Exhibit 10.18
XXXXXXX OFFICE LEASE
THIS OFFICE LEASE ("Lease") is made this 10th day of December, 2001, by and
between (i) XXXXXXX BUILDING CO. LTD., an Ohio limited liability company
("Landlord") and (ii) Grad Partners, Inc., a Delaware Corporation ("Tenant") as
follows:
RECITALS
A. Landlord is the owner of the real property located at 0 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Property"). The Property is
improved by a 15-story building and certain other improvements
(collectively, the "Building").
B. Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant approximately four thousand, seven hundred and twenty-eight
(4,728) rentable square feet of space known as Suite 300, located on
the Third (3rd) floor of the Building outlined in red on the floor
plan attached hereto as Exhibit A (the "Premises"), together with the
nonexclusive right to use all areas of the Property not regularly and
customarily leased for the exclusive use of tenants including, but not
limited to, lobbies, entranceways, vestibules, elevators, restrooms,
common hallways and common stairs (collectively, the "Common Areas")
for the Term, the Rent and subject to the conditions and covenants
hereinafter provided. Notwithstanding the foregoing, the Premises do
not include and Tenant will have no right to occupy any of the
exterior surfaces of the Building.
C. Notwithstanding the foregoing, Landlord hereby acknowledges that
pursuant to the Xxxxxxx Office Lease between Tenant and Landlord,
dated July 30, 2001, Tenant is currently leasing approximately two
thousand three hundred and sixty-four (2,364) rentable square feet,
and at the time of occupancy of the additional leased space adjacent
to the Premises currently occupied by Tenant, the existing Lease shall
terminate in accordance with the provisions of Exhibit E attached
hereto.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Term.
1.1 Initial Term. Subject to and upon the terms and conditions set
forth herein or in any exhibit or addendum hereto, this Lease shall continue in
force for a term of Sixty (60) months (the "Term") commencing on the earlier of
the following dates (the "Commencement Date") (i) the date Tenant takes
occupancy of the Premises, or (ii) the date Landlord has substantially completed
its improvements to the Premises.
1.
2. Rent.
2.1 Base Rent Initial Term. Tenant shall pay to Landlord as "Base
Rent" for the Initial Term, in legal tender and in immediately available funds,
at Landlord's office at 0 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx
00000, or as directed from time to time by Landlord's notice, the sums set forth
below:
Period Annual Rate/RSF Annual Rent Monthly Rent
------ --------------- ----------- ------------
02/01/02 to 03/01/03 $11.50 $54,372.00 $4,531.00
03/01/03 to 03/31/07 $12.00 $56,736.00 $4,728.00
2.2 Base Rent Renewal Term. Tenant shall pay to Landlord as "Base
Rent" for the Renewal Term(s), in legal tender and in immediately available
funds, at Landlord's office at Xxxxxxx Building Co. Ltd., 0 Xxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxx, XX 00000, or as directed from time to time by Landlord's
notice,
2.3 Additional Rent.
2.3.1 In addition to the Base Rent specified in Section 2.1
above, Tenant agrees to pay Tenant's Share (as hereinafter defined) of the
amount, if any, by which the Operating Expenses and Taxes for any calendar year
during the Term after 2001 exceeds the Taxes and Operating Expenses for 2001
(the amount of any such excess being called the "Additional Rent"). Certain
terms are defined as follows:
2.3.1.1 Tenant's Share: The amount of Tenant's pro rata share of
the Expense Escalation for any calendar year after 2001. Tenant's pro rata share
is agreed to be Four Percent (4%), which shall be adjusted in the event that the
total rentable square feet changes.
2.3.1.2 Taxes: (i) All real estate taxes, if any, payable
(adjusted after protest or litigation, if any) for any part of the Term of this
Lease, exclusive of penalties or discounts, on the Property, (ii) any taxes
which shall be levied in lieu of any such taxes on the gross rentals of the
Property, (iii) any special assessments against the Property which shall be
required to be paid during the calendar year in respect to which taxes are being
determined, and (iv) the expense of contesting the amount or validity of any
such taxes, charges or assessments, such expense to be applicable to the period
of the item contested.
2.3.1.3 Operating Expenses: Those expenses incurred or paid on
behalf of Landlord with respect to the management, operation and maintenance of
the Property which, in accordance with accepted principles of sound accounting
practice used by Landlord, as applied to the operation, management and
maintenance of comparable office buildings, are properly chargeable to the
operation and maintenance of the Property, and the cost, as reasonably amortized
by Landlord, with interest at the rate of 10% per annum on the unamortized
amount, of any capital improvement made after completion of initial construction
of the Building which reduces other Operating Expenses, but in an amount not to
exceed such reduction for the relevant year. If Landlord is not furnishing any
particular work or service (the
2.
cost of which if performed by Landlord would constitute an Operating Expense) to
a tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed for the
purposes of this Section 2 to be increased by an amount equal to the additional
operating expense which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such work or service to such
tenant. Operating Expenses shall not include: (i) franchise or income taxes
imposed on Landlord, except to the extent hereinbefore provided, or (ii) the
cost to Landlord of any work or service performed in any instance for any tenant
(including Tenant) at the cost of such tenant.
2.3.2 In order to provide for current payments on account of
Taxes and Operating Expenses, Tenant agrees, at Landlord's request, to pay,
Additional Rent due for the ensuing twelve (12) months, as estimated by Landlord
from time to time, in twelve (12) monthly installments, each in an amount equal
to 1/12th of Additional Rent so estimated by Landlord commencing on the first
day of the month following the month in which Landlord notifies Tenant of the
amount of such estimated Additional Rent. If, as finally determined, Additional
Rent shall be greater than or be less than the aggregate of all installments so
paid on account to Landlord for such twelve (12) month period, then Tenant shall
pay to Landlord the amount of such underpayment, or Landlord shall credit Tenant
for the amount of such overpayment, as the case may be. It is the intention
hereunder to estimate the amount of Taxes and Operating Expenses for each year
and then to adjust such estimates in the following year based on actual Taxes
and Operating Expenses incurred and/or paid by Landlord. Within one hundred
twenty (120) days after each calendar year, Landlord shall furnish Tenant with a
statement ("Operating Expense Statement") setting forth the actual Taxes and
Operating Expenses for the calendar year in question.
2.3.3 Tenant does hereby covenant and agree promptly to pay
Additional Rent as and when the same shall become due and payable, without
further demand therefor (except as set forth herein), and without any set-off,
counterclaim, deduction or recoupment whatsoever. The obligation of Tenant with
respect to the payment of Base Rent and Additional Rent shall survive the
termination of this Lease. Any payment, refund, or credit made pursuant to this
Section 2.3 shall be made without prejudice to any right of Tenant to dispute
such annual statement as provided in paragraph 2.3.4 of this Section 2, or of
Landlord to correct any item(s) as billed pursuant to the provisions hereof.
2.3.4 Within thirty (30) days after receipt of the Operating
Expense Statement, Tenant or its authorized employee shall have the right to
inspect the books of Landlord during the business hours of Landlord at
Landlord's office or, at Landlord's option, at such other location that Landlord
may specify, for the purpose of verifying information in the Operating Expense
Statement. Unless Tenant asserts specific error(s) within thirty (30) days after
delivery of the Operating Expense Statement, the Operating Expense Statement
shall be deemed to be correct. Tenant shall not be entitled to inspect the books
of the Property for any year other than the year covered by the most recent
Operating Expense Statement.
2.3.5 No decrease in Taxes and/or Operating Expenses shall reduce
Tenant's Rent below the annual Base Rent set forth in paragraph (a) of this
Section 2.
3.
2.3.6 All costs and expenses which Tenant assumes or agrees to
pay to Landlord pursuant to this Lease shall be deemed additional Rent and, in
the event of non-payment thereof, Landlord shall have all the rights and
remedies herein provided for in case of non-payment of Rent.
2.4 Buyout Option. See Exhibit B-1 attached hereto.
3. Services. As long as Tenant is not in default under any of the covenants
or provisions of this Lease, Landlord shall maintain (subject to partial
reimbursement as provided in Section 2.3, above) the Premises and the public and
common areas of the Property, such as lobbies, stairs, atriums, landscaping,
corridors and restrooms, in good order and condition except for damage
occasioned by the act of Tenant, its employees, agents or invitees, and Landlord
shall also provide the following services during reasonable and usual business
hours for the Term of this Lease as follows:
3.1 HVAC. Air conditioning and heat for normal purposes only, to
provide in Landlord's judgment, comfortable occupancy Monday through Friday from
8:00 a.m. to 5:00 p.m. and Saturday from 8:00 a.m. to 12:00 p.m., Sundays and
holidays excepted. Tenant agrees not to use any apparatus or device in, upon or
about the Premises which in any way may increase the amount of such services
usually furnished or supplied to tenants in the Building and Tenant further
agrees not to connect any apparatus or device with the conduits or pipes, or
other means by which such services are supplied, for the purpose of using
additional or unusual amounts of such services, without written consent of
Landlord. Should Tenant use such services under this provision to excess,
Landlord reserves the right to charge for such services. The charge shall be
payable as additional Rent. Should Tenant refuse to make payment upon demand of
Landlord, such excess charge shall constitute a breach of the obligation to pay
Rent under this Lease and shall entitle Landlord to the rights hereinafter
granted for such breach. The A/C unit being installed under Exhibit X-x for
cooling the Computer Room may be run 24 hours 7 days per week at 67 degrees.
