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EXHIBIT 10.28
LEASE
THIS LEASE is made and entered into as of April 1, 1998, by and between
High Speed Access Corp., 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
(hereinafter referred to as "Tenant"), and Xxxxx Xxxx Machine Co., 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Landlord").
WITNESSETH:
WHEREAS, Landlord is the owner of certain real property and improvements
("XXXX INDUSTRIAL COMMONS") located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000; and
WHEREAS, Tenant desires to use and occupy a portion of the Xxxx Industrial
Commons as is specifically marked on Exhibit "A" annexed hereto (the "PREMISES")
as a place of business;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the receipt and sufficiency of which is hereby acknowledged, the parties
do hereby agree as follows:
A. Term
For the consideration set forth in paragraph B of this lease (the
"LEASE"), Landlord does hereby lease the Premises to Tenant and Tenant hereby
leases from Landlord the Premises for a period of one (1) year commencing on
April 1, 1998, (the "COMMENCEMENT DATE"), and terminating at midnight on March
31, 1999.
B. Rent; Security Deposit
Tenant, in consideration of the Lease, agrees to pay to Landlord in
check or certified funds the sum of $3,601 per month as rent beginning on the
Commencement Date, and continuing every month thereafter during the term of the
Lease. Rent shall be paid in advance on the first day of each month without
notice or demand and without any set off or deduction. Rent shall be paid to
Landlord at 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx
Xxxxxxxxx, Facilities Manager, or such other place as shall be agreed upon by
the parties hereto.
Should Tenant fail to pay when due any installment of rent, or any other
sum payable to Landlord under the terms of this Lease, then interest at the
lesser of (i) the highest lawful rate of interest per annum permitted in the
State of Kentucky or (ii) sixteen percent (16%) per annum, shall accrue from and
after the date of which any sum shall be due and payable, and such interest,
together with a late charge of $50.00 to cover the extra expense involved in
handling such delinquency, shall be paid by Tenant to Landlord at the time of
payment of the delinquent sum. In addition to rent, all of the payments to be
made by Tenant to Landlord, shall be deemed to be and shall become additional
rent hereunder whether or not the same be designated as such, and shall be due
and payable upon demand together with any interest thereon; and Landlord shall
have the same remedies for failure to pay same as for nonpayment of rent.
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C. The Premises; Quiet Enjoyment
The Premises shall consist of the space marked on Exhibit "A" which is
incorporated herein by reference. The Premises contain approximately 5584 square
feet of office area.
Tenant shall also have the Right of First Refusal with regard to the
remaining space on the second floor: Suites 201, 220, 230 and 225. If, during
the term of the lease, Landlord receives a bona fide offer for those suites, or
any parts thereof, Tenant shall have the opportunity to match the offer and take
the space. Landlord shall notify Tenant of the offer within 3 days of receiving
the written offer and Tenant shall respond within 3 days of receiving Landlord's
notification. Tenant's failure to respond within the time frame shall be deemed
a waiver of its right.
In addition to the Premises, Tenant shall have the following rights,
privileges and entitlements, without further cost or expense:
1. Reasonable use of visitors parking in the "Visitors Parking Area";
2. Assigned parking for up to 18 cars in the 00xx Xxxxxx Parking Lot;
plus one spot in the parking garage;
3. Existing security, as available;
Upon paying the rent herein reserved and performing and observing all
other terms, covenants and conditions of this Lease on Tenant's part to be
performed and observed, Tenant shall peaceably and quietly have, hold and enjoy
the Premises during term without interference by Landlord, subject,
nevertheless, to the terms of this lease and to any mortgages, ground or
underlying leases, agreements and encumbrances to which this Lease is or may be
subordinated.
D. Use of Premises
Landlord and Tenant agree that they will not compete with one another
with respect to the operation of their respective businesses during the lease
term. Subject to and in accordance with all rules, regulations, laws,
ordinances, statutes and requirements of all governmental authorities, the Fire
Insurance Rating Organization, the Board of Fire Insurance Underwriters and
Landlord's insurance carrier, Tenant shall use the Premises solely for the
purpose listed above and for no other purposes.
E. Common Areas
The use and occupancy by the Tenant of the Premises shall include a
license to use in common with the others entitled thereto, the Common Areas, as
may be designated from time to time by Landlord. Tenant shall pay the sum of
$111 per month (which is included in the rent) for the use of common areas and
maintenance. The term "Common Areas" as used in this Lease
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shall mean all facilities furnished to Xxxx Industrial Commons and designated by
Landlord for the general use, in common, with other occupants of Xxxx Industrial
Commons, including Tenant, its officers, agents, employees and customers, which
facilities may include, but are not limited to, the parking areas, streets,
passenger vehicle roadways, sidewalks, walkways, service areas, roadways,
loading platforms, drainage and plumbing systems, roof, canopies, ramps,
landscape areas and other similar facilities available for common use which may
from time to time exist. Common Areas shall be subject at all times during the
term to reasonable rules and regulations adopted by the Landlord not in conflict
with any of the express provisions hereof governing the use of the parking
areas, walks, driveways, passageways, signs, exteriors of building, lighting and
other matters affecting other Tenants in, and the general management and
appearance of the Xxxx Industrial Commons. Tenant agrees to comply with all such
rules and regulation upon notice to the Tenant from the Landlord. Tenant
expressly agrees as follows:
1. All garbage and refuse shall be placed outside of the Premises
prepared for collection in the manner and at the times and places
specified by Landlord. Tenant shall pay the cost of removal of any
Tenant's refuse and garbage and maintain all loading areas in a clean
manner satisfactory to the Landlord. Landlord reserves the right to
specify Tenant's waste removal company.
