<PAGE> 1
Exhibit 10.1
LANVISION SYSTEMS, INC.
LEASE FOR OFFICE SPACE BETWEEN CREEK ROAD WAREHOUSE COMPLEX,LLC AND LANVISION,
INC., DATED MAY 4, 2000
LEASE
-----
This Lease, executed as of this 4th. day of May, 2000, by and
between Creek Road Warehouse Complex, LLC (hereinafter referred to as "Lessor"),
and Lan Vision, Inc., a(n) Ohio corporation, (hereinafter referred to as
"Lessee").
W I T N E S S E T H :
I. DEMISE AND TERM. Lessor, for and in consideration of the rents herein
reserved and the covenants and agreements herein contained and expressed on the
part of Lessee to be kept, performed and fulfilled, hereby demises and lets unto
Lessee, and Lessee hereby leases from Lessor the premises (hereinafter sometimes
referred to as the demised premises) consisting of approximately 15,000 square
feet of space in the building known as 5481 Creek Road, Cincinnati, Ohio 45242
and more particularly shown on the drawing attached hereto as Exhibit A and made
a part hereof.
To have and to hold the demised premises, together with all
privileges, rights and easements thereunto appertaining and belonging unto
Lessee, for and during the term of three (3) years commencing upon February 1,
2000 (the commencement date), and ending January 31, 2003 unless sooner
terminated as herein provided, subject to the rents, terms and conditions herein
contained.
II. RENTAL.
A. Lessee shall pay Lessor as Base Rent for the demised premises,
without prior notice or demand, monthly rental as follows:
<TABLE>
<CAPTION>
--------------------------------------------- ---------------- -------------------------
LEASE PERIOD MONTHLY RENT TOTAL PERIOD RENT
--------------------------------------------- ---------------- -------------------------
<S> <C> <C>
February 1, 2000 - April 30, 2000 $9,375.00 $28,125.00
--------------------------------------------- ---------------- -------------------------
May 1, 2000 - April 30, 2001 9,662.50 115,950.00
--------------------------------------------- ---------------- -------------------------
May 1, 2001 - April 30, 2002 9,900.25 118,803.00
--------------------------------------------- ---------------- -------------------------
May 1, 2002 - January 31, 2003 10,250.00 92,250.00
--------------------------------------------- ---------------- -------------------------
</TABLE>
Such Base Rent shall be payable in advance, on the first day of each and every
month during said term. Base Rent shall be due on the first (1st) day of the
calendar month and late after the fifth (5th).
<PAGE> 2
B. If Lessee shall fail to pay any installment of Base Rent within five
(5) days after the date the same becomes due and payable, then Lessee shall also
pay to Lessor a late payment service charge of ten percent (10%) of the total
overdue, in addition to and not in limitation of, any other remedy or right of
Lessor herein.
III. UTILITIES. Lessee shall pay or cause to be paid all charges, costs and/or
taxes for water, sewage, stormwater, gas, heat, electricity, light, telephone
service, trash disposal or any other similar communication or utility services
of any kind or nature used in or rendered to the demised premises or any part
thereof whether separately metered or billed by Lessor. Such utility bills
invoiced by Lessor are due and payable within thirty (30) days of the billing
date and subject to the late fee stated in Section II. B. of this Lease.
IV. MAINTENANCE, JANITORIAL, REPAIR, SURRENDER OF PREMISES, ALTERATIONS. Except
as specifically stated elsewhere in this Lease, Lessee shall, at Lessee's sole
cost and expense at all times, keep the interior of the demised premises and
every part thereof in good order, condition and repair, non-structural,
including without limitation, all equipment and facilities serving the demised
premises, such as mechanical, electrical, lighting, plumbing, heating,
ventilating and air conditioning, fire monitoring and sprinkler systems,
security monitoring and security systems, fixtures, walls, ceilings, floors,
windows, doors (interior and exterior), plate glass, docks, dock doors, levelers
and related equipment, skylights, and all improvements of any kind and nature,
in good and substantial condition and repair, and in clean and sanitary
condition, and that it will indemnify and save harmless Lessor from and against
all liens, claims or damages by reason of any repairs or improvements which may
be made by Lessee thereon. Lessee shall not cause or permit any Hazardous
Materials (defined below) to be spilled or released in, on, under or about the
demised premises (including through the plumbing or sanitary sewer system) and
shall promptly, at Lessee's expense, take all investigatory and/or remedial
action reasonably recommended, whether or not formally ordered or acquired, for
clean-up of any contamination of, and for the maintenance, security and/or
monitoring of the demised premises, the elements surrounding same, or
neighboring properties, that was caused or materially contributed to by Lessee,
or pertaining to or involving any Hazardous Materials brought onto the demised
premises by or for Lessee or under its control.
