1
Exhibit 10(r)
LEASE AGREEMENT
Between
CPX-RIVERCENTER DEVELOPMENT CORPORATION
LANDLORD
and
REGENT COMMUNICATIONS. INC.
TENANT
2
LEASE AGREEMENT
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TOWERS OF RlVERCENTER
COVINGTON, KENTUCKY
THIS LEASE AGREEMENT, hereinafter known as the "Lease" entered into
effect this 17th day of January, 1994, between CPX-RIVERCENTER DEVELOPMENT
CORPORATION, a Kentucky corporation, whose principal place of business is P O.
Xxx 00000, Xxxxxxxxxx, Xxxx 00000, hereinafter known as "Landlord," and REGENT
COMMUNICATIONS, INC., a _______________, whose principal place of business is 00
XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, hereinafter known
as "Tenant."
WITNESSETH:
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In consideration of the rent hereafter reserved and the covenants
herein contained, each party to this Lease hereby agrees:
(1) PREMISES:
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Landlord does hereby lease and demise to the Tenant and Tenant
does hereby take and rent from the following premises:
Agreed to be Three Thousand Sixty (3,060) rentable square feet
of the first floor(s), Xxxxx 000 of the Towers of RiverCenter located
at 00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. That
portion which is leased to Tenant is designated in red on the floor
plan attached as Exhibit "A" and is hereinafter known as the "Leased
Premises". The entire building, of which the Leased Premises from a
part, is hereinafter known as the "Building". The Building and other
buildings which comprise RiverCenter, if any, are situated upon a tract
of land hereinafter known as the "Developed Parcel," which is more
particularly described in Exhibit "B". The Building is also part of the
property demised to Landlord pursuant to an Air Rights Lease, which is
more fully described in Paragraph (45).
(2) TERM:
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The term of this Lease shall be for five (5) years and zero
(0) months beginning on the first day of April, 1994 and ending on the last day
of March, 1999, subject however to the terms of Paragraph (3) and further
subject to any of the conditions or covenants of this Lease or pursuant to law.
(3) CONDITIONS OF AND IMPROVEMENTS TO LEASED PREMISES:
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Immediately upon execution of this Lease, Landlord shall
commence any alterations or improvements to the Leased Premises indicated on
Exhibit "C". Landlord shall
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proceed diligently with said work and use its best efforts to complete same by
April 1, 1994, if this Lease is fully executed by January 21, 1994; but, if the
alterations or improvements are not substantially completed or alterations or
improvements are not substantially completed or if the Leased Premises are not
available for occupancy by said date, Tenant shall have no claim against
Landlord due to such delay, excepting only that the term of this Lease shall not
commence until the Leased Premises are deemed to be available to Tenant, and the
term shall expire five (5) years and zero (0) months thereafter. The Leased
Premises shall be deemed to be available to Tenant at the earlier of the time
when:
(a) the alterations or improvements to be made by Landlord are
substantially completed (notwithstanding the necessity of punch list or minor
repairs and adjustments still to be made by the Landlord or notwithstanding the
Tenant has not completed installation and/or connection of its fixtures and/or
equipment); or
(b) the Tenant actually occupies the Leased Premises.
Immediately after the actual-commencement date of this Lease has been
determined, if at variance with Paragraph (2), Landlord and Tenant shall execute
a written instrument fixing the commencement and termination dates of this
Lease.
Tenants taking possession shall be conclusive evidence that Leased
Premises were then in good order and satisfactory condition, except for the
completion of punch list items, if any.
Notwithstanding anything else to the contrary in this Paragraph (3), if
Landlord is not able to complete alterations or improvements to the Leased
Premises due to delays caused by Tenant, its employees, agents or contractors,
then the term of this Lease shall not be delayed, but shall commence according
to Paragraph (2).
OPTION TO RENEW:
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Provided that Tenant is not in default during the initial term of this
Lease, Tenant shall be given two (2) five (5) year options to renew, market
rates to be negotiated. Tenant shall be required to give six (6) months written
notice of its intent to exercise such options.
LOBBY LEVEL FUMES:
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Landlord agrees to use reasonable efforts to minimize any fumes from
the Deli or fumes from any future restaurant on the first floor of the building.
ACCESS TO LEASE PREMISES:
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Landlord agrees not to locate any vendors (i.e. hotdog or magazine stands)
directly in front of the Tenant's Leased Premises.
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(4) OCCUPANCY PRIOR TO TERM:
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If permitted by law, Landlord may allow Tenant to occupy the
Leased Premises prior to the commencement of the term stated in Paragraph (2).
If Tenant occupies the Leased Premises on a day other than the first day of the
month, the Monthly Base Rent provided for in Paragraph (6) and the Additional
Rant provided for in Paragraph (a) shall be adjusted and prorated so that Tenant
shall only pay rent for the actual number of days in the month. Tenant shall
also comply with all other terms and provisions of this Lease in the same manner
as if the term had, in fact, commenced.
(5) SECURITY DEPOSIT:
-----------------
Tenant shall deposit with Landlord upon execution hereof the
sum of Four Thousand Four Hundred Sixty Three and no/100 ($4,463.00) as security
for Tenant's faithful performance of Tenant's obligations hereunder. If Tenant
falls to pay rent or other charges due hereunder, or otherwise defaults with
respect to any provision of this Lease, Landlord may use, apply or retain all or
any portion of said deposit for the payment of any rent or other charge in
default or for the payment of any other sum to which Landlord may become
obligated by reason or Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer thereby. Said Security Deposit shall not
earn interest thereon for the benefit of Tenant. No trust relationship is
created herein between Landlord and Tenant with respect to said Security
Deposit.
(6) BASE RENT:
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(a) As Annual Base Rent for the use and occupancy of the
Leased Premises during the initial term, Tenant shall pay to Landlord rent
pursuant to the schedule attached as Exhibit "D."
The Annual Base Rent is to be payable in equal monthly
installments (the "Monthly Base Rent") in advance on the first day or each and
every month during the initial or extended term of this Lease.
(b) Tenant agrees to pay as supplemental base rent for the use
or said Leased Premises an amount equal to ten percent (10%) of any Monthly Base
Rent payment which is not received by Landlord within five (5) days of the date
said Monthly Base Rant is due. Said supplemental base rent shall be in addition
to any other amounts due under this Lease.
(c) Rent shell be mailed by Tenant to Landlord at Landlord's
principal place of business or at such other place as Landlord any designate in
writing. Rent shall be payable promptly without deduction or setoff or prior
demand thereof by Landlord. All payments shall be in U.S. dollars, in cash or by
check, all checks subject to collection.
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(7) ESCALATION OF BASE RENT:
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Not applicable.
