LEASE
THIS LEASE, is made and entered into as of the 8th day of September, 2000
(the "Effective Date"), by and between Mid-States Development Corp.
("Landlord"), an Ohio corporation 6360 Rings Road, Amlin, Ohio 43002, and M.T.
Library Services, Inc. ("Tenant"), a Florida corporation, with offices at 401 E.
Wilson Bridge Road, Worthington, Ohio 43085.
W I T N E S S E T H:
In consideration of the rents and covenants hereinafter set forth, Landlord
hereby leases to Tenant, and Tenant hereby rents from Landlord that certain
premises as described in Exhibit A attached hereto and made a part hereof (the
"Demised Premises") including the improvements to be erected thereon by Landlord
and all easements, rights and appurtenances thereto.
TO HAVE AND TO HOLD for the term set forth in Article 1. This Lease is
granted and accepted upon the following covenants and conditions, and subject to
the following restrictions, to all and every one of which the parties consent
and agree; and each of the parties hereby expressly covenants and agrees to
keep, perform and observe all the terms, covenants and conditions herein
contained on its part to be kept, performed and observed.
ARTICLE 1. TERM
The term hereby granted shall be for a period of twenty (20) years
commencing on the 1st day of September, 2000, and ending on the 31st day of
August, 2020 (the "Term").
ARTICLE 2. RENT
Section 1. Initial Rent. During the first five (5) years of the Term
hereof, Tenant shall pay Landlord fixed minimum rent at the rate of One Hundred
Twenty Thousand Dollars ($120,000) per annum ("Rent"), commencing as of the date
specified in Article 1 for the commencement of the Term hereof. Such fixed
minimum rent shall be paid in equal monthly installments of Ten Thousand Dollars
($10,000), in advance and received by Landlord on or before the first day of
each and every calendar month during the Term. This Lease is a net-net-net Lease
with a ten (10%) increase in Rent each five (5) year period of the initial
twenty (20) year term and the two (2) five (5) year options of Section 4 below
(see Annual Rent Chart following this paragraph). The fixed minimum rent and/or
other charges payable by Tenant hereunder, for any fractional month at the
beginning or end of the Term hereof shall be prorated on a daily basis. All
fixed minimum rent and other payments to be made by Tenant to Landlord hereunder
shall be paid at the place designated in writing from time to time by Landlord.
Annual Rent Chart:
<TABLE>
<CAPTION>
Annual Annual Annual Annual
Year Rent Year Rent Year Rent Year Rent
---- -------- ---- -------- ---- -------- ---- --------
<S> <C> <C> <C> <C>
Year 1 $120,000 Year 6 $132,000 Year 11 $145,200 Year 16 $159,700
Year 2 $120,000 Year 7 $132,000 Year 12 $145,200 Year 17 $159,700
Year 3 $120,000 Year 8 $132,000 Year 13 $145,200 Year 18 $159,700
Year 4 $120,000 Year 9 $132,000 Year 14 $145,200 Year 19 $159,700
Year 5 $120,000 Year 10 $132,000 Year 15 $145,200 Year 20 $159,700
</TABLE>
In the event Landlord does not receive Tenant's monthly installment of Rent
on or before the 10th day of the month in which Rent is due, then said monthly
installment of Rent shall be increased by an amount equal to five percent (5%)
of the rental then due. In the event Landlord does not receive Tenant's monthly
installment of Rent plus the aforesaid additional five percent (5%) increase on
or before the 20th day of the month in which Rent is due, then the total amount
then due shall be increased by an additional amount equal to ten percent (10%)
of the amount then due. In no event shall installments of Rent or additional
rent hereunder be increased by more than fifteen percent (15%) in any one month,
however, such increases shall be included in calculating any increase for a
subsequent month in which any payment is not timely received by Landlord.
Section 2. Demised Premises to be Constructed. Landlord agrees to construct
a new building containing 17,000 square feet of warehouse space and 4,000 square
feet of office space totaling 21,000 square feet as per the approved plans and
specifications. Landlord agrees to have the new facility completed and ready for
occupancy on September 1, 2000.
Section 3. Additional Rent. Tenant shall pay any and all sums of money or
other charges required to be paid by Tenant as additional rent under this Lease,
promptly when the same are due, without any deduction or set off whatsoever.
Tenant's failure to pay any such amounts or charges when due shall carry with it
the same consequences as the failure to pay Rent.
Section 4. Options to Renew. Landlord grants two (2) five (5) year options
to renew this Lease, subject to the ten (10) percent increases in Rent of
Section 1 of this Article 2 for each five (5) year period, as per the Annual
Rent Chart, provided Landlord receives nine (9) months written notice prior to
the expiration of said Lease or option period of Tenant's intent to renew the
same and Tenant is not in default of this Lease. Therefore, the rent for the
first option period of five (5) years, if any, shall be One Hundred Seventy Five
Thousand Six Hundred Seventy Dollars ($175,670) per annum and shall commence
September 1, 2020. The Rent for the second option period of five (5) years, if
any, shall be One Hundred Ninety Three Thousand Two Hundred Thirty Seven Dollars
($193,237) per annum and shall commence September 1, 2025. The fixed minimum
rent and/or other charges payable by Tenant hereunder, for any fractional month
at the beginning or end of the Term hereof, shall be prorated on a daily basis.