3.2 Electric Power and Lighting. Electric power for lighting, computer
equipment, computer cooling A/C and operation of office machines shall be
furnished by Landlord and is intended to be that consumed in normal office use
for lighting, computer equipment, computer cooling A/C and office machines.
Landlord will charge for electricity as sub metered as an addition to the
monthly Rent with such charge to be based upon the average cost per unit of
electricity for this Building. If Tenant refuses to pay upon demand of Landlord
any charges set forth in this Section 3.2, such refusal shall constitute a
breach of the obligation to pay Rent under this Lease and shall entitle Landlord
to the rights hereinafter granted for such breach.
3.3 Water. Water for drinking, lavatory and toilet purposes from the
regular Building supply (at the prevailing temperature) through fixtures
installed by Landlord (or by Tenant with Landlord's prior written consent).
3.4 Taxes and Insurance. Taxes and insurance on the Premises, except
as otherwise provided herein.
4.
3.5 Exterior Maintenance. Landlord agrees to maintain the exterior and
interior of the Building and Property to include snow removal, maintenance of
the structure, roof, mechanical and electrical equipment, architectural finish,
and so on, excluding only those items specifically excepted elsewhere in this
Lease.
3.6 Closure of Building. Landlord may close the Building at such hours
as Landlord may from time to time reasonably determine; so long as such closure
does not unreasonably interfere with Tenant's conduct of business in the
Premises except in cases of emergency, at which times of closure admittance may
be gained only under such regulations as may from time to time be prescribed by
Landlord (e.g. key card or touch pad access).
3.7 Elevator Service. Passenger elevator service, shall be provided
for the Building twenty-four (24) hours per day, seven (7) days per week.
Automatic elevator service shall be deemed "elevator services" within the
meaning of this paragraph.
3.8 Miscellaneous. Lighting replacement, public restroom supplies,
window washing with reasonable frequency, and janitor service to the Premises
during the times and in the manner that such janitor services are customarily
furnished in general Class B office buildings in the area.
Landlord shall make reasonable efforts to provide the foregoing services,
but in any event, shall not be liable for damages, nor shall the Rent herein
reserved be abated for failure to furnish or any delay in furnishing any of the
foregoing services when there are disturbances or labor disputes of any
character, or by inability to secure electricity, fuel supplies, machinery,
equipment or labor, or by the making of necessary repairs or improvements to
Premises, or unavailability of utilities due to governmental restrictions, nor
shall the temporary failure to furnish any of such services be construed as an
eviction of Tenant or relieve Tenant from the duty of observing and performing
any of the provisions of this Lease.
4. Improvements to Be Made by Landlord.
4.1 Landlord shall construct for Tenant, at its sole cost and expense,
the improvements to the Premises as described on the attached Exhibit B-2, and
in the layout, design and quantities therefor shown on Exhibit B-2, attached
hereto, up to a maximum cost of $36,900.00. Landlord and Tenant acknowledge that
under the existing Lease a maximum improvement cost of $21,900 was utilized, and
the balance of $15,000 will used for the increased space of 1,764 rentable
square feet hereunder. Landlord shall not be required to remove or install any
partitions or improvements that are not compatible with the design for the
Building. In the event that the costs of such improvements exceeds such amount
for any reason whatsoever, including, without limitation, changes in the scope
of the work or increased costs for the same work, Tenant shall pay the same as
Additional Rent hereunder promptly upon being invoiced therefor, and failure by
Tenant to pay same in full within thirty (30) days shall constitute failure to
pay Rent when due and an event of default by Tenant hereunder giving rise to all
remedies available to Landlord under this Lease and at law for nonpayment of
Rent.
5.
5. Quiet Enjoyment; Landlord Right of Entry.
5.1 Quiet Enjoyment. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall, at all times
during the Term herein granted, peacefully and quietly have and enjoy possession
of the Premises without any encumbrance or hindrance by, from or through
Landlord.
5.2 Landlord Right of Entry. Landlord shall have the right, without
charge or diminution of rent, to enter the Premises at all reasonable times,
upon reasonable notice, and in a reasonable manner for the purpose of examining
the Premises and making repairs, alterations or improvements either to the
Premises or to utility lines or other facilities of the Building or to install
such lines or facilities. Tenant shall, upon discovery of any defect in or
injury to the Premises or any need for repairs that are the responsibility of
Landlord, promptly report the same to Landlord in writing, specifying such
defect or injury. Landlord will have the right throughout the term of this Lease
to access and utilize the portions of the Premises identified on the attached
Exhibit A, being the service and utility chase serving the entire Building, at
all reasonable times, upon reasonable notice to Tenant (except in the case of
emergencies in which no notice will be required). Landlord will have the right
of ingress and egress to and from such areas from the elevator on each such
floor.
6. Certain Rights Reserved to Landlord. Landlord reserves the following
rights:
6.1 To name or rename the Building and to change the name or street
address of the Building.
6.2 To install and maintain a sign or signs on the exterior or
interior of the Building.
6.3 To designate all sources furnishing sign painting and lettering,
towels, toilet supplies, and like services used on the Premises or relating
thereto. Further, to designate all vendors supplying services or materials on or
about the common areas, including without limitation ice, drinking water,
vending machines, shoe shining, mobile vending service, catering services or
other like services.
6.4 To constantly have pass keys to the Premises and each of the
rooms, closets and other doors therein.
6.5 On reasonable prior notice to Tenant (which shall not be
unreasonably withheld), to exhibit the Premises to (i) any prospective tenants
during the last Six (6) months of the Term, and to (ii) any prospective
purchaser, mortgagee, or assignee of any mortgage on the Property and to others
having a legitimate interest at any time during the Term.
6.6 At any time in the event of an emergency, and otherwise at
reasonable times, to take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Premises or to the Building, as
may be necessary or desirable for the safety, protection or preservation of the
Premises or the Building or Landlord's interests, or as may be necessary or
desirable in the operation or improvement of the Building or in order to comply
with all laws, orders and requirements of any governmental or other authority.
There shall be no
6.
allowance to Tenant or diminution of rent and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to or loss of business
arising from the reasonable making of any repairs, alterations, improvements or
installations in or to any portion of the Building, the Premises or the common
areas, or in and to the fixtures, appurtenances and equipment thereof.
7. Estoppel Certificates. Tenant shall, within ten (10) days after written
request of Landlord, execute, acknowledge, and deliver to Landlord or to
Landlord's mortgagee, proposed mortgagee, land lessor or proposed purchaser of
the Property or any part thereof, any estoppel certificates requested by
Landlord from time to time, which estoppel certificates shall show, among other
information requested by Landlord, whether the Lease is in full force and effect
and whether any changes may have been made to the original Lease; whether the
Term of the Lease has commenced and full rental is accruing; whether there are
any defaults by Landlord and, if so, the nature of such defaults; whether
possession has been assumed and all improvements to be provided by Landlord have
been completed; and whether Rent has been paid more than thirty (30) days in
advance and that there are no liens, charges, or offsets against rental due or
to become due and that the address shown on such estoppel is accurate.
8. Indemnification by Tenant. Tenant agrees that Landlord, its agents and
employees, shall not be liable for any damage or liability of any kind or for
any injury to or death of persons or damage to property of Tenant or any other
person from any cause whatsoever by reason of the construction, use, occupancy
or enjoyment of the Premises by Tenant or any person therein or holding under
Tenant. Tenant agrees to indemnify, defend and save harmless Landlord, its
agents and employees from all claims, actions, demands, damages, costs and
expenses and liabilities whatsoever, including reasonable attorneys' fees, on
account of any such real or claimed damage or liability, and from all liens,
claims and demands occurring in or at the Premises, or arising out of the
construction, use, occupancy or enjoyment of the Premises and its facilities, or
any repairs or alterations which Tenant may make upon the Premises, or
occasioned in whole or in part by any act or omission of Tenant, its agents,
contractors, servants, employees or invitees. Tenant shall not, however, be
liable for damage or injury occasioned by the gross negligence or willful acts
of Landlord or its agents, contractors, servants or employees unless such damage
or injury arises from perils against which Tenant is required by this Lease to
insure.
9. Insurance/Release/Waiver of Subrogation.
9.1 Tenant agrees that from and after the date of delivery of the
Premises from Landlord to Tenant and continuing throughout the Term of this
Lease, Tenant shall carry and maintain, at its sole cost and expense, the
following types of insurance, in the amounts specified and in the form
hereinafter provided for:
9.1.1 Commercial Liability. Commercial General Liability
insurance covering the Premises and tenant's use thereof against claims for
personal injury or death and property damage occurring upon, in or about the
Premises. Such insurance shall have limits of not less than $ 1,000,000.00
Combined Single Limit for any one occurrence and shall contain a per location
aggregate endorsement. This insurance coverage shall also extend to any
liability of the Tenant arising out of the indemnities provided in Section 8
hereof. The insurance coverage required under this Section 9.1.1 shall, in
addition, extend to any liability of Tenant arising out of the indemnities
provided in Article 8 hereof.
7.
9.1.2 Trade Fixtures, Personal Property and Business
Interruption. All Risk/Special Property insurance covering Tenant's trade
fixtures, personal property and business interruption in or on the Premises.
Such insurance shall equal at least 90% of the replacement cost of the insured
property. Tenant may elect to obtain earthquake and/or flood coverage as the
Landlord assumes no responsibility for any loss to Tenant's property whatsoever.
