious waste and materials from
the Premises and the Building in accordance with all applicable laws
and (ii) Tenant shall submit to Landlord on or before the
Commencement Date and on an annual basis thereafter copies of
Tenant's approved plan, if any, for the disposal of medical wastes
and other Hazardous Materials if Tenant is required by applicable
laws to prepare, apply, file or obtain any such plan. In no event
shall any such tenant dispose of or place such tenant's medical or
infectious waste in the trash or rubbish receptacles for the
Building;
(c) place no signs on the exterior of the Premises or on the interior
surface of any exterior windows of the Premises or facing the Common
Areas without Landlord's prior written consent. Tenant shall
maintain any permitted sign in good repair and promptly remove and
repair any damage caused by any such permitted or non-permitted
signs at the direction of Landlord, as the case may be; Tenant shall
be permitted to place a sign similar to that of the previous Tenant
on the wall adjacent to the Premises's entrance door. Said sign
shall be approved as to size, design and location by Landlord.
(d) permit no lien, notice of intention to file lien or other charge
(whether arising out of work of any contractor, mechanic, laborer,
or material-man or any mortgage, conditional sale, security
agreement or chattel mortgage or otherwise) which might be or become
a lien or encumbrance or charge upon the Development or. any part
thereof or the income therefrom, or other matter or thing whereby
the estate, right and interest of Landlord in the Development or any
part thereof might be impaired. Upon notice from Landlord, Tenant
shall cause any lien or other charge to be cancelled and discharged
of record within twenty (20) days of such notice;
(e) solicit no business in the Development, nor distribute handbills or
other advertising matter to others, or place the same in or on
automobiles in the Common Areas;
(f) comply with all reasonable rules and regulations which Landlord, in
its sole discretion, may from time to time establish or change for
the use and care of the Development or any part thereof ("Rules and
Regulations"); and
(g) install, or arrange to have installed, no air. conditioning or
heating equipment or device without Landlord's. prior written
approval, which.approval may be withheld for any reason.
10: ALTERATIONS -IMPROVEMENTS - PERSONAL PROPERTY: Tenant shall perform any and.
all alterations, improvements, remodeling, 'renovations and construction work,
other than the work set forth in the Work Letter, at Tenant's cost and expense,
in accordance with plans and specifications prepared at Tenant's cost and
expense, and in conformity with all applicable laws, ordinances, rules and
regulations. Tenant shall not make any alterations, additions, improvements, or
other changes in or to the interior or exterior of the Premises or attach, affix
or build therein or thereon any improvement or installation without Landlord's
prior written consent. Before any such work is performed or any materials
therefore are delivered to the Premises, Landlord shall have approved Tenant's
plans and specifications, Tenant's contractors and any necessary permits. Tenant
shall submit to Landlord's reasonable supervision of such work. All additions,
installations, alterations, fixtures and improvements (temporary or permanent)
in and upon the Premises, whether installed by Tenant or Landlord, shall become
Landlord's property, and shall remain upon, and be surrendered with, the
Premises without disturbance or injury upon the expiration or earlier
termination of this Lease, all without payment or credit to Tenant.
Notwithstanding the foregoing, Tenant shall have the right to place in the
Premises, at such locations therein as Tenant may from time to time determine,
Tenant's furniture, trade fixtures and standard business office machines and
equipment. The location and quantity of any file cabinets, safes or other
extraordinarily heavy equipment or furniture, however, must be approved by
Landlord or Landlord's structural engineer. Tenant's personal property shall be
and remain the property of Tenant, and may be removed by Tenant at any time
during the term of this Lease, or upon the expiration or earlier termination of
this Lease. Tenant, however, shall repair, at Tenant's expense, any damage to
the Premises or the Development caused by such removal. Tenant's personal
property and trade fixtures shall be separately entered for assessment purposes
or for taxation purposes of any kind. Tenant shall promptly pay all taxes levied
thereon.
11. MAINTENANCE AND REPAIR OF THE PREMISES: Except as provided in this Lease to
the contrary, Landlord, at Tenant's expense, shall keep and maintain in good
order, condition and repair the Premises and the fixtures and other improvements
therein, including, but not limited to, any tenant finish, the interior and
exterior of all doors, locks, frames and checks; all interior windows, including
interior windows which share a demising wall with the Common Areas, hallways,
all plumbing within the Premises and all electrical systems, including the
fluorescent lighting equipment and any fire systems. Tenant shall notify
Landlord of the need for any such repairs and Landlord shall cause the same to
be made within a reasonable time thereafter. Landlord, upon any inspection of
the Premises, may also determine the need for repairs and cause such repairs to
be made. Landlord shall also repair damage caused by the acts of Tenant,
Tenant's employees, agents, invitees, licensees, or contractors to the Premises
or to the Development. Subject to Section 15 hereof, Tenant shall be billed
separately for the cost of all maintenance and repairs performed by Landlord and
shall reimburse Landlord for such cost within ten (10) days of Tenant's receipt
of Landlord's invoice for same.