All fixed minimum rent and other payments to be made by Tenant to Landlord
hereunder shall be paid at the place designated in writing from time to time by
Landlord.
ARTICLE 3. MAINTENANCE AND REPAIRS AND GOVERNMENTAL ORDERS
Section 1. Tenant's Maintenance and Repairs. The Tenant shall, throughout
the Term hereof, and at no expense whatsoever to Landlord, take good care of the
Demised Premises (including the Property) and the buildings and improvements
thereon and the building equipment appertaining thereto and the sidewalks and
curbs adjacent thereto, and shall not do or suffer any waste with respect
thereto, and the Tenant shall promptly make all repairs, interior and exterior,
structural and non-structural, ordinary as well as extraordinary, foreseen as
well as unforeseen, and irrespective of the cost thereof, necessary to keep said
building improvements and building equipment in good and lawful order and
condition. When used in this Paragraph, the term "repairs" as applied to
building equipment shall include replacements, restorations and/or renewals when
necessary. The Tenant shall keep and maintain all portions of the Demised
Premises, including, without limitation, all building equipment, heating plant
and system, air conditioning plant and system, septic system, well, and the
sidewalks adjoining the same, in a clean and orderly condition, free of
accumulation of dirt, rubbish, snow and ice.
Section 2. Governmental Orders. The Tenant will obey, and comply with all
lawful requirements, rules, regulations, laws and ordinances of all legally
constituted authorities in any way affecting this Lease, the above described
same, existing at any time during the continuance of this Lease (subject to the
rights of the Tenant to contest the validity of any such law, ordinance, rule,
regulation or other requirement).
ARTICLE 4. INSURANCE
Section 1. Public Liability Insurance. During the Term of this Lease,
Tenant shall, at its sole cost and expense, provide and maintain with respect to
the Demised Premises, comprehensive general public liability insurance
protecting and indemnifying Landlord and Tenant against any and all claims for
damages to person or loss of life occurring upon, in, or about the Demised
Premises, such insurance to afford protection to the limits of not less than
Five Million Dollars ($5,000,000.00) in respect to bodily injury or death to any
one person and not less than Five Million Dollars ($5,000,000.00) with respect
to bodily injury or death arising from any one accident or occurrence, with such
deductibles as Tenant may customarily carry in the conduct of its business.
Section 2. Casualty Insurance. During the Term of this Lease, Tenant shall,
at its sole cost and expense, provide and maintain with respect to the Demised
Premises, insurance on the buildings and the improvements on the Demised
Premises to the extent of one hundred percent (100%) of their full replacement
cost, or 80% of appraised value of property, at Landlord's sole option, together
with standard form of vandalism and malicious mischief. Such policy shall name
Landlord as an additional insured thereon. Tenant covenants and agrees that said
insurance shall include protection against all risks of physical loss and shall
be in amounts which, in the event of damage or destruction, will yield funds
adequate to restore the said improvements to the condition existing immediately
prior to any such damage or destruction.
Section 3. Insurance Company. All insurance provided for in this Article 4
shall be effected under standard form policies issued by insurers of recognized
responsibility authorized to do business in the State of Ohio.
Section 4. Certificates of Insurance. Prior to the commencement of the Term
of this Lease, Tenant shall furnish Landlord with certificates of insurance
covering all insurance coverage required herein. All such certificates shall
contain a provision that the insurance carrier shall not cancel or modify the
insurance coverage without giving thirty (30) days prior written notice thereof
to both Landlord and Tenant in time sufficient to assure that both Landlord and
Tenant shall always possess certificates of insurance evidencing current
insurance coverage. All such policies shall name Landlord and Tenant insured as
their respective interests may appear and such certificates shall evidence the
same. If Tenant should fail, neglect or refuse to obtain or renew any of the
insurance provided for herein, Landlord has the right, but not the obligation,
to obtain or renew the same, and any amounts paid therefor by Landlord shall be
considered additional rent and be due on the next rent payment date after such
payment.
Section 5. Waiver of Subrogation. Each of Landlord and Tenant hereby
releases the other from any and all liability or responsibility (to the other or
anyone claiming through or under them by way of subrogation or otherwise) for
any loss or damage to property caused by fire or any of the risks specifically
insured against, or required by the terms hereof to be insured against, even if
such fire or other casualty shall have been caused by the fault or negligence of
the other party, or anyone for whom such party may be responsible; provided,
however, that this release shall be applicable, and in force and effect only
with respect to loss or damage occurring during such time as the Tenant's
policies shall contain a clause or endorsement to the effect that any such
release shall not adversely affect or impair said policies or prejudice the
right of the Tenant to recover thereunder. Each of Landlord and Tenant agrees
that any of its policies will include such a clause or endorsement so long as
the same shall be obtainable without extra cost, or if extra cost shall be
charged therefor, so long as the other party pays such extra cost. If extra cost
shall be chargeable therefor, each party shall advise the other thereof and the
amount of the extra cost, and the other party, at its election, may pay the same
but shall not be obligated to do so.
