1
EXHIBIT NO. 10(m)
*********ELECTRONIC COPY OF EXECUTION DOCUMENT***********
LEASE AGREEMENT
THIS LEASE is executed this 9th day of March____, 1999, by and
between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and PINNACLE DATA SYSTEMS, INC., an Ohio corporation ("Tenant")
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
-----------------------------
SECTION 1.01. BASIC LEASE PROVISIONS AND DEFINITIONS.
A. Leased Premises (shown cross hatched on EXHIBIT A attached hereto):
0000 Xxxx Xxxx, Xxxxxxxxx, XX 00000; (the "Building"); located in
Rickenbacker Industrial Park (the "Park")
B. Rentable Area: approximately 56,601 rentable square feet
Landlord shall use commercially reasonable standards, consistently
applied, in determining the Rentable Area and the rentable area of
the Building. Landlord's determination of Rentable Area shall
conclusively be deemed correct for all purposes hereunder.
C. Tenant's Proportionate Share: 5.55%
D. Minimum Annual Rent:
Years 1 - 5 $202,065.60 per year
Years 6 - 10 $232,630.08 per year
E. Monthly Rental Installments:
Months 1 - 60 $ 16,838.80 per month
Months 61 - 120 $ 19,385.84 per month
F. Lease Term: Ten (10) years
G. Target Commencement Date: March 25, 1999
H. Security Deposit: $18,112.32
I. Guarantor(s): None
J. Broker(s): Duke Realty Limited Partnership representing Landlord and
none representing Tenant
K. Permitted Use: Warehousing, storage, servicing, light assembly,
office and related purposes
L. Address for notices:
Landlord: Duke Realty Limited Partnership
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
0
Xxxxxx, XX 00000
Attn: Property Manager
Tenant: Pinnacle Data Systems, Inc.
0000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Address for rental and other payments:
Duke Realty Limited Partnership
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
SECTION 1.02. LEASED PREMISES. Landlord hereby leases to Tenant and
Tenant leases from Landlord, under the terms and conditions herein, the Leased
Premises.
ARTICLE 2 - TERM AND POSSESSION
-------------------------------
SECTION 2.01. TERM. The term of this Lease ("Lease Term") shall be
for the period of time specified in Item F of the Basic Lease Provisions and
shall commence on (i) the Target Commencement Date; or, if later, (ii) thirty
(30) days after Landlord has notified Tenant, in writing, that the current
tenant in the Leased Premises has vacated the Leased Premises and Landlord can
begin work on the Tenant Finish Improvements in the Leased Premises; such notice
as defined herein shall be delivered to Tenant no later than March 31, 1999. In
the event such notice has not been delivered to Tenant by March 31, 1999, Tenant
has the option to terminate this Lease in its entirety. Tenant shall exercise
its option to terminate by delivering written notice thereof to Landlord no
later than April 7, 1999. In the event Tenant fails to notify Landlord of its
desire to terminate this lease as defined herein, by April 7, 1999, such option
shall be thereby waived, deleted in its entirety and considered null and void
and all other provisions of this Lease shall remain in full force and effect.
Upon delivery of possession of the Leased Premises to Tenant, Tenant shall
execute a letter of understanding acknowledging (i) the Commencement Date of
this Lease, and (ii) that Tenant has accepted the Leased Premises subject to
latent defects of which Tenant shall give written notice to Landlord within six
(6) months after the Commencement Date hereof. If Tenant takes possession of and
occupies the Leased Premises, Tenant shall be deemed to have accepted the Leased
Premises subject to latent defects of which Tenant shall give written notice to
Landlord within six (6) months of the Commencement Date hereof and that the
condition of the Leased Premises and the Building was at the time satisfactory
and in conformity with the provisions of this Lease in all respects. Landlord
agrees that to the best of Landlord's actual knowledge, upon the Commencement
Date of this Lease, the Building is structurally sound and all systems servicing
the Leased Premises are in good working condition, order and repair subject to
latent defects of which Tenant shall give written notice to Landlord within six
(6) months of the commencement date hereof.
SECTION 2.02. CONSTRUCTION OF TENANT IMPROVEMENTS. Landlord agrees to
perform and complete at Landlord's sole cost and expense the work on the Tenant
Finish Improvements in the Leased Premises in accordance with Tenant's plans and
specifications which have been mutually agreed upon by both Landlord and Tenant
and attached hereto as EXHIBIT B (the "Tenant Finish Improvements") subject to
events and delays due to causes beyond its reasonable control. Upon written
notice from Landlord that the current tenant in the Leased Premises has vacated
the Leased Premises and Landlord can begin work on the Tenant Finish
Improvements in the Leased Premises, Tenant shall have the right and privilege
of going onto the Leased Premises during the same thirty (30) day period to
complete interior decoration work and to prepare the Leased Premises for its
occupancy, provided, however, that its schedule in so doing shall be
communicated to Landlord and the approval of Landlord secured so as not to
interfere with other work of Landlord being carried on at the time; and provided
further that Landlord shall have no responsibility or liability whatsoever for
any loss or damage to any of Tenant's leasehold improvements, fixtures,
equipment and any other materials installed or left in the Leased Premises.
3
SECTION 2.03. SURRENDER OF THE PREMISES. Upon the expiration or
earlier termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair.
Tenant shall also remove its personal property, trade fixtures and any of
Tenant's alterations designated by Landlord, promptly repair any damage caused
by such removal, and restore the Leased Premises to the condition existing upon
the Commencement Date, reasonable wear and tear and damage by hazards for which
Landlord is required under this Lease to carry insurance excepted. If Tenant
fails to do so, Landlord may restore the Leased Premises to such condition at
Tenant's expense, Landlord may cause all of said property to be removed at
Tenant's expense, and Tenant hereby agrees to pay all the costs and expenses
thereby reasonably incurred. All Tenant property which is not removed within ten
(10) days following Landlord's written demand therefor shall be conclusively
deemed to have been abandoned by Tenant, and Landlord shall be entitled to
dispose of such property at Tenant's cost without thereby incurring any
liability to Tenant. The provisions of this section shall survive the expiration
or other termination of this Lease.
SECTION 2.04. HOLDING OVER. If Tenant retains possession of the
Leased Premises after the expiration or earlier termination of this Lease,
Tenant shall become a tenant from month to month at 150% of the Monthly Rental
Installment in effect at the end of the Lease Term, and otherwise upon the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent in such event shall not result in a renewal of
this Lease, and Tenant shall vacate and surrender the Leased Premises to
Landlord upon Tenant being given thirty (30) days' prior written notice from
Landlord to vacate whether or not said notice is given on the rent paying date.