(8) ADDITIONAL RENT:
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(a) For each calendar year or partial calendar year during the
term hereof (or renewal periods, if any), Tenant shall pay to Landlord, as
Additional Rent, its pro rata share of the Operating Expenses of the Building
and the Developed Parcel, as hereinafter defined. For purposes of this Lease,
Tenant's pro rata share of the Operating Expenses is deemed to be one and ten
one hundredths percent (1.10%). 1994 Operating Expenses shall not exceed
$4.25/s.f. There shall be a 4 1/2% per year CAP on all increases in controllable
operating expenses (excluding taxes, utilities, and insurance).
(b) At the commencement of this Lease, or prior to or at the
commencement of any calendar year during the term hereof, Landlord may deliver
to Tenant a written estimate of any Additional Rent (such estimate being
hereinafter referred to as "Estimated Operating Expenses") which may be due
hereunder during the calendar year in which this Lease commences or for any such
succeeding calendar year as the case may be. For each month, Tenant shall pay
1/12 of the amount of the Estimated Operating Expenses for that particular
calendar year in addition to the Monthly Base Rent.
(c) Statements showing the actual Operating Expenses of the
Building and the Developed Parcel and Tenant's proportionate share thereof
(hereinafter referred to as "Statement of Actual Adjustment") shall be delivered
by Landlord to Tenant within a reasonable period of time after the end of any
calendar year in which Estimate Operating Expenses was paid by Tenant or due
Landlord under the provisions hereof. Within thirty (30) days after the delivery
by Landlord to Tenant of such Statement of Actual Adjustment, Tenant shall pay
to Landlord the amount by which the actual adjustment exceeds the amount paid by
Tenant as Estimated Operating Expenses during said previous calendar year, or
Landlord shall credit Tenant the amount by which the Estimated Operating
Expenses exceeded the Statement of Actual Adjustment
(d) The computations set forth in this Paragraph shall be made
on a calendar year basis except if this Lease commences on a day other than the
first day of a calendar year or terminates on a day other than the last day of a
calendar year, in such event the computations shall be made n the basis of the
proportion that the number of days that this Lease was in effect for such
calendar years bears to 365.
(e) For the purposes of this Lease, Operating Expenses shall
mean any and all costs paid or incurred in connection with the operation,
servicing, maintenance and repair of the Building and the Developed Parcel
determined on a cash basis, which shall include, but not be limited to the
following:
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(i) All real estate taxes, assessments,
governmental levies, county taxes or any other governmental charge, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind or nature whatsoever
which are or may be assessed or imposed upon the Building and the Developed
Parcel under the laws of the United States, the State of Kentucky, or any
political subdivision thereof or by the City of Xxxxxxxxx, as a substitute in
whole or in part for taxes payable or hereinafter imposed on the Building and
the Developed Parcel or resulting from or due to any change in method of
taxation, but excluding any income, franchise, excise, corporation, estate,
inheritance, succession, capital stock or transfer tax levied on Landlord to the
extent that it is not a substitute in whole or in part for real estate taxes.
(ii) Compensation provided in the form of wages,
salaries and such other compensation and benefits (including insurance, welfare,
retirement, vacation, holiday, sick pay and other fringe benefits) as well as
any adjustments thereto for the following classes of employees, employees of
agents, or agents of Landlord performing services rendered in connection with
the management, operation and maintenance or the Building and the Developed
Parcel;
a. Building Managers;
b. Building department heads and assistants;
c. clerical and accounting staff;
d. elevator operators, including starters
and assistant starters;
e. window cleaners, porters, janitors,
cleaners, dusters, sidewalk shovelers and miscellaneous handymen;
f. watchmen, gardeners, caretakers and
persons engaged in patrolling and protecting the Building;
g. engineers, fireman, mechanics,
electricians, plumbers and persons engaged in the operating and maintenance of
the heating, air conditioning, ventilating, plumbing, electrical and elevator
systems of the Building; and
h. carpenters, plasterers, painters and
other persons engaged in connection with the management, operating and
maintenance of the Building.
(iii) The uniforms of employees of RiverCenter
specified in subdivision (ii) above and the cleaning, pressing and replacement
thereof.
(iv) Payroll taxes, including federal and state
unemployment taxes and social security taxes and any other such taxes that may
be created, payable in connection with the employment of any of the employees
specified in subdivision (ii) above.
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(v) Premiums and other charges incurred by
Landlord with respect to the following insurance (listed below) on employees
specified in subdivision (ii) above, and on the Building and the Developed
Parcel as required by Paragraph (20), and, if Landlord elects to self insure
some or all of the risks as would normally be covered by insurance, an amount
deemed by Landlord in its reasonable discretion to be equal to the amount which
would have been incurred if insurance had been purchased.
a fire; extended coverage, including
windstorm, hail, explosion, riot, rioting attending a strike, civil commotion,
aircraft, vehicle and smoke; all risk; flood; and earthquake;
b. public liability;
c elevator;
d. boiler damage, water damage, legal
liability, and pilferage on equipment and materials for the Building and the
Developed Parcels;
e. workmen's compensation for the employees
specified in subdivision (ii) above;
f. health, accident, disability and group
life on employees enumerated in subdivision (ii) above as therein qualified; and
g. other insurance which Landlord reasonably
deems necessary for a first class office building would carry or which the
holder of any mortgage affecting the Building or the Building and the Developed
Parcel might require to be carried under the terms of such mortgage.
(vi) Costs, premiums, or penalties incurred for
electricity, steam, gas, water or other utilities or fuels required in
connection with the operation and maintenance of the Building and the Developed
Parcel.
(vii) Water and sewer charges.
(viii) Repairs or maintenance of the Building, and
the Developed Parcel and the cost of the supplies, tools, materials and
equipment used in connection therewith.
(ix) Replacement of tools and equipment.
(x) Charges of any independent contractor
incurred in connection with operating, maintaining or repairing the Building
and the appurtenances, including inspection and servicing of elevator,
electrical, plumbing and mechanical equipment; and the furnishing of cleaning
and janitorial services and the cost of materials, tools, supplies and equipment
used in connection therewith.
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(xi) Sales, use and excise taxes on goods and
services purchased or provided by Landlord to properly manage, operate and
maintain the Building and the Developed Parcel.
(xii) Taxes levied against and paid by Landlord on
rents collected, excepting taxes levied and paid under the provisions of (i)
above, and in no way including any state, federal or local income taxes of
Landlord.
(xiii) License, permit and inspection fees.
(xiv) Auditor's fees for public accounting.
(xv) Legal fees of outside or special counsel
retained by Landlord in connection with proceedings for the reduction of real
estate taxes, labor relations, or other matters to the extent that the same
shall be of general benefit to all tenants in the Building.