12. MAINTENANCE, REPAIR AND ALTERATION BY LANDLORD: Landlord, subject to receipt
of Tenant's payment of sums due under Section 4 hereof, shall maintain in good
order and repair the Development, including the foundation, roof, exterior walls
and windows, the structural portions of the Building and other buildings and
improvements in the Development, the Common Areas, including the redecoration of
interior Common Areas and the electrical systems, elevators, plumbing, heating,
ventilation and air conditioning systems serving the Building. The cost of such
maintenance, repair and replacements, when necessary, shall be included as part
of Operating Expenses, unless otherwise set forth in this Lease to the contrary.
Tenant shall give Landlord written notice of the necessity for repairs coming to
the attention of Tenant following receipt of which Landlord shall have a
reasonable time, as determined necessary by Landlord, to undertake and complete
such repairs. The provisions of this Section 12 shall not apply in the case of
damage or destruction by fire or. other casualty or by eminent domain, in which
events the obligations of Landlord shall be controlled by other Sections -of
this Lease. Notwithstanding the foregoing, Tenant shall be responsible for and
shall reimburse Landlord, on demand, for the cost of all repairs and
replacements to the Development which are required as the result of alterations,
other improvements or installations made by or specifically for Tenant.
13. TENANT'S INSURANCE AND INDEMNITY. Tenant shall at all times during the term
of this Lease maintain, at its own expense, one or more policies of liability
and property damage insurance, issued by one or more insurance companies
reasonably acceptable to Landlord, with the following minimum coverages: (i)
Workers' Compensation; (ii) Commercial General Liability Insurance, including
blanket contractual liability coverage in a minimum single limit amount of not
less than One Million Dollars ($1,000,000); and (iii) special form or "all risk"
property insurance for the full replacement cost of Tenant's trade fixtures,
improvements other than the work to be performed by Landlord as set forth in the
Work Letter and personal property. All such insurance shall name Landlord as an
additional insured as its interest may appear and shall provide that no policy
may be canceled on less than thirty (30) days' prior written notice to Landlord.
Tenant shall furnish Landlord, annually, with certificates evidencing such
insurance. Should Tenant fail to maintain such insurance and/ or furnish
Landlord with such certificates after Landlord's request for Tenant to do so,
Landlord shall have the right to obtain such insurance for Tenant. In such
event, Tenant shall reimburse Landlord for the cost of such insurance on demand.
Tenant shall indemnify and save harmless Landlord against and from all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable attorneys' fees which may be imposed upon or
incurred by or asserted against Landlord by reason of any of the following: (i)
any penalty or damage or charges imposed for any violation of any law or
ordinance attributable to the failure of Tenant to perform or comply with. any
provision of this Lease; (ii) any accident or other occurrence on or about the
Premises causing injury to any person or property whomsoever or whatsoever;
(iii) any failure of Tenant in any respect to comply with the terms of this
Lease to be performed by Tenant; and (iv) the use and occupancy of the Premises.
Tenant's obligations under the foregoing indemnification shall survive the
expiration or earlier termination of this Lease.
14. LANDLORD'S INSURANCE: Landlord, subject to receipt of Tenant's payment of
sums due under Section 4 hereof, shall be responsible for insuring and shall at
all times during the term of this Lease maintain a policy of property insurance
in an amount not less than the full replacement cost thereof on all improvements
within the Development, including the Premises and the work to be performed by
Landlord set forth in the Work Letter; provided, however, Landlord shall not be
responsible for and shall not be obligated to insure against any loss or damage
to any trade fixtures or improvements made by Tenant. to the Premises or to
Tenant's personal property. The foregoing is not intended to preclude Landlord
from maintaining such other insurance as Landlord or any mortgagee of Landlord
deems appropriate.
15. WAIVER OF SUBROGATION: Landlord and Tenant, for themselves and their
respective insurers, hereby waive all rights of recovery and causes of action
which either has or may have, or which may arise hereafter, by subrogation or
otherwise, against the other for damage to the Premises or the Development,
property of the other or the business of the other, caused by anyy of the perils
covered or coverable by special form or "all risk" property insurance, business
interruption insurance, contents, insurance, a sprinkler leakage policy in Ohio,
or for which either Landlord or Tenant may be reimbursed as.a result of any
other insurance coverage provided that the foregoing waivers do not invalidate
any policy of insurance now or hereafter maintained by Landlord or Tenant and
that any additional premium caused by the aforesaid waiver shall be paid by 'the
party benefitted thereby upon notice to such party. Notwithstanding the
foregoing, Tenant shall remain liable to Landlord for damage to any property of
Landlord to the extent of any deductible on Landlord's property insurance
policy.
16. LOSS OR DAMAGE TO TENANT'S -PROPERTY: All personal property belonging to
Tenant or to any other person located in or about the Premises or the
Development shall be so located at the sole risk of Tenant or such other person,
and neither Landlord nor Landlord's agents or employees shall be liable for the
theft or misappropriation thereof, or for. any damage or injury thereto, however
caused, including without limitation, loss or damage caused by winter, snow,
frost, steam, heat, cold, dampness, falling plaster, explosion, sewers or.
sewage, .gas, odors, noise, the bursting or leaking of pipes, plumbing,
electrical ;wiring, equipment and fixtures of all kinds,' or by any act or
neglect of other tenants or occupants of the Building, or of any other person.