Lessee will make any changes to the demised premises required by
any law, ordinance, judgment, decree or any official action by any governmental
or quasi-governmental agency or authority under any police, health, safety,
environmental, fire or other regulation, provided that said changes are the
direct result of Lessee's particular use of the premises. Any required changes
that relate to the general use of the building at 5481 Creek Road, Cincinnati,
Ohio shall be made by Lessor.
Lessee, in keeping the demised premises in good order, condition
and repair, shall exercise and perform good maintenance practices. Lessee's
obligations shall include restoration, replacement or renewals where necessary
to keep the interior of the demised premises and all improvements thereon or any
part thereof in good order, condition and state of repair. Lessee shall not be
responsible for restoration, replacement, or renewals where the need for such
restoration, replacement, or renewals is due to reasonable and ordinary wear and
tear.
<PAGE> 3
Lessor agrees to obtain a service contract on the HVAC system with
a firm which is reasonably satisfactory to Lessor. Such contract shall provide
for at least quarterly inspections, and with written reports to Lessor and
Lessee.
Lessor shall also be responsible for the maintenance of outside
security lights. The fixtures will be the responsibility of Lessor.
Lessor shall be responsible for all exterior improvements and
maintenance, of the demised premises, including the roof and structural parts,
and the care and maintenance of the parking areas and grounds, except as
provided for elsewhere in this Lease. Lessee shall give reasonable advance
notice to Lessor of required repairs to the roof, structure, parking areas, or
grounds.
Lessee further covenants and agrees that at the end of the term,
it will deliver up the demised premises broom-clean, free of debris and in as
good order and condition as they are at commencement hereof or may be put to
thereafter, reasonable use and reasonable and ordinary wear and tear excepted.
All of the obligations of Lessee shall include the repair of any damage
occasioned by the installation, maintenance or removal of Lessee's trade
fixtures, furnishings, equipment, as well as the removal of any materials that
are left by Lessee.
Lessee shall be responsible for all interior janitorial service
respecting the demised premises.
Lessee covenants and agrees that it will neither do nor permit to
be done any act or thing on the demised premises or elsewhere which will
invalidate any insurance on the demised premises or increase the premiums for
insurance thereon if said invalidation or increase is the result of Lessee's
change of use of the demised premises.
Lessee may, at its own cost and expense, from time to time during
the term of this Lease, make such alterations, additions and changes, structural
and otherwise, in and to the demised premises as it finds necessary or
convenient for its purposes; provided, however: (i) that Lessee shall indemnify
and save harmless Lessor from all expenses, liens, claims of damages to any
person or property arising out of or resulting from the undertaking or making of
such alterations, additions and/or changes; (ii) that such alterations,
additions and/or changes shall increase the value of the demised premises, and
in no manner adversely affect the use thereof, or the rights of Lessor, such
adverse affect to be determined in Lessor's sole opinion; an (iii) that written
consent shall be first obtained from Lessor before undertaking the same, which
consent shall not be unreasonably withheld. Such consent may, at the option of
Lessor, be either on the basis that Lessee shall restore the demised premises to
substantially their original condition at the termination of this Lease, or that
no restoration will be required. All trade fixtures, trade apparatus, trade
machinery and trade equipment placed on the demised premises at the expense of
Lessee shall remain the property of Lessee, and may be removed by Lessee at any
time prior to and upon termination of this Lease. Copies of all plans and
specifications, including as-built plans, shall be provided to Lessor by Lessee.
<PAGE> 4
V. REAL ESTATE TAXES AND ASSESSMENTS. Lessor shall be responsible for the
payment of all real estate taxes and assessments regarding the Demised Premises.
VI. FIRE AND CASUALTY.
A. In the event of partial damage to or destruction of the Premises
during the term hereof, which does not render the Premises untenantable by
Lessee, Lessor at its sole cost and expense will, within a reasonable time,
restore, repair, replace, rebuild or alter the same to their condition
immediately prior to such damage or destruction or as near thereto as is
reasonably possible. Lessor will be entitled to apply the proceeds of Lessor's
insurance coverage to the cost of such restoration and repair.
B. If such damage or destruction is total or renders the Premises
untenantable by Lessee and if it does not appear to be feasible, in Lessor's
determination for Lessor to complete such restoration, repair and replacement
work within "a reasonable period" after the date of such damage or destruction,
then Lessor will have the right to terminate this Lease by delivery of written
notice thereof to Lessee within thirty (30) days after the date of such damage
or destruction.