(xvi) Cost of telephone, telegraph, postage,
stationery supplies and other materials required for routine operation of the
Building Manager's office.
(xvii) Association dues and subscriptions.
(xviii) Management fees.
(xix) Restroom keys, security passes, directory
strips, control cards.
(xx) Amortization of capital improvements made to the
Building which will improve Building operating efficiencies or which may be
required by governmental authorities, with interest at the rate of ten percent
(18%) per annum on the unamortized amount.
(xxi) Such other expenses and costs of any nature
whatsoever, whether or not herein mentioned, which would be construed as an
operating expense by Landlord in its reasonable discretion and in accordance
with sound real estate accounting practices.
(xxii) Any amounts (including but not limited to
ground rent) which Landlord, as lessee under the Air Rights Lease, is required
to pay to its lessor.
(f) Notwithstanding anything contained in subparagraph (e), no
expense incurred for the following shall be included in Operating Expenses.
(i) Any repairs to the Building including the Leased
Premises where the occurrence causing the damage or loss necessitating repair is
reimbursed by insurance carried by Landlord.
(ii) Leasing or procuring new tenants including
leasing commissions paid to agents of Landlord or other brokers.
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(iii) Renovating space for new tenants or in
renovating space vacated by any tenant.
(iv) Income, capital stock, estate or inheritance
taxes payable by Landlord, provided the same shall not have been levied as a
substitute for or supplement to real property taxes.
(v) Cost of utilities charged to tenants and any
portion of Landlord's payroll, material and contract costs of other services
charged to tenants.
(vi) Costs incurred by Landlord for Tenant's
alterations.
(vii) Cost of painting and decorating the premises of
other tenants.
(viii) Depreciation of the Building.
(ix) Cost of capital improvements (except as set
forth in (xxi) above).
(x) Interest on debt or amortization payments on any
mortgage or mortgages (except as set forth in (xxiii) above).
(xi) Any cost or expense of any nature whatsoever
which Landlord shall incur in connection with the operation of the Building
which is specifically reimbursed to the Landlord from any source, charged
directly to the tenant on whose behalf it is incurred (whether or not the same
shall finally be paid), or for which Landlord is otherwise compensated or
recoups such expense by way of setoff, reduction of recovery allowed, or
otherwise.
(g) If at any tine during the term of the Lease the occupancy
of the Building is less than ninety-five (95) of its capacity, than for the
purpose of this Paragraph, the Operating Expenses per rentable square foot of
rentable floor space shall nevertheless be computed as if the Building were
ninety-five (95) percent occupied.
(h) The obligation of Landlord and Tenant under this
Paragraph shall survive the expiration or other termination of this Lease.
(i) All costs and expenses which Tenant assumes or agrees to
pay to Landlord pursuant to this Lease shall be deemed an additional rent, and,
in the event of nonpayment, Landlord shall have all the rights and remedies
herein provided for in case of nonpayment of rent.
(j) In no event will the Annual Base Rent be reduced below
the amount in Paragraph (6) and (7) as a result of any adjustments pursuant to
this Paragraph.
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(9) SERVICES AND UTILITIES:
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(a) The Landlord hereby covenants an. agrees to maintain in
good condition and repair the foundation, roof, elevators, exterior masonry
walls of the Building and all common areas in the Building and on the Developed
Parcel, as well as sewer, water and other pipes and conduits located beyond the
boundaries of the Leased Premises; and to make all repairs becoming necessary by
reason of any structural defects in the Building; provided, however, that
Landlord shall not be required to make any repairs necessitated by reason of any
act or omission of Tenant, its officers, agents, employees, visitors, or anyone
claiming under Tenant, or caused by any alteration, addition, or improvement
made by Tenant or anyone claiming under Tenant, and that if Landlord does make
any such repairs Tenant shall promptly, upon demand, reimburse to Landlord the
cost thereof.
(b) The Landlord shall maintain, operate and repair heating,
ventilation, air conditioning, plumbing and sprinkler systems (hereinafter known
as the "Systems") and shall provide:
(i) Heating, ventilating and air conditioning in
the Leased Premises at the temperature required in Landlord's judgment for a
comfortable occupancy of the Leased Premises during normal business hours (that
is, daytime hours of 8:00 a.m. through 6:00 p.m. weekdays and 8:00 a.m. to 1:00
p.m. on Saturdays, excluding Sunday and Holidays). Because of System
requirements, if Tenant shall require air conditioning or heating service at any
other time, Landlord shall furnish such "after hours" air conditioning or
heating service upon reasonable advance notice from Tenant and Tenant shall pay
Landlord's actual cost. A minimum charge for two (2) hours of "after hours"
service will be made for any such service. After hours HVAC rate is $25.00/hour.
Use of the leased Premises (or any part
thereof) in a manner exceeding the designed conditions therefor for air
conditioning services, or rearrangement of partitioning which interferes with
normal operation of the Systems, or use of computer or data processing machines
may require changes in the System service for the Leased Premises.
Such changes so occasioned for the leased
Premises shall be made by Tenant at its expense but subject to Landlord's
approval.
(ii) Cold water for drinks, lavatory and toilet
purposes and hot water for lavatory purposes.
(c) The Landlord shall provide electricity consumed in the
Leased Premises for normal lighting, air conditioning and operation of the
Tenant's normal office equipment only. However, Landlord shall not be liable in
any way to Tenant for any failure or default in supply or character of electric
current furnished to the Leased Premises. Landlord shall supply the Leased
Premises with required lamps, bulbs, ballast, starters, and replacements thereof
in the ordinary course of business, with Tenant's cooperation, through proper
communication of need for said replacement items. Tenant's use of electric
current in the Leased Premises shall not at any time exceed the capability of
the electrical conductors and equipment in or otherwise servicing the
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Leased premises. Tenant shall not make or perform or permit any alterations to
wiring, installations, lighting fixtures or other electrical facilities in any
manner without prior written consent of Landlord. In each instance, should
Landlord grant any such consent for additional risers or other equipment
required thereof, such equipment shall be installed by Landlord or Landlord's
approved agent and the cost thereof shall be paid by Tenant upon Landlord's
demand. As a condition to grant any such consent, Landlord may require that
Tenant agree to an increase in the Annual Base Rent payable hereunder by an
amount which will reflect the value to Tenant of the additional electrical
current to be made available to the Tenant. Such calculation, if required, may
be determined by a reputable independent electrical engineer to be selected by
Landlord with the cost of said engineer to be paid equally by both parties.