Section 6. Compliance with Policies. Landlord or Tenant shall neither do
nor suffer anything to be done whereby any of the insurance required by the
provisions of this Article 4 shall or may be invalidated in whole or in part.
Section 7. Blanket Coverage. Notwithstanding anything to the contrary
hereinabove contained, Tenant may, at its option, include any of the insurance
coverage hereinabove set forth in general or blanket policies of insurance.
Section 8. Cooperation in Settlement. Tenant and Landlord shall cooperate
with each other in connection with the collection of any insurance monies that
may be due in the event of loss, and Landlord shall execute and deliver to the
Tenant such proofs of loss and other instruments which may be required for the
purpose of obtaining the recovery of any such insurance monies. The proceeds of
casualty insurance attributable to the building and fixtures shall be payable to
Landlord.
ARTICLE 5. REAL ESTATE TAXES AND ASSESSMENTS
Section 1. Tenant's Obligations. Tenant is responsible for all "Real Estate
Taxes" imposed on the Demises Premises, and assessments of any kind. For the
purposes of this Lease, Real Estate Taxes shall be defined as: (i) all Real
Estate Taxes payable (adjusted after protest or litigation, if any) for any part
of the Term, exclusive of penalties or discounts, on the Demised Premises
(including the Property); (ii) all taxes which shall be levied in lieu of any
such taxes on the gross rentals of the Demised Premises; (iii) all general and
special assessments against the Demised Premises, including water and sewer
rents, which shall be required to be paid during the calendar year for which
Real Estate Taxes are being determined; and (iv) the expense of contesting the
amount or validity of any such taxes, charges or assessments, such expense to be
applicable to the period of the item contested. All such costs shall be deemed
due on an accrual accounting basis, as such costs are reasonably estimated to
have been accrued, except that any costs associated with item (iv) of this
paragraph shall be deemed due on a cash accounting basis, as such costs are
actually incurred.
Section 2. Evidence of Payment. Tenant shall pay said Real Estate Taxes
when due and shall provide Landlord with written documentation of said payment
within thirty (30) days after payment.
ARTICLE 6. UTILITIES
Tenant shall contract and pay for all of its requirements for utilities
including, but not limited to, water, gas, sewer, electricity, light, heat or
power, telephone or other service consumed within the Demised Premises during
the Term hereof. Landlord shall not be liable to Tenant for interference in or
interruption of any utility service, nor shall any curtailment or interruption
constitute a constructive eviction or grounds for rental abatement in whole or
in part hereunder.
ARTICLE 7. DAMAGE AND DESTRUCTION
Section 1. Duty to Reconstruct. Subject to Section 2 of this Article 7, if
the building or improvements on, or at any time forming part of the Demised
Premises, shall be damaged or destroyed during the term of this Lease by fire or
by any other insurable hazard Landlord shall promptly, and as quickly as
possible, but in no event later than ninety (90) days after such damage has
occurred, proceed to repair and/or rebuild the same, including any additions or
improvements made by the Landlord or Tenant, on the same plan and design as then
existing, immediately before such damage or destruction occurred; subject to
such delays as may be reasonably attributable to governmental restrictions or
failure to obtain materials or labor, or other causes, whether similar or
dissimilar, beyond the control of Landlord.
Section 2. Option in the Event of Substantial Casualty. Notwithstanding the
foregoing in the event there is a substantial casualty to the Demised Premises
(where restoration cost exceeds twenty-five percent (25%) of the replacement
cost of the building included within the Demised Premises) during the last five
(5) years of the Term hereof, Landlord shall, at its option, do either of the
following:
(a) Rebuild, repair or restore the said building and improvements to
substantially their condition as of the commencement
hereof, less normal wear and tear; or
(b) Within forty-five (45) days after such loss or damage, give written
notice to Tenant of its intention to terminate this Lease in which latter event
this Lease shall be canceled and any unearned advance rent and additional
charges shall be repaid to Tenant, adjusted as of the date of said casualty, and
insurance proceeds shall be repaid to Landlord.
Section 3. Rent Abatement. During any period during which the Demised
Premises are untenable, the fixed minimum rent and other charges payable
hereunder shall be abated in proportion to the amount of the Demised Premises
rendered untenable as reasonably determined by Landlord.
ARTICLE 8. EMINENT DOMAIN
Section 1. Total Taking. If the whole or Demised Premises shall be taken in
condemnation proceedings, by right of eminent domain, inverse condemnation, or
otherwise, or by sale or transfer in lieu of or in the avoidance of the exercise
such taking (all of which shall hereinafter be referred to as a "taking"), this
Lease shall end when possession shall be taken by the condemning authority.
Section 2. Partial Taking.