All policies of insurance provided for in this Section 9.1 shall be issued
in form reasonably acceptable to Landlord by insurance companies reasonably
acceptable to Landlord and qualified to do business in Ohio. Each policy
described in Section 9.1.1 above shall be issued in the name of Tenant, and
Landlord shall be named as an additional insured. A certificate of such coverage
shall be delivered to Landlord within fifteen (15) days after delivery of
possession of the Premises to Tenant and thereafter within fifteen (15) days
prior to the expiration of each policy; and shall be written as a primary policy
that does not contribute to and is not in excess of coverage that Landlord may
carry.
9.2 Subject to reimbursement by Tenant as herein provided, Landlord
shall maintain in effect at all times during the Term of this Lease the
following types of insurance coverage, in the amounts specified and in the form
hereinafter provided for:
9.2.1 Commercial Liability. Landlord shall at all times during
the Term of this Lease carry and maintain Commercial General Liability Insurance
covering the common areas of the Property against claims for bodily injury or
death and property damage occurring upon, in or on such areas, with a limit of
not less than $1,000,000 Combined Single Limit for any one occurrence with a per
location aggregate.
9.2.2 Real and Personal Property of Landlord. Landlord shall at
all times during the Term of the Lease maintain in effect insurance covering the
Building (including exterior walls, leasehold improvements, downspouts, gutters
and roof, but excluding all fixtures and property required to be insured by
Tenant pursuant to Section 9.1) in an amount not less than 90% of the functional
value and providing protection on an All Risk/Special Perils basis. Landlord's
insurance cost referred to in this section shall be included in Operating
Expenses referred to in Section 2.3 and Tenant shall reimburse Landlord for a
portion of such insurance costs in accordance with the provisions of said
Section 2.3.
9.3 All personal property belonging to Tenant or any occupant of the
Premises that is in or on any part of the Property shall be there at the risk of
Tenant or of such other person only, and Landlord, its agents and employees
shall not be liable for any damage thereto or for the theft or misappropriation
thereof. Neither Landlord nor its agents or employees shall be liable for any
damage or loss to fixtures, equipment, merchandise or other personal property of
Tenant located anywhere in or on the Premises. The foregoing waiver of liability
includes, without limitation, those losses caused by theft, fire, water,
explosion, sewer backup or any other insurable hazards, regardless of the origin
or cause thereof, and Tenant does hereby expressly release Landlord, its agents
and employees of and from any and all liability for such damages or loss. Tenant
does hereby expressly release Landlord, and its agents and employees, of and
from any and all liability for loss resulting from business interruption at the
Premises for perils covered by an All Risk/Special policy, and Tenant does
hereby expressly release Landlord, and its agents and employees, of and from any
and all liability for such damage or loss.
8.
9.4 Each party hereby waives its rights against the other with respect
to losses insured against or required to be insured against by such party under
this Article 9. The policies required to be carried under this Article 9 shall
provide for waivers of any right of subrogation that the insurer of such party
may require against the other party hereto with respect to any such losses.
10. Holding Over. Unless otherwise agreed to in writing by Landlord and
Tenant, if Tenant retains possession of the Premises or any part thereof after
the expiration or earlier termination of this Lease, Tenant shall pay Landlord
Rent at 150% of the monthly rate in effect immediately prior to the termination
of the Term for the time Tenant thus remains in possession and, in addition
thereto, Tenant shall pay Landlord for all damages, consequential as well as
direct, sustained by reason of Tenant's retention of possession. The provisions
of this Article 10 do not exclude Landlord's rights of re-entry or any other
right hereunder. No such holding over shall be deemed to constitute a renewal or
extension of the Term hereof and Landlord will retain all rights to re-enter the
Premises from and after the expiration or earlier termination of this Lease.
Further, from and after the date that Landlord has provided written notice to
Tenant that Landlord desires possession of the Premises, effective at any time
on or after the expiration or termination of this Lease (but not earlier than
thirty (30) days following the provision of such notice), to either (i) prepare
the same for the possession thereof by a new tenant or (ii) to provide
possession of the same to a new tenant, Tenant will be liable to Landlord for
all consequential damages suffered by Landlord as a result of Tenant's
continuing occupancy of the Premises, including without limitation damages
arising from increased costs to prepare the Premises (or any part thereof) more
quickly for such new tenant, costs for concessions to such new tenant arising
from delayed occupancy, damages for which Landlord is liable to such new tenant
as a result of Landlord's inability to deliver the Premises as and when required
under any new agreement and any lost rental or other consideration, any tenant
improvements completed or Realtor fees owed, from a lease that is terminated by
a tenant due to the inability of Landlord to deliver the Premises to such new
tenant as provided in a written lease with such tenant for occupancy of the
Premises or any part thereof.
11. Assignment and Subletting.
11.1 Tenant shall not, without the express written consent of
Landlord, which consent may be withheld in Landlord's sole discretion:
11.1.1 assign, convey, mortgage, pledge, encumber or otherwise
transfer (whether voluntarily or otherwise) this Lease or any interest under it;
11.1.2 allow any transfer of this Lease by operation of law;
11.1.3 sublet the Premises or any part thereof; or
11.1.4 permit the use or occupancy of the Premises or any part
thereof by anyone other than Tenant.
11.2 Landlord shall have the option, upon receipt of Tenant's written
request for Landlord's consent to any assignment or subletting, in addition to
denying such request, to cancel this Lease as to the portion of the Premises
proposed to be assigned or sublet. This option
9.
shall be exercised if at all, within thirty (30) days following Landlord's
receipt of Tenant's written request, by delivery to Tenant of Landlord's
intention to exercise the option.
11.3 If this Lease be assigned or if the Premises or any part thereof
be sublet or occupied by anybody other than Tenant, Landlord may, after default
by Tenant, collect Rent from the assignee, subtenant or occupant, and apply the
net amount collected to the Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of Tenant's
covenants contained in this Lease or the acceptance of such assignee, subtenant
or occupant as Tenant, or a release of Tenant from further performance by Tenant
of covenants on the part of Tenant herein contained.
11.4 In the event a sublease or assignment is made, with Landlord's
prior written consent, as herein provided, Tenant shall pay Landlord a charge of
THREE HUNDRED FIFTY AND NO/100 DOLLARS ($350.00) as reimbursement for necessary
legal and accounting services required by Landlord to accomplish such assignment
or subletting. Said amount shall be deemed to be additional Rent under the terms
of this Lease.
11.5 In the event Tenant sublets all or a portion of the Premises or
assigns the Lease for an amount in excess of the Base Rent set forth in Section
2.1, of this Lease, then Tenant shall pay to Landlord, as additional Rent, fifty
percent (50%) of such excess received by Tenant.
11.6 In addition, and notwithstanding anything to the contrary
contained in this Section 11, if assignment or subletting is allowed, no such
assignment of this Lease or subletting of the Premises shall be deemed to
release Tenant from any of its obligations under this Lease, nor shall any
assignment or subletting be construed as permitting any further assignment or
subletting except in accordance with this Section 11.
12. Condition of Premises. Except as otherwise agreed to in writing,
Tenant's taking possession of the Premises shall be conclusive evidence as
against Tenant that the Premises were in good order and satisfactory condition
when Tenant took possession, except as to latent defects. Tenant accepts the
Premises in their present "AS IS/WHERE IS/WITH ALL DEFECTS" condition. No
promise of Landlord to alter, remodel, repair or improve the Premises or the
Building (except as set forth in Article 4, above) and no representation
respecting the condition of the Premises, Building, or areas in the vicinity of
the same have been made by Landlord or any representative of Landlord to Tenant
or any representative of Tenant, other than as may be contained herein or in a
separate agreement signed by Landlord and Tenant. At the termination of this
Lease, Tenant shall return the Premises broom-clean and in as good condition as
when Tenant took possession, ordinary wear and tear and loss by fire or other
casualty excepted, failing which Landlord may restore the Premises to such
condition and Tenant shall pay the cost thereof on demand.
13. Use of Premises; Alterations; Signs; Governmental Regulations.
13.1 Tenant may not use the Premises or permit the use of the Premises
for any purpose whatsoever at any time except for general office purposes.
10.
13.2 Tenant, its employees and agents shall perform and abide by the
Rules & Regulations, attached hereto as Exhibit C. Landlord may from time to
time throughout the Term make reasonable amendments and additions to the Rules &
Regulations and Tenant is required to abide by the same.
13.3 Tenant shall not make any alterations, improvements or additions
to the Premises without Landlord's advance written consent in each and every
instance. In the event Tenant desires to make any alterations, improvements or
additions, Tenant shall first submit to Landlord plans and specifications
therefor and obtain Landlord's written approval thereof prior to commencing any
such work. Landlord's consent to such work or Landlord's approval of such plans
and specifications shall create no responsibility or liability on the part of
Landlord for their completeness, design sufficiency, or compliance with all
laws, rules and regulations or governmental authorities of which may hereafter
be in effect. All alterations, improvements or additions whether temporary or
permanent in character, made by Landlord or Tenant in or upon the Premises shall
become Landlord's property and shall remain upon the Premises at the termination
of this Lease without compensation to Tenant (excepting only Tenant's movable
office furniture, trade fixtures, office and professional equipment). Any damage
caused by or resulting from the removal of Tenant's office furniture, trade
fixtures, and office and professional equipment may be repaired by Landlord at
Tenant's cost and expense. Any alterations that involve (i) structural
alterations or (ii) penetrations to the roof or other elements of the exterior
shell of the Building may be done only under the supervision of a representative
of Landlord. With respect to any alterations that are performed on the Premises
by Tenant, Tenant will (i) obtain all required building permits and other
permits, (ii) perform such alterations in conformity with all applicable
governmental laws, ordinances, codes, rules and regulations, including without
limitation building and fire regulations and the Americans with Disabilities
Act, and (iii) Tenant shall be responsible for promptly paying all contractors,
subcontractors, material men and laborers coming onto the Premises and shall
cause to be released within five (5) days of notice from Landlord any mechanics
lien placed on the Premises as a result of Tenant's work or alleged to be as a
result of Tenant's work.