(d) Tenant will not install or operate in the Leased Premises
any heavy duty electrical equipment or machinery, without first obtaining prior
written consent of Landlord. Landlord may require, as a condition to its consent
for the installation of such equipment or machinery, payment by Tenant of
additional rent for excess consumption of electricity that may be occasioned by
the operation of said equipment or machinery. Landlord may make periodic
inspections of the Leased Premises at reasonable times to determine that
Tenant's electrically operated equipment and machinery complies with the
provisions of this section and to review for excessive heat generation.
Any individual piece of electrically operated
machinery or equipment that draws in excess of two (2) kilowatts shall be deemed
as requiring excess electrical current. The total average consumption of
electricity in excess of five (5) xxxxx per square foot for the Leased Premises
shall also be deemed excessive.
Landlord may require that one or more separate meters by installed to
record the consumption or use of electricity, or shall have the right to cause a
reputable independent electrical engineer to survey and determine the quantity
of electricity consumed by such excessive use. The cost of any such survey or
meters and of installation, maintenance and repair thereof shall be paid for by
Tenant. Tenant agrees to pay Landlord (or the utility company, if direct service
is provided by the utility company), promptly upon demand therefor, for all such
electric consumption and demand as shown by said meters, or a flat monthly
charge determined by the survey, as applicable, at the rates charged for such
service by the local public utility company. If Tenant's cost of electricity
based on meter readings is to be paid to Landlord, Tenant shall pay a service
charge related thereto.
(e) Landlord shall not be liable for its failure to maintain
comfortable atmospheric conditions in all or any portion of the Leased Premises
due to heat generated by any equipment or machinery installed by Tenant (with or
without Landlord's consent) that exceeds generally accepted engineering design
practices for normal office purposes. If Tenant desires additional cooling to
offset excessive heat generated by such equipment or machinery, Tenant shall pay
for auxiliary cooling equipment and its operating costs including without
limitation electricity, gas, oil and water, and/or pay for excess electrical
consumption by the existing cooling system, as appropriate.
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(f) The Landlord shall also provide the cleaning services
detailed on Exhibit "E."
(10) USE OF LEASED PREMISES:
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(a) Tenant shall use and occupy the Leased Premises for
general business offices and no other purpose.
(b) Tenant, at its expense, shall comply with all Federal,
State, County and City laws, ordinances, rules and regulations affecting the use
or occupancy of the Leased Premises by Tenant or the business at any time
transacted by Tenant;
(c) As of the commencement date of this Lease, the Leased
Premises shall be in compliance with all applicable laws, ordinances, rules and
regulations of governmental authorities.
(d) Tenant shall comply with all the Rules and Regulations
which have been adopted by Landlord, attached as Exhibit "F," (and such
reasonable changes or additions thereto) for the protection and welfare of the
Building, the Developed Parcel and other tenants. Landlord shall enforce such
rules and regulations in a uniform and non-discriminatory manner as to all
tenants in the building.
(e) Tenant shall also comply with all the terms and conditions
contained in the Air Rights Lease.
(11) PARKING:
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Parking will be provided to Tenant in accordance with Exhibit
"G" attached hereto.
(12) CONTINUANCE OF OCCUPANCY:
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Not applicable.
(13) REPAIRS:
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(a) Tenant shall at its expense keep in good order, condition,
and repair the interior of the Leased Premises, excluding such items as Building
HVAC equipment, structural systems and lighting. However, Tenant shall pay for
any and all damage caused by negligence of Tenant, its officers, agents,
employees and guests.
(b) If Tenant fails to maintain and repair the Leased Premises
as required by Subparagraph (13)(a), Landlord may, on ten (10) days prior notice
(except that no notice shall be required in case of emergency), enter the Leased
Premises and perform such maintenance or repair on behalf of Tenant. In such
case, Tenant shall reimburse Landlord for all costs incurred in performing such
maintenance or repair immediately upon demand.
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(14) ALTERATIONS:
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No alterations, modifications, additions or installations to
the Leased Premises shall be made unless the Landlord shall first have given
written approval of the plans and specifications thereof, and shall have been
protected, to the Landlord's satisfaction, against any cost or damage incidental
thereto. Prior to any approved construction, Tenant shall first have secured all
necessary building and other permits. Tenant agrees to make such alternations,
modifications, additions or installations to the Leased Premises as may be
required by building, OSHA, or other applicable regulations or local codes in
the jurisdiction in which the Leased premises are located. No alterations,
modifications, additions or installations shall be made which in any way
conflict with the requirements of Landlord's insurance company. All such
alterations, modifications, additions, or installations, when made, shall
become, unless the Landlord elects otherwise as provided in Paragraph (16)
hereof, the property of the Landlord and shall remain upon and be surrendered
with said Leased premises as a part thereof at the end of the term of this
Lease.
(15) FIXTURES AND UNAUTHORIZED USE OF PREMISES:
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Tenant shall not without Landlord's prior written consent
attach any fixtures in or to the Leased premises or change, alter, or made
additions to the Leased Premises nor permit any annoying sound device, install
any additional locks, overload any floor, or deface the Leased Premises. Any
attached fixtures or any alterations, additions, or improvements made or
attached by Tenant shall on the expiration or termination of this Lease, if
requested by Landlord, be promptly removed at Tenant's expense, and the Leased
premises restored by Tenant at its expense to its original condition, ordinary
wear and tear excepted. Any such fixture, alteration, addition and/or
improvement not requested to be moved shall remain on the Leased Premises and
shall become and remain the property of Landlord. All Tenant's fixtures,
installations, and personal property not removed form the Leased Premises upon
expiration or termination and not required by Landlord to have been removed as
provided in this Paragraph shall be conclusively presumed to have been abandoned
by Tenant, and title thereto shall pass to Landlord under this Lease as by a
xxxx of sale.
(16) WARRANTY OF QUIET ENJOYMENT:
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Tenant, upon paying the rents and keeping and performing the
covenants of this Lease to be performed by Tenant, shall peacefully and quietly
hold, occupy, and enjoy said Leased Premises during said term or any renewal
thereof.
(17) INTERRUPTION OF SERVICE:
------------------------
Landlord does not warrant that any services to be provided by
Landlord will be free from interruption due to causes beyond Landlord's
reasonable control. Temporary interruption of services or unavoidable delay in
the making of repairs shall not be deemed an eviction or disturbance of Tenant's
use and possession nor render Landlord liable to Tenant for
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damage by abatement of rent or otherwise nor relieve Tenant from performance of
its obligations under this Lease.
(18) RIGHTS RESERVED BY LANDLORD:
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Landlord shall have the following rights exercisable without
notice and without liability to Tenant:
(a) To change the name or street address of the Building.
Landlord to incur expenses required to replace Tenant's stationery and business
cards.
