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EXHIBIT 10.16
LEASE ADDENDUM
This Lease Addendum is made by and between WILMINGTON COMMERCE PARK
PARTNERSHIP ("WCPP") as Landlord and DJ&J SOFTWARE CORPORATION ("EGGHEAD") as
Tenant pursuant to a certain Lease (the "Lease") entered into by the parties in
August 1995 for 83,200 square feet of space in Building 12, Airborne ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇.
WCPP has agreed to construct certain additional improvements in the
Leased Premises at Egghead's expense. The cost of these improvements is
$226,002.00 and Egghead shall pay it as follows:
Egghead shall pay the cost of the improvements as Additional Rent in
monthly installments of $4,646.12 (representing the principal amount of the
improvements amortized over the life of the Lease at 11% interest per annum)
beginning March 1, 1996 and on the first day of each month of the Lease
thereafter, in advance, without demand, at the office of WCPP until paid in
full. This sum shall be in addition to the Basic Annual Rent and any and all
other amounts due from Egghead to WCPP under the Lease.
IN WITNESS WHEREOF, the parties hereto have set their hands to
triplicates hereof, this _____ day of _______________, 1996 as to WCPP and this
_____ day of _______________, 1996 as to Egghead.
Signed and acknowledged LANDLORD: WILMINGTON COMMERCE
in the presence of: PARK PARTNERSHIP
_________________________________ By:_________________________________
Its:________________________________
_________________________________
TENANT: DJ & J SOFTWARE CORPORATION
_________________________________ By:_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
and C.E.O.
_________________________________
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STATE OF OHIO, COUNTY OF ___________________, SS:
The foregoing instrument was acknowledged before me this _____ day of
_______________, 1996, by ______________________, ________________________, on
behalf of WILMINGTON COMMERCE PARK PARTNERSHIP.
____________________________________
Notary Public
STATE OF WASHINGTON, COUNTY OF KING, SS:
The foregoing instrument was acknowledged before me this _____ day of
_______________, 1996, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and C.E.O., on behalf of
DJ & J SOFTWARE CORPORATION.
____________________________________
Notary Public
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SECOND ADDENDUM TO LEASE
This Second Addendum to Lease is entered into by Wilmington Commerce
Park Partnership ("WCPP" or "Landlord") as landlord and DecisionOne Holdings
Corp. ("DecisionOne" or "Tenant") as tenant.
A. Pursuant to a certain lease (the "Lease") dated August 17, 1995,
amended by an addendum (the "Addendum") dated April 16, 1996, DJ&J Software
Corporation (Egghead") leased from WCPP certain real property consisting of
83,200 square feet of space (the "Leased Premises") in a warehouse located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ which warehouse is sometimes
referred to as Building 12 of the Airborne Commerce Park.
B. By instrument dated July _____, 1996, (the "Assignment") Egghead
assigned to DecisionOne all of its right, title and interest as tenant under the
Lease and Addendum, and DecisionOne accepted the assignment and has succeeded to
such rights, title and interest.
C. Under Article 37 of the Lease, the Tenant has a right of first
refusal to lease available additional space in Building 12. There is currently
available 19,200 square feet of space in the building and DecisionOne wishes to
rent all of such space.
NOW, THEREFORE, for valuable consideration paid, receipt of which is
hereby acknowledged, the parties agree as follows:
1. EXERCISE OF RIGHT. DecisionOne hereby exercises its right of first
refusal to lease 19,200 square feet of space in Building 12. WCPP accepts such
exercise of the right of first refusal to lease according to the terms set forth
herein.
2. EFFECTIVE DATE. The effective date of this Second Addendum to Lease
shall be February 1, 1998.
3. REVISED LEASE. Article 1 of the Lease is hereby amended so that the
Lease Term begins February 1, 1998 and ends January 31, 2003, both dates
inclusive.
4. TENANT IMPROVEMENTS. DecisionOne shall be allowed up to $50,000 for
tenant improvements. It shall be responsible for all necessary permits and
construction. WCPP will reimburse DecisionOne for amounts expended up to the
allowed amount upon receipt of paid bills for materials or equipment installed
and work completed.
DecisionOne shall provide WCPP with a copy of any occupancy permit issued.
5. RENT. Article 3 of the Lease shall be revoked and the following
shall be
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substituted in its place.
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RENT.
Section 1. Tenant shall pay to the Landlord as BASIC ANNUAL
RENT for the Leased Premises for each year of the period of February 1,
1998 through January 31, 2003, the sum of Four Hundred Seventy-Nine
Thousand Two Hundred Thirty-Two Dollars ($479,232.00) which shall be
paid in equal monthly installments of Thirty-Nine Thousand Three
Hundred Thirty-Six Dollars and 00/100ths Dollars ($39,336.00), due and
payable on the first day of each month, in advance. Said rent shall be
paid to the Landlord, or to the duly authorized agent of the Landlord,
at its office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. Checks
should be made payable to WILMINGTON COMMERCE PARK PARTNERSHIP. Any
Basic Annual Rent payment not received by the Landlord by the tenth day
of the month shall be past due. If the commencement date of this Lease
is other than the first day of the month, any rental adjustment or
additional rents hereinafter provided for shall be prorated
accordingly. The Tenant will pay the rent as herein provided, without
deduction whatsoever, and without any obligation of the Landlord to
make demand for it. Any installment of rent accruing hereunder and any
other sum payable hereunder, if not paid within ten days of when due,
shall bear interest at the rate of eighteen percent (18%) per annum
until paid. Late Fee. Provided, however, that Tenant shall be entitled
to two (2) written notices from Landlord in a given Lease Year that
such rent, additional rent or other charge is due and payable within
five (5) days of Tenant's receipt of such notice before a service
charge will be assessed. After four (4) such notices have been give to
Tenant during the term of this Lease then no further notices shall be
give and Tenant shall pay any service charges as otherwise provided
herein. The Basic Annual Rent of $479,232.00 shall be adjusted annually
based on the Consumer Price Index beginning January 1, 1999, the
adjustment date for that year and each year thereafter, whether during
the term of this Lease or any renewal or extension thereof. Increases
in the Basic Annual Rent shall be made in accordance with the following
procedure:
a. The index to be used for this adjustment shall be the
Consumer Price Index (North Central Region, All Urban
Consumers, All Items, 1982-84 equaling a base of 100, from the
U.S. Department of Labor, Bureau of Labor Statistics,
Washington, D.C.).
b. The Consumer Price Index of 1997 for the month of December
shall be the "Base Period Consumer Price Index." The Consumer
Price Index for the month of December prior to each adjustment
date in each adjustment year shall be the "Adjustment Period
Consumer Price Index."
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c. The Base Period Consumer Price Index shall be subtracted
from the Adjustment Period Consumer Price Index; the
difference shall be divided by the Base Period Consumer Price
Index. This quotient shall then be multiplied by the
$479,232.00 (Basic Annual Rent amount) and the result shall
then be added to the $479,232.00 (Basic Annual Rent amount).
The resulting sum shall be the Adjusted Annual Rent for such
immediately succeeding leasehold period which shall be paid in
equal monthly installments.
d. If the said Consumer Price Index is, at any time during the
term of this Lease, discontinued by the Government, then the
most nearly comparable index shall be substituted for the
purpose of the aforesaid calculations.
e. The rental amount shall not be increased more than five
percent (5%) on any one annual adjustment and shall never be
increased more than twenty percent (20%) over the initial rent
during the term of this lease.
Section 2. Rent Commencement Date: Base Annual Rent shall
commence February 1, 1998, PROVIDED, HOWEVER, that DecisionOne shall
receive a six-month Rent-Free Period on only the 19,200 square feet of
additional space running from February 1, 1998 through July 31, 1998.
For that period, the monthly installment of rent shall be $32,448.00
each.
