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LEASE
THIS LEASE, made effective this 24th day of February, 1998, by and
between AMERICANA INVESTMENT COMPANY, an Ohio general partnership ("Landlord"),
and LEXFORD, INC., a corporation organized and existing under and by virtue of
the laws of the State of Ohio ("Tenant").
WITNESSETH:
ARTICLE 1. GRANT AND PREMISES. Landlord for and in consideration of the
rents and covenants hereinafter mentioned does hereby demise, lease and let unto
Tenant and Tenant does hereby hire, lease and take from Landlord the following
described premises situated in the approximately 52,168 square foot building
known as 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxx (the "Building"), which
Building, together with the approximately 3.881 acre parcel of land described in
Exhibit A hereto upon which it is located, and all improvements located thereon
are referred to as the "Project."
Being approximately 30,520 square feet of office space (the
"Office Space") and 5,600 square feet of warehouse space (the
"Warehouse Space") for a total of 36,120 square feet in the
location and configuration depicted on Exhibit B hereto (the
Premises").
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The Project constitutes a portion of Americana Commerce Park ( "ACP")
as ACP is shown on Exhibit C hereto. The Premises shall include as an
appurtenant right the non-exclusive right of use of the parking lot on the
Project and the loading dock turn-around area between the buildings in ACP and
driveways in the Project. Tenant shall be entitled to the non-exclusive use of
the parking lot of the Project, together with other tenants of the Project and
their employees, customers, agents, guests and invitees, it being the intent of
the parties that each tenant of the Project shall have the non-exclusive use of
that number of the total parking spaces in the Project determined by dividing
the total square feet of their respective leased premises by the total leasable
square feet of the Building. It is agreed that the entire loading dock area and
turn-around area between the two buildings is a common area of ACP for the
non-exclusive use of all tenants within ACP.
ARTICLE 2. TERM. The term of this Lease shall commence on the date of
the last to occur of the following events (the "Commencement Date"): (i)
Tenant's Work, as defined in Article 11 hereof, is completed, and Tenant has
accepted the Premises; (ii) Tenant has vacated all portions of the Building
which are not a part of the Premises, leaving the same in the condition required
upon termination under the terms of the existing Lease between Landlord and
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Tenant for the Building; (iii) Tenant has occupied the Premises for the conduct
of its business; and (iv) January 1, 1998 and expire on December 31, 2004. If
Tenant holds over the expiration of the term, it is agreed that the tenancy
shall be month-to-month under the same terms and conditions as this Lease.
ARTICLE 3. RENTAL.
(a) Monthly Rental. The monthly rental shall be as set forth below,
payable without deduction or offset in advance on or before the first day of
each and every month during the term to the following address: Oakwood
Management Company, 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxx 00000.
Annual Rent
Per Square Annual Rent for
Lease Foot for Warehouse
Years Office Space Space Annual Rental Monthly Rental
------- ------------ --------------- ------------- --------------
1-3 $8.75 $25,872.00 $292,922.00 $24,410.17
4-5 $9.25 $27,165.60 $309,475.60 $25,789.63
6-7 $9.75 $28,523.88 $326,093.88 $27,174.49
The first Lease Year shall commence on the Commencement Date and end on the last
day of the twelfth full month following the Commencement Date, and each
subsequent lease year shall commence on the first day of the immediately
following month, except that if the Commencement Date is a date other than
January 1, 1998, the last lease year shall be a partial lease year and shall end
on December 31, 2004. If the Commencement Date is a date other than the first
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day of a month, the monthly rental for the first partial month shall be prorated
based upon the actual number of days of the month within the lease term.
(b) Additional Rent. Tenant shall pay any and all sums of money or
charges required to be paid by Tenant as additional rent under this Lease
promptly when the same are due, without any deduction or set-off whatsoever.
Tenant's failure to pay any such amounts or charges when due shall carry with it
the same consequences as the failure to pay Monthly Rental. All such amounts or
charges shall be payable to Landlord at the place where rent is payable.
(c) Delay or Default on Payment of Rent. In the event that Tenant shall
fail to pay any installment of rent on the date when due, or shall fail to pay
any other payment or charges due from Tenant to Landlord hereunder on the date
when due, such past due rentals or other charges shall bear interest at the
lesser of (i) the highest rate then allowable by law which Landlord might then
have charged in making an unsecured loan to Tenant or (ii) the rate of three
percent (3%) per annum above the prime rate charged by The Huntington National
Bank, Columbus, Ohio (i.e. the interest rate established by The Huntington
National Bank, Columbus, Ohio, from time to time based upon its consideration of
economic, money market, business and competitive factors) as of
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the due date (in either instance, the "Default Rate") from the due date thereof
until paid by Tenant. In like manner, all other obligations, benefits and moneys
which may be due to Landlord from Tenant under the terms hereof, or which are
paid by Landlord because of Tenant's default hereunder, shall bear interest at
the Default Rate from the due date until paid or, in the case of sums paid by
Landlord because of Tenant's default hereunder, from the date such payments are
made by Landlord until the date Landlord is reimbursed by Tenant.
ARTICLE 4. OPTIONS.
(a) Option to Renew. Tenant shall have and is hereby granted the option
to extend the term of this Lease for one (1) additional term of five (5) years.
The renewal period shall be governed by all of the provisions, terms, and
conditions of this Lease; except that the monthly rental shall be determined as
follows:
Year of Annual Rent Annual Rental for
Renewal Per Square Warehouse Total Annual
Term Foot Space Rental Monthly Rental
------- ---------- ----------------- ------------ --------------
1 $9.99 $29,236.98 $334,131.76 $27,844.32
2 $10.24 $29,967.90 $342,492.70 $28,541.06
3 $10.50 $30,717.10 $350,763.31 $29,230.26
4 $10.76 $31,485.03 $359,880.23 $29,990.02
5 $11.03 $32,272.15 $368,907.75 $30,742.31
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In order to exercise the option as herein provided, Tenant must give to Landlord
written notice of same at least ninety (90) days prior to end of the initial
term.
(b) Option to Delete Warehouse Space from Lease. Tenant shall have a
one-time right to delete the Warehouse Space from the Premises on the third
anniversary date of the Lease (the "Warehouse Option Date") upon the following
terms and conditions:
(1) Tenant shall give written notice to Landlord (an "Election
Notice") stating its election to delete the Warehouse Space from
the Premises effective on the Warehouse Option Date not more than
one (1) year and not less than six (6) months prior to the
Warehouse Option Date.