13.4 Without Landlord's written consent, Tenant shall have no right
under this Lease to put any improvements on the exterior of the Property,
including the roof or exterior walls.
13.5 No signs, advertisements or notices of any kind shall be
inscribed, painted or affixed upon, or be projected from any part of the
Premises or building except of the directory board in the main lobby and on the
entrance to the Premises and then only in such manner as may be designated by
Landlord.
13.6 Tenant shall comply at its cost and expense with all laws, orders
and regulations of federal, state, county and municipal authorities relating to
Tenant's specific use of the Premises, and with any direction or recommendation
of any public officer or officers relating to Tenant's specific use of the
Premises, pursuant to law, or any reasonable request of any insurance company
carrying insurance on the Premises, and shall bear all costs of any kind and
nature whatsoever occasioned by or necessary for compliance with the same.
Except as relates to the Tenant's specific use of the Premises as described in
the previous sentence, Landlord shall comply at its cost and expense with all
laws, orders and regulations of federal, state, county and
11.
municipal authorities relating to the Building and the Property (including, but
not limited to, those laws, orders and regulations which are generally
applicable to the Building and Property including the Premises), and with any
direction or recommendation of any public officer or officers relating to the
Building and the Property, pursuant to law, or any reasonable request of any
insurance company carrying insurance on the Building or Property, and shall bear
all costs of any kind and nature whatsoever occasioned by or necessary for
compliance with the same.
13.7 Tenant may not undertake any act, or permit any act to be
undertaken in the Premises that violates any private easement, covenants,
conditions, or restrictions that applies to the Premises or the Building as of
the date of this Lease.
13.8 Tenant shall be responsible for all compliance with the Americans
with Disabilities Act as it relates to the Premises and Tenant hereby agrees to
indemnify, defend, and hold harmless Landlord from and against any and all fees,
fines, damages, costs, expenses, and/or liabilities including but not limited to
attorneys' fees resulting directly or indirectly from breach of same.
14. Repairs. Tenant shall give to Landlord prompt written notice of any
damage to, or defective condition in any part or appurtenance of the Building's
plumbing, electrical, heating, air conditioning or other systems serving,
located in, or passing through the Premises. Tenant shall, at Tenant's own
expense, keep the Premises in good order, condition and repair during the Term,
and Tenant, at Tenant's expense, shall comply with all laws and ordinances, and
all rules and regulations of all governmental authorities and of all insurance
bodies at any time in force, applicable to the Premises or to Tenant's use
thereof, except that Tenant shall not hereby be under any obligation to comply
with any law, ordinance, rule or regulation requiring any structural alteration
of or in connection with the Premises, unless such alteration is required by
reason of condition which has been created by, or at the instance of Tenant, or
is required by reason of a breach of any of Tenant's covenants and agreements
hereunder. Landlord shall not be required to repair any injury or damage by fire
or other cause, or to make any repairs or replacements of any panels,
decoration, office fixtures, railing, ceiling, floor covering, partitions, or
any other property installed in the Premises by Tenant.
15. Untenantability. If the Premises are made untenantable in whole or in
part by fire or other casualty, the Rent, until repairs shall be made or the
Lease terminated as hereinafter provided, shall be apportioned on a per diem
basis according to the part of the Premises which is usable by Tenant, if, but
only if, such fire or other casualty be not caused by the fault or negligence of
Tenant, its contractors, agents, or employees. If such damage shall be so
extensive that the Premises cannot be restored by Landlord within a period of
six (6) months, either party shall have the right to cancel this Lease by notice
to the other given at any time within thirty (30) days after the date of such
damage; except that if such fire or casualty resulted from Tenant's fault or
negligence, Tenant shall have no right to cancel. In the event of giving
effective notice pursuant to this Article 15, this Lease and the Term and the
estate hereby granted shall expire on the fifteenth (15th) day after the giving
of such notice as fully and completely as if such date were the date
hereinbefore set for the expiration of the Term of this Lease. If this Lease is
not so terminated, Landlord will promptly repair the damage at Landlord's
expense to a condition substantially similar to that existing prior to such
damage.
12.
16. Eminent Domain.
16.1 In the event that title to the whole or any part of the Premises
shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title and Landlord
shall be entitled to receive the entire award, Tenant hereby assigning to
Landlord Tenant's interest therein, if any. However, nothing herein shall be
deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property or
fixtures belonging to Tenant or for the interruption of or damage to Tenant's
business or for Tenant's moving expenses.
16.2 In the event that title to a part of the Building other than the
Premises shall be so condemned or taken and if in the opinion of Landlord, the
Building should be restored in such a way as to alter the Premises materially,
Landlord may terminate this Lease and the Term and estate hereby granted by
notifying Tenant of such termination within sixty (60) days following the date
of vesting of title, and this Lease and the Term and estate hereby granted shall
expire on the date specified in the notice of termination, not less than sixty
(60) days after the giving of such notice, as fully and completely as if such
date were the date hereinbefore set for the expiration of the Term of this
Lease, and the Rent hereunder shall be apportioned as of such date.
16.3 For the purpose of this Section 16, a sale to a public or
quasi-public authority under threat of condemnation shall constitute a vesting
of title and shall be construed as a taking by such condemning authority.
17. Default.
17.1 Tenant's Defaults.
17.1.1 The following occurrences will be deemed to be a breach by
Tenant of its obligations under this Lease:
17.1.1.1 If Tenant does not deliver any payment of Rent to
Landlord within ten (10) days after such payment is due, time being of the
essence of this provision. In the event of non-payment of Rent, no notice to
Tenant is required before such non-payment is considered a default.
17.1.1.2 If Tenant defaults in the prompt and full performance of
any other provision of this Lease (but for the payment of Rent as provided
above) and such default continues for thirty (30) days following written notice
from Landlord to Tenant;
17.1.1.3 If the leasehold interest of Tenant is levied upon under
execution or is attached by process of law; or
17.1.1.4 If Tenant shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of Tenant or of all or a
substantial part of its assets, (ii) file a voluntary petition in bankruptcy or
admit in writing its inability to pay its debts as they come due, (iii) make a
general assignment for the benefit of creditors, (iv) file a petition
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or an answer seeking reorganization or arrangement with creditors or to take
advantage of any insolvency law, or (v) file answer admitting the material
allegations of a petition filed against Tenant in any bankruptcy, reorganization
or insolvency proceeding, or if an order, judgment or decree shall be entered by
any court of competent jurisdiction adjudicating Tenant a bankrupt or insolvent
or approving a petition seeking reorganization of Tenant or appointing a
receiver, trustee or liquidator of Tenant.
17.1.2 Upon the occurrence of any such event, Landlord may, at
its election take any one or more of the following actions, (i) accelerate all
amounts that may be due and payable by Tenant over the remaining life of the
Lease and declare such sum immediately to be due and payable in full, (ii)
terminate the Lease and Tenant's right to possession of the Premises, (iii)
without terminating the Lease, endeavor to re-let the Premises, and/or (iv) take
any other action reasonably calculated to resolve the deficiency under the
Lease, any such action being entirely for the account and at the cost of Tenant.
No action by Landlord under this Article 17 shall relieve Tenant of any
obligation, including payment of Rent under this Lease.
17.1.3 Upon any termination of this Lease, Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession thereof
to Landlord, and hereby grants to Landlord full and free license to enter into
and upon the Premises in such event with or without process of law and to
repossess Landlord of the Premises as of Landlord's former estate and to expel
or remove Tenant and any others who may be occupying or within the Premises and
to remove any and all property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass, eviction or forcible
entry and detainer, and without relinquishing Landlord's right to Rent or any
other right given to Landlord hereunder or by operation of law.
17.1.4 If Landlord elects, without terminating the Lease, to
endeavor to re-let the Premises, Landlord may, at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidence of tenancy, and take and
hold possession thereof as provided in Section 17.1.3, without such entry and
possession terminating the Lease or releasing Tenant, in whole or in part, from
Tenant's obligation to pay the Rent hereunder for the full Term as hereinafter
provided. Upon and after entry into possession without terminating of the Lease,
Landlord may re-let the Premises or any part thereof for the account of Tenant
to any person, firm or corporation other than Tenant for such Rent, for such
time and upon such terms, as Landlord shall determine, to be reasonable. In any
such case, Landlord may make repairs, alterations and additions in or to the
Premises, and redecorate the same to the extent deemed by the Landlord necessary
or desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of the re-letting. If the consideration collected by
Landlord upon any such re-letting for Tenant's account is not sufficient to pay
monthly the full amount of the Rent reserved in this Lease, together with the
cost of repairs, alterations, additions, redecorating and Landlord's expenses,
Tenant shall pay to Landlord the amount of each monthly deficiency upon demand;
and if the consideration so collected from any such re-letting is more than
sufficient to pay the full amount of the Rent reserved herein, together with the
costs and expenses of Landlord, Landlord, at the end of the stated Term of this
Lease, shall account to Tenant.