Section 3. The Tenant shall reimburse the Landlord for the
costs of water, gas, and electricity, including electricity costs for
exterior lighting, or any other utilities paid by Landlord in
connection with the Leased Premises. Said reimbursement shall be
additional rent due on the first day of the calendar month next
following rendition of a ▇▇▇▇ therefor. If any services are separately
metered, the cost shall be paid directly by the Tenant to the utility
service. The heating and other utilities except water, not separately
metered will be prorated on the basis of the square footage serviced by
a given meter and paid to Landlord as billed. The total cost of water
shall be paid by Tenant currently in occupancy and costs thereof shall
be prorated on the basis of square footage occupied by each Tenant (if
more than one). In the event that any occupant of the building uses a
disproportionate amount of said utilities, an adjustment shall be made
so that each tenant pays for their entire share but not a portion of
the utilities used by other tenants of the building.
Section 4. The Tenant agrees to pay any increased real estate
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taxes over and above the real estate taxes paid by the Landlord during
the first year of the term of this Lease. Said amount shall be deemed
to be additional rent and shall be due and payable on the first of the
month following delivery to Tenant of a receipt for Landlord's payment
of said real estate taxes. The Tenant shall pay its share of expenses
that the Landlord shall incur by reason of compliance with new laws,
orders, special rent/use taxes, ordinances and new regulations of
Federal, State, County and Municipal authorities, and with any lawful
direction of any public officer or officers, which lawful direction
shall be imposed upon the Landlord for the common good of the occupants
of the Airborne Commerce Park. Capital improvement which are the
responsibility of Landlord shall not be deemed to be prorated to be
passed through to Tenant hereunder.
Section 5. None of the following acts or omissions by the
Landlord shall in any way affect the payment of the rent at the time
specified in this Lease; if the Landlord at any time enters into a
contract for any alterations, additions, repairs or improvements; if
the Landlord fails to make such alterations, additions, repairs or
improvements. The Landlord may discontinue all facilities and services
rendered by it or its agents or contractors that are not expressly
covenanted for herein; such facilities and services shall constitute no
part of the consideration for this Lease.
Section 6. Tenant has deposited with Landlord the sum of Six
Thousand Five Hundred Sixty and no/100ths ($6,560.00), as security for
its performance of its lease of part of Building 2. These funds shall
continue to be held by Landlord, without interest, and may be
commingled with Landlord's other funds, as security for the performance
by Tenant of all the terms and conditions of this Lease. If a default
should occur, Landlord, at its option, may apply the deposit, in whole
or in part to cure the default. If any part of the deposit is so
applied by Landlord, Tenant shall, upon Landlord's request, remit to
Landlord the amount necessary to restore the full security deposit.
Tenant's failure to do so within five (5) days after receipt of
Landlord's demand shall be a default. If at the end of the Lease,
Tenant is not in default, the security deposit shall be returned to
Tenant.
6. RATIFICATION OF EXISTING LEASE TERMS. In all other respects, except
as specifically modified herein all the terms and conditions of the existing
Lease, Addendum, Assignment and Assumption are hereby ratified and confirmed by
the parties hereto.
In Witness Whereof the parties have hereunto set their hand to one or
more counterparts hereof this ____ day of __________________, 1998 as to WCPP
and this ____ day of __________________, 1998, as to DecisionOne.
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Signed and acknowledged (1) WILMINGTON COMMERCE PARK
in the presence of: PARTNERSHIP
____________________________________ By__________________________________
(as to 1)
Its_________________________________
____________________________________
(as to 1)
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(2) DECISIONONE HOLDINGS CORP.
____________________________________ By__________________________________
(as to 2)
Its_________________________________
____________________________________
(as to 2)
STATE OF OHIO, ▇▇▇▇▇▇▇▇ COUNTY, ss:
The foregoing instrument was signed and acknowledged before me by
Wilmington Commerce Park Partnership by and through ___________________________,
its __________________________ who acknowledged that he did sign the foregoing
instrument and the same is his free act an deed as such officer and the free act
and deed of said Wilmington Commerce Park Partnership.
In Testimony Whereof, I have hereunto set my hand and official seal at
______________________, Ohio, this _____ day of _________________________, 1998.
____________________________________
Notary Public
STATE OF PENNSYLVANIA, ___________________________ COUNTY, ss:
The foregoing instrument was signed and acknowledged before me by
DecisionOne Holdings Corp. by and through __________________________________,
its __________________________ who acknowledged that he did sign the foregoing
instrument and the same is his free act an deed as such officer and the free act
and deed of said DecisionOne Holdings Corp.
In Testimony Whereof, I have hereunto set my hand and official seal at
______________________, Ohio, this _____ day of _________________________, 1998.
____________________________________
Notary Public
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WAIVER OF FIRST RIGHT TO SUBLEASE
ABX AIR, Inc. hereby waives, for this Second Addendum only, its right
pursuant to Article 6, Section 1 of said Lease (as amended) to a first right to
sublease the premises leased to DecisionOne by the foregoing. This waiver shall
not for any purpose constitute a future waiver of its right to sublease under
the Lease (as amended).
Signed and acknowledged ABX AIR, INC.
in the presence of:
____________________________________ By__________________________________
▇▇▇▇▇▇ ▇. Hete
Senior Vice President
____________________________________
STATE OF OHIO, CLINTON COUNTY, ss:
The foregoing instrument was signed and acknowledged before me by ABX
AIR, Inc. by and through ▇▇▇▇▇▇ ▇. Hete, its Senior Vice President who
acknowledged that he did sign the foregoing instrument and the same is his free
act an deed as such officer and the free act and deed of said ABX AIR, Inc..
In Testimony Whereof, I have hereunto set my hand and official seal at
Wilmington, Ohio, this _____ day of _________________________, 1998.
____________________________________
Notary Public
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This instrument prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Attorneys
at Law, Wilmington, Ohio. (comm1/lc)
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ASSIGNMENT AND ASSUMPTION OF LEASE
This ASSIGNMENT AND ASSUMPTION OF LEASE is made as of __________ __,
1996, by and between DJ&J SOFTWARE CORPORATION ("EGGHEAD") as Assignor and
DECISIONONE HOLDINGS CORP. ("DECISIONONE") as Assignee under the following
circumstances:
A. Pursuant to a certain lease (the "Lease") dated August 17, 1995, and
amended by an addendum (the "Addendum") dated April 15, 1996, Egghead leased
from Wilmington Commerce Park Partnership ("WCPP") certain real property
consisting of 83,200 square feet of space in a warehouse located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇, which warehouse building is sometimes
designated as Building 12 of the Airborne Commerce Park.
B. Egghead wishes to assign all of its right, title and interest under
the Lease and Addendum to DecisionOne and DecisionOne is willing to assume all
of Egghead's liabilities and obligations under the Lease and Addendum.
NOW, THEREFORE, for valuable consideration paid, receipt of which is
hereby acknowledged, effective as of __________ __, 1996, the parties agree as
follows:
1. Egghead assigns to DecisionOne all of its right title and interest
in the Lease and Addendum, together with all rights arising under or by virtue
of the Lease and Addendum.
2. Egghead represents and warrants to DecisionOne that a) the Lease and
Addendum are in full force and effect and have not been further modified or
amended; b) neither Egghead nor WCPP is in default under the Lease and Addendum,
nor to Egghead's knowledge has any event or condition occurred which, with the
giving of notice, the passage of time, or both, would constitute a default by
either party; c) WCPP is holding a security deposit in the amount of $6,560.00,
no amount of which has been applied by WCPP to Egghead's
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obligations and all rights to such security deposit are hereby assigned to
DecisionOne by this Assignment.
3. DecisionOne accepts this Assignment and assumes and agrees to
perform all of the obligations of Egghead arising or accruing under the Lease
and Addendum on or after the effective date of this Assignment.
4. Egghead shall indemnify and hold DecisionOne harmless from and
against all loss, damage, cost and expense that may be claimed against, imposed
upon or incurred by DecisionOne by reason of Egghead's failure to perform any of
its obligations under the Lease or Addendum prior to the effective date of this
Assignment.
5. DecisionOne shall indemnify and hold Egghead harmless from and
against all loss, damage, cost and expense that may be claimed against, imposed
upon or incurred by Egghead by reason of DecisionOne's failure to perform any of
the obligations under the Lease or Addendum assumed by DecisionOne pursuant to
Paragraph 3.