2. Tenant shall keep and maintain the Premises in a neat and clean
condition.
3. Tenant shall not install, operate or maintain in the Premises or in
any other area of the Xxxx Industrial Commons, any electrical
equipment which does not bear underwriter's approval, or which would
overload the electrical system or any part thereof beyond its
capacity for proper and safe operation as determined by Landlord.
4. Tenant shall not suffer, allow or permit any vibration, noise,
light, emission, odor or other effect to emanate from the Premises,
or from any machine or other installation therein, or otherwise
suffer, allow or permit the same to constitute a nuisance or
otherwise interfere with the safety, comfort and convenience of the
Landlord or any of the other occupants of the Xxxx Industrial
Commons, or their customers, agents, or guests or any others lawfully
in or upon the Xxxx Industrial Commons. Upon notice by Landlord to
Tenant that any of the aforesaid is occurring, Tenant agrees to
forthwith remove or control the same.
5. Tenant will confine access and movement of Tenant's employees,
suppliers, contractors, customers and guests to areas defined in
section (C).
6. Vending Machines - Landlord reserves the right to provide any
vending machines to be located on the Premises and to locate vending
machines in all Common Areas. Placement of vending machines within
the Premises shall be subject to the consent of Tenant, which shall
not unreasonably be withheld.
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F. Signs, Awnings, Canopies
Landlord reserves the right to erect and maintain such suitable
signs as it may deem appropriate in Landlord's sole discretion, to advertise the
Xxxx Industrial Commons. Tenant, at its own expense, may erect and maintain only
such signs as Landlord may approve in writing. Tenant shall submit detailed
drawings of its sign for review and approval by Landlord prior to the
installation thereof. Tenant shall also provide Landlord with a copy of any
necessary permits for installation of its sign prior to installation thereof.
G. Assignment
Tenant shall not take any of the following actions without the prior
written consent of the Landlord which consent may be withheld in Landlord's sole
and absolute discretion:
1. Assign, transfer, or pledge this Lease, or any part of, or interest
in the Premises;
2. Sublet the Premises or any part thereof; or
3. Permit the Premises or any part thereof to be used by anyone other
than Tenant or persons designated by Landlord.
H. Waste
Tenant shall not commit nor allow any other person to commit any waste
on the Premises. In the event that any improvement on the Premises is damaged or
destroyed by Tenant, Tenant's invitee, licensee or guest, it is agreed that
Landlord shall have no obligation to restore the same or to refund any portion
of the rent paid by Tenant. Tenant shall be responsible for restoring, at
Tenant's sole cost and expense, any such damage or destruction occurring on or
to the Premises. "Improvement" shall include, without limitation, all buildings,
fences, and all other structures currently existing or hereafter placed upon the
Premises.
I. Hazardous Materials
Tenant agrees that Tenant, its agents, servants, employees, licensees,
guests and contractors, shall not use, manufacture, store or dispose of any
flammable explosives, radioactive materials, hazardous waste or materials, toxic
wastes or materials or other similar substances (collectively "Hazardous
Materials") on, under or about the Premises or the Xxxx Industrial Commons. If
Tenant has knowledge of or receives any notice of (1) the happening of any event
involving the use, spill, discharge, or cleaning up of any hazardous material (a
"hazardous discharge") or (2) any complaint, order, citation, or notice with
regard to air emissions, water discharges, noise emissions, or any other
environmental, health, or safety matter affecting Tenant, the Premises or Xxxx
Industrial Commons (an "environmental complaint") from any person or entity,
including, without limitation, the United States Environmental Protection
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Agency ("EPA"), Tenant shall give immediate written notice thereof to Landlord
disclosing full details of same. If Tenant breaches the obligations stated in
this paragraph, or if the presence of Hazardous Materials on the Premises caused
or permitted by Tenant results in contamination of the Premises and/or Xxxx
Industrial Commons, or if contamination of the Premises by hazardous material
otherwise occurs for which Tenant is legally liable to Landlord for damage
resulting therefrom, the Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including, without limitation, diminution in value of the
Premises, damages for the loss or restriction on use of rentable or useable
space or of any amenity of the Premises, damages arising from any adverse impact
on marketing of space, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the lease term as
the result of such contamination. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in, on or under the
Premises. The indemnity obligations of Tenant under this Section I shall survive
any termination of this Lease. Landlord understands that Tenant may use
Hazardous Material in the normal and ordinary course of its business and
Landlord gives permission for Tenant to do so without relieving Tenant any of
the responsibilities and requirements of this Lease or any federal, state or
local laws which govern Hazardous Material. Tenant agrees to provide Landlord a
list of all such Hazardous Materials fifteen (15) days prior to the Commencement
Date and further agrees to update said list as Landlord may require. Tenant
agrees to register with the Air Pollution Control District of Jefferson County
prior to the Commencement Date and provide Landlord with proof of such
registration.