(2) If a timely Election Notice is given, this Lease shall be
automatically amended on the Warehouse Option Date to delete the
Warehouse Space from the Premises and to adjust the rental
accordingly. At the request of either party, the parties shall
exe-cute an Amendment to Lease reflecting such changes.
(3) If a timely Election Notice is given, Tenant shall vacate the
Warehouse Space on or before the Warehouse Option Date and comply
with all terms of the Lease which apply to termination of the
Lease, including Articles 10 and 12 hereof, with respect to the
Warehouse Space.
ARTICLE 5. TAXES AND UTILITIES.
(a) Taxes and Obligations. Subject to the provisions of Article 22
hereof, Landlord shall pay all taxes, assessments (whether general or special)
and any other obligations which are or may become a lien on or levied against
the Premises and Project.
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(b) Utilities. Tenant agrees during the term hereof to pay all charges
for electricity, water, gas, heat, telephone and other utility services, used,
consumed or wasted upon the Premises. Landlord shall not be liable for the
quality, quantity or any interference with such utilities. Tenant shall, on or
prior to the Commencement Date, cause all utility services used by Tenant to be
placed in Tenant's name.
ARTICLE 6. ASSIGNMENT AND SUBLETTING. Tenant may at any time assign
this Lease or sublet any part or all of the Premises to any party whom Tenant
may reasonably select, provided that the occupancy of that party or the
operations to be conducted in or on the Premises by that party shall not be of a
more hazardous nature than the occupancy of or the operations conducted by
Tenant on the Premises at the time of said assignment or subletting. In the
event of any assigning or subletting by Tenant, Tenant shall remain liable for
the performance of its covenants as contained in this Agreement, unless the
assignee in the case of an assignment has a net worth equal to or greater than
the net worth of Tenant on the date hereof and on the date of the assignment,
which assignee is approved by Landlord in its reasonable discretion.
ARTICLE 7. USE. Tenant may use the Premises for any lawful use or
purpose. Tenant will at its own expense comply with all statutes, ordinances,
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rules, orders and regulations of federal, state or local public authorities,
subject to the provisions of Article 26 hereof.
ARTICLE 8. DAMAGE OR DESTRUCTION. If all or a part of the Premises are
rendered untenantable by reason of damage or destruction caused by perils
customarily covered under fire and extended coverage insurance, acts of God or
any cause beyond the reasonable control of Tenant, this Lease shall, at the
option of Tenant, terminate unless (a) Landlord notifies Tenant within ten (10)
days after notice from Tenant of the untenantable condition of the Premises, of
its intention to repair and restore the Premises to their former condition, and
(b) such restoration is completed within one hundred twenty (120) days from the
date Landlord receives notice of the untenantable condition of the Premises.
During the period of restoration, Tenant's rental obligation shall be abated
proportionate to the time and the extent of the damage or destruction and the
time during which and the extent to which the Premises have been untenantable.
In the event of termination, Landlord shall reimburse to Tenant any portion of
rent paid representing the portion of the term subsequent to the date of
Premises were rendered untenantable.
ARTICLE 9. MUTUAL WAIVER OF SUBROGATION. Each party hereto releases and
waives all rights of recovery against the other party, its officers, employees,
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agents, invitees and representatives for any damage to any person, or for loss
of or damage to their property or property of others under its control arising
from any cause insured against under any insurance policies carried by Landlord
and Tenant.
ARTICLE 10. SURRENDER. Tenant agrees to surrender at the termination of
this Lease possession of the Premises in as good condition and repair as the
same were in at the commencement of the term hereof except for the following:
(a) Reasonable wear and tear,
(b) Repairs and restoration to be made by Tenant or Landlord as
herein provided,
(c) Damage or destruction caused by perils customarily covered under
fire and extended coverage insurance, acts of God, or by any
other cause beyond the reasonable control of Tenant.
ARTICLE 11. TENANT IMPROVEMENT ALLOWANCE AND CONSTRUCTION OR
IMPROVEMENTS BY TENANT. Landlord shall provide an allowance in the amount of
$396,760.00 (the "Allowance Amount") to pay for Tenant's Work as hereinafter
defined. Said allowance shall be paid as follows:
(a) Landlord shall retain and pay directly to all contractors,
subcontractors, materialmen, laborers and others all sums
necessary to pay for Landlord's Work.
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(b) Tenant shall submit draw requests for construction and relocation
expenses incurred and paid to date no more frequently than
monthly, which shall include an itemization of each invoice for
which reimbursement is sought together with evidence of payment
of same.
(c) Landlord shall pay all such requests upon verification thereof
within 10 days of receipt of the request up to the total
Allowance Amount.
(d) Any portion of the Allowance Amount remaining unpaid shall be
paid by Landlord to Tenant within 30 days after all Tenant's work
(as hereinafter defined) is completed, and Tenant has fully
accepted and occupied the Premises.
Tenant shall construct or cause to be constructed a demising wall or
walls between the Premises and the remainder of the Building (the "Remaining
Space") and construct such other improvements as are necessary to separate the
Premises from the Remaining Space, provide utility services to the Remaining
Space, and allow the Remaining Space to be used separately by a separate tenant
from the Premises, including separate metering or submetering of all utilities,
and shall construct a building identification sign or signs as agreed to between
Landlord and Tenant. Tenant shall not be required to have separate meters or
submeters installed for the Remaining Space until such time as Landlord advises
Tenant that it has obtained a tenant for all or a portion of the Remaining
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Space, in which case Tenant shall cause the separate meters (or submeters to the
extent submetering is allowed by the respective utility companies) to be
installed within thirty (30) days of written notice from Landlord to do so. If
Tenant elects to provide submetering of utilities instead of separate metering,
Tenant shall be responsible for all costs of reading the meters and apportioning
the utility bills. Notwith-standing anything herein to the contrary, Tenant
shall be responsible for the payment of all utility charges for the entire
Building until the separate meters or submeters for the Remaining Space are
installed. Tenant shall also be solely responsible at its cost for making such
improvements to the Premises as are necessary to cause the Premises to be
suitable for Tenant's intended use and to comply with all applicable laws,
ordinances, building codes and regulations in effect on the Commencement Date.