17. UNTENANTABILITY: If the Premises or the Building shall be partially damaged
by fire or other casualty, this Lease shall remain in full force and effect and
the damage to the Premises or the Building shall be repaired by Landlord as soon
as practicable under the circumstances. Until such repairs shall be made, Base
Rent and other charges shall be abated on a per diem basis proportionate to the
extent and for the period that the Premises are unfit for occupancy or cannot be
used, as the case may be. If all or substantially all of the Premises or the
Building are damaged or made unfit for occupancy by fire or other casualty,
Landlord may elect: (i) to terminate this Lease as of the date when the Premises
or the Building are so made unfit for occupancy, by written notice to Tenant
within ninety (90) days after such date, or; (ii) to repair, restore or
rehabilitate the Premises or the Building, at Landlord's expense, within one
hundred eighty (180) days after Landlord is in possession of all insurance
proceeds and necessary permits for reconstruction or repair. If Landlord elects
so to repair, restore or rehabilitate the Premises or the Building, this Lease
shall not terminate, but until such repairs shall be made, Base Rent and other
charges shall be abated on a per diem basis proportionate to the extent and for
the period that the Premises or the Building are unfit for occupancy or cannot
be used, as the case may be. If Landlord shall proceed under clause (ii) above
and shall not substantially complete the work within said one hundred eighty
(180) day period (excluding from said period loss of time resulting from delays
beyond the reasonable control of Landlord) either Landlord or Tenant may then
terminate this Lease, as of the date when the Premises or the Building were so
made unfit for occupancy, by written notice to the other not later than ten (10)
days after the expiration of said one hundred eighty (180) day period. In the
event of a termination of this Lease pursuant to this Section 17, Base Rent
shall be apportioned on a per diem basis to and including the effective date of
such termination. Landlord shall incur no liability on account of any delay in
the completion of any repairs to be made by Landlord which may arise by reason
of adjustment of insurance, labor difficulties, or any other cause beyond
Landlord's control.
18. EMINENT DOMAIN: If the whole or any part of the Premises shall be
appropriated, condemned, taken xxx otherwise acquired by any public or
quasi-public authority under the power of eminent domain, condemnation or other
proceedings or if a material part of the Building shall be so taken or acquired
and the remaining part shall not be adequate for the continued operation of the
Development, as determined by Landlord in Landlord's reasonable discretion, this
Lease and the estate hereby created shall terminate and wholly expire on the.
date title shall vest in the acquiring authority, and all Base Rent and other
charges shall be prorated and adjusted as of said date. In no event shall Tenant
have any claim against Landlord by reason of any appropriation, condemnation or
taking of the whole or any part of the Premises or the Development; nor shall
Tenant have any claim to the amount, or any portion thereof, that may be awarded
as damages or paid as a result of such appropriation and/or taking. Tenant
hereby assigns to Landlord All of Tenant's right, title and interest in and to
any and all amounts awarded or paid by reason of such appropriation,
condemnation and/or taking; provided however, the foregoing is not intended to
deprive Tenant from claiming moving expenses, displacement expenses or the like
directly from the acquiring authority.
19. ASSIGNMENT AND SUBLETTING: Tenant shall not sublet the Premises or any part
thereof, nor assign this Lease, or permit any business to be operated in or from
the Premises by any person, firm or corporation other than Tenant, without in
each case first obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Any attempt to so sublet all or any portion
of the Premises or to assign this Lease without Landlord's prior written consent
shall be void and, at Landlord's option, shall constitute a default under this
Lease. Notwithstanding the foregoing, Tenant shall have the right, without.