C. If Lessor plans to restore, repair, and replace the Premises to
their condition immediately prior to such damage or destruction, or as near
thereto as is reasonably possible, within the reasonable period provided for
above, Lessor will deliver its statement to that effect to Lessee within thirty
(30) days after the date of such damage or destruction. Upon receipt of said
statement, in the event that Lessee determines that, in its opinion, the period
for restoration, repair and replacement work is not reasonable, Lessee has the
right to terminate this Lease by delivery of written notice thereof to Lessor
within fifteen (15) days of receipt by Lessee of said statement from Lessor.
D. Lessor's obligation to restore the Premises is limited in every
instance to the insurance proceeds actually paid to it for such purpose as a
result of damage or casualty to the Premises. However, Lessor shall restore the
Premises to a condition similar to that condition in which the Premises were in
prior to the damage or destruction.
E. During any time that any portion of the Premises are untenantable,
in whole or in part, the rent provided for herein will abate, in proportion to
the extent the Premises have become untenantable, from the date the Premises
become untenantable. However, if such damage resulted from or was contributed to
by the act, fault or neglect of Lessee, Lessee's employees, invitees or agents,
there will be no abatement of rent.
F. In case of the initial destruction of the Building by fire or
otherwise, or so much thereof that Lessor desires to raze the Building (whether
or not the Premises be affected), the rent will be paid up to the time of
destruction, and then and from thenceforth this Lease will terminate.
VII. INSURANCE.
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A. Lessor shall insure the building and keep it insured during the term
against loss or damage by fire or other casualty normally covered by extended
coverage endorsements.
B. Lessee shall at all times maintain at its expense the following
insurance in respect to the demised premises:
1. General public liability insurance against claims for
bodily injury, death or property damage occurring on, in or about the demised
premises and the adjoining streets, sidewalks and passageways, with limits of
not less than Two Million Dollars ($2,000,000.00) with respect to bodily injury
or death to any one person, not less than Two Million Dollars ($2,000,000.00)
with respect to any one accident, and not less than One Million Dollars
($1,000,000.00) with respect to property damage.
2. Workers' compensation insurance or comparable insurance
under applicable laws covering all persons employed in connection with any work
done on or about the premises for which claims for death or bodily injury could
be asserted against Lessor, Lessee or the premises.
3. Such other insurance upon or in respect of the demised
premises or the operation thereof, in such amounts and against such other
insurance hazards as lessor may from time to time reasonably require.
C. All insurance to be provided by Lessee pursuant to this Lease shall
be written by companies acceptable to Lessor, and all such insurance shall name
as the insured parties Lessor, Lessee, and any property manager for Lessor, and
Lessor's mortgagee (as their respective interests may appear).
D. Insurance claims by reason of damage to or destruction of any
portion of the demised premises shall be payable to Lessor and/or Lessor's
mortgagee, or an insurance trustee, if so required by Lessor and/or Lessor's
mortgagee.
E. Every policy required by this Lease shall contain an agreement by
the insurer that it will not cancel or modify such policy, except after thirty
(30) days' prior written notice to Lessor and/or Lessor's mortgagee, and that
any loss otherwise payable thereunder shall be payable notwithstanding any act
or negligence of the insured, and notwithstanding: (i) the occupation or use of
the demised premises for purposes more hazardous than permitted by the terms of
such policy; (ii) any foreclosure or other action or proceeding taken by any
mortgagee or notice of sale relating to the premises; or (iii) any change in
title to or ownership of the demised premises.
F. Lessee shall deliver to Lessor simultaneously with the execution and
delivery of this Lease, certificates of the insurers satisfactory to Lessor and
Lessor's mortgagee, evidencing all the insurance which is required to be
maintained by Lessee hereunder, and Lessee shall maintain such insurance
continuously throughout the term hereof. Lessee shall, as soon as practicable,
but in all events within thirty (30) days of the renewal date of any such
insurance, deliver additional certificates of the insurers satisfactory to
Lessor, evidencing the renewal of such insurance. Should Lessee fail to effect,
maintain or renew any insurance provided for in
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this section or to pay the premium therefor, or to deliver to Lessor any of such
certificates as required herein, then and in any of said events Lessor, at its
option, but without obligation so to do, may procure such insurance, and any
sums expended by it to procure such insurance shall be additional rent
hereunder, and shall be repaid by Lessee within fifteen (15) business days
following the date on which such expenditure shall be made by Lessor.
G. Lessee agrees to carry adequate fire and extended coverage on all of
Lessee's personal property located in the demised premises, including leasehold
improvements, inventory, trade fixtures and other property installed or placed
on the demised premises by Lessee.