14.
17.1.5 If Landlord elects to terminate this Lease in any of the
circumstances specified in Section 17.1, Landlord shall forthwith upon such
termination be entitled to recover as damages, and not as a penalty, an amount
equal to the then present value of the Rent applying a discount rate of eight
percent (8.0%) and additional Rent provided in this Lease for the residue of the
stated Term hereof plus the unamortized portion of the rental commission related
to the lease for which Landlord is liable or Landlord has already paid and the
unamortized portion of any costs of tenant improvement work done by Landlord
related to the Lease or Tenant's tenancy; PROVIDED, HOWEVER, that these two
items shall not be subject to any discount, but shall be due and promptly
payable at the time of termination.
17.1.6 Any and all property which may be removed from the
Premises by Landlord pursuant to the authority of the Lease or of law, to which
Tenant is or may be entitled, may be handled, removed or stored by Landlord at
the risk, cost and expense of Tenant and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall pay
to Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not removed
from the Premises or retaken from storage by Tenant within thirty (30) days
after the end of the Term or of Tenant's right to possession of the Premises,
however terminated, shall be conclusively deemed to have been forever abandoned
by Tenant and either may be retained by Landlord as its property or may be
disposed of in such manner as Landlord may see fit.
17.1.7 Tenant agrees that if it shall at any time fail to make
any payment or perform any other act on its part to be made or performed under
this Lease, Landlord may, but shall not be obligated to, and after reasonable
notice or demand and without waiving, or releasing Tenant from any obligation
under this Lease, make such payment or perform such other act to the extent
Landlord may deem desirable, and in connection therewith to pay expenses and
employ counsel. Tenant agrees to pay reasonable attorney's fee if legal action
is required to enforce performance by Tenant of any condition, obligation or
requirement hereunder. All sums so paid by Landlord and all expenses in
connection therewith, together with interest thereon at the rate of ten percent
(10%) per annum from the date of payment, shall be deemed additional Rent
hereunder and payable at the time of any installment of Rent thereafter becoming
due and Landlord shall have the same rights and remedies for the non-payment
thereof, or of any other additional Rent, as in the case of default of payment
of Rent.
17.1.8 All rights and remedies of Landlord herein enumerated in
this Section 17.1 shall be cumulative, and none shall exclude any other right or
remedy allowed by law. In addition to the other remedies in this Lease provided,
Landlord shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the covenants, agreements or conditions of this
Lease.
17.2 Landlord's Defaults. Landlord shall be in default of this Lease
if Landlord fails to perform any duty or obligation imposed upon it by this
Lease and the default continues for a period of thirty (30) days after written
notice is given to Landlord by Tenant, or for an unreasonable period of time if
thirty (30) days is not sufficient time to repair, remedy or correct such
default. Landlord agrees that if it shall at any time fail to perform any of the
obligations of it as required in Section 3 of this Lease for a period of thirty
(30) days following written notice
15.
from Tenant of the failure to provide such service (or in the event a cure of
the specified default reasonably takes longer than thirty (30) days to cure,
then for such longer period as is reasonably necessary to effectuate such cure),
then Tenant may, but shall not be obligated to, without waiving, or releasing
Landlord from any obligation under this Lease, make such payment or perform such
other act to the extent Tenant reasonably may deem desirable. All sums so paid
by Tenant and all expenses in connection therewith, together with interest
thereon at the rate of ten percent (10%) per annum from the date of payment
shall be paid from Landlord to Tenant within thirty (30) days from Tenant
invoicing Landlord for the same. In the alternative, at Landlord's option,
Landlord may provide to Tenant a credit against other sums owing under this
Lease by a writing from Landlord to Tenant providing the same. Notwithstanding
anything contained in this Lease, Tenant will not have the right to offset
amounts Tenant claims are owing to it from the amount of rent owed from Tenant
to Landlord hereunder or in any other manner arising from Landlord's alleged
default under this Lease.
18. Security Deposit. Upon the execution of this Lease, Tenant has
deposited with Landlord the full sum of SEVEN THOUSAND NINETY-TWO AND NO/100
DOLLARS ($7,092.00) ("Security Deposit") as security for the full and faithful
performance of every provision of this Lease to be performed by Tenant, which
Security Deposit was paid under the existing Lease and hereby acknowledged by
Landlord. If Tenant defaults in the performance of any provision of this Lease,
including but not limited to the provisions relating to the payment of Rent,
Landlord may use, apply or retain all or any part of this Security Deposit for
the payment of any Rent or any other sum in default or for the payment of any
other amount which Landlord may spend or become obligated to spend by reason of
Tenant's default or to compensate Landlord for any other loss, cost or damage
which Landlord may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used or applied, Tenant shall, within five (5) days after
written demand therefor, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount and Tenant's failure to do
so shall be a breach of this Lease. Landlord shall not, unless otherwise
required by law, be required to keep this Security Deposit separate from its
general funds, nor pay interest to Tenant. If Landlord is required to maintain
the Security Deposit in an interest bearing account, Landlord will retain the
maximum amount permitted under applicable law as a bookkeeping and
administrative charge. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or, at Landlord's option, to the
last transferee of Tenant's interest hereunder) at the expiration of the Lease
Term and upon Tenant's vacation of the Premises. Landlord shall have the right
to transfer any Security Deposit held to any purchaser of the Building. Upon
such transfer, Tenant shall look solely to such purchaser for return of the
Security Deposit; and Landlord shall be released from any liability with respect
to the Security Deposit.
19. Miscellaneous.
19.1 Subordination of Lease. This Lease is and shall be subject and
subordinate to any and all mortgages or deeds of trust now existing upon or that
may be hereafter placed upon the Premises and the Property and to all advances
made or to be made thereon and all renewals, modifications, consolidations,
replacements or extensions thereof and the lien of any such mortgages or deeds
of trust shall be superior to all rights hereby or hereunder vested in Tenant,
to the full extent of all sums secured thereby; unless such mortgages or deeds
of trust
16.
expressly provide or elect that this Lease shall be superior to such mortgages
or deeds of trust. If any such mortgages or deeds of trust are foreclosed, upon
request of the mortgagee or holder, as the case may be, Tenant will attorn to
the purchaser at the foreclosure sale. This provision shall be self-operative
and no further instrument of subordination shall be necessary to effectuate such
subordination and the recording of any such mortgage or deed of trust shall have
preference and precedence and be superior and prior in lien to this Lease,
irrespective of the date of recording. In confirmation of such subordination,
Tenant shall at the request of Landlord or the holder of any such mortgage or
deed of trust execute and deliver to Landlord within ten (10) days any
instrument that Landlord or such holder may reasonably request.
19.2 Lease Binding upon Assignees. This Lease and all covenants,
provisions and conditions herein contained shall inure to the benefit of and be
binding upon the heirs, executors, administrators, personal representatives,
successors and assigns, respectively of the parties hereto, provided, however,
that no sublease, assignment or transfer by, from, through or under Tenant in
violation of the provisions hereof shall vest in the sublessee, assignee or
transferee any right, title or interest whatsoever.
19.3 Commencement of Possession. If Landlord shall be unable to give
possession of the Premises on the Commencement Date of the Term hereof because
the Premises shall not be ready for occupancy, Landlord shall not be subject to
any liability for the failure to give possession on said date. Under such
circumstances, unless the delay is the fault of Tenant, the Rent shall not
commence until the Premises are ready for occupancy by Tenant, and in such
event, the beginning and termination dates of the Term hereof shall be adjusted
accordingly, which adjustment will be evidenced by an agreement signed by
Landlord and Tenant setting forth the adjusted beginning and termination dates.
If at Tenant's request Landlord shall make the Premises available to Tenant
prior to the Commencement Date of the Term for the purpose of decorating,
furnishing and equipping the Premises, the use of the Premises for such work
shall not create a Landlord-Tenant relationship between the parties, nor
constitute occupancy of the Premises within the meaning of the next sentence,
but the provisions of Section 9 of this Lease shall apply. If, with the consent
of Landlord, Tenant shall enter into occupancy of the Premises to do business
therein prior to the Commencement Date of the Term, all provisions of this
Lease, including but not limited to the date for expiration of the Term hereof,
shall apply and the Rent shall accrue and be payable at the first rate specified
in Section 2.1 from the date of occupancy.
19.4 Force Majeure. In the event Landlord shall be delayed or hindered
in or prevented from the performance of any obligation required under this Lease
by reason of strikes, lockouts, inability to procure labor or materials, failure
of power, fire or other casualty, acts of God, restrictive governmental laws or
regulations, riots, insurrection, terrorism, war or any other reason not within
the reasonable control of Landlord, then the performance of such obligation
shall be excused for a period of such delay, and the period for the performance
of any such act shall be extended for a period equivalent to the period of such
delay. Notwithstanding the foregoing, Tenant will not be excused in the timely
payment of Rent or any other charges under this Lease as a result of such force
majeure events.
