Exhibit 10.02
OneDentist.com, Inc.
November 17, 1999
Mr. Richard B. Brook; President/CEO
Oxyfresh Worldwide
1292$ E.LndianaA.ve.
Spokane, WA 99220
Dear Richard:
As a revision and update to our letter to you, dated Nov. 10, 1999, we propose
the following modifications for your approval.
The benefits offered to Oxyfresh Worldwide and its affiliate network are:
o Patient Referral System: Patients looking for a new dentist have the
ability to locate a. dental office by zip code or practice name and
contact the practitioner directly via ~maiJ, or they may phone to
schedule an appointment. This referral service w111 have national
brand teoOWlition.
o Professionally Developed Custom Webalte: Practices gain exposwe and
credibIlity with their own OneDentist.com Website. They may choose
from several attractive designs, which Are easily set up. Each Websito
includes the following: .
Our Staff-- a page with doctor(s) profiles(s)
Services We Provide-- a description of the practice's focus
YourFirst Visit-- a narrative to assist the first time patient
Patient Education-- general information on dental related topics
Practice History and Philosophy-- a "backgrounder" on the practice
Hours and Appointments-- an easily modified posting
Financial Options-- a description of payment plan options
Location-- a link with a mapping service that is a wayfinder for the
patients
Contact Us-- e-mail link
o Dental Connections: The OneDentist weekly professional newsletter that
provides the', dental professional with the latest in success
strategies, practice management tips and forms for maximizing practice
productivity and profit, a health news section, financial advice...
everything you need to be positioned as a leading, patient focused,
cutting edge practice.
o Patient Newsletter: Educate your patients with the OneDentist
customized patient newsletter. Simply enter your practice
information and print to provide your patients with an informative,
value-added educational service that will position you as the
authoritative expert on dentistry.
<PAGE>
November 17, 1999
Pg.2
During the year 2000, we look forward to providing these addition benefits:
First Quarter. 1999
-------------------
OneCenter: A "dental dashboard" that shows the dentist's key operating factors
and compares them to peers on the network. When "clicked" each dial takes the
user to a precise set of resources (training, references, decision tools,
articles, etc.) for improving that key factor.
Marketing Center: Contains programs, tools, and the information necessary to
generate new business.
Personnel, Policies, and Procedures: Supplies the tools needed for staffing and
supporting Human Resouices while keeping you up-to-date on legal issues and
OSHA.
Second Ouarter. 1999
--------------------
Office Center: Equips you with easy systems for managing and ordering office
supplies and equipment.
My Center: Caters to you and your personal and development needs, such as
continuing education, assets portfolio management, travel, and events.
Third Ouarter. 1999
-------------------
Money Center: Handles accounting, insurance, and other financial activities of
your practice, with the goal of consolidating services and functions and
lowering costs.
The Oxyfresh Offer
------------------
OneDentist.com, Inc. proposes to provide the following to Oxyfre sh Worldwide:
1) Free Website set up and design for the first 300 dentist
subscribers, if they enlist by February 28, 2000;
2) Free mail for one year for these same 300;
3) Free hosting for one year from sign-up for these same 300;
4) Free premier link/billboard position for Oxyfresh on all
Oxyfresh dental sites during the term of our agreement and
thereafter, as long as Oxyfresh maintains 300 subscribers to
our network;
5) OneDentist.com and Oxyfresh agree to develop a relationship
with the intention of enhancing e-commerce possibilities.
In return, OneDentist.com, Inc. proposes to receive the following from Oxyfresh
Worldwide:
1) Availability for OneDentist.com, Inc. to have booth presence
at appropriate Oxyfresh meetings, as long as Oxyfresh has an
agreement to promote OneDentist.com and, specifically,
inviting OneDentlst.com to participate in the Oxyfresh
meeting on 28-January29, 2000;
2) OneDentist.com, Inc. to receive a monthly promotional piece
in either the Oxygram or bonus check letter, as long as that
decision is under the control of Richard Brooke;
3) Oxyfresh to include a flyer promoting OneDentist.com, Inc.
in each new distributor kit sent out during the months of
November 1999 through March 2000, provided Richard Brooke is
able to control this decision. Said flyer is to be approved
by Oxyfresh and Richard Brooke, then printed and supplied to
Oxyfresh by OneDentist.com for inclusion in said kits.
<PAGE>
Pg. 3
In conclusion, we intend to contribute to the advancement of the Oxyfresh system
in not only the delivery of the content outlined here, but also to create
future, benefits that will augment our relationships. We look forward to working
with you in securing a lasting, mutually beneficial association amongst our
people at OneDentist.com, Inc. and the people of Oxyfresh.
If you agree with the terms set forth in this letter, please sign below and
return a copy to us. Upon receipt of a signed copy, we will proceed by supplying
you with further information for your review.
By /s/ Graydon D. Webb
-------------------------------
Graydon D. Webb
Title President
----------------------------
OneDentist.com, Inc.
Cc: J. Rubino, D.M.D.
L. DiOrio, D.D.S.
I agree to the terms outlined herein:
By /s/ Richard B. Brooke
-------------------------------
Richard B. Brooke
Title President
----------------------------
Oxyfreh Worldwide
<PAGE>
OFFICE LEASE
------------
Between
Christian R Corna
Landlord
and
Classic Impressions
Tenant
<PAGE>
TABLE OF CONTENTS
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ARTICLE PAGE
------- ----
I. LEASE OF PREMISES
-----------------
1.01 Lease of Premises
1.02 Basic Lease Provisions
1.03 Description of the Building, Premises and
Common Area
II. TERM AND POSSESSION
-------------------
2.01 Term
2.02 Early Occupancy
2.03 Delayed Possession
2.04 Tenant's Acceptance of the Premises
2.05 Surrender of the Premises
2.06 Holding Over
III. RENT
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3.01 Base Rent
3.02 Additional Rent
3.03 Service Charge
IV. SECURITY DEPOSIT
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V. TENANT FINISH IMPROVEMENTS
--------------------------
5.01 Construction
5.02 Tenant's Contribution
VI. USE OF PREMISES
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6.01 Specific Use
6.02 Covenants Regarding Use
6.03 Access to and Inspection of the Premises
6.04 Compliance with Laws
6.05 Compliance with Building Rules and
Regulations
VII. UTILITIES AND OTHER BUILDING SERVICES
-------------------------------------
7.01 Services and Utilities
7.02 Interruption of Services
VIII. PARKING
-------
IX. REPAIRS MAINTENANCE ALTERATIONS, IMPROVEMENTS AND FIXTURES
----------------------------------------------------------
9.01 Repair and Maintenance of Premises
9.02 Alterations or Improvements
9.03 Trade Fixtures
X. FIRE OR OTHER CASUALTY: CASUALTY INSURANCE
------------------------------------------
10.01 Substantial Destruction of the Building or
the Premises
10.02 Partial Destruction of the Premises
10.03 Casualty Insurance
10.04 Waiver of Subrogation
10.05 Personal Property, Trade Fixtures and
Additional Improvements
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PAGE
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XI. GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
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11.01 Tenant's Responsibility
11.02 Tenant's Insurance
11.03 Landlord's Responsibility
XII. EMINENT DOMAIN
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XIII. LIENS
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XIV. RENTAL, PERSONAL PROPERTY AND OTHER TAXES
-----------------------------------------
XV. ASSIGNMENT AND SUBLETTING
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XVI. TRANSFERS BY LANDLORD
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16.01 Sale and Conveyance of the Building
16.02 Subordination
XVII. DEFAULTS AND REMEDIES
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17.01 Defaults by Tenant
17.02 Remedies of Landlord
17.03 Default by Landlord and Remedies of Tenant
17.04 Limitation of Landlord's Liability
17.05 Non--Waiver of Defaults
17.06 Attorney's Fees
XVIII. NOTICE AND PLACE OF PAYMENT
---------------------------
18.01 Notices
18.02 Place of Payment
XIX. MISCELLANEOUS GENERAL PROVISIONS
--------------------------------
19.01 Definition of Rent
19.02 Consents and Approvals
19.03 Estoppel Certificate
19.04 Recording of Memorandum of Lease
19.05 Payment of and Indemnification for Leasing
Commissions
19.06 Governing Law
19.07 Complete Agreement; Amendments
19.08 Successors and Assigns
19.09 Severability of Invalid Provisions
19.10 Definition of the Relationship Between the
Parties
19.11 Certain Words, Gender and Headings
19.12 Quiet Enjoyment
XX. ADDITIONAL PROVISIONS
---------------------
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OFFICE LEASE
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This lease is entered into and made as of January 12 l998 and between Richard
Corna, herein called "Landlord", and Classic Impressions Inc. herein called
"Tenant".
W I T N E S S E T H:
--------------------
ARTICLE I -- LEASE OF PREMISES
------------------------------
1.01 - Lease of Premises. - Landlord, in consideration of the rents and
covenants specified herein, does hereby demise, let and lease to Tenant, and
Tenant does hereby hire, .take and lease from Landlord, on the terms and
conditions hereinafter set forth, the following described space, hereinafter
called the "Premises", for the term hereinafter specified.
1.02 - Basic Lease Provisions.
-----------------------------
A. Building Name: Coma Building
Tennant Address: 5300 McKitrick Boulevard, Columbus, Ohio 43220
B. Total Leasable Area in the Building: 13,426 Square Feet (Exhibit A)
C. Leasable Area in the Premises: 1491 Gross Square Feet
(See Exhibit B)
D. Term: 1 year and 0 months, beginning on January l, 1998(the
"Commencement Date") and ending on January 15,1999 the ending
Date").
E. Annual Base Rent: $15,655.50 ($10.50 per square foot).
F. Monthly Installments of Base Rent: 1,304.63 + (Article III--
$2.001,545.13/mo.
C. Security Deposit: $ 2609.25
H.
I. Broker: Mark F. Taggart Co.
J. Addresses for Notices and Payments:
Tenant: 5300 Kitrick Boulevard,Columbus, Ohio 43220
Landlord: 8903 Lea Crt. Dublin, Ohio 43017
1.03 - Description of the Building, Premises and Common Areas.
-------------------------------------------------------------
A. The Building. The name, address and number of square feet of leasabie
area in the Building in which the Premises are located are specified
in Items A and B of the Basic Lease Provisions (which are set forth in
Section 1.02 of this Lease). The Building is situated on a certain
tract of land in the City of Columbus, Franklin County, Ohio, which is
more specifically described in the schedule attached hereto as
"Exhibit A--1". Any reference in this Lease to the term "Building"
shall include the "Common Areas" (as hereinafter defined), including
land described in Exhibit A--1, unless the context requires otherwise.
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OFFIC LEASE
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B. The Premises. The Premises consists of office space containing the
number of square feet of leasable area specified in Item C of the
Basic Lease Provisions; are located in an area of the Building which
is designated in red on the floor plan(s) of the floor or floors
specified in Item A of the Basic Lease Provisions, said floor plan(s)
being attached hereto as "Exhibit B" and are known or are to be known
by the specified in Item A of the Basic Lease Provisions. The Premises
are more specifically described in the schematic drawings and
specifications therefor, which are attached hereto as "Exhibit C".
C. The Common Areas. The term "Common Areas", as used in this Lease,
refers to the areas of the Building and the land described in Exhibit
A--1 which are designed for use in common by all Tenants of the
Building and their respective employees, agents, customers, invitees
and others, and in- cludes, by way of illustration and not limitation,
entrances and exits, hallways and stairwells, restrooms, sidewalks,
driveways, parking areas, landscaped areas and other areas as may be
designated by Landlord as part of the Common Areas of the Building.
The lease of the Premises, as set forth in this Article I, shall
include the non-exclusive right to use the Common Areas in common with
the subject to the rights of other Tenants in the Building and their
respective employees, agents, customers and invitees.
ARTICLE II -- TERM AND POSSESSION
---------------------------------
2.01 - Term. The term of this Lease shall be for the period of years and months
specified in Item D of the Basic Lease Provisions; and shall begin and end on
the Commencement Date and Expiration Date, respectively, specified in Item E,
unless such dates are postponed as provided in Section 2.03 or unless this Lease
is terminated as earlier provided elsewhere herein. Notwithstanding early
occupancy or delayed possession as provided in Sections 2.02 or 2.03, the term
of this Lease shall remain as specified in Item D.
If Landlord is unable to deliver possession of the Premises to Tenant or to
notify Tenant that the Premises are ready for occupancy by the Commencement Date
because Tenant has requested changes in the plans and specifications or because
of other causes attributable to Tenant, then the term shall begin, and Tenant
shall pay to Landlord all rent due, as of the Commencement Date, even though
Tenant has not taken possession of the Premises by such date.
2
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OFFICE LEASE
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2.04 - Tenant's Acceptance of the Premises. Upon delivery of possession of the
Premises to Tenant as hereinbefore provided, Tenant shall give Landlord a letter
acknowledging (i) the original or revised Commencement Date and Expiration Date
of this Lease, and (ii) that Tenant has accepted the Premises for occupancy and
that the condition of the Premises, including the tenant finish improvements
constructed thereon, and the Building was at the time satisfactory and in
conformity with the provisions of this Lease in all respects, except for any
defects as to which Tenant shall give written notice to Landlord within thirty
(30) days after such delivery. Landlord shall promptly thereafter correct all
such defects. Tenant's letter shall become a part of this Lease. If Tenant takes
possession of an occupies the Premises, Tenant shall be deemed to have accepted
the Premises' in the manner described in this Section 2.04, even though the
letter provided for herein has not been given to Landlord.
In the event of a dispute between Landlord and Tenant over whether the tenant
finish improvements were constructed in accordance with the plans and
specifications therefor, a certificate signed by landlord's builder stating that
such improvements were substantially completed in accordance with such plans and
specifications shall be conclusive and binding upon Tenant.
2.05 - Surrender of the Premises. Upon the expiration or earlier termination of
this Lease, or upon the exercise by Landlord of its right to re-enter the
Premises without terminating this Lease, Tenant shall immediately surrender the
Premises to Landlord, together with all alterations, improvements and other
property as provided elsewhere herein, in broom-clean condition and in good
order, condition and repair, except for ordinary wear and tear and damage which
Tenant is not obligated to repair, failing with Landlord may restore the
Premises to such condition at Tenant's expense. Upon such expiration or
termination, Tenant shall have the right to remove its personal property. Tenant
shall, at its expense, promptly repair any damage caused by any such removal,
and shall restore the Premises to the condition existing prior to the
installation of the items so removed.
2.06 - Holding Over. In the event Tenant holds over and remains in possession of
the Premises with the consent of Landlord after the expiration or earlier
termination of this Lease, Tenant shall be deemed to hold the Premises as a
Tenant from month-to-month, subject to all of the terms, conditions and
covenants of this Lease (which shall be applicable during the hold-over period),
except that the monthly base rent payable during such hold-over period shall be
such amount as may be agreed upon between the parties, but not less than the
monthly installments of base rent payable hereunder at the time of such
expiration or earlier terminations. Notwithstanding the foregoing provision, no
holding over by Tenant shall operate to extend this Lease, and Tenant shall
vacate and surrender the Premises to Landlord upon Tenant's being given thirty
(30) days prior written notice from Landlord to vacate.
ARTICLE Ill -- RENT
-------------------
3.01 - Base Rent. Tenant shall pay to Landlord as Base Rent for the Premises
the annual sum specified in Item E of the Basic Lease Provisions, payable in
equal consecutive monthly installments as specified in Item F of the Basic Lease
Provisions, in advance, without deduction or offset, on or before the first day
of each and every calendar month during the term of this Lease; provided,
however, that if the Commencement Date shall be a day other than the. first day
of a calendar month or the Expiration Date shall be a day other than the last
day of a calendar month, the Base Rent installment for such first or last
fractional month shall be pro-rated on the basis of the number of days during
the month this Lease was in effect in relation to the total number of days in
such month; and further provided, that Tenant shall pay the first monthly
installment of Base Rent upon execution of this Lease.
3.02 - Additional Rent. An additional rent of $ 2.00 for each square foot of
Leasable Area in the Premises which is allocated to the reimbursement of the
Landlord for operating expenses. "Operating Expenses shall mean the amount of
all Landlord's direct costs and expenses paid or incurred in operating and
maintaining the Building (including the Common Areas and the land described in
Exhibit A-1) as determined by Landlord in accordance with generally accepted
3
<PAGE>
OFFICE LEASE
------------
accounting principles or other recognized accounting practices, consistently
applied, including all additional direct costs and expenses of operation and
maintenance which Landlord determines that it would have paid or incurred during
such~ year if the Building had been one hundred percent (100%) occupied,
including by way of illustration and not limitation: real estate taxes and
assessments; insurance premiums; electrical and other utility charges including
common area lighting, parking and building lighting other than separately
billed electrical and other charges paid by Tenant as provided in this Lease;
service and other charges paid or incurred in the operation and maintenance of
the heating, ventilating and air-conditioning systems; cleaning and other
janitorial services, tools and supplies; repair costs; snow removal and
landscape maintenance costs; license and permit fees; management fees; and in
general all other costs and expenses which would, under generally accepted
accounting principles, be regarded as operating and maintenance costs and
expenses, including those which would normally be amortized over a period not
exceeding five (5) years. There shall also be included in Operating Expenses the
cost of any capital improvement made to the Building by Landlord after the date
of this Lease, which is required under any governmental law or regulation that
was not applicable to the Building at the time it was constructed, with such
cost being amortized over such period of time and in such manner as Landlord
shall reasonably determine, together with interest on such cost or the
unamortized balance thereof at the rate of 10% per annum or at the rate of
interest paid or to be paid by Landlord for funds borrowed to finance such cost,
whichever is higher.
The amount of Tenant's share of the increase in Operating Expenses over $1.50
per square foot for a particular calendar year (herein referred to collectively
as the "Additional Rent") shall be estimated annually by Landlord, and written
notice thereof shall be given to Tenant at least thirty (30) days prior to the
beginning of each calendar year. Tenant shall pay each month, at the same time
the monthly installment of base rent is due, an amount equal to one-twelfth
(1/12) of the estimated Additional Adjustment. If "Operating Expenses" increase
during a calendar year, Landlord may increase the estimated Additional Rent
during such year by giving Tenant written notice to that effect, and thereafter
Tenant shall pay to the Landlord, in each of the remaining months of sch year,
an amount equal to the amount of such increase in the Additional Rent divided by
the number of months remaining in such year.
Within ninety (90) days after the end of each such calendar year, Landlord shall
prepare and deliver to Tenant a statement showing in reasonable detail the
actual Operating Expenses and Tenant's actual Annual Rental Adjustment. Within
thirty (30) days after receipt of the aforementioned statement, Tenant shall pay
to Landlord, or Landlord shall credit against the next rent payment or payments
due from Tenant, as the case may be, the difference between the Tenant's Actual
Annual Rental Adjustment for the preceding calendar year and the estimated
amount paid by Tenant during such year.
The Additional Rent to be paid by the Tenant shall be determined as follows:
"With respect to a calendar year determination, the amount produced
by the following formula:
"( Total Operating Expenses ) Total Leasable Area in
------------------------
Total Leasable Area in the - $ ) x the Premises in Square
Building in Square Feet ) Feet
"or,
"With respect to a determination as of the Expiration Date other than
at the end of a calendar year, the amount produced by the following
formula:
No. of days Total Leasable
between the Area in
"(Total Operating Expenses end of the the Premises
-------------------------
(Total Leasable Area in the - $ )x Last Preceding x in Square
Building in Square Feet Calendar Year Feet
and the Expiration
Date
4
<PAGE>
OFFICE LEASE
------------
"Provided, however, that in the application of the second formula,
above, the total Operating Expenses will be the total of the actual
Operating Expenses incurred during the period between the end of the
last preceding calendar year and the Expiration Date and an amount
equal to the Operating Expenses incurred between the same month and
day as in the Expiration Date during the last preceding calendar year
and the end of that calendar year.
"And, provided further that there shall be no Additional Rent payable
if the application of the appropriate formula fails to produce a
result that is in excess of $0.
"Tenant or Tenant's accountants shall have the right to inspect and
copy, at reasonable times and in a reasonable manner, following the
delivery of Landlord's invoice for Additional Rent in order to verify
the amounts thereof. If Tenant shall dispute any item or items
included in the determination of Operating Expenses for a particular
period, and such dispute is not resolved by the parties hereto within
ninety (90) days after the invoice for Additional Rent was delivered
to Tenant, then either party may, within thirty (30) days thereafter,
request that a firm of independent certified public accountants
selected by Landlord render an opinion as to whether or not the
disput- ed item or items may properly be included in the determination
of Additional Rental; and the opinion of such firm on the matter shall
be conclusive and binding upon the parties hereto. The fees and
expenses incurred in obtaining such an opinion shall be borne by the
party adversely affected thereby; and if more than one item is
disputed and the opinion adversely affects both parties, the fees and
expenses shall be apportioned accordingly. If Tenant shall not dispute
any item or items included in the determination of Additional Rent for
a particular period within ninety (90) days after the invoice for
Additional Rent was delivered to it, Tenant shall be deemed to have
approved such statement."
3.03 - Service Charge. If any monthly installment of Base Rent or Additional
Rent provided for in this Lease, or any part thereof, is not paid within the
applicable period specified in Section 17.01(A), it shall be subject to a
service charge of one and one-half percent (1.5%) of the unpaid rent due for
each month or fraction thereof (or such lesser percentage as may be the maximum
amount permitted by law) until paid.
ARTICLE IV -- SECURITY DEPOSIT
------------------------------
As security for the performance and observance by Tenant of all of its
obligations under this Lease, Tenant has deposited with Landlord the sum
specified in G of the Basic Lease Provisions, which sum shall be held by
Landlord as a security deposit during the term of this Lease. If Tenant performs
and observes all of the terms, conditions and covenants of this Lease which are
required to be performed and observed by it, Landlord shall return the security
deposit, or balance thereof then held by Landlord, without interest, to Tenant
within thirty (30) days after the Expiration Date or after Tenant surrenders
possession of the Premises, whichever is later. In the event of a default by
Tenant in the payment of rent or the performance or observance of any of the
other terms, conditions or covenants of this Lease, then Landlord may, at its
option and without notice, apply all or any part of the security deposit in
payment of such rent or to cure any other such default; and if Landlord does so,
Tenant shall, upon request, deposit with Landlord the amount so applied so that
Landlord will have on hand at all times during the term of this Lease the full
amount of the security deposit. Landlord shall not be required to hold the
security deposit in a separate or trust account, but may commingle it with
Landlord's other funds.
In the event of a sale of the land and Building of which the Premises are a
part, Landlord shall have the right to transfer the security deposit to its
purchaser, and Landlord shall thereupon be released by Tenant from all
responsibility for the return of such deposit; and Tenant agrees to look solely
to the new purchaser or lessee for the return of such deposit. In the event of
5
<PAGE>
OFFICE LEASE
------------
an assignment of this Lease by Tenant, the security deposit shall be deeeed to
be held by Landlord as a deposit made by the assignee, and Landlord shall have
no further responsibility for the return of such deposit to the assignor.
ARTICLE VI -- USE OF PREMISES
-----------------------------
6.01 - Specific Use. The Premises shall be occupied and used exclusively as
office space and for puxposes incidental thereto, and shall not be used for any
other purpose.
6.02 - Covenants Regarding Use. In connection with its use of the Premises,
Tenant agrees to do the following:
A. Tenant shall use the Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner; and Tenant shall not use the Premises
for any unlawful purpose or activity.
B. Tenant shall not commit, nor allow to be committed, in, on or about the
Premises or the Building, any act of waste, including any act which might
deface, damage or destroy the Building or any part thereof; use or permit
to be used on the Premises any hazardous substance, equipment or other
thing which night cause injury to person or property or increase the danger
of fire or other casualty in, on or about the Premises; permit any
objectionable or offensive noise or odors to be emitted from the Premises;
or do anything orperntit anything to be done, which would disturb or tend
to disturb other Tenants occupying leased space in the Building.
C. Tenant shall not overload the floors of the Premises beyond their designed
weight-bearing capacity, which Landlord has determined to be fifty (50)
pounds per square foot live load, including an allowance for partition
load. Landlord reserves the right to direct the positioning of all heavy
equipment, furniture and fixtures which Tenant desires to place in the
Premises so as to distribute properly the weight thereof, and to require
the removal of any equipment or furniture which exceeds the weight limit
specified herein.
D. Tenant shall not use the Premises, or allow the Premises to be used, for
any purpose or in any manner which would, in Landlord's opinion, invalidate
any policy of insurance now or hereafter carried on the Building or
increase the rate of premiums payable on any such insurance policy.
6
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OFFICE LEASE
------------
Should tenant fail to comply with this covenant, Landlord may, at its
option, require Tenant to stop engaging in such activity or to reimburse
Landlord as additional rent for any increase in premiums charged during the
term of this Lease on the insurance carried by Landlord on the Premises and
attributable to the use being made of the Premises by Tenant.
E. Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on the Building, except for such Tenant
identification information as Landlord permits to be included or shown on
the directory board in the main lobby and on or adjacent to the Tenant
access door or doors to the Premises.
6.03 - Access to and Inspection of the Premises . Landlord, its employees and
agents and any other mortagee of the Building shall have the right to enter any
part of the Premises at reasonable times for the purposes of examining or
inspecting the same, showing the same to prospective purchasers, mortgaees or
Tenants and for making-such repairs, alterations or improvements to the Premises
or the Building as Landlord may deem necessary or desirable. In event of
emergency and representatives of Tenant shall not be present to open and permit
such entry into the Premises at any time when such entry is necessary or
permitted hereunder, Landlord and its employees and agents may enter the
Premises by means of a master or pass key or otherwise. Landlord shall incur no
liability to Tenant for such entry, nor shall such entry constitute an eviction
of Tenant or a termination of this Lease, or entitle the Tenant to any
abatement of rent therfor.
6.04 - Compliance with Laws. Tenant shall comply with all laws, statutes,
ordinances, rules, regulations and orders of any federal, state or municipal
government or other authority having jurisdiction over and relating to the use
and occupancy of the Premises, except that Tenant shall not be responsible for
or required to make structural repairs to the Building or the Premises unless,
in the case of the latter, they are occasioned by its own negligence.
6.05.- Compliance with Building Rules and Regulations. Rules and regulations
governing the use and occupancy of the Building have been adopted by Landlord
for the mutual benefit and protection of all the Tenants in the Building. Tenant
shall comply with and conform to the rules and regulations currently in effect,
which are set forth on a schedule attached hereto, made a part hereof and marked
"Exhibit A-2". Landlord shall have the right to amend such rules and
regulations or to make new rules and regulations from time to time in any manner
that it deems necessary or desirable in order to insure the safety, care and
cleanliness of the Building and the preservation of order therein. Any such
amendments to the rules and regulations shall be set forth in writing and shall
be given to Tenant, who shall thereafter comply with and conform to the same.
All such rules and regulations shall be applied and enforced uniformly as to all
Tenants in the Building.
ARTICLE VII -- UTILITIES AND OTHER BUILDING SERVICES
----------------------------------------------------
7.01 - Services to be Provided. Landlord shall furnish to Tenant, between the
hours of 8:00 a.m. and 9:00 p.m. on Monday through Friday and from 8:00 a.m. to
9:00 p.m. on Saturday of each week except on legal holidays and except as noted
below, the following utilities and other building services to the extent
considered by Landlord to be reasonably necessary for Tenant's comfortable use
and occupancy of the Premises for general office use or as may be required by
law or directed by governmental authority.
A. Heating, ventilation and air conditioning in foyers;
B. Electricity for normal lighting in foyer and Common Areas;
C. Washing of windows at intervals established by Landlord;
D. Cleaning and maintenance of. the Common Areas; including the removal of
snow;
E. Repair and maintenance to the extent specified elsewhere in this Lease.
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7.02 - Interruption of Services. Tenant understands and acknowledges that any
one or, more of the utilities or other building services identified in Section
7.01 may be interrupted by reason of accident, emergency or other causes beyond
Landlord's control, or may be discontinued or diminished temporarily by Landlord
or other persons until certain repairs, alterations or improvements can be made;
that Landlord does not represent or warrant the uninterrupted availability of
such utilities or building services; and that any such interruption shall not be
deemed an eviction or disturbance of Tenant's right to possession, occupancy and
use of the Premises or any part thereof, or render Landlord liable to Tenant for
damages by abatement of rent or otherwise, or relieve Tenant from the obligation
to perform its covenants under this Lease.
ARTICLE VIII -- PARKING
-----------------------
Landlord hereby gives to Tenant, its employees, agents, customers and invitees
the privilege of parking in the parking lot adjacent to the Building. The same
privilege has been or will be given to other Tenants in the Building and to
their respective employees, agents, customers and invitees, and it does not
entitle Tenant or the other Tenants, to any particular assigned spaces in the
parking lot.
ARTICLE IX -- REPAIRS, MAINTENANCE, ALTERATIONS. IMPROVEMENTS AND FIXTURES
--------------------------------------------------------------------------
9.01 - Repair and Maintenance of Premises. Landlord shall keep and maintain the
Premises in good order, condition and repair. Except for the services specified
in Section 7.01(E), (F) and (G), and except for ordinary wear and tear and
damage which Tenant is not obligated to repair as provided elsewhere in this
Lease, the cost of all such repairs and maintenance shall be borne by Tenant,
who shall be separately billed theref or and shall reimburse Landlord for the
same as additional rent.
9.02 - Alterations or Improvements. Tenant may not make or permit to be made
alterations or improvements to the Premises without the prior written consent of
Landlord. If Landlord allows Tenant to make any such alterations or
improvements, Tenant shall make the same in accordance with all applicable laws
and building codes, in a good and workmanlike manner and in quality equal to or
better than the original construction of the Building and shall comply with such
requirements as Landlord considers necessary or desirable, including without
limitation requirements as to the manner in which and the times at which such
work shall be done and the contractor or subcontractors to be selected to
perform such work. Tenant shall promptly pay all costs and expenses attributable
to such alterations and improvements. Tenant shall promptly repair any damage to
the Premises or the Building caused by any such alterations or improvements. Any
alterations or improvements to the Premises, except movable office furniture and
equipment and trade fixtures, shall become a part of the realty and the property
of Landlord, and shall not be removed by Tenant.
9.03 - Trade Fixtures. Any trade fixtures installed on the Premises by Tenant
at its own expense, such as movable partitions, counters, shelving, showcases,
mirrors and the like, may, and, at the request of Landlord, shall be removed on
the expiration or earlier termination of this Lease, provided that Tenant is not
then in default, that Tenant bears the cost of such removal, and further that
Tenant repairs at its own expense any and all damage to the Premises resuiting
from such removal. If Tenant fails to remove any and all such trade fixtures
from the Premises on the Expiration Date or earlier termination of this Lease,
all such trade fixtures shall become the property of Landlord unless Landlord
elects to require their removal, in which case Tenant shall promptly remove same
at its expense and restore the Premises to their prior condition.
ARTICLE X -- FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
--------------------------------------------------------
10.01 - Substantial Destruction of the Building or the Premises. If either the
Building or the Premises should be substantially destroyed or damaged (which as
used herein, means destruction or material damage to at least 50% of the
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Building or the Premises) by fire or other casualty, then either party hereto
may, at its option, terminate this Lease by giving the other party written
notice of such termination within thirty (30) days after the date of such
casualty. In such event, rent shall be apportioned to an shall cease as of the
date of such casualty. If neither party exercises this option, then the Premises
shall be reconstructed and restored, at Landlord's expense, to substantially the
same condition as they were prior to the casualty; provided however that the
Landlord's obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be made by
Landlord in accordance with the plans and specifications referred to in
Section 5.01; and further provided that, if Tenant has made any additional
improvements pursuant to Section 9.02, Tenant shall reimburse Landlord for the
cost of reconstructing the same. In the event of such reconstruction, rent shall
be abated from the date of the casualty until substantial completion.of the
recon- struction repairs; and this Lease shall continue in full force and effect
for the balance of the term.
10.02 - Partial Destruction of the Premises. If the Premises should be damaged
by fire or other casualty, but not substantially destroyed or damaged to the
extent provided in Section 10.01, then such damaged part of the Premises shall
be reconstructed and restored, at Landlord's expense, to substantially the same
condition as it was prior to the casualty; provided however that Landlord's
obligation hereunder shall be limited to the reconstruction of such of the
tenant finish improvements as were originally required to be made by Landlord in
accordance with the plans and specifications referred to in Section 5.01, and
further provided that, if Tenant has made any additional improvements pursuant
to Section 9.02, Tenant shall reimburse Landlord for the cost or reconstructing
the same. In such event, if the damage is expected to prevent Tenant from
carrying on its business in the Premises to an extent exceeding 30% of its
normal business activity, rent shall be abated in the proportion which the
approximate area of the damaged part bears to the total area in the Premises
from the date of the casualty until substantial completion of the reconstruction
repairs; and this Lease shall continue in full force and effect for the balance
of the term. Landlord shall use reasonable diligence in completing such
reconstruction repairs, but in the event Landlord fails to complete the same
within one hundred eighty (180) days from the date of the casualty, Tenant may,
at its option, terminate this Lease upon giving Landlord written notice to that
effct, whereupon both parties shall be released from all further obligations and
liability hereunder.
10.03 - Casualty Insurance. Landlord shall at all times during the term of this
Lease carry, at its own expense, a policy of insurance which insures the
Building, including the Premises, against loss or damage by fire or other
casualty (namely the perils against which insurance is afforded by the standard
fire insurance policy and extended coverage endorsement); provided, however,
that Landlord shall not be responsible for, and shall not be obligated to insure
against, any loss of or damage, to any of Tenant's property or any additional
improvements which Tenant may construct on the Premises as provided in Section
10.05. If the tenant finish improvements installed by Landlord pursuant to
Section 5.01 or any alterations or improvements made by Tenant pursuant to
Section 9.02 result in an increase in the premiums charge during the term of
this Lease on the casualty insurance carried by Landlord on the Building, then
the cost of such increase in insurance premiums shall be borne by Tenant, who
shall be separately billed theref or and shall reimburse Landlord for the same
as additional rent.
10.04 - Waiver of Subrogation. Each party hereby releases each other and the
other's employees, agents, customers and invitees from any and all liability for
any loss of or damageor injury to person or property; occurring in, on or about
or to the Premises, the improvements to the Building or personal property within
the Building by reason of fire or other casualty which could be insured against
under a standard fire and extended coverage insurance policy, regardless of
cause, including the negligence of the other party and its employees, agents,
customers and invitees. Each party further agrees that such insurance carried by
either of them shall contain a clause whereby the insurance company waives its
right of subrogation against the other party. Because the provisions of this
Section 10.04 are intended to preclude the assignment of any claim mentioned
herein by way of subrogation or otherwise to an insurance company or any other
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person, each party to this Lease shall give to each insurance company which has
issued to it one or more policies of fire and extended coverage insurance notice
of the terms of the mutual releases contained in this Section 10.04 and have
such insurance policies properly endorsed, if necessary, to prevent the
invalidation of such insurance by reason of the provisions of this Section
10.04.
10.05 - Personal Property, Trade Fixtures and Additional Improvements. Not-
withstanding Landlord's obligations as provided in Sections 10.03, and 11.03 or
elsewhere in this Lease, Tenant shall bear the sole risk of any loss of or
damage to (i) any of its property on the premises, including, but not limited
to, any furniture, machinery, equipment, goods, supplies or other personal
property owned or leased by Tenant or any trade fixtures owned or leased by
Tenant, or (ii) any additional improvements which Tenant may construct on the
Premises; and Landlord shall not be liable for any such loss or damage,
regardless of cause, including the negligence of Landlord, and its employees,
agents, customers and invitees.
ARTICLE XI -- GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
---------------------------------------------------------------------
11.01 - Tenant's Responsibility. Tenant shall assume the risk of, be
responsible for, have the obligation to insure against, and indemnify Landlord
and hold it harmless from any and all liability for any loss of or damage or
injury to person (including death resulting therefrom) or property occurring in,
on or about the Premises, regardless of cause, except for any loss or damage
from fire or other casualty as provided in Article X and except for that caused
by the sole negligence of Landlord and its employees, agents, customers and
invitees; and Tenant hereby releases Landlord from any and all liability for the
same. Tenant's obligation to indemnify Landlord hereunder shall include the duty
to defend against any claims asserted by reason of such loss, damage or injury
and to pay any judgements, settlements, costs, fees and expenses, including
attorneys' fees, incurred in connection therewith. Notwithstanding Landlord's
obligations hereunder, Tenant shall bear the sole risk of any loss of or damage
to its property as provided in Section 10.05.
11.02-- Tenant's Insurance. Tenant, in order to enable it to meet its obligation
to insure against the liabilities specified in this Lease, shall at all times
during the term of this Lease carry, at its own expense, for the protection of
Tenant and Landlord, as their interests may appear, one or more policies of
general public liability and property damage insurance, issued by one or more
insurance companies acceptable to Landlord, with the following minimum
coverages:
A. Workers' Compensation -- minimum statutory amount.
B. Commercial General Liability Insurance -- Not less than $500,000 Combined
Single Limit for both bodily injury and property damage.
C. Fire and Extended Coverage, Vandalism and Malicious Mischief for full cost
of replacement of Tenant's property.
Such insurance policy(ies) shall name Landlord as an additional insured and
shall provide that it may not be cancelled on less than thirty (30) days prior
written notice to Landlord. Tenant shall furnish Landlord with Certificates of
Insurance evidencing such coverages. Should Tenant fail to carry such insurance
and furnish Landlord with such Certificates of Insurance after a request to do
so, Landlord shall have the right to obtain such insurance and collect the cost
thereof from Tenant as Additional Rent.
11.03 - Landlord's Responsibility. Landlord shall assume the risk of, be
responsible for, have the obligation to insure against, and indemnify Tenant and
hold it harmless from any and all liability for any loss, damage or injury to
person (including death resulting therefrom) or property (other than Tenant's)
property as provided in Section 10.05) occurring in, on or about the Common
Areas, regardless of cause, except for that caused by the sole negligence of
Tenant and its employees, agents, customers and invitees; and Landlord hereby
releases Tenant from any and all liability for the same. Landlord's obligation
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to indemnify Tenant hereunder shall include the duty to defend against any
claims asserted by reason of such loss, damage or injury and to pay any
judgements, settlements, costs, fees and expenses, including attorneys' fees,
incurred in connection herewith.
ARTICLE XII -- EMINENT DOMAIN
-----------------------------
If the whole or any part of the Premises shall be taken for public or qummi
public use by a governmental or other authority having the power of eminent
domain or shall be conveyed to such authority in lieu of such taking, and if
such taking or conveyance shall cause the remaining part of the Premises to be
untenantable and inadequate for use by Tenant for the purpose for which they
were leased, then Tenant may, at its option, terminate this Lease as of the date
Tenant is required to surrender possession of the Premises by giving Landlord
notice of such termination. If a part of the Premises shall be taken or conveyed
but the remaining part is tenantable and adequate for Tenant's use, then this
Lease shall be terminated as to the part taken or conveyed as of the date Tenant
surrenders possession; Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part not taken or conveyed
tenantable; and the rent shall be reduced in proportion to the part of the
Premises so taken or conveyed. All compensation awarded for such taking or
conveyance shall be the property of Landlord without any deduction therefrom for
any present or future estate of Tenant, and Tenant hereby assigns to Landlord,
such compensation as may be awarded to Tenant on account of moving and
relocation expenses and depreciation to the removal of Tenant's property.
ARTICLE XIII -- LIENS
----------------------
If, because of any act or omission of Tenant or anyone claiming by, through or
under Tenant, any mechanic's lien or other lien shall be filed against the
Premises or in the Building or against other property of Landlord (whether or
not such lien is valid or enforceable as such), Tenant shall, at its own
expense, cause the same to be discharged of record within thirty (30) days after
the date of filing thereof, and shall also indemnify Landlord and hold it
harmless from any and all claims, losses, damages, judgements, settlements,
costs and expenses, including attorneys' fees, resulting therefrom or by reason
thereof. Landlord may, but shall not be obligated to, pay the claim upon which
such lien is based so as to have such lien released of record; and, if Landlord
does so, then Tenant shall pay to Landlord as additional rent, upon demand, the
amount of such claim, plus all other costs and expenses incurred in connection
therewith, plus interest thereon at the rate of twelve percent (12%) per annum
until paid.
ARTICLE XIV -- RENTAL, PERSONAL PROPERTY AND OTHER TAXES
----------------------------------------------------------
Tenant shall pay before delinquency any and all taxes, assessments, fees or
charges, including any sales, gross income, rental, business occupation or other
taxes, levied or imposed upon Tenant's business operations in the Premises and
any personal property or similar taxes levied or imposed upon Tenant's trade
fixtures, leasehold improvements or personal property located within the
Premises. In the event any such taxes, assessments, fees or charges are charged
to the account of, or are levied or imposed upon the property of, Landlord,
Tenant shall reimburse Landlord for the same as additional rent. Notwithstanding
the foregoing, Tenant shall have the right to contest in good faith any such
item and to defer payment, if required, until after Tenant's liability theref or
is finally determined.
If any tenant finish improvements, trade fixtures, alterations or improvements
or business machines and equipment located in, on or about the Premises,
regardless of whether they are installed or paid for by Landlord or Tenant and
whether or not they are affixed to and become a part of the realty and the
property of Landlord, are assessed for real property tax purposes at a valuation
higher than that at which other such property in other leased space in the
Building is assessed, then Tenant shall reimburse Landlord as additional rent
for the amount of real property taxes shown on the appropriate county official's
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records as having been levied upon the Building or other property of Landlord,
by reason of such excess assessed valuation.
ARTICLE XV -- ASSIGNMENT AND SUBLETTING
----------------------------------------
Tenant will not assign this Lease or sublet the Premises, or any part thereof,
without the prior written consent of Landlord; and any attempted assignment or
subletting without such consent shall be invalid. In the event of any such
permitted assignment or subletting, Tenant shall nevertheless, at all times,
remain fully responsible and liable for the payment of rent and the performance
and observance of all of Tenant's other obligations under the terms, conditions
and covenants of this Lease. No assignment or subletting of the Premises or any
part thereof shall be binding upon Landlord unless such assignee or subtenant
shall deliver to Landlord an instrument (in recordable form, if requested)
containing an agreement of assumption of all of Tenant's obligations under this
Lease. Upon the occurrence of an event of default, if all or any part of the
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or by law, may, at its option, collect directly
from the assignee or subtenant all rent becoming due to Landlord by reason of
the assignment or subletting. Any collection by Landlord from the assignee or
subtenant shall not be construed to constitute a waiver or release of Tenant
from the further performance of its obligations under this Lease or the making
of a new lease with such assignee or subtenant.
Landlord may, in its sole discretion, refuse to give its consent to any proposed
assignee or subtenant, the prevailing market or quoted rental rates for space in
the Building or other comparable buildings, and the proposed use of the Premises
by, or business of, the proposed assignee or subtenant. If Landlord refuses to
give its consent to any proposed assignment or subletting, Landlord may, at its
option, within thirty (30) days after receiving notice of the proposal,
terminate this Lease by giving Tenant thirty (30) days prior written notice of
such termination, whereupon each party shall be released from all further
obligations and liability hereunder.
ARTICLE XVI -- TRANSFERS BY LANDLORD
-------------------------------------
16.01 - Sale and Conveyance of the Building. Landlord shall have the right to
sell and convey the Building at any time during the term of this Lease, subject
only to the rights of Tenant hereunder; and such sale and conveyance shall
operate to release Landlord from liability hereunder after the date of such
conveyance as provided in Section 17.04.
16.02 - Subordination. Landlord shall have the right to subordinate this Lease
to any mortgage presently existing or hereafter placed upon the Building by so
declaring in such mortgage; and the recording of any such mortgage shall make it
prior and superior to this Leaseregardless of the date of execution or recording
of either document. Tenant shall, at Landlord's request, execute and deliver to
Landlord, without cost, any instrument which may be deemed necessary or
desirable by Landlord to confirm the subordination of this Lease; and, if Tenant
fails or refuses to do so, Landlord may execute such instrument in the name and
as the act of Tenant. Notwithstanding the foregoing, no default by Landlord,
under any such mortgage shall affect Tenant's rights hereunder so long as Tenant
is not in default under this Lease. Tenant shall, in the event any proceedings
are brought for the foreclosure of any such mortgage, attorn to the purchaser
upon any such foreclosure and recognize such purchaser as the landlord under
this Lease.
ARTICLE XVII -- DEFAULTS AND REMEDIES
---------------------------------------
17.01 - Defaults by Tenant. The occurrence of any one or more of the following
events shall be a default and breach of this Lease by Tenant:
A. Tenant shall fail to pay any monthly installment of Base Rent or the
Additional Rent within ten (10) days after the same shall be due and
payable, or any other additional rent within thirty (30) days after the
shall be due and payable.
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------------
B. Tenant shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease for
a period of thirty (30) days after notice thereof from Landlord; provided,
however, that if the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably be
performed within such thirty day period, such default shall be deemed to
have been cured if Tenant commences such performance within said thirty day
period and thereafter diligently undertakes to complete the same.
C. Tenant shall vacate or abandon the Premises, or fail to occupy the Premises
for a period of thirty (30)'days.
D. A trustee or receiver shall be appointed to take possession of
substantially all of Tenant's assets in, on or about the Premises or of
Tenant's interest in this Lease (and Tenant does not regain possession
within sixty (60) days after such appointment); Tenant makes an assignment
for the benefit of creditors; or substantially all of Tenant's assets in,
on or about the Premises or Tenant's interest in this Lease are attached or
levied upon under execution (and Tenant does not discharge the same within
sixty (60) days thereafter).
E. A petition in bankruptcy, insolvency or for reorganization or arrangement
is filed by or against Tenant pursuant to any federal or state statute
(and, with respect to any such petition filed against it, Tenant fails to
secure a stay or discharge thereof within sixty (60) days after the filing
of the same).
17.02 - Remedies of Landlord. Upon the occurrence of any event of default set
forth in Section 1701, Landlord shall have the following rights and remedies, in
addition to those alowed by law, any one or more of, which may be exercised
without further notice to or demand upon Tenant:
A. Landlord may apply the security deposit or re-enter the Premises and cure
any default of Tenant, in which event Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord may incur to cure
such default; and Landlord shall not be liable to Tenant for any loss or
damage which Tenant may sustain by reason of Landlord's negligence or
otherwise.
B. (1) Landlord may terminate this Lease as of the date of such default,
in which event: (i) neither Tenant nor any person claiming under or
through Tenant shall thereafter be entitled to possession of the
Premises, and Tenant shall immediately thereafter surrender the
Premises to Landlord; (ii) Landlord nay re-enter the Premises and
dispossess Tenant or any other occupants of the Premises by any means
permitted by law, and may remove their property, without prejudice to
any other remedy which Landlord may have for possession or arrearages
in rent; and (iii) notwithstanding the termination of this Lease,
Landlord may declare all of the rent which would have been due under
this Lease for the balance of the term to be immediately due and
payable, whereupon Tenant shall be obligated to pay the same to
Landlord, together with all loss or damage which Landlord may sustain
by reason of such termination, it being expressly understood and
agreed that the liabilities and remedies specified in this subsection
(B) (1) of Section 17.02 shall survive the termination of this Lease;
or
(2) Landlord may, without terminating this Lease, re-enter the Premises
and re-let all or any part of the 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 Tenant shall be obligated to pay to
Landlord as liquidated damages the difference between the rent
provided for herein and that provided for in any lease covering a
subsequent re-letting of the Premises, for the period which would
otherwise have constituted the balance of the term of this Lease,
together with all of Landlord's costs and expenses for preparing the
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Premises for re-letting, including all repairs, tenant finish
improvements, broker's and attorney's fees, and all loss or damage
which Landlord may sustain by reason of such re-entry and
re-letting.
C. Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the breach.
17.03 - Default by Landlord and Remedies of Tenant. It shall be a default under
the breach of this Lease by Landlord if it shall fail to perform or observe any
term, condition, covenant or obligation required to be performed or observed by
it under this Lease for a period of thirty (30) days after notice thereof from
Tenant; provided, however, that if the term, condition, covenant or obligation
to be performed by Landlord is of such nature that the sane cannot reasonably be
performed within such thirty day period, such default shall be deemed to have
been cured if Landlord commences such performance within said thirty day period
and thereafter diligently undertakes to complete the same. Upon the occurrence
of any such default, Tenant may sue for injunctive relief or to recover damages
for any loss resulting from the breach, but Tenant shall not be entitled to
terminate this Lease or withhold or abate any rent due hereunder.
17.04 - Limitation of Landlord's Liability. If Landlord shall fail to perform
or observe any term, condition, covenant or obligation required to be performed
or observed by it under this Lease as provided in Section 17.03 and if Tenant
shall, as a consequence thereof, recover a money judgement 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 judgement; and Tenant further
agrees that no other assets of Landlord shall be subject to levy, execution or
other process for the satisfaction of Tenant's judgement and that Landlord shall
not be liable for any deficiency. (See page 17.)
The reference to "Landlord" in this Lease shall be limited to mean and include
only the owner or owners, at the time, of the fee simple interest in the
Building, including Landlord's interest in this Lease. In the event of a sale or
transfer of such interest (except a mortgage or other transfer as security for a
debt), the "Landlord" named herein, or, in the case of a subsequent transfer,
the transferor, shall, after th edate of such transfer, be automatically
released from all personal liability for the performance or observance of any
term, condition, covenant or obligation required to be performed or observed by
Landlord hereunder; and the transferee shall be deemed to have assumed all of
such terms, conditions, covenants and obligations, it being intended hereby that
such terms, conditions, covenants and obligations shall be binding upon
Landlord, its successors and assigns, only during and in respect of their
successive periods of ownership during the term of this Lease.
17.05 - Non-Waiver of Defaults. The failure or delay by either party thereto to
exercise or enforce at any time any of the rights, remedies or other provisions
of this Lease shall not be construed to be a waiver thereof, nor affect the
validity of any part of this Lease or the right of either party thereafter to
exercise or enforce each and every such right, remedy or other provision. No
waiver of any default and breach of the lease shall be held to be a waiver of
any other default and breach. The receipt by Landlord of less than the full rent
due shall not be construed to be other than a payment on account of rent then
due, nor shall any statement on tenant's check or any letter accompanying
tenant's check be deemed an accord and satisfaction, and Landlord may accept
such payment without prejudice to Landlord's right to recover the balance of the
rent due or to pursue any other remedies provided in this Lease. No act or
omission by Landlord or its employees or agents during the term of this Lease
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such a surrender shall be valid unless it is in writing and signed by
Landlord.
17.06 - Attorney's Fees. In the event Tenant defaults in the performance or
observance of any of the terms, conditions, covenants or obligations contained
in this Lease and Landlord employs one or more 'attorneys to enforce all or any
part of this Lease, to collect any rent due or to become due or to recover
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possession of the Premises, Tenant agrees to reimburse Landlord for the
attorney's fees incurred thereby, whether or not suit is actually filed.
ARTICLE XVIII -- NOTICE AND PLACE OF PAYMENT
----------------------------------------------
18.01 - Notices. Any notice required or permitted to be given under this Lease
or by law shall be deemed to have been given if it is written and delivered in
person or mailed by Registered or Certified mail, postage prepaid, to the party
who is to receive such notice at the address specified in Item J of the Basic
Lease Provisions. When so mailed, the notice shall be deemed to have been given
as of the date it was mailed. The address of a party specified in Item M of the
Basic Lease Provisions may be changed by giving written notice thereof to the
other' party.
18.02 - Place of Payment. All rent and other payments required to be made by
Tenant to Landlord shall be delivered or mailed to Landlord's management agent
at the address specified in Item J of the Basic Lease Provisions or at any
other address Landlord may specify from time to time by written notice given to
Tenant.
ARTICLE XIX -- MISCELLANEOUS GENERAL PROVISIONS
-------------------------------------------------
19.01 - Definition of Rent. Any amounts of money to be paid by Tenant to
Landlord pursuant to the provisions of this Lease, whether or not such payments
are denominated "rent" or "additional rent" and whether or not they are to be
periodic or recurring, shall be deemed "rent" or "additional rent" for purposes
of this Lease; and any failure to pay any of the same as provided in Section
17.01 hereof shall entitle Landlord to exercise all of the rights and remedies
afforded hereby by law for the collection and enforcement of Tenant's obligation
to pay rent. Tenant's obligation to pay any such rent or additional rent
pursuant to the provisions of this Lease shall survive the expiration or other
termination of this Lease and the surrender of possession of the Premises after
any hold-over period.
19.02 - Consents and Approvals. Whenever in this Lease Tenant is entitled to
exercise some right or option with the prior written consent or approval of
Landlord, such consent or approval shall not be unreasonably withheld or
delayed.
19.03 - Estoppel Certificate. Tenant shall, within ten (10) days following
receipt of a written request from Landlord, execute, acknowledge and deliver to
Landlord or to any lender or purchaser or prospective lender or purchaser
designated by Landlord a written statement certifying (i) that Lease is in full
force and effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, and (iii) that there
are not, to Tenant's knowledge, any existing defaults (or specifying such
defaults if any are claimed). Tenant's failure to deliver such statement within
such period shall be conclusive upon Tenant that this Lease is in full force and
effect and unmodified, and that there are not existing defaults on the part of
Landlord hereunder.
19.04 - Recording of Memorandum of Lease. If requested by either party, a
Memorandum of Lease, containing the information required by law concerning this
Lease shall be prepared, executed by both parties and filed for record.
19.05 - Payment of and Indemnification for Leasing Commissions. Each party
hereby acknowledges, represents and warrants to the other party that the only
real estate broker or brokers involved in the negotiation and execution of this
Lease is that, or are those, named in Item I of the Basic Lease Provisions; that
Landlord is obligated to pay to it or for their benefit a leasing commission
under its Leasing Agreement with Mark F. Taggart Co. and that no other broker or
person is entitled to any leasing commission or other compensation as a result
of the negotiation for execution of this Lease. Each party shall indemnify the
other party and hold it harmless from any and all liability for the breach of
any such representation and warranty on its part shall pay any compensation to
15
<PAGE>
OFFICE LEASE
------------
any other broker or person who may be deemed or held to be entitled hereto.
19.06 - Governing Law. This Lease is being executed and delivered by Landlord
in the State of Ohio and shall be governed, construed and enforced in accordance
with the laws of that state.
19.07 - Complete Agreement; Amendments. This Lease, including all Exhibits,
Riders and Addenda, constitutes the entire agreement between the parties hereto;
it supersedes all previous understandings and agreements between the parties, if
any, and no oral or implied representation or understandings shall vary its
terms; and it may not be amended'except by a written instrument executed by both
parties hereto.
10.08 - Successors and Assigns. This Lease and the respective rights and
obligations of the parties hereto shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto as well as the parties
themselves; except as otherwise provided in Section 17.04 and elsewhere in this
Lease.
19.09 - Severability of Invalid Provisions. If any provision of this Lease
shall be held to be invalid, void or unenforceable, the remaining provisions
hereof shall not be affected or impaired, and such remaining provisions shall
remain in full force and effect.
19.10 - Definition of the Relationship Between the Parties. Landlord shall not,
by virtue of the execution of this Lease or the leasing of the Premises to
Tenant, become or be deemed a partner of or joint venturer with Tenant in the
conduct of Tenant's business on the Premises or otherwise.
19.11 - Certain Words, Gender and Hearings. As used in this Lease, the word
"person" shall mean and include, where appropriate, an individual, corporation,
partnership or other entity; the plural shall be substituted for the singular
and the singular for the plural, where appropriate; and words of any gender
shall include any other gender. The topical headings of the several paragraphs
of this Lease are inserted only as a matter of convenience and reference, and do
not affect, define, limit or describe the scope or intent of this Lease.
19.12 - Quiet Enjoyment. Except as provided in Article XVII, hereof to the
extent that it may be applicable, if and so long as Tenant pays the prescribed
rent and performs or observes all of the terms, conditions, covenants and
obligations of this Lease required to be performed or observed by it hereunder,
Tenant shall, at all times during the term hereof, have the peaceable and quiet
enjoyment, possession, occupancy and use of the Premises without any
interference from Landlord or any person or persons claiming the Premises by,
through or under Landlord, subject to any mortgages, underlying leases or other
matters of record to which this Lease is or may become subject.
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OFFICE LEASE
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ARTICLE XX -- ADDITIONAL PROVISIONS
-----------------------------------
Additional provisions of this Lease, if any, are set forth in an Addendum to
this Lease which is attached hereto and made a part hereof. Such additional
provisions are as follows: One additional five (5) year term option with rent
increases adjusted annually and pursuant to C.P.I.
In the event Landlord shall offer the premises for sale, Landlord shall give
Tenant thirty (30) days advance notice, in writing, and Tenant shall have an
additional thirty (30) day period within which to excerise his right to purchase
the premises at a total consideration of $336,600.00 ($100.00 per square feet).
This purchase price is guaranteed for a period of two (2) years from date of
commencement of this lease.
Owner agrees at said mortgage on building will not exceed $800,000 which ii the
present mortgage without notifying Tenant for approval. This is to guarantee the
equity in said building.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
Certificate of Approval for
By:
--------------------------
LANDLORD:
By:
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From:To: RICHARD CORNA Date:1/8/98 Time: 09:30:23 Page l of 1
Witness as to Landlord:
Its
---------------------------------- ------------------------
Landlord
----------------------------------
Witness as to Tenant:
Its
---------------------------------- -----------------------
Tenant
----------------------------------
STATE OF OHIO )
) SS
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this day of , 1998
by _______________
LANDLORD
------------------------------------
Notary public
STATE OF OHIO )
) SS
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this day of , 1998
by _______________
TENANT
------------------------------------
Notary public
<PAGE>
EXHIBIT A-2
BUILDING REGULATIONS
--------------------
1. The entries, passages, corridors, stairways or vaults shall not be
obstructed by any of the tenants, their employees or anyone of them, and
are to be used for no other purpose than ingress and egress to and from
their respective offices only during such hours as may be specified by
owner;
2. Tenant will not place anything or allow anything to be placed near the
glass of any door, partition or window which may be unsightly from the
outside of the premises, and will not permit anything to be placed, stored
or made in or otherwise obstruct any passageway, corridor, exit, stairway,
elevator or shipping platform.
3. Tenant will not permit any objectionable noise, odor or vibration to
emanate from the premises or to do anything in the premises tending to
create or maintain a nuisance, or which will disturb any other occupant of
the building or tend to injure the reputation of the building.
4. Tenant will not bring or permit to be brought into the building any animal,
bird or other pet.
5. The janitors employed by the owner to take charge of the building will be
provided with a pass key to foyer only. No person shall be employed by the
landlord to do janitor work in said leased premises, and no persons other
than janitors in said building shall clean said premises unless the owner
shall endorse on this lease a written consent thereto.
6. No safe, heavy furniture, or bulky material article shall be carried up,
into or down the building or through corridors except with the permission
and under the supervision of the owner. All such property shall be carried
up or into the premises only at such times and in such manner as shall be
specified by the owner. The owner shall in all cases retain the power to
subscribe the proper position of such property, and any damage or injury
done to the building or other tenants or persons by taking in or removing
the same from overloading the floor shall be paid for by the tenant causing
such damages or injury.
7. A minimum of two (2) keys shall be furnished by the owner but if more shall
be desired, the additional number must be paid for an obtained by the
tenant.
8. Tenant shall not use or permit to be brought into the premises or the
building any inflammable oils or fluids, or any explosive or other articles
deemed hazardous to person or property; or to do or permit to be done any
act or thing which will invalidate or be in conflict with fire or other
insurance policies covering the building or its operation, or the premises,
or part of either; or do or permit to be done anything in or upon the
premises; or bring or keep anything therein, which shall not comply with
all rules, orders, regulations, or requirements of the Ohio Inspection
Bureau, or any similar organization (and tenant shall at all times comply
with all such rules, orders, regulations or requirements), or which shall
increase the rate of insurance on the building, its appurtenances or
contents. If by reason of the failure of tenant to comply with the
provisions of this paragraph, any insurance premium payable by owner shall
at any time be increased above what it otherwise would be, tenant shall
reimburse the owner to the extent of all such increases in premium paid by
owner.
9. No additional locks shall be placed upon any door of the building without
the written consent of owner first obtained.
10. The owner reserves the right to enter 'upon any premises vacated by the
tenant before the termination of the lease to make repairs or alterations.
<PAGE>
EXHIBIT A-2
Building. Regulations
Page 2
11. Tenant will not use the premises for housing, lodging, or sleeping
purposes; permit preparation or warming of food in the premises or permit
food to be brought into the premises for consumption therein (warming of
coffee or tea and consumption of individual lunches of employees excepted)
except by express permission of owner, who may at its sole discretion
refuse such permission or impose any conditions in granting it, and revoke
it at will.
12. At the owner's option, all alterations, additions, partitions or
improvements which may be made upon the premises by either of the parties
hereto shall be the property of the owner, and shall remain upon and be
surrendered with the premises as part thereof or removed from the premises
by the tenant at the tenant's expense at the termination of this lease.
13. Moving of furniture or bulky articles will be co-ordinated by Management.
14. The owner reserves the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be needful
for the safety, care and cleanliness of the premises and for the
preservation of good order therein, andthe same shall be as binding upon
the tenant as if they had been inserted herein at the time of the execution
hereof.
10. The owner reserves the right to enter 'upon any premises vacated by the
tenant before the termination of the lease to make repairs or alterations.