H. WAIVER OF SUBROGATION. Lessor and Lessee do hereby waive all rights
of recovery and causes of action which either have or may have or which may
arise hereafter against the other, whether caused by negligence or otherwise,
for any damage to the Premises or any property or business of Lessor or Lessee
caused by any of the perils covered by public liability, fire and extended
coverage, building and contents, and business interruption insurance or for
which either party may be reimbursed as a result of insurance coverage affecting
any loss suffered by it; provided, however, that the foregoing waiver will apply
only to the extent of any recovery made by the parties hereto under any policy
of insurance now or hereafter issued and further provided that the foregoing
waivers do not invalidate any policy of insurance of the parties hereto now or
hereafter issued, it being stipulated by the parties that the foregoing waiver
will not apply in any such case in which the application thereof would result in
the invalidation of any such policy of insurance. In the event any additional
premium will be charged for such waiver provision the party benefitted by such
waiver will pay the cost of such endorsement.
VIII. INDEMNITY AND RIGHT OF ENTRY. Lessee will indemnify and hold harmless
Lessor from all claims, demands and damages for injuries to persons or property
arising from or in any manner connected with the occupancy or use of the demised
premises by Lessee, and from any and all other claims, demands, liens, damages,
fines or penalties of whatever name, nature of kind, in any way or manner
chargeable to, or payable for, or in respect of the use or occupancy of the
demised premises by Lessee, or from any act or omission of Lessee, its servants,
its agents, representatives, Lessees, guests, invitees, licensees or any other
person, firm or corporation in, about or adjacent to the demised premises.
Lessee will pay all costs, expenses and attorneys' fees incurred by or imposed
on Lessor in prosecution or defense of any suit, action or proceeding predicated
upon an alleged breach of undertaking by Lessee under the terms of this Lease or
for or on account of which Lessee has covenanted to indemnify Lessor under the
terms of this Lease or would be bound by law to so indemnify Lessor.
Lessee covenants and agrees that Lessor, or Lessor's agents or
representatives, shall have the right, during normal business hours, to enter
upon the demised premises for the purpose of examining the same and to observe
the compliance or noncompliance by Lessee with the terms of this Lease, and for
the purpose of exhibiting the same to prospective lessees during the last six
(6) months of this Lease or as otherwise agreed between the parties. Lessee
agrees to permit Lessor or Lessor's agents or representatives to enter into and
upon the demised premises at any time in case of emergency.
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IX. PROVISION FOR NOTICE. All notices to be given under this Lease shall be in
writing and shall be served by registered or certified mail with return receipt
requested, postage prepaid or by a nationally recognized overnight delivery
service, or personally by hand delivering the notice to the recipient, as
follows:
To Lessor: Creek Road Warehouse Complex, LLC
c/o Green Realty Corp.
9900 Carver Road, Suite 202
Cincinnati, Ohio 45242
To Lessee: Lan Vision, Inc.
5481 Creek Road
Cincinnati, Ohio 45242
Attn: Comptroller
or to such other person at such other address designated by written notice sent
to the Lessor.
Service of any such notice by mail shall be deemed to have been given
at the delivery time shown on the return receipt or at the time of refusal shown
on such notice or the day after delivery to the overnight delivery service or at
the time of hand delivery.
X. TITLE AND CONDITION; HAZARDOUS MATERIALS.
A. The demised premises are leased subject to: (i) the existing state
of the title thereof as of the commencement of the term of this Lease; (ii) any
state of facts which an accurate survey or physical inspection thereof might
show; and (iii) all zoning regulations and other laws and regulations now in
effect or hereafter adopted by any governmental authority having jurisdiction.
Except as specifically set out herein, the land, buildings, structures and other
improvements comprising a part of the demised premises are leased subject to
their condition as of the commencement of the term of this Lease and without
representation or warranty of any kind by Lessor, including, without limitation,
any representation or warranty with respect to environmental matters.
B. HAZARDOUS MATERIALS. To the best of its actual knowledge, Lessor has
at all times, including the present, complied with all federal, state and local
environmental laws, rules and regulations applicable to its operations. Except
as disclosed to lessee, no hazardous substance, contaminant, solid waste or
material, toxic substance, petroleum product, distillate or residue, or
pollutant (as those or similar terms are defined under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
USC Section 9601 et seq., the Resource Conservation and recovery Act of 1976, 42
USC Sections 6901 et seq., or any other applicable federal, state and local
environmental law, statute, ordinance, order, judgment, rule ore regulation
relating to the environment or the protection of human health ("Environmental
Laws") (collectively, "Hazardous Materials"), have been released, emitted or
discharged by Lessor.
<PAGE> 8
XI. ASSIGNMENT OR SALE. Lessee may not assign this Lease, nor sublet the demised
premises or any portion thereof, without first obtaining the prior written
consent of Lessor, not to be unreasonably withheld. Any consent by Lessor to a
assignment or subletting shall not in any manner be construed to relieve Lessee
or any assignee or sublessee from obtaining the consent in writing of Lessor to
any further assignment or subletting, and in all events, Lessee shall remain
primarily liable for the payment of Base Rent herein reserved and for the
performance of all of the other terms of this Lease required to be performed by
Lessee.