This Section 2.04 shall in no way constitute a consent by Landlord to any
holding over by Tenant upon the expiration or earlier termination of this Lease,
nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
----------------
SECTION 3.01. BASE RENT. Tenant shall pay to Landlord the Minimum
Annual Rent in the Monthly Rental Installments, in advance, without deduction or
offset, beginning on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installment for partial calendar months shall be prorated based upon a
three hundred and sixty (360) day calendar year.
SECTION 3.02. ADDITIONAL RENT. In addition to the Minimum Annual Rent
Tenant shall pay to Landlord for each calendar year during the Lease Term, as
"Additional Rent," Tenant's Proportionate Share of all costs and expenses
incurred by Landlord during the Lease Term for Real Estate Taxes and Operating
Expenses for the Building and common areas (collectively "Common Area Charges").
"Operating Expenses" shall mean all of Landlord's annual expenses for
operation, repair, replacement and maintenance to keep the Building and common
areas in good order, condition and repair (including all additional direct costs
and expenses of operation and maintenance of the Building which vary with
occupancy and which Landlord reasonably determines it would have paid or
incurred during such year if the Building had been fully occupied), including,
but not limited to, management or administrative fees; utilities; stormwater
discharge fees; license, permit, inspection and other fees; fees and assessments
imposed by any covenants or owners' association; security services; insurance
premiums and deductibles and maintenance, repair and replacement of the
driveways, parking areas (including snow removal), exterior lighting, landscaped
areas, walkways, curbs, drainage strips, sewer lines, exterior walls,
foundation, structural frame, roof and gutters and any and all Foreign Trade
Zone fees. The cost of any capital improvement shall be amortized over the
useful life of such improvement (as reasonably determined by Landlord in
accordance with generally accepted accounting principles), and only the current
amortized portion shall be included in Operating Expenses.
4
"Real Estate Taxes" shall include any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or
common areas (or against Landlord's business of leasing the Building) by any
authority having the power to so charge or tax, together with reasonable costs
and expenses of contesting the validity or amount of Real Estate Taxes, (whether
charged by Landlord's counsel or representative; provided, however, that said
fees are reasonably comparable to the fees charged for similar services by
others not affiliated with Landlord, but in no event shall said fees exceed
thirty-three percent (33%) of the good faith estimated tax savings).
Additionally, Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all personal property
of Tenant contained in the Leased Premises. Landlord agrees to pass through the
benefit of any property tax abatement to Tenant on a pro rata basis.
SECTION 3.03. PAYMENT OF ADDITIONAL RENT. Landlord shall make a good
faith estimate of the total amount of Additional Rent to be paid by Tenant
during each calendar year of the Lease Term, pro-rated for any partial years.
Commencing on the Commencement Date, Tenant shall pay to Landlord each month, at
the same time the Monthly Rental Installment is due, an amount equal to
one-twelfth (1/12) of the estimated Additional Rent for such year. Within a
reasonable time after the end of each calendar year, Landlord shall submit to
Tenant a statement of the actual amount of such Additional Rent and within
thirty (30) days after receipt of such statement, Tenant shall pay any
deficiency between the actual amount owed and the estimates paid during such
calendar year. In the event of overpayment, Landlord shall credit the amount of
such overpayment toward the next installments of Minimum Rent.
SECTION 3.04. LATE CHARGES. Tenant acknowledges that Landlord shall
incur certain additional unanticipated administrative and legal costs and
expenses if Tenant fails to timely pay any payment required hereunder.
Therefore, in addition to the other remedies available to Landlord hereunder, if
any payment required to be paid by Tenant to Landlord hereunder shall become
overdue, such unpaid amount shall bear interest from the due date thereof to the
date of payment at the prime rate (as reported in the WALL STREET JOURNAL of
interest ("Prime Rate") plus six percent (6%) per annum. Provided however, that
such penalty shall not apply if there is then no continuing default by Tenant
under this Lease, and landlord shall provide Tenant with a written courtesy
notice of the first monetary default by Tenant in any consecutive twelve (12)
month period and Tenant shall have an additional five (5) days after the date of
such notice to cure such default before Landlord applies its late charges under
this subparagraph; provided, however, that Landlord shall not be required to
give such courtesy notice more than one (1) time with respect to any particular
default, nor more than two (2) times in any consecutive twelve (12) month period
with respect to any payment defaults in the aggregate.
ARTICLE 4 - SECURITY DEPOSIT
----------------------------
Tenant, upon execution of this Lease, shall deposit with Landlord the
Security Deposit as security for the performance by Tenant of all of Tenant's
obligations contained in this Lease. In the event of a default by Tenant
Landlord may apply all or any part of the Security Deposit to cure all or any
part of such default; and Tenant agrees to promptly, upon demand, deposit such
additional sum with Landlord as may be required to maintain the full amount of
the Security Deposit. All sums held by Landlord pursuant to this section shall
be without interest. At the end of the Lease Term, provided that there is then
no uncured default, Landlord shall return the Security Deposit to Tenant within
thirty (30) days of the expiration or earlier termination of the Lease Term.
ARTICLE 5 - USE
---------------
SECTION 5.01. USE OF LEASED PREMISES. The Leased Premises are to be
used by Tenant solely for the Permitted Use and for no other purposes without
the prior written consent of Landlord.
5
SECTION 5.02. COVENANTS OF TENANT REGARDING USE. Tenant shall (i) use
and maintain the Leased Premises and conduct its business thereon in a safe,
careful, and lawful manner, (ii) comply with all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental authority or
agency, now in force or which may hereafter be in force, including those which
shall impose upon Landlord or Tenant any duty with respect to or triggered by a
change in the use or occupation of, or any improvement or alteration to, the
Leased Premises, and (iii) comply with and obey all reasonable directions of the
Landlord, including any rules and regulations that may be adopted by Landlord
from time to time. Tenant shall not permit anything to be done in or about the
Leased Premises or common areas which constitutes a nuisance or which
unreasonably interferes with the rights of other tenants or injures them.
