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Exhibit 10.2
AMENDMENT NO. 1
TO LEASE AGREEMENT
TOWERS OF RIVERCENTER
COVINGTON, KENTUCKY
WHEREAS, CPX-Rivercenter Two Limited Partnership (Landlord) and ▇▇▇▇▇▇
Greetings, Inc. (Tenant), entered into an agreement dated August 13, 1998,
which lease agreement provided Tenant an option to terminate the lease in whole
or in part in the event Landlord was unable to secure an agreement to relocate
the Northern Kentucky Convention and Visitors Bureau;
WHEREAS, Landlord was unable to achieve said agreement in writing
before August 31, said relocation agreement has been secured in written form as
of September 14, 1998;
NOW THEREFORE, ▇▇▇▇▇▇ Greetings, Inc., Tenant, does hereby waive any
and all rights it may have or had within paragraph 1(c) to terminate the lease
agreement as of this date; and the lease shall remain in full force and effect
as originally intended. Landlord's obligations regarding the retrofitting of
the Retail Level shall remain as stated in Paragraph 1(c).
The undersigned have set their hand and deed this 16th day of
September, 1998.
LANDLORD:
Witness: CPX-Rivercenter Two Limited Partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
TENANT:
Witness: ▇▇▇▇▇▇ Greetings, Inc.
By: /s/ ▇. ▇▇▇▇▇▇
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REV. 8/11/98
LEASE AGREEMENT
Between
CPX-RIVERCENTER TWO LIMITED PARTNERSHIP
LANDLORD
and
▇▇▇▇▇▇ GREETINGS, INC.
TENANT
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TABLE OF CONTENTS
1. PREMISES
2. TERM
3. CONDITION OF AND IMPROVEMENTS TO LEASED PREMISES
4. OCCUPANCY PRIOR TO TERM
5. SECURITY DEPOSIT
6. BASE RENT
7. ESCALATION OF BASE RENT
8. ADDITIONAL RENT ADJUSTMENT AND EXPENSE STOP
9. SERVICES AND UTILITIES
10. USE OF LEASED PREMISES
11. PARKING
12. CONTINUANCE OF OCCUPANCY
13. REPAIRS
14. ALTERATIONS
15. FIXTURES AND UNAUTHORIZED USE OF PREMISES
16. WARRANTY OF QUIET ENJOYMENT
17. INTERRUPTION OF SERVICE
18. RIGHTS RESERVED BY LANDLORD
19. FIRE OR OTHER CASUALTY
20. INSURANCE
21. INDEMNIFICATION
22. BROKER'S COMMISSION
23. SUBORDINATION AND ATTORNMENT
24. ASSIGNMENT AND SUBLETTING
25. EMINENT DOMAIN
26. ESTOPPEL CERTIFICATE
27. DEFAULT; REMEDIES UPON DEFAULT
28. HOLDING OVER
29. REDELIVERY OF PREMISES
30. CUMULATIVE REMEDIES
31. INTEREST ON PAST DUE OBLIGATIONS
32. ATTORNEYS' FEES
33. NOTICES
34. LANDLORD'S LIABILITY
35. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
36. WAIVERS
37. SEVERABILITY
38. RECORDING
39. BINDING EFFECT
40. AUTHORITY
41. CONFLICT
42. GOVERNING LAW; FORUM
43. JOINT AND SEVERAL OBLIGATIONS
44. GUARANTORS
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45. AIR RIGHTS LEASE
46. FINANCIAL STATEMENTS
47. HAZARDOUS SUBSTANCES
48. ADDITIONAL EXHIBITS
EXHIBITS
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A. LEASED PREMISES
B. DEVELOPED PARCEL
C. ALTERATIONS AND IMPROVEMENTS
D. SCHEDULE OF RENT
E. CLEANING, JANITOR AND ROUTINE MAINTENANCE SERVICE
F. RULES AND REGULATIONS
G. PARKING
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LEASE AGREEMENT
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TOWERS OF RIVERCENTER
COVINGTON, KENTUCKY
THIS LEASE AGREEMENT, hereinafter known as the "Lease," entered into
effect this 13th day of August, 1998, between CPX-RiverCenter Two Limited
Partnership, a Kentucky limited partnership, whose principal place of business
is ▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and CPX-RiverCenter
Limited Partnership, a Kentucky limited partnership, whose principal place of
business is ▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter
collectively known as "Landlord," and ▇▇▇▇▇▇ Greetings, Inc., a Delaware
corporation, whose principal place of business is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, hereinafter known as "Tenant."
WITNESSETH:
In consideration of the rent hereafter reserved and the covenants herein
contained, each party to this Lease hereby agrees:
(1) PREMISES:
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(a) Landlord does hereby lease and demise to the Tenant and Tenant
does hereby take and rent from Landlord, the following
premises:
Agreed to be One Hundred forty-eight thousand seven hundred
eighty-two (148,782) rentable square feet of the Plaza Level,
Retail Level, and 3rd, 5th, 6th, 7th, 8th, 9th, 11th and 12th
floor(s) of the Towers of RiverCenter located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. That portion
which is leased to Tenant is designated on the floor plan
attached as Exhibit "A" and is hereinafter known as the
"Leased Premises". The entire building, of which the Leased
Premises form a part, is hereinafter known as the "Building".
The Building and other buildings which comprise RiverCenter,
if any, are situated upon a tract of land hereinafter known as
the "Developed Parcel," which is more particularly described
in Exhibit "B". The Building is also part of the property
demised to Landlord pursuant to an Air Rights Lease, which is
more fully described in Paragraph (45). Use of the Leased
Premises shall include the exclusive right to have, at
Tenant's sole expense, its name mounted on the existing
exterior Pylon in front of the RiverCenter II office building
or in the alternative Landlord shall have the option to
provide at Landlord's expense an equal Pylon for exclusive use
of tenant in front of the Building. Tenant shall also be
entitled to have its name mounted on the south elevation of
the RiverCenter II office building at all times during which
Tenant occupies the Retail Level space. All such signage both
on the monument sign as well as the face of the Building
(RiverCenter II) on the South Retail Level elevation shall be
subject to the review and approval of the Landlord and shall
be required to be in compliance with the City of ▇▇▇▇▇▇▇▇▇
zoning and signage regulations. Landlord agrees that at no
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time during the term of this Lease shall a competitor of
Tenant be permitted to place its name on the monument sign.
(b) Notwithstanding the above, the parties hereto agree that
Tenant shall have until August 31, 1998 to review and
determine its space planning needs and the actual number of
rentable square feet it will initially require and which shall
comprise the Leased Premises. Tenant agrees that it shall
determine such space planning needs and will advise Landlord
of same on or before August 31, 1998. Tenant shall be entitled
to give back one full floor in its entirety to Landlord from
the above described Leased Premises. If Tenant has not advised
Landlord in writing on or before the close of business on
August 31, 1998 of its intent to give back a floor of the
Leased Premises, Tenant shall be deemed to have elected to
retain all of the Leased Premises as first described in
Section 1(a) herein. This Lease shall be amended by separate
written amendment to reflect space given back by Tenant
pursuant to the terms of this Section 1(b). In the event
Tenant elects to give back a floor, such floor shall be the
ninth (9th) floor of the RiverCenter II Office tower.
(c) The obligations of Landlord and Tenant to perform on this
Lease Agreement are expressly contingent upon Landlord
entering into an agreement with the current tenant of the
space on the Retail Level on or before August 31, 1998
providing for the termination of such current Retail Level
lease and/or relocation of such Tenant to other space within
the Towers of RiverCenter on terms and conditions and within a
time frame acceptable to Landlord in its sole discretion.
Notwithstanding the prior sentence, Tenant shall have the
right in the event Landlord is unable to reach an agreement
for the termination or relocation of such current Retail Level
tenant to waive this condition precedent and to proceed with
this Lease Agreement, in which event the Retail Level space
shall be deleted from the Leased Premises and thereafter this
Agreement shall be appropriately amended to reflect such space
deletion. The parties hereto acknowledge and agree that
Landlord shall cause the Retail Level of the Leased Premises
to be retrofitted within ninety (90) days of the date that the
current tenant vacates the Retail Level of the Leased
Premises.
(2) TERM:
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The term of this Lease shall be for ten (10) years and zero (0) months
beginning on the first day of January, 1999 and ending on the last day
of December, 2008, subject however to the terms of Paragraph (3) and
further subject to any of the conditions or covenants of this Lease or
pursuant to law.