(b) To have pass keys to the Leased Premises;
(c) To require all persons entering or leaving the Building
during such hours as Landlord may from time to time reasonably determine to
identify themselves to a watchman by registration or otherwise, and to establish
their right to enter or leave, and to exclude or expel any peddler, solicitor or
beggar at any time from the Developed Parcel or the Building;
(d) To approve the weight, size and location of safes,
computers, and other heavy articles or equipment in and about the Leased
Premises and to require all such items and other office furniture and equipment
to be moved to and out of the Building only at such times and in such manner as
Landlord shall direct and in all events at Tenant's sole risk and
responsibility;
(e) Landlord may, at its expense, relocate the Tenant's Leased
premises within the Building to a space built out similar to Tenant's existing
offices in order to facilitate leasing of the Building and/or construction
and/or alterations of the Building;
(f) Landlord or its agents shall have the right to enter the
Leased Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, lenders, or tenants, making such
alterations, repairs, improvements or additions to the Leased Premises as
Landlord may deem necessary or desirable.
(g) Within six (6) months prior to the date of the expiration
of this Lease, Landlord or its agents shall have the right to enter the Leased
premises with reasonable notification at all reasonable times for the purpose of
exhibiting the Leased Premises to prospective tenants.
(h) At any time after the completion of the Building, Landlord
shall have the right to change the arrangement or location of such of the
following as are not contained within the Leased Premises or any part thereof:
entrances, signs, passageways, doors and doorways, corridors, stairs, toilets
and other like public service portions of the Building; providing, however, that
in no event shall Landlord make any change which shall diminish the area of the
Leased premises, make any change which shall interfere with the access to the
Leased premises from and through the Building, or change the character of the
Building from that of a first-class office building.
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15
(19) FIRE OR OTHER CASUALTY:
-----------------------
Should the Leased Premises be damaged or destroyed by any
cause and such damage or destruction be of such a nature that it may be repaired
or restored within a period of one hundred twenty (120) days after the
occurrence, then this Lease shall not terminate, but it shall be the obligation
of Landlord to repair or restore the leased Premises as nearly as possible to
its condition prior to such damage or destruction, and the Landlord shall
proceed promptly to make such repairs or restoration; provided, however, that
such repairs or restoration; provided, however, that such repairs or restoration
can be made by Landlord for an amount not in excess of the amount recovered by
Landlord on the fire, extended coverage and all risk insurance. There shall be a
full abatement of rent during the period that the Leased Premises may be wholly
unavailable for xxx by Tenant for the operation of its business. There shall be
a partial abatement of rent during the period that the Leased Premises is
partially unavailable. Should the damage or destruction be of a character that
will not permit repair or restoration of the Leased Premises within the one
hundred twenty (120) days after the occurrence thereof, or if the cost of such
repair or restoration exceeds Landlord's insurance recovery, either Landlord or
Tenant shall have the privilege of canceling the unexpired term of this Lease
upon giving written notice to the other within forty five (45) days after such
destruction. Landlord will use reasonable efforts to relocate Tenant to another
space within the office building.
(20) INSURANCE:
----------
(a) Landlord shall keep the Building insured against loss by
fire or other casualty with both extended coverage and all risk coverage in an
amount determined by the Landlord not less than 90% of building replacement
cost. In the event that the Landlord's cost of premiums on such insurance
increases due to the hazardous nature of the use and occupancy by Tenant of the
Leased premises, then the entire increase in such insurance cost shall be paid
by Tenant in a lump sum upon receipt of invoice from Landlord.
(b) Landlord shall maintain public liability insurance for the
common areas and the exterior of the Building, as well as the sidewalks and the
parking lot on the Developed Parcel.
(c) Tenant shall, at all times during the term hereof, at its
own expense, carry and keep in full force and effect in companies satisfactory
to Landlord,, public liability insurance in form satisfactory to Landlord, with
limits of (a) at least ONE MILLION DOLLARS ($1,000,000.00) for bodily injury,
including death, and property damage, and (b) at least ONE MILLION DOLLARS
($1,000,000.00) aggregate. Landlord may increase the above limits to such
greater amounts of insurance coverage as Landlord may from time to time
reasonably require. Tenant shall also carry Worker's Compensation insurance for
all of Tenant's employees working in the Leased Premises, in an amount
sufficient to comply with applicable laws or regulations.
(d) All property in the Leased Premises, in the Building or on
the Developed Parcel, belonging to Tenant, its agents, employees, or invitees or
to any other person, shall be
-15-
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there at the risk of Tenant or such other person only, and Landlord shall not be
liable for damage thereto or theft, misappropriation or loss thereof. In
furtherance of this provision, Tenant shall, during the entire term of this
Lease keep in full force and effect insurance upon all property situated in the
Leased Premises owned by Tenant or for which Tenant is legally liable and also
upon fixtures and improvements installed in the Leased Premises by or on behalf
of Tenant. Such policies shall be for an amount of not less than one hundred
percent (100%) of the full replacement cost with protection against (at a
minimum) fire or other casualty, with both extended coverage and all risk
coverage.
(e) All public liability insurance policies maintained by
Tenant shall name the Landlord and the Tenant as parties insured, and shall
contain a provision that the same may not be canceled or changed without giving
to the Landlord at least thirty (30) days written notice prior to expiration or
cancellation of any such policy. Tenant shall furnish to Landlord a certified
copy of each insurance policy. Furthermore, renewals of such insurance policies
shall be presented to Landlord at least thirty (30) days before the expiration
of such insurance coverages.
(f) Landlord and Tenant, for themselves and their respective
insurers, agree to and do hereby release each other of and from any and all
claims, demands, actions and causes of action that each may have or claim to
have against the other for lose or damage to the property of the other, both
real and personal, caused by or resulting from casualties insured against, or,
if there in no insurance, caused by or resulting from casualties customarily
insurable under ordinary fire insurance policies with both extended and all risk
coverage, notwithstanding that any such loss or damage may be due to or result
from the negligence of either of the parties hereto or their respective
employees or agents.
(g) Landlord, its agents and employees shall not be liable for
losses or damages as a result of any injury to any person or damage to property
(except for damage to the Building itself) sustained by Tenant, by Tenant's
agents or employees, by any occupant of the Leased Premises, the Building or the
Developed Parcel, or by any other person, occurring or resulting directly or
indirectly from any existing or future condition, defect, matter, or thing in
the Leased Premises, in the Building or on the Developed Parcel or from
equipment or appurtenance therein or from accident or from any occurrence, act,
or from negligence or omission of any tenant, occupant or any other person; but
nothing in this Subparagraph (g) shall be deemed to relieve Landlord from
liability for damages for bodily injuries to any person caused by or resulting
from the negligence of Landlord, its agents or employees.