All such work done under this Article 11 is referred to as "Tenant Work" and
shall be done at Tenant's expense to the extent the cost thereof exceeds the
Allowance Amount. Tenant's Work shall be done in accordance with detailed
working drawings approved by Landlord, which approval shall not be unreasonably
withheld or delayed. Tenant shall have the right to enter the Premises prior to
the Commencement Date for the purpose of doing such work, provided that upon
such entry Tenant shall maintain all required insurance upon the Premises and
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pay all utilities from such date and all provisions of the Lease relative to
occupancy and indemnification shall apply. Tenant shall provide construction
management services for Tenant's Work and shall retain a qualified general
contractor to perform Tenant's Work.
ARTICLE 12. ALTERATIONS. Tenant shall not make or cause to be made any
alterations, additions, or improvements to the Premises, or install or cause to
be installed any exterior signs, floor coverings, interior or exterior lighting,
plumbing fixtures, shades, canopies or awnings or make any changes to the
mechanical, electrical or sprinkler systems (if any) without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. Tenant
shall present to Landlord plans and specifications for any such proposed work at
the time approval is sought. Subject to the foregoing, Tenant shall have the
right to make installations upon the roof of the Building for communication
devices provided the same, or their installation, does not affect the integrity
of the roof or structure of the Building.
All alterations, installations, additions and improvements in or to the
Premises, installed by Landlord and all alterations, installations, additions
and improvements to the Building made by Tenant other than Tenant's equipment,
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furniture, furnishings, trade fixtures and other personal property, shall be
deemed to have attached to the Premises and to have become the property of
Landlord upon such attachment, and upon expiration of this Lease or any renewal
term thereof, Tenant shall not remove any of such alterations, installations,
additions and improvements; provided, however, Landlord may designate by written
notice to Tenant at the time Landlord consents to such Tenant alterations,
installations, additions and improvements which Tenant alterations,
installations, additions and improvements must be removed by Tenant at the
expiration or termination of this Lease, and Tenant shall promptly remove the
same and repair any damage to the Premises caused by such removal. Tenant shall
have no obligation to remove alterations, installations, additions and
improvements installed by Landlord. All equipment, furniture, furnishings, trade
fixtures, exhaust hoods, and other personal property installed by Tenant in the
Premises shall remain Tenant's property and may be removed by Tenant at the
termination of the Lease; provided Tenant shall repair any damage to the
Premises caused by such removal; further provided that Landlord shall have the
right to remove any such personal property owned by Tenant which is not removed
by Tenant prior to the expiration date of the Lease or within thirty (30) days
after any earlier termination of the Lease, and if not claimed by Tenant within
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thirty (30) days after removal and storage, such personal property will be
deemed to have been abandoned by Tenant and may be disposed of by Landlord
without any further obligation to Tenant. Landlord hereby waives any landlord's
lien on Tenant's personal property.
Tenant shall have the right to make any non-structural alterations,
installations, additions or improvements not exceeding $10,000.00 and which do
not materially affect the building utility systems without obtaining Landlord's
consent. Tenant shall provide Landlord with copies of the drawings covering the
work.
Tenant shall not place any signs on the interior (if visible from the
exterior) or on the exterior of the Building or on the Project without
Landlord's written consent. Tenant shall maintain its sign(s) in good condition
and repair at all times during the term of this Lease. All signs shall be
installed in compliance with all applicable laws, ordinances and regulations.
Landlord shall construct a monument or building sign or signs on or outside the
Building at a location or locations mutually agreed to by Landlord and Tenant,
which shall be for the joint use of Tenant and other tenants in the Building
with the cost of such sign to be paid from the Allowance Amount under Article 11
hereof. The space on such sign identifying Tenant shall not exceed fifty eight
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and one-half percent (58.5%) of the portion of the sign used to identify tenants
in the Building.
If a mechanic's lien is filed against the Premises or the Project for,
or purporting to be for, labor or material alleged to have been furnished, or to
be furnished, to or for Tenant or any subtenant or assignee of Tenant at the
Premises, Tenant shall cause such lien to be discharged within fifteen (15) days
after receipt of written notice from Landlord, by bonding proceedings or
otherwise. If Tenant shall fail to take such actions as shall cause such lien to
be discharged within said fifteen (15) day period, Landlord may, at its option,
pay the amount of such lien or may discharge the same by bonding proceedings
and, in the event of such bonding proceedings, Landlord may require the lienor
to prosecute the appropriate action to enforce the lienor's claim. Any such
amount paid or expense incurred by Landlord, or any expense incurred or sum of
money paid by Landlord by reason of the failure of Tenant to comply with the
foregoing provisions of this Article, or in defending any such action, shall
become immediately due and payable as rent by Tenant to Landlord, together with
interest at the Default Rate thereon from the date of payment by Landlord until
paid by Tenant. Any such payment by Landlord shall not be deemed to be a waiver
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of any other rights which Landlord may have under the provisions of this Lease
or as provided by law.
ARTICLE 13. RIGHT OF ENTRY. Tenant agrees to permit Landlord, its
agents or employees, to enter the Premises at all reasonable times, with a
minimum of 24 hours' advance notice except in an emergency to show premises to
parties wishing to purchase, lease or to make repairs, alterations and
improvements. Landlord may enter the Premises at any time in cases of emergency.
ARTICLE 14. LIABILITY. Landlord shall not be liable for any damage to
property of Tenant or property of Tenant's employees, agents or invitees
resulting from perils customarily covered by fire and extended coverage
insurance, acts of God or any other cause beyond the reasonable control of
Landlord. Tenant agrees to indemnify and save harmless Landlord from any
liability, claim or demand which may arise from such damage to said property.
Tenant shall not be responsible for any damage to or destruction of the Premises
resulting from perils customarily covered by fire and extended coverage
insurance.
ARTICLE 15. DEFAULT.
(a) Events of Default by Tenant. It is expressly agreed that each of
the following shall constitute an event of default ("Event of Default")
hereunder:
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(l) The failure, neglect or refusal of Tenant to pay any
installment of rent or additional rent at the time and in
the amount as herein provided, or to pay any other monies
agreed by it to be paid promptly when and as the same shall
become due and payable under the terms hereof, and if any
such failure, neglect or refusal to pay shall continue for a
period of more than seven (7) days after Tenant's receipt of
Landlord's written notice of default.
(2) The filing of any voluntary or involuntary petition or
similar pleading under any section or sections of any
bankruptcy act against Tenant or the institution of any
voluntary or involuntary proceeding in any court or tribunal
to declare Tenant insolvent or unable to pay its debts, and
the same shall not be dismissed or discharged within thirty
(30) days after Tenant's receipt of notice thereof in
writing from Landlord.