Landlord shall use commercially reasonable efforts to uniformly enforce any and
all rules and regulations of the Building. Tenant shall not overload the floors
of the Leased Premises. All damage to the floor structure or foundation of the
Building due to improper positioning or storage of items or materials by Tenant
shall be repaired by Landlord at the sole expense of Tenant, who shall reimburse
Landlord immediately therefor upon demand. Tenant shall not use the Leased
Premises, or allow the Leased Premises to be used, for any purpose or in any
manner which would invalidate any policy of insurance now or hereafter carried
on the Building or increase the rate of premiums payable on any such insurance
policy unless Tenant reimburses Landlord as Additional Rent for any increase in
premiums charged.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE. In addition to the
rights specified elsewhere in this Lease, Landlord shall have the following
rights regarding the use of the Leased Premises or the common areas, each of
which may be exercised without notice or liability to Tenant, (a) Landlord may
install such signs, advertisements, notices or tenant identification information
as it shall deem commercially reasonable, necessary or proper; (b) Landlord
shall have the right at any time to control, change or otherwise alter the
common areas as it shall deem necessary or proper and consistent with applicable
laws, regulations and ordinances; and (c) Landlord or Landlord's agent shall be
permitted to inspect or examine the Leased Premises at any reasonable time upon
reasonable notice (except in an emergency when no notice shall be required), and
Landlord shall have the right to make any repairs to the Leased Premises which
are necessary for its preservation; provided, however, that any repairs made by
Landlord shall be coordinated with Tenant except in the event of an emergency
and shall be at Tenant's expense, except as provided in SECTION 7.02 hereof.
Landlord shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
----------------------------------
Tenant shall obtain in its own name and pay directly to the
appropriate supplier the cost of all utilities and services serving the Leased
Premises. However, if any services or utilities are jointly metered with other
property, Landlord shall make a reasonable good faith determination of Tenant's
proportionate share of the cost of such utilities and services (at rates that
would have been payable if such utilities and services had been directly billed
by the utilities or services providers) and Tenant shall pay such share to
Landlord within fifteen (15) days after receipt of Landlord's written statement.
Except as otherwise provided herein, Landlord shall not be liable in damages or
otherwise for any failure or interruption of any utility or other Building
service and no such failure or interruption shall entitle Tenant to terminate
this Lease or withhold sums due hereunder. In the event of utility
"deregulation", Landlord shall choose the service provider.
Landlord represents it will use good faith commercially reasonable
efforts to minimize service disruptions and to restore such services as promptly
as possible. Notwithstanding anything in this Lease to the contrary, if (i) the
restoration of service is entirely within Landlord's control, (ii) Landlord
negligently fails to restore such service within a reasonable time, and (iii)
the Leased Premises are untenantable (meaning that Tenant is unable to use such
space in the normal course of its business for the use permitted under this
Lease) for more than five (5) consecutive business days, then Tenant shall
notify Landlord (and Landlord's lender, if any) in writing that Tenant intends
to xxxxx rent. If service has not been restored within five (5) days of
Landlord's receipt of Tenant's notice, then Minimum Annual Rent and Additional
Rent shall xxxxx on
6
a per diem basis for each day after such five (5) day period during which the
Leased Premises remain untenantable. Such abatement shall be Tenant's sole
remedy for Landlord's failure to restore service as set forth above, and Tenant
shall not be entitled to damages (consequential or otherwise) as a result
thereof.
ARTICLE 7 - MAINTENANCE AND REPAIRS
-----------------------------------
SECTION 7.01. TENANT'S RESPONSIBILITY. During Lease Term, Tenant
shall, at its own cost and expense, maintain the Leased Premises in good
condition, regularly servicing and promptly making all repairs and replacements
thereto, including but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors, sprinkler and
plumbing systems, and shall obtain a preventive maintenance contract on the
heating, ventilating and air-conditioning systems, and provide Landlord with a
copy thereof. The preventive maintenance contract shall meet or exceed
Landlord's standard maintenance criteria, and shall provide for the inspection
and maintenance of the heating, ventilating and air conditioning system on not
less than a semi-annual basis.
SECTION 7.02. LANDLORD'S RESPONSIBILITY. During the term of this
Lease, Landlord shall maintain in good condition and repair, and replace as
necessary, the roof, exterior walls, foundation and structural frame of the
Building and the parking and landscaped areas and lighting thereof and shall
clean and maintain the common areas (including parking areas) including, without
limitation, the removal of snow and ice, the costs of which shall be included in
Operating Expenses except those items for which Landlord is reimbursed by
insurance and/or paid pursuant to warranties; provided, however, that to the
extent any of the foregoing items require repair because of the negligence,
misuse, or default of Tenant, its employees, agents, customers or invitees,
Landlord shall make such repairs solely at Tenant's expense.
SECTION 7.03. ALTERATIONS. Tenant shall not permit alterations in or
to the Leased Premises unless and until the plans have been approved by Landlord
in writing, which approval shall not be unreasonably delayed or denied. As a
condition of such approval, Landlord may require Tenant to remove the
alterations and restore the Leased Premises upon termination of this Lease;
otherwise, all such alterations shall at Landlord's option become a part of the
realty and the property of Landlord, and shall not be removed by Tenant. Tenant
shall ensure that all alterations shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Building. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute a consent by Landlord to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record within thirty
(30) days after filing. Tenant shall indemnify Landlord from all costs, losses,
expenses and attorneys' fees in connection with any construction or alteration
and any related lien.
ARTICLE 8 - CASUALTY
--------------------
SECTION 8.01. CASUALTY. In the event of total or partial destruction
of the Building or the Leased Premises by fire or other casualty, Landlord
agrees to promptly restore and repair the Leased Premises; provided, however,
Landlord's obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be made by
Landlord, if any. Rent shall proportionately xxxxx during the time that the
Leased Premises or part thereof are unusable because of any such damage.
Notwithstanding the foregoing, if the Leased Premises are (i) so destroyed that
they cannot be repaired or rebuilt within one hundred eighty (180) days from the
casualty date; or (ii) destroyed by a casualty which is not covered by the
insurance required hereunder or, if covered, such insurance proceeds are not
released by any mortgagee entitled thereto or are insufficient to rebuild the
Building and the Leased Premises; then, in case of a clause (i) casualty, either
Landlord or Tenant may, or, in the case of a clause (ii) casualty, then Landlord
may, upon thirty (30) days' written notice to the other party, terminate this
Lease with respect to matters thereafter accruing. In the event of total or
partial destruction of the Building by fire or other casualty
7
which renders the Leased Premises untenantable, Landlord shall use commercially
reasonable efforts to assist Tenant in finding temporary space for Tenant's
business operations.