19.5 Notices and Consents. All notices, demands, requests, consents or
approvals which may or are required to be given by either party to the other
shall be in writing, and shall be given by personal delivery or by telegram or
by nationally recognized overnight
17.
delivery service or by United States certified or registered mail, postage
prepaid. Any such notice shall be deemed given as of the date personally
delivered to the other party, or as of the date such telegram is delivered to
the other party, or the day after such notice is sent by nationally recognized
overnight delivery service, or three (3) days after such notice is sent United
States certified or registered mail, as the case may be.
Notices to Tenant shall be addressed as follows:
Grad Partners, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Executive Vice President and General Counsel
Notices to Landlord shall be addressed as follows:
Xxxxxxx Building Co. Ltd.
0 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Either party may change any of the foregoing addresses from time to time by
providing written notice of such change to the other party. All consents and
approvals provided for herein must be in writing and sent as provided above to
be valid. If the term "Tenant", as used in this Lease, refers to more than one
(1) person, notice given as aforesaid to any one (1) or more of such persons
shall be deemed to have been duly given to Tenant and such consent or approval
given by any one (1) or more of such persons shall be binding upon all.
19.6 Entire Agreement, Enforceability; Amendments. This Lease and any
Exhibits attached hereto constitute the entire agreement between the parties
relating to the subject matter hereof, and there exists no other oral or written
understandings, agreements, representations or assurances with respect to the
matters set forth herein. Unless expressly stated herein, this Lease confers no
rights upon any person or business entity that is not a party hereto. If any
provision herein contained shall be held to be illegal or unenforceable, such
holding shall not affect the validity or enforceability of the other provisions
of this Lease. No agreement to amend or modify any provision of this Lease will
be deemed to be effective unless such agreement is in writing and signed by each
of the parties to this Lease.
19.7 No Estate in Land. This contract and Lease shall create the
relationship of landlord and tenant between Landlord and Tenant; no estate shall
pass out of Landlord; and Tenant has only a usufruct which is not subject to
levy and sale.
19.8 Invalidity of Particular Provisions. If any clause or provision
of this Lease is or becomes illegal, invalid, or unenforceable because of
present or future laws or any rule, decision, or regulation of any governmental
body or entity, the intention of the parties hereto is that the remainder of
this Lease shall not be affected thereby.
18.
19.9 Miscellaneous Taxes. Tenant shall pay prior to delinquency all
taxes assessed against or levied upon its occupancy of the Premises, or upon the
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises, if nonpayment thereof shall give rise to a lien on the
real estate, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from
the property of Landlord. In the event any or all of Tenant's fixtures,
furnishings, equipment and other personal property, or upon Tenant's occupancy
of the Premises, shall be assessed and taxed with the property of Landlord,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's fixtures, furnishings, equipment or
personal property.
19.10 Substitute Premises. If the Premises contain an area of five
thousand (5,000) square feet or less, Landlord shall have the right at any time
during the Term hereof, upon giving Tenant not less than sixty (60) days prior
written notice, to provide and furnish Tenant with space elsewhere in the
Building of approximately the same size as the Premises and remove and place
Tenant in such space, with Landlord to pay all reasonable direct costs and
expenses incurred as a result of such removal of Tenant, but not any indirect or
special expenses resulting from such relocation, including but not limited to
Tenant's loss of business or loss of profits. Should Tenant refuse to permit
Landlord to move Tenant to such new space at the end of said sixty (60) day
period, Landlord shall have the right to cancel and terminate this Lease
effective ninety (90) days from the date of original notification by Landlord.
If Landlord moves Tenant to such new space, this Lease and each and all of its
terms, covenants and conditions shall remain in full force and effect and be
deemed applicable to such new space, and such new space shall thereafter be
deemed to be the Premises as though Landlord and Tenant had entered into an
express written amendment of this Lease with respect thereto.
19.11 Brokerage. Tenant represents and warrants that it has dealt with
no broker, agent or other person in connection with this transaction and that no
broker, agent, or other person brought about by this transaction, other than
[None] and Tenant agrees to indemnify and hold Landlord harmless from and
against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having dealt with Tenant
with regard to this leasing transaction. The provisions of this Section 19.11
shall survive the termination of this Lease.
19.12 Interest on Past-Due Obligations. Other remedies for default in
this Lease notwithstanding, any sum accruing to Landlord or Tenant under the
terms and provisions of this Lease which is not paid when due shall bear
interest at the rate of one-and-one-half percent (1 1/2%) per month, but in no
event more than the maximum amount allowed by law, from the date when any such
sum becomes due and payable under the terms and provisions of this Lease until
paid. In addition, and not by way of limitation to the preceding sentence, if
any Base Rent and/or additional Rent payment is not received by Landlord on or
before the fifth day of the month for which such payment is due, a service
charge of five percent (5%) of such past-due amount shall become due and payable
in addition to such amounts owed under this Lease.
19.13 Alternate Electrical Provider. Because electricity to the
Premises is supplied to the Premises through common facilities with the
remainder of the Building, Tenant
19.
will not be able to utilize an alternative electricity provider; however,
Landlord may in its sole judgement, utilize an alternative electricity provider
if it so chooses.
19.14 Special Stipulations.
19.14.1 No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the Premises
shall reinstate, continue or extend the Term of this Lease or affect any such
notice, demand or suit or imply consent for any action for which Landlord's
consent is required.
19.14.2 No waiver of any default of Tenant hereunder shall be
implied from any omission by Landlord to take any action on account of such
default if such default persists or be repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated.
19.14.3 It is understood that Landlord may occupy portions of the
Building in the conduct of Landlord's business. In such event, all references
herein to other tenants of the Building shall be deemed to include Landlord as
an occupant.
19.14.4 The term "City" as used in this Lease shall be understood
to mean the City and/or County in which the Property is located.
19.14.5 All of the covenants of Tenant hereunder shall be deemed
and construed to be "conditions" as well as "covenants" as though the words
specifically expressing or importing covenants and conditions were used in each
separate instance.
19.14.6 This Lease shall not be recorded by either party without
the consent of the other.
19.14.7 Neither party has made any representations or promises,
except as contained herein or in some further writing signed by the party making
such representation or promise.
19.14.8 In the absence of fraud, no person, firm or corporation,
or the heirs, legal representatives, successors and assigns, respectively,
thereof, executing this Lease as agent, trustee or in any other representative
capacity shall ever be deemed or held individually liable hereunder for any
reason or cause whatsoever.
19.14.9 In the event of variation or discrepancy, Landlord's
original copy of the Lease shall control.
19.14.10 Each provision hereof shall extend to and shall, as the
case may require, bind and inure to the benefit of Landlord and Tenant and their
respective heirs, legal representatives, successors and assigns. This Lease
shall be interpreted under and governed by the laws of the State of Ohio.
20.
19.14.11 If because of any act or omission of Tenant, its
employees, agents, contractors, or subcontractors, any mechanic's lien or other
lien, charge or order for the payment of money shall be filed against Landlord,
or against all or any portion of the Premises, or the Building of which the
Premises are a part, Tenant shall, at its own cost and expense, cause the same
to be discharged of record, within thirty (30) days after the filing thereof,
and Tenant shall indemnify and save harmless Landlord against and from all
costs, liabilities, suits, penalties, claims and demands, including reasonable
attorney's fees resulting therefrom.
19.14.12
19.14.12.1 Tenant will not make or permit the generation,
treatment, storage, release or disposal of any Hazardous Substance or Hazardous
Waste (as hereinafter defined) on or under the Premises and/or the Building. The
term "Hazardous Substance" or "Hazardous Waste" includes, without limitation,
those substances included within the definitions of hazardous substances,
hazardous materials, toxic substances or solid waste in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. Section 6901 et seq. and the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX") as codified at 42 U.S.C. Section 9671 et
seq., and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et
seq., and in the regulations promulgated pursuant to said laws.
19.14.12.2 Tenant shall provide immediate notice to Landlord in
the event that, contrary to the covenant of Tenant contained in subsection
19.14.12.1 (m) (i) above, any Hazardous Substance or Hazardous Waste is
generated, treated, stored, released or disposed of in Premises by Tenant, it's
agents, employees, invitees or guests, or, Tenant has knowledge of any such
event in any other part of the Premises or Building.
19.14.12.3 Tenant releases, indemnifies and holds Landlord
harmless from and against all actual or threatened claims, costs (including but
not limited to the cost of investigation, removal, remediation and other clean
up of Hazardous Substances and Hazardous Wastes, and reasonable fees of
attorneys and other professionals experts and consultants retained by Landlord),
demands, orders, losses, lawsuits, liabilities, damages (including without
limitation all consequential damages) and expenses whether brought collectively
or individually by a governmental authority or any third part arising from or
related to any of the following. This indemnity shall survive the termination of
this Lease and the vacation of the Premises by Tenant and the sale of the
Premises by Landlord.
(A) The past, present or future release, threatened
releases, storage, treatment, accumulation, generation, utilization, disposal,
transportation or other handling or migration of any Hazardous Substance or
Hazardous Waste on, in onto, or from the Premises.
(B) The violation or alleged violation of environmental laws
occurring on or related to the Premises.
21.
(C) Any action taken by Landlord to eliminate, prevent, or
mitigate the potential adverse impact on the Premises or Landlord as a result of
or in anticipation of any actual, suspected or threatened violation of
environmental laws or release or threatened release of a Hazardous Substance or
Hazardous Waste on, in or from or otherwise affecting the Premises; such action
may include but need not be limited to, the disposition, distribution, sale,
disclaimer, or renunciation of any portion of the Premises.