(21) INDEMNIFICATION:
----------------
Landlord and Tenant shall indemnify and hold each other (and
any mortgagee of Landlord) harmless from and against all claims, actions,
lawsuits, damages, liabilities, expenses and costs (including reasonable
attorneys' fees) for any loss of life, bodily injury or property damage caused
by or resulting from: 1) the use or occupancy of the Leased Premises, the
Building, or the Developed Parcel by the Tenant, its officers, agents,
employees, invitees, guests, assignees or subtenants; 2) any occurrence within
the Leased premises; 3) a breach of this Lease by the Tenant; or 4) any
negligent act or omission or misconduct caused wholly or in part by the
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Tenant, its officers, agents, employees, invitees, guests, assignees or
subtenants. Nothing in this Paragraph shall require Tenant to indemnify Landlord
for damage to the Building, to the extent released in Paragraph (20)(f) of this
Lease.
(22) BROKER'S COMMISSION:
--------------------
Tenant represents that it has dealt directly with (and only
with), Xxxxxxx Real Estate Services, Inc., (as broker) in connection with this
Lease and that no other broker negotiated or participated in the negotiations of
this Lease or submitted or showed the Leased Premises to it or is entitled to
any commission in connection therewith. Landlord shall be liable for the payment
of any commission due to the broker named in this Paragraph; however, if there
is a violation of the representation herein made by Tenant, and any other broker
claims a commission from Landlord, Tenant shall indemnify and hold the Landlord
harmless from such claim.
(23) SUBORDINATION AND ATTORNMENT:
-----------------------------
(a) The Tenant accepts this Lease subject and subordinate to
the Air Rights Lease, and ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Developed Parcel and
to any and all advances made on the security thereof and to all removals,
modifications, consolidations, replacements and extensions thereof. If any
mortgagee, shall elect to have this Lease prior to the lien of its mortgage, and
shall give written notice thereof to Tenant, this Lease shall be deemed prior to
such mortgage, whether this Lease is dated prior or subsequent to the date of
said mortgage, or the date of recording thereof.
(b) Although the provisions of Paragraph (23) (a) shall be
self operative, Tenant agrees, upon request of Landlord or Landlord's lender, to
execute any documents required to effectuate any attornment, a subordination or
to make this Lease prior to the lien of any mortgage. Tenant's failure to
execute such documents within 10 days after written demand shall constitute a
material default by Tenant hereunder, or, at Landlord's option, Landlord shall
execute such documents on behalf of Tenant as Tenant's attorney-in-fact.
Tenant does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney-in-fact, and in Tenant's name, place and stead, to
execute such documents in accordance with this Paragraph (23).
(c) If by reason of a default under the mortgage upon the
Developed Parcel, the interest of Landlord in the Developed Parcel is
terminated, the Tenant will attorn to the holder of such mortgage (or to any
person or entity to which the Developed Parcel is conveyed by such holder) and
will recognize such holder, person or entity as Tenant's landlord under this
Lease. Tenant agrees to execute and deliver, at any time and from time to time,
upon the request of Landlord or of the Landlord's lender any instrument which
may be necessary or appropriate to evidence such attornment and Tenant hereby
appoints Landlord the attorney-in-fact, irrevocable, of Tenant to execute and
deliver for and on behalf of Tenant any such instrument. Tenant further waives
the provision of any statute or rule of law now or hereafter in effect which may
give or
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purport to give Tenant any right of election to terminate this Lease or
to surrender possession of the Leased Premises in the event any proceeding is
brought by Landlord's lender to terminate the interest of the Landlord in the
Developed Parcel and agrees that this Lease shall not be affected in any way
whatsoever by any such proceeding.
(24) ASSIGNMENT AND SUBLETTING:
--------------------------
Tenant shall not assign, mortgage or encumber this Lease nor
sublet or permit the Leased Premises or any part thereof to be used by others,
without the prior written consent of Landlord in each instance. The consent by
Landlord to an assignment or subletting shall not be construed to relieve Tenant
from obtaining the consent of the Landlord to any further assignment or
subletting. The consent by Landlord will not be given unless: a) the subtenant
or assignee assumes the Tenant's obligations under this Lease; and b) Tenant
remains liable for all its obligations under this lease, including extensions or
renewals provided for herein. Nor will consent be given if Tenant is in default
under this Lease. Tenant shall notify Landlord of the name of each proposed
assignee or subtenant and shall provide information to Landlord pursuant to the
financial standing of the proposed assignee or subtenant and shall offer at
Tenant's option to surrender such space to Landlord.
Landlord reserves the right to require as additional rent, 50%
of any subtenant or assignee rent which is in excess of the base rent and
additional rent then being paid by Tenant pursuant to this Lease, and any other
profit or gain realized by Tenant from such assignment or subletting. All sums
payable hereunder by Tenant shall be paid as additional rent upon receipt by
Tenant or upon request by Landlord.
(25) EMINENT DOMAIN:
---------------
Tenant agrees that if the Leased Premises, or any part
thereof, shall be taken or condemned for public or quasipublic use or purpose by
any competent authority, Tenant shall have no claim against Landlord and shall
not have any claim or right to any portion of the amount that may be awarded as
damages or paid as a result of any such condemnation, whether such amount be
awarded for diminution in value to the leasehold or to the fee. It is agreed
that the full amount of such award, if any, made by the taking authorities shall
be paid to and retained by Landlord, free of any claim by Tenant to any portion
thereof, and all rights of Tenant to damages therefor, if any, are hereby
assigned by Tenant to Landlord.
In the event that all or substantially all of the leased
Premises shall be taken or condemned by any governmental authority, then the
term of this Lease shall cease and terminate from the date on which the Tenant
is required, by such taking authority, to surrender possession of said Leased
Premises and the Tenant shall not have nor make any claim against Landlord for
the value of any unexpired term of this Lease. In the event that a portion of
the Leased Premises shall be taken or condemned by any governmental authority,
then this Lease shall continue in full force and effect, and rent shall xxxxx in
an amount which bears the same ratio to the Annual Base Rent as the value of the
floor space taken bears to the value of the total floor space of the leased
Premises. All rentals and other sums payable by Tenant hereunder shall be
adjusted to the date
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on which Tenant is required, by the taking authority, to surrender possession of
the Leased Premises or portion of the Leased Premises so taken.
(26) ESTOPPEL CERTIFICATE:
---------------------
(a) Tenant shall at any time upon not less than ten (10) days'
prior written notice from Landlord execute, acknowledge and deliver to Landlord
a statement in writing: (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease as so modified, is in full force and effect) and the
date to which rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are no uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed. Such statement shall
be in a form as Landlord, purchaser or mortgagee shall require. Any such
statement may be conclusively relied upon by any prospective purchaser or
mortgagee of the leased Premises, or the lessor under the Air Rights Lease.
(b) Tenant's failure to deliver such statement within such
time shall be a material default under this Lease or, at Landlord's option,
Tenant's failure to furnish such statement shall be conclusive upon Tenant: (i)
that this Lease is in full force and effect, without modification except as may
be represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one month's rent has been
paid in advance or such failure may be considered by Landlord as a default by
Tenant under this Lease.
(c) If requested by any purchaser, mortgagee, or the lessor
under the Air Rights Lease, Landlord shall executed such statement on behalf of
Tenant as Tenant's attorney-in-fact. Tenant does hereby make, constitute and
appoint Landlord as Tenant's attorney-in-fact and in Tenant's name, place and
stead to execute such statement in accordance with this paragraph (26).
(27) DEFAULT; REMEDIES UPON DEFAULT:
-------------------------------
(a) Each of the following shall be a Default hereunder: (i)
the failure of Tenant to pay when due any installment of Monthly Base Rent,
Additional Rent or any other charge hereunder within five (5) days after the due
date therefor; (ii) the failure of Tenant to timely or fully perform or observe
any other provision of this Lease and the continuation of such failure for ten
(10) days after Landlord gives Tenant written notice thereof; (iii) the breach
by Tenant of any representation or warranty in this lease; (iv) the filing by or
against Tenant or any guarantor hereof of any petition in bankruptcy; (v) the
filing of any voluntary or involuntary proceeding instituted to declare Tenant
or any guarantor hereof insolvent or unable to pay its debts as they mature;
(vi) the making by Tenant or any guarantor hereof of an assignment for the
benefit of its creditors; or (vii) the appointment of a trustee or receiver for
Tenant or any guarantor hereof or for the major part of Tenant's or guarantor's
property.
(b) Upon and after a Default, Landlord shall have the
following remedies in addition to all other remedies allowed at law or in equity
or elsewhere in this lease, all of which shall be cumulative and not in the
alternative and any or all of which may be exercised
-19-
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successively or concurrently and at such time or times as Landlord elects,
except as provided to the contrary below:
(i) Landlord shall have the right to terminate
this Lease or to terminate Tenant's right to possession of the Leased premises
without terminating this Lease, but in either event Tenant shall surrender
possession of and vacate the Leased Premises immediately upon Landlord's notice
to Tenant of either such termination and Landlord shall have the further right
to enter the Leased Premises with or without process of law, retake possession
of the Leased Premises and expel or remove Tenant (or anyone occupying the
leased Premises) and its effects therefrom without being liable or subject to
prosecution or any claim for damages therefor. In such event, Landlord shall
retain possession of the Leased premises and shall use reasonable efforts to
relet the Leased Premises or any part thereof as agent for Tenant for such rent
and other consideration, for such time and upon such terms and conditions as
Landlord determines appropriate. Landlord shall have no duty to accept any
tenant offered by Tenant or to observe any instructions given by Tenant
concerning such reletting. If the consideration collected by Landlord during the
remainder of the term by reason of such reletting exceeds the Annual Base Rent,
Additional Rent and other charges hereunder for the remainder of the term,
Landlord shall pay such excess to Tenant within sixty (60) days after the
expiration of the term.
(ii) Landlord shall have the right to terminate
Tenant's right to possession of the Leased Premises without terminating this
Lease and to recover from Tenant within ten (10) days after Landlord's demand a
sum equal to the entire amount of the Annual Base Rent, Additional Rent and
other charges hereunder for the remainder of the Term. If, due to escalation
mechanisms in this Lease or other factors, the balance of the Annual Base Rent,
Additional Rent and other charges due for the remainder of the Lease term cannot
be precisely determined as of the date of such termination, Tenant shall pay the
amount Landlord reasonably estimates would result from such escalation
mechanisms and other factors. Upon the expiration of the term or at such earlier
time as may be practicable, Landlord shall determine the actual Annual Base
Rent, Additional Rent and other charges hereunder and Landlord or Tenant shall
pay to the other the resulting excess or deficiency, as the case may be.
(iii) Landlord shall have the right but not the duty
to perform any of Tenant's obligations hereunder which Tenant has not timely and
fully performed and to charge to Tenant the cost of such performance, together
with a service charge of ten percent (10%) of such cost, to compensate Landlord
for administrative and other services associated with such performance.
(iv) Landlord shall have the right to suspend or
discontinue the provision of services to the Leased premises and the performance
of any other obligation of Landlord hereunder.
(v) If Landlord is not permitted to terminate this
Lease as provided above because of the provisions of Title 11 of the United
States Code relating to bankruptcy, then Landlord shall have the right to
require Tenant as a debtor in possession or any trustee for Tenant, within no
more than fifteen (15) days upon request by Landlord to the Bankruptcy Court, to
assume or reject this lease and Tenant on behalf of itself, and any trustee,
agrees not to seek or
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request any extension or adjournment of any application by Landlord to assume or
reject this Lease. In such event, Tenant or any trustee for Tenant may only
assume this Lease if (A) it cures or provides adequate assurance that the Tenant
will promptly cure any default hereunder, (B) compensates or provides adequate
assurance that Tenant will promptly compensate Landlord for any actual pecuniary
loss of Landlord resulting from Tenant's defaults hereunder, and (C) provides
adequate assurance of performance during the full term of all of the Tenant's
obligations under this Lease. In no event after the assumption of this Lease
shall any then-existing default remain uncured for a period in excess of the
earlier of ten (10) days or the time period set forth herein.
(vi) Landlord shall have the right to recover from
Tenant, if Landlord relets or attempts to relet the Leased Premises, all costs
and expenses incurred in connection with such reletting, including without
limitation broker's commissions, advertising costs, reasonable legal fees for
lease preparation and negotiations and the cost of alterations or improvements
to the leased Premises.
(c) Any property which may be removed from the leased premises
by the landlord pursuant to the authority of the Lease or of law to which the
Tenant is or may be entitled may be handled, removed, or stored in a commercial
warehouse or otherwise by the Landlord at the risk, cost, and expense of the
Tenant. Landlord shall in no event be responsible for the value, preservation,
or safekeeping thereof. The Tenant shall pay to the Landlord, upon demand, all
expenses incurred in such removal and all storage charges against such property.
Any such property of Tenant not removed form the leased premises or retaken from
storage by Tenant within thirty (30) days after the end of the term of this
Lease, however terminated, shall be conclusively deemed to have been abandoned
by Tenant.
(d) If Tenant violates any of the terms and provisions of this
lease or defaults in any of its obligations hereunder other than the payment of
rent or other sums payable hereunder, such violation may be restrained or such
obligation enforced by injunction.
(28) HOLDING OVER:
-------------
Tenant shall pay Landlord for each month, or part thereof,
that Tenant retains possession of the Leased premises or any part thereof after
termination or expiration of the term of this Lease one hundred-fifty percent
(150%) the amount of the monthly rent then required by the terms hereof and also
pay all damages sustained by Landlord by reason of such retention.
(29) REDELIVERY OF PREMISES:
-----------------------
Tenant shall, on the expiration of this Lease, deliver up the Leased Premises in
as good order and condition as it now is or may be put by Landlord, reasonable
use and ordinary wear and tear thereof and damages by fire or other unavoidable
casualty, condemnation or appropriation excepted. Tenant shall promptly
surrender all keys to the Leased Premises to Landlord.
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(30) CUMULATIVE REMEDIES:
--------------------
No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in
equity.
(31) INTEREST ON PAST DUE OBLIGATIONS:
---------------------------------
Any amount owed by Tenant to Landlord which is not paid when
due shall bear interest at the rate of fifteen percent (15%) per annum from the
due date of such amount. However, interest shall not be payable on late charges
to be paid by Tenant under this lease. The payment of interest on such amounts
shall not excuse or cure any default by Tenant under this Lease. If the interest
rate specified in this Lease is higher than the rate permitted by law, the
interest rate is hereby decreased to the maximum legal interest rate permitted
by law.
(32) ATTORNEYS' FEES:
----------------
In the event any sums payable to Landlord hereunder are
collected at law or through any attorney at law, Tenant shall pay all attorneys'
fees and expenses which Landlord incurs in enforcing any obligation of the
Lease.
(33) NOTICES:
--------
All notices required or permitted to be given to Tenant under
this Lease shall be given to it at 00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000.
Any such notice to Landlord under this lease shall be given to
it at X.X. Xxx 00000, Xxxxxxxxxx, XX 00000, Attn: Property Management. All
noticers shall be in writing and sent by certified mail, postage prepaid.
Notice so mailed shall be effective upon the third day after
its deposit into the mails. Notice given in any other manner shall be effective
under this Paragraph (33) only if and when received by the addressee.
(34) LANDLORD'S LIABILITY:
---------------------
(a) The term "Landlord" as used herein shall mean only the
owner or owners at the time in question of the fee title. In the event of any
transfer of such title, Landlord herein named (and in case of any subsequent
transfers, then the grantor) shall be relieved from and after the date of such
transfer of all liability as respects Landlord's obligations thereafter to be
performed, provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective periods of ownership.
Tenant shall attorn to any such purchaser, grantee, assignee or transferee.
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(b) Tenant shall look solely to the estate and property of
Landlord in the Developed Parcel for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default or breach by Landlord with respect to any of the terms and provisions of
this Lease to be kept, observed, and performed by Landlord, subject, however, to
the prior rights of any mortgagee of all or any part of the property; no other
assets of Landlord shall be subject to levy, execution or other judicial process
for the satisfaction of Tenant's claim. Nothing in this Lease shall be construed
in any event whatsoever to impose any personal liability upon the trustees,
officers or the shareholders of the Landlord, or of the general or limited
partners comprising the Landlord, as Landlord herein or otherwise.
(35) INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS:
----------------------------------------------
This Lease including any exhibits, schedules or attachments,
hereto, contains all agreements of the parties with respect to any matter
mentioned herein. No prior agreement or understanding pertaining to any such
matter shall be effective. This Lease may be modified in writing only, signed by
the parties in interest at the time of the modification. Except as otherwise
stated in this lease, Tenant hereby acknowledges that neither any cooperating
broker on this transaction nor the Landlord or any employees or agents of any of
said persons has made any oral or written warranties or representations to
Tenant relative to the condition or use by Tenant of said Leased Premises, the
Building or the Developed Parcel.
(36) WAIVERS:
--------
(a) No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to, or approval
of, any act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Tenant.
(b) The acceptance of rent hereunder by Landlord shall not be
a waiver of any preceding breach by Tenant of any provision hereof, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
(37) SEVERABILITY:
-------------
If any provision of this Lease (or portion thereof) shall at
any time be deemed to be invalid, illegal or unenforceable by any court of
competent jurisdiction, this Lease shall not be invalidated thereby. Any such
provision shall be construed to be valid, legal and enforceable to the fullest
extent permitted by law and this lease shall be read and construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
(38) RECORDING:
----------
This Lease shall not be placed of record; however, either
Landlord or Tenant shall, upon request of the other, execute, acknowledge and
deliver to the other a "short form" memorandum of this Lease for recording
purposes.
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(39) BINDING EFFECT:
---------------
Subject to any provisions hereof restricting assignment or
subletting by Tenant, this Lease shall be binding upon and inure to the benefit
of the parties, their heirs, personal representatives, successors and assigns.
(40) AUTHORITY:
----------
If Tenant is a corporation, trust, general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver
this lease on behalf of said entity and shall, at the execution of this lease,
deliver to Landlord evidence of such authority satisfactory to Landlord.
(41) CONFLICT:
---------
Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the typewritten
or handwritten provision.
(42) GOVERNING LAW; FORUM:
---------------------
This Lease is made under and is to be governed by the laws of
the State of Kentucky. Any action arising out of this Lease shall be brought
only in a court of competent jurisdiction in Kenton County, Kentucky.
(43) JOINT AND SEVERAL OBLIGATIONS:
------------------------------
Not applicable.
(44) GUARANTORS:
-----------
Not applicable.
(45) AIR RIGHTS LEASE:
-----------------
The leasehold estate created by this Lease constitutes a
sublease of a portion of the premises demised to Landlord, as lessee, by the
City of Xxxxxxxxx, as lessor, by an instrument dated and recorded in the lease
records of the Kenton County Clerk at Covington, Kentucky as follows: instrument
dated August 1, 1988, filed in Lease Record Volume 452, Page 452 on the records
of Kenton County. Such instrument shall be referred to under this Lease as the
"Air Rights Lease." This Lease and all of Tenant's rights hereunder are and
shall be subject and subordinate to the Air Rights Lease and the rights of all
parties under such Air Rights Lease.
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(46) ADDITIONAL EXHIBITS:
--------------------
The following exhibits are attached hereto and incorporated
into this Lease, in addition to previously identified Exhibits A, B, C, D, E, F,
and G (identify additional exhibits by letter and title; if none, please so
state): None.
(SIGNATURES, ACKNOWLEDGEMENTS, and EXHIBITS not shown on this form.)
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