(3) The failure, neglect or refusal of Tenant to keep and
perform any of the covenants, conditions or stipulations
herein contained and covenanted and agreed to be kept and
performed by it and such failure, neglect or refusal shall
continue for a period of more than thirty (30) days after
Tenant's receipt of notice thereof in writing from Landlord;
provided, however, that if the cause for giving such notice
involves the making of repairs or other matters reasonably
requiring a longer period of time than such thirty (30) day
period, Tenant shall be deemed to have complied with such
notice within said period of time if Tenant is diligently
prosecuting compliance with said notice or has taken the
proper steps or proceedings under the circumstances to
prevent the seizure, destruction, alteration or other
interference with the Premises by reason of non-compliance
with the requirements of any law or ordinance or with the
rules, regulations or directions of any governmental
authority, as the case may be.
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(4) The making of any assignment by Tenant of the Premises, or
part thereof, for the benefit of creditors, or should the
Premises be taken under any levy of execution or attachment
in execution against Tenant, and such levy, attachment or
assignment is not dismissed and discharged within thirty
(30) days after Tenant's receipt of written notice thereof
from Landlord.
(b) Landlord's Remedies. Upon the occurrence of any Event of Default as
set forth in Article 15(a) hereof, then Landlord, in addition to the other
rights or remedies that Landlord may have as provided by law, shall have the
right to declare this Lease terminated and the term ended.
Should Landlord take possession of the Premises, it may either
terminate this Lease or it may, from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Premises, and relet the Premises, or any part thereof, for such term or
terms (which may be for a term extending beyond the term of this Lease) and at
such rental or rentals and upon such other terms and conditions as Landlord, in
its sole discretion, may deem advisable, subject to Landlord's duty to mitigate
damages. Upon each such reletting, all rentals and other sums received by
Landlord from such reletting shall be applied as follows: first, to the payment
of any indebtedness other than rent due hereunder from Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting, including
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reasonable brokerage fees and attorneys' fees and of costs of such alterations
and repairs; third, to the payment of rent and other charges due and unpaid
hereunder; and fourth, the remainder, if any, shall be held by Landlord and
applied in payment of future fixed and additional rent as the same may become
due and payable hereunder. If such rentals and other sums received from such
reletting during any month is less than that to be paid during the month by
Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly. No such re-entry or taking possession of
the Premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention shall be given by
Landlord to Tenant or unless the termination hereof be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without termination,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach. Should Landlord at any time terminate this Lease for any
breach, in addition to any other remedies that Landlord may possess pursuant to
the terms of this Lease or as provided by law, Landlord may recover from Tenant
all damages it may incur by reason of such breach, including the cost of
recovering the Premises, reasonable attorneys' fees, and the present value at
the time of such termination of the amount of fixed and additional rent and
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other charges equivalent to rent reserved in this Lease for the remainder of the
stated term of this Lease, all of which amount shall be immediately due and
payable by Tenant to Landlord, subject, however, to Landlord's duty to mitigate
damages.
In the event that a lawsuit is brought by Landlord for recovery of
possession of the Premises, for recovery of rent or any other amount due under
the provisions of this Lease or because of the breach of any other covenant
herein contained on the part of Tenant to be kept and performed, and a breach
shall be established, Tenant shall pay to Landlord all expenses incurred
therefor, including reasonable attorneys' fees.
(c) Default by Landlord. In the event of the failure of Landlord to
perform any obligation of Landlord to be performed by Landlord hereunder, and if
such default continues for a period of more than thirty (30) days after
Landlord's receipt of notice thereof in writing from Tenant, then Tenant may
elect to perform such obligation itself and the reasonable cost incurred by
Tenant is performing such obligation shall be due and payable within seven (7)
days of the receipt of an invoice for the same by Landlord, and if not paid when
due shall bear interest at the Default Rate. Provided, however, that if the
cause for giving such notice involves the making of repairs or other matters
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reasonably requiring a longer period of time than such thirty (30) day period,
Landlord shall be deemed to have complied with such notice within said period of
time if Tenant is diligently prosecuting compliance with said notice.
ARTICLE 16. LANDLORD'S WARRANTY. Landlord warrants and covenants that
it is lawfully in possession of the Premises and has good right and authority to
lease the same and that upon Tenant's paying the rents and performing the
covenants as herein provided it shall and may peaceably and quietly have, hold
and enjoy the Premises for the term or terms herein provided and Landlord will
defend such holding and enjoyment.
ARTICLE 17. SUCCESSORS AND ASSIGNS. The covenants and agreements
contained in this Lease shall apply to, inure to the benefit of and be binding
upon the Landlord and Tenant and upon their respective successors in interest
and assigns.
ARTICLE 18. WAIVER. Any failure or neglect by either party to assert or
enforce any rights or remedies because of any breach or default by the others
hereunder shall not prejudice or affect their respective rights or remedies with
respect to any subsequent breach or default.
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ARTICLE 19. INSURANCE.
(a) Landlord's Insurance. Subject to the provisions of Article 22
hereof, Landlord shall at all times during the term or any extension of this
Lease, carry fire and extended coverage insurance on the Building in an amount
equal to the full replacement value of the Building. Landlord shall comply with
any co-insurance clause in said insurance policy or policies. Tenant shall not
be liable for Landlord's failure to comply with any such co-insurance clause.
Tenant shall not be responsible for any deductible portion of Landlord's fire
and extended coverage insurance policies. Landlord shall provide Tenant with a
certificate that such insurance is in effect and renewal certificates as
necessary within fifteen (15) days after written request by Tenant.
(b) Tenant's Insurance. Tenant agrees that, at its own cost and
expense, it shall procure and continue in force, general liability insurance
insuring Tenant against any and all claims for injuries to persons or damage to
property occurring in or upon the Premises or occurring on the Project, and
including all damage to signs, fixtures or other appurtenances now or hereafter
erected upon the Premises or the Project, during the term of this Lease. Such
insurance shall at all times be in an amount not less than Two Million Dollars
($2,000,000.00) on account of bodily injury to or death of one person, and Two
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Million Dollars ($2,000,000.00) on account of bodily injuries to or death of
more than one person as a result of any one accident or disaster, and Five
Hundred Thousand Dollars ($500,000.00) for property damage in any one accident.
Such insurance shall be written by a company or companies authorized to engage
in the business of general liability insurance in the State of Ohio, and a
certificate of all such policies procured by Tenant in compliance herewith shall
be delivered to Landlord at least fifteen (15) days prior to the time such
insurance is required to be carried by Tenant, and, thereafter, at least fifteen
(15) days prior to the expiration of any such policies. Such policy shall bear
an endorsement stating that the insurer agrees to notify Landlord not less than
ten (10) days in advance of the modification or cancellation of any such policy.
In the event that Tenant fails to maintain such liability insurance, Landlord
shall have the right to obtain liability insurance on behalf of Tenant, insuring
Tenant and containing such limits, and to charge the cost thereof to Tenant
together with interest at the Default Rate until paid. Such right to obtain
liability insurance on behalf of Tenant shall not be deemed to be a waiver of
any other rights which Landlord may have under the provisions of this Lease or
as provided by law.
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Landlord shall obtain and pay the expense of whatever liability
insurance coverage it determines to be necessary in order to protect its own
interest.
Tenant further agrees to maintain in full force throughout the term of
this Lease policies of fire insurance, including extended coverage, on all trade
fixtures, furniture, furnishings, equipment and other personal property of
Tenant located in the Premises. Tenant shall provide Landlord with a certificate
that such insurance is in effect and renewal certificates as necessary.
ARTICLE 20. COMMON AREAS. Landlord agrees that Tenant, and Tenant's
clients, employees, agents, visitors and invitees, shall have the right
throughout the term of this Lease to use, in common with others entitled to
similar use thereof, all of the areas of the Project that may from time to time
be constructed and designated as common areas by Landlord, including but not
limited to parking areas, sidewalks and driveways for ingress and egress to the
Project; provided, however, that Tenant, Tenant's clients, employees, agents,
visitors and invitees shall not use any parking areas reserved and designated
for the exclusive use of Landlord or any other persons. "Common Areas" shall
include the Loading Dock and Turn Around Area.
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The common areas shall at all times be subject to the exclusive
management and control of Landlord, and Landlord shall have the right, from time
to time, to establish, modify and enforce reasonable rules and regulations with
respect to all such common areas if the same are, in Landlord's reasonable
opinion, for the betterment or safety of the Project, and the use of such common
areas by Tenant shall be subject to such rules and regulations. If an amendment
or modification of such rules and regulations would adversely affect the rights
of Tenant under this Lease, such modification shall require the consent of
Tenant, which consent shall not be unreasonably withheld or delayed. Landlord
shall notify Tenant of any modification or amendment to such rules and
regulations at least thirty (30) days before it becomes effective.
Landlord may do and perform such acts in and to said common areas as,
in Landlord's good business judgment, Landlord shall determine to be advisable.
Landlord hereby reserves the right to make alterations, additions, deletions or
changes including, but not limited to, changes in size and configuration of said
common areas, with the consent of Tenant, which consent shall not be
unreasonably withheld or delayed.
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Subject to the provisions of Article 22 hereof, Landlord shall arrange
and adequately maintain the common areas in a good usable condition throughout
the term of this Lease.
ARTICLE 21. NET LEASE. It is the purpose and intent of Landlord and
Tenant that except for Landlord's obligations hereunder for roof and structural
replacement, the annual fixed rent payable by Tenant hereunder shall be
absolutely net to Landlord so that this Lease shall yield, net, to Landlord the
rent specified in Article 3 or Article 4, as the case may be, and that all
costs, expenses or obligations of every kind and nature whatsoever which are
expressed as Tenant's responsibility or for which Tenant has agreed herein to
pay additional rent shall, subject to the provisions of Article 22 hereof, be
paid by Tenant. Tenant hereby agrees to and shall indemnify and save Landlord
harmless from and against all such costs, expenses and obligations.
ARTICLE 22. OPERATING EXPENSES.
(a) Tenant's Proportionate Share of Landlord's Operating Expense.
Tenant shall pay to Landlord, as additional rent, an amount equal to Tenant's
proportionate share ("Tenant's Operating Expense Allocation") of the cost and
expense to Landlord ("Landlord's Operating Expense") of Landlord's Operating
Services, as hereinafter defined, for the Project.
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(b) Statement of Landlord's Operating Expense and Payment. Tenant shall
pay to Landlord monthly installments in advance on the first day of each
calendar month during the term of this Lease an amount equal to one-twelfth
(1/12th) of Tenant's annual Operating Expense Allocation, as said amount is
estimated from time to time by Landlord. Within thirty (30) days after the end
of each calendar year of the term of this Lease, or any renewal term thereof,
Landlord shall furnish to Tenant a statement of the actual amount of Tenant's
proportionate share of Landlord's Operating Expense incurred by Landlord for
Landlord's Operating Services during the preceding calendar year. In the event
that Tenant's proportionate share of Landlord's Operating Expense for such
calendar year exceeds the payments made by Tenant to Landlord pursuant to this
Article 22(b) during such calendar year, Tenant shall, within twenty (20) days
after Landlord has furnished such statement, pay to Landlord the amount of such
excess. In the event the amount of such excess is not paid within twenty (20)
days after Landlord has furnished such statement, such excess shall bear
interest at the Default Rate commencing with the twentieth (20th) day after
Landlord has furnished such statement until such excess is paid by Tenant. In
the event that Tenant shall have paid to Landlord during such calendar year an
amount for Landlord's Operating Expense which exceeds the amount due from Tenant
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to Landlord for such calendar year, the amount of such overpayment shall be
credited against the next payment which shall become due from Tenant to Landlord
for Landlord's Operating Expense.
(c) Landlord's Operating Expense Items. As used herein, the term
"Landlord's Operating Expense" shall include all costs and expenses of any kind
or nature incurred by Landlord in managing, operating, equipping, policing,
protecting, lighting, insuring, repairing, replacing and maintaining the
Project, including all common areas, roof and structural maintenance (but not
roof and structural replacement), in accordance with accepted principles of
sound operation and management, including but not limited to all costs and
expenses incurred pursuant to Article 5, 19, 20 and 21 hereof, and the costs and
expenses of management, security programs, including but not limited to security
and life safety systems, illumination and maintenance of common signs, cleaning,
lighting, snow removal, landscaping, premiums for liability, property and rent
loss insurance, personal property taxes, supplies, the cost of maintaining and
replacement of equipment, reasonable depreciation of maintenance equipment used
in the operation and maintenance of the Project, total compensation and benefits
(including premiums for workers' compensation and other insurance) paid to or on
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behalf of the employees involved in the performance of the work specified in
this Article 22(c), and an amount equal to twenty-nine and one-quarter percent
(29.25%) of the expenses incurred by Landlord in sealing, repairing, striping,
cleaning, and removing snow from the driveways and the common loading dock
turn-around area which serves the Building and the adjacent building in ACP.