(3) CONDITIONS OF AND IMPROVEMENTS TO LEASED PREMISES:
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Immediately upon execution of this Lease, Landlord shall commence any
alterations or improvements to the Leased Premises indicated on Exhibit
"C." Landlord shall proceed diligently with said work and use its best
efforts to complete same by December 31, 1998, if this Lease is fully
executed by August 10, 1998; but, if the alterations or
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improvements are not substantially completed or if the Leased Premises
are not available for occupancy by said date, Tenant shall have no
claim against Landlord due to such delay, excepting only that the term
of this Lease shall not commence until the Leased Premises are deemed
to be available to Tenant (provided, however, that Tenant's failure to
provide final space plans and schedule of Tenant Finishes on or before
the dates set forth on Exhibit "C-1" attached hereto and made a part
hereof shall not be a basis upon which Tenant may rely to extend the
initial commencement date of the term of this Lease Agreement), and the
term shall expire ten (10) years and zero (0) months thereafter. The
Leased Premises shall be deemed to be available to Tenant at the
earlier of the time when:
(a) the alterations or improvements to be made by Landlord are
substantially completed (notwithstanding the necessity of
punch list or minor repairs and adjustments still to be made
by the Landlord and provided that the completion of such minor
punch list items shall not be of a nature which unreasonably
interferes with Tenant's business operations or
notwithstanding the Tenant has not completed installation
and/or connection of its fixtures and/or equipment); or
(b) the Tenant actually occupies the Leased Premises.
Provided the dates for providing plans, specifications and other space
planning and design information as per Paragraph 3 and Exhibit C-1 are
met by Tenant, Landlord agrees to use its best efforts to have the
spaces completed to a point by December 20, 1998 to allow Tenant to
commence installation of its fixtures, built-in furniture, and
equipment. While Landlord is completing final improvements to the
Leased Premises, Tenant shall be permitted to begin moving into
portions of the Leased Premises on a floor by floor basis prior to the
commencement date of this Lease as individual floors are completed.
Immediately after the actual commencement date of this Lease has been
determined, if at variance with Paragraph (2), Landlord and Tenant
shall execute a written instrument fixing the commencement and
termination dates of this Lease.
Notwithstanding the above, in the event the Plaza Level and 3rd, 5th,
6th, 7th, 8th, 9th, 11th and 12th Floors of the Leased Premises are
completed prior to the Retail Level, the term of this Lease shall
commence as to such floors when the alterations and improvements are
substantially completed. In such event, Base Rent and Additional Rent
shall be payable only as to such substantially completed floors.
Thereafter, Landlord shall continue to use its best efforts to complete
the Retail Level of the Leased Premises by March 31, 1999, but in any
event shall not be obligated to complete the Retail Level by December
31, 1998. Base Rent and Additional Rent for the Retail Level shall
commence when the Retail Level is substantially completed.
Tenants taking possession shall be conclusive evidence that Leased
Premises were then in good order and satisfactory condition, except for
the completion of punch list items, if any. Notwithstanding the
foregoing, Landlord shall be responsible at its cost and expense
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to repair latent defects in the improvements to the Leased Premises
reported by Tenant within one (1) year of the commencement date of this
Lease Agreement.
Notwithstanding anything else to the contrary in this Paragraph (3), if
Landlord is not able to complete alterations or improvements to the
Leased Premises due to delays caused by Tenant, its employees, agents
or contractors, then the term of this Lease shall not be delayed, but
shall commence according to Paragraph (2).
(4) OCCUPANCY PRIOR TO TERM:
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To the extent permitted by law, Landlord may allow Tenant to occupy the
Leased Premises prior to the commencement of the term stated in
Paragraph (2). If Tenant occupies the Leased Premises on a day other
than the first day of the month, the Monthly Base Rent provided for in
Paragraph (6) and the Additional Rent provided for in Paragraph (8)
shall be adjusted and prorated so that Tenant shall only pay rent for
the actual number of days in the month. Tenant shall also comply with
all other terms and provisions of this Lease in the same manner as if
the term had, in fact, commenced.
(5) SECURITY DEPOSIT:
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Tenant shall deposit with Landlord upon execution hereof the sum of
______NONE______ Dollars ($0) as security for Tenant's faithful
performance of Tenant's obligations hereunder. If Tenant fails to pay
rent or other charges due hereunder, or otherwise defaults with respect
to any provision of this Lease, Landlord may use, apply or retain all
or any portion of said deposit for the payment of any rent or other
charge in default or for the payment of any other sum to which Landlord
may become obligated by reason of Tenant's default, or to compensate
Landlord for any loss or damage which Landlord may suffer thereby. Said
Security Deposit shall not earn interest thereon for the benefit of
Tenant. No trust relationship is created herein between Landlord and
Tenant with respect to said Security Deposit.
(6) BASE RENT:
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(a) As Annual Base Rent for the use and occupancy of the Leased
Premises during the initial term, Tenant shall pay to Landlord
rent pursuant to the schedule attached as Exhibit "D."
The Annual Base Rent is to be payable in equal monthly
installments, (the "Monthly Base Rent") in advance on the
first day of each and every month during the initial or
extended term of this Lease, except that Tenant shall pay the
first installment of Monthly Base Rent upon the execution of
this Lease.
(b) Tenant agrees upon prior notice from Landlord to Tenant of
Tenant's non-payment and the failure of Tenant to pay such
monthly Base Rent within one (1) business day of Tenant's
receipt of such notice of non-payment to pay as supplemental
base rent for the use of said Leased Premises an amount equal
to ten
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percent (10%) of any Monthly Base Rent payment which is not
received by Landlord within ten (10) days of the date said
Monthly Base Rent is due. Said supplemental base rent shall be
in addition to any other amounts due under this Lease.
(c) Rent shall be mailed by Tenant to Landlord at Landlord's
principal place of business or at such other place as Landlord
may designate in writing. Rent shall be payable promptly
without deduction or setoff or prior demand thereof by
Landlord. All payments shall be in U.S. dollars, in cash or by
check, all checks subject to collection.
(7) ESCALATION OF BASE RENT:
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(a) [Deleted]
(b) As used herein, the term "Lease Year" means the one year
period of time commencing on the first day of the term of this
Lease, and each subsequent anniversary of the first day of the
term of this Lease, and terminating at midnight of the day
preceding the next following anniversary of the first day of
the term of this Lease; provided, however, that a different
Lease Year may be defined in Exhibit "D."
(8) ADDITIONAL RENT:
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(a) For each calendar year or partial calendar year during the
term hereof (or renewal periods, if any), Tenant shall pay to
Landlord, as Additional Rent, its pro rata share of (i) the
Operating Expenses of the Building, and (ii) the Building's
proportionate share of the Operating Expenses incurred for the
maintenance, repair, and cleaning of areas within the
Developed Parcel reasonably related to the operation and
enjoyment of the Building, as hereinafter defined. For
purposes of this Lease, Tenant's pro rata share of the
Operating Expenses is deemed to be fifty-seven and 95/100
percent (57.95%)
(b) At the commencement of this Lease, or prior to or at the
commencement of any calendar year during the term hereof,
Landlord may deliver to Tenant a written estimate of any
Additional Rent (such estimate being hereinafter referred to
as "Estimated Operating Expenses") which may be due hereunder
during the calendar year in which this Lease commences or for
any such succeeding calendar year as the case may be. For each
month, Tenant shall pay 1/12 of the amount of the Estimated
Operating Expenses for that particular calendar year in
addition to the Monthly Base Rent.
(c) Statements showing the actual Operating Expenses of the
Building and the Building's proportionate share of Operating
Expenses incurred for maintenance, repair, and cleaning of
areas within the Developed Parcel reasonably related to the
operation and enjoyment of the Building and Tenant's
proportionate share thereof (hereinafter referred to as
"Statement of Actual Adjustment") shall be delivered by
Landlord to Tenant within a reasonable period of time after
the end of any calendar year in which Estimated Operating
Expenses was paid by Tenant or due Landlord under the
provisions hereof. Within thirty (30) days after the delivery
by Landlord to Tenant of such Statement of Actual Adjustment,
Tenant shall pay to Landlord the amount by which the actual
adjustment exceeds the amount paid by Tenant as Estimated
Operating Expenses during said previous calendar year, or
Landlord shall credit Tenant the amount by which the Estimated
Operating Expenses exceeded the Statement of Actual
Adjustment. Notwithstanding the actual operating expenses
incurred during the year 1999, and notwithstanding any of the
provisions in this Section 8 to the contrary, Landlord agrees
that Tenant shall only be required to pay $4.50 per square
foot during the first year of this Lease. Landlord further
represents and warrants that the Operating Expenses for the
Building shall at all times be held to a level which is at
least seven (7%) per cent below the BOMA published average
annual square foot operating expenses for comparable Class A
office buildings in the Central Business District of
Cincinnati/Northern Kentucky. In the event operating expenses
in any given year exceed such level, Tenant shall not be
required to pay any operating expenses in excess of such
level.