Landlord's prior written consent, to assign this Lease or to sublet all or any
portion of the Premises (i) to a parent, subsidiary or affiliated corporation or
other entity in which Tenant or its parent owns or controls a . majority of such
corporation's voting stock or such other entity's membership or other interests
or (ii) to any corporation or other entity into which Tenant may merge or
consolidate or a surviving corporation or other entity after merger or
consolidation of Tenant
with another corporation or other entity or (iii) upon the sale of all or,
substantially all of the assets of Tenant, to an entity having a net worth equal
to or greater than Tenant as of the date of this Lease or at the time of such
assignment or subletting, whichever is greater. Any other assignment, transfer,
mortgage, pledge or encumbrance of this Lease or an interest therein, whether
voluntary, involuntary, by operation of law or otherwise, shall constitute an
assignment of this Lease and shall require the prior written consent of
Landlord. Upon a subletting of the Premises or any portion thereof or any
assignment of this Lease, neither Tenant nor its guarantor, if any, shall be
released or discharged from any liability whatsoever under this Lease and shall
continue to be liable hereunder with the same force and effect as though no
sublease or assignment had been made. Landlord's consent to any sublease or
assignment shall not be deemed a consent to any further subletting or
assignment. If Tenant requests Landlord to consent to any sublease or
assignment, Tenant shall provide Landlord with the name, address, and a
description of the business of the proposed assignee or subtenant, its most
recent financial statement and such other evidence of financial responsibility
as Landlord may request. It shall be a condition: to Landlord's consent to any
subletting or assignment that: (i) at the time of any proposed subletting or
assignment, Tenant shall not be in default under the terms of this Lease; (ii)
the proposed subtenant or assignee is not, and has not been within the six (6)
months immediately preceding Tenant's request for Landlord's consent, an
occupant, or related to an occupant of the Building and intends only to occupy
the Premises in accordance with the terms of this Lease; (iii) the rent payable
by the proposed subtenant or assignee shall not be less than the greater of the
prevailing market rent for the Building or buildings of similar character in the
general location of the Building and the rent payable hereunder; (iv) the
credit, financial responsibility, character, and business or professional
standing of the proposed subtenant or assignee are satisfactory to Landlord, in
Landlord's sole discretion; (v) the nature of the proposed occupancy is not
inconsistent with Landlord's commitments to other tenants in the Building; (vi)
Tenant and its subtenant or assignee shall execute, acknowledge and deliver to
Landlord a fully executed counterpart of a written assignment of lease or
sublease, as the case may be, in form and substance satisfactory to Landlord,
and duly consented to by Tenant's guarantor, if any. In the case of an
assignment, Tenant shall assign to such assignee, Tenant's entire.interest in
this Lease, together with all prepaid Base Rent and other charges and any
security deposit, and the assignee shall accept said assignment and assume and
agree to observe and perform, directly for the benefit of Landlord, all of terms
of this Lease to be observed and performed by Tenant. In the case of a
subletting, the sublease shall in all respects be subject and subordinate to all
of the terms of this Lease to be observed and performed by Tenant, except for
the payment of Base Rent and other charges, which Tenant shall continue to pay
to Landlord; and (vii) Tenant shall pay to Landlord the sum of Five Hundred
Dollars ($500.00) to cover Landlord's administrative costs and overhead in
connection with considering any proposed assignment or subletting. Upon any
permitted assignment of this Lease or subletting of the Premises without
Landlord's prior written consent as above provided. Tenant shall provide
documents evidencing any such assignment or subletting as Landlord may
reasonably require.
Within thirty (30) days after receiving Tenant's request for Landlord's
consent to any sublease or assignment and the requisite accompanying
information, Landlord, by written notice to Tenant, shall (x) grant its consent,
or (y) withhold its consent, or (z) terminate this Lease within said thirty (30)
day period or' on such later date as Tenant proposed to sublet all or any
portion of the Premises or assign this Lease, and release Tenant from its
remaining obligations hereunder. Notwithstanding the foregoing, if Landlord
elects to terminate this Lease pursuant to clause (z) above, Tenant shall have
the right to negate such termination by written notice to Landlord within five
(5) days after receipt of Landlord's notice withdrawing Tenant's request for
Landlord to consent to Tenant's proposed assignment or subletting. If any
proposed sublease or assignment provides for, or Tenant otherwise receives,
rent, additional rent, or other consideration in excess of the Base Rent and
other charges payable by Tenant hereunder, Tenant shall pay Landlord the amount
of such excess as it is received by, or becomes due to Tenant.
20. REMEDIES OF LANDLORD: In addition to any and all rights and remedies allowed
by law or in equity, Landlord shall have the following rights and remedies:
(a) if any voluntary or involuntary petition or similar pleading under
any Act of Congress relating to bankruptcy shall be filed by or
against Tenant, or if any voluntary or involuntary proceeding in any
court or tribunal shall be instituted by or against Tenant to
declare Tenant insolvent or unable to pay Tenant's debts, then and
in any such event Landlord may, if Landlord so elects, with or
without notice of such election and with or without entry or other
action by Landlord, forthwith terminate this Lease and Tenant's
right to possession of the Premises. Upon any such termination,
Landlord shall be entitled to recover damages in an amount equal to
the then present value (computed at a discount rate of eight percent
(8%)) of the Base Rent and other charges for the remainder of the
term of this Lease, less the then present value (computed at a rate
of eight percent (8%) of the fair rental value of the Premises for
the remainder of the term of this Lease;
(b) if Tenant shall fail to pay Base Rent when due, or fails to pay
other charges within five (5) days after receipt of Landlord's
invoice for same, or defaults in the prompt and full performance of
any of Tenant's other obligations hereunder, and such non-monetary
default is not corrected within five (5) days after written notice
from Landlord or such longer period as Tenant may reasonably.