J. Nuisance
Tenant shall use the property in a careful and proper manner complying
with all laws, ordinances, and regulations relating to the possession and
maintenance of the Premises, and shall not maintain or cause to be maintained
any nuisance on the Premises.
Tenant agrees that it will comply with (i) Landlord's policies and
regulations relating to the alcohol, drugs and firearms on the Premises, and
(ii) Landlord's policies and regulations relating to security on the Premises,
including but not limited to policies regarding sign-in and the use and display
of identification badges in connection with enforcement of such policies. A copy
of these policies and regulations (which are subject to periodic change) are
attached hereto, made a part hereof, and marked "Exhibit "B".
K. Indemnification of Landlord
Tenant shall indemnify and hold Landlord harmless from and against all
claims, actions, proceedings, costs, damages, and liabilities (including
attorney fees, and including any damage caused by the release of pollutants or
contaminants into the environment of the Premises or surrounding the Premises)
and arising out of, connected with, or resulting from the occupancy, use, or
condition of the Premises. The indemnity obligations of Tenant under this
section (K) shall survive any termination of this lease.
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Except with respect to the gross negligence or the intentional acts of
Landlord, its agents and employees, Landlord shall not be liable for any loss
of, or damage to, property of Tenant or of others located in the Premises or the
Xxxx Industrial Commons, by theft or otherwise, nor for any loss or damage
whatsoever to any property which Tenant could remove at the end of the terms as
provided in section (U) hereof; Landlord shall not be liable for any injury or
damage to persons or property or to the interior of the Premises resulting from
fire, explosion, falling plaster, gas, steam, electricity, water, rain or snow
or leaks from any part of the premises or from pipes, appliances or plumbing
works or from the roof, street or subsurface or from any other place or by
dampness or by any other cause whatsoever; Landlord shall not be liable for any
such injury or damage caused by other person(s) either in the Premises or
elsewhere in the Xxxx Industrial Commons, or by occupants of property adjacent
to the Xxxx Industrial Commons, or by the public, or by operations in the
construction of any private, public or quasi-public work.
L. Force Majeure
In the event that either party hereto shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure or
power, riots, insurrection, war or other reason of a like nature not the fault
of the party delayed in performing work or doing acts required under the terms
of this Lease, the performance of such acts shall be excused for the period of
the delay and the period for the performance of any such acts shall be extended
for a period equivalent to the period of such delay. The provisions of this
Section L shall not operate to excuse Tenant from prompt payment of rent,
additional rent or any other payments required by the terms of this Lease.
M. Damage or Destruction
If all or any part of the Premises shall be damaged or destroyed by fire
or other casualty, this Lease shall continue in full force and effect, unless
terminated as hereinafter provided. Notwithstanding anything to the contrary
contained in this section or elsewhere in this Lease, Landlord may terminate
this Lease by sending written notice to Tenant within 30 days following such
damage or destruction if:
1. The Premises or the building in which the Premises is located shall
be destroyed or damaged as a result of an occurrence which is not
covered by Landlord's insurance; or
2. The Premises shall be damaged or destroyed during the last twelve
(12) months of the term or any renewals thereof; or
3. Any or all of the buildings or common areas of the Xxxx Industrial
Commons are damaged (whether or not the Premises are damaged) to
such an extent that, in the sole judgment of Landlord, Xxxx
Industrial Commons cannot be operated as an economically viable unit.
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N. Insurance
Tenant covenants that it will carry and maintain automobile liability
insurance with bodily injury limits of $1,000,000 each person and $1,000,000
each accident, property damage limit of $1,000,000, naming Landlord as an
additional insured.
Tenant shall carry and maintain during the term of this Lease, at
Tenant's sole expense, comprehensive general liability insurance in a combined
single limit amount of not less than $1,000,000 per occurrence for bodily injury
or death of any person or persons on the Premises or property damage to the
Premises and property damage and a $5,000,000 umbrella policy, insuring both
Landlord and Tenant against liability arising out of the use, occupancy and
maintenance of the Premises.
Tenant covenants that it will carry Workers' Compensation Insurance and
Employer's Liability Insurance in an amount in accordance with the laws of the
state in which the Tenant may be required to pay compensation.