(d) The computations set forth in this Paragraph shall be made on
a calendar year basis except if this Lease commences on a day
other than the first day of a calendar year or terminates on a
day other than the last day of a calendar year, in
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such event the computations shall be made on the basis of the
proportion that the number of days that this Lease was in
effect for such calendar years bears to 365.
(e) For the purposes of this Lease, Operating Expenses shall mean
any and all costs paid or incurred in connection with the
operation, servicing, maintenance and repair of the Building
and the Building's proportionate share of Operating Expenses
incurred for maintenance, repair and cleaning of areas within
the Developed Parcel reasonably related to the operation and
enjoyment of the Building determined on a cash basis, which
shall include, but not be limited to the following:
(i) All real estate taxes, assessments, governmental
levies, county taxes or any other governmental
charge, ordinary or extraordinary, unforeseen as well
as foreseen, of any kind or nature whatsoever which
are or may be assessed or imposed upon the Building
and the Developed Parcel under the laws of the United
States, the State of Kentucky, County of Kenton, or
any political subdivision thereof or by the City of
▇▇▇▇▇▇▇▇▇, as a substitute in whole or in part for
taxes payable or hereinafter imposed on the Building
and the Developed Parcel or resulting from or due to
any change in method of taxation, but excluding any
income, franchise, excise, corporation, estate,
inheritance, succession, capital stock or transfer
tax levied on Landlord to the extent that it is not a
substitute in whole or in part for real estate taxes.
Landlord agrees to reimburse to Tenant its
proportionate share of any portion of any of the
above items rebated or refunded to Landlord. In no
event shall Operating Expenses include interest or
penalties resulting from Landlord's failure to timely
pay any of the taxes or assessments set forth in this
sub-paragraph.
(ii) Compensation provided in the form of wages, salaries
and such other compensation and benefits (including
insurance, welfare, retirement, vacation, holiday,
sick pay and other fringe benefits) as well as any
adjustments thereto for the following classes of
employees, employees of agents, or agents of Landlord
performing services rendered in connection with the
management, operation and maintenance of the Building
and the Developed Parcel;
a. Building Manager;
b. Building department heads and assistants;
c. clerical and accounting staff;
d. elevator operators, including starters and
assistant starters;
e. window cleaners, porters, janitors,
cleaners, dusters, sidewalk shovelers and
miscellaneous handymen;
f. watchmen, gardeners, caretakers and
persons engaged in patrolling and
protecting the Building;
g. engineers, firemen, mechanics, electricians,
plumbers and persons engaged in the
operating and maintenance of the heating,
air
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conditioning, ventilating, plumbing,
electrical and elevator systems of the
Building; and
h. carpenters, plasterers, painters and other
persons engaged in connection with the
management, operating and maintenance of the
Building.
(iii) The uniforms of employees specified in subdivision
(ii) above and the cleaning, pressing and replacement
thereof.
(iv) Payroll taxes, including federal and state
unemployment taxes and social security taxes and any
other such taxes that may be created, payable in
connection with the employment of any of the
employees specified in subdivision (ii) above.
(v) Premiums and other charges incurred by Landlord with
respect to the following insurance (listed below) on
employees specified in subdivision (ii) above, and on
the Building and the Developed Parcel as required by
Paragraph (20), and, if Landlord elects to self
insure (provided that CPX RiverCenter Limited
Partnership and CPX RiverCenter II Limited
Partnership agree that they shall not elect to self
insure for any of the following during any time that
they are the Landlords under this Lease Agreement)
some or all of the risks as would normally be covered
by insurance, an amount deemed by Landlord in its
reasonable discretion to be equal to the amount which
would have been incurred if insurance had been
purchased provided that Landlord shall not accumulate
funds or reserves in any such self insurance funds in
amounts in excess of that required by applicable
governmental regulations:
a. fire; extended coverage, including
windstorm, hail, explosion, riot, rioting
attending a strike, civil commotion,
vehicle and smoke; all risk; flood; and
earthquake;
b. public liability;
c. elevator;
d. boiler damage, water damage, legal
liability, and pilferage on equipment and
materials for the Building and the Developed
Parcel;
e. workmen's compensation for the employees
specified in subdivision (ii) above;
f. health, accident, disability and group life
on employees enumerated in subdivision (ii)
above as therein qualified; and
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g. other insurance which Landlord reasonably
deems necessary for a first class office
building would carry or which the holder of
any mortgage affecting the Building or the
Building and the Developed Parcel might
require to be carried under the terms of
such mortgage (excluding mortgage
insurance).
(vi) Costs, premiums, or penalties incurred for
electricity, steam, gas, water or other utilities or
fuels required in connection with the operation and
maintenance of the Building and the Developed Parcel.
(vii) Water and sewer charges.
(viii) Repairs or maintenance of the Building and the
Developed Parcel and the cost of supplies, tools,
materials and equipment used in connection therewith.
(ix) Replacement of tools and equipment.
(x) Charges of any independent contractor incurred in
connection with operating, maintaining or repairing
the Building and its appurtenances, including
inspection and servicing of elevator, electrical,
plumbing and mechanical equipment; and the furnishing
of cleaning and janitorial services and the cost of
materials, tools, supplies and equipment used in
connection thereof.
(xi) Sales, use and excise taxes on goods and services
purchased or provided by Landlord to properly manage,
operate and maintain the Building and the Developed
Parcel.
(xii) Taxes levied against and paid by Landlord on rents
collected, excepting taxes levied and paid under the
provisions of (i) above.
(xiii) Vaults or tunnel taxes, permits or rentals.
(xiv) License, permit and inspection fees.
(xv) Auditor's fees for public accounting.
(xvi) Legal fees of outside or special counsel retained by
Landlord in connection with proceedings for the
reduction of real estate taxes, labor relations, or
other matters to the extent that the same shall be of
general benefit to all tenants in the Building.
(xvii) Cost of telephone, telegraph, postage, stationery
supplies and other materials required for routine
operation of the Building Manager's office.
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(xviii) Association dues and subscriptions.
(xix) Management fees.
(xx) Restroom keys, security passes, directory strips,
control cards.
(xxi) The cost of operating and owning vehicular shuttle
service for the benefit of the occupants of the
building (such expenses and costs to be shared with
RiverCenter I and RiverCenter II).
(xxii) Amortization of capital improvements which will
improve Building operating efficiencies or which may
be required by governmental authorities, with interest
at the rate of ten percent (10%) per annum on the
unamortized amount.
(xxiii) Such other expenses and costs of any nature
whatsoever, whether or not herein mentioned, which
would be construed as an operating expense by Landlord
in its reasonable discretion and in accordance with
sound real estate accounting practices.
(xxiv) [Deleted]
(xxv) Any amounts (including but not limited to ground rent)
which Landlord, as lessee under the Air Rights Lease,
is required to pay to its lessor.
(f) Notwithstanding anything contained in Subparagraph (e), no
expense incurred for the following shall be included in
Operating Expenses.
(i) Any repairs to the Building including the Leased
Premises where the occurrence causing the damage or
loss necessitating repair is reimbursed by insurance
carried by Landlord.
(ii) Leasing or procuring new tenants including leasing
commissions paid to agents of Landlord or other
brokers.
(iii) Renovating space for new tenants or in renovating
space vacated by any tenant.
(iv) Income, capital stock, estate or inheritance taxes
payable by Landlord, provided the same shall not have
been levied as a substitute for or supplement to real
property taxes.
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(v) Cost of utilities charged to tenants and any portion
of Landlord's payroll, material and contract costs of
other services charged to tenants.
(vi) Costs incurred by Landlord for Tenant's alterations.
(vii) Cost of painting and decorating the premises of other
tenants.
(viii) Depreciation of the Building.