SECTION 8.02. FIRE AND EXTENDED COVERAGE INSURANCE. During the Lease
Term, Landlord shall maintain all risk coverage insurance on the Building, but
shall not protect Tenant's property on the Leased Premises; and, notwithstanding
the provisions of SECTION 9.01, Landlord shall not be liable for any damage to
Tenant's property, regardless of cause, including the negligence of Landlord and
its employees, agents and invitees. Tenant hereby expressly waives any right of
recovery against Landlord for damage to any property of Tenant located in or
about the Leased Premises, however caused, including the negligence of Landlord
and its employees, agents and invitees. Notwithstanding the provisions of
SECTION 9.01 below, Landlord hereby expressly waives any rights of recovery
against Tenant for damage to the Leased Premises or the Building which is
insured against under Landlord's all risk coverage insurance however such damage
is caused, including the negligence of Tenant and its employees, agents and
invitees. All insurance policies maintained by Landlord or Tenant as provided in
this Lease shall contain an agreement by the insurer waiving the insurer's right
of subrogation against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
-------------------------------
SECTION 9.01. TENANT'S RESPONSIBILITY. Tenant shall assume the risk
of, be responsible for, have the obligation to insure against, and indemnify
Landlord and hold it harmless from any and all liability for any loss or damage
or injury to any person (including death resulting therefrom) or property
occurring in the Leased Premises, regardless of cause, except for any loss or
damage covered by Landlord's insurance as provided in SECTION 8.02 and except
for that caused directly by the sole negligence of Landlord or its employees,
agents, customers or invitees; and Tenant hereby releases Landlord from any and
all liability for the same. Tenant's obligation to indemnify Landlord hereunder
shall include the duty to defend against any claims asserted by reason of such
loss, damage or injury and to pay any judgments, settlements, costs, fees and
expenses, including attorneys' fees, incurred in connection therewith. This
provision shall survive the expiration or earlier termination of this Lease.
SECTION 9.02. TENANT'S INSURANCE. Tenant shall carry general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Commercial General Liability Insurance, including blanket,
contractual liability, broad form property damage, personal injury,
completed operations, products liability, and fire damage: Not less
than $3,000,000 Combined Single Limit for both bodily injury and
property damage.
C. All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler
Leakage insurance, if applicable, for the full cost of replacement of
Tenant's property.
D. Business interruption insurance.
The insurance policies shall protect Tenant and Landlord as their interests may
appear, naming Landlord and Landlord's managing agent and mortgagee as
additional insureds, and shall provide that they may not be canceled on less
than thirty (30) days' prior written notice to Landlord. Tenant shall furnish
Landlord with Certificates of Insurance evidencing all required coverages on or
before the Commencement Date. If Tenant fails to carry such insurance and
furnish Landlord with such Certificates of Insurance after a request to do so,
Landlord may obtain such insurance and collect the cost thereof from Tenant.
SECTION 9.03. LANDLORD'S RESPONSIBILITY. Landlord shall assume the risk of, be
responsible for, have the obligation to insure against, and indemnify Tenant and
hold it harmless from, any and all liability for any loss
8
of or damage or injury to person (including death resulting therefrom) or
property (other than Tenant's property as provided in Section 8.02) occurring
in, on or about the common areas, regardless of cause, except for that caused by
the sole negligence of Tenant or its employees, agents, customers or invitees;
and Landlord hereby releases Tenant from any and all liability for the same.
Landlord's obligation to indemnify Tenant hereunder shall include the duty to
defend against any claims asserted by reason of such loss, damage or injury and
to pay any judgments, settlements, costs, fees and expenses, including
reasonable attorneys' fees, incurred in connection therewith. This provision
shall survive the expiration or earlier termination of this Lease.
ARTICLE 10 - EMINENT DOMAIN
---------------------------
If all or any substantial part of the Building or common areas shall
be acquired by the exercise of eminent domain, Landlord may terminate this Lease
by giving written notice to Tenant on or before the date that actual possession
thereof is so taken. If all or any part of the Leased Premises shall be acquired
by the exercise of eminent domain so that the Leased Premises shall become
unusable by Tenant for the Permitted Use, Tenant may terminate this Lease as of
the date that actual possession thereof is taken by giving written notice to
Landlord. All damages awarded shall belong to Landlord; provided, however, that
Tenant shall be entitled to any award expressly made to Tenant by any
governmental authority for the cost of or the removal of Tenant's stock,
equipment and fixtures and other moving expenses.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
------------------------------------
Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent, which consent shall
not be unreasonably withheld, delayed or denied (provided that it shall not be
unreasonable for Landlord to withhold or deny its consent with respect to any
proposed assignment or subletting to a third party that is already a tenant in
the Building or the Park). In the event of any assignment or subletting, Tenant
shall remain primarily liable hereunder, and any extension, expansion, rights of
first offer, rights of first refusal or other options granted to Tenant under
this Lease shall be rendered void and of no further force or effect. The
acceptance of rent from any other person shall not be deemed to be a waiver of
any of the provisions of this Lease or to be a consent to the assignment of this
Lease or the subletting of the Leased Premises. Without in any way limiting
Landlord's right to refuse to consent to any assignment or subletting of this
Lease, Landlord reserves the right to refuse to give such consent if in
Landlord's opinion (i) the Leased Premises are or may be in any way adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; or (iii) the financial worth of the proposed assignee or subtenant
is insufficient to meet the obligations hereunder. Landlord further expressly
reserves the right to refuse to give its consent to any subletting if Tenant
publicly advertises in any manner that the proposed rent is to be less than the
then current rent for similar premises in the Park. Tenant agrees to reimburse
Landlord for reasonable accounting and attorneys' fees incurred in conjunction
with the processing and documentation of any such requested assignment,
subletting or any other hypothecation of this Lease or Tenant's interest in and
to the Leased Premises.
ARTICLE 12 - TRANSFERS BY LANDLORD
----------------------------------
SECTION 12.01. SALE OF THE BUILDING. Landlord shall have the right to
sell the Building at any time during the Lease Term, subject only to the rights
of Tenant hereunder; and such sale shall operate to release Landlord from
liability hereunder after the date of such conveyance.