Insurance certificates must be obtained and delivered to Landlord within
10 days of possession of Premises, and must provide evidence that Landlord has
been added as an insured and that required policy limits are in force. Current
Certificates shall be provided to Landlord during the term of Lease. Tenant
shall make available to Landlord, upon request, documents indicating that
insurance premiums on the above-described policy have been paid.
O. Maintenance, Repair, and Alteration
Tenant, at its own expense, shall keep and maintain the Premises in as
good order, condition and state of repair as when received normal wear and tear
excepted.
Tenant shall make no alterations, additions, or improvements to the
Premises; without first obtaining the prior written consent of Landlord. All
alterations, additions, and improvements made by Tenant shall become the
property of the Landlord upon the making thereof and shall be surrendered to
Landlord upon the termination of this Lease without compensation to Tenant.
Within a reasonable period after receipt of written notice from the
Tenant of the need therefor, Landlord shall make necessary structural repairs to
the roof, exterior walls (excluding the exterior of and the frames surrounding
all windows, door, plate glass and signs) of the Premises; necessary repairs to
plumbing, pipes and conduits located outside the Premises or in the Common
Areas; and necessary repairs to sidewalks, parking areas and curbs. Landlord
shall not be required to make any repairs where such repairs are made necessary
by any act or omission or negligence of Tenant, or concessionaire of Tenant, or
their respective employees, agents, invites, licensees, visitors or contractors,
or by fire or other casualty or condemnation (except as provided in section (M).
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If (i) Tenant does not repair the Premises properly as required
hereunder and to the reasonable satisfaction of Landlord, or (ii) Landlord, in
the exercise of its sole discretion, determines that emergency repairs are
necessary to the Premises, or (iii) repairs or replacements to the Xxxx
Industrial Commons, the building or the Premises are made necessary by any act
or omission or negligence of Tenant, its agents, employees, concessionaires,
contractors, invites, licensees or visitors, then in any such event Landlord may
make such repairs without liability to Tenant for loss or damage that occurs to
Tenant's equipment, fixtures, or other property or to Tenant's business by
reason thereof, and Tenant shall pay Landlord upon demand the total cost of such
repairs plus interest in the amount of the lesser of (i) sixteen percent (16%)
per annum or (ii) the maximum interest rate permitted by law, from the date such
costs are incurred by Landlord until repaid by Tenant.
If any or all of the Premises require repair(s) valued at more than the
sum of 12 months Rent, Landlord, at its option, may perform the repairs or may
terminate this Lease by sending 30 days written notice to Tenant. Such
termination is to be effective 30 days after such notice.
P. Liens
1. Mechanics' and materialmen's liens
Tenant shall keep the Premises and the Xxxx Industrial Commons free
and clear from any and all liens, encumbrances, claims, or demands for
work performed, material furnished, or operations conducted at the
request of Tenant.
2. Equipment and trade fixture liens
Tenant agrees that all equipment and trade fixtures installed in and
on the Premises during the term of this Lease or any extension of this
Lease shall not be made the subject of any lien or encumbrance, except
those given to secure purchase money, security interests in such
equipment or trade fixtures. All equipment and trade fixtures so
installed by or for Tenant shall be deemed to be personal property and
shall not become a part of the Premises. However, at the end of the term
of this Lease, or any extension to this Lease, Tenant shall be
responsible for any damage to the Premises that may be occasioned by the
installation or removal of such trade fixtures and equipment.
Landlord agrees that it shall execute and deliver a Landlord's
subordination to the holder of any such security interest the effect of
which shall subordinate Landlord's lien with respect to such equipment
and trade fixtures.
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Q. Inspection/Access
Landlord or its representative shall have the right, but not the
duty, to enter the Premises at any reasonable time to inspect the Premises for
the purpose of determining whether Tenant is complying with the terms of this
Lease or any other purpose to protect Landlord's interest in the Premises.
Landlord and/or Landlord's contractors shall have security and maintenance
access at all times.
R. Taxes and Utilities
Landlord shall pay all real estate taxes imposed upon the Premises by
reason of ownership. Tenant shall pay prior to delinquency all taxes levied
against or assessed upon its trade fixtures, furnishings, equipment and all
other personal property of Tenants contained in the Premises or which arise out
of Tenant's possession or use of the Premises, together with any penalties or
interest which may be assessed therewith.
All utilities are included in the monthly rental.
Voice telephone service (other than call center or other constant
use) will be provided at a base charge of $500 plus $10 for each extension for
the first 50 estensions. Any extensions over 50 will be billed at $20 per
extension. Long distance will be billed at cost to Landlord (inclusive of
applicable charges, fees and taxes) plus $.02 per minute. Service for fax, modem
or other non-voice use by one extension for more than 90 minutes per day is
available upon payment of installation charges and monthly fees. Tenant may use
existing instruments in place, however, any additional instruments or
replacements will be at Tenant's cost. All costs of programming, wiring or
moving for Tenant's phones will be billed to Tenant.