require provided Tenant commences to cure such non-monetary default
within said five (5) day period and diligently proceeds therewith,
or if the leasehold interest of Tenant is levied upon under
execution or is attached, or if Tenant makes an assignment for the
benefit of creditors or if a receiver is appointed for any property
of Tenant or if Tenant abandons the Premises, then and in any such
event Landlord may terminate this Lease and Tenant's right of
possession of the Premises, or, without terminating this Lease,
terminate Tenant's right of possession of the Premises;
(c) upon the termination of this Lease, or upon the termination of
Tenant's right of possession of the Premises without terminating
this Lease, Tenant shall surrender possession and vacate the
Premises immediately, and Landlord may enter into and repossess the
Premises with or without process of law and remove all persons and
property therefrom in the, same manner and with the same right as if
this Lease had not been made. For the purpose of any such entry and
repossession, Tenant waives any and all notices except as may be
required by law;
(d) if Landlord elects to terminate Tenant's right to possession only,
without terminating this Lease as above provided, Landlord may
remove from the Premises, at Tenant's cost, any and all property
found therein and such repossession shall not release Tenant from
Tenant's obligation to pay Base Rent and other charges. After any
such repossession by Landlord without terminating this Lease,
Landlord shall make reasonable efforts to re-let the Premises, or
any part thereof, as agent of Tenant, to any person, firm, or
corporation and for such time and upon such terms as Landlord, in
Landlord's sole discretion, may determine. Landlord's re-letting
efforts shall be deemed reasonable and sufficient if Landlord lists
the Premises for lease with a broker. Landlord may make repairs,
alterations and additions in and to the Premises and redecorate the
same to the extent xxxxxx.xx Landlord necessary or desirable to
facilitate leasing of the Premises, and Tenant shall, upon demand,
pay the cost thereof together with Landlord's other expenses of
re-letting, including any broker's commissions. If the rents
collected by Landlord upon any such re-letting are not sufficient to
pay the full monthly amount of the Base Rent and other charges.due
under this Lease together with the costs of any repairs,
alterations, additions, redecorating and expenses paid by Landlord
to effect such re-letting, Tenant shall pay to Landlord the amount
of each monthly deficiency upon demand;
(e) any and all property which may be removed from the, Premises by
Landlord may be handled, removed, stored or otherwise disposed of by
Landlord at the risk and expense of Tenant, and Landlord shall not
be responsible for the preservation or safekeeping thereof. Tenant
shall pay to
Landlord, upon demand, any and all expenses incurred in such removal
and all storage charges for said property so long as the same shall
be in Landlord's possession or under Landlord's control. If any
property shall remain in the Premises or in the possession of
Landlord and shall not be removed by Tenant within a period of ten
(10) days from and after the time when the Premises are either
abandoned by Tenant or repossessed by Landlord, said property shall
conclusively be deemed to have been forever abandoned by Tenant;
(f) if Tenant shall default in performing any term of this Lease on the
part of Tenant to be performed, which default may be cured by the
expenditure of money, Landlord, at Landlord's option, may, but shall
not be obligated, on behalf of Tenant, to expend such sums ass may
be necessary to perform and fulfill such term. Any and all sums so
expended by Landlord, with interest at the rate provided in Section
3 hereof from the date of such expenditure, shall be and be deemed
to be Additional Rent and shall be repaid by Tenant to Landlord upon
demand. No such payment or expenditure by Landlord shall be deemed a
waiver of Tenant's default or affect any other remedy of Landlord by
reason of such default;
(g) if suit is brought for recovery of possession of the Premises, the
recovery of Base Rent or other charges due under this Lease, or
because of default in Tenant's performance of any other term of this
Lease to be performed by Tenant, Tenant shall pay to Landlord all
expense incurred in the prosecution of such suit, including
reasonable attorneys' fees; and
(h) if Landlord finds it necessary to employ the services of an attorney
or any other professional in order to recover possession of the
Premises, recover unpaid rent or other amounts due under the terms
of this Lease, or enforce any other term of this Lease without the
need to bring a lawsuit, Tenant shall pay to Landlord all expenses
incurred by Landlord, including reasonable attorneys' fees.
21. HOLDING OVER: If Tenant or any party claiming under Tenant remains in
possession of the Premises after the expiration or earlier termination of this
Lease without the consent of Landlord, then such tenancy shall be deemed to be a
tenancy at will, but otherwise subject to all of the terms of this Lease, at a
monthly Base Rent equal to one hundred fifty percent (150%) of the last monthly
installment Base Rent payable by Tenant hereunder.
22. TAKING AND SURRENDER OF POSSESSION: Taking of possession of the Premises by
Tenant shall be conclusive evidence that the Premises were in good order and in
satisfactory condition when Tenant so took possession except for latent defects
brought to Landlord's attention in writing within ten (10) days of the
Commencement Date. No representation respecting the condition of the Premises or
the Development has been made by Landlord to Tenant unless set forth herein or
in the Work Letter, and no promise of Landlord to prepare, alter or improve the
Premises shall be binding upon Landlord unless set forth herein or in the Work
Letter. This Lease does not grant any rights to light or air over property
except over public ways kept open by public authority, and Landlord shall not be
liable to Tenant for any expense, injury, death, loss or damage resulting from
the use of any public way or from any building, land or public or private way
adjacent to the Development. At the expiration or earlier termination of this
Lease, Tenant shall quit and surrender the Premises broom clean together with
all installations, improvements and alterations (including partitions) which may
have been installed by Landlord or Tenant. The Premises shall be in as good
condition and repair as when possession was delivered to Tenant, or as the
Premises may be placed by Tenant on or about the Commencement Date if Landlord
delivers the Premises to Tenant in an "as is" condition, reasonable use and wear
and loss or damage by fire, the elements or other casualty not resulting from
the willful acts of Tenant, Tenant's agents, employees or invitees excepted. If
Tenant fails to so surrender the Premises, Landlord may restore the Premises to
the required condition and Tenant shall pay the cost thereof to Landlord within
ten (10) days following receipt of Landlord's invoice for same. Tenant may
remove carpeting laid by Tenant, provided Tenant also removes all nails, tacks,
paper, glue, bases, and other vestiges of the carpeting and restores the floor
surface to the condition existing before such carpeting was laid. If Tenant
fails to remove Tenant's carpeting, trade fixtures, personal property, and/or
equipment which it has a right to remove from the Premises prior to the
expiration or earlier termination of this Lease, Tenant shall be conclusively
presumed to have abandoned the same, and ownership thereof shall forthwith vest
in Landlord without payment or credit to Tenant. In the alternative, Landlord,
at Tenant's expense, may remove and dispose of any such items without liability
to Tenant and without any obligation to keep or preserve such items. Any and all
removal and disposal costs shall be paid to Landlord within ten (10) days after
receipt by Tenant of Landlord's invoice for same. Tenant agrees to remove
telephone system and all other electronic systems such as security systems,
computer wiring and the like prior to vacating the premises. Failure to do so
will be Landlord's authorization to engage a contractor to do so on behalf of
Tenant, and Tenant will pay the cost thereof immediately upon receipt of the
invoice.
23. ACCESS TO BUILDING: Tenant, Tenant's agents, employees, licenses, and
invitees, desiring to enter or leave the Building at times other than during
Business Hours, shall use such entrances or exits as may be designated by
Landlord, and shall comply with security regulations established, from time to
time, by Landlord with respect to identification, registration, method of
signaling admission, etc., so as to establish the right of such persons to enter
or to leave the Building. The provisions of this Section 23 shall not require
Landlord to keep the Building open other than during Business Hours; provided,
however, upon Landlord's prior written consent, Tenant may have twenty-four (24)
hour per day, three hundred sixty-five (365) day per year access to the Building
and the Premises.
24. SUBORDINATION OF LEASE/ESTOPPEL: This Lease is and shall be subject and
subordinate to the lien of any mortgage, deed of trust and ground lease which
may now or hereafter affect the Development or any part thereof and to all
renewals, extensions or replacements thereof. Such priority shall be established
automatically and no separate instrument shall be required to effectuate such
subordination. Tenant, however, upon request by Landlord, shall execute any and
all instruments deemed by Landlord necessary or advisable to subordinate this
Lease and all rights given Tenant hereunder to any such mortgage, deed of trust
or ground lease. Upon a sale, transfer, or assignment of Landlord's interest in
the Development or any part thereof, including the Premises or an assignment of
the rents derived therefrom or if any proceedings are brought for foreclosure or
to exercise any power of sale under any mortgage or in the event of a
cancellation or termination of any ground or underlying lease covering the
Development or any part thereof, Tenant shall attorn to and recognize such
transferee, purchaser, ground or underlying landlord or mortgagee as Landlord
under this Lease. In addition, Tenant shall execute and deliver at any time, and
from time to time, upon the request by Landlord or of any such holder, any
instrument which, in the sole judgment of Landlord, may be necessary or
appropriate to evidence such attornment. Tenant also shall execute, acknowledge
and deliver. to Landlord, promptly upon request, a certificate certifying: (i)
that this Lease is unmodified and in full force and effect or, if there have
been modifications, that this Lease is in full force and effect, as modified,
and stating the modifications; (ii) the dates, if any, to which Base Rent and
other charges have been paid; (iii) to such other matters as may be requested by
Landlord; and (iv) that such certificate may be relied upon by any prospective
purchaser or mortgagee of the Development or any part thereof. If Tenant does
not, within ten (10) days after request by Landlord, execute any instrument
required by this Section 24, Tenant hereby appoints Landlord as Tenant's
attorney-in-fact, such appointment being coupled with an interest, to execute
any such instrument for and on behalf of Tenant.
25. SECURITY DEPOSIT: Tenant shall deposit with Landlord the sum of $9032.67,
which sum shall be held by Landlord as a security deposit throughout the term of
this Lease. If Tenant performs and observes all of the terms of this Lease to be
performed and observed by Tenant, Landlord shall return the security deposit, or
balance thereof then held by Landlord if Landlord has applied any of such
deposit as permitted under this
Lease, without interest, to Tenant within thirty (30) days after the date. on
which this Lease expires or terminates or after Tenant surrenders possession of
the Premises, whichever is later. If Tenant defaults in the payment of Base Rent
or other charges or in the performance or observance of any of the other terms
of this Lease, then Landlord may, at its option and without notice, apply all or
any part of the security deposit in payment of such Base Rent -or other charges
or to cure any other default. If Landlord does so, upon request of Landlord,
Tenant shall deposit with Landlord the amount so applied so that Landlord shall
have on hand at all times throughout the term of this Lease the full amount of
the security deposit. Landlord shall not be required to hold the security
deposit as a separate account, but may commingle such security deposit with
Landlord's other funds. In the event of a sale or ground lease of the
Development, Landlord shall have the right to transfer the security deposit to
its purchaser or tenant and Landlord shall thereupon be released by Tenant from
all responsibility for the return of such deposit. Tenant shall look solely to
such purchaser or tenant for the return of such deposit. In the event of an
assignment of this Lease by Landlord, the security deposit shall be deemed to be
held by the assignee and Landlord shall have no further responsibility for the
return of such deposit.
26. NOTICES: In every instance where it shall be necessary or desirable for
Landlord or Tenant to serve any notice or demand upon the other, such notice or
demand shall be deemed sufficiently given or made if in writing and sent to
Landlord at 0000 Xxxxxxx Xxxx Xxxxx 000 Xxxxxxxx, Xxxx 00000 or sent to Tenant
at the Premises by one (1) of the following methods: (i) by personal delivery
along with a signed receipt of delivery; (ii) by certified, United States mail,
postage prepaid, which shall be deemed accepted three (3) days following deposit
in the United States mail; (iii) by major overnight courier service such as UPS,
Airborne Express, etc., which shall be deemed accepted the next business day
after being picked up from Landlord's or Tenant's offices or being delivered to
such service, as the case may be; or (iv) by fax or other electronic
transmission which shall be deemed accepted if evidenced by a confirmation
ticket; provided a "hard copy" of such fax or other electronic transmission is
sent by major overnight carrier for next day delivery. Failure to accept
delivery of any such notice shall not void the validity or affect thereof.
Wherever in. this Lease, in connection with the breach or performance of any of
the terms of this Lease to be performed by Tenant, no period of time or notice
is required, no notice shall be required as a prerequisite to the exercise of
any right or remedy by Landlord.
27. RULES AND REGULATIONS: Tenant and Tenant's agents, employees and invitees
shall faithfully observe and strictly comply with the Rules and Regulations
attached hereto as Exhibit C and made a part hereof by reference, and with such
further reasonable rules and regulations as Landlord may, after notice to
Tenant, from time to time adopt. Nothing in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and Regulations
against any other tenant of the Building, and Landlord shall not be liable to
Tenant for violation of any such Rules or Regulations by any other tenant of the
Building or the agents, employees, licensees or invitees of such other tenant. .
28. EXCULPATION: Notwithstanding anything to the contrary contained in this
Lease, there shall be absolutely no personal liability of whatsoever nature
imposed upon Landlord, its successors or assigns, any member/manager of
Landlord, any partner of Landlord, whether general or limited, or their
respective heirs, personal representatives, successors or assigns, or any
mortgagee-in-possession with respect to any of the terms of this Lease. If
Landlord shall commit a default or breach of any of the terms hereof and Tenant
shall obtain a judgment against Landlord for such default or breach, Tenant's
sole and exclusive remedy for the enforcement and collection of such judgment
shall be the institution of foreclosure or other appropriate execution
proceedings solely against Landlord's interest in the Development and regardless
of whether or not such proceedings shall result in a complete satisfaction of
Tenant's judgment, in no event (whether by proceedings at law, in equity,
administrative proceedings or otherwise) shall any deficiency or other personal
judgment be rendered or enforced against. Landlord, its successors and assigns,
any member/manager of Landlord, any partner of Landlord, whether general or
limited, or their respective heirs, personal representatives, successors or
assigns, or any mortgagee-in possession.
29. WAIVER OF TRIAL BY JURY: Landlord and Tenant, hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of them against the
other on any matter whatsoever arising out of or in any way connected with this
Lease.
30. BROKER: Tenant represents and warrants to Landlord that no broker negotiated
or was instrumental in negotiating or consummating this Lease except CB Xxxxxxx
Xxxxx who shall be paid by Landlord. Tenant shall indemnify and hold Landlord
harmless from any claim of any other broker.
31. OFFER BY BROKER: If this Lease is offered to Tenant by a broker for
Landlord, such offer shall be deemed to be made solely in the capacity of a
broker and shall be subject to Landlord's acceptance of all of the terms set
forth in this Lease and such offer shall not bind Landlord until such time as
Landlord has executed this Lease and delivered an executed counterpart hereof to
Tenant.
32. SECTION HEADINGS: The section headings appearing in this Lease are inserted
only as a matter of convenience and for reference purposes, and in no way
define, affect, limit or describe the scope or intent of this Lease or any
Section hereof.