(a) If more than fifty percent (50%) of the floor area comprising the
building upon the Demised Premises shall be taken, either party shall have the
right to cancel and terminate this Lease as of the date of such taking upon
giving notice to the other party within thirty (30) days after notice to Tenant
from Landlord or the condemning authority that such premises are to be
appropriated or taken. In the event that this Lease is not terminated as herein
provided, this Lease shall continue, with an equitable and proportionate
adjustment, effective on the date of taking, in rent and other charges due
hereunder based upon the reduction in floor area. No such adjustment shall be
made for reduction in the amount of parking space available.
(b) If less than fifty percent (50%) of the floor area comprising the
building upon the Demised Premises shall be taken, this Lease shall continue
with an equitable and proportionate adjustment, effective on the date of taking,
in rent and other charges due hereunder based upon the reduction in floor area
of the Demised Premises. No such adjustment shall be made for reduction in the
amount of parking space available.
Section 3. Termination. If this Lease is terminated pursuant to this
Article 8, the parties shall be released from all further liability hereunder
except that Landlord shall refund to Tenant prepaid rental or similar sums as
may be equitably and properly applied to the portion taken, and Tenant shall pay
to Landlord all sums that it may be obligated to pay to Landlord to and
including the effective date of termination.
Section 4. Reconstruction. If this Lease shall not be canceled pursuant to
Section 2, Article 8, hereof, the Lease shall remain in full force and effect
with respect to the remainder of the Demised Premises; and
(a) Landlord shall repair, alter and restore the Demised Premises and the
buildings and improvements to substantially their condition as of the
commencement hereof so as to constitute a complete, integrated and economically
sound structure, subject to such changes or additions as Landlord may elect to
make and Landlord shall be entitled to receive, as a matter of first priority
from the compensation or damages paid by the condemnor, an amount equal to the
cost of such restoration or reconstruction. If the cost of such repairs,
alterations or restoration shall exceed the amount of the condemnation proceeds,
then Landlord shall pay the amount of such excess.
(b) The fixed rent and additional charges shall be reduced from and after
the date of the taking to such part of the former rent as the gross floor area
of the building on the Demised Premises, after such taking proportional to such
area immediately before the taking. Any rent and additional charges paid in
advance at former rates shall be appropriately adjusted. During the period
beginning with such taking and ending on the date of the completion of repairs,
alteration and restoration of the Demised Premises, the fixed rent and
additional charges hereunder shall be proportionately abated for the period and
to the extent that the Demised Premises shall be unusable for Tenant's business.
Section 5. Condemnation Award. In the event (at any time during the Term
hereof) of a taking in condemnation proceedings or sale in lieu of such taking
of the whole or the Demised Premises, or in the event of a taking of a part of
the building located on the Demised Premises or of the parking area, the
condemnation proceedings resulting from such taking of the fee of the Demised
Premises, shall be paid to Landlord, without any deduction therefrom for any
present or future estate of Tenant. Tenant shall, however, be permitted to
claim, prove and receive in such condemnation proceedings such award as it may
be allowed for fixtures and other equipment installed by it, and for moving
expenses, but only if such award shall be in addition to the award to Landlord
for the Demised Premises.
ARTICLE 9. USE
Tenant is granted the right during the Term of this Lease to occupy and use
the Demised Premises for the purpose of conducting thereon the business of
marketing books and for any other lawful purpose.
ARTICLE 10. ASSIGNMENT AND SUBLEASING
Tenant agrees not to assign or in any manner transfer this Lease or any
estate or interest therein without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed, and not to sublet the Demised
Premises or any part or parts thereof or allow anyone to come in, through or
under it without like consent which shall not be unreasonably withheld or
delayed. Consent by Landlord to one or more assignments of this Lease or to one
or more sublettings of the Demised Premises shall not operate to exhaust
Landlord's rights under this Article. No assignment of this Lease shall release
Tenant or any Guarantors of this Lease from its or their obligations under this
Lease.
ARTICLE 11. MECHANIC'S LIENS
Tenant shall keep the Demised Premises free from, and shall indemnify
Landlord against any liens or claims of lien arising from any work performed,
material furnished, or obligations incurred by Tenant in connection with any
construction, maintenance, improvement or repair on or to the Demised Premises.
If Tenant disputes the correctness or validity of any claim or lien, Tenant
shall, within thirty (30) days after written request by Landlord, record such
bond or take such other appropriate action as will release the premises from the
lien claimed and Tenant agrees to hold Landlord harmless therefrom and indemnify
Landlord against all of same. Tenant shall discharge any judgment or compromise
rendered against or suffered by Landlord as a result of any lien or liens or
claims of lien or liens and shall reimburse Landlord for any and all costs, fees
or expenses incurred or paid by Landlord (including, without limitation,
reasonable attorney's fees) in connection with the defense of any lien, claim of
lien or action.
ARTICLE 12. ALTERATIONS: IMPROVEMENTS
Section 1. Right to Alter. Tenant may make alterations and improvements in
excess or five thousand dollars ($5,000) to the Demised Premises from time to
time with the written consent of Landlord, which shall not be unreasonably
withheld or delayed. Alterations and improvements costing five thousand dollars
($5,000) or less shall not require Landlord's consent. All such alterations or
improvements shall comply with all applicable zoning ordinances, building
regulations, relevant statutes, ordinances and requirements of all federal,
state and municipal departments, and any other body or bodies exercising a
similar function and such alteration or improvement shall be made in a
workmanlike manner.
Section 2. Tenant's Cost. Any alterations or improvements made under
Section 1 of this Article 12 shall be made at the Tenant's sole cost and
expense. Landlord shall cooperate with Tenant in any governmental applications
or otherwise in making said alterations and improvements, provided, however,
such cooperation shall be without cost or expense to Landlord.
Section 3. Surrender of Premises. At the expiration of the Term hereof,
whether by forfeiture or expiration of time, Tenant shall surrender the Demised
Premises to Landlord in as good condition as when received by Tenant, except for
reasonable use, wear and damage by fire or the elements. It is further agreed
that all alterations and improvements to the Demised Premises during the Term
hereof shall remain for the benefit of Landlord at the expiration of the Term
hereof.
ARTICLE 13. RIGHT OF ACCESS
Landlord and its authorized agents shall be entitled to enter the Demised
Premises at reasonable times, after oral notice except in case of emergency, for
the following purposes: inspecting them, showing them to prospective purchasers,
tenants and lenders, posting such notices as may be required by law to protect
Landlord's interest in the Demised Premises, and during the last six (6) months
of the Lease Term, posting signs advertising the premises for sale at anytime or
for lease.
ARTICLE 14. SIGNS
Tenant shall have the right to install and maintain one or more signs in
conformity with applicable law, affixed anywhere to the exterior and interior of
the Demised Premises, subject to Tenant obtaining Landlord's prior written
consent to the appearance of said signs. Tenant shall obtain and pay all costs
and expenses associated with such signs, including, but not limited to, payment
for all permits and licenses related to such signs or required in connection
therewith. Copies of all such permits and licenses shall be delivered to
Landlord within a reasonable time after they are issued. Tenant shall have the
right from time to time to change such signs. Tenant may maintain any signs it
desires in the interior of the Demised Premises. All such signs shall comply
with applicable government requirements and any requirements of all of the
insurance companies issuing the insurance policies covering the Demised
Premises.
ARTICLE 15. DEFAULT BY TENANT - REMEDIES OF LANDLORD
Section 1. Events of Default. Each of the following shall be deemed a
default by Tenant and a breach of this Lease:
(a) The failure, neglect or refusal of Tenant to pay any installment of
Rent or additional rent at the time and in the amount as herein provided, or to
pay any other monies agreed by it to be paid (including, but not limited to,
pursuant to Article 29 hereof) promptly when due and as the same shall become
due and payable under the terms hereof, and if any such failure, neglect or
refusal to pay shall continue for a period of ten (10) days after written notice
from Landlord of such;
(b) A default in the performance of any other covenant or condition of this
Lease on the part of the Tenant to be performed for a period of thirty (30) days
after written notice from Landlord of such default except where Tenant has
commenced such action to cure such default; and
(c) Pursuant to Article 16 below.
Section 2. Termination of Lease. In cases of any such default under Section
1 of this Article 15, and at any time thereafter following the expiration of the
respective grace periods above mentioned, Landlord may serve a notice upon
Tenant electing to terminate this Lease and this Lease shall then expire as of
the date of such notice as if that date had been originally fixed as the
expiration date of the Term herein granted.
Section 3. Repossession. In case this Lease shall be terminated as
hereinbefore provided, or by legal proceedings, or if Landlord otherwise elects
to proceed under this Section 3 of Article 15, Landlord or its agents may,
immediately or any time thereafter, reenter and assume possession of the Demised
Premises or such part thereof, and remove all persons and property including
signs therefrom, and may place such property in storage in a public warehouse at
the cost and risk of Tenant. No reentry or reletting by Landlord shall be
construed as an election to terminate this Lease unless a written notice of such
intention is given by Landlord to Tenant; and not withstanding any such reentry
or reletting without terminating this Lease, Landlord may at any time thereafter
elect to terminate this Lease in the event that at such time Tenant remains in
default hereunder.
Section 4. Mitigation of Damages. In case this Lease shall be terminated as
hereinbefore provided, Landlord shall, in its own name but as agent for Tenant,
if the Lease be not terminated, or if the Lease be terminated, in its own
behalf, use its best efforts to mitigate its damages and relet the whole or any
portion of the Demised Premises for any sum which may be reasonable, giving due
consideration to the rents reserved herein and in connection with any such
lease, Landlord may make such changes in the character of the improvements on
the Demised Premises as may be appropriate or helpful in effecting such lease.
Section 5. Landlord Remedies. In case this Lease be terminated as provided
in Section 2, of this Article 15, or if Landlord otherwise repossesses the
Demised Premises, Landlord shall be immediately entitled to recover from the
Tenant a sum equal to the present value of the amount of all Rent and additional
charges reserved under this Lease which shall be due and payable by Tenant to
Landlord on the days on which the Rent and additional charges reserved in this
Lease would have become due and payable for any remaining Term of this Lease
less the net rent, if any (as defined below) collected by Landlord on reletting
the Demised Premises. Any net rent collected on reletting shall be computed by
deducting from the gross rents collected all reasonably necessary expenses
incurred in connection with reletting of the Demised Premises or any part
thereof, including reasonable legal fees and reasonable broker's commissions for
the period of the Term.
Section 6. Legal Expenses. In case suit shall be brought for recovery of
possession of the Demised Premises, for recovery of Rent or any other amount due
under this Lease or because of the breach of any covenant herein contained on
the part of Tenant to be kept and performed, and a breach shall be established,
Tenant shall pay to Landlord all out-of-pocket expenses incurred therefor,
including reasonable attorney's fees.
ARTICLE 16. INSOLVENCY
Section 1. Breach of Lease. The filing of any petition by or against Tenant
under any chapter of the Bankruptcy Act, or any successor statute thereto, or
the adjudication of Tenant as a bankrupt or insolvent, or the appointment of a
receiver or trustee to take possession of all or substantially all of the assets
of Tenant, or a general assignment by Tenant for the benefit of creditors, or
any other action taken or suffered by Tenant under any state or federal
insolvency or bankruptcy act, and the continuance of any of the foregoing events
for sixty (60) days shall constitute a breach of this Lease by Tenant, and
Landlord, at its option, by written notice to Tenant, may exercise all rights
and remedies provided for herein, including the termination of this Lease,
without the necessity of further notice.
Section 2. Invalid Transfers. Neither this Lease, nor any interest herein,
nor any estate created hereby, shall pass by operation of law and under any
state or federal insolvency or bankruptcy act to any trustee, receiver, assignee
for the benefit of creditors or any other person whomsoever without the prior
written consent of Landlord. Any purported transfer in violation of the
provisions of this Section 2 of this Article 16, shall constitute a breach of
this Lease, and Landlord, at its option, by written notice to Tenant, may
exercise all rights and remedies provided for herein, including the termination
of this Lease, without the necessity of further notice.
ARTICLE 17. REMEDIES CUMULATIVE
The various rights, elections and remedies of Landlord and Tenant contained
in this Lease shall be cumulative and not one of them shall be construed as
exclusive of any of the others, or of any right, priority or remedy allowed or
provided for by law.
ARTICLE 18. CURING OF DEFAULTS
If Tenant shall default in the performance or observance of any covenant or
condition herein contained on Tenant's part to be performed or observed for more
than the applicable grace period, Landlord may perform the same for the account
and at the expense of Tenant, and the expense of doing so, together with
interest thereon at the rate of fifteen percent (15%) per annum, from the date
of the advance therefor shall be immediately due and payable. If Landlord shall
incur any expense, including reasonable attorney's fees, by instituting,
prosecuting or defending any action or proceedings instituted by reason of
default by Tenant, Tenant shall reimburse Landlord for the amount of such
expense.
ARTICLE 19. HOLDING OVER
If Tenant remains in possession of the Demised Premises with Landlord's
consent after the expiration of the original Term, or any renewals hereof, such
continued possession shall create a tenancy from month to month at the Rent rate
of one hundred and fifty percent (150%) of the last monthly installment of Rent
payable hereunder and upon the same terms and conditions contained herein so far
as applicable.
ARTICLE 20. ESTOPPEL CERTIFICATE
Either party shall at any time and from time to time within thirty (30)
days after written request therefor by the other party deliver a certificate to
the requesting party or to any proposed mortgagee, trust deed beneficiary,
purchaser, successor in interest, or any other party certifying the commencement
and expiration dates of the Lease Term and that this Lease is then in full force
and effect and setting forth the amount and nature of modifications, defenses,
or offsets, if any, claimed by such party.
ARTICLE 21. QUITE ENJOYMENT
Landlord covenants that Tenant, upon paying the rents reserved herein and
performing and observing the covenants and conditions herein contained on
Tenant's part to be performed and observed, shall quietly hold, occupy and enjoy
the Demised Premises without hindrance, ejection or molestation by Landlord or
any party claiming by, through or under Landlord or as a result of any defects
in title, subject to the terms of this Lease.
ARTICLE 22. TENANT'S PROPERTY
Section 1. Taxes on Tenant's Property. Tenant shall be responsible for, and
shall pay before delinquency, all municipal, county, state and federal taxes
assessed during the Term of this Lease against any leasehold interest or
personal property of any kind, owned or placed in, upon or about the Demised
Premises by the Tenant.
Section 2. Loss or Damage. Landlord shall not be responsible or liable to
the Tenant for any loss or damage that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises, or for any loss or damage
resulting to the Tenant or its property from bursting, stoppage or leakage of
water, gas, sewer or steam pipes or any damage or loss of property within the
Demised Premises from any cause whatsoever.