Landlord makes no representation or warranty that any services or
utilities will be free from shortages, failures or interruptions caused by
repairs, maintenance, replacements, changes of service, labor controversies,
accidents or other causes beyond the Landlord's control and Landlord shall not
be liable to Tenant for any such shortages, failures or interruptions. Overtime
charges may be assessed for service at times not listed and on holidays. Prior
arrangements are necessary for weekend or holiday availability. Landlord
reserves the right, with reasonable notification to Tenant, to modify services
provided to Tenant by Landlord.
S. Termination and Default
Upon the expiration of the term of this Lease, the Lease shall
automatically terminate unless Tenant has elected to extend the lease pursuant
to the terms and provisions of paragraph (S). Landlord may terminate the Lease
prior to the expiration of the Lease term if Tenant fails to perform any of the
covenants set forth herein, by delivering notice of its intention to terminate
to Tenant 10 days prior to the date in which such termination is to become
effective. Upon the termination of this Lease, all of Tenant's rights in the
Premises shall cease and Landlord, or its successors or assigns may re-enter and
take possession of the Premises, evict Tenant, and shall hold the Premises free
of all claim of Tenant. Notwithstanding such termination upon default
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by Tenant, Landlord shall have the right to exercise such other rights and
remedies as are provided by law or in equity.
T. Renewal Option For First Renewal Term
Provided Tenant is not in default, Tenant shall have the right, to be
exercised as provided below, to extend the term of this Lease for one successive
period of twelve (12) months.
Tenant shall exercise its right to renewal in the following manner:
1. At least three (3) months prior to the expiration of the initial
term, Tenant shall notify Landlord in writing of its election to
exercise the right to renew the term of this Lease; and
2. On the giving of such notice, this Lease shall, subject to the
terms of this provision, be deemed to be renewed and the term
thereof renewed for a period of twelve (12) months from the date
of expiration of the initial term, without the execution of any
further lease or instrument, subject to Landlord's option to
increase the rent a maximum of five percent (5%).
U. Renewal Option For Second, Third and Fourth Renewal Term
Provided Tenant is not in default, Tenant shall have the right, to be
exercised as provided below, to extend the term of this Lease for three (3)
successive periods of twelve (12) months each on the following terms and
conditions:
1. No default is existing or continuing in the performance of any
of the terms of this Lease;
2. Each renewal term shall be on the same terms covenants and
conditions as provided in this Lease except that there shall be no
privilege to extend the term of this Lease for any period of time
beyond the expiration of the third renewal term and subject in
each renewal term to the Landlord's option to increase the rent
equal to the rental rate which Landlord is then leasing comparable
space in the Xxxx Industrial Commons to new Tenant's above the rent
charged in the previous term; and
3. With respect to the second and each subsequent renewal term,
this lease shall have previously been renewed for the first and
each immediately preceding renewal term respectively.
Tenant shall exercise its right to renewal in the following manner:
1. At least three (3) months prior to the expiration of the
initial term, and at least three (3) months prior to the expiration
of any extended term, Tenant
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shall notify Landlord in writing of its election to exercise the
right to renew the term of this Lease for the second, third and
fourth renewal term, as the case may be; and
2. On the giving of such notice, this Lease shall subject to the
terms of this provision, be deemed to be renewed and the term
thereof renewed for a period of twelve (12) months from the date of
expiration of the initial renewal term or from the date of
expiration of the renewal term during which such notice is given,
as the case may be, without the execution of any further lease or
instrument, provided however, that notwithstanding anything to the
contrary set forth herein the Lease term for the second or third
renewal term, as the case may be, shall terminate 6 months after
either Landlord or Tenant advises the other, in writing, of its
intent to terminate under the provisions of this paragraph.
V. No Waiver of Default
Failure of Landlord to exercise any of the remedies afforded it by
virtue of this Lease or which are otherwise available to it shall not constitute
a waiver of any default hereunder and the acceptance of rent by the Landlord
shall not constitute a waiver of any default which has taken place at any time
prior to such acceptance.
W. Surrender of Premises
At the expiration of this Lease, Tenant shall surrender the Premises
in good condition and repair, normal wear and tear excepted, and Tenant shall
surrender all keys for the Premises to Landlord at the place then fixed for
payment of rent and shall inform Landlord of all combinations on locks, safes
and vaults, if any, in the Premises. Tenant's obligation to observe or perform
this covenant shall survive the expiration or other termination of this Lease.
Prior to the expiration or sooner termination of this Lease, Tenant
shall remove any and all trade fixtures, equipment and other unattached items
which Tenant may have left in the Premises and which are susceptible to being
moved without damage to the building. Tenant shall repair any damage to the
Premises caused by its removal of such fixtures and movables. In the event
Tenant does not make such repairs, Tenant shall be liable for and agrees to pay
Landlord's costs and expense in making such repairs, together with a sum equal
to twenty percent (20%) of such cost and expenses to cover Landlord's overhead
in making such repairs for Tenant. Tenant shall not remove any plumbing or
electrical fixtures or equipment, heating or air conditioning equipment, floor
coverings (included, but not limited to wall to wall carpeting, walls or
ceilings, all of which shall be deemed to constitute a part of the interest and
estate of the Landlord), nor shall Tenant remove any fixture or machinery that
were furnished or paid for by Landlord whether initially installed or replaced.