Lessor may assign this lease or any partial interest herein, any may
also sell, convey and mortgage the demised premises, subject to the term of this
Lease.
XII. QUIET ENJOYMENT. Lessor covenants and agrees that, subject to any mortgages
now of record or hereafter placed of record, it is the owner of the demised
premises and Lessee, if the covenants of this Lease to be paid and performed by
Lessee are paid and performed, shall have peaceable possession and quiet
enjoyment of the demised premises throughout the term of this Lease without any
hindrance or molestation by Lessor, or any person claiming lawfully under
Lessor.
XIII. DEFAULT.
A. The occurrence of any one or more of the following events shall be a
default and breach of this Lease by Lessee:
1. Lessee shall fail to pay any monthly installment of Base
Rent within five (5) days after the same shall be due and payable.
2. Lessee shall fail to perform or observe any term,
condition, covenant or obligation, other than the payment of Base Rent, required
to be performed or observed by it under this Lease for a period of thirty (30)
days after notice thereof from Lessor; or such longer period, if the term,
condition, covenant or obligation to be performed within such thirty (30) day
period cannot, due to its nature, be performed within such thirty (30) day
period and Lessee commences or perform within such thirty (30) day period, and
thereafter diligently undertakes to complete the same.
3. A trustee or receiver shall be appointed to take possession
of substantially all of Lessee's assets in, on or about the demised premises or
of Lessee's interest in this Lease (and Lessee does not regain possession within
sixty (60) days after such appointment); Lessee makes an assignment for the
benefit of creditors; or substantially all of Lessee's assets in, on or about
the demised premises or Lessee's interest in this Lease are attached or levied
upon under execution (and Lessee does not discharge the same within sixty (60)
days thereafter).
4. A petition in bankruptcy, insolvency, or for reorganization
or arrangement is filed by or against Lessee, pursuant to any federal or state
statute (and, with respect to any such petition filed against it, lessee fails
to secure a stay or discharge thereof within sixty (60) days after the filing of
the same).
<PAGE> 9
B. Upon the occurrence of any event of default, as set forth above,
Lessor shall have the following rights and remedies, in addition to those
allowed by law or equity, and one or more of which may be exercised after ten
(10) days notice to Lessee:
1. Lessor may apply the security deposit and/or re-enter the
demised premises and cure any default of Lessee, in which event Lessee shall
reimburse Lessor as additional rent for any cost and expenses which Lessor may
incur to cure such default.
2. Lessor may terminate this Lease as of the date of such
default, in which event: (i) neither Lessee, nor any person claiming under or
through Lessee, shall thereafter be entitled to possession of the premises, and
Lessee shall immediately thereafter surrender the premises to Lessor; (ii)
Lessor may re-enter the premises and dispossess Lessee or any other occupants of
the premises by force, summary proceedings, ejectment or otherwise, and may
remove their effects, without prejudice to any other remedy which Lessor may
have for possession or arrearages in Base Rent; and (iii) notwithstanding the
termination of this Lease: (a) Lessor may declare all Base Rent which would have
been due under this Lease for the balance of the term to be immediately due and
payable whereupon Lessee shall be obligated to pay the same to Lessor, together
with all loss or damage which Lessor may sustain by reason of such termination
and re-entry; or (b) Lessor may re-let all or any part of the demised premises
for a term different from that which would otherwise have constituted the
balance of the term of this Lease, and for rent and on terms and conditions
different from those contained herein, whereupon Lessee shall be obligated to
pay to Lessor as liquidated damages the difference between the rent provided for
herein and that provided for any Lease covering a subsequent re-letting of the
premises, for a period which would otherwise have constituted the balance of the
term of this Lease, together with all of Lessor's costs and expenses for
preparing the premises for re-letting, including all repairs, Lessee finish
improvements, brokers' and attorneys' fees, and all loss or damage which lessor
may sustain by reason of such termination, re-entry and re-letting, it being
expressly understood and agreed that the liabilities and remedies specified in
clauses A and B above shall survive the termination of this Lease.
3. Lessor may sue for injunctive relief, or to recover damages
for any loss resulting from the breach.
XIV. WAIVER. It is further mutually covenanted and agreed between the parties
hereto that no waiver of any covenant, agreement, stipulation or condition of
this Lease shall be construed to be a waiver of any succeeding breach of the
same covenant, agreement, stipulation or condition; that the payment by Lessee,
or the receipt by Lessor, of rent with knowledge of the breach by the other
party of any covenant hereof shall not be deemed a waiver of such breach; and
further, that all covenants, stipulations, conditions, and agreements herein
contained shall run with the land, and bind and inure to the benefit of, as the
case may require, the heirs, executors, administrators, successors and assigns
of the parties hereto and to grantees of Lessor, as fully as if such words were
written whenever reference to Lessor and Lessee occur in this Lease, except that
no assignment by lessee in violation of the provisions of this Lease, shall vest
any right in the assignee.
<PAGE> 10
XV. MORTGAGES. Lessor shall have the right to transfer, assign, mortgage and
convey in whole or in part, the demised premises, and any and all rights of
Lessor under this Lease, and nothing herein shall be construed as a restriction
upon Lessor so doing. This Lease shall be subject and subordinate to any
mortgage or other financing arrangement and to any renewal modification,
consolidation, replacement and extension thereof now or thereafter placed upon
or affecting the demised premises, or any part hereof, provided that so long as
Lessee is not in default of any of the terms and conditions hereof, Lessee's
rights, privileges and possession hereunder shall not be disturbed. Although no
instrument or act on the part of Lessee shall be necessary to effectuate such
subordination, Lessee will, upon request, execute and deliver such further
instruments subordinating this Lease to the lien of any such mortgages or other
financing arrangements as may be desired by the mortgagee or other lender.
Lessee hereby appoints Lessor its attorney-in-fact, irrevocably, to execute and
deliver any such instrument for Lessee, should Lessee fail to execute and
deliver same within five (5) days of any request therefor. In the event of any
sale or exchange of the demised premises by Lessor and assignment by Lessor
hereof, Lessor shall be and is hereby entirely free and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease occurring after the consummation of such sale or
exchange and assignment.
XVI. CONDEMNATION.
A. If, during the term of this Lease, all of the demised premises, or
such a substantial part of the premises so as to render the remaining as the
same may be restored, unusable for the purposes for which the premises were
leased, shall be taken by appropriation for public, or quasi-public use, under
the right of eminent domain, then all of the proceeds of such appropriation
shall be paid to Lessor, and Lessee shall have no claim to any part thereof,
except as set out below, and this Lease shall be canceled as of the date of such
taking, provided, however, Lessee may claim such damages it suffered with
respect to its trade fixtures, personal property and its improvements to the
real property from the condemning authority.
B. If, during the term of this Lease, a part but not all of the demised
premises shall be taken by appropriation for public, or quasi-public use, under
the right of eminent domain and this Lease shall not terminate or be terminated
under the provisions of subparagraph XVI. A. hereof, then this Lease shall not
be canceled, and shall apply to that part of the demised premises not so taken.
In such event, all of the proceeds shall be paid to Lessor, and Lessee shall not
be entitled to any part thereof (except for a reasonable amount for the
depreciated value of its improvements), but the rental for the remaining term
and the Required Purchase Price, as defined below, shall be equitably adjusted.
XVII. LIENS. Lessor shall have a first and best lien, paramount to all others
upon every right and interest of Lessee to and in the demised premises and to
and in this Lease, and in and to all improvements which become part of the real
estate constituting the premises, as security for the payment of the entire
amount of Base Rent payable under this Lease, and for the payment of the entire
amount of Base Rent payable under this Lease, and for the payment of all monies
payable under any obligation or engagement of Lessee contained in this Lease,
and as security for the performance and observance of all and singular the
covenants, agreements, conditions and obligations of this Lease to be performed
and observed by Lessee.
<PAGE> 11
XVIII. COMPLIANCE WITH LAWS, INSURANCE POLICIES, ETC.; USE. Further, Lessee, at
its expense, shall cause the demised premises to comply with all federal, state,
county, municipal and other governmental laws, statutes, rules, orders,
regulations and ordinances applicable to the demised premises, or any part
thereof or the use thereof, whether or not any such statutes, laws, rules,
orders, regulations or ordinances which may hereafter be enacted, involve a
change of policy, only to the extent that such compliance is the direct result
of Lessee's particular use of the premises. Any compliance that is necessary due
to the general use of the building at 5481 Creek Road, Cincinnati, Ohio shall be
the responsibility of Lessor. Lessee shall obtain and pay for all permits and
appraisals required for Lessee's occupancy of the demised premises, and shall
promptly take all substantial and non-substantial actions necessary to comply
with all statues, ordinances, rules, regulations, orders and requirements
regulating by Lessee's particular use of the demised premises, including,
without limitation, the Occupational Safety and Health Act. Lessor shall
promptly take all actions necessary for said compliance if such actions are
necessary due to the general use of the building at 5481 Creek Road, Cincinnati,
Ohio. All materials used or kept on or about the demised premises shall be
self-contained in governmentally approved containers which shall not be opened,
disturbed or stored on the demised premises. Lessee shall not mix, process or
handle hazardous contents on the demised premises. Lessee shall comply with all
Environmental Laws and laws pertaining to the control of Hazardous Materials,
and shall indemnify and hold Lessor and Lessor's lender(s) harmless from any and
all loss, claims, damage or cost, including attorneys' fees arising out of or
resulting from its failure to do so, civil and criminal penalties, natural
resource damages, and diminution in value of the demised premises, or arising
out of the presence of hazardous waste, bio-hazardous waste, asbestos, petro
chemicals, toxic substances or the presence of other environmentally detrimental
matter. Without limiting the foregoing, Lessee shall acquire all applicable
permits required for the demised premises regarding stormwater discharges or
run-off, including any National Pollutant Discharges elimination system permits,
and shall comply with all applicable requirements, including monitoring
requirements. Lessor, at its option, may elect to acquire permits, perform any
and all stormwater discharge elimination plans and monitoring as required by any
governmental authority, and Lessee agrees to reimburse Lessor for same. Lessee
will not permit nor place any fuel storage tanks or pumps on the demised
premises, and shall keep the demised premises free of environmental hazards of
any kind or nature. Lessee shall only use the demised premises as follows:
offices.
XIX. ARTICLE HEADINGS. The article headings in this Lease are inserted only as a
matter of convenience for reference and in no way define, limit or describe the
scope or intent of this Lease or affect this Lease.
XX. MEMORANDUM OF LEASE. In the event either Lessor or Lessee determine to
record this Lease, a short form memorandum of Lease shall be recorded in lieu of
the original Lease. Such short form memorandum shall be executed by both
parties, but shall not in any way vary or revoke the terms of this Lease.
XXI. ESTOPPEL CERTIFICATE. Lessee shall from time to time, upon not less than
ten (10) days prior written request by Lessor, execute, acknowledge and deliver
to Lessor an estoppel certificate, certifying that this Lease is in full force
and effect; the dates to which rents have been
<PAGE> 12
paid; and whether Lessor is in default, and if so, specifying the nature of the
default; and that the Lease is in full force and effect, as modified, and
listing instruments of modification. It is intended that such estoppel
certificate may be relied on by a prospective purchaser of Lessor's interest, or
mortgagee or assignee of any mortgage upon the demised premises.
XXII. SECURITY DEPOSIT. Lessee has already deposited with Lessor the sum of Six
Thousand Two Hundred Fifty Dollars ($6,250.00), the receipt of which is hereby
acknowledged, as security for the payment by Lessee of the Base Rent or other
charges to be paid and for the faithful performance by Lessee of all of the
terms, conditions and covenants of this Lease. If at any time during the term of
this Lease, Lessee shall be in default in the performance of any provisions of
this Lease, Lessor shall have the right to use the security deposit, or so much
thereof as is necessary, in payment of rental or other charges in default,
reimbursement of any expenses incurred by Lessor, and in payment of any damages
incurred by Lessor by reason of Lessee's default. If any portion of said deposit
is so used or applied, Lessee shall, within ten (10) days after written demand
therefore from Lessor, remit to Lessor a sufficient amount out restore the
security deposit to its original amount. If claims of Lessor exceed the security
deposit, Lessee shall remain liable for the balance of such claims.
In the event the security deposit has not been utilized as aforesaid,
the security deposit, or so much thereof as has not been utilized for such
purposes, shall be refunded to Lessee, without interest, upon full performance
of all of the terms of this Lease by Lessee.
Lessor shall have the right to commingle the security deposit with
other funds of Lessor. Lessor shall have the right to deliver the security
deposit to any successor in interest to Lessor's interest in the demised
premises. Thereupon, Lessor shall be discharged from further liability with
respect to such security deposit.
Lessee may not assign its right to the security deposit in whole or in
part.
XXIII. NO COUNTERCLAIM, ABATEMENT, ETC. There shall be no abatement, deduction
or offset whatsoever with regard to any amounts due from the Lessee to the
Lessor under this Lease.
XXIV. LIMITATION OF LESSOR'S PERSONAL LIABILITY. Lessee specifically agrees to
look solely to Lessor's interest in the Real Property and the Building for the
recovery of any judgment from Lessor, it being agreed that neither Lessor nor
any of its partners shall ever be personally liable for any such judgment. The
provision contained in the foregoing sentence is not intended to, and shall not,
limit any right that might otherwise have to obtain injunctive relief against
Lessor or Lessor's successors in interest, or any other action not involving the
personal liability of Lessor.
XXV. HOLDING OVER. In the event of holding over by Lessee after expiration or
termination of this Lease, Lessee shall pay double the Base Rent (calculated on
the basis of Base Rent with respect to the month immediately preceding the month
in which expiration or termination occurs) for the entire holdover period. No
holding over by Lessee after the term of this Lease shall be construed to extend
the term of this Lease. In the event of any unauthorized holding over, Lessee
shall also indemnify Lessor against all claims for damages by any other Lessee
to whom Lessor may have leased all or any part of the demised premises covered
hereby effective upon the
<PAGE> 13
termination of this Lease. Any holding over with the consent of Lessor in
writing shall thereafter constitute this Lease a lease from month to month.
XXVI. LESSEE'S RIGHT OF TERMINATION. At any time after January 31, 2001, Lessee
may give Lessor one hundred twenty (120) days notice to terminate this Lease. At
the end of said one hundred twenty (120) day period, said Lease shall be
terminated provided that Lessee pays to Lessor, in a lump sum, an early
termination penalty of one half of the rent for the remaining months of this
Lease. Notwithstanding the foregoing, in the event that upon the termination of
this Lease, Lessee leases new space in property owned by Green Realty
Corporation, the termination penalty will be waived.
XXVII. MISCELLANEOUS.
A. If any provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
B. This Lease shall be construed and interpreted under the laws of the
State of Ohio.
C. Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications as Lessor deems necessary and desirable,
and to cause the recordation of plats and restrictions, so long as such
easements, rights, dedications and restrictions do not unreasonably interfere
with the use of the demised premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor.
D. PARKING. Lessee shall be entitled to the use of 40 parking space on
site as identified as on the attached Exhibit B incorporated herein.
E. Lessor represents that Lessor owns the real estate in which the
demised premises are located, and has the authority to provide quiet enjoyment
of the demised premises, subject to liens, encumbrances and other matters of
record.
F. EXHIBITS. Exhibits hereto are:
Exhibit A: Description of Premises
Exhibit B: Parking
G. AMENDMENT. This Lease may not be amended, altered, or changed except
by an instrument in writing signed by both parties hereto.
H. ENTIRE AGREEMENT. This Lease contains the entire agreement between
the parties hereto and all previous negotiations leading thereto. Lessee
acknowledges and agrees that
<PAGE> 14
Lessee has not relied upon any representations or any prior written or oral
promises, warranties or agreements except such as are provided herein. The
headings of this Lease are for purposes of reference only and shall not limit or
define the meaning hereof. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands the
day and year first above written.
WITNESSES: LESSOR:
Signed and acknowledged in the presence Creek Road Warehouse Complex,
of: LLC
/s/ Angela M. Woodward By: /s/ Andrew J. Green
--------------------------------------- ---------------------------
Printed Name: Angela Woodward Its: Member
------------------------ --------------------------
/s/ Ed Brill
---------------------------------------
Printed Name: Ed Brill
------------------------
LESSEE:
Signed and acknowledged in the presence LanVision, Inc.
of:
/s/ Marie Prickett By: /s/ Eric Lombardo
--------------------------------------- ---------------------------
Printed Name: Marie Prickett Its: Exec VP
------------------------ ---------------------------
/s/ Donald E. Vick, Jr.
---------------------------------------
Printed Name: Donald E. Vick, Jr.
------------------------
<PAGE> 15
LESSOR NOTARY
-------------
STATE OF OHIO }
} SS:
COUNTY OF HAMILTON }
BE IT REMEMBERED that on this 4th day of May, 2000 before me, the
subscribed notary public, personally appeared Andrew J. Green who, I am
satisfied, is the person who signed the within instrument as Member of Creek
Road Warehouse Complex, LLC, and he thereupon acknowledged that said signature
of the within instrument was his voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
ANGELA M. WOODWARD /s/ Angela M. Woodward
-------------------------------
{NOTARIAL SEAL)Notary Public, State of Ohio Notary Public
My Commission Expires Jan. 19, 2003
My commission expires: Jan 19, 2003
------------
LESSEE NOTARY
-------------
STATE OF }
} SS:
COUNTY OF }
BE IT REMEMBERED that on this 4th day of May, 2000 before me, the
subscribed notary public, personally appeared Eric Lombardo who, I am satisfied,
is the person who signed the within instrument as Exec VP of Lan Vision, Inc.,
and he thereupon acknowledged that the said instrument made by such corporation
was signed, sealed with its corporate seal and delivered by him as such officer,
and is his voluntary act and deed and is the voluntary act and deed of such
corporation, made by virtue of authority from its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Melissa Vincent
----------------------------
Notary Public
{NOTARIAL SEAL}
My commission expires: Melissa Vincent
---------------
Notary Public, State of Ohio
My Commission Expires June 8, 2004
<PAGE> 16
EXHIBIT A
DESCRIPTION OF PREMISES
<PAGE> 17
EXHIBIT B
PARKING