ARTICLE 23. SUBORDINATION AND NONDISTURBANCE
Tenant agrees upon the request of Landlord to subordinate this Lease and
its rights under to any mortgage or deed of trust (hereinafter for convenience
called "loan") and to execute at any time and from time to time such documents
as may be reasonably required to effectuate such subordination, subject to the
condition that so long as Tenant is not in default under this Lease, the owner,
holder or beneficiary of the loan and its successors and assigns, including a
purchaser at foreclosure sale or sale in lieu of foreclosure, and Tenant's
successors and assigns, each shall recognize and perform its respective
obligations under this Lease, and Tenant's quiet enjoyment and peaceful
possession of the Demised Premises and rights and privileges of Tenant hereunder
shall not be disturbed or diminished in any respect. Any mortgagee or trustee
named in said loans shall agree to recognize this Lease, in writing, and agree
not to disturb Tenant's quiet enjoyment and peaceful possession of the Demised
Premises so long as Tenant is not in default hereunder and to recognize the
rights and privileges of Tenant hereunder.
ARTICLE 24. LIMITATION OF LIABILITY, INDEMNIFICATION BY TENANT
Tenant covenants and agrees that it will protect and save and keep Landlord
forever harmless and indemnified against and from any penalty or damage or
charges imposed for any violation of any laws or ordinances, whether occasioned
by the neglect of Tenant or those holding under Tenant, and that Tenant will at
all times protect, indemnify and save and keep harmless Landlord against and
from any and all claims, loss, cost, damage or expense, including reasonable
attorney's fees, arising out of or from any accident or other occurrence on or
about the Demised Premises, causing injury to any person or property whomsoever
or whatsoever, and Tenant will protect, indemnify and save and keep harmless
Landlord against and from any and all claims and against and from any and all
loss, cost, damage or expense, including reasonable attorney's fees, arising out
of any failure of Tenant in any respect to comply with and perform all the
requirements and provisions of this Lease.
ARTICLE 25. NOTICES
Any notice, request or demand permitted or required to be given by the
terms and provisions of this Lease, or by any law or governmental regulation,
either by Landlord to Tenant or by Tenant to Landlord, shall be in writing.
Unless otherwise required by such law or regulation, such notice, request or
demand shall be given, and shall be deemed to have been served and given when
Landlord or Tenant, as the case may be shall have deposited such notice, request
or demand by certified mail, return receipt requested, enclosed in a securely
closed postpaid wrapper, in a United States Postal Service general or branch
post office or official collection box, addressed to Landlord or Tenant, as the
case may be, at the following addresses:
If to Landlord: Mid-States Development Corp.
6360 Rings Road
Amlin, Ohio 43002
If to Tenant: M.T. Library Services, Inc.
401 E.Wilson Bridge Road
Worthington, Ohio 43085
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, requests or demands to it.
ARTICLE 26. WAIVER
The failure of Landlord to seek redress for violation, or to insist upon
the strict performance of any covenant or condition of this Lease, shall not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of any original violation. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver be
in writing signed by Landlord. No waiver by Landlord of any condition or
covenant hereunder shall be deemed to imply or constitute a further waiver by
Landlord of the same or any other condition or covenant.
ARTICLE 27. LAW APPLICABLE AND CONSTRUCTION OF LEASE
Section 1. Governing Law. The validity, performance and enforcement of this
Lease shall be governed by the laws of Ohio. Section 2. Invalid
Provisions. The invalidity and enforceability of any provision of this
Lease shall not affect or impair any other provision.
Section 3. Interlineation. Whenever in this Lease any printed portion has
been stricken out, whether or not any relative provision has been
added, this Lease shall be construed as if the material so stricken
was never included herein and no inference shall be drawn from the
material so stricken out which would be inconsistent in any way with
the construction or interpretation which would be appropriate if such
material were never contained herein.
ARTICLE 28. SHORT FORM LEASE
This Lease shall not be recorded; Landlord and Tenant will, at the request
of either, enter into a short form memorandum ease, in recordable form.
ARTICLE 29. INTEREST ON PAST DUE OBLIGATIONS
Any amount due from Tenant to Landlord hereunder which is not paid when due
shall bear interest at the rate of fifteen percent (15%) per annum, until paid.
The payment of such interest shall not excuse or cure any default by Tenant
under this Lease.
ARTICLE 30. ACCORD AND SATISFACTION
Unless the parties expressly agree, in writing, to the contrary, no payment
by Tenant or receipt by Landlord of a lesser amount than the monthly installment
of Rent herein stipulated, shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord shall accept such check or payment without prejudice
to Landlord's right to recover the balance of such Rent or pursue any other
remedy.
ARTICLE 31. HAZARDOUS WASTE
(a) As used herein, the term "Hazardous Material" shall mean any substance
or material which has been determined by any state, federal or local
governmental authority to be capable of posing a risk of injury to health,
safety or property, including all of those materials and substances designated
as hazardous or toxic by the city in which the Demised Premises is located , the
U.S. Environmental Protection Agency, the Consumer Product Safety Commission,
the Food and Drug Administration, and any federal agencies that have overlapping
jurisdiction with such state agencies, or any other governmental agency now or
hereafter authorized to regulate materials and substances in the environment.