The Premises shall be left in a broomclean condition. If Tenant shall fail to
remove its trade fixtures and other property not as provided in this section (W)
such fixtures and other property not removed by Tenant shall be deemed abandoned
by Tenant and, at the option of the Landlord, shall become the property of the
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Landlord, or may be removed by Landlord at the Tenant's expense, or sold or
otherwise disposed of, in which event the proceeds of such sale or other
disposition shall belong to Landlord.
X. Holdover by Tenant
In the event that Tenant shall hold over in the Premises after any
termination of this Lease pursuant to the provisions hereof, or any expiration
of the term (or extension thereof), such holding over shall be deemed to have
created a tenancy from month-to-month terminable on thirty (30) days written
notice by either party, subject to all the terms and provisions of this Lease.
However, the monthly rental during such hold over term shall be computed on the
basis of (1/8) of the sum of all rents payable by Tenant to Landlord during the
last twelve (12) months of the term (including, but not limited to, rent) and
all other additional charges provided by this Lease. If Tenant fails to
surrender the Premises upon termination of this Lease, in addition to any other
liabilities to Landlord accruing therefrom, Tenant shall indemnify Landlord and
hold Landlord harmless from loss or liability resulting from such failure,
including, without limitation, any claims made by any succeeding Tenant founded
on such failure.
X. Xxxx of Landlord for Rent, Taxes and Other Sums
Landlord shall have and Tenant hereby grants, a security interest in
any furnishings, equipment, fixtures, inventory, accounts receivable, and other
personal property of any kind belonging to Tenant, or the equity if Tenant
herein, located on or derived from activities conducted in or upon the Premises.
The security interest is granted for the purpose of securing the payment of
rent, other charges, assessments, penalties and damages herein covenanted to be
paid by Tenant, and for the purpose of securing the performance of all other
obligations of the Tenant hereunder. Upon Tenant's default or breach of any
covenants of this Lease, Landlord shall have all remedies available under the
laws of the State of Kentucky, including, but not limited to, the right to take
possession of the above mentioned property and dispose of it by sale in a
commercially reasonable manner. Tenant hereby agrees to sign a Financing
Statement, at Landlord's request, for the purpose of serving notice to third
parties of the security interest herein granted.
Z. Provisions Severable
If any terms or provisions of this Lease or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be effected thereby and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
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AA. Governing Law
This Lease shall be governed and construed in accordance with the
laws of the Commonwealth of Kentucky.
BB. Binding Agreement
This lease will be binding upon and insure to the benefit of Landlord
and Tenant and their respective successors and assigns. Section headings used
herein are for convenience only and will not affect the construction of this
Lease. Any provision herein that may prove to be limited or unenforceable under
applicable law shall not affect the validity or enforcement of the remainder of
such provision or of any other provision.
CC. Notices
Any communications between Landlord and Tenant, payments, and notices
to be given or made shall be mailed to Landlord at 0000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx, Facilities Manager, and Tenant at
0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxx or to such
other addresses as either party may indicate in writing.
DD. Lease as Entire Agreement
This Lease contains all of the agreements between the parties hereto,
and it may not be modified other than by agreement in writing signed by all
parties hereto, as their successors in interest. All prior conversations or
writings between the parties hereto or their representatives with respect to the
Premises are merged herein and extinguished. Tenant acknowledges that it has not
relied on any representations or statements of opinion or fact by Landlord or
its agents or employees in entering into this lease other than as may be
expressly provided herein. The terms, covenants and conditions contained herein
shall insure to the benefit of, and be binding upon, the Landlord and Tenant and
their respective successors and assigns, except as may be otherwise expressly
provided in this Lease.
EE. Broker's Commission
Tenant warrants that it has had no dealings with any broker or agent
in connection with this Lease and covenants to pay, hold harmless and indemnify
Landlord from and against any and all costs, expense or liability for any
compensation, commissions and charges claimed by any broker or agent with
respect to this Lease or the negotiation thereof.
FF. Time is of the Essence.
Time is of the essence of this Lease.
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GG. Condemnation
If the whole of the Premises shall be taken by or pursuant to
governmental authority or through exercise of the right of eminent domain or
sold under threat thereof, this Lease shall terminate effective upon the date of
the taking or sale, respectively, and all obligations of Landlord and Tenant
otherwise accruing after the date of such termination, shall be discharged. If a
part of the Premises is so taken or sold and the balance of the Premises is not
suitable for the continued operation of such business as is permitted by this
Lease, Landlord or Tenant may elect to terminate this Lease provided written
notice of such election is given by landlord or Tenant, respectively, to the
other, within thirty (30) days after the date of such taking or sale. In the
event no such notice of termination is given, this Lease shall continue but the
rent hereunder shall be reduced in proportion to the reduction of the area of
the Premises caused by such taking. If a part of the building is which the
Premises is located is so taken or sold with the result that, in the reasonable
opinion of Landlord, it is not practical or not commercially reasonable to
operate the balance of the Building for lease space, then Landlord may elect to
terminate this Lease by written notice of such election given to Tenant within
thirty (30) days of such taking or sale. All proceeds of any condemnation award
or sale made under threat of condemnation shall be the property of Landlord;
provided, however, that Tenant shall be entitled to any award for loss of or
damage to Tenant's trade fixtures and removal of personal property.