SIGNED as of the date first written above.
Signed and acknowledged DJ&J SOFTWARE
in the Presence of: CORPORATION
_____________________________ By______________________________
Name____________________________
_____________________________ Title___________________________
DECISIONONE HOLDINGS
CORP.
_____________________________ By______________________________
Name____________________________
_____________________________ Title___________________________
STATE OF WASHINGTON, COUNTY OF KING, SS:
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The foregoing instrument was acknowledged before me this _____ day of
___________, 1996, by _______________________, ____________________, on behalf
of DJ&J SOFTWARE CORPORATION, a __________________ corporation.
___________________________________
Notary Public
STATE OF PENNSYLVANIA, COUNTY OF ___________________, SS:
The foregoing instrument was acknowledged before me this _____ day of
____________, 1996, by ______________________, _______________________, on
behalf of DECISIONONE HOLDINGS CORP., a ____________________ corporation.
___________________________________
Notary Public
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ PARTNERSHIP
WAREHOUSE/DISTRIBUTION
AGREEMENT OF LEASE
LEASE FOR BUILDING 12
PROPERTY LOCATED AT ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ PARTNERSHIP
WAREHOUSE/DISTRIBUTION
AGREEMENT OF LEASE
THIS LEASE made this _____ day of __________________, 199___,
by and between WILMINGTON COMMERCE PARK PARTNERSHIP hereinafter referred to as
the Landlord, and DJ & J SOFTWARE CORPORATION, A WASHINGTON CORPORATION DOING
BUSINESS AS EGGHEAD SOFTWARE/EGGHEAD, hereinafter referred to as the Tenant.
Tenant's business enterprise is organized as a corporation and is admitted to do
business in the State of Ohio.
W I T N E S S E T H:
The Landlord does hereby lease and let to the Tenant and the
Tenant accepts from the Landlord under the terms and conditions of this Lease,
the following described Premises:
83,200 square feet, more or less, located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and sometimes designated as Building 12,
hereinafter referred to as the Leased Premises.
ARTICLE 1. TERM.
TO HAVE AND TO HOLD unto the Tenant for a term of Five (5)
years, commencing on the 1st day of February, 1996, ("commencement date") and
ending on the 31st day of January, 2001 both dates inclusive.
EARLY ENTRY: Upon execution of this Lease, Landlord shall give Tenant
and its agents free access to the Premises at all reasonable times upon request
to the Landlord for the purpose of conducting tests and inspections, altering
and constructing leasehold improvements, installing trade fixtures and
equipment, and otherwise preparing the Premises for operation of Tenant's
business.
PERMIT DROP-DEAD: Tenant is responsible for obtaining all necessary
construction, and occupancy permits for office build-out, if any. If Tenant is
unable to obtain such permits, despite diligent efforts, then Tenant shall so
notify Landlord in writing and Landlord shall have the option to obtain such
permits, on behalf of Tenant, at Tenant's expense. If Landlord is unable to
obtain said permits within 30 days from the date of Tenant's written notice,
then this Lease shall terminate and Landlord shall pay to Tenant all sums
previously paid by Tenant to Landlord under this Lease within ten days of such
termination.
ARTICLE 2. ACCEPTANCE OF LEASED PREMISES.
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Section 1. The Leased Premises shall be constructed with the
dimensions, ceiling heights, slab thickness, insulation, gas unit heaters,
electrical services, loading docks, paved parking areas and other specifications
described in Exhibit A hereto and shall be delivered to the Tenant in Shell
condition which shall include a Certificate of Occupancy.
Section 2. Landlord will provide, in addition to the above,
one men's and one women's restroom at a total cost not to exceed $15,000. Said
restrooms may be completed before or after delivery of the Leased Premises and
such completion shall not delay Tenant's obligations to pay rent hereunder.
Section 3. Pre-Existing Defects: Tenant's acceptance of the
Premises does not extend to any defects which are not readily ascertainable
during the course of Tenant's visual inspection.
ARTICLE 3. RENT.
Section 1. Tenant shall pay to the Landlord as BASIC ANNUAL
RENT for the Leased Premises for each year of the period of February 1, 1996
through January 31, 2001, the sum of Three Hundred Forty-One Thousand One
Hundred Twenty Dollars ($341,120.00) which shall be paid in equal monthly
installments of Twenty-Eight Thousand Four Hundred Twenty-Six Dollars and
66/100ths Dollars ($28,426.66), due and payable on the first day of each month,
in advance. Said rent shall be paid to the Landlord, or to the duly authorized
agent of the Landlord, at its office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇. Checks should be made payable to WILMINGTON COMMERCE PARK PARTNERSHIP.
Any Basic Annual Rent payment not received by the Landlord by the tenth day of
the month shall be past due. If the commencement date of this Lease is other
than the first day of the month, any rental adjustment or additional rents
hereinafter provided for shall be prorated accordingly. The Tenant will pay the
rent as herein provided, without deduction whatsoever, and without any
obligation of the Landlord to make demand for it. Any installment of rent
accruing hereunder and any other sum payable hereunder, if not paid within ten
days of when due, shall bear interest at the rate of eighteen percent (18%) per
annum until paid. Late Fee. Provided, however, that Tenant shall be entitled to
two (2) written notices from Landlord in a given Lease Year that such rent,
additional rent or other charge is due and payable within five (5) days of
Tenant's receipt of such notice before a service charge will be assessed. After
four (4) such notices have been given to Tenant during the term of this Lease
then no further notices shall be given and Tenant shall pay any service charges
as otherwise provided herein. The Basic Annual Rent of $341,120.00 shall be
adjusted annually based on the Consumer Price Index beginning February 1, 1997,
the adjustment date which shall commence in the second year of lease and each
year thereafter, whether during the term of this Lease or any renewal or
extension thereof. Increases in the Basic Annual Rent shall be made in
accordance with the following procedure:
a. The index to be used for this adjustment shall be the Consumer Price
Index
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(North Central Region, All Urban Consumers, All Items, 1982-84 equaling
a base of 100, from the U.S. Department of Labor, Bureau of Labor
Statistics, Washington, D.C.).
b. The Consumer Price Index of 1996 for the month of January shall be
the "Base Period Consumer Price Index." The Consumer Price Index for
the month of January prior to each adjustment date in each adjustment
year shall be the "Adjustment Period Consumer Price Index."
c. The Base Period Consumer Price Index shall be subtracted from the
Adjustment Period Consumer Price Index; the difference shall be divided
by the Base Period Consumer Price Index. This quotient shall then be
multiplied by the $341,120.00 (Basic Annual Rent amount) and the result
shall then be added to the $341,120.00 (Basic Annual Rent amount). The
resulting sum shall be the Adjusted Annual Rent for such immediately
succeeding leasehold period which shall be paid in equal monthly
installments.
d. If the said Consumer Price Index is, at any time during the term of
this Lease, discontinued by the Government, then the most nearly
comparable index shall be substituted for the purpose of the aforesaid
calculations.
e. The rental amount shall not be increased more than five percent (5%)
on any one annual adjustment and shall never be increased more than
twenty percent (20%) over the initial rent during the term of this
lease.
Section 2. Rent Commencement Date: Base Annual Rent shall
commence sixty (60) days after the Commencement Date; PROVIDED, HOWEVER, that if
the Leased Premises becomes operational before the expiration of the sixty day
period, Base Annual Rent shall commence immediately upon such operation.
Section 3. The Tenant shall reimburse the Landlord for the
costs of water, gas, and electricity, including electricity costs for exterior
lighting, or any other utilities paid by Landlord in connection with the Leased
Premises. Said reimbursement shall be additional rent due on the first day of
the calendar month next following rendition of a ▇▇▇▇ therefor. If any services
are separately metered, the cost shall be paid directly by the Tenant to the
utility service. The heating and other utilities except water, not separately
metered will be prorated on the basis of the square footage serviced by a given
meter and paid to Landlord as billed. The total cost of water shall be paid by
Tenant currently in occupancy and costs thereof shall be prorated on the basis
of square footage occupied by each Tenant (if more than one). In the event that
any occupant of the building uses a disproportionate amount of said utilities,
an adjustment shall be made so that each tenant pays for their entire share but
not a portion of the utilities used by other tenants of the building.