(b) Tenant agrees not to introduce any Hazardous Material(s) in, on or
adjacent to the Demised Premises without complying with all applicable federal,
state and local laws, rules, regulations, policies and authorities relating to
the storage, use or disposal, and clean-up of Hazardous Material(s), including,
but not limited to, the obtaining of proper permits. If Tenant discovers any
Hazardous Material(s) on the Demised Premises caused by an unrelated third party
as that term is defined herein, Tenant shall notify Landlord of the same within
twenty-four (24) hours (one working day) of such discovery.
(c) Tenant agrees that upon receipt of actual written notice from a
regulatory agency of an actual or threatened violation of environmental laws or
regulations respecting the Demised Premises or neighboring property, Tenant will
promptly forward a copy of the same to Landlord. Tenant shall immediately notify
Landlord of any inquiry, test, investigation, or enforcement proceeding by or
against Landlord or the Demised Premises concerning a Hazardous Material. Tenant
acknowledges that Landlord, as the owner of the Demised Premises, shall have the
right, at its election, in its own name or as Landlord's agent, to negotiate,
defend, approve, and appeal, at Tenant's expense, any action taken or order
issued with regard to a Hazardous Material by an applicable governmental
authority.
(d) If Tenant's storage, use or disposal of any Hazardous Material in, on
or adjacent to the Demised Premises results in any contamination of the Demised
Premises, the soil or surface or groundwater (i) requiring remediation under
federal, state or local statutes, ordinances, regulations or policies, or (ii)
at levels which are unacceptable to Landlord, in Landlord's reasonable judgment,
Tenant agrees to clean-up the contamination. Tenant further agrees to indemnify,
defend and hold Landlord harmless from and against any claims, suits, causes or
action, costs, fees, including attorneys' fees and costs, arising out of or in
connection with any clean-up work, inquiry or enforcement proceeding in
connection therewith, and any Hazardous Materials currently or hereafter used,
stored or disposed of by Tenant or its agents, employees, contractors or
invitees on or about the Demised Premises.
(e) Tenant shall surrender the Demised Premises to Landlord upon the
expiration or earlier termination of this Lease free of Hazardous Materials and
in condition which complies with all governmental statutes, ordinances,
regulations and policies, recommendations of consultants hired by Landlord, and
such other reasonable requirements as may be imposed by Landlord.
(f) Tenant's obligations under this section shall survive termination of
this Lease.
ARTICLE 36. MISCELLANEOUS
Section 1. Entire Agreement. This Lease, the exhibits and riders, if any,
attached hereto include the entire agreement of the parties concerning
this Lease. No change, amendment or addition to this Lease shall be
effective unless in writing and signed by the parties.
Section 2. Captions. The captions of this Lease are for convenience and
reference only and shall not be deemed or construed to define, limit
or describe the scope or intent of this Lease or affect its
interpretation or construction.
Section 3. Binding Effect. The covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and binding the parties
hereto and their respective successors and assigns, except as
expressly otherwise herein provided.
Section 4. Reasonable Consent. If the consent, approval or permission of
one party is required or desired by the other party to this Lease, the
party whose consent, approval or permission is sought agrees that it
shall not unreasonably or arbitrarily withhold or delay such consent.
In the event that any such consent, approval or permission is
specifically withheld, the withholding party shall set forth in
writing its reasons for such withholding, which reasons must be
reasonable under the circumstances presented.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed by their duly authorized representatives, effective the day and year
first above written.
LANDLORD:
Signed and acknowledged
in the presence of: Mid-States Development Corp.
_________________________ By: _________________________
Print Name:_______________
_________________________ Title: ______________________
Print Name:_______________
TENANT:
M.T. Library Services, Inc.
_________________________ By: ________________________
Print Name:_______________
Title:_______________________
_________________________
Print Name:_______________
Guarantor:
Media Source, Inc.
_________________________ By: ________________________
Print Name:_______________
Title:_______________________
_________________________
Print Name:_______________
STATE OF OHIO :
: SS.
COUNTY OF FRANKLIN :
Acknowledged before me this ____ day of September, 2000, by S. Robert
Davis, President of Mid-States Development Corp., an Ohio corporation, for and
on behalf of the Landlord.
_____________________________
Notary Public
STATE OF OHIO :
: SS.
COUNTY OF ______________ :
Acknowledged before me this ____ day of September, 2000, by Randall J.
Asmo, the President of M.T. Library Services, Inc. for and on behalf of the
Tenant.
_____________________________
Notary Public
STATE OF OHIO :
: SS.
COUNTY OF ______________ :
Acknowledged before me this ____ day of September, 2000, by Randall J.
Asmo, the Executive Vice President of Media Source, Inc. for and on behalf of
the Tenant.
_____________________________
Notary Public