HH. Subordination and Attornment
This Lease, at Landlord's option, shall be subordinate to any
mortgage, or any other hypothecation or security now or hereafter placed upon
the real property of which the Premises are a part and to any and all advances
made on the security thereof and to any and all renewals, modifications,
consolidations, replacements and extensions thereof. Notwithstanding such
subordination, Tenant's right to quiet possession of the Premises shall not be
disturbed if Tenant is not in default and so long as Tenant shall pay the rent
and observe and perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms. 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 to or subsequent to the date of such mortgage or the
date of recording thereof. Tenant agrees to execute and Landlord covenants to
obtain the execution of any mortgagee to instruments reasonably required to
effectuate such attornment, subordination and non-disturbance agreement or
priority agreement, as the case may be.
II. Attorneys Fees.
If either party brings an action to enforce the terms hereof or
declare rights hereunder, the prevailing party in any such action, trial or
appeal shall be entitled to its reasonable attorney's fees to be paid by the
losing party.
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JJ. Waiver of Subrogation
Landlord and Tenant waive any all claim and right of recovery against
the other and all persons claiming by, through or under them to the extent that
such claim or right of recovery is covered by insurance, and all insurance
policies carried by either party covering the Demised Premises, including,
without limitation, contents, fire and casualty insurance, shall expressly
waiver any right of the insurer to proceed against the other party.
IN WITNESS WHEREOF, each party has caused this Lease to be executed
this 27th day of April 1998.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx Xxxx /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------- -----------------------------------
By:
Chairman
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
By:
CEO
-----------------------------------
Its:
15
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SCHEDULE "I"
Landlord's Improvements
Landlord shall make the following improvements: None.
Existing partitions in place are available for Tenant's use at no additional
charge during the term of the Lease. Any expense for reconfiguring, maintenance,
repair or removal will be borne by Tenant.
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FIRST AMENDMENT TO LEASE
Amendment made as of May 1, 1998, between Xxxxx Xxxx Machine Co., of 0000 X.
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the third floor for an Operations Center, as follows:
Section B: The first sentence of Section B is amended in its entirety
to read: Tenant in consideration of the Lease, agrees to pay to Landlord in
check or certified funds the sum of $3,601 per month as rent beginning on the
Commencement Date, and the sum of $5,261 per month as rent beginning on May 1,
1998 and continuing every month thereafter during the term of the Lease.
Section C: The first sentence of Section C is hereby amended in its
entirety to read: The Premises shall consist of the space marked on Exhibits A
and A-1 which are incorporated here by reference. The second sentence of Section
C is hereby amended in its entirety to read: The Premises contain approximately
8,240 square feet of office area. The third paragraph of Section C (Item 2) is
amended in its entirety to read: Assigned parking for up to 25 cars in the 10th
street parking lot; plus two spots in the parking garage.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
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c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx Xxxx /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------- -----------------------------------
By:
Chairman
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
By:
CEO
-----------------------------------
Its:
19
SECOND AMENDMENT TO LEASE
Amendment made as of June 1, 1998, between Xxxxx Xxxx Machine Co., of 0000 X.
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the second floor adjacent to its existing Premises, as follows:
Section B: The first sentence of Section B is amended in its entirety to
read: Tenant in consideration of the Lease, agrees to pay to Landlord in check
or certified funds the sum of $3,601 per month as rent beginning on the
Commencement Date, $5,261 beginning on May 1, 1998 and $6,079 beginning on June
1, 1998 and continuing every month thereafter during the term of the Lease.
Section C: The first sentence of Section C is hereby amended in its
entirety to read: The Premises shall consist of the space marked on Exhibits A
and A-1 which are incorporated here by reference. The second sentence of Section
C is hereby amended in its entirety to read: The Premises contain approximately
9,486 square feet of office area. The third paragraph of Section C (Item 2) is
amended in its entirety to read: Assigned parking for up to 28 cars in the 10th
street parking lost; plus two spots in the parking garage.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
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c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx Xxxx /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------- -----------------------------------
By:
Chairman
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
By:
CEO
-----------------------------------
Its:
21
THIRD AMENDMENT TO LEASE
Amendment made as of July 20, 1998, between Xxxxx Xxxx Machine Co., of 0000 X.