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Section 4. The Tenant agrees to pay any increased real estate
taxes over and above the real estate taxes paid by the Landlord during the first
year of the term of this Lease. The Tenant's proportionate share of any increase
shall be a fraction thereof, the numerator of which is the number of square feet
in the leased premises and the denominator of which is 121,600 square feet (the
total square feet of floor area in the building or buildings located on the tax
parcel for which taxes are increasing). Said amount shall be deemed to be
additional rent and shall be due and payable on the first of the month following
delivery to Tenant of a receipt for Landlord's payment of said real estate
taxes. The Tenant shall pay its share of expenses that the Landlord shall incur
by reason of compliance with new laws, orders, special rent/use taxes,
ordinances and new regulations of Federal, State, County and Municipal
authorities, and with any lawful direction of any public officer or officers,
which lawful direction shall be imposed upon the Landlord for the common good of
the occupants of the Airborne Commerce Park. Capital improvements which are the
responsibility of Landlord shall not be deemed to be prorated to be passed
through to Tenant hereunder.
Section 5. None of the following acts or omissions by the
Landlord shall in any way affect the payment of the rent at the time specified
in this Lease; if the Landlord at any time enters into a contract for any
alterations, additions, repairs or improvements; if the Landlord fails to make
such alterations, additions, repairs or improvements. The Landlord may
discontinue all facilities and services rendered by it or its agents or
contractors that are not expressly covenanted for herein; such facilities and
services shall constitute no part of the consideration for this Lease.
Section 6. Tenant has deposited with Landlord the sum of SIX
THOUSAND FIVE HUNDRED SIXTY AND NO/100THS ($6,560.00), as security for its
performance of its lease of part of Building 2. Upon Lessee's relocation from
Building 2, these funds shall continue to be held by Landlord, without interest,
and may be commingled with Landlord's other funds, as security for the
performance by Tenant of all the terms and conditions of this Lease. If a
default should occur, Landlord, at its option, may apply the deposit, in whole
or in part to cure the default. If any part of the deposit is so applied by
Landlord, Tenant shall, upon Landlord's request, remit to Landlord the amount
necessary to restore the full security deposit. Tenant's failure to do so within
five (5) days after receipt of Landlord's demand shall be a default. If at the
end of the Lease, Tenant is not in default, the security deposit shall be
returned to Tenant.
ARTICLE 4. COMMON AREA.
For the purpose of this Lease, the term "common area" is
defined for all purposes of this Lease as facilities that are intended for the
common use of all tenants. For purposes of this definition, facilities include
the parking area, driveways, private streets and alleys, landscaping, curbs,
loading area, sidewalks and exterior lighting facilities intended for the common
use of the tenant. Not included are spaces in existing or future buildings or
vacant land designed for commercial rental purposes and exclusive to a given
tenant. The Landlord may from time to time change the dimensions of the common
area, provided that access by trucks to the loading docks is maintained. Tenant
and its employees, customers, licensees and invitees
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shall have the nonexclusive right to use the common area as constituted from
time to time. The use shall be in common with the Landlord or other tenants in
Landlord's buildings and other persons permitted by the Landlord to use the
common area. The use shall be subject to all reasonable nondiscriminatory rules
and regulations prescribed by Landlord and as amended from time to time,
including the designation of specific areas within the common area for parking
automobiles owned by the Tenant, its employees, licensees and invitees. If
automobiles or other vehicles are parked in part of the common area not
specifically designated for employee parking, Tenant shall pay Landlord, as
additional rent, an amount equal to the daily or hourly charge established by
Landlord for each automobile or vehicle so parked. Such parking use shall not be
permitted unless approved by Landlord in writing. Tenant shall not solicit
business within the common area or take any action which would interfere with
the rights of other persons to use of the common area. The Tenant shall have no
right to use the common area for storage of pallets or other storage purposes,
and trash shall be stored only in such containers and in such place as approved
by the Landlord. The Landlord shall maintain the common area and keep the same
in good order and repair including lighting and landscaping. The Landlord may
temporarily close any part of the common area for any period necessary to make
repairs or alterations or to prevent the public from obtaining prescriptive
rights. The cost of exterior lighting and ice and snow removal, general
cleaning, asphalt sealing and restriping and landscape maintenance will be
prorated among the Tenants in accordance with the percentage that the square
footage of the Leased Premises bears to the total square footage of all
buildings adjacent to the Leased Premises. The share of such cost will be deemed
to be additional rent and shall be due the first of the month following the
invoice thereof by Landlord to the Tenant of the amount due, whichever is later.
Notwithstanding the foregoing, Tenant shall not be obligated to pay costs of
parking lot restriping more frequently than every seven (7) years unless unusual
weather conditions cause substantial deterioration in markings within the seven
year period.
LANDLORD'S ACCOUNTING: Landlord must maintain books and records for all
operating expenses, utilities, insurance, taxes and other charges paid to
Landlord by Tenant in accordance with generally accepted accounting principles,
and provide to Tenant an accounting of such charges. Tenant has right to audit
Landlord's books and records for such charges. Landlord must pay for an audit of
its books and records if those charges are in error by more than three percent
(3%).
ARTICLE 5. USE OF LEASED PREMISES.
Section 1. The Leased Premises shall be used and occupied only
for direct mail and telemarketing activities, warehousing and distribution of
products and related activities and for no other purposes or purposes without
the written consent of the Landlord. Landlord warrants that Tenant's proposed
use of the Leased Premises complies with the requirements hereof.
Section 2. The Tenant shall operate its business in a safe and
proper manner as is
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normal, considering the uses of the Leased Premises above provided; and shall
not manufacture, store, display or maintain any products or materials that will
endanger the Leased Premises; shall do nothing that would increase the cost of
insurance on the building or invalidate existing policies; shall not obstruct
the sidewalks; shall not use the plumbing for any other purpose than for which
it was constructed; shall not make or permit any unreasonable noise and/or odor
objectionable to the public or adjacent occupants; shall not create a nuisance
on the Leased Premises; and shall commit no waste.
Section 3. The Tenant shall abide by all police and fire
regulations concerning the operation of its business; shall store all trash,
rubbish and debris in closed containers; and shall practice all proper
procedures and methods that are common to its business enterprise. The Tenant
shall maintain a minimum temperature in the Leased Premises of fifty-five (55)
degrees fahrenheit.
Section 4. The Tenant shall at all times keep all improvements
and any equipment facilities or fixtures in good order, condition and repair and
in a clean, sanitary and safe condition and in accordance with all applicable
laws, ordinances and regulations of any governmental authority having
jurisdiction. Tenant shall permit no waste, damage or injury to the Leased
Premises.
Section 5. Tenant shall forthwith at its own cost and expense
replace with glass of the same kind and quality any cracked or broken glass,
including plate glass or glass or other breakable materials used in structural
portions, and any interior and exterior windows and doors in the Leased
Premises.
ARTICLE 6. ASSIGNMENT AND SUBLETTING.
Section 1. Tenant shall not transfer, mortgage, or pledge this
lease, or sublease the subject premises or any portion thereof, without the
Landlord's prior written consent, which shall not be unreasonably withheld or
delayed. Tenant shall give ABX AIR, INC., the first right to sublease any or all
of the premises. The Landlord may deem any levy or sale or execution or other
legal process against the Tenant, or any assignment or sale in bankruptcy or
assignment or a receiver or insolvency of the Tenant, to be an assignment within
the meaning of this Article.
Section 2. Assignment: Notwithstanding anything contained
herein to the contrary, the following shall not be considered an assignment of
the Lease or other transfer for the purpose of this section: (a) any change in
ownership of tenant resulting from a public offering of stock of tenant for any
parent corporation of tenant; or (b) any transfer of stock or assets of tenant
to an affiliate or subsidiary corporation or other entity, or as a result of a
merger, consolidation or the reorganization of tenant or any parent of tenant so
long as tenant's permitted use of premises is unaltered. Tenant must provide
Landlord with written notice regarding any change in ownership or transfer to
affiliate or subsidiary corporation and receive written consent from Landlord
which consent shall not be unreasonably withheld.
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RELEASE UPON ASSIGNMENT: Tenant shall be released from its obligations
under this Lease if the subtenant or assignee approved by Landlord has
managerial experience and a financial net worth comparable to Tenant at time of
the execution of this Lease.
ARTICLE 7. Repairs.
Section 1. Landlord shall keep the foundations, exterior walls
(except plate glass or glass) roof, and sprinklers in good repair.
Section 2. Tenant shall contract for the maintenance of
mechanical equipment. The Tenant shall replace any hot water heater as the need
should arise with the same type and quality servicing the Leased Premises.
Landlord warrants the water heater and heating and air conditioning equipment
for one (1) year from the date Tenant occupies the premises. The Landlord shall
replace, as needed, the heating and air conditioning equipment, provided the
unit has been serviced annually and the cost of replacement shall be prorated
over the useful life for such equipment.
PRE-EXISTING DEFECTS: Tenant's acceptance of the Premises does not
extend to any defects which are not readily ascertainable during the course of
Tenant's visual inspection.
Section 3. Landlord shall not be liable for failure to keep
the Leased Premises in repair, unless notice of the need for repairs has been
given Landlord, after the same has come to the explicit attention of Tenant, a
reasonable time has elapsed and Landlord has failed to make such repairs.
Landlord shall not be liable for any damage done or occasioned by or from the
electrical system, the heating and/or air conditioning system, the plumbing and
sewer system in, above, upon or about the Leased Premises nor for damage
occasioned by water, snow or ice being upon or coming through the roof, walls,
windows, doors or otherwise, unless such damages are a result of Landlord's
negligence or intentional misconduct in performance or failure to perform as
above provided.
Section 4. Except as provided in Sections 1, 2 and 3 of this
Article, Landlord shall not be obligated to make repairs, replacements or
improvements or any kind upon said Leased Premises, or any equipment facilities
or fixtures therein contained, which shall at all times be kept in good order,
condition and repair by Tenant, and in a clean, sanitary and safe condition and
in accordance with all applicable laws, ordinances and regulations of any
governmental authority having jurisdiction. Tenant shall permit no waste,
damage, or injury to the Leased Premises.
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ARTICLE 8. INSTALLATIONS AND ALTERATIONS.
Section 1. Tenant shall not make any alterations or additions
to the Leased Premises which exceed in the aggregate $10,000.00 without first
procuring Landlord's written consent, which consent shall not be unreasonably
withheld, and delivering to Landlord the plans and specifications and copies of
the proposed contracts and necessary permits, and shall furnish indemnification
against liens, costs, damages and expenses as may be reasonably required by
Landlord. All alterations, additions improvements and fixtures, other than trade
fixtures, which may be made or installed by either of the parties hereto upon
the Leased Premises and which in any manner are attached to the floors, walls or
ceilings, at the termination of this Lease shall become the property of the
Landlord unless Landlord requests their removal and shall remain upon and be
surrendered with the Leased Premises as a part thereof, without damage or
injury; and linoleum or other floor covering which may be cemented or adhesively
affixed to the floor shall likewise become the property of Landlord, all without
compensation or credit to Tenant.
Section 2. Landlord may withhold consent reasonably to any
proposed alteration, addition or installation which Landlord believes, in the
Landlord's reasonable opinion and discretion, could be considered a safety
hazard by the Federal Aviation Administration ("FAA") or which Landlord believes
would delay compliance or increase the costs incurred by Landlord in complying
with any regulation or law administered or enforced by the FAA or similar
regulatory body.
Section 3. The Tenant shall not erect or install any signage
without first procuring Landlord's written consent, which consent shall not be
unreasonably withheld or delayed.
Section 4. The Tenant shall have no rights to use and shall
not use the roof of the Leased Premises for any purpose without the written
consent of the Landlord. The Tenant shall not use the roof for storage, for any
activity that will result in traffic on the roof, for anything that will
penetrate the roof, use the roof as an anchor or otherwise damage the roof. The
consent of the Landlord must be in writing for each specific use and must also
approve the method of installation of the permitted use. Should the Tenant break
this covenant, the Tenant shall be responsible for any damages caused to the
roof or other parts of the building and shall assume the cost of maintaining and
repairing the roof during the term of the Lease, including any renewals.
ARTICLE 9. RISK OF LOSS.
Section 1. The Landlord shall not be held responsible for and
is relieved from all liability by reason of, any injury or damage to any person,
persons or property in the demised premises, whether belonging to the Tenant or
any other person, caused by any fire or by any breakage or leakage in any part
or portion of the demised premises, or in any part or portions of the building
of which the demised premises are a part, unless such breakage, leakage, injury
or damage is caused by or results from the negligence or intentional misconduct
of the Landlord or its agents. The Tenant, in consideration of the rent, accepts
and assumes such responsibility and
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liability.
Section 2. The Landlord shall not be held responsible for and
is relieved from all liability by reason of, any injury or damage to any person,
persons or property in the demised premises, whether belonging to the Tenant or
any other person, from water, rain or snow that may leak into, issue, or flow
from any part of the premises or of the building of which the demised premises
are a part, from the pipes or plumbing work of the same or from any place or
quarter, unless such damage, leak or flow is caused by or results from the
negligence or intentional misconduct of the Landlord or its agents or any person
or persons. The Tenant, in consideration of the rent herein specified, accepts
and assumes such responsibility and liability.
Section 3. The Tenant releases the Landlord from all
liability, and assumes all liability, for damages which may arise from any kind
of injury to person, persons or property on account of the use, misuse or abuse
of all elevators, hatches, or openings of any kind that may exist or hereinafter
be erected or constructed on the premises or from any kind of injury that may
arise from any other cause on the premises, unless such damage, injury, use,
misuse or abuse is caused by or results from the negligence or intentional
misconduct of the Landlord or its agents.
ARTICLE 10. INSURANCE.
Section 1. Tenant shall not carry any stock of goods or do
anything in or about said Leased Premises which will in any way tend to increase
insurance rates on said Leased Premises or the building in which the same are
located. Landlord warrants that Tenant's proposed use of the Leased Premises
will not tend to increase insurance rates on the Leased Premises. If Landlord
shall consent to such use, Tenant agrees to reimburse Landlord, upon demand, all
increase or increases of premiums on insurance carried by the Landlord on all or
part of the Leased Premises, or on the building of which the Leased Premises are
a part, caused in any way by the Tenant's occupancy. If Tenant installs any
electrical equipment that overloads or may overload the power lines to the
building, Tenant shall make immediately, and at its own expense, whatever
changes are necessary to remedy such overload or possible overload and to avoid
the same in the future, and shall comply with all requirements of all
governmental authorities having jurisdiction and with the requirements of any
insurance underwriters and rating bureaus.
Section 2. Tenant agrees to procure and maintain a policy or
policies of insurance, at its own costs and expense, insuring from all claims,
demands or actions for injury to or death of more than one person in any one
accident and for damages to property in an aggregate amount of not less than
$2,000,000.00 made by or on behalf of any person or persons, firm or
corporation, arising from, related to, or connected with the conduct and
operation of Tenant's business in the Leased Premises. Landlord shall be named
an Additional Insured Party in said policy. Such insurance shall be primary
relative to any other valid and collectible insurance. Tenant may satisfy this
insurance requirement with appropriate coverage under its existing policies
which may be in the form of a blanket policy and shall not be obligated to
obtain a separate policy for the Leased Premises. Said insurance shall not be
subject to
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cancellation except after at least thirty (30) days prior written notice to
Landlord, and certificates for the same, shall be deposited with Landlord at the
commencement of the term and renewals of such coverage. If Tenant fails to
comply with such requirement, Landlord may obtain such insurance and keep the
same in effect after written notice to Tenant, and Tenant shall pay Landlord the
premium cost thereof upon demand.
Section 3. All property of Tenant or those claiming under
Tenant which may be upon said Leased Premises during the term hereof or any
renewal thereof shall be at and upon the sole risk and responsibility of the
Tenant.
ARTICLE 11. DAMAGE BY FIRE OR OTHER CASUALTY.
Section 1. If the demised Premises are totally destroyed or so
damaged by fire or other casualty not occurring through fault or negligence of
the Tenant, or those employed by or acting for it, that they cannot be repaired
and restored, on the basis of normal working days and hours, within 90 days,
this lease shall terminate, and the rent shall ▇▇▇▇▇ for the balance of the
term; PROVIDED, HOWEVER, that should it be determined anytime that the aforesaid
fire or other casualty was caused by the negligence or willful misconduct of
Tenant, its employees or agents, then this lease shall not terminate, and should
it have been terminated prior to this determination, it shall be reinstated and
all amounts which would have accrued but for the termination shall be
immediately due to Landlord and all other duties hereunder shall be reinstated
in full.
Section 2. If the damage above is only partial and the
premises can be restored, on the basis of normal working days and hours, to the
present condition within 90 days, the Landlord shall restore them as speedily as
circumstances reasonable permit, including the time necessary and required by
the insurance companies to inspect the premises and to make an adjustment with
the Landlord. The Landlord may enter upon the premises for the purpose of doing
the restoration work. However, if such damage occurs during the final 12 months
of the then current term, the Landlord or the Tenant may terminate this lease by
giving written notice to the other party within 30 days after the damage occurs.
If Landlord either party exercises such option the rent shall ▇▇▇▇▇ for the
balance of the term. The Landlord also may enter upon the demised premises
whenever necessary to repair damage caused by fire or other casualty to the
building of which the demised premises are a part, even though the effect of
such entry is to render the demised premises or a part thereof untenantable. In
that event, the rent shall be prorated and suspended while the Landlord is in
possession, taking into account the proportion in area of the demised premises
rendered untenantable or unusable and the duration of the Landlord's possession.
If a dispute arises as to the amount of rent under this clause, the Tenant shall
pay the full amount claimed by the Landlord. The Tenant may, however, proceed by
law to recover any excess payment.
ARTICLE 12. EMINENT DOMAIN.
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Section 1. If any of the Leased Premises shall be taken by a
public authority under the power of eminent domain and Landlord is unable to
provide substitute space within the area of the Airborne Commerce Park, then the
term of this Lease shall cease as of the day possession shall be taken by such
public authority, and the rent shall be paid up to that date with a
proportionate refund by Landlord of such rent as shall have been paid in
advance.
Section 2. If less than substantially all of the floor area of
the Leased Premises shall be so taken, as of the day possession shall be taken
by such public authority, and the rent shall be paid up to that day with a
proportionate refund by Landlord of such rent as may have been paid in advance,
and thereafter the minimum rent shall be equitably abated, and Landlord shall at
its own cost and expense make all necessary repairs or alterations as to
constitute the remaining Leased Premises a complete architectural unit. If
Tenant shall not be able to reasonably operate its business, then Tenant shall
have the right to terminate this Lease on 60 days written notice.
Section 3. All damages awarded for such taking under the power
of eminent domain, whether for the whole or a part of the Leased Premises, shall
be the property of Landlord whether such damages shall be awarded as
compensation for diminution in value of the leasehold or to the fee of the
Leased Premises; provided, however, that the Landlord shall not be entitled to
any separate award made to Tenant for loss of business, depreciation to and cost
of removal of stock and fixtures.
ARTICLE 13. ACCESS TO LEASED PREMISES.
Tenant shall retain all keys to the Leased Premises for
security reasons. Tenant agrees to have accessible to Landlord for twenty-four
(24) hours each day, a person or persons who will be able to provide reasonable
access to the Leased Premises for Landlord. After 48 hours written notice,
except in cases of emergency, the Landlord or its agents shall have the right to
enter upon the Leased Premises at all reasonable hours for the purpose of
inspecting the same or of making repairs, additions or alterations thereto or to
the building in which the same are located. If Landlord must obtain access to
the premises in an emergency, and Tenant has not provided access as set forth
above, Landlord may use whatever reasonable means are necessary to obtain
access, and any costs to repair damage caused to the Leased Premises by Landlord
in obtaining access shall be paid by Tenant. During the final six months of the
Lease term, the Landlord shall have the right, upon 48 hours written notice, to
show the Leased premises to prospective Tenants, purchasers or others. Landlord
shall not be liable to Tenant in any manner for any expense, loss or damage by
reason thereof, nor shall the exercise of such right be deemed an eviction or
disturbance of Tenant's use and possession.
ARTICLE 14. INABILITY TO DELIVER PREMISES.
If this Lease is executed and the Landlord cannot deliver
possession of the Leased Premises before the commencement date (as defined in
Article 1), it shall not be deemed to be in
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default under the Lease, and Tenant shall accept possession of the Leased
Premises provided Landlord is able to tender them within 30 days, unless the
delay is caused by an act or acts of severe winter weather, in which case
Landlord shall have sixty(60) days to tender possession of the Leased Premises.
Landlord waives the payment of rent covering any period before possession is
tendered to Tenant.
ARTICLE 15. LANDLORD'S SUCCESSORS.
The term "Landlord" as used in this Lease shall be limited to
mean and include only the owner or owners, at the time, of the fee of the
building, their successors and assigns, so that in the event of any sale or
sales of the building, the previous Landlord shall be entirely released with
respect to the performance of all subsequently accruing covenants and
obligations on the part of Landlord. The retention of fee ownership by a
Landlord of the building or of the land on which it is located under an
underlying lease which is now or hereafter in effect, shall not be deemed to
impose on such underlying Landlord any liability, initial or continuing, for the
performance of the covenants and obligations of Landlord.
ARTICLE 16. SUBORDINATION.
This Lease shall be subject to and subordinate at all times to
the lien of any mortgages, now or hereafter made on the Leased Premises, to all
advances made or hereafter to be made thereunder, and to any easements granted
to or by Landlord which benefit or burden the Leased Premises. The Tenant agrees
to execute a subordination agreement should Landlord's lender request same.
ARTICLE 17. ATTORNMENT.
In the event the herein Leased Premises are sold due to any
sale, transfer or foreclosure, by virtue of judicial proceedings or otherwise,
this Lease shall continue in full force and effect, and Tenant agrees, upon
request, to attorn to and acknowledge the transferee(s) or purchaser(s) at such
transfer or sale as Landlord(s) hereunder; provided such transferee(s) or
purchaser will recognize this Lease, unless and until it is in default.
ARTICLE 18. LIMITATION ON LIABILITY.
Notwithstanding any other provision of this Lease, Tenant
agrees to look solely to Landlord's interest in the building (subject to any
mortgage on the building) for the recovery of any judgment requiring the payment
of money by Landlord; it being agreed that Landlord, and if Landlord is a
partnership, its partners whether general or limited, or if Landlord is a
corporation, its directors, officers, and shareholders, shall never be
personally liable for any such judgment, and no other assets of the Landlord
shall be subject to such levy, execution or other procedures for the
satisfaction of Tenant's judgment. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Tenant might
otherwise have to obtain
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injunctive relief against Landlord or Landlord's successors in interest, or to
maintain any other action not involving the personal liability of Landlord, or
to maintain any suit or action in connection with enforcement or collection of
amounts which may become owing or payable under or on account of insurance
maintained by Landlord.
ARTICLE 19. TENANT'S DEFAULT.
Section 1. The Tenant, ten (10) days after receipt of written
notice, shall be considered in default of this Lease upon failure to pay when
due the rent or any other sum required by the terms of the Lease. Tenant shall
also be considered in default thirty (30) days after receipt of written notice
for failure to perform any term, covenant or condition of this Lease; upon the
commencement of any action or proceeding for the dissolution, liquidation or
reorganization under the Bankruptcy Act, of Tenant, or for the appointment of a
receiver or trustee of the Tenant's property; upon making of any assignment for
the benefit of creditors by Tenant; upon suspension of business; or the
abandonment of the Leased Premises by the Tenant. Any defaults other than
nonpayment defaults shall have a thirty (30) day cure period.
Section 2. In the event of default of this Lease by either
party, then either party may pursue any and all remedies and rights available
under applicable Ohio law. Should Landlord elect to reenter, as herein provided,
or should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this Lease, or it may
without terminating this Lease relet said Leased Premises or any part thereof
for such term or terms and at such rental or rentals and upon such other terms
and conditions as Landlord may deem advisable, with the right to make
alterations and repairs to said Leased Premises for the purpose of rerental.
Should such rentals received from such reletting during any month be less than
required to be paid by Tenant as defined above, then Tenant shall immediately
pay such deficiency to Landlord.
Section 3. No such reentry or taking possession of said Leased
Premises by Landlord shall be construed as an election on its part to terminate
this Lease, unless a written notice of such intention be given to Tenant or
unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach or act of
default. Should Landlord at any time terminate this Lease for any breach or act
of default, in addition to any other remedy it may have, it may recover from
Tenant all damages it may incur by reason of such breach or act of default,
including the cost of recovering the Leased Premises, legal fees, and including
the worth at the time of such termination of the excess, if any, of the amount
of rent and charges equivalent to rent reserved in this Lease for the remainder
of the stated term over the then reasonable rental value of the Leased Premises
for the remainder of the stated term.
ARTICLE 20. SURRENDER OF LEASED PREMISES.
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Section 1. If Tenant holds possession of the Leased Premises
after the termination of this Lease for any reason not authorized by the
Landlord unless the parties are engaged in good faith negotiations for the
leasing of this or other space in the Wilmington Commerce Park, after sixty days
from the termination, Tenant shall pay Landlord one hundred fifty percent (150%)
of the rent provided for herein for such period that Tenant holds over, but such
payment of rent shall not create any Lease arrangement whatsoever between
Landlord and Tenant, unless expressly agreed to in writing by Landlord. It is
further understood that during such period that Tenant holds over, the Landlord
retains all of Landlord's rights under this Lease, including damages as a result
of the termination of this Lease and the right to immediate possession of the
Leased Premises. This paragraph shall not be construed to grant Tenant
permission to hold over.
Section 2. At the expiration of the tenancy created hereunder,
whether by lapse of time or otherwise, Tenant shall surrender the Leased
Premises broom clean, free of tire marks, free of all debris and in good
condition and repair, reasonable wear and tear and loss by fire or other
unavoidable casualty excepted.
Section 3. Prior to surrender of the Leased Premises, the
Leased Premises will be reviewed by a representative of the Landlord and Tenant
to determine if there is any deferred maintenance or unrepaired damage which is
the responsibility of Tenant. Tenant shall have the option to effect such
maintenance and repairs. In the event that there is deferred maintenance and/or
unrepaired damage not taken care of by Tenant, then Landlord may effect such
maintenance and repairs and Tenant will pay the cost thereof which cost shall
not exceed 10% of the Landlord's approved initial build-out.
Section 4. Upon the expiration of the tenancy hereby created,
if Landlord so requests in writing, Tenant shall promptly remove any additions,
signs, fixtures and installations placed in the Leased Premises by Tenant that
is designated in said request, and repair any damage occasioned by such removals
at its own expense, and in default thereof, Landlord may effect such removals
and repairs, and Tenant shall pay Landlord the cost thereof, with interest at
the rate of eight (8) percent per annum from the date of payment by Landlord.
Notwithstanding the foregoing, Tenant shall be able to leave in such additions,
signs, fixtures and installations in an amount up to ten (10%) of its original
build-out without a duty to remove the same.
ARTICLE 21. WAIVER OF SUBROGATION.
The Landlord and Tenant waive all rights, each against the
other, for damages caused by fire or other perils covered by insurance where
such damages are sustained in connection with the occupancy of the Leased
Premises.
ARTICLE 22. ZONING; PERMITS.
Notwithstanding anything herein elsewhere contained to the
contrary, this Lease
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and all the terms and conditions hereof are in all respects subject and
subordinate to all zoning restrictions and restricting covenants affecting the
Leased Premises, and the building in which they are located, and the Tenant
shall be bound by such restrictions. Landlord represents that to the best of its
knowledge and belief, the present zoning of the premises permit the activities
of Tenant as such are presently carried on. In the event that the present zoning
does not permit the activities of Tenant's present use then this Lease shall be
void. The Landlord further does not warrant that any licenses or permits which
may be required for the business to be conducted by the Tenant on the Leased
Premises will be granted, or, if granted, will be continued in effect or
renewed. Any failure to obtain the licenses, permits, or any revocation thereof
or failure to renew them, shall not release the Tenant from the terms of this
Lease.
ARTICLE 23. ENVIRONMENTAL PROVISIONS.
Section 1. The Landlord, to the best of its knowledge,
represents to the Tenant that no toxic, explosive or other dangerous materials
or hazardous substances have been concealed within, buried beneath, released on
or from, or removed from and stored off-site of the Property upon which the
Leased Premises is constructed.
Section 2. Tenant shall at all times during the term of this
Lease comply with all applicable federal, state, and local laws, regulations,
administrative rulings, orders, ordinances, and the like, pertaining to the
protection of the environment, including but not limited to, those regulating
the handling and disposal of waste materials. Further, during the term of this
Lease, neither Tenant nor any agent or party acting at the direction or with the
consent of Tenant shall treat, store, or dispose of any "hazardous substance,"
as defined in Section 101 (14) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA") (or any analogous
legislation), or petroleum (including crude oil or any fraction thereof) on or
from the Property.
Section 3. Tenant shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Landlord from any and all claims,
orders, demands, causes of action, proceedings, judgments, or suits and all
liabilities, losses, costs or expenses (including, without limitation, technical
consultant fees, court costs, expenses paid to third parties and reasonable
legal fees) and damages arising out of, or as a result of, (i) any "release" as
defined in Section 101 (22) of CERCLA (or any analogous legislation), of any
"hazardous substance," as defined in Section 101 (14) of CERCLA (or any
analogous legislation), or petroleum, (including crude oil or any fraction
thereof) or placed into, on or from the Property at any time after the date of
this Lease by Tenant, its agents, or employees; (ii) any contamination of the
Property's soil or groundwater or damage to the environment and natural
resources of the Property the result of actions occurring after the date of this
Lease, whether arising under CERCLA or other statutes and regulations, or common
law by Tenant, its agents, or employees; and (iii) any toxic, explosive or
otherwise dangerous materials or hazardous substances which have been buried
beneath, concealed within or released on or from the Property after the date of
this Lease.
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Section 4. Landlord agrees to indemnify and hold harmless
Tenant upon the same terms and conditions set forth above for any release which
is caused by any other tenant in the Airborne Commerce Park or by Landlord
itself, except to the extent that Tenant is determined to be partly or wholly
responsible for such release.
Section 5. Landlord hereby warrants to Tenant that the
Premises do not contain any asbestos. Landlord also represents and warrants that
it has not received notification of any kind from any governmental agency
regarding actual, potential, or threatened contamination of the Property by
Hazardous Substances. Landlord agrees to indemnify and hold Tenant harmless from
any and all costs of any governmentally required remedial action or cleanup
suffered or incurred by Tenant arising out of or related to any use of the
Premises, Shopping Center, Building or Property or presence of asbestos or
Hazardous Substances in any such areas or portion thereof occurring prior to the
Lease Commencement date. The term "Hazardous Substances" shall mean any and all
hazardous, toxic, infectious, or radioactive substances, wastes, or materials
listed or defined by any Environmental Law and specifically shall include
petroleum oil and its fractions, asbestos, urea formaldehyde and radon. The term
"Environmental Laws" means any and all federal, state, and local statutes,
regulations, and ordinances pertaining to the protection of human health or the
environment that are applicable to the Premises, including, without limitation,
the Comprehensive Environmental Response, Compensation and Recover Act of 1980,
as amended, the Resource Conversation and Recovery Act of 1976, and the
Hazardous Materials Transportation Act; all regulations pertaining thereto; and
all other statutes, laws and ordinances of the United States and of any state,
county or municipality in which the Premises are located.