(D) The costs of any required or necessary repair, cleanup
or detoxification of the Premises and the preparation and implementation of any
closure, remedial or other required plans.
19.14.13 Landlord and Tenant agree that no portion of the Base
Rent paid by Tenant after the expiration of any period during which such rent
was abated shall be allocated by Landlord or Tenant to such abatement period,
nor is such rent intended by the parties to be allocable to any abatement
period.
19.14.14 Landlord and Tenant waive trial by jury in the event of
any action, proceeding or counterclaim brought by either Landlord or Tenant
against the other in connection with this Lease. Tenant hereby designates all
courts of record, state and federal, sitting in Cincinnati, Ohio and having
jurisdiction over the subject matter, as forums where any action, suit or
proceeding in respect of or as arising from or out of this Lease, its making,
validity or performance, may be prosecuted against Tenant, its successors and
assigns, and by the foregoing designation Tenant consents to the jurisdiction
and venue of such courts.
19.14.15 It is understood and agreed that this Lease shall not be
binding until and unless all parties have signed it.
20. Tenant's Representations.
20.1 Corporate Authority. If Tenant signs this Lease as a corporation
or partnership, each of the persons executing this Lease on behalf of Tenant
warrants to Landlord that (i) Tenant is a duly authorized corporation or
partnership, (ii) Tenant has the full right and authority to enter this Lease
and (iii) each and every person signing on behalf of Tenant is authorized to do
so. Upon Landlord's request, Tenant will provide evidence, satisfactory to
Landlord, confirming these representations.
20.2 Financial Information. The financial information provided by
Tenant and any guarantors of this Lease, including without information balance
sheets, net worth statements, tax returns, income and expense reports, and other
documentation, is true and accurate.
21. Liability of Landlord. The term "Landlord" as used in this Lease, so
far as covenants or agreements on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of Landlord's interest in
this Lease at the time in question, and in the event of any transfer or
transfers of such interest Landlord herein named (and in case of any subsequent
transfer, the then transferor) shall be automatically freed and relieved from
and after the date of such transfer of all personal liability as respects the
performance of any covenants or agreements on the part of Landlord contained in
this Lease thereafter to be performed. If Landlord shall fail to perform or
observe any term, covenant, condition or
22.
obligation required to be performed or observed 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, that being
the sole asset to which Tenant may look for payment of any such judgment; and
Tenant agrees that no other assets of Landlord, wherever situated, shall be
subject to levy, execution or other process for the satisfaction of Tenant's
judgment. Tenant further agrees that neither Landlord nor any of the managers,
members, partners, agents, representatives, or employees of Landlord shall be
liable for any deficiency.
22. Consents. Wherever in this Lease the consent of a party is required,
such consent shall not be unreasonably withheld, conditioned or delayed.
23. Exhibits. Exhibits A, B, C, D, and E are attached hereto and made a
part hereof by this reference.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day
and year first above written.
LANDLORD:
Signed and acknowledged in Xxxxxxx Building Co. Ltd.
the presence of an Ohio limited liability company
/s/ XxXxxx X. Xxxxxxx By: /s/ C. Xxxxx Xxxxx
--------------------------------- ------------------
Printed: XxXxxx X. Xxxxxxx Name: C. Xxxxx Xxxxx
Title: Managing Partner
/s/ Xxxxxxxx Xxxxxxx
---------------------------------
Printed: Xxxxxxxx Xxxxxxx
Signed and acknowledged TENANT:
in the presence of
Grad Partners, Inc.
/s/ Xxxxxx Xxxxxxx a Delaware corporation
---------------------------------
XXXXXX XXXXXXX
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------------- --------------------
XXXXX XXXXX XXXXXXX X. XXXXX
Executive Vice President and Secretary
23.
STATE OF OHIO )
) SS:
COUNT OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 12th day of
December, 2001 by C. XXXXX XXXXX, Member of Xxxxxxx Building Co. Ltd., an Ohio
limited liability company, on behalf of the company.
/s/ XxXxxx X. Xxxxxxx
-----------------------------------
Notary Public
STATE OF CALIFORNIA )
) SS:
COUNTY OF SAN DIEGO )
The foregoing instrument was acknowledged before me on this 10th day of
December, 2001, by XXXXXXX X. XXXXX, the Executive Vice President and Secretary
of Grad Partners, Inc., on behalf of the corporation.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
XXXXXX X. XXXXXX
Notary Pubic
24.
EXHIBIT A
LOCATIONAL FLOOR PLAN
To be prepared and attached by Landlord
EXHIBIT B-1
Tenant's Buy-Out Clause
In the event that the Tenant opts for early termination of the Lease,
Tenant will meet the following conditions:
1 The Tenant will give the Landlord Ninety (90) days notice to terminate
the lease prior to moving out of the premises. This notice must be
delivered in writing. The Tenant must be current and in compliance
with all terms and conditions of the lease.
2 The Tenant will allow the Landlord access to the premises for the
purpose of leasing the space to another tenant as provided for in the
Lease.
3 The Tenant will upon giving notice to terminate this Lease immediately
pay the Landlord six (6) months rent of TWENTY-SEVEN THOUSAND ONE
HUNDRED EIGHTY-SIX AND NO/100 DOLLARS ($27,186.00). This sum is to
cover the rent once the Tenant has vacated the premise until the
Landlord can release the premise. In addition the Tenant will continue
to pay rent until Tenant vacates the premises. If the premises are
released a refund for the balance will be refunded.
4 The Tenant will give up any claim to the security deposit Tenant has
paid. Any damaged to the premises beyond the normal wear and tear of
general office work will be charged to the Tenant in addition to the
security deposit.
5 The Tenant will pay the unamortized remainder of the improvements cost
to the Premises per section 4.0 of the Lease.
EXHIBIT C
RULES & REGULATIONS
Tenant agrees to comply with the following rules and regulations and with
such reasonable modifications thereof and additions thereto as Landlord may
hereafter from time to time make for the Building. Landlord shall not be
responsible for the nonobservance by any other tenant of any of said rules and
regulations:
(a) Tenant shall not exhibit, sell or offer for sale on the Premises or in
the Building any article or thing except those articles and things essentially
connected with the stated use of the Premises by Tenant without the advance
consent of Landlord.
(b) Canvassing, soliciting or peddling in the Building is prohibited and
Tenant shall cooperate to prevent the same.
(c) Tenant will not make or permit to be made any use of the Premises or
any part thereof which would violate any of the covenants, agreements, terms,
provisions and conditions of this Lease or which directly or indirectly is
forbidden by public law, ordinance or governmental regulation or which may be
dangerous to life, limb or property, or which may invalidate or increase the
premium cost of any policy of insurance carried on the Building or covering its
operation, or which will suffer or permit the Premises or any part thereof to be
used in any manner or anything to be brought into or kept therein which, in the
judgment of Landlord, shall in any way impair or tend to impair the character,
reputation or appearance of the Property as a high quality office building, or
which will impair or interfere with any of the services performed by Landlord
for the Property.
(d) Tenant shall not display, inscribe, print, paint, maintain or affix on
any place in or about the Building any sign, notice, legend, direction, figure
or advertisement, except on the doors of the Premises and on the Building
directory, and then only such name(s) and matter, and in such color, size, place
and materials, as shall first have been approved by Landlord. The listing of any
name other than that of Tenant, whether on the doors of the Premises, on the
Building directory, or otherwise, shall not operate to vest any right or
interest in this Lease or in the Premises or be deemed to be the written consent
of Landlord, it being expressly understood that any such listing is a privilege
extended by Landlord revocable at will by written notice to Tenant.
(e) Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business address of Tenant, and shall never use
any picture or likeness of the Building in any circulars, notices,
advertisements or correspondence without Landlord's consent.
(f) No additional locks or similar devices shall be attached to any door or
window without Landlord's prior written consent. No keys for any door other than
those provided by Landlord shall be made. If more than two keys for one location
are desired, Landlord will
provide the same upon payment by Tenant. All keys must be returned to Landlord
at the expiration or termination of this Lease.
(g) All persons entering or leaving the Building after hours on Monday
through Friday, or at any time on Saturdays, Sundays, or holidays, may be
required to do so under such regulations as Landlord may impose. Landlord may
exclude or expel any peddler.
(h) Tenant shall not overload any floor. All safes, furniture, boxes and
bulky articles, packages and freight shall be moved into or out of said Building
or from one part of the Building to another under supervision of Landlord and at
such times and according to such regulations as may be designated from time to
time by Landlord and at the entrance designated by Landlord. No packages or
freight shall be carried into the main entranceways of the Building unless
arrangements are first made with Landlord, who will prescribe the time and
manner for carrying in or removal of such articles. Tenant shall be responsible
for all injury to persons or property caused by installing, maintaining or
removing such articles.
(i) Unless Landlord gives advance consent, Tenant shall not install or
operate any steam or internal combustion engine, boiler, machinery,
refrigerating or heating device or air-conditioning apparatus in or about the
Premises, or carry on any mechanical business therein, or use the Premises for
housing accommodations or lodging or sleeping purposes, or do any cooking
therein, or use any illumination other than electric light, or use or permit to
be brought into the Building any inflammable fluids such as gasoline, kerosene,
naphtha, and benzene, or any explosives, radioactive materials or other articles
deemed extra hazardous to life, limb or property. Tenant shall not use the
Premises for any illegal or immoral purpose. Tenant agrees specifically that no
food, soft drink, or vending machines will be installed in the Premises.
(j) Tenant shall cooperate fully with Landlord to assure the effective
operation of the Building's air-conditioning system, including the closing of
Venetian blinds, and if windows are operable to keep them closed when the
air-conditioning system is in use.
(k) Tenant shall not contract for any work or service which might involve
the employment of labor incompatible with the Building employees or employees of
contractors doing work or performing services by or on behalf of Landlord.
(l) The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress to and egress from its Premises. The halls, passages, exits,
entrances, elevators, stairways and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of Landlord, shall
be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
constructed to prevent such access to persons with whom Tenant normally deals in
the ordinary course of Tenant's business unless such persons are engaged in
illegal activities. Neither Tenant nor any employees or invitees of Tenant shall
go upon the roof or mechanical areas of the Building.
(m) No Tenant shall accumulate or store in the Premises any waste paper,
sweepings, rags, rubbish or other combustible matter and Tenant shall surrender
such matter to Landlord
without compensation to be handled and disposed by Landlord. Nothing shall be
thrown by Tenant, their employees or guests, out of the windows or doors or down
the passages or skylights or over balcony rails of the Building. Nor shall any
waste materials be placed in the hallways or Building public areas at any time.
(n) Tenant shall not use, keep or permit to be used explosives, articles of
a dangerous nature, or keep any foul or noxious gas or substance in the
Premises, or permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or birds be
brought in or kept in or about the Property.
(o) Tenant shall see that the doors, and windows, if operable, of the
Premises are closed and securely locked before leaving the Building and must
observe strict care and caution that all water faucets or water apparatus are
entirely shut off before Tenant or Tenant's employees leave the Building, and
that all electricity shall likewise be carefully shut off so as to prevent waste
or damage.
(p) If a Tenant desires telegraphic or telephonic connections, Landlord
will direct the electricians as to where the wires are to be introduced and
without such direction no boring or cutting for wires shall be permitted.
(q) The water closets and other apparatus 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 therein. Any damages resulting
to them from misuse shall be borne by Tenant who shall cause it.
(r) Ice, mineral water, toilet and other supplies shall not be furnished by
persons other than those approved by Landlord.
(s) Landlord will furnish janitorial service and Tenant may not employ
their own janitors except with the written consent of Landlord. When employed by
Tenant, such janitors shall be subject to the regulations and control of
Landlord, but any such janitors shall not be considered as a servant or employee
of Landlord. Landlord shall not be liable for failure to furnish janitorial
service by reason of strikes or other causes.
(t) In the event Tenant installs extra heat-producing equipment in the
Premises that exceeds the standard air conditioning system design, thereby
overloading the system, Landlord may install additional air conditioning
equipment at Tenant's expense.
(u) Tenant shall be required to obtain written consent of Landlord and use
only authorized office moving companies when moving in or out of the Building.
Tenant shall coordinate the times and method of moving in or out of the Building
with Landlord.
(v) Tenant shall be liable for injury or damage caused by the infraction of
any of the above rules and regulations; or for acts causing damage to the
Building of its appliances. Landlord may at once repair said damage or injury,
charging cost of same to Tenant, which amount shall be part of the rent due for
the ensuing month.
(w) Tenant shall refrain from using or permitting the premises or any
portion thereof to be used as living quarters, sleeping quarters, or lodging.
In addition to all other liabilities for breach of any covenant of this Exhibit
C, Tenant shall pay to Landlord an amount equal to any increase in insurance
premiums payable by Landlord or any other tenant in the Building, caused by such
breach.
EXHIBIT D
GUARANTY OF LEASE
THIS GUARANTY dated as of December 10, 2001, by and between Direct III
Marketing, Inc., ("Guarantor") to and for the benefit of Xxxxxxx Building Co.,
Ltd, an Ohio Corporation, having a mailing address of 0 Xxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxx, Xxxx 00000 ("Landlord").
WITNESSETH
WHEREAS, Grad Partners, Inc., ("Tenant"), a wholly owned subsidiary of
Guarantor, has entered into a Lease with Landlord as of this date pursuant to
which Tenant has leased certain Premises, as therein defined, a part of an
office building commonly known as The Xxxxxxx building, located at 0 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx;
WHEREAS, it is in the interest of Tenant and the Guarantor that the
contemplated transaction be consummated.
NOW, THEREFORE, in consideration of the foregoing recitals and to induce
Landlord to enter into the Lease and to lease the Premises to Tenant, and for
other good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor:
1. Unconditionally and absolutely guarantees the performance of Tenant's
obligations under the Lease and the due and punctual payment of all Rent
including, but not limited to, Base Rent, as defined in and provided for in the
Lease, and all other sums that may be due Landlord from Tenant under the Lease,
and the due and punctual performance and observance by Tenant of all the other
terms, covenants and conditions of the Lease, whether according to the present
terms thereof, at any earlier or accelerated date or dates as provided therein,
or pursuant to any extension of time or to any change or changes or amendment in
the terms, covenants and conditions thereof now or at any time hereafter made or
granted.
2. Waives diligence, presentment, protest, demand for payment, extension of
time of payment, notice of acceptance of this Guaranty, any failure, omission,
delay or lack on the part of Landlord to enforce, assert or exercise any right,
power or remedy of Landlord under the Lease, nonpayment at maturity and
indulgences and notices of every kind and consents to any and all forbearances
and extensions of the time of payment of sums due under the Lease and to any and
all changes in the terms, covenants and conditions thereof hereafter made or
granted; it being the intention hereof that the Guarantor shall remain liable as
principal until the full amount of all Rent including, but not limited to, Base
Rent and other sums due Landlord, and including damages for breach of Lease, if
any, and any other sums due or to become due thereon or under the Lease shall
have been fully paid to Landlord.
3. Agrees that Guarantor shall have no right of subrogation whatsoever with
respect to the aforesaid indebtedness, or to any monies due and unpaid thereon
or any collateral securing the same, unless and until Landlord shall have
received payment in full of all sums due under the Lease.
4. Agrees that this Guaranty may be enforced by Landlord without first
resorting to or exhausting any deposit, security or collateral and without first
having recourse to the Lease
and any property of Tenant or security thereunder or through legal proceedings
or otherwise; provided, however, that nothing herein contained shall prevent
Landlord from suing Tenant under the Lease without making the Guarantor a party
to the suit, or from exercising any other rights thereunder, and if such suit,
or other remedy is availed of, only the net proceeds therefrom, after deduction
of all charges and expenses of every kind and nature whatsoever, shall be
applied in reduction of the amount due under the Lease.
5. Agrees that Guarantor's obligation to make payment in accordance with
the terms of this Guaranty shall not be impaired, modified, changed, released or
limited in any manner whatsoever by (i) any set-off, counterclaim, reduction or
diminution of any obligation or defense of any kind or nature that the Guarantor
may have or has against Tenant, (ii) any impairment, modification, change,
release or limitation of the liability of Tenant or its estate in bankruptcy
resulting from the operation of any present or future provision of the United
States Bankruptcy Code or other similar statute or from the decision of any
court.
6. Agrees that in the event of the insolvency of Tenant, or the inability
of Tenant to pay debts as they mature or an assignment by Tenant for the benefit
of creditors or the institution of any proceedings by or against Tenant alleging
that Tenant is insolvent or unable to pay debts as they mature, and if such
event shall occur at a time when the aforesaid indebtedness or any part thereof
may not then be due and payable, Guarantor will pay to Landlord forthwith the
full amount which would be then due and payable, and Guarantor shall thereafter
continue to pay when due all Rent including, but not limited to, Base Rent and
other sums owed Landlord pursuant to the terms of the Lease.
7. Agrees that in the event this Guaranty is placed in the hands of an
attorney for enforcement, the Guarantor will reimburse Landlord for all expenses
incurred including, but not limited to, reasonable attorneys' fees.
8. Agrees that this Guaranty shall inure to the benefit of and may be
enforced by Landlord and any subsequent owner of Landlord's interest under the
Lease, and shall be binding upon and enforceable against the Guarantor and the
Guarantor's representatives, successors and assigns.
9. Agrees that this Guaranty shall in all respects be a continuing,
absolute and unconditional guaranty, and shall remain in full force and effect,
notwithstanding, without limitation, the dissolution of the Guarantor.
IN WITNESS WHEREOF, the Guarantor has executed this instrument as of the
day and year first written above.
WITNESSES: DIRECT III MARKETING, INC. a Delaware
corporation
By:
----------------------------- --------------------------------------
XXXXXX XXXXXXX XXXXXXX X. XXXXX
Executive Vice President and Secretary
-----------------------------
XXXXX XXXXX
EXHIBIT E
TERMINATION OF EXISTING LEASE
In consideration of the execution of this Lease Agreement by the Parties, be it
acknowledged that Grad Partners, Inc., (Lessee) and Xxxxxxx Building Co. Ltd.
(Lessor) under a certain lease agreement between the parties, dated July 31,
2001, do hereby mutually agreed to terminate and cancel said Lease effective
January 31, 2002. All rights and obligations under said Lease shall thereupon be
cancelled excepting only for any rents under the lease accruing prior to the
effective termination date which then remain unpaid or otherwise not satisfied,
and which shall be paid by lessee on or prior to termination date. All rental
Deposits held by Lessor shall be retained by the Lessor and applied to deposits
required under the terms of this new Lease Agreement.