33. ENTIRE AGREEMENT; BINDING NATURE: This Lease and the Exhibits attached
hereto contain the entire agreement between Landlord and Tenant with respect to
the Premises and shall not be modified in any manner except in writing executed
by both Landlord and Tenant or their respective successors-in-interest. If more
than one person or entity or a combination thereof comprise "Tenant", their
liability hereunder shall be joint and several. The terms of this Lease shall be
binding upon and inure to the benefit of Landlord and Tenant and their
respective heirs, legal representatives, successors and assigns.
34. NO WAIVER:
(a) No receipt of money by Landlord from Tenant with . knowledge of the
breach of any term of this Lease, after the termination hereof,
after the service of any notice, after the commencement of any suit
or after final judgment for possession of the Premises shall be
deemed a waiver of such breach, or shall reinstate, continue or
extend the term of this Lease or affect any such notice, demand or
suit.
(b) No delay on the part of Landlord in exercising any right, power or
privilege hereunder shall operate . as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
(c) No act done or statement made by Landlord or Landlord's agents or
employees shall constitute a cancellation, termination or
modification of this Lease, a waiver of any term hereof or relieve
Tenant from Tenant's obligation to pay Base Rent or other charges
unless confirmed in, or evidenced by, a writing, signed by landlord.
35. RECORDING: This Lease shall not be recorded, but on request of either party,
Landlord and Tenant shall execute a memorandum of lease, which memorandum of
lease may then be recorded in the office of the Cuyahoga County Recorder at the
expense of the party desiring to do so.
36. RELOCATION: Landlord shall have the right to relocate the Premises to
another part of the Building or to Metro II Office Building located at 000 Xxxxx
Xxxx Xxxxx, Xxxxxxxx, Xxxx 00000 upon the following conditions:
(a) the relocated premises shall be substantially the same in size,
dimensions, configuration and decor as the Premises before such
relocation, or shall be placed in such condition by Landlord at it
sole cost and expense;
(b) Landlord shall give Tenant not. less than sixty (60) days' written
notice of Landlord's intention to so relocate Tenant;
(c) the location of the personal property of Tenant in and upon the
Premises shall be effected by Landlord at the time of such
relocation at its sole cost and expense and during hours
other than Business Hours to the extent reasonably possible;
provided, however, if such relocation cannot be accomplished during
hours other than Business Hours, Base Rent otherwise payable by
Tenant to the extent allocable to that portion of the Premises which
cannot be occupied and used by Tenant during Business Hours shall be
abated;
(d) Landlord shall reimburse Tenant for the reasonable out-ofpocket
costs incurred by Tenant in changing Tenant's address on stationery,
business cards, directories, advertising, and other such similar
items; and Landlord shall pay for the cost of Tenant's voice and
data wiring in the relocated premises.
(e) Landlord shall not have the right to relocate Tenant pursuant to
this Section 36 more than one (1) time during the initial term of
this Lease and more than one (1) time during any renewal or
extension thereof. Upon the occurrence of any relocation pursuant to
this Section 36, Landlord and Tenant shall immediately execute an
amendment to this Lease reflecting the relocation of the Premises,
and, at the request of either party, an amendment to the memorandum
of lease, if any, which amendment may thereafter be recorded.
37. QUIET ENJOYMENT: If Tenant shall pay the Base Rent and other charges payable
by Tenant under this Lease and faithfully keep, perform and observe all of the
terms of this Lease to be kept, performed and observed by Tenant, Tenant shall
at all times during the term of this Lease have the peaceable and quiet
enjoyment of the Premises without hindrance from Landlord or any person lawfully
claiming under Landlord; subject, however, to the terms of this Lease and any
instrument to which this Lease is subordinate.
38. OPTION TO RENEW :Tenant is granted One (1) one year Option To Renew. No
later than six months (6) prior to the expiration of the current Lease term,
Tenant shall notify Landlord in writing that Tenant is willing to lease the
Premises for a period of one (1) additional year commencing at the end of the
current Lease term. Said rental rate shall be as set forth in Paragraph three
(3) of this Lease. In the event Tenant does not timely notify Landlord of its
intention to exercise it's Option To Renew or in the event Tenant is now or was
ever in default of the terms and conditions of this Lease beyond any applicable
cure period, then in such case Landlord shall be under no obligation to lease to
Tenant for an additional period and Tenant's Option To Renew shall be null and
void
In Witness Whereof, Tenant and Landlord have executed multiple
counterparts of this Lease as of the day, month and year first above written.
Witnesses as to Landlord: LANDLORD: CB PARTNERS LIMITED PARTNERSHIP,
an Ohio limited partnership
/s/ Xxxxx X. Xxxxxx By: CABRO, INC., an Ohio corporation,
------------------------------ general partner
Print Name: Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------------ ----------------------------------------
Print Name: Xxxx X. Xxxxxx Xxxxx X. Xxxxxx, President
Witnesses as to Tenant: TENANT: KARLNET, INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxx
------------------------------ ----------------------------------------
Print Name: Xxxxxxx X. Xxxx Xxxxxxx Xxxx, Chief Technical Officer
/s/ Xxxxxx X. Xxxxxx
------------------------------
Print Name: Xxxxxx X. Xxxxxx