ARTICLE 24. ESTOPPEL CERTIFICATE.
The Tenant agrees to execute an Estoppel Certificate on a form
to be supplied by Landlord for the benefit of Lender or any mortgage holder;
that wherein the Tenant acknowledges the terms and conditions of this Lease.
ARTICLE 25. ACCELERATION OF RENT.
If the Tenant becomes insolvent, bankrupt, or makes an
assignment for the benefit of creditors, or is levied upon or sold out by
Sheriff's or ▇▇▇▇▇▇▇▇'▇ sale, or if a receiver is appointed, the Landlord may
declare the rent for the balance of the term or any part thereof to be due and
payable as if by the terms of the lease it were payable in advance. If the rent
or any other sum payable hereunder is at any time unpaid when within 45 days
after due, the Landlord may then declare the rent for the balance of the term or
any part thereof to be immediately due and payable as if by the terms of the
Lease it were payable in advance, and the Landlord may immediately proceed to
distrain, collect, or bring action for the whole rent or any part thereof, as if
it were in arrears, or may enter judgment therefor, in an amicable action as
hereinabove provided in the case of rent in arrears.
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ARTICLE 26. RENT DEMAND.
Every demand for rent due wherever and whenever made shall
have the same effect as if made at the time it falls due and at the place of
payment, and after the service of any notice or commencement of any suit, or
final judgment therein, Landlord may receive and collect any rent due, and such
collection or receipt shall not operate as a waiver of nor affect such notice,
suit or judgment.
ARTICLE 27. NO REPRESENTATION BY LANDLORD.
Landlord and its agent have made no representations or
promises with respect to the Leased Premises or the building of which the same
form a part except as herein expressly set forth. Landlord represents that all
systems and Leased Premises will be in good working order and in full compliance
with law and provision of the certificate of occupancy upon commencement of the
Lease.
ARTICLE 28. WAIVER OF BREACH.
No waiver of any breach of the covenants, provisions or
conditions contained in this Lease shall be construed as a waiver of the
covenant itself or any subsequent breach itself, and if any breach shall occur
and afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred, unless otherwise agreed. The
acceptance of rent hereunder shall neither be or construed to be a waiver of any
breach of any term, covenant or condition of this Lease.
ARTICLE 29. QUIET ENJOYMENT.
Landlord hereby covenants and agrees that if Tenant shall
perform all the covenants and agreements herein stipulated to be performed on
Tenant's part, Tenant shall at all times during the continuance hereof have the
peaceable and quiet enjoyment and possession of the Leased Premises without any
manner of let or hindrance from Landlord or any person or persons lawfully
claiming the Leased Premises except as otherwise provided for herein.
ARTICLE 30. INTERPRETATION.
Section 1. Wherever either the word "Landlord" or "Tenant" is
used in this Lease, it shall be considered as meaning the singular and/or neuter
pronouns as used herein, and the same shall be construed as including all
persons and corporations designated respectively as Landlord or Tenant in the
heading of this instrument wherever the context requires.
ARTICLE 31. DEFINITIONS.
Pro rata share. Unless otherwise indicated, "pro rata share"
means the share of
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any costs, fees, or expenses Tenant is required to pay to Landlord under this
Agreement calculated by dividing the square footage of the Leased Premises by
the total square footage of the building or buildings as the case may be of
which the Leased Premises are a part.
Buildings. Unless otherwise indicated, "buildings" means the
buildings of which the leased premises are a part and to which any item of
expense is attributable or allocable.
ARTICLE 32. HEADINGS.
All headings preceding the text of the several Articles and
Sections hereof are inserted solely for convenience or reference and shall not
constitute a part of this Lease or affect its meaning, construction, or effect.
ARTICLE 33. NOTICE.
All notices under this Lease may be personally delivered; sent
by courier service, with receipt; or mailed to the address shown by certified
mail, return receipt requested. The effective date of any mailed notice shall be
three (3) days after delivery of the same to the United States Postal Service.
Landlord: WILMINGTON COMMERCE PARK PARTNERSHIP
Mail: Al. ▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant: DJ & J Software Corporation
Mail: Attn: Real Estate Department
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE 34. FINANCIAL STATEMENTS.
The Tenant shall furnish the Landlord with Tenant's most
current audited financial statements. Tenant shall furnish Landlord with
Tenant's most current public information at Landlord's request during Lease
term.
ARTICLE 35. MEMORANDUM OF LEASE.
It is agreed by both parties that this instrument is not
recordable and if either party
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should record the same in the office of the Recorder of Clinton County, Ohio,
the recording shall have no effect. When possession of the Leased Premises has
been delivered to Tenant, the parties hereto may execute, acknowledge and
deliver a Memorandum of Lease in recordable form specifying the terms of this
Lease and renewal periods of this Lease. In the event they differ from the dates
herein, the date in the Memorandum shall control.
ARTICLE 36. TIME.
Time is of the essence in this Lease.
ARTICLE 37. RIGHT OF FIRST REFUSAL.
Tenant shall have the right of first refusal to lease
additional space in the building. Landlord must deliver written notice of such
offer to Tenant. Tenant shall have ten (10) days from the date such notice is
received by Tenant to respond to such offer. If Tenant fails to deliver written
notice to Landlord in ten (10) days, Landlord shall be free to lease the space
to the third party.
ARTICLE 38. AMERICANS WITH DISABILITIES ACT.
Landlord warrants that prior to Tenant's occupancy the
Premises will comply with the Americans with Disabilities Act of 1990 and any
related rules and regulations, as amended from time to time ("AD"). To the
extent applicable, Tenant shall perform and pay for compliance with the ADA
affecting the Premises that is required by actions taken by Tenant to alter or
remodel the Premises, and by changes to the ADA enacted or promulgated after the
Lease Commencement Date. Throughout the term of this Lease, Landlord shall
perform and pay for compliance with the ADA outside of the Premises, including
without limitation, provision of an accessible path of travel to the Premises.
ARTICLE 39. CONFIDENTIALITY.
The confidentiality of all business information provided by
either party to this Lease pursuant to the terms of this Lease shall be
preserved and protected by the party receiving such information, unless the
party providing the information has expressly stated in writing to the other
party that the information provided is not confidential.
ARTICLE 40. BROKERS.
Tenant is not liable for the fees of any brokers or agents
which were not engaged by Tenant. No broker or agent has the authority to make
any representation for or obligate
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Tenant in any manner.
ARTICLE 41. ENTIRE AGREEMENT.
This Lease contains the entire agreement between the parties;
it supersedes all previous understandings and agreements between the parties, if
any and no oral or implied representation of understandings shall vary its
terms; and it may not be amended except by a written instrument executed by both
parties hereto.
IN WITNESS WHEREOF, the parties hereto set their hands to triplicates
hereof, this _____ day of _____________________, 1995, as to Landlord , and this
_____ day of ___________________, 1995, as to Tenant.
Signed and acknowledged LANDLORD: WILMINGTON COMMERCE
in the presence of: PARK PARTNERSHIP
_________________________________ By:_________________________________
Its:_________________________________
_________________________________
TENANT: DJ & J SOFTWARE CORPORATION
_________________________________ By:_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
and C.E.O.
_________________________________
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STATE OF OHIO, COUNTY OF ___________________, SS:
The foregoing instrument was acknowledged before me this _____ day of
___________, 1995, by ______________________, ________________________, on
behalf of WILMINGTON COMMERCE PARK PARTNERSHIP.
____________________________________
Notary Public
STATE OF WASHINGTON, COUNTY OF KING, SS:
The foregoing instrument was acknowledged before me this _____ day of
____________, 1995, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and C.E.O., on behalf of DJ &
J SOFTWARE CORPORATION.
____________________________________
Notary Public
Prepared by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Attorneys at Law, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
KB/JVG.WCPP1.EGG.KB('95)(5)
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