(ix) Cost of capital improvements (except as set forth in
(xxii) above).
(x) Interest on debt or amortization payments on any
mortgage or mortgages.
(xi) Any cost or expense of any nature whatsoever which
Landlord shall incur in connection with the operation
of the Building which is specifically reimbursed to
the Landlord from any source, charged directly to the
tenant on whose behalf it is incurred (whether or not
the same shall finally be paid), or for which Landlord
is otherwise compensated or recoups such expense by
way of setoff, reduction of recovery allowed, or
otherwise.
(g) If at any time during the term of this Lease the occupancy of
the Building is less than one hundred percent (100%) of its
capacity, then for the purpose of this Paragraph, the
Operating Expenses per rentable square foot of rentable floor
space shall nevertheless be computed as if the Building were
one hundred percent (100%) occupied.
(h) The obligations of Landlord and Tenant under this Paragraph
shall survive the expiration or other termination of this
Lease.
(i) All costs and expenses which Tenant assumes or agrees to pay
to Landlord pursuant to this Lease shall be deemed additional
rent, and, in the event of nonpayment, Landlord shall have all
the rights and remedies herein provided for in case of
nonpayment of rent.
(j) In no event will the Annual Base Rent be reduced below the
amount in Paragraph (6) and (7) as a result of any adjustments
pursuant to this Paragraph.
(k) Tenant is hereby granted the right within sixty (60) days of
receipt of the Annual Operating Expense Reconciliation, to
audit the books and records of the Landlord relating to
Operating Expenses, and such audit shall be done by a
qualified professional auditor selected by Tenant at the
Landlord's office where books and records are maintained or at
such other place as Landlord may reasonably designate. The
Landlord shall pay the reasonable and customary cost of any
audit which reveals a discrepancy in excess of five (5%)
percent, and the Operating Expenses paid by Tenant shall be
adjusted accordingly.
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(9) SERVICES AND UTILITIES:
-----------------------
(a) The Landlord hereby covenants and agrees to maintain in good
condition and repair the foundation, roof, elevators, exterior
masonry walls of the Building and all common areas in the
Building and on the Developed Parcel, as well as sewer, water
and other pipes and conduits located beyond the boundaries of
the Leased Premises; and to make all repairs becoming
necessary by reason of any structural defects in the Building;
provided, however, that Landlord shall not be required to make
any repairs necessitated by reason of any act or omission of
Tenant, its officers, agents, employees, visitors, or anyone
claiming under Tenant, or caused by any alteration, addition,
or improvement made by Tenant or anyone claiming under Tenant,
and that if Landlord does make any such repairs Tenant shall
promptly, upon demand, reimburse to Landlord the cost thereof.
(b) The Landlord shall maintain, operate and repair heating,
ventilation, air conditioning, plumbing and sprinkler systems
(hereinafter known as the "Systems") and shall provide:
(i) Heating, ventilating and air conditioning in the
Leased Premises at the temperature required in
Landlord's judgment for a comfortable occupancy of
the Leased Premises during normal business hours
(that is, daytime hours of 8:00 a.m. through 6:00
p.m. weekdays and 8:00 a.m. to 1:00 p.m. on
Saturdays, excluding Sunday and Holidays). Because of
System requirements, if Tenant shall require air
conditioning or heating service at any other time,
Landlord shall furnish such "after hours" air
conditioning or heating service upon reasonable
advance notice from Tenant and Tenant shall pay
Landlord's actual cost. A minimum charge for two (2)
hours of "after hours" service will be made for any
such service.
Use of the Leased Premises (or any part thereof) in a
manner exceeding the designed conditions therefor for
air conditioning services, or rearrangement of
partitioning which interferes with normal operation
of the Systems, or use of computer or data processing
machines may require changes in the System service
for the Leased Premises.
Tenant acknowledges and agrees that it shall cause a
separate ventilating and air conditioning system to
be installed to serve as the primary system to
provide ventilation, cooling and air conditioning
service on those floor(s) of the Leased Premises
which house Tenant's main data processing and
computer systems. Such ventilation, cooling and air
conditioning system shall be installed, maintained
and operated at Tenant's sole expense and shall be
connected to a separate electric meter with such
electric consumption being invoiced and paid directly
to Tenant.
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Such changes so occasioned for the Leased Premises
shall be made by Tenant at its expense but subject to
Landlord's approval. Tenant agrees to cooperate
through the use of lowered or closed venetian blinds
or other window coverings whenever required for
proper operation of the System.
(ii) Cold water for drinks, lavatory and toilet purposes
and hot water for lavatory purposes.
(c) The Landlord shall provide electricity consumed in the Leased
Premises for normal lighting, air conditioning and operation
of the Tenant's normal office equipment only. However,
Landlord shall not be liable in any way to Tenant for any
failure or default in supply or character of electric current
furnished to the Leased Premises unless due to the negligence
and/or willful misconduct of Landlord, its contractors or
employees. Landlord shall supply the Leased Premises with
required lamps, bulbs, ballast, starters, and replacements
thereof in the ordinary course of business, with Tenant's
cooperation, through proper communication of need for said
replacement items. Tenant's use of electric current in the
Leased Premises shall not at any time exceed the capability of
the electrical conductors and equipment in or otherwise
servicing the Leased Premises. Tenant shall not make or
perform or permit any alterations to wiring, installations,
lighting fixtures or other electrical facilities in any manner
without prior written consent of Landlord. In each instance,
should Landlord grant any such consent for additional risers
or other equipment required thereof, such equipment shall be
installed by Landlord or Landlord's approved agent and the
cost thereof shall be paid by Tenant upon Landlord's demand.
As a condition to grant any such consent, Landlord may require
that Tenant agree to an increase in the Additional Rent
payable hereunder by an amount which will reflect the value to
Tenant of the additional electrical current to be made
available to the Tenant. Such calculation, if required, may be
determined by a reputable independent electrical engineer to
be selected by Landlord with the cost of said engineer to be
paid equally by both parties.
(d) Tenant will not install or operate in the Leased Premises any
heavy duty electrical equipment or machinery, without first
obtaining prior written consent of Landlord. Landlord may
require, as a condition to its consent for the installation of
such equipment or machinery, payment by Tenant of additional
rent for excess consumption of electricity that may be
occasioned by the operation of said equipment or machinery.
Landlord may make periodic inspections of the Leased Premises
at reasonable times to determine that Tenant's electrically
operated equipment and machinery complies with the provisions
of this section and to review for excessive heat generation.
Any individual piece of electrically operated machinery or equipment
that draws in excess of two (2) kilowatts shall be deemed as requiring
excess electrical current. The total average consumption of electricity
in excess of five (5) ▇▇▇▇▇ per square foot for the Leased Premises
shall also be deemed excessive.
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Landlord may require that one or more separate meters be installed to
record the consumption or use of electricity, or shall have the right
to cause a reputable independent electrical engineer to survey and
determine the quantity of electricity consumed by such excessive use.
The cost of any such survey or meters and of installation, maintenance
and repair thereof shall be paid for by Tenant. Tenant agrees to pay
Landlord (or the utility company, if direct service is provided by the
utility company), promptly upon demand therefor, for all such electric
consumption and demand as shown by said meters, or a flat monthly
charge determined by the survey, as applicable, at the rates charged
for such service by the local public utility company. If Tenant's cost
of electricity based on meter readings is to be paid to Landlord,
Tenant shall pay a service charge related thereto.
The parties hereto agree that Tenant will be installing and operating
its information technology and imaging processing equipment on the
third floor of the Leased Premises and that the electrical wiring and
outlets required to power such equipment and systems and the cooling
system to be installed by Tenant for such third floor space shall be
connected to a separate meter and invoiced directly to Tenant.
Consequently, such electrical consumption related directly to such
equipment and cooling system shall not be taken into consideration by
Landlord in monitoring excess electrical current use by Tenant. No
other electrical wiring on the third floor of the Leased Premises shall
be connected to such special meter.
(e) Landlord shall not be liable for its failure to maintain
comfortable atmospheric conditions in all or any portion of
the Leased Premises due to heat generated by any equipment or
machinery installed by Tenant (with or without Landlord's
consent) that exceeds generally accepted engineering design
practices for normal office purposes. If Tenant desires
additional cooling to offset excessive heat generated by such
equipment or machinery, Tenant shall pay for auxiliary cooling
equipment and its operating costs including without limitation
electricity, gas, oil and water, and/or pay for excess
electrical consumption by the existing cooling system, as
appropriate.
(f) The Landlord shall also provide the cleaning services detailed
on Exhibit "E."
(10) USE OF LEASED PREMISES:
-----------------------
(a) Tenant shall use and occupy the Leased Premises for general
business offices and no other purpose, except that Tenant
shall be entitled to use and occupy the Retail Level and Plaza
Level of the Leased Premises for retail and showroom purposes.
(b) Tenant, at its expense, shall comply with all Federal, State,
County and City laws, ordinances, rules and regulations
affecting the use or occupancy of the Leased Premises by
Tenant or the business at any time transacted by Tenant;
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(c) As of the commencement date of this Lease, the Leased Premises
shall be in compliance with all applicable laws, ordinances,
rules and regulations of governmental authorities.
(d) Tenant shall comply with all the Rules and Regulations which
have been adopted by Landlord, attached as Exhibit "F," (and
such reasonable changes or additions thereto) for the
protection and welfare of the Building, the Developed Parcel
and other tenants. Landlord shall enforce such rules and
regulations in a uniform and non-discriminatory manner as to
all tenants in the building.
(e) Tenant shall also comply with all the terms and conditions
contained in the Air Rights Lease.
(11) PARKING:
-------
Parking will be provided to Tenant in accordance with Exhibit "G"
attached hereto.
(12) CONTINUANCE OF OCCUPANCY:
------------------------
It is further agreed by Landlord and Tenant that Tenant shall
physically occupy the Leased Premises during the entire original term
and renewal term, if any, inasmuch as Tenant's continued occupancy of
the Leased Premises and the regular conduct of its business therein are
of utmost importance to the Landlord in the renewal of other leases in
the Building, in the renting of vacant space to other tenants and in
the maintenance of the character and quality of the Building. Thus
should Tenant move out of the Leased Premises prior to its lease
expiration without the consent of Landlord, the Tenant shall have
breached its lease obligation herein and in such case Landlord may
exercise any and all remedies for default provided by this Lease or by
law.
(13) REPAIRS:
-------
(a) Tenant shall at its expense keep in good order, condition, and
repair the interior of the Leased Premises, excluding such
items as Building HVAC equipment, structural systems and
lighting. However, Tenant shall pay for any and all damage
caused by negligence of Tenant, its officers, agents,
employees and guests. Tenant shall not be obligated to pay for
any damage caused to the Leased Premises caused by the
negligence of Landlord, its officers, agents, employees and
guests. Landlord shall keep in good order, condition, and
repair the exterior and common areas of the Building.
(b) If Tenant fails to maintain and repair the Leased Premises as
required by Subparagraph (13)(a), Landlord may, on ten (10)
days prior notice (except that no notice shall be required in
case of emergency), enter the Leased Premises and perform such
maintenance or repair on behalf of Tenant. In such case,
Tenant shall reimburse Landlord for all costs incurred in
performing such maintenance or repair immediately upon demand.
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(14) ALTERATIONS:
-----------
No alterations, modifications, additions or installations to the Leased
Premises costing in excess of two thousand five hundred dollars
($2,500.00) per occurrence to complete shall be made unless the
Landlord shall first have given written approval of the plans and
specifications thereof (provided, however, that Tenant shall not make
any modifications to the location of interior walls without Landlord's
prior consent), and shall have been protected, to the Landlord's
satisfaction, against any cost or damage incidental thereto. Prior to
any approved construction, Tenant shall first have secured all
necessary building and other permits. Tenant agrees to make such
alterations, modifications, additions or installations to the Leased
Premises as may be required by building, OSHA, or other applicable
regulations or local codes in the jurisdiction in which the Leased
Premises are located. No alterations, modifications, additions or
installations shall be made which in any way conflict with the
requirements of Landlord's insurance company. All such alterations,
modifications, additions, or installations, when made, shall become,
unless the Landlord elects otherwise as provided in Paragraph (16)
hereof, the property of the Landlord and shall remain upon and be
surrendered with said Leased Premises as a part thereof at the end of
the term of this Lease.
(15) FIXTURES AND UNAUTHORIZED USE OF PREMISES:
------------------------------------------
Tenant shall not without Landlord's prior written consent attach any
fixtures in or to the Leased Premises or change, alter, or make
additions to the Leased Premises nor permit any annoying sound device,
install any additional locks, overload any floor, or deface the Leased
Premises. Any attached fixtures or any alterations, additions, or
improvements made or attached by Tenant shall on the expiration or
termination of this Lease, if requested by Landlord, be promptly
removed at Tenant's expense, and the Leased Premises restored by Tenant
at its expense to its original condition, ordinary wear and tear
excepted. Any such fixture, alteration, addition and/or improvement not
requested to be moved shall remain on the Leased Premises and shall
become and remain the property of Landlord. All Tenant's fixtures,
installations, and personal property not removed from the Leased
Premises upon expiration or termination and not required by Landlord to
have been removed as provided in this Paragraph shall be conclusively
presumed to have been abandoned by Tenant, and title thereto shall pass
to Landlord under this Lease as by a ▇▇▇▇ of sale.
(16) WARRANTY OF QUIET ENJOYMENT:
---------------------------
Tenant, upon paying the rents and keeping and performing the covenants
of this Lease to be performed by Tenant, shall peacefully and quietly
hold, occupy, and enjoy said Leased Premises during said term or any
renewal thereof.
(17) INTERRUPTION OF SERVICE:
-----------------------
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Landlord does not warrant that any services to be provided by Landlord
will be free from interruption due to causes beyond Landlord's
reasonable control. Temporary interruption of services or unavoidable
delay in the making of repairs shall not be deemed an eviction or
disturbance of Tenant's use and possession nor render Landlord liable
to Tenant for damage by abatement of rent or otherwise nor relieve
Tenant from performance of its obligations under this Lease.
(18) RIGHTS RESERVED BY LANDLORD:
---------------------------
Landlord shall have the following rights exercisable without notice and
without liability to Tenant:
(a) To change the name or street address of the Building;
(b) To have pass keys to the Leased Premises;
(c) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably
determine to identify themselves to a watchman by registration
or otherwise, and to establish their right to enter or leave,
and to exclude or expel any peddler, solicitor or beggar at
any time from the Developed Parcel or the Building;
(d) To approve the weight, size and location of safes, computers,
and other heavy articles or equipment in and about the Leased
Premises and to require all such items and other office
furniture and equipment to be moved in and out of the Building
only at such times and in such manner as Landlord shall direct
and in all events at Tenant's sole risk and responsibility;
(e) Landlord may, at its expense, relocate those portions of the
Tenant's Leased Premises upon which Tenant occupies only
partial floors within the Building in order to facilitate
leasing of the Building and/or construction and/or alterations
of the Building, provided, however, that Landlord shall under
no circumstances be entitled to relocate less than all of
Tenant's space on any partial floor occupied by Tenant, and
such relocation shall be within the same building as the space
being relocated, and further provided that Landlord shall
under no circumstance be entitled to relocate Tenant for any
portion or partial space occupied by Tenant as part of the
Leased Premises on the Retail Level or Plaza Level of the
Leased Premises;
(f) Landlord or its agents shall have the right upon at least
twenty-four (24) hours prior notice to Tenant to enter the
Leased Premises at reasonable times during normal business
hours for the purpose of inspecting the same, showing the same
to prospective purchasers, lenders, or tenants, making such
alterations, repairs, improvements or additions to the Leased
Premises as Landlord may deem necessary or desirable. Landlord
may at any time place on or about the Leased Premises any
ordinary "For Sale" signs; and,
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(g) Within six (6) months prior to the date of the expiration of
this Lease, Landlord or its agents shall have the right upon
at least twenty-four (24) hours prior notice to Tenant to
enter the Leased Premises at all reasonable times during
normal business hours for the purpose of exhibiting the Leased
Premises to prospective tenants.
(h) At any time after the completion of the Building, Landlord
shall have the right to change the arrangement or location of
such of the following as are not contained within the Leased
Premises or any part thereof: entrances, signs, passageways,
doors and doorways, corridors, stairs, toilets and other like
public service portions of the Building; providing, however,
that in no event shall Landlord make any change which shall
diminish the area of the Leased Premises, make any change
which shall interfere with the access to the Leased Premises
from and through the Building, or change the character of the
Building from that of a first-class office building.
(19) FIRE OR OTHER CASUALTY:
-----------------------
Should the Leased Premises be damaged or destroyed by any cause and
such damage or destruction be of such a nature that it may be repaired
or restored within a period of one hundred twenty (120) days after the
occurrence, then this Lease shall not terminate, but it shall be the
obligation of Landlord to repair or restore the Leased Premises as
nearly as possible to its condition prior to such damage or
destruction, and the Landlord shall proceed promptly to make such
repairs or restoration; provided, however, that such repairs or
restoration can be made by Landlord for an amount not in excess of the
amount recovered by Landlord on the fire, extended coverage and all
risk insurance. There shall be an equitable abatement of rent during
the period that the Leased Premises may be wholly or partially
unavailable for use by Tenant for the operation of its business.
Should the damage or destruction be of a character that will not permit
repair or restoration of the Leased Premises within the one hundred
twenty (120) days after the occurrence thereof, or if the cost of such
repair or restoration exceeds Landlord's insurance recovery, Landlord
shall give Tenant written notice within forty-five (45) days of such
damage or destruction whether such Leased Premises can or will be
rebuilt within such one hundred and twenty (120) day period, and
thereafter, either Landlord or Tenant shall have the privilege of
canceling the unexpired term of this Lease upon giving written notice
to the other within fifteen (15) days after delivery of such notice by
Landlord to Tenant.
(20) INSURANCE:
----------
(a) Landlord shall keep the Building insured against loss by fire
or other casualty with both extended coverage and all risk
coverage in an amount reasonably determined by the Landlord.
In the event that the Landlord's cost of premiums on such
insurance increases due to the hazardous nature of the use and
occupancy by
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Tenant of the Leased Premises, then the entire increase in
such insurance cost shall be paid by Tenant in a lump sum upon
receipt of invoice from Landlord.
(b) Landlord shall maintain public liability insurance for the
common areas and the exterior of the Building, as well as the
sidewalks and the parking lot on the Developed Parcel with
limits of (a) at least One Million Dollars ($1,000,000.00) for
bodily injury, including death and property damage, and (b) at
least One Million Dollars ($1,000,000.00) aggregate.
(c) Tenant shall, at all times during the term hereof, at its own
expense, carry and keep in full force and effect in companies
satisfactory to Landlord, public liability insurance in form
reasonably satisfactory to Landlord, with limits of (a) at
least ONE MILLION DOLLARS ($1,000,000.00) for bodily injury,
including death, and property damage, and (b) at least ONE
MILLION DOLLARS ($1,000,000.00) aggregate. Landlord may
increase the above limits to such greater amounts of insurance
coverage as Landlord may from time to time reasonably require.
Tenant shall also carry Worker's Compensation insurance for
all of Tenant's employees working in the Leased Premises, in
an amount sufficient to comply with applicable laws or
regulations. Tenant may elect to self insure with respect to
the worker's compensation insurance requirements herein.
(d) All property in the Leased Premises, in the Building or on the
Developed Parcel, belonging to Tenant, its agents, employees,
or invitees or to any other person, shall be there at the risk
of Tenant or such other person only, and Landlord shall not be
liable for damage thereto or loss thereof, except for damage
or loss arising out of theft or misappropriation occasioned by
Landlord or its employees. In furtherance of this provision,
Tenant shall, during the entire term of this Lease, keep in
full force and effect insurance upon all property situated in
the Leased Premises owned by Tenant or for which Tenant is
legally liable and also upon fixtures and improvements
installed in the Leased Premises by or on behalf of Tenant.
Such policies shall be for an amount of not less than one
hundred percent (100%) of the full replacement cost with
protection against (at a minimum) fire or other casualty, with
both extended coverage and all risk coverage.
(e) All public liability insurance policies maintained by Tenant
shall name the Landlord as an additional party insured, and
the Tenant as a named party insured and shall contain a
provision that the same may not be canceled or changed without
giving to the Landlord at least thirty (30) days written
notice prior to expiration or cancellation of any such policy.
Tenant shall furnish to Landlord a certificate of insurance
for each insurance policy, and if requested by Landlord, a
copy of such policy(ies) of insurance. Furthermore, renewals
of such insurance policies shall be presented to Landlord at
least thirty (30) days before the expiration of such insurance
coverages.
(f) Landlord and Tenant, for themselves and their respective
insurers, agree to and do hereby release each other of and
from any and all claims, demands, actions and
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causes of action that each may have or claim to have against
the other for loss or damage to the property of the other,
both real and personal, caused by or resulting from casualties
insured against, or, if there is no insurance, caused by or
resulting from casualties customarily insurable under ordinary
fire insurance policies with both extended and all risk
coverage, notwithstanding that any such loss or damage may be
due to or result from the negligence of either of the parties
hereto or their respective employees or agents.
(g) Landlord, its agents and employees shall not be liable for
losses or damages as a result of any injury to any person or
damage to property (except for damage to the Building itself)
sustained by Tenant, by Tenant's agents or employees, by any
occupant of the Leased Premises, the Building or the Developed
Parcel, or by any other person, occurring or resulting
directly or indirectly from any existing or future condition,
defect, matter, or thing in the Leased Premises, in the
Building or on the Developed Parcel or from equipment or
appurtenance therein or from accident or from any occurrence,
act, or from negligence or omission of any tenant, occupant or
any other person; but nothing in this Subparagraph (g) shall
be deemed to relieve Landlord from liability for damages for
bodily injuries to any person caused by or resulting from the
negligence of Landlord, its agents or employees.
(21) INDEMNIFICATION:
---------------
(a) Tenant shall indemnify and hold Landlord (and any mortgagee of
Landlord) harmless from and against all claims, actions,
lawsuits, damages, liabilities, expenses and costs (including
reasonable attorneys' fees) for any loss of life, bodily
injury or property damage to the extent caused by or resulting
from: 1) the use or occupancy of the Leased Premises, the
Building, or the Developed Parcel by the Tenant, its officers,
agents, employees, invitees, guests, assignees or subtenants;
2) any occurrence within the Leased Premises; 3) a breach of
this Lease by the Tenant; or 4) any negligent act or omission
or misconduct on the part of Tenant, its officers, agents,
employees, invitees, guests, assignees or subtenants. Nothing
in this Paragraph shall require Tenant to indemnify Landlord
for damage to the Building, to the extent released in
Paragraph (20)(f) of this Lease.
(b) Landlord shall indemnify and hold Tenant harmless from and
against all claims, actions, law suits, damages, liabilities,
expenses and costs for any loss of life, bodily injury or
property damage to the extent caused by or resulting from: (i)
any occurrence arising out of the negligent actions of
Landlord, its agents or employees, except to the extent
resulting from the negligent acts, omissions, or misconduct of
Tenant, its agents, employees, invitees or guests; or (ii) a
breach of this Lease by the Landlord, except that Landlord
shall under no circumstances be liable to Tenant for damage to
Tenant's personal property located within the Lease Premises.
Nothing in this paragraph shall require Landlord to indemnify
Tenant
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for damage to the Building or Leased Premises, to the extent
released in paragraph 20(f) of this Lease.
(22) BROKER'S COMMISSION:
--------------------
Tenant represents that it has dealt directly with Staubach Company,
Inc. (and only with), (as broker) in connection with this Lease and
that no other broker negotiated or participated in the negotiations of
this Lease or submitted or showed the Leased Premises to it or is
entitled to any commission in connection therewith. Landlord shall be
liable for the payment of any commission due to the broker named in
this Paragraph; however, if there is a violation of the representation
herein made by Tenant, and any other broker claims a commission from
Landlord, Tenant shall indemnify and hold the Landlord harmless from
such claim.
(23) SUBORDINATION AND ATTORNMENT:
-----------------------------
(a) The Tenant accepts this Lease subject and subordinate to the
Air Rights Lease, any ground lease, mortgage, deed of trust,
or any other hypothecation or security now or hereafter placed
upon the Developed Parcel and to any and all advances made on
the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. If any
mortgagee, shall elect to have this Lease prior to the lien of
its mortgage, and shall give written notice thereof to Tenant,
this Lease shall be deemed prior to such mortgage, whether
this Lease is dated prior or subsequent to the date of said
mortgage, or the date of recording thereof.
(b) Although the provisions of Paragraph (23)(a) shall be self
operative, Tenant agrees, upon request of Landlord or
Landlord's lender, to execute any documents required to
effectuate any attornment, a subordination or to make this
Lease prior to the lien of any mortgage. Tenant's failure to
execute such documents within 10 days after written demand
shall constitute a material default by Tenant hereunder.
(c) If by reason of a default under the mortgage upon the
Developed Parcel, the interest of Landlord in the Developed
Parcel is terminated, the Tenant will attorn to the holder of
such mortgage (or to any person or entity to which the
Developed Parcel is conveyed by such holder) and will
recognize such holder, person or entity as Tenant's landlord
under this Lease. Tenant agrees to execute and deliver, at any
time and from time to time, upon the request of Landlord or of
the Landlord's lender any instrument which may be necessary or
appropriate to evidence such attornment. Tenant further waives
the provision of any statute or rule of law now or hereafter
in effect which may give or purport to give Tenant any right
of election to terminate this Lease or to surrender possession
of the Leased Premises in the event any proceeding is brought
by Landlord's lender to terminate the interest of the Landlord
in the Developed Parcel, and agrees that this Lease shall not
be affected in any way whatsoever by any such proceeding.
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(24) ASSIGNMENT AND SUBLETTING:
--------------------------
Tenant shall not assign, mortgage or encumber this Lease nor sublet or
permit the Leased Premises or any part thereof to be used by others,
without the prior written consent of Landlord in each instance. The
consent by Landlord to an assignment or subletting shall not be
construed to relieve Tenant from obtaining the consent of the Landlord
to any further assignment or subletting. The consent by Landlord will
not be given unless: a) the subtenant or assignee assumes the Tenant's
obligations under this Lease; and b) Tenant remains liable for all its
obligations under this Lease, including extensions or renewals provided
for herein. Nor will consent be given if Tenant is in default under
this Lease. Tenant shall notify Landlord of the name of each proposed
assignee or subtenant and shall provide information to Landlord
pursuant to the financial standing of the proposed assignee or
subtenant and shall offer to surrender such space to Landlord.
In no event shall proposed subtenant or assignee be an existing tenant
of the Building or its subtenant or assignee. In no event shall the
proposed subtenant or assignee be a person or entity with whom Landlord
or its agent is negotiating and to or from whom Landlord, or its agent,
has given or received any written or oral proposal within the past one
hundred twenty (120) days regarding a lease of space in the Building.
Landlord reserves the right to require as additional rent, one-half of
any subtenant or assignee rent which is in excess of the base rent and
additional rent then being paid by Tenant pursuant to this Lease, and
any other profit or gain realized by Tenant from such assignment or
subletting. All sums payable hereunder by Tenant shall be paid as
additional rent upon receipt by Tenant or upon request by Landlord.
(25) EMINENT DOMAIN:
---------------
Tenant agrees that if the Leased Premises, or any part thereof, shall
be taken or condemned for public or quasi-public use or purpose by any
competent authority, Tenant shall have no claim against Landlord and
shall not have any claim or right to any portion of the amount that may
be awarded as damages or paid as a result of any such condemnation,
whether such amount be awarded for diminution in value to the leasehold
or to the fee. It is agreed that the full amount of such award, if any,
made by the taking authorities shall be paid to and retained by
Landlord, free of any claim by Tenant to any portion thereof, and all
rights of Tenant to damages therefor, if any, are hereby assigned by
Tenant to Landlord. In the event that all or any part of the Leased
Premises shall be taken or condemned by any governmental authority, the
effect of which taking is such that the Leased Premises is rendered
unusable by Tenant, in Tenant's reasonable discretion, for the
operation of its normal business within the Leased Premises, then the
term of this Lease shall cease and terminate from the date on which the
Tenant is required, by such taking authority, to surrender possession
of said Leased Premises and the Tenant shall not have nor make any
claim against Landlord for the value of any unexpired term of this
Lease. In the event that a portion of the Leased Premises shall be
taken or condemned by any governmental authority, which taking does not
render the Leased Premises unusable by Tenant, in Tenant's reasonable
discretion, then this Lease
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shall continue in full force and effect, and rent shall ▇▇▇▇▇ in an
amount which bears the same ratio to the Annual Base Rent as the value
of the floor space taken bears to the value of the total floor space of
the Leased Premises. All rentals and other sums payable by Tenant
hereunder shall be adjusted to the date on which Tenant is required, by
the taking authority, to surrender possession of the Leased Premises or
portion of the Leased Premises so taken. Nothing herein shall prevent
Tenant from seeking a separate award for the taking of any fixtures or
other property within the Leased Premises owned by Tenant.
(26) ESTOPPEL CERTIFICATE:
--------------------
(a) Tenant shall at any time upon not less than ten (10) business
days' prior written notice from Landlord execute, acknowledge
and deliver to Landlord a statement in writing: (i) certifying
that this Lease is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and
certifying that this Lease as so modified, is in full force
and effect) and the date to which rent and other charges are
paid in advance, if any, and (ii) acknowledging that there are
no uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed. Such statement
shall be in a form as Landlord, purchaser or mortgagee shall
require. Any such statement may be conclusively relied upon by
any prospective purchaser or mortgagee of the Leased Premises,
or the lessor under the Air Rights Lease.
(b) Tenant's failure to deliver such statement within one (1)
business day after receipt of written notice from Landlord of
Tenant's failure to provide such statement within such time
shall be a material default under this Lease or, at Landlord's
option, Tenant's failure to furnish such statement within one
(1) business day after receipt of written notice from Landlord
of Tenant's failure to provide such statement within such
time, shall be conclusive upon Tenant: (i) that this Lease is
in full force and effect, without modification except as may
be represented by Landlord, (ii) that there are no uncured
defaults in Landlord's performance, and (iii) that not more
than one month's rent has been paid in advance or such failure
may be considered by Landlord as a default by Tenant under
this Lease.
(27) DEFAULT; REMEDIES UPON DEFAULT:
------------------------------
(a) Each of the following shall be a Default hereunder: (i) the
failure of Tenant to pay when due any installment of Monthly
Base Rent, Additional Rent or any other charge hereunder
within ten (10) days after the receipt of written notice from
Landlord of such failure to pay; (ii) the failure of Tenant to
timely or fully perform or observe any other provision of this
Lease and the continuation of such failure for twenty (20)
days after Landlord gives Tenant notice thereof, provided that
is such failure is not reasonably susceptible to being cured
within such twenty (20) day period and provided Tenant
promptly commences and continuously and
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diligently pursues such cure, Tenant shall have such
additional time, not to exceed sixty (60) days, as is
reasonably required to effect such cure; (iii) the breach by
Tenant of any representation or warranty in this Lease; (iv)
the filing by or against Tenant or any guarantor hereof of any
petition in bankruptcy; (v) the filing of any voluntary or
involuntary proceeding instituted to declare Tenant or any
guarantor hereof insolvent or unable to pay its debts as they
mature; (vi) the making by Tenant or any guarantor hereof of
an assignment for the benefit of its creditors; or (vii) the
appointment of a trustee or receiver for Tenant or any
guarantor hereof or for the major part of Tenant's or
guarantor's property.
(b) Upon and after a Default, Landlord shall have the following
remedies in addition to all other remedies allowed at law or
in equity or elsewhere in this Lease, all of which shall be
cumulative and not in the alternative and any or all of which
may be exercised successively or concurrently and at such time
or times as Landlord elects, except as provided to the
contrary below:
(i) Landlord shall have the right to terminate this Lease
or to terminate Tenant's right to possession of the
Leased Premises without terminating this Lease, but
in either event Tenant shall surrender possession of
and vacate the Leased Premises immediately upon
Landlord's notice to Tenant of either such
termination and Landlord shall have the further right
to enter the Leased Premises with or without process
of law, retake possession of the Leased Premises and
expel or remove Tenant (or anyone occupying the
Leased Premises) and its effects therefrom without
being liable or subject to prosecution or any claim
for damages therefor. In such event, Landlord shall
retain possession of the Leased Premises and shall
use reasonable efforts to relet the Leased Premises
or any part thereof as agent for Tenant for such rent
and other consideration, for such time and upon such
terms and conditions as Landlord determines
appropriate. Landlord shall have no duty to accept
any tenant offered by Tenant or to observe any
instructions given by Tenant concerning such
reletting. If the consideration collected by Landlord
during the remainder of the term by reason of such
reletting exceeds the Annual Base Rent, Additional
Rent and other charges hereunder for the remainder of
the term, Landlord shall pay such excess to Tenant
within sixty (60) days after the expiration of the
term.