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the second floor adjacent to its existing Premises, as follows:
Section B: The first sentence of Section B is amended in its entirety
to read: Tenant in consideration of the Lease, agrees to pay to Landlord in
check or certified funds the sum of $3,601 per month as rent beginning on the
Commencement Date, $5,261 beginning on May 1, 1998, $6,079 beginning on June 1,
1998 and $7078 beginning on July 20, 1998 and continuing every month thereafter
during the term of the Lease.
Section C: The first sentence of Section C is hereby amended in its
entirety to read: The Premises shall consist of the space marked on Exhibits A,
A-1 and A-2 which are incorporated here by reference. The second sentence of
Section C is hereby amended in its entirety to read: The Premises contain
approximately 10909 square feet of office area. The third paragraph of Section C
(Item 2) is amended in its entirety to read: Assigned parking for up to 33 cars
in the 10th street parking lot; plus two spots in the parking garage.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx Xxxx /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------- ----------------------------------
By:
Chairman
----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxxx
-------------------------- ----------------------------------
By:
CEO
----------------------------------
Its:
22
FOURTH AMENDMENT TO LEASE
Amendment made as of September 1, 1998, between Xxxxx Xxxx Machine Co., of 0000
X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the first floor, as follows: In addition to the Premises and rentals
provided for in the Lease, as previously amended, Tenant may add to its
Premises, on a month to month basis, the space marked on Exhibit A-3,
attached and incorporated here by reference, for an additional payment of
$505 in rent per month during the term of this occupancy. Tenant or
Landlord may end this month to month tenancy upon 30 days prior written
notice.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxxxxx Xxxxx
-------------------------------- -----------------------------------
By:
Director of Operations
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxx X. Xxxxxxx /s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
VP/Gen. Counsel By:
CEO
-----------------------------------
Its:
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FIFTH AMENDMENT TO LEASE
Amendment made as of November 1, 1998, between Xxxxx Xxxx Machine Co., of 0000
X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the first floor, as follows: In addition to the Premises and rentals
provided for in the Lease, as previously amended, Tenant may add to its
Premises, on a month to month basis, the space marked on Exhibit A-4,
attached and incorporated here by reference, for an additional payment of
$1036.25 in rent per month during the term of this occupancy. Tenant or
Landlord may end this month to month tenancy upon 30 days prior written
notice.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxx X. Xxxxxx, Xx. /s/ Xxxxxxxxx Xxxxx
-------------------------------- -----------------------------------
By:
Director of Operations
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxxx
--------------------------------- -----------------------------------
Assistant Secretary By:
General Counsel
CFO
-----------------------------------
Its:
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SIXTH AMENDMENT TO LEASE
Amendment made as of January 1, 1999, between Xxxxx Xxxx Machine Co., of 0000 X.
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the second floor, as follows: In addition to the Premises and rentals
provided for in the Lease, as previously amended, Tenant may add to its
Premises the space marked on Exhibit A-5, attached and incorporated here by
reference, for an additional payment of $1123.75 in rent per month during
the term of this occupancy. In addition, since Tenant now effectively
occupies the entire second floor, the common area of 2,833 square feet is
included in the Lease Premises for an additional $361.00 per month. The
total rent for all HSA Premises as of January 1, 1998 is $10,104.00 per
month.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx X. Xxxx /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------- -----------------------------------
By:
Chairman
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxx Xxxxxxx /s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
By:
1/11/99
-----------------------------------
Its:
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SEVENTH AMENDMENT TO LEASE
Amendment made as of March 15, 1999, between Xxxxx Xxxx Machine Co., of 0000 X.
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, (herein referred to as
Lessor), and High Speed Access Corp, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (herein referred to as Lessee.)
RECITALS
1. Lessor and Lessee entered into a lease on April 1, 1998 (the "Lease").
2. It is the desire of the parties to amend the Lease to add space located on
the first floor, as follows: In addition to the Premises and rentals
provided for in the Lease, as previously amended, Tenant may add to its
Premises the space marked on Exhibit A-7, attached and incorporated here by
reference, for an additional payment of $159.38 in rent per month during
the term of this occupancy.
3. In consideration of the mutual covenants contained herein, the parties
agree as follows:
a) Lessor and Lessee hereby adopt, ratify, and confirm the Lease as it is
hereby amended.
b) These provisions shall extend to and be binding on the heirs, legal
representatives, successors, and assigns of both parties hereto.
c) This amendment shall be incorporated into the Lease and all other terms
of the Lease shall remain in full force and effect, unaltered and unchanged by
this subsequent agreement.
In witness whereof, the parties have executed this agreement at Louisville,
Kentucky the day and year first above written.
ATTEST: XXXXX XXXX MACHINE CO.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxxxxx Xxxxx
-------------------------------- -----------------------------------
By:
Director of Operations
-----------------------------------
Its:
ATTEST: HIGH SPEED ACCESS CORP.
/s/ Xxxx X. Xxxxxxx /s/ Geporge Xxxxxxx
-------------------------------- -----------------------------------
Assistant Secretary By:
CFO
-----------------------------------
Its:
