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EXHIBIT 10.2.5
LEASE
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THIS LEASE ("LEASE") is made as of the 17th day of March, 2000, between
MILFORD PARTNERS, LLC, a Delaware limited liability company ("LANDLORD"), and
TELXON CORPORATION, a Delaware corporation ("TENANT"), for space in the building
commonly known as Ridgewood Corporate Center, 1000 Summit Drive, Milford, Ohio
(such building, together with the land upon which it is situated and common
areas, including sidewalks, parking areas and landscaped areas, being herein
referred to as the "BUILDING"). The following schedule (the "SCHEDULE") sets
forth certain basic terms of this Lease:
SCHEDULE
1. Premises - Suite Number: 200, located on the first floor of the
Building, as shown on the attached Exhibit A.
2. Commencement Date: Earlier of (i) completion of the Landlord's Work
described in Exhibit B or (ii) April 15, 2000.
3. Expiration Date: last day of the sixtieth (60th) full calendar month
after the occurrence of the Commencement Date
4. Rentable Square Feet of the Premises: 21,936
5. Rentable Square Feet of the Building: 196,055
6. Base Rent:
MONTHLY ANNUALLY
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$21,084.85 $253,018.20
7. Tenant's Proportionate Share: 11.19%
8. CPI Factor: Intentionally Omitted
9. Base Year: Intentionally Omitted
10. Security Deposit: $21,084.85
11. Broker(s): A.M. Piker, Inc. (representing Tenant) and CB Richard Ellis
(representing Landlord)
12. Guarantor(s): None
Exhibits:
A. Floor Plan
B. Workletter
C. Rules and Regulations
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1. DEMISE AND TERM.
A. COMMENCEMENT/EXPIRATION DATE. Landlord leases to Tenant and Tenant
leases from Landlord the premises (the "PREMISES") described in Item 1 of the
Schedule and shown on the plan attached hereto as Exhibit A, subject to the
covenants and conditions set forth in this Lease, for a term (the "TERM")
commencing on the date (the "COMMENCEMENT DATE") described in Item 2 of the
Schedule and expiring on the date (the "EXPIRATION DATE") described in Item 3 of
the Schedule, unless terminated earlier as otherwise provided in this Lease.
Notwithstanding the date set forth herein, Landlord agrees to allow Tenant
access to the Premises as early as prudence will allow to permit Tenant to
install its furniture, fixtures, computer and telecommunications equipment,
without the payment of Rent, provided Tenant's activities do not interfere with
substantial completion of Landlord's Work and provided further that Tenant has
obtained (and provided to Landlord) the insurance coverages required herein.
B. OPTION TO EXTEND TERM. Tenant, by written notice to Landlord given
no later than six (6) full calendar months prior to the Expiration Date of this
Lease, shall have the option to renew this Lease for one (1) additional
consecutive five (5) year period ("OPTION PERIOD") commencing on the expiration
of the Term of this Lease, pursuant to all of the terms, covenants, and
conditions of this Lease and at the Fair Market Rent (as defined below) provided
that at the time the notice hereinabove referred to is given and at the time the
Option Period commences, and at all times in between, Tenant is not in default
beyond any applicable cure period hereunder. "Fair Market Rent" as used herein,
shall mean, as of any date, the then prevailing annual rental rate being charged
in comparable buildings (including the Building) in the greater metropolitan
area of Cincinnati, Ohio, and surrounding areas, comparable to the space in the
building of which the Premises form a part for which such determination is being
made after taking into consideration the following (to the extent that same are
applicable under the circumstances in question):
(a) Location, quality and age of the building;
(b) Use and size of the space in question;
(c) Location and/or floor level within the building;
(d) Definitions of "net rentable area" and "net useable area";
(e) Extent of leasehold improvement allowance (specifically not taking into
consideration existing leasehold improvements);
(f) Rent and other monetary abatements (including, with respect to base
rental, operating expenses, ad valorem/real estate taxes and parking
charges);
(g) Inclusion of parking charges in rental;
(h) Lease takeover/assumptions;
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(i) Moving allowances;
(j) Relocation allowances;
(k) Refurbishment and repainting allowances;
(l) Any other concessions or inducements;
(m) Extent of services provided or to be provided by the landlord;
(n) Distinction between "gross" and "net" lease;
(o) Base year or dollar amount for operation expenses escalation purposes
(both operating costs and ad valorem/real estate taxes);
(p) Any other adjustments (including by way of indices) to base rental;
(q) Credit standing and financial stature of tenant;
(r) Term or length of lease;
(s) Any other matter or condition deemed relevant by the parties.
Landlord shall deliver written notice to Tenant of Landlord's proposed
Fair Market Rent not less than two hundred seventy (270) days and not more than
three hundred thirty (330) days in advance of the time that Tenant is required
to exercise the election to extend the Term of this Lease ("LANDLORD'S FMR
Notice"). Within thirty (30) days of Tenant's receipt of Landlord's FMR Notice,
Tenant shall notify Landlord that it either (a) accepts the Fair Market Rent set
forth in Landlord's FMR Notice; or (b) rejects the Fair Market Rent set forth in
Landlord's FMR Notice. If Tenant elects to accept the Fair Market Rent set forth
in Landlord's FMR Notice, this Lease shall be amended to reflect the Landlord's
proposed Fair Market Rent for the Option Period. If Tenant fails to respond to
Landlord's FMR Notice, Tenant shall be deemed to have rejected Landlord's
proposed Fair Market Rent, as set forth in Landlord's FMR Notice.
If Tenant rejects the Fair Market Rent set forth in Landlord's FMR
Notice or if Tenant fails to respond to Landlord's FMR Notice, the parties,
acting in good faith, shall have a period of thirty (30) days in which to agree
upon the Fair Market Rent for the Option Period, said 30 day period to commence
at the expiration of the thirty (30) day period permitted to Tenant to accept or
reject the Fair Market Rent specified in Landlord's FMR Notice. If the parties
are unable to agree upon the Fair Market Rent within said thirty (30) day
period, then within five (5) days of the expiration of such 30 day period,
Tenant may deliver written notice to Landlord ("TENANT'S ARBITRATION NOTICE")
that it either (a) is willing to submit the determination of Fair Market Rent to
binding arbitration (as set forth in the immediately following paragraph); or
(b) has elected not to extend the Term of the Lease for the Option Period
provided, however, that if Tenant fails to deliver Tenant's Arbitration Notice
to Landlord within said five (5) day period (time being of the essence with
respect to the delivery of same) then Tenant shall
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automatically be deemed to have waived any option to extend or renew the Term of
this Lease and Landlord shall immediately, and without further notice, be free
to lease the Premises to third parties. If Tenant sends Tenant's Arbitration
Notice, then within five (5) days of receipt of Tenant's Arbitration Notice,
Landlord shall notify Tenant that Landlord either (a) agrees to submit the
matter to binding arbitration, as set forth in the immediately following
paragraph; or (b) rejects binding arbitration, in which event Tenant's option to
extend the Term shall be deemed null and void and this Lease shall terminate as
of the original scheduled Expiration Date.
If the parties allow the determination of Fair Market Rent be submitted
to binding arbitration pursuant to the foregoing, they shall each appoint,
within thirty (30) days, a competent, disinterested real estate broker with over
ten (10) years experience in negotiating rent for comparable space in comparable
buildings in the greater Cincinnati metropolitan area, who shall determine the
Fair Market Rent. If the two brokers are unable to agree upon the Fair Market
Rent within thirty (30) days, they shall jointly appoint a third real estate
broker, with the qualifications stated above, and the determination of the Fair
Market Rent upon which any two of the brokers agree or, if none of the brokers
agree, then the amount which is between the highest and the lowest, shall be the
rent for the Option Period.
2. RENT.
A. DEFINITIONS. For purposes of this Lease, the following terms shall
have the following meanings:
(i) "BASE YEAR": Intentionally Omitted
(ii) "CPI FACTOR": Intentionally Omitted
(iii) "CONSUMER PRICE INDEX": Intentionally Omitted
(iv) "EXPENSES" shall mean all expenses, costs and disbursements
(other than Taxes) paid or incurred by Landlord in connection
with the ownership, management, maintenance, operation,
replacement and repair of the Building, including exterior
common areas, including (without limitation) the cost of
electricity, steam, water, gas, fuel, heating, lighting, air
conditioning, window cleaning, janitorial service, snow
removal, maintenance and repairs of the Building's heating,
ventilation and air conditioning systems, parking area
restriping and repairing, maintenance of detention and
retention areas, maintain the building directory and other
signage, insurance, including (without limitation) fire,
extended coverage, liability, workmen's compensation, rent
loss, elevator or any other insurance carried by Landlord and
applicable to the Building, management fees, painting,
uniforms, supplies, sundries, reserves, sales or use taxes on
supplies or services, cost of wages and salaries of all
persons engaged in the operation, administration,
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maintenance and repair of the Building, and fringe benefits,
including (without limitation) social security taxes,
unemployment insurance taxes, cost for providing coverage for
disability benefits, cost of any pension, hospitalization,
welfare or retirement plans, or any other similar or like
expenses incurred under the provisions of any collective
bargaining agreement, or any other cost or expense which
Landlord pays or incurs to provide benefits for employees so
engaged in the operation, administration, maintenance and
repair of the Building, the charges of any independent
contractor who, under contract with Landlord or its
representative, does any of the work of operating, maintaining
or repairing of the Building, and legal and accounting
expenses. Expenses shall be determined on a cash basis, based
on generally accepted accounting principles, consistently
applied. Notwithstanding anything herein to the contrary, no
costs or expenses incurred for the following shall be included
within the definition of Expenses:
1. Repairs or other work occasioned by fire, windstorm,
or other casualty or condemnation but reasonable and
customary insurance deductibles shall be included in
Expenses.
2. Leasing commissions, attorneys' fees, costs and
disbursements and other expenses incurred in
connection with negotiations or disputes with
tenants, other occupants, or prospective tenants or
other prospective occupants.
3. Costs incurred in renovating or otherwise improving
or decorating, painting, or redecorating space for
tenants or other occupants or vacant space.
4. Costs of a capital nature (which, for purposes of
this Lease, shall mean a single expenditure or a
series of expenditures which would, under generally
accounting and sound property management principles,
be classified as a single expenditure because it is
substantially the same expense) in excess of Twenty
Five Thousand and 00/100 Dollars ($25,000.00)
including, but not limited to: improvements,
replacements, repairs, improvements and capital
equipment and tools, (or depreciation or amortization
of the foregoing) and subject nevertheless to the
provisions of Section 11.
5. Expenses in connection with utilities, services or
other benefits of a type which are not provided
Lessee but which are provided to another tenant or
occupant as part of Expenses.
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6. Costs (including penalties, fines, legal expenses or
costs of litigation) incurred due to violation by
Lessor, its agents, employees, or contractors, or any
tenant of the terms and conditions of this Lease or
any other lease or of any governmental rule or
authority (but costs of complying with law may be
included to the extent not an expense of a capital
nature, as defined in 4. above).
7. Fees or other compensation paid to subsidiaries or
affiliates of Lessor for service on or to the
Building, to the extent that the costs of such
services exceed competitive costs of such services
were they not so rendered by a subsidiary or
affiliate.
8. Interests on debt or amortization payments on any
mortgage(s), and rental under ground or underlying
lease(s).
9. Lessor's general partnership or corporate overhead
and general administrative expenses except to the
extent of a management fee of four percent (4%) of
rents of the Building.
10. Any compensation paid to clerks, attendants, or other
persons in commercial concessions operated by Lessor.
11. Rentals and other related expenses incurred in
leasing air conditioning systems, elevators, or other
equipment ordinarily considered to be of a capital
nature (as defined in Section 4 above), except
equipment which is used in providing janitorial
services and which is not fixed to the Building and
except for the security system leased from ADT which
any be included in Expenses.
12. All items and services for which Lessee reimburses
Lessor or pays third persons, to the end that there
is no duplication of costs for which Landlord has
already been reimbursed.
13. Advertising and promotional expenditures.
14. Management fees in excess of four percent (4%) of
rents of the Property.
15. Cost of sculpture, paintings or other objects of art.
16. Wages, salaries, or other compensation paid to any
executive employees above the grade of building
manager.
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17. Repairs or replacements of the roof, foundation,
structure, and exterior walls of Building or
equipment or components of the Building to the extent
the foregoing are caused by deficient design,
selection of improper materials, or defective
construction or improper maintenance.
18. Interest or penalties due to late payments of Taxes,
utility bills and other costs, but Landlord shall not
be required to pay expenses early only to obtain
available discounts.
19. Federal and state taxes on income; death, estate or
inheritance taxes; franchise taxes and any taxes
imposed or measured on or by the income of Landlord
from the operation of the Building (but rent taxes
shall be payable as part of Taxes).
20. All janitor and cleaning cost for, and paid directly
to the service providing the service by, the tenant
in question, specific tenants, or related to
construction.
21. Costs of unusual security (i.e., not provided to the
Building as a whole).
Notwithstanding anything contained herein to the contrary, Tenant
acknowledges that: (i) Landlord currently operates the heating, ventilating and
air conditioning ("HVAC") system at the Building twenty four (24) hours per day
and includes the cost of such 24 hour operation in Expenses; (ii) Landlord is
currently investigating the modification of its HVAC system into a so-called
"zoned" system, which will permit Landlord to charge back to the tenants of the
Building, on an individual usage basis, for operation of the HVAC system beyond
Building standard hours (which are 7:00a.m. to 6:00p.m. Monday through Friday
and 8:00 a.m. to 12:00 p.m. Saturdays, for purposes of HVAC operation).
Notwithstanding anything contained herein to the contrary, Tenant agrees that
(i) until such time, if any, as the HVAC system has been modified as
contemplated in this paragraph, the costs of 24 hour operation shall be included
in Expenses; and (ii) at such time as the HVAC system has been modified as
contemplated herein, Tenant shall reimburse Landlord for the cost of after hours
HVAC at the rate specified in Section 20 hereof.
(v) "RENT" shall mean Base Rent, Adjustment Rent, and any other
sums or charges due by Tenant hereunder.
(vi) "TAXES" shall mean all taxes, assessments and fees levied upon
the Building, the property of Landlord located therein or the
rents collected therefrom, by any governmental entity based
upon the ownership, leasing, renting or operation of the
Building, including all costs and expenses of protesting any
such taxes,
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assessments or fees. Taxes shall not include any net income,
capital stock, succession, transfer, franchise, gift, estate
or inheritance taxes; provided, however, if at any time during
the Term, a tax or excise on income is levied or assessed by
any governmental entity, in lieu of or as a substitute for, in
whole or in part, real estate taxes or other AD VALOREM taxes,
such tax shall constitute and be included in Taxes. For the
purpose of determining Taxes for any given year, the amount to
be included for such year shall, at Landlord's option, be
either Taxes which are assessed or become a lien during such
year or Taxes which are due for payment or paid during such
year.
(vii) "TENANT'S PROPORTIONATE SHARE" shall mean the percentage set
forth in Item 7 of the Schedule which has been determined by
dividing the Rentable Square Feet of the Premises by the
Rentable Square Feet of the Building.
(viii) "PRIME RATE" shall mean the Prime Rate as reported in the
Money Rate Section of THE WALL STREET JOURNAL by Bank of
America. If THE WALL STREET JOURNAL no longer publishes the
Prime Rate as an index, Landlord may substitute a comparable
index including the Prime Rate or reference rate of a
reputable financial institution.
B. COMPONENTS OF RENT. Tenant agrees to pay the following amounts to
Landlord at the office of the Building or at such other place as Landlord
designates:
(i) Base rent ("BASE RENT") to be paid in monthly installments in
the amount set forth in Item 6 of the Schedule in advance on
or before the first day of each month of the Term, without
demand, except that Tenant shall pay the first month's Base
Rent upon execution of this Lease.
(ii) Adjustment rent ("ADJUSTMENT RENT") in an amount equal to
Tenant's Proportionate Share of Expenses and Taxes. Prior to
each calendar year, Landlord shall estimate and notify Tenant
of the amount of Adjustment Rent due for the following
calendar year, and Tenant shall pay Landlord one-twelfth of
such estimate on the first day of each month during such year.
Such estimate may be revised by Landlord whenever it obtains
information relevant to making such estimate more accurate.
After the end of each calendar year, Landlord shall deliver to
Tenant a report setting forth the actual Expenses and Taxes
for such calendar year and a statement of the amount of
Adjustment Rent that Tenant has paid and is payable for such
year. Within thirty (30) days after receipt of such report or
reports, Tenant shall pay to Landlord the amount of Adjustment
Rent due for such calendar year minus any payments of
Adjustment Rent made by Tenant for such year, it being
acknowledged by Tenant that in the event Landlord separately
reports actual Expenses and actual Taxes for a calendar year,
Landlord may reasonably allocate Adjustment Rent paid by
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Tenant for such calendar year between Expenses and Taxes for
such calendar year. If Tenant's estimated payments of
Adjustment Rent exceed the amount due Landlord for such
calendar year, Landlord shall apply such excess as a credit
against Tenant's other obligations under this Lease or
promptly refund such excess to Tenant if the Term has already
expired (retaining so much of such excess as may be reasonably
required to cover the estimated obligations of Tenant past the
expiration of the Term), provided Tenant is not then in
default hereunder, in either case without interest to Tenant.
(iii) Index rent ("INDEX RENT"): Intentionally Omitted
C. PAYMENT OF RENT. The following provisions shall govern the payment
of Rent: (i) if this Lease commences or ends on a day other than the first day
or last day of a calendar year, respectively, the Rent for the year in which
this Lease so begins or ends shall be prorated and the monthly installments
shall be adjusted accordingly; (ii) all Rent shall be paid to Landlord without
offset or deduction, and the covenant to pay Rent shall be independent of every
other covenant in this Lease; (iii) if during all or any portion of any year the
Building is not fully rented and occupied (fully rented and occupied shall mean
that one hundred percent (100%) of the Rentable Square Feet of the Building is
occupied by tenants), Landlord will make an appropriate adjustment of variable
Expenses for such year to determine the Expenses that would have been paid or
incurred by Landlord had the Building been fully rented and occupied for the
entire year and the amount so determined shall be deemed to have been the
Expenses for such year; (iv) any sum due from Tenant to Landlord which is not
paid when due shall bear interest from the date due until the date paid at the
annual rate of five percentage (5%) points above the Prime Rate then in effect,
but in no event higher than the maximum rate permitted by law (the "DEFAULT
RATE"); and, in addition, Tenant shall pay Landlord a late charge for any Rent
payment which is paid more than ten (10) days after its due date equal to five
percent (5%) of such payment; (v) if changes are made to this Lease or the
Building changing the number of square feet contained in the Premises or in the
Building, Landlord shall make an appropriate adjustment to Tenant's
Proportionate Share; (vi) Tenant, or an independent firm retained by Tenant,
shall have the right to inspect Landlord's accounting records relative to
Expenses and Taxes during normal business hours at any time within one hundred
eighty (180) days following the furnishing to Tenant of the annual statement of
Adjustment Rent (which annual statement will contain a calculation of Tenant's
Proportionate Share, together with a listing of expenses by expense category);
and, unless Tenant shall take written exception to any item in any such
statement within such one hundred eighty (180) day period, such statement shall
be considered as final and accepted by Tenant; provided, however, that if an
inspection of Landlord's records reveals that Landlord has misstated Tenant's
actual Proportionate Share of Expenses or Taxes (as reflected on Landlord's
annual statement) by three percent (3%) or more, exclusive of any variance due
to adjustments in variable Expenses due to the Building not being fully leased,
Landlord shall reimburse Tenant the reasonable costs of such inspection
(excluding travel and lodging) and Landlord shall promptly refund any
overpayment due; (vii) in the event of the termination of this Lease
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prior to the determination of any Adjustment Rent, Tenant's
agreement to pay any such sums and Landlord's obligation to
refund any such sums (provided Tenant is not in default
hereunder) shall survive the termination or expiration of this
Lease; (viii) no adjustment to the Rent by virtue of the
operation of the rent adjustment provisions in this Lease
shall result in the payment by Tenant in any year of less than
the Base Rent shown on the Schedule; (ix) Landlord may at any
time change the fiscal year of the Building; (x) each amount
owed to Landlord under this Lease for which the date of
payment is not expressly fixed shall be due on the same date
as the Rent listed on the statement showing such amount is
due; and (xi) if Landlord fails to give Tenant an estimate of
Adjustment Rent prior to the beginning of any calendar year,
Tenant shall continue to pay Adjustment Rent at the rate for
the previous calendar year until Landlord delivers such
estimate, at which time Tenant shall pay retroactively the
increased amount for all previous months of such calendar
year.
3. USE. Tenant will use the Premises solely for office and storage
purposes, consistent with a first class office and research development and no
other purposes. Tenant shall not use the Premises for retail or manufacturing
purposes (but general office use relating to running a manufacturing company
shall not be deemed prohibited by said restriction) and will not cause or permit
any waste or damage to the Premises, the Building or the land upon which the
Building is located and will not occupy or use the Premises for any business or
purpose which is unlawful, hazardous, unsanitary, noxious, offensive or which
violates any restrictive covenant affecting the building or which unreasonably
interferes with the business operations of other tenants in the Building. If the
nature of Tenant's use or occupancy of the Premises causes any increase in
Landlord's insurance premiums over and above those chargeable for the least
hazardous type of occupancy legally permitted in the Premises, then Tenant will
pay the resulting increase within 10 days after its receipt of a statement from
Landlord setting forth the amount thereof.
4. HAZARDOUS SUBSTANCES. Landlord represents to Tenant that, to
Landlord's knowledge, as of the Commencement Date, there are no Hazardous
Substances or hazardous wastes in the Premises or Building in violation of any
applicable laws. Tenant acknowledges that the term "to Landlord's knowledge"
means that Landlord's knowledge is limited to that certain Phase I Environmental
Request dated June 14, 1999, prepared by Eckland Consultants, Inc., and that
Landlord has performed no further investigation. Tenant will not itself, nor
permit others to, use, store, generate, treat or dispose of any Hazardous
Substance (as hereinafter defined) on or about the Premises, except for
immaterial amounts that are exempt from or do not give rise to any violation of
applicable law and then only to the extent handled, stored, used, and disposed
of in accordance with all Environmental Laws (hereinafter defined). Tenant
agrees to indemnify, defend and hold Landlord harmless from any liability or
expense (including, without limitation, the fees of Landlord's attorneys and
consultants and the cost of any required remediation or clean-up) incurred by or
claimed against Landlord as a result of Tenant's breach of the covenant
contained in this paragraph. The foregoing covenant will survive the expiration
or termination of this Lease. The term "Hazardous Substance" means any
"hazardous substance", "toxic substance" (as those terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act),
"hazardous waste" (as that term is defined in the Resource Conservation Recovery
Act) and as the foregoing terms may be defined in any other applicable state or
federal laws, rules, regulations, orders, or ordinances
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("ENVIRONMENTAL LAWS"), polychlorinated biphenyls, asbestos, radioactive
material or any other pollutant, contaminant or hazardous, dangerous or toxic
material or substance which is regulated by any federal, state or local law,
regulation, ordinance or requirement.
5. CONDITION OF PREMISES.
A. AT POSSESSION. Tenant's taking possession of the Premises
shall be conclusive evidence that the Premises were in good order and
satisfactory condition when Tenant took possession. Tenant's Work (as
defined below) shall be performed in a good and workmanlike manner. No
agreement of Landlord to alter, remodel, decorate, clean or improve the
Premises or the Building (or to provide Tenant with any credit or
allowance for the same), and no representation regarding the condition
of the Premises or the Building, have been made by or on behalf of
Landlord or relied upon by Tenant, except as stated in Section B below
and the Workletter and plan attached hereto as Exhibit B. With the
exception of Landlord's Work, Tenant agrees to accept the Premises in
their as-is, where located condition except for latent defects (and
defects in Landlord's Work for a period of one (1) year from the date
of issuance of Landlord's architect's certificate of substantial
completion thereof), all work, if any, desired by Tenant ("Tenant's
Work") to be performed at Tenant's sole cost and expense, subject to
the provisions of Section B below.
B. REVISIONS TO LANDLORD'S WORK. Landlord shall not be
required to make any changes, additions or alterations to Landlord's
Work (as the same is reflected in Exhibit B hereof) until Landlord and
Tenant have entered into an appropriate change order evidencing
Tenant's agreement to pay all excess costs (over and above Landlord's
original costs) resulting from such change order and provide further
that the Commencement Date of this Lease shall not be delayed by reason
thereof.
6. UTILITIES. Tenant, at Tenant's sole cost and expense, will pay all
costs associated with the provision of all utility services to the Premises,
including, without limitation, telephone, gas, electricity, water and sewer
service. At Landlord's election (and to the extent so elected, at Landlord's
expense), and to the extent possible, all utility services will be separately
metered to the Premises and placed in Tenant's name. If a utility service to the
Premises is not on a separate meter in Tenant's name, then all costs associated
with the provision of such utility service to the Premises will, at Landlord's
option, either: (a) be billed directly by Landlord to Tenant (with no markup or
profit) and paid by Tenant within 10 days after its receipt of such billing; or
(b) included as part of Expenses and paid by Tenant in accordance with the
provisions of Section 2 above. Landlord will not be liable to Tenant, nor will
Tenant be relieved of any obligation hereunder if any utility service to the
Premises is interrupted for any reason. Notwithstanding anything contained
herein to the contrary, if power, water or HVAC services to the Premises are
interrupted as a result of Landlord's act or negligence and Tenant is unable to
operate its business from the Premises for a period of three (3) consecutive
business days, then Base Rent and Adjustment Rent shall be abated until such
services are restored. Tenant acknowledges that Landlord currently operates the
HVAC system of the Building 24 hours per day, seven (7) days per week and bills
the charges for the same to tenants through Expenses, but that such system is
subject to change as contemplated at 2.A(iv) of the Lease.
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7. MAINTENANCE AND REPAIR.
A. TENANT OBLIGATIONS. Except for the obligations of Landlord
set forth in Section B, below, Tenant will at its sole expense maintain
the Premises in a first-class condition and repair, ordinary wear and
tear and damage by casualty excepted. Any repairs or replacements made
to the Premises by Tenant pursuant to this Section 7 will be made in a
workmanlike manner with materials at least equal in quality and grade
to those originally contained within the Premises. Landlord will
contract for janitorial and trash removal services for Tenant for the
Premises as contemplated in Exhibit F hereof and Tenant promptly pay
all costs associated with such services upon receipt of an invoice
therefor, as additional rent hereunder. In addition, Landlord shall
provide ordinary bulb replacement service for 2x4 recessed lighting in
the Premises as part of Expenses. Landlord shall provide minor repairs
and maintenance services to the Premises, which services shall be
charged back to Tenant at Landlord's cost, therefor.
B. LANDLORD OBLIGATIONS. Landlord will maintain the roof,
exterior walls (including windows), load bearing portions of the
interior wall, central HVAC system (whether located inside or outside
the Premises) of the Building and all common areas, including parking
areas and sidewalks and walkways, serving the Building in a first-class
condition and order of repair and damage to the leasehold improvements
of the Premises caused by other tenants or resulting from other parts
of the building being in disrepair (specifically excluding Tenant's
personal property, trade fixtures and trade equipment); provided,
however, that Tenant (and not Landlord) will be responsible for the
payment of all costs associated with Landlord's maintenance of the same
if the need therefore arises due to the fault or negligence of Tenant
or its agents, employees, licensees or invitees (and subject,
nevertheless, to the provisions of Section 11.C hereof to the extent
permitted thereunder). All costs incurred by Landlord in connection
with the maintenance and repair of such roof, exterior walls or common
areas will be considered Expenses to the extent permitted pursuant to
Section 2 above and Tenant will pay its Proportionate Share thereof.
Except as otherwise expressly provided in this Section 7, Landlord will
not at any time be required to make any improvements, repairs,
replacements or alterations to the Premises.
8. RULES AND REGULATIONS. Tenant shall observe and comply, and shall
cause its subtenants, assignees, invitees, employees, contractors and agents to
observe and comply, with the Rules and Regulations listed on Exhibit C attached
hereto and with such reasonable modifications and additions thereto as Landlord
may make from time to time. Landlord shall not be liable for failure of any
person to obey the Rules and Regulations. Landlord shall not be obligated to
enforce the Rules and Regulations against any person, and the failure of
Landlord to enforce any such Rules and Regulations shall not constitute a waiver
thereof or relieve Tenant from compliance therewith, provided, however, that
Landlord shall not discriminate against Tenant in the enforcement of such Rules
and Regulations.
9. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, each of which Landlord may exercise without notice to Tenant and without
liability to Tenant, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to
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any claim for set-off or abatement of rent or any other claim: (a) to change the
name or street address of the Building or the suite number of the Premises; (b)
to install, affix and maintain any and all signs on the exterior or interior of
the Building; (c) to make repairs, decorations, alterations, additions or
improvements, whether structural or otherwise, in and about the Building, and
for such purposes to enter upon the Premises, temporarily close doors, corridors
and other areas of the Building and interrupt or temporarily suspend services or
use of common areas; (d) to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises; (e) to grant to any
person or to reserve unto itself the exclusive right to conduct any business or
render any service in the Building; (f) to show or inspect the Premises at
reasonable times with prior written notice (except that no notice shall be
required and entry at any hour shall be deemed reasonable in emergency
situations); (g) to install, use and maintain in and through the Premises pipes,
conduits, wires and ducts serving the Building, provided that such installation,
use and maintenance does not unreasonably interfere with Tenant's use of the
Premises; (h) to take any other action which Landlord deems reasonable in
connection with the operation, maintenance, marketing or preservation of the
Building; and (i) to approve the weight, size and location of safes or other
heavy equipment or articles, which articles may be moved in, about or out of the
Building or Premises only at such times and in such manner as Landlord shall
direct, at Tenant's sole risk and responsibility.
10. ALTERATIONS.
A. REQUIREMENTS. Tenant shall not make any replacement,
alteration, improvement or addition to or removal from the Premises
(collectively an "ALTERATION") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Tenant may make interior, non structural
alterations to the Premises which do not affect the base building
mechanical, plumbing or electrical systems of the Premises and which
(whether in a single or aggregate number) do not exceed Twenty Five
Thousand Dollars ($25,000.00) in any calendar year provided, however,
that to the extent such alterations exceed One Hundred Thousand and
no/100 Dollars ($100,000.00) in the aggregate, Tenant acknowledges that
the consent of Landlord's lender is required. In the event Tenant
proposes to make any alteration, Tenant shall, prior to commencing such
alteration, submit to Landlord for prior written approval: (i) detailed
plans and specifications; (ii) the names, addresses and copies of
contracts for all contractors; (iii) all necessary permits evidencing
compliance with all applicable governmental rules, regulations and
requirements; (iv) certificates of insurance in form and amounts
required by Landlord, naming Landlord, its managing agent and any other
parties designated by Landlord as additional insureds; and (v) all
other documents and information as Landlord may reasonably request in
connection with such alteration. If Landlord's consent to such
alteration is required hereunder, Tenant agrees to pay Landlord's
reasonable out of pocket expenses for structural engineering review or
any required mortgage review fees of all such items. No other
supervisory or administrative fees shall be charged by Landlord in
connection with Tenant alterations. Neither approval of the plans and
specifications nor supervision of the alteration by Landlord shall
constitute a representation or warranty by Landlord as to the accuracy,
adequacy, sufficiency or propriety of such plans and specifications or
the quality of workmanship or the compliance of such alteration with
applicable law. Tenant shall pay the entire cost of the alteration and,
if requested by Landlord, shall deposit with Landlord, prior to
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the commencement of the alteration, security for the payment and
completion of the alteration in form and amount required by Landlord.
Each alteration shall be performed in a good and workmanlike manner, in
accordance with the plans and specifications reasonably approved by
Landlord (provided that Landlord may unreasonably withhold consent to
structural or exterior alterations), and shall meet or exceed the
standards for construction and quality of materials established by
Landlord for the Building. In addition, each alteration shall be
performed in compliance with all applicable governmental and insurance
company laws, regulations and requirements. Each alteration shall be
performed by Landlord or under Landlord's supervision, and in harmony
with Landlord's employees, contractors and other tenants. Each
alteration, whether temporary or permanent in character, made by
Landlord or Tenant in or upon the Premises (excepting only Tenant's
furniture, equipment and trade fixtures) shall become Landlord's
property and shall remain upon the Premises at the expiration or
termination of this Lease without compensation to Tenant; provided,
however, that Landlord shall have the right to require Tenant to remove
such alteration other than any items of Landlord's Work initially
constructed for Tenant at Tenant's sole cost and expense in accordance
with the provisions of Section 16 of this Lease, which required removal
shall be specified by Landlord when Landlord consents to Tenant's
requested alterations.
B. LIENS. Upon completion of any alteration, Tenant shall
promptly furnish Landlord with sworn owner's and contractors'
statements and full and final waivers of lien covering all labor and
materials included in such alteration. Tenant shall not permit any
mechanic's lien to be filed against the Building, or any part thereof,
arising out of any alteration performed, or alleged to have been
performed, by or on behalf of Tenant. If any such lien is filed, Tenant
shall within ten (10) days thereafter have such lien released of record
or deliver to Landlord a bond in form, amount, and issued by a surety
satisfactory to Landlord, or such other security as Landlord or its
mortgagee may reasonably require, indemnifying Landlord against all
costs and liabilities resulting from such lien and the foreclosure or
attempted foreclosure thereof. If Tenant fails to have such lien so
released or to deliver such bond to Landlord, Landlord, without
investigating the validity of such lien, may pay or discharge the same,
and Tenant shall reimburse Landlord upon demand for the amount so paid
by Landlord, including Landlord's expenses and attorneys' fees.
11. INSURANCE. In consideration of the leasing of the Premises at the
rent stated herein, Landlord and Tenant agree to provide insurance and allocate
the risks of loss as follows:
A. TENANT'S INSURANCE. Tenant, at its sole cost and expense
but for the mutual benefit of Landlord (when used in this Section 11.A.
the term "LANDLORD" shall include Landlord's partners, beneficiaries,
officers, agents, servants and employees and the term "TENANT" shall
include Tenant's partners, beneficiaries, officers, agents, servants
and employees), agrees to purchase and keep in force and effect during
the term hereof, insurance which is available at commercially
reasonable rates and otherwise carried by tenants in the area, under
policies issued by insurers of recognized responsibility licensed to do
business in the State of Ohio with a Best's rating of A/X or better on
all alterations, additions, and improvements owned by Tenant, and on
all personal property located in the Premises, protecting Landlord and
Tenant from damage
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or other loss caused by fire or other casualty, including but not
limited to vandalism and malicious mischief, perils covered by extended
coverage, theft, sprinkler leakage, water damage (however caused),
explosion, malfunction or failure of heating and cooling or other
apparatus, and other similar risks in amounts not less than the full
insurable replacement value of such property. Such property insurance
shall provide that it is specific and non-contributory and shall
contain a replacement cost endorsement. Such insurance shall also
contain a clause pursuant to which the insurance carriers waive all
rights of subrogation against the Landlord with respect to losses
payable under such policies, and shall be written on a "per occurrence"
basis, as opposed to "claims made" basis.
Tenant also agrees to maintain commercial general liability insurance
covering Tenant as the insured party, and naming Landlord as an
additional insured, against claims for bodily injury and death and
property damage occurring in or about the Premises, with limits of not
less than One Million Dollars ($1,000,000.00) per occurrence and Two
Million Dollars ($2,000,000.00) general aggregate.
Tenant shall, prior to commencement of the term, furnish to Landlord
certificates evidencing such coverage, which certificates shall state
that such insurance coverage may not be changed or canceled without at
least thirty (30) days prior written notice to Landlord and Tenant. In
the event Tenant shall fail to procure such insurance, Landlord may at
its option after giving Tenant no less than ten (10) days prior written
notice of its election to do so procure the same for the account of
Tenant and the cost thereof shall be paid to Landlord as additional
rent upon receipt by Tenant of bills therefor.
B. LANDLORD'S INSURANCE. Landlord agrees to purchase and keep
in force and effect commercial general liability insurance in an amount
not less than Two Million Dollars ($2,000,000.00) and insurance on the
Building improvements (including leasehold improvements installed by or
for Tenant but excluding Tenant's personal property) against fire or
other casualty, including but not limited to vandalism and malicious
mischief, perils covered by extended coverage, theft, sprinkler
leakage, water damage (however caused), explosion, malfunction or
failure of heating and cooling or other apparatus, and other similar
risks in a commercially reasonable amount.
C. RISK OF LOSS. By this Section 11, Landlord and Tenant
intend that the risk of loss or damage as described above be borne by
responsible insurance carriers to the extent above provided, and
Landlord and Tenant hereby agree to look solely to, and to seek
recovery only from, their respective insurance carriers in the event of
a loss of a type described above to the extent that such coverage is
agreed to be provided hereunder. For this purpose, any applicable
deductible amount shall be treated as though it were recoverable under
such policies it being agreed, however, that reasonable deductibles
under Landlord's insurance may be included in Expenses. Landlord and
Tenant agree that applicable portions of all monies collected from such
insurance shall be used toward the full compliance with the obligations
of Landlord and Tenant under this Lease in connection with damage
resulting from fire or other casualty.
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12. TENANT'S AND LANDLORD'S RESPONSIBILITIES.
A. TENANT'S RESPONSIBILITIES. To the extent permitted by law,
Tenant shall assume the risk of responsibility 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 any person
(including death resulting therefrom) or property occurring in or on
the Premises, regardless of cause, except for any loss or damage caused
by the negligence or misconduct of Landlord, and its employees and
agents, and Tenant hereby releases Landlord from any and all liability
for same. Tenant's obligation to indemnify Landlord hereunder shall
include the duty to defend against any claims asserted by reason of
such loss, damage or injury and to pay any judgments, settlements,
costs, fees and expenses, including attorneys' fees, incurred in
connection therewith.
B. LANDLORD'S RESPONSIBILITIES. To the extent permitted by
law, Landlord shall assume the risk of responsibility for, have the
obligation to insure against, and indemnify Tenant and hold it harmless
from, any and all liability for any loss of or damage or injury to any
person (including death resulting therefrom) or property occurring in,
on or about the Building excluding the Premises, regardless of cause,
except for any loss or damage caused by the negligence or misconduct of
Tenant, and its employees and agents, and Landlord hereby releases
Tenant from any and all liability for same. Landlord's obligation to
indemnify Tenant hereunder shall include the duty to defend against any
claims asserted by reason of such loss, damage or injury and to pay any
judgments, settlements, costs, fees and expenses, including attorneys'
fees, incurred in connection therewith.
13. FIRE OR OTHER CASUALTY.
A. DESTRUCTION OF THE BUILDING. If the Building or the
Premises should be substantially destroyed or materially damaged, as
determined by any then current mortgagee of Landlord, by fire or other
casualty, and if such mortgagee does not consent to the application of
insurance proceeds to restoration, Landlord may, at its option,
terminate this Lease by giving written notice thereof to Tenant within
thirty (30) days of such casualty. In such event, the rent shall be
apportioned to and shall cease as of the date of such casualty. In the
event Landlord does not exercise 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 within one
hundred eighty (180) days of the occurrence of such casualty. If, in
Landlord's reasonable judgment, the Premises or the Building, as the
case may be, cannot be reconstructed or restored within one hundred
eighty (180) days of such casualty to substantially the same condition
as they were in prior to such casualty, Landlord shall notify Tenant
within sixty (60) days of the occurrence of such casualty of the
estimated time to restore the damage and either Landlord or Tenant may
terminate this Lease by written notice given to the other within
seventy (70) days of the casualty. If neither party timely terminates
this Lease pursuant to the foregoing, such right to terminate shall be
deemed waived and Landlord shall proceed to reconstruct and restore the
Premises or Building to substantially the same condition as they were
in prior to the casualty. In such event this Lease shall continue in
full force and effect to the balance of the term, upon the same terms,
conditions and
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covenants as are contained herein; provided, however, that the Rent
shall be abated in the proportion which the approximate area of the
damaged portion bears to the total area in the Premises, from the date
of the casualty until substantial completion of the reconstruction of
the Premises.
Notwithstanding the above, if the casualty occurs during the
last twelve (12) months of the term of this Lease, either party hereto
shall have the right to terminate this Lease as of the date of the
casualty, which right shall be exercised by written notice to be given
by either party to the other party within thirty (30) days therefrom.
If this right is exercised, Rent shall be apportioned to and shall
cease as of the date of the casualty. After a casualty occurs during
the last twelve (12) months of the term of the Lease, Tenant may not
exercise any renewal options without first obtaining Landlord's written
consent.
Additionally, notwithstanding anything contained herein to the
contrary, Landlord shall have no duty to repair or restore the Premises
or Building if the damage is due to an uninsurable casualty, or if
insurance proceeds are insufficient to pay for such repair or
restoration, or if the holder of any mortgage, deed of trust or similar
instrument applies proceeds of insurance to reduce its loan balance and
the remaining proceeds, if any, available to Landlord are not
sufficient to pay for such repair or restoration.
B. In the event Landlord undertakes reconstruction or
restoration of the Premises pursuant to subparagraph (A), Landlord
shall use reasonable diligence in completing such reconstruction
repairs, but in the event Landlord fails to substantially complete the
same within one hundred eighty (180) days from the date of the casualty
Tenant may terminate this Lease upon giving Landlord written notice to
that effect, whereupon both parties shall be relieved from all further
obligations and liability hereunder (except however, if under
subparagraph (A) above Landlord notified Tenant that it would take
longer than one hundred eighty (180) days to reconstruct or restore the
Premises, but Tenant nonetheless elected not to terminate the Lease
then the foregoing one hundred eighty (180) day period shall be
extended to the time period set forth in Landlord's notice).
14. CONDEMNATION. If the Premises or the Building is rendered
permanently untenantable by reason of a condemnation (or by a deed given in lieu
thereof), then either party may terminate this Lease by giving written notice of
termination to the other party within thirty (30) days after such condemnation,
in which event this Lease shall terminate effective as of the date of such
condemnation. If this Lease so terminates, Rent shall be paid through and
apportioned as of the date of such condemnation. If such condemnation does not
render the Premises or the Building untenantable, this Lease shall continue in
effect and, subject to the rights of any mortgagee of Landlord, Landlord shall
promptly restore the portion not condemned to the extent reasonably possible to
the condition existing prior to the condemnation. In such event, however,
Landlord shall not be required to expend an amount in excess of the proceeds
received by Landlord from the condemning authority. Landlord reserves all rights
to compensation for any condemnation. Tenant hereby assigns to Landlord any
right Tenant may have to such compensation, and Tenant shall make no claim
against Landlord or the condemning
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authority for compensation for termination of Tenant's leasehold interest under
this Lease or interference with Tenant's business.
15. ASSIGNMENT AND SUBLETTING.
A. LANDLORD'S CONSENT. Tenant shall not, without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed (subject to Landlord's rights contained in Section
15.C below): (i) assign, sublease, convey, mortgage, pledge or
hypothecate or otherwise transfer this Lease or any interest hereunder,
or sublease the Premises, or any part thereof, whether voluntarily or
by operation of law; or (ii) permit the use of the Premises by any
person other than Tenant and its employees. Any such transfer, sublease
or use described in the preceding sentence (a "TRANSFER") occurring
without the prior written consent of Landlord shall be void and of no
effect. Landlord's consent to any Transfer shall not constitute a
waiver of Landlord's right to withhold its consent to any future
Transfer. Landlord's consent to any Transfer or acceptance of rent from
any party other than Tenant shall not release Tenant from any covenant
or obligation under this Lease. Landlord may require as a condition to
its consent to any assignment of this Lease that the assignee execute
an instrument in which such assignee assumes the obligations of Tenant
hereunder. For the purposes of this paragraph, the transfer (whether
direct or indirect) of all or a majority of the capital stock in a
corporate Tenant (other than the shares of the capital stock of a
corporate Tenant whose stock is publicly traded) or the merger,
consolidation or reorganization of such Tenant and the transfer of all
or any general partnership interest in any partnership Tenant shall not
be considered a Transfer, provided: (i) that the net worth of such
transferee is not less than the net worth of Tenant immediately prior
to such transfer; (ii) Tenant is not in default of this lease beyond
any applicable cure period; and (iii) Tenant delivers written notice to
Landlord of said transfer within thirty (30) days of the effective date
thereof, and if applicable, a copy of the transfer document evidencing
the assumption by such transferee of Tenant's obligations hereunder.
B. STANDARDS FOR CONSENT. If Tenant desires the consent of
Landlord to a Transfer, Tenant shall submit to Landlord, at least
fifteen (15) days prior to the proposed effective date of the Transfer,
a written notice which includes such information as Landlord may
reasonably require about the proposed Transfer and the transferee. If
Landlord does not terminate this Lease, in whole or in part, pursuant
to Section 15.C, Landlord shall not unreasonably withhold its consent
to any assignment or sublease, which consent or lack thereof shall be
provided within fifteen (15) days of receipt of Tenant's notice.
Landlord shall not be deemed to have unreasonably withheld its consent
if, in the judgment of Landlord: (i) the transferee is of a character
or engaged in a business which is not in keeping with the standards or
criteria used by Landlord in leasing the Building; (ii) the transferee
is a governmental unit; (iii) Tenant is in Default under this Lease; or
(iv) in the judgment of Landlord, such a Transfer would violate any
term, condition, covenant or agreement of the Landlord involving the
Building or any other tenant's lease within it or the development of
which the Building forms a part. If Landlord wrongfully withholds its
consent to any Transfer, Tenant's sole and exclusive remedy therefor
shall be to seek specific performance of Landlord's obligation to
consent to such Transfer. No such Transfer shall relieve Tenant of its
liability hereunder.
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C. RECAPTURE. Landlord shall have the right to terminate this
Lease as to that portion of the Premises covered by a Transfer.
Landlord may exercise such right to terminate by giving notice to
Tenant at any time within thirty (30) days after the date on which
Tenant has furnished to Landlord all of the items required under
Section 15.B. If Landlord exercises such right to terminate, Landlord
shall be entitled to recover possession of, and Tenant shall surrender
such portion of, the Premises (with appropriate demising partitions
erected at the expense of Tenant) on the later of (i) the effective
date of the proposed Transfer, or (ii) sixty (60) days after the date
of Landlord's notice of termination. In the event Landlord exercises
such right to terminate, Landlord shall have the right to enter into a
lease with the proposed transferee without incurring any liability to
Tenant on account thereof. If Landlord consents to any Transfer, Tenant
shall pay to Landlord all rent and other consideration received by
Tenant in excess of the Rent paid by Tenant hereunder for the portion
of the Premises so transferred. Such rent shall be paid as and when
received by Tenant. In addition, Tenant shall pay to Landlord any
reasonable attorneys' or other fees and expenses incurred by Landlord
in connection with any proposed Transfer, whether or not Landlord
consents to such Transfer.
16. SURRENDER. Upon termination of the Term or Tenant's right to
possession of the Premises, Tenant shall return the Premises to Landlord in good
order and condition, ordinary wear and damage by fire or other casualty
excepted. If Landlord requires Tenant to remove any alterations pursuant to
Section 10, then such removal shall be done in a good and workmanlike manner,
and upon such removal Tenant shall restore the Premises to its condition prior
to the installation of such alterations, normal wear and tear excepted If Tenant
does not remove such alterations after request to do so by Landlord, Landlord
may remove the same and restore the Premises, and Tenant shall pay the cost of
such removal and restoration to Landlord upon demand. Tenant shall also remove
its furniture, equipment, trade fixtures and all other items of personal
property from the Premises prior to expiration of the Term or termination of
Tenant's right to possession of the Premises. If Tenant does not remove such
items, Tenant shall be conclusively presumed to have conveyed the same to
Landlord without further payment or credit by Landlord to Tenant, or at
Landlord's sole option such items shall be deemed abandoned, in which event
Landlord may cause such items to be removed and disposed of at Tenant's expense,
which shall be 110% of Landlord's actual cost of removal, without notice to
Tenant and without obligation to compensate Tenant.
17. DEFAULTS AND REMEDIES.
A. DEFAULT. The occurrence of any of the following shall
constitute a default (a "DEFAULT") by Tenant under this Lease: (i)
Tenant fails to pay any Rent when due and such failure is not cured
within ten (10) days after written notice from Landlord of such
failure; (ii) Tenant fails to perform any other provision of this Lease
and such failure is not cured within thirty (30) days (or immediately
if the failure involves a hazardous condition) after notice from
Landlord; provided that if the nature of such default is such that it
cannot reasonably be cured within thirty (30) days, the period of time
to cure such default shall be extended, provided Tenant commences to
cure within such thirty (30) day period and thereafter diligently
prosecutes such cure to completion; (iii) the leasehold interest of
Tenant is levied upon or attached under process of law; or (iv) any
voluntary or involuntary proceedings are filed by or against Tenant or
any guarantor of this Lease
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under any bankruptcy, insolvency or similar laws and, in the case of
any involuntary proceedings, are not dismissed within thirty (30) days
after filing.
B. RIGHT OF RE-ENTRY. Upon the occurrence of a Default,
Landlord may elect to terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Premises. Upon any
such termination, Tenant shall immediately surrender and vacate the
Premises and deliver possession thereof to Landlord.
C. TERMINATION OF RIGHT TO POSSESSION. Upon terminating
Tenant's right to possession of the Premises without terminating this
Lease, Landlord may relet the Premises or any part thereof. In such
case, Landlord shall use reasonable efforts to relet the Premises on
such terms as Landlord shall reasonably deem appropriate; provided,
however, Landlord may first lease Landlord's other available space and
shall not be required to accept any tenant offered by Tenant or to
observe any instructions given by Tenant about such reletting. Tenant
shall reimburse Landlord for the costs and expenses of reletting the
Premises including, but not limited to, all brokerage, advertising,
legal, alteration, redecorating, repairs and other expenses incurred to
secure a new tenant for the Premises. In addition, if the consideration
collected by Landlord upon any such reletting, after payment of the
expenses of reletting the Premises which have not been reimbursed by
Tenant, is insufficient to pay monthly the full amount of the Rent,
Tenant shall pay to Landlord the amount of each monthly deficiency as
it becomes due. If such consideration is greater than the amount
necessary to pay the full amount of the Rent, the full amount of such
excess shall be retained by Landlord and shall in no event be payable
to Tenant.
D. TERMINATION OF LEASE. Upon terminating this Lease, Landlord
may recover from Tenant and Tenant shall pay to Landlord, on demand, as
and for liquidated and final damages, an accelerated lump sum amount
equal to the amount by which the Rent owing from the date of such
termination through the Expiration Date plus Landlord's aggregate
expenses of reletting the Premises, exceeds the fair rental value of
the Premises for the same period (after deducting from such fair rental
value the time needed to relet the Premises and the amount of
concessions given to a new tenant) both discounted to present value at
the rate of five percent (5%) per annum.
E. OTHER REMEDIES. Landlord may, but shall not be obligated
to, perform any obligation of Tenant under this Lease, and, if Landlord
so elects, all costs and expenses paid by Landlord in performing such
obligation, together with interest at the Default Rate, shall be
reimbursed by Tenant to Landlord on demand. Any and all remedies set
forth in this Lease: (i) shall be in addition to any and all other
remedies Landlord may have at law or in equity; (ii) shall be
cumulative; and (iii) may be pursued successively or concurrently as
Landlord may elect. The exercise of any remedy by Landlord shall not be
deemed an election of remedies or preclude Landlord from exercising any
other remedies in the future.
F. BANKRUPTCY. If Tenant becomes bankrupt, the bankruptcy
trustee shall not have the right to assume or assign this Lease unless
the trustee complies with all
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requirements of the United States Bankruptcy Code, and Landlord
expressly reserves all of its rights, claims and remedies thereunder.
G. WAIVER OF TRIAL BY JURY. Landlord and Tenant waive trial by
jury in the event of any action, proceeding or counterclaim brought by
either Landlord or Tenant against the other in connection with this
Lease.
H. VENUE. If either Landlord or Tenant desires to bring an
action against the other in connection with this Lease, such action
shall be brought in the federal courts located in Cincinnati, Ohio, or
state courts located in Clermont County, Ohio. Landlord and Tenant
consent to the jurisdiction of such courts and waive any right to have
such action transferred from such courts on the grounds of improper
venue or inconvenient forum.
I. VACATION/ABANDONMENT. Notwithstanding anything contained
herein to the contrary, If Tenant vacates or abandons the Premises,
Landlord shall have the right, regardless of whether a Default exists,
to terminate this Lease at any time upon thirty (30) days written
notice to Tenant provided however, that Tenant may vitiate such
termination by delivering written notice to Landlord within such thirty
(30) day period that it intends to reoccupy the Premises, and
specifying the date thereof. Tenant's failure to deliver the notice
described herein shall be deemed an automatic waiver of the right to
vitiate such termination.
18. HOLDING OVER. If Tenant retains possession of the Premises after
the expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall pay Rent during such holding over at one and one half
(1.5) times the rate in effect immediately preceding such holding over computed
on a monthly basis for each month or partial month that Tenant remains in
possession. If Landlord has delivered written notice to Tenant thirty (30) days
in advance of the expiration of the Term that Landlord requires possession
immediately at the expiration of the Term, Tenant shall also indemnify Landlord
from and against all actual damages sustained by Landlord by reason of Tenant's
holding over. The provisions of this Section do not waive Landlord's right of
re-entry or right to regain possession by actions at law or in equity or any
other rights hereunder, and any receipt of payment by Landlord shall not be
deemed a consent by Landlord to Tenant's remaining in possession or be construed
as creating or renewing any lease or right of tenancy between Landlord and
Tenant.
19. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall
deposit the security deposit set forth in Item 10 of the Schedule (the "SECURITY
DEPOSIT") with Landlord as security for the performance of Tenant's obligations
under this Lease. Upon the occurrence of a Default, Landlord may use all or any
part of the Security Deposit for the payment of any Rent or for the payment of
any amount which Landlord may pay or become obligated to pay by reason of such
Default, or to compensate Landlord for any loss or damage which Landlord may
suffer by reason of such Default. If any portion of the Security Deposit is
used, Tenant shall within five (5) days after written demand therefor deposit
cash with Landlord in an amount sufficient to restore the Security Deposit to
its original amount. Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on
the Security Deposit. In no event shall the Security Deposit be considered an
advanced payment
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of Rent, and in no event shall Tenant be entitled to use the Security Deposit
for the payment of Rent. If no default by Tenant exists hereunder, the Security
Deposit or any balance thereof shall be returned to Tenant within thirty (30)
days after the expiration of the Term and vacation of the Premises by Tenant.
Landlord shall have the right to transfer the Security Deposit to any purchaser
of the Building. Upon such transfer, Tenant shall look solely to such purchaser
for return of the Security Deposit, and Landlord shall be relieved of any
liability with respect to the Security Deposit.
20. AFTER HOURS HVAC. Notwithstanding anything contained herein to the
contrary, Tenant acknowledges that the heating, ventilating and air conditioning
system of the building currently operates 24 hours per day and that Landlord is
currently investigating the use of a so-called "zoned" system of regulating
individual tenant usage of said system. If Landlord implements such a zoned
system, Tenant agrees to reimburse Landlord, as additional rent hereunder, and
within ten (10) days after demand therefor, for all overtime usage (being all
usage beyond the standard operating hours for the building from time to time,
but not less than the hours specified in 2A. (iv)). Such reimbursement shall be
at Landlord's actual cost without any markup on per hour basis.
21. ESTOPPEL CERTIFICATE. Tenant agrees that, from time to time upon
not less than ten (10) days' prior request by Landlord, Tenant shall execute and
deliver to Landlord a written certificate certifying: (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications, a
description of such modifications and that this Lease as modified is in full
force and effect); (ii) the dates to which Rent has been paid; (iii) that Tenant
is in possession of the Premises, if that is the case; (iv) that Landlord is not
in default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); (vi) that
the Premises have been completed in accordance with the terms and provisions
hereof or the Workletter, that Tenant has accepted the Premises and the
condition thereof and of all improvements thereto and has no claims against
Landlord or any other party with respect thereto; and (vii) such additional
matters as may be requested by Landlord, it being agreed that such certificate
may be relied upon by any prospective purchaser, mortgagee, or other person
having or acquiring an interest in the Building. If Tenant fails to execute and
deliver any such certificate within ten days after request, Tenant shall be
deemed to be in default of this Lease.
22. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (i) any ground or underlying lease of the Building,
now or hereafter existing, and all amendments, renewals and modifications to any
such lease, and (ii) the lien of any mortgage or trust deed now hereafter
encumbering fee title to the Building and/or the leasehold estate under any such
lease, unless such ground lease or ground lessor, or mortgage or mortgagee,
expressly provides or elects that the Lease shall be superior to such lease or
mortgage, provided, however, that Tenant's agreement to subordinate this Lease
as to any future mortgagee or ground lessor is contingent upon such mortgagee or
ground lessor entering into an agreement with Tenant that Tenant's possession of
the Premises and this Lease shall remain in effect so long as Tenant is not in
default of this Lease beyond any applicable cure period, notwithstanding
Landlord's default under such mortgage or ground lease. In connection therewith,
Tenant shall agree to attorn to such mortgagee or ground lessee (or its
successors). If
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any such mortgage or trust deed is foreclosed, or if any such lease is
terminated, upon request of the mortgagee, holder or lessor, as the case may be,
Tenant will attorn to the purchaser at the foreclosure sale or to the lessor
under such lease, as the case may be. The foregoing provisions are declared to
be self-operative and no further instruments shall be required to effect such
subordination and/or attornment; provided, however, that Tenant agrees upon
request by any such mortgagee, holder, lessor or purchaser at foreclosure, to
execute and deliver such subordination and/or attornment instruments as may be
required by such person to confirm such subordination and/or attornment, or any
other documents required to evidence superiority of the ground lease or
mortgage, should ground lessor or mortgage elect such superiority. If Tenant
fails to execute and deliver any such instrument or document within ten (10)
days after request, Tenant shall be deemed to be in default of this Lease.
Landlord agrees to use reasonable efforts to obtain subordination,
nondisturbance and attornment agreements from the existing mortgagee of the
Building.
23. QUIET ENJOYMENT. As long as no Default exists, Tenant shall
peacefully and quietly have and enjoy the Premises for the Term, free from
interference by Landlord, subject, however, to the provisions of this Lease. The
loss or reduction of Tenant's light, air or view will not be deemed a
disturbance of Tenant's occupancy of the Premises nor will it affect Tenant's
obligations under this Lease or create any liability of Landlord to Tenant.
24. BROKER. Tenant represents to Landlord that Tenant has dealt only
with the broker(s) set forth in Item 11 of the Schedule (collectively, the
"BROKER") in connection with this Lease and that, insofar as Tenant knows, no
other broker negotiated this Lease or is entitled to any commission in
connection herewith. Tenant and Landlord each agree to indemnify, defend and
hold the other harmless from and against any claims for a fee or commission made
by any broker, other than the Broker, claiming to have acted by or on behalf of
the other in connection with this Lease. Landlord agrees to pay the Broker a
commission in accordance with one or more separate agreements between Landlord
and the Broker.
25. NOTICES. All notices and demands to be given by one party to the
other party under this Lease shall be given in writing, mailed or delivered to
Landlord or Tenant, as the case may be, at the following address:
If to Landlord: Milford Partners, LLC
c/o Griffin Capital
3421 Manhattan Avenue
Manhattan Beach, CA 90266
With a copy to: Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago, Illinois 60606-1229
Attn: Mary Higgins
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If to Tenant: Telxon Corporation
Ridgewood Corporate Center
Suite 200
1000 Summit Drive
Milford, Ohio 45150
With a copy to: Telxon Corporation
8302 New Trials Drive
The Woodlands, Texas 77381
Attn: Chip Whitten
or at such other address as either party may hereafter designate. Notices shall
be delivered by hand or by United States certified or registered mail, postage
prepaid, return receipt requested, or by a nationally recognized overnight air
courier service. Notices shall be considered to have been given upon the earlier
to occur of actual receipt or two (2) business days after posting in the United
States mail.
26. RIGHT OF FIRST REFUSAL. Tenant shall have a right of first refusal
to lease all or any portion of the additional 18,569 square feet of useable
space (21,788 rentable square feet) on the second floor of the Building ("OFFER
RIGHT"), shown on Exhibit A ("OFFER AREA") provided that such right shall be
subject to any right of first offer, first refusal, expansion option or similar
right granted to the existing tenant of the Building known as "SDRC". If
Landlord receives a bona fide third party offer, which third party offer may
consist of a nonbinding letter of intent or proposal, which offer is one
Landlord is prepared to accept (subject to finalizing a fully executed lease in
form acceptable to Landlord and such third party) generated by either Landlord,
any broker representing Landlord, or any broker or representative of any
prospective tenant, for all or part of the Offer Area, Landlord shall then offer
the area in question to Tenant. Such offer shall be made by Landlord by written
notice to Tenant, which notice shall include a copy of the proposed bona fide
third party offer (the "OFFER NOTICE"). Within five (5) business days of receipt
of the Offer Notice, Tenant shall notify Landlord in writing (the "EXERCISE
Notice") as to whether Tenant elects to lease the area described in the Offer
Notice upon the terms and conditions stated therein. If Tenant elects to lease
the Offer Area in question upon the Offer Notice terms, Landlord and Tenant
shall, within ten (10) business days of the Exercise Notice, enter into an
amendment to this Lease incorporating the Offer Area in question into the
Premises. If Tenant fails to deliver the Exercise Notice within five (5)
business days of receipt of the Offer Notice, or fails to enter into the
Amendment to this Lease incorporating the Offer Area within ten (10) business
days of the delivery of the Exercise Notice, it shall be conclusively determined
that Tenant has declined the opportunity to lease such space. If Landlord fails
to reach agreement with any bonafide third party as to the offer contained in
any Offer Notice, then this right of first refusal shall again apply to the
Offer Area in question as to subsequent bonafide third party offers.
27. USE OF PARKING FACILITIES. Tenant and its employees and customers
shall have the non-exclusive right, in common with Landlord and all others to
whom Landlord has granted such rights, to park automobiles in the parking areas
provided by Landlord, subject to any exclusive rights granted to other tenants
for reserved parking, and rules and regulations as Landlord may impose from time
to time, including the designation of specific areas in which
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automobiles of Tenant, its invitees and employees must be parked. Landlord shall
mark six (6) parking spaces as reserved for management personnel, in the
location indicated on Exhibit D.
28. SATELLITE DISH. Tenant shall have the right to install a satellite
dish or other similar communications device ("DISH") on the roof of the Premises
for use in the operation of Tenant's business at the Premises, subject to the
following terms and conditions: (a) the size, height, location and method of
installation shall be subject to the prior written approval of Landlord, it
being agreed by the parties that such installation shall be a method which does
not penetrate the roof of the building of which the Premises form a part, or, if
Tenant's proposed installation shall require roof penetration, that Tenant (i)
submit plans and specifications to Landlord illustrating the same for Landlord's
approval; (ii) use a contractor approved by Landlord for the performance of such
work, or such contractor as may be required to preserve any roof warranties;
(iii) indemnify and hold Landlord harmless from the voiding of any roof warranty
and/or damages, claims, expenses or costs resulting from damage to the roof or
building caused by such installation; (iv) maintain, repair and replace the roof
area damaged or affected by such installation at Tenant's sole cost and expense
(b) in no event shall such Dish cause interference with any other mechanical
systems, satellite dishes or other communications devices at the Building; (c)
the Dish shall be appropriately screened, via methods and materials approved by
Landlord, so as to not be visible from the exterior of the building of which the
Premises form a part; (d) Tenant shall deliver detailed criteria for the Dish to
Landlord prior to installation; and (e) at the expiration or sooner termination
of the Lease, Tenant shall, at Tenant's sole cost and expense, remove the Dish
and repair all damage to the Building caused by such removal (such obligation
for removal and repair to survive the expiration or sooner termination of the
Lease).
29. MISCELLANEOUS.
A. SUCCESSORS AND ASSIGNS. Subject to Section 15 of this
Lease, each provision of this Lease shall extend to, bind and inure to
the benefit of Landlord and Tenant and their respective legal
representatives, successors and assigns, and all references herein to
Landlord and Tenant shall be deemed to include all such parties.
B. ENTIRE AGREEMENT. This Lease, and the riders and exhibits,
if any, attached hereto which are hereby made a part of this Lease,
represent the complete agreement between Landlord and Tenant, and
Landlord has made no representations or warranties except as expressly
set forth in this Lease. No modification or amendment of or waiver
under this Lease shall be binding upon Landlord or Tenant unless in
writing signed by Landlord and Tenant.
C. TIME OF ESSENCE. Time is of the essence of this Lease and
each and all of its provisions.
D. EXECUTION AND DELIVERY. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of
space or an option for lease, and it is not effective until execution
and delivery by both Landlord and Tenant. Execution and delivery of
this Lease by Tenant to Landlord shall constitute an
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irrevocable offer by Tenant to lease the Premises on the terms and
conditions set forth herein, which offer may not be revoked for fifteen
(15) days after such delivery.
E. SEVERABILITY. The invalidity or unenforceability of any
provision of this Lease shall not affect or impair any other
provisions.
F. GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State of Ohio.
G. ATTORNEYS' FEES. If suits shall be brought for recovery of
possession of the Premises, for the recovery of rent or any other
amount due under the provisions of this Lease, or because of the breach
of any other covenant herein contained on the part of either party to
be kept or performed, and a breach shall be established, the losing
party shall pay to the prevailing party all expenses incurred therefor,
including reasonable attorneys' fees.
H. DELAY IN POSSESSION. In no event shall Landlord be liable
to Tenant if Landlord is unable to deliver possession of the Premises
to Tenant on the Commencement Date for causes outside Landlord's
reasonable control. If Landlord is unable to deliver possession of the
Premises to Tenant by the Commencement Date, the Commencement Date
shall be deferred until Landlord can deliver possession to Tenant.
I. JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more
than one party, each such party shall be jointly and severally liable
for Tenant's obligations under this Lease.
J. FORCE MAJEURE. Landlord shall not be in default hereunder
and Tenant shall not be excused from performing any of its obligations
hereunder if Landlord is prevented from performing any of its
obligations hereunder due to any accident, breakage, strike, shortage
of materials, acts of God or other causes beyond Landlord's reasonable
control.
K. CAPTIONS. The headings and titles in this Lease are for
convenience only and shall have no effect upon the construction or
interpretation of this Lease.
L. NO WAIVER. No receipt of money by Landlord from Tenant
after termination of this Lease or after the service of any notice or
after the commencing of any suit or after final judgment for possession
of the Premises shall renew, reinstate, continue or extend the Term or
affect any such notice or suit. No waiver of any default of Tenant or
Landlord shall be implied from any omission by the other to take any
action on account of such default if such default persists or be
repeated, and no express waiver shall affect any default other than the
default specified in the express waiver and then only for the time and
to the extent therein stated.
M. LIMITATION OF LIABILITY. Any liability of Landlord under
this Lease shall be limited solely to its interest in the Building, and
in no event shall any personal liability be asserted against Landlord
in connection with this Lease nor shall any recourse be had to any
other property or assets of Landlord.
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N. SIGNAGE. A. Subject to Landlord's approval as to the size,
design, method of installation and location of the same, Tenant shall
be entitled to install the following signage at Tenant's sole cost and
expense: (i) a single panel on the exterior wall of Miami Hall (on one
of four (4) existing panels, with exact location to be determined by
Landlord); and (ii) Landlord shall, subject to the approval of all
applicable laws, ordinances and governmental regulations of governing
authorities with appropriate jurisdiction attempt to erect a multiple
tenant monument sign at the entrance to the Property, and in such
event, Tenant may install a panel on any such multiple tenant
identification signage (consistent with the size allowed by Landlord
for similarly sized tenants) provided that with respect to such
multiple tenant sign, Tenant shall be solely responsible for the cost
of installation and maintenance of such panel.
B. Landlord shall provide the following signage to
Tenant at Landlord's sole cost and expense; (i) building standard
signage on the wall next to the glass of the front entrance to the
Premises; and (ii) a decal on the front entrance of the Building.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in
manner sufficient to bind them as of the day and year first above written.
LANDLORD
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MILFORD PARTNERS, LLC
By: MILFORD ACQUISITIONS, LLC
By: /s/ Kevin A. Shields
-------------------------------------
Name: Kevin A. Shields
-------------------------------
Its: Manager
-------------------------------
TENANT
TELXON CORPORATION
By: /s/ W. M. McGee
-------------------------------------
Name: W. M. McGee
-------------------------------
Its: VP/CFO
-------------------------------
27