(d) Computation of Proportionate Share. Tenant's proportionate share of
Landlord's Operating Expense shall be fifty-eight and one-half percent (58.5%)
of Landlord's Operating Expense.
(e) Review of Records. Tenant shall have the right, within thirty (30)
days after Landlord has rendered its annual statement of Landlord's Operating
Expenses for any calendar year during the term of this Lease, or any extension
thereof, to review Landlord's records relating to Landlord's Operating Expenses
at the office where such records are kept and during Landlord's regular business
hours. Such right shall be exercised within such period and upon fourteen (14)
days' prior written notice given by Tenant to Landlord.
ARTICLE 23. MAINTENANCE AND REPAIRS. Tenant will maintain the interior
of the Premises and all windows and doors in good condition and repair in
accordance with maintenance standards employed in maintenance of comparable
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buildings in Franklin County, Ohio. Maintenance procedures will be subject to
Landlord's approval. In the event that Landlord reasonably determines that
Tenant is not adequately maintaining the Premises, Landlord shall have the
right, upon not less than forty-five (45) days written notice to Tenant
specifying the reasons for such conclusion, and if Tenant has not corrected all
identified problems within such forty-five (45) day period, to perform such
maintenance on behalf of Tenant and to charge Tenant, as additional rent, the
reasonable costs thereof.
Without limitation, Tenant's obligations hereunder shall include
ordinary and extraordinary repairs to keep the interior, windows and doors of
the Premises, and all heating, air conditioning, plumbing and electrical systems
and all fixtures and equipment in good order and repair.
Subject to the provisions of Article 22 hereof, Landlord shall be
responsible for maintaining the exterior, roof and structure of the Building.
Landlord shall be responsible at its sole cost and not subject to the provisions
of Article 22 hereof for replacement, as distinguished from repair and
maintenance, of the roof and structure of the Building.
ARTICLE 24. RULES AND REGULATIONS FOR THE PROJECT. Tenant agrees to
comply with and observe all rules and regulations as set forth in Exhibit C
attached hereto and made a part hereof, and as modified and established by
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Landlord from time to time with respect to the operation and use of the Project
and the Premises in accordance with the provisions of Article 20 hereof.
Tenant's failure to keep and observe said rules and regulations shall constitute
a breach of the terms of this Lease in the manner defined as an Event of Default
hereunder.
ARTICLE 25. ENVIRONMENTAL PROTECTION; COMPLIANCE WITH CODE. Tenant
acknowledges that there are in effect federal, state and local laws and
regulations and that additional laws and regulations may hereinafter be enacted
to go into effect relating to or affecting the Premises and the Project, and
concerning the impact on the environment of construction, land use, maintenance
and operation of structures, and the conduct of business. Tenant will not cause
or permit to be caused any act or practice, by negligence, omission, or
otherwise, that would violate any of said laws or regulations.
Landlord acknowledges that as of the date of execution of this Lease it
has no knowledge of and has not received any notice of intent to commence any
action or proceeding against Landlord or the Premises or Project based on any
violation of any building, fire, safety, zoning, land use or environmental law,
regulation or ordinance of any applicable jurisdiction in any respect which
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might adversely affect the Premises or Project or require any modifications to
the Building.
It is the intent of the parties that Landlord shall be responsible for
the cost of environmental compliance resulting from any existing condition on
the Premises as of the date that Tenant first enters the Premises to commence
Tenant's Work (the "Work commencement Date") and that Tenant shall be
responsible for the cost of any environmental compliance resulting from any
condition or event on the Premises arising after the Work Commencement Date
unless the same is solely the result of the negligence of Landlord. Therefore,
Landlord agrees to indemnify and hold harmless Tenant from any and all claims,
liability, loss, damage costs and expenses arising under any applicable
environmental laws or regulations and conditions existing on the Premises prior
to the Work Commencement Date, except to the extent the same were caused by
Tenant. Tenant agrees to indemnify and hold harmless Landlord from any and all
claims, liability, loss, damage, costs and expenses arising under any applicable
environmental laws or regulations and conditions or events arising after the
Work commencement Date or prior to the Work Commencement Date if caused by
Tenant.
In the event that any use of the Building by Tenant different from the
office/warehouse use for which the Building was designed necessitates any
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modifications to the Building or other actions in order to cause the Building to
comply with applicable land use, zoning, building, fire, safety and
environmental codes of governmental authority having jurisdiction, Tenant will
pay the cost of such modifications and indemnify and save Landlord harmless from
all liability and expense in connection therewith. Any other modifications to
the Building or any other actions required by a change in applicable land use,
zoning, building, fire, safety and environmental codes after the completion of
Tenant's Work will be made by Landlord at Landlord's expense.
ARTICLE 26. REDUCTION OR CURTAILMENT DUE TO ENERGY SHORTAGE. Landlord
and Tenant specifically acknowledge that energy shortages in the region in which
the Project is located may from time to time necessitate reduced or curtailed
operation of the Project and the business conducted by Tenant in the Premises.
Tenant agrees to and shall comply with all such rules and regulations as may be
promulgated from time to time by any governmental authority having jurisdiction
with respect to energy consumption and Tenant shall reduce or curtail operations
in the Premises as shall be directed by such governmental authority. Compliance
with such rules and regulations and/or such reduction or curtailment of
operation shall not constitute a breach of Landlord's covenant of quiet
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enjoyment or otherwise invalidate or affect this Lease, and Tenant shall not be
entitled to any diminution or abatement in rent during periods of reduction or
curtailment of operations, subject, however, to Tenant's right to terminate this
Lease in the event of circumstances constituting a constructive eviction if
reduction or curtailment is for a prolonged period. Failure to keep and observe
said rules and regulations and/or to reduce or curtail business operations as
herein provided shall constitute a breach of the terms of this Lease.
ARTICLE 27. OFFSET STATEMENT. Tenant agrees that, within ten (10)
business days after receipt of a written request therefor by Landlord, to
execute in recordable form and deliver to Landlord a statement, in writing,
stating: (a) that this Lease is in full force and effect, (b) the date of
commencement of the term of this Lease, (c) that rent is paid currently without
any offset or defense thereto, (d) the amount of rent, if any, paid in advance,
and (e) that there are no uncured defaults by Landlord, or stating those
defaults of Landlord claimed by Tenant, provided that, if any such defaults are
claimed, such facts are accurate and ascertainable.
ARTICLE 28. ATTORNMENT. Tenant shall, in the event any proceedings are
brought for foreclosure of any mortgage made by Landlord covering the Premises
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or the Project, attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as Landlord under this Lease.
ARTICLE 29. SUBORDINATION. Tenant agrees that this Lease shall, at the
request of Landlord, be subordinate to any mortgage that now exists or may
hereafter be placed on the Project or the Premises and to any and all advances
to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof; provided that the mortgagees named in said
mortgages shall agree to recognize this Lease in the event of foreclosure if
Tenant is not then in default which default has continued beyond the expiration
of the applicable notice and cure period and has become an Event of Default.
Tenant also agrees that any mortgagee may elect to have this Lease a prior lien
to its mortgage and, in the event of such election and upon notification by such
mortgagee to Tenant to that effect, this Lease shall be deemed prior in lien to
said mortgage. Tenant agrees that, upon the request by Landlord or any
mortgagee, it shall execute whatever instruments may be reasonably required to
carry out the intent of this Article 29 and which do not add to the intent of
this Article 29. Such instruments must be in form and substance reasonably
satisfactory to Tenant and Tenant's counsel. Failure of Tenant to execute any of
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the instruments provided for in Articles 27 or 28 or this Article 29 within
thirty (30) days after receipt of written request to do so by Landlord (unless
due to a reasonable request by Tenant for modification to such instruments)
shall constitute a breach of this Lease, and Landlord may, at its option, cancel
this Lease and terminate Tenant's interest herein.
ARTICLE 30. EMINENT DOMAIN - TAKING OF PREMISES. In the event that the
whole of the Project or the whole or part of the Premises or (except as provided
below) the common area serving the Premises is taken under the power of eminent
domain by any public authority, this Lease shall terminate and expire as of the
date possession is taken by the public authority and Tenant shall pay rent up to
the date of such taking with an appropriate refund by Landlord of such amounts
thereof as shall have been paid in advance for a period subsequent to the date
of the taking. If less than the whole of the Project shall be so taken and the
portion of the Project taken does not involve any part of the Premises or the
common loading dock area serving the Premises and if access is maintained over
at least one of the two common driveways, then this Lease shall continue in
effect. In the event of a termination, Tenant shall pay rent up to the date of
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such taking with an appropriate refund by Landlord of such amounts thereof as
may have been paid in advance for a period subsequent to the date of the taking.
In the event the Premises or the Project, or any part thereof, shall be
taken or condemned either permanently or temporarily for any public or
quasi-public use or purpose by competent authority in appropriation proceedings
or by any right of eminent domain, the entire compensation award therefor,
including, but not limited to, all damages as compensation for diminution in
value of the leasehold, reversion or fee, shall belong to Landlord without any
deductions therefrom for any present or future estate of Tenant, and Tenant
hereby assigns to Landlord all its right, title and interest to any such award.
Although all damages in the event of any condemnation are to belong to Landlord,
whether such damages are awarded as compensation for diminution in value of the
leasehold, reversion or fee of the Premises, Tenant shall, in the event that
this Lease is terminated by reason thereof, have the right to claim and recover
from the condemning authority, but not from Landlord, such compensation as may
be separately awarded or recoverable by Tenant in Tenant's own right on account
of any and all damage to Tenant's business by reason of the condemnation and for
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or on account of any cost or loss which Tenant might incur in removing Tenant's
merchandise, furniture, fixtures, leasehold improvements and equipment.
ARTICLE 31. TENANT'S PROPERTY. Tenant shall be responsible for and
shall pay before delinquency all municipal, county, state and federal taxes
assessed during the term of this Lease against any leasehold interest or
personal property of any kind, owned by or placed in, upon or about the Premises
by Tenant.
Tenant shall hold Landlord harmless from and indemnify Landlord against
any and all claims or liability for any injury or damage to any person or
property in or upon the Premises excepting any injury or damage arising from
Landlord's negligence. Landlord shall be liable for all claims of loss, injury
or damage occurring in or upon the common areas, including the grounds of the
Building and the parking lot, unless caused by the negligence of Tenant.
Landlord shall not be responsible for the flooding of subsurface areas and
damage caused by refrigerators, sprinkling devices, air conditioning apparatus,
water, snow, frost, steam, excessive heat or cold, falling plaster, or broken
fixtures, unless such damage results from the act or neglect of Landlord, and
whether such damage be caused or results from any thing or circumstance above
mentioned or referred to, or any other thing or circumstance of a like nature.
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If any such damage, whether to the Premises, the Building or the Project or any
part thereof, or whether to Landlord or to other tenants in the Project, results
from any act or neglect of Tenant, Landlord may, at Landlord's option, repair
such damage and Tenant shall, upon demand by Landlord, reimburse Landlord
forthwith for the total cost of such repairs. Tenant shall not be liable for any
damages caused by its act or neglect if Landlord or any other tenant of the
Project has recovered the full amount of damages from insurance, and the
insurance company has waived in writing its rights of subrogation against
Tenant.
ARTICLE 32. LIABILITY OF LANDLORD. Tenant hereby recognizes that
Landlord is a partnership. It is expressly understood and agreed by and between
the parties hereto, anything herein to the contrary notwithstanding, that each
and all of the representations, covenants, undertakings and agreements herein
made on the part of Landlord are intended not as personal representations,
covenants, undertakings and agreements of the partners of Landlord, but are made
and intended for the purpose of binding only that portion of Landlord's property
leased here-under. No personal liability or personal responsibility is assumed
by, nor shall at any time be asserted or enforced against, any of the partners
of Landlord on account of this Lease or on account of any covenant, undertaking
or agreement in this Lease contained (either expressed or implied), all such
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personal liability, if any, being expressly waived and released by Tenant
herein, and by all persons claiming by, through or under Tenant. If Landlord
shall fail to perform any covenant, term or condition of this Lease on
Landlord's part to be performed, and if as a consequence of such default Tenant
shall recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of such
judgment and levied thereon against the right, title and interest of Landlord in
the Project, and neither Landlord nor its partners nor any other person or
interest or entity owning any interest in or affiliated with Landlord shall be
liable for any deficiency.
ARTICLE 33. SECURITY DEPOSIT. There shall be no Security Deposit in
connection with this Lease.
ARTICLE 34. NAME OF PROJECT. The name of the Project is Americana
Commerce Park. Such name shall not be changed without the consent of Tenant,
which consent shall not be unreasonably withheld or delayed.
ARTICLE 35. COMMISSIONS AND FEES. Landlord and Tenant each represent
that they have dealt with no real estate brokers or agents in connection with
this Lease except Kohr, Royer, Xxxxxxxx, Inc. In reliance upon the foregoing,
Landlord and Tenant agree to share equally in the payment of a brokerage
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commission to Kohr, Royer, Xxxxxxxx, Inc. in the amount of three percent (3%) of
the net rentals to be paid by Tenant during the original term of this Lease
under Article 3(a) hereof. Said commission shall be paid one-half upon the
execution of this Lease by Landlord and Tenant, and one-half upon Tenant's
acceptance and occupancy of the Premises. Tenant agrees to indemnify and hold
harmless Landlord from all other claims for brokerage commissions and fees based
upon this Lease.
ARTICLE 36. ENTIRE AGREEMENT. This Lease and any exhibits, addenda or
riders attached hereto and forming a part hereof, set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Premises and there are no promises, agreements, conditions or
understandings, either oral or written, between them other than are herein set
forth. No alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by the
parties hereto.
ARTICLE 37. DELAYS. 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 of power, restrictive governmental laws or regulations,
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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, then performance of such act shall be excused for the period equivalent
to the period of such delay. The provisions of this Article 34 shall not operate
to excuse Tenant from prompt payment of rent or any other payments required by
the terms of this Lease.
ARTICLE 38. NOTICES. Any notice, demand, request or other instrument
which may be or is required to be given under this Lease shall be sent by United
States certified mail, return receipt requested, postage prepaid, and shall be
addressed to Landlord at c/o Oakwood Management Company, 0000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx, Xxxx 00000, and to Tenant at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx,
Xxxx 00000, or such other addresses as Landlord or Tenant shall designate by
written notice to the other party. Notice shall be effective upon receipt.
ARTICLE 39. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord; provided, however, upon the request of either
party hereto, the other party shall join in the execution of a memorandum or
so-called "short form" of this Lease for the purposes of recordation. Said
memorandum or "short form" of this Lease shall contain the names of Landlord and
Tenant and their addresses as set forth in this Lease, a reference to this Lease
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with its date of execution, a description of the Premises, including a reference
by volume and page to the record of the deed under which Landlord claims title,
and the term of this Lease, together with the rights of renewal or extensions
thereof.
ARTICLE 40. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer or transfers of Landlord's interest in the Premises, the transferor
shall automatically be relieved of any and all obligations and liabilities on
the part of Landlord accruing from and after the date of such transfer.
ARTICLE 41. APPROVAL AND AUTHORIZATION. At the time of execution and
delivery of this Lease by Tenant, Tenant shall deliver to Landlord a certified
resolution of its board of directors evidencing the previous approval of this
Lease by Tenant and the authority of the officers of Tenant who execute and
deliver this Lease on behalf of Tenant.
ARTICLE 42. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated to be paid
by Tenant to Landlord or any endorsement or statement on any check or any letter
accompanying any check or payment as rent shall be deemed an accord and
satisfaction, and Landlord shall accept such check or payment without prejudice
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to Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease.
ARTICLE 43. RIGHT OF FIRST REFUSAL. In the event space in the Building
immediately contiguous to the Premises (the "Contiguous Space") becomes vacant
and not subject to an existing lease, Landlord shall not lease such Contiguous
Space to any party other than Tenant without first offering the space to Tenant
under the following terms and conditions:
(a) In the event Landlord receives a bona fide offer from a prospective
tenant (including an affiliate of Landlord) which it desires to accept, Landlord
shall notify Tenant ("Landlord's Notice") of the availability of the Contiguous
Space and the economic terms of such offer.
(b) Tenant shall have a period of five (5) business days after receipt of
such notice to notify Landlord ("Tenant's Notice") that it desires to lease all
of such Contiguous Space upon such terms or such other terms as Landlord and
Tenant may agree.
(c) If Tenant so notifies Landlord that it desires to lease such Contiguous
Space, Landlord and Tenant shall promptly amend this Lease to add such
additional space, modify the rent, and include any tenant finish allowance
provisions thereto. All other terms shall be the same as in this Lease.
Provided, however, that if an amendment to this Lease has not been
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executed within thirty (30) days after the date of Tenant's Notice, Tenant shall
nonetheless be obligated to pay the additional rent and common area charges
relative to such Contiguous Space.
(d) If Tenant does not notify Landlord of its election to lease the
Contiguous Space by Tenant's Notice within five (5) business days after receipt
of Landlord's Notice or notify Landlord within such period that it does not
elect to lease the Contiguous Space, Tenant shall be deemed to have waived its
right under this Article 43 to lease the Contiguous Space, and Landlord shall
have the right to enter into a lease with any other party for all or a portion
of the Contiguous Space on terms no less favorable to the Tenant than those
contained in Landlord's Notice at any time. If Landlord desires to lease the
Contiguous Space to a third party on terms more favorable to the prospective
tenant than those contained in the Landlord's Notice, it must first offer to
lease the same to Tenant by means of a new Landlord's Notice, and Tenant shall
thereafter have a five (5) business day period to elect to lease the Contiguous
Space on those terms by sending a Tenant's Notice as set forth herein under the
same conditions set forth in this Article.
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IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of the date of execution of the printed Lease to which it is attached.
Signed and acknowledged LANDLORD:
in the presence of:
AMERICANA INVESTMENT COMPANY
/s/ Xxxxx X. XxXxxxx By /s/ Xxxxxx X. Xxxxxx
------------------------------------ -----------------------------------
/s/ Xxxx X. Xxxxx Its Managing Partner
------------------------------------ -----------------------------------
TENANT:
LEXFORD, INC.
/s/ Xxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------------ -----------------------------------
/s/ Xxxxx Xxxxxxxx Its Comptroller
------------------------------------ -----------------------------------
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STATE OF OHIO )
) ss:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 25th day of
February, 1998, by Xxxxxx X. Xxxxxx, authorized partners of Americana Investment
Company, an Ohio general partnership, on behalf of the partnership.
/s/ Xxxxx X. XxXxxxx
---------------------
Notary Public
STATE OF OHIO )
) ss:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 24th day of
February, 1998, by Xxxxxx X. Xxxxxxx, of Lexford, Inc., an Ohio corporation, on
behalf of the corporation.
/s/ Xxxxx Xxxxxxxxxx
--------------------
Notary Public
47