SECTION 12.02. SUBORDINATION AND ESTOPPEL CERTIFICATE. Landlord shall
have the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage. Within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost, any reasonable instrument which
Landlord deems necessary or desirable to confirm the subordination of this Lease
and an estoppel certificate in such form as Landlord may reasonably request
certifying (i) that this Lease is in full force and effect and unmodified or
stating the nature
9
of any modification, (ii) the date to which rent has been paid, (iii) that there
are not, to Tenant's knowledge, any uncured defaults or specifying such defaults
if any are claimed, and (iv) any other matters or state of facts reasonably
required respecting the Lease. Such estoppel may be relied upon by Landlord and
by any purchaser or mortgagee of the Building. Notwithstanding the foregoing, if
the mortgagee shall take title to the Leased Premises through foreclosure or
deed in lieu of foreclosure, Tenant shall be allowed to continue in possession
of the Leased Premises as provided for in this Lease so long as Tenant shall not
be in default. Upon written request by Tenant and at Tenant's sole cost and
expense, Landlord shall use commercially reasonable efforts to obtain a
Non-Disturbance Agreement reasonably acceptable to Tenant, Landlord, and the
Landlord's successor or lender.
ARTICLE 13 - DEFAULT AND REMEDY
-------------------------------
SECTION 13.01. DEFAULT. The occurrence of any of the following shall
be a Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional
Rent within five (5) days after the same is due, or Tenant fails to pay any
other amounts due Landlord from Tenant within ten (10) days after the same is
due.
So long as there is then no continuing default by Tenant under this
Lease, Landlord shall provide Tenant with a written courtesy notice of the first
monetary default by Tenant in any consecutive twelve (12) month period and
Tenant shall have an additional five (5) days after the date of such notice to
cure such default before Landlord exercises its default remedies; provided,
however, that Landlord shall not be required to give such courtesy notice more
than one (1) time with respect to any particular default, nor more than two (2)
times in any consecutive twelve (12) month period with respect to any payment
defaults in the aggregate.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than ten days are reasonably required to
cure, then such default shall be deemed to have been cured if Tenant commences
such performance within said thirty-day period and thereafter diligently
completes the required action within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased
Premises in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased
Premises or Tenant's interest in this Lease are attached or levied under
execution (and Tenant does not discharge the same within sixty (60) days
thereafter); a petition in bankruptcy, insolvency or for reorganization or
arrangement is filed by or against Tenant (and Tenant fails to secure a stay or
discharge thereof within sixty (60) days thereafter); Tenant is insolvent and
unable to pay its debts as they become due; Tenant makes a general assignment
for the benefit of creditors; Tenant takes the benefit of any insolvency action
or law; the appointment of a receiver or trustee in bankruptcy for Tenant or its
assets if such receivership has not been vacated or set aside within thirty (30)
days thereafter; or, dissolution or other termination of Tenant's corporate
charter if Tenant is a corporation.
SECTION 13.02. REMEDIES. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action.
10
(b) Landlord may terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Leased Premises as of the
date of such Default, and thereafter (i) neither Tenant nor any person claiming
under or through Tenant shall be entitled to possession of the Leased Premises,
and Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (discounted at
the Prime Rate) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, whereupon Tenant
shall be obligated to pay the same to Landlord, together with all loss or damage
which Landlord may sustain by reason of Tenant's default ("Default Damages"),
which shall include without limitation expenses of preparing the Leased Premises
for re-letting, demolition, repairs, tenant finish improvements, brokers'
commissions and attorneys' fees, it being expressly understood and agreed that
the liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
present value (discounted at the Prime Rate) of the difference between the rent
provided for herein and that provided for in any lease covering a subsequent
re-letting of the Leased Premises, for the period which would otherwise have
constituted the balance of the Lease Term, together with all of Landlord's
Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for
any loss resulting from the Default.
SECTION 13.03. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
Landlord shall be in default if it fails to perform any term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after written notice thereof from Tenant to Landlord; provided, however,
that if the term, condition, covenant or obligation to be performed by Landlord
is such that it cannot reasonably be performed within thirty (30) days, such
default shall be deemed to have been cured if Landlord commences such
performance within said thirty-day period and thereafter diligently undertakes
to complete the same. Upon the occurrence of any such default, Tenant may xxx
for injunctive relief or to recover damages for any loss directly resulting from
the breach, but Tenant shall not be entitled to terminate this Lease or
withhold, offset or xxxxx any sums due hereunder.
SECTION 13.04. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall
fail to perform any term, condition, covenant or obligation required to be
performed by it under this Lease and if Tenant shall, as a consequence thereof,
recover a money judgment against Landlord, Tenant agrees that it shall look
solely to Landlord's right, title and interest in and to the Building for the
collection of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment.
SECTION 13.05. NONWAIVER OF DEFAULTS. Neither party's failure or
delay in exercising any of its rights or remedies or other provisions of this
Lease shall constitute a waiver thereof or affect its right thereafter to
exercise or enforce such right or remedy or other provision. No waiver of any
default shall be deemed to be a waiver of any other default. Landlord's receipt
of less than the full rent due shall not be construed to be other than a payment
on account of rent then due, nor shall any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord and satisfaction. No act
or omission by Landlord or its employees or agents during the Lease Term shall
be deemed an acceptance of a surrender of the Leased Premises, and no agreement
to accept such a surrender shall be valid unless in writing and signed by
Landlord.
11
SECTION 13.06. ATTORNEYS' FEES. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees incurred in
connection therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
------------------------------------------------
Landlord shall have the right upon at least ninety (90) days' prior
written notice to Tenant and with Tenant's approval which shall not be
unreasonably withheld, conditioned or delayed, to relocate Tenant and to
substitute for the Leased Premises other space in the Building or in the Park
containing at least as much rentable area as the Leased Premises. Such
substituted space shall have the same tax abatement benefits and Foreign Trade
Zone status as the Leased Premises and be improved by Landlord, at its expense,
with improvements at least equal in quantity and quality to those in the Leased
Premises. Landlord shall reimburse Tenant for all reasonable expenses incurred
in connection with such relocation. Landlord shall coordinate any relocation
with Tenant and shall use commercially reasonable efforts to minimize disruption
to Tenant's business. In no event shall Landlord be liable to Tenant for any
consequential damages as a result of any such relocation, including, but not
limited to, loss of business income or opportunity.
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
----------------------------------------------
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
--------------------------------------------
SECTION 15.01. DEFINITIONS.
a. "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
b. "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws.
SECTION 15.02. COMPLIANCE. With respect to Tenant's use, occupancy,
maintenance or alteration of the Leased Premises, Tenant, at its sole cost and
expense, shall promptly comply with the Environmental Laws including any notice
from any source issued pursuant to the Environmental Laws or issued by any
insurance company which shall impose any duty upon Tenant whether such notice
shall be served upon Landlord or Tenant.
SECTION 15.03. RESTRICTIONS ON TENANT. Tenant shall operate its
business and maintain the Leased Premises in compliance with all Environmental
Laws. Tenant shall not cause or permit the use, generation, release,
manufacture, refining, production, processing, storage or disposal of any
Hazardous Substances on, under or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substances,
except as necessary and appropriate for its Permitted Use in which case the use,
storage or disposal of such Hazardous Substances shall be performed in
compliance with the Environmental Laws and the highest standards prevailing in
the industry.
SECTION 15.04. NOTICES, AFFIDAVITS, ETC. Tenant shall immediately
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of the Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises and
shall immediately deliver to Landlord any notice received by Tenant relating to
(i) and (ii) above from any source. Tenant shall execute affidavits,
representations and the like within five (5) days of Landlord's request therefor
concerning Tenant's best
12
knowledge and belief regarding the presence of any Hazardous Substances on,
under or about the Leased Premises.
SECTION 15.05. LANDLORD'S RIGHTS. Landlord and its agents shall have
the right, but not the duty, upon advance notice (except in the case of
emergency when no notice shall be required) to inspect the Leased Premises and
conduct tests thereon to determine whether or the extent to which there has been
a violation of Environmental Laws by Tenant or whether there are Hazardous
Substances on, under or about the Leased Premises. In exercising its rights
herein, Landlord shall use commercially reasonable efforts to minimize
interference with Tenant's business but such entry shall not constitute an
eviction of Tenant, in whole or in part, and Landlord shall not be liable for
any interference, loss, or damage to Tenant's property or business caused
thereby.
SECTION 15.06. TENANT'S INDEMNIFICATION. Tenant shall indemnify
Landlord and Landlord's managing agent from any and all claims, losses,
liabilities, costs, expenses and damages, including attorneys' fees, costs of
testing and remediation costs, incurred by Landlord in connection with any
breach by Tenant of its obligations under this Article 15. The covenants and
obligations under this Article 15 shall survive the expiration or earlier
termination of this Lease.
SECTION 15.07. LANDLORD'S REPRESENTATION. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability under this Article 15 resulting from any conditions existing, or
events occurring, or any Hazardous Substances existing or generated, at, in, on,
under or in connection with the Leased Premises prior to the Commencement Date
of this Lease except to the extent Tenant exacerbates the same.
ARTICLE 16 - MISCELLANEOUS
--------------------------
SECTION 16.01. BENEFIT OF LANDLORD AND TENANT. This Lease shall inure
to the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
SECTION 16.02. GOVERNING LAW. This Lease shall be governed in
accordance with the laws of the State of where the Building is located.
SECTION 16.03. GUARANTY. In consideration of Landlord's leasing the
Leased Premises to Tenant, Tenant shall provide Landlord with a Guaranty of
Lease executed by the guarantor(s) described in the Basic Lease Provisions, if
any.
SECTION 16.04. FORCE MAJEURE. Landlord and Tenant (except with
respect to the payment of any monetary obligation) shall be excused for the
period of any delay in the performance of any obligation hereunder when such
delay is occasioned by causes beyond its control, including but not limited to
work stoppages, boycotts, slowdowns or strikes; shortages of materials,
equipment, labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
SECTION 16.05. EXAMINATION OF LEASE. Submission of this instrument
for examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
SECTION 16.06. INDEMNIFICATION FOR LEASING COMMISSIONS. The parties
hereby represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be entitled thereto.
13
SECTION 16.07. NOTICES. Any notice required or permitted to be given
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to the party who is to receive such notice at the address
specified in Article 1. If delivered in person, notice shall be deemed given as
of the delivery date. If sent by overnight courier, notice shall be deemed given
as of the first business day after sending. If mailed, the notice shall be
deemed to have been given on the date which is three (3) business days after
mailing. Either party may change its address by giving written notice thereof to
the other party.
SECTION 16.08. PARTIAL INVALIDITY; COMPLETE AGREEMENT. If any
provision of this Lease shall be held to be invalid, void or unenforceable, the
remaining provisions shall remain in full force and effect.. This Lease
represents the entire agreement between Landlord and Tenant covering everything
agreed upon or understood in this transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof or in effect between
the parties. No change or addition shall be made to this Lease except by a
written agreement executed by Landlord and Tenant.
SECTION 16.09. FINANCIAL STATEMENTS. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent financial statements (certified and audited if the Minimum Annual
Rent hereunder exceeds $100,000) prepared as of the end of Tenant's fiscal year.
Such financial statements shall be signed by Tenant who shall attest to the
truth and accuracy of the information set forth in such statements. All
financial statements provided by Tenant to Landlord hereunder shall be prepared
in conformity with generally accepted accounting principles, consistently
applied.
SECTION 16.10. REPRESENTATIONS AND WARRANTIES. The undersigned
represent and warrant that (i) such party is duly organized, validly existing
and in good standing (if applicable) in accordance with the laws of the state
under which it was organized; and (ii) the individual executing and delivering
this Lease has been properly authorized to do so, and such execution and
delivery shall bind such party.
SECTION 16.11. AGENCY DISCLOSURE. Tenant acknowledges having reviewed
the Agency Disclosure Statement and Tenant acknowledges that said Statement is
signed and attached hereto and made a part hereof as EXHIBIT C. The broker
identified as representing Landlord in Item J of Section 1.01 hereof, and its
agents and employees, have represented only Landlord, and have not in any way
represented Tenant, in the marketing, negotiation and completion of this lease
transaction.
SECTION 16.12. RIGHT OF FIRST OFFER. Provided that (i) Tenant has not
been in default hereunder at any time during the Lease Term, (ii) the
creditworthiness of Tenant is then acceptable to Landlord, (iii) Tenant named
herein remains in possession of and has been continuously operating in the
entire Leased Premises throughout the Lease Term, and (iv) the current use of
the Leased Premises is acceptable to Landlord, and subject to any rights of
other tenants to the Offer Space, Landlord shall notify Tenant in writing
("Landlord's Notice") of the availability of the space shown crosshatched on the
attached EXHIBIT A containing approximately 53,000 rentable square feet of space
(the "Offer Space") before entering into a lease with a third party for such
Offer Space. Tenant shall have five (5) business days from its receipt of
Landlord's Notice to deliver to Landlord a written acceptance agreeing to lease
the Offer Space on the terms and conditions contained in Landlord's Notice. In
the event Tenant fails to notify Landlord of its acceptance within said five (5)
day period, such failure shall be conclusively deemed a waiver of Tenant's Right
of First Offer and a rejection of the Offer Space with respect to that
particular Landlord's Notice , whereupon Tenant shall have no further rights
with respect to the Offer Space with respect to that particular Landlord's
Notice and Landlord shall be free to lease the Offer Space to a third party. In
the event such Offer Space becomes available after Tenant has waived it rights
hereunder with respect to any particular Landlord Notice of offer, and subject
to provisions (i) through (iv) of this Section 16.12, Landlord shall provide
Tenant with Landlord's Notice of the subsequent offer and Tenant shall be
entitled to exercise its Right of First Offer as specified
14
above. Provided, however, that nothing herein shall operate to require Landlord
to serve more than Landlord's Notice with repsect to any single period of offer
or to prevent a tenant of the Offer Space from renewing or extending its lease
thereof. In the event Tenant accepts the Offer Space on the terms and conditions
specified in the Landlord's Notice, the term for the Offer Space shall be
coterminous with the term for the original Leased Premises; provided, however,
that the minimum term for the Offer Space shall be sixty (60) months and the
Term for the original Leased Premises shall be extended, to be coterminous with
the term for the Offer Space. The Minimum Annual Rent for the Offer Space shall
be equal to the rate which is then being quoted by Landlord to prospective new
tenants for the Offer Space, excluding free rent and other concessions. The
Minimum Annual Rent for the original Leased Premises during any such extended
term shall be an amount equal to one hundred and fifteen percent (115%) of the
highest Minimum Annual Rent payable during the Lease Term for the original
Leased Premises.
SECTION 16.13. OPTION TO EXTEND. X. XXXXX AND EXERCISE OF OPTION.
Provided that (i) Tenant has not been in default hereunder at any time during
the Term of this Lease (the "Original Term"), (ii) the creditworthiness of
Tenant is then acceptable to Landlord, (iii) Tenant named herein remains in
possession of and has been continuously operating in the entire Premises
throughout the Original Term and (iv) the current use of the Premises is
acceptable to Landlord, Tenant shall have one (1) option to extend the Original
Term for one (1) additional period of five (5) years (the "Extension Term"). The
Extension Term shall be upon the same terms and conditions contained in the
Lease for the Original Term except (i) Tenant shall not have any further option
to extend and (ii) the Minimum Annual Rent shall be adjusted as set forth herein
("Rent Adjustment"). Tenant shall exercise such option by delivering to
Landlord, no later than nine (9) months prior to the expiration of the Original
Term, written notice of Tenant's desire to extend the Original Term. Tenant's
failure to properly exercise such option shall waive it. If Tenant properly
exercises its option to extend, Landlord shall notify Tenant of the Rent
Adjustment no later than ninety (90) days prior to the commencement of the
Extension Term. Tenant shall be deemed to have accepted the Rent Adjustment if
it fails to deliver to Landlord a written objection thereto within five (5)
business days after receipt thereof. If Tenant properly exercises its option to
extend, Landlord and Tenant shall execute an amendment to the Lease (or, at
Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term, within thirty (30)
days after Tenant's acceptance of the Rent Adjustment.
B. MARKET RENT ADJUSTMENT. The Minimum Annual Rent for the Extension
Term shall be Four Dollars and Seventy-Two Cents ($4.72) per rentable square
foot of the Leased Premises. The Minimum Monthly Rent shall be an amount equal
to one-twelfth (1/12) of the Minimum Annual Rent for the Extension Term and
shall be paid at the same time and in the same manner as provided in the Lease.
SECTION 16.14. TENANT CONTINGENCY. In the event that Tenant has not
received a grant under the State of Ohio Job Creation Tax Credit program giving
a credit against State of Ohio income taxes with respect to new employees hired
by Tenant in connection with the Leased Premises providing for a credit based
upon the Ohio income tax payroll withholding applicable to such new employees,
on terms and conditions acceptable to Tenant in its sole discretion on or before
March 22, 1999, Tenant shall be entitled to terminate this Lease. Tenant shall
exercise its right to terminate this Lease as provided for herein by giving
written notice to Landlord of its intention to terminate within five (5) days of
March 22, 1999.
SECTION 16.15. PARKING. During the initial Lease Term and provided
Tenant is not in Default hereunder, Tenant shall have use of seventy-five (75)
non-reserved parking spaces located in the parking areas adjacent to the
Building which parking areas are shown on EXHIBIT A and are non-exclusive and
for the use of all Building tenants. Tenant shall not pay a fee for the use of
such parking spaces. Only one vehicle shall be parked in each space at any one
time.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
15
WITNESS: LANDLORD:
/s/ Xxxxxxx X. Xxxxxxxxx DUKE REALTY LIMITED PARTNERSHIP,
--------------------------------
Xxxxxxx X. Xxxxxxxxx an Indiana limited partnership
--------------------------------
(printed)
By: Duke Realty Investments, Inc.,
/s/ Xxxxxxx Xxxxxx its General Partner
--------------------------------
Xxxxxxx Xxxxxx
--------------------------------
(printed) By: /s/ J. Xxxx Xxxxxx
-------------------------------------
J. Xxxx Xxxxxx
Vice President
Columbus Industrial Group
WITNESS: TENANT:
/s/ Xxxxxx X. Xxxx PINNACLE DATA SYSTEMS, INC., an Ohio corporation
--------------------------------
Xxxxxx X. Xxxx
--------------------------------
(printed) By: /s/ Xxxx X. Xxxx
--------------------------------------------
/s/ X. X. Xxxx Printed: Xxxx X. Xxxx
-------------------------------- ----------------------------------------
X. X. Xxxx
--------------------------------
(printed) Title: President
-----------------------------------------
________________________ 2/25/99
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
Before me, a Notary Public in and for said County and State, personally
appeared J. Xxxx Xxxxxx, by me known and by me known to be the Vice President,
Columbus Industrial Group, of Duke Realty Investments, Inc., an Indiana
corporation, the general partner of Duke Realty Limited Partnership, an Indiana
limited partnership, who acknowledged the execution of the above and foregoing
Lease Agreement for and on behalf of said partnership.
WITNESS my hand and Notarial Seal this 9th day of March____, 1999.
/s/ Xxxxxxx Xxx Xxxxxx
-------------------------------------------
Notary Public
Xxxxxxx Xxx Xxxxxx
-------------------------------------------
(Printed Signature)
My Commission Expires: March 6, 2000
------------------------------
My County of Residence: Franklin
------------------------
16
STATE OF______________________)
) SS:
COUNTY OF_____________________)
Before me, a Notary Public in and for said County and State, personally
appeared __JOHN D. Bair______________, by me known and by me known to be the
___PRESIDENT_________, of Pinnacle Data Systems, Inc., an Ohio corporation, who
acknowledged the execution of the above and foregoing Lease Agreement for and on
behalf of said corporation.
WITNESS my hand and Notarial Seal this 25 day of February___, 1999.
/s/ Xxxxxxxxxx Xxxxxx
-------------------------------------------------
Notary Public
Xxxxxxxxxx Xxxxxx
-------------------------------------------------
(Printed Signature)
My Commission Expires: Jan 24, 2000
--------------------------
My County of Residence: Franklin
-------------------------
17
Exhibits:
---------
Exhibit A - Leased Premises
Exhibit B - Tenant Improvements
Exhibit C - Agency Disclosure Statement
Exhibit D - Building Rules and Regulations
Exhibit E - Letter of Understanding
18
EXHIBIT D
---------
RULES AND REGULATIONS
(These Rules and Regulations have been adopted for the purpose of
insuring order and safety in the Building and of maintaining the rights of
Tenant and of the Landlord.)
1. The sidewalks, entrances, driveways and roadways serving and adjacent
to the Leased Premises, are the property of the Landlord, and shall not be
obstructed or used for any purpose other than ingress and egress. The Landlord
shall in all cases retain the right to control and prevent access to the
Property, of all persons whose presence, in the judgment of the Landlord or its
employees, shall be prejudicial to the safety, character, reputation or
interests of the property or neighboring buildings.
2. No awnings or other projections shall be attached to the outside walls
of the Building. Neither the interior nor the exterior of any windows shall be
coated or otherwise sunscreened without written consent of Landlord.
3. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown herein. All damages
resulting from any misuse of the fixtures shall be borne by the Tenant who, or
whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
4. No Tenant shall xxxx, paint, drill into or in any way deface any part
of the exterior Leased Premises or in the Building. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
the Landlord and Landlord may direct.
5. No birds or animals of any kind shall be brought onto or kept in or
about the Property, and no cooking shall be done or permitted by any Tenant on
the Leased Premises, except that the preparation of coffee, tea, hot chocolate
and similar items and the use of a microwave oven for Tenants and their
employees shall be permitted provided power shall not exceed that amount which
can be provided by a 30-amp circuit. No Tenant shall cause or permit any unusual
or objectionable odors to be produced or permeate outside the Leased Premises.
6. No Tenant shall operate a business or an office in the Leased Premises
for the manufacture or sale of liquor, narcotics, or tobacco in any form, or as
a retail or wholesale store or general office, in contradiction to the permitted
use in this Lease, without the express written consent of Landlord, not to be
unreasonably withheld. The Leased Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.
7. No Tenant shall make, or permit to be made, any noise which may
disturb or interfere with occupants of neighboring buildings whether by the use
of any musical instrument, radio, phonograph, unusual noise or in any other way.
8. No Tenant, subtenant or assignees nor any of its servants, employees,
agents, visitors or licensees shall at any time bring or keep upon the Leased
Premises any flammable, combustible or explosive fluid, chemical or substance,
other than that which is ordinary and necessary for the Tenant's use of the
Leased Premises, as contemplated herein.
9. Each Tenant must upon the termination of its tenancy, deliver to the
Landlord all keys to the offices, storage rooms, toilet rooms, either furnished
to, or otherwise procured by, such Tenant.
19
10. All persons employed by any Tenant to do work upon the Leased
Premises, while in the Building and outside of the Leased Premises, shall be
subject to and under the control and direction of the Tenant, and Tenant shall
be responsible for all acts of such persons.
11. Canvassing, soliciting and peddling in the adjacent buildings are
prohibited, and each Tenant shall report and otherwise cooperate to prevent the
same.
12. Tenant agrees that it shall not discriminate upon the basis of race,
color, religion, sex or national origin in the use and occupancy or in any
sublease or subletting of the Leased Premises.
13. No outside storage is permitted including without limitation the
storage of trucks and other vehicles.
14. The Landlord reserves the right to reasonably rescind, modify or
supplement any of these rules and to make such other and further reasonable
rules and regulations which, in the Landlord's judgment may from time to time be
necessary for the safety and cleanliness of the Leased Premises, and for the
assurance of good order therein. Landlord agrees to provide Tenant with a copy
of said rules which shall be deemed a part of this Lease.
Anything contained in these Rules and Regulations which is contrary to or
inconsistent with any express provision of the Lease shall be void and of no
force and effect.
20
EXHIBIT E
---------
LETTER OF UNDERSTANDING
Tenant: _______________________________ ("Tenant")
Landlord: DUKE REALTY LIMITED PARTNERSHIP ("Landlord")
Regarding: Lease by and between Tenant and Landlord dated _____________ 199_
(the "Lease")
Leased Premises: _____________________________________
-------------------------------------
______, Ohio 43___
(the "Leased Premises")
As of this date, Tenant confirms and acknowledges as follows:
1. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as indicated above; and the Lease
represents the entire agreement between the parties as to this leasing and/or
Tenant's rights to the Leased Premises.
2. The term of the Lease commenced on ______________, 199_ (the
"Commencement Date") and expires on _____________,_____ (the "Expiration Date").
3. Tenant hereby accepts possession of the Leased Premises for
occupancy and acknowledges that the condition of the Leased Premises, including
the Tenant Finish Improvements, and the Building are satisfactory and in
conformity with the provisions of the Lease.
The statements contained herein are true and may be relied upon by
Landlord.
Executed this _____ day of _______________, 1999.
TENANT:
--------------------------------------
By:___________________________________
Printed:______________________________
Title:________________________________