(ii) Landlord shall have the right to terminate Tenant's
right to possession of the Leased Premises without
terminating this Lease and to recover from Tenant
within ten (10) days after Landlord's demand a sum
equal to the entire amount of the Annual Base Rent,
Additional Rent and other charges hereunder for the
remainder of the Term. If, due to escalation
mechanisms in this Lease or other factors, the
balance of the Annual Base Rent, Additional Rent and
other charges due for the remainder of the Lease term
cannot be precisely determined as of the date of such
termination, Tenant shall pay the amount Landlord
reasonably estimates would result from
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such escalation mechanisms and other factors. Upon
the expiration of the term or at such earlier time as
may be practicable, Landlord shall determine the
actual Annual Base Rent, Additional Rent and other
charges hereunder and Landlord or Tenant shall pay to
the other the resulting excess or deficiency, as the
case may be.
(iii) Landlord shall have the right to terminate this Lease
and to recover from Tenant immediately all losses and
damages suffered or incurred by Landlord by reason of
such termination, including without limitation the
excess of all Annual Base Rent, Additional Rent and
other charges hereunder for what would have been the
balance of the term in the absence of any such
termination over the aggregate fair market rental
value of the Leased Premises during the same period
of time.
(iv) Landlord shall have the right, except in the case
where Tenant is contesting in good faith in
proceedings brought by Tenant in an appropriate court
of law such claim of default, but not the duty to
perform any of Tenant's obligations hereunder which
Tenant has not timely and fully performed and to
charge to Tenant the cost of such performance,
together with a service charge of ten percent (10%)
of such cost, to compensate Landlord for
administrative and other services associated with
such performance.
(v) If Landlord is not permitted to terminate this Lease
as provided above because of the provisions of Title
11 of the United States Code relating to bankruptcy,
then Landlord shall have the right to require Tenant
as a debtor in possession or any trustee for Tenant,
within no more than thirty (30) days upon request by
Landlord to the Bankruptcy Court, to assume or reject
this Lease and Tenant on behalf of itself, and any
trustee, agrees not to seek or request any extension
or adjournment of any application by Landlord to
assume or reject this Lease. In such event, Tenant or
any trustee for Tenant may only assume this Lease if
(A) it cures or provides adequate assurance that the
Tenant will promptly cure any default hereunder, (B)
compensates or provides adequate assurance that
Tenant will promptly compensate Landlord for any
actual pecuniary loss of Landlord resulting from
Tenant's defaults hereunder, and (C) provides
adequate assurance of performance during the full
term of all of the Tenant's obligations under this
Lease. In no event after the assumption of this Lease
shall any then-existing default remain uncured for a
period in excess of the earlier of ten (10) days or
the time period set forth herein.
(vi) Landlord shall have the right to recover from Tenant,
if Landlord relets or attempts to relet the Leased
Premises, all costs and expenses incurred in
connection with such reletting, including without
limitation broker's commissions, advertising costs,
reasonable legal fees for lease preparation
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and negotiations and the cost of alterations or
improvements to the Leased Premises.
(vii) Notwithstanding anything to the contrary contained in
this Section 27, nothing herein shall be construed so
as to relieve Landlord of its obligation to use
reasonable efforts to mitigate its damages in the
event of any default or breach by Tenant.
(c) Any property which may be removed from the Leased Premises by
the Landlord pursuant to the authority of the Lease or of law
to which the Tenant is or may be entitled may be handled,
removed, or stored in a commercial warehouse or otherwise by
the Landlord at the risk, cost, and expense of the Tenant.
Landlord shall in no event be responsible for the value,
preservation, or safekeeping thereof. The Tenant shall pay to
the Landlord, upon demand, all expenses incurred in such
removal and all storage charges against such property. Any
such property of Tenant not removed from the Leased Premises
or retaken from storage by Tenant within thirty (30) days
after the end of the term of this Lease, however terminated,
shall be conclusively deemed to have been abandoned by Tenant.
(d) If Tenant violates any of the terms and provisions of this
Lease or defaults in any of its obligations hereunder other
than the payment of rent or other sums payable hereunder, such
violation may be restrained or such obligation enforced by
injunction.
Any costs and expenses incurred by Landlord (including,
without limitation, reasonable attorney's fees) in enforcing
any of its rights or remedies under this Lease shall be deemed
to be Additional Rental and shall be repaid to Landlord by
Tenant upon demand.
(28) HOLDING OVER:
------------
Tenant shall pay Landlord for each month, or part thereof, that Tenant
retains possession of the Leased Premises or any part thereof after
termination or expiration of the term of this Lease one hundred and
fifty (150%) percent of the amount of the monthly rent then required by
the terms hereof and also pay all damages sustained by Landlord by
reason of such retention.
(29) REDELIVERY OF PREMISES:
-----------------------
Tenant shall, on the expiration of this Lease, deliver up the Leased
Premises in as good order and condition as it now is or may be put by
Landlord, reasonable use and ordinary wear and tear thereof and damage
by fire or other unavoidable casualty, condemnation or appropriation
excepted. Tenant shall promptly surrender all keys to the Leased
Premises to Landlord.
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(30) CUMULATIVE REMEDIES:
-------------------
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in
equity.
(31) INTEREST ON PAST DUE OBLIGATIONS:
---------------------------------
Any amount owed by Tenant to Landlord which is not paid when due shall
bear interest at the rate of fifteen percent (15%) per annum from the
due date of such amount. However, interest shall not be payable on late
charges to be paid by Tenant under this Lease. The payment of interest
on such amounts shall not excuse or cure any default by Tenant under
this Lease. If the interest rate specified in this Lease is higher than
the rate permitted by law, the interest rate is hereby decreased to the
maximum legal interest rate permitted by law.
(32) ATTORNEYS' FEES:
----------------
In the event any sums payable to Landlord hereunder are past due beyond
any grace and/or notice and cure period and same are collected at law
or through any attorney at law, Tenant shall pay all attorneys' fees
and expenses which Landlord incurs in enforcing any obligation of the
Lease. The parties hereto agree that the prevailing party in any action
brought by either party against the other under the terms of this Lease
Agreement shall be entitled to full reimbursement from such
non-prevailing party for all attorney's fees and related costs of
litigation incurred in any such proceedings by the prevailing party.
(33) NOTICES:
--------
All notices required or permitted to be given to Tenant under this
Lease shall be given to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇. After occupancy of the Leased Premises, Tenant's address shall
be ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Any such notice to Landlord under this Lease shall be given to it at
▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Property Management. All
notices shall be in writing and sent by certified mail, postage
prepaid.
Notice so mailed shall be effective upon the third day after its
deposit into the mails. Notice given in any other manner shall be
effective under this Paragraph (33) only if and when received by the
addressee.
(34) LANDLORD'S LIABILITY:
---------------------
(a) The term "Landlord" as used herein shall mean only the owner
or owners at the time in question of the fee title. In the
event of any transfer of such title, Landlord herein named
(and in case of any subsequent transfers, then the grantor)
shall be relieved from and after the date of such transfer of
all liability as respects Landlord's obligations thereafter to
be performed, provided that any funds in the
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hands of Landlord or the then grantor at the time of such
transfer, in which Tenant has an interest, shall be delivered
to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding
on Landlord's successors and assigns, only during their
respective periods of ownership. Tenant shall attorn to any
such purchaser, grantee, assignee or transferee.
(b) Tenant shall look solely to the estate and property of
Landlord in the Developed Parcel for the collection of any
judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by
Landlord with respect to any of the terms and provisions of
this Lease to be kept, observed, and performed by Landlord,
subject, however, to the prior rights of any mortgagee of all
or any part of the property; no other assets of Landlord shall
be subject to levy, execution or other judicial process for
the satisfaction of Tenant's claim. Nothing in this Lease
shall be construed in any event whatsoever to impose any
personal liability upon the trustees, officers or the
shareholders of the Landlord, or of the general or limited
partners comprising the Landlord, as Landlord herein or
otherwise.
(35) INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS:
----------------------------------------------
This Lease including any exhibits, schedules or attachments, hereto,
contains all agreements of the parties with respect to any matter
mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified in writing
only, signed by the parties in interest at the time of the
modification. Except as otherwise stated in this Lease, Tenant hereby
acknowledges that neither any cooperating broker on this transaction
nor the Landlord or any employees or agents of any of said persons has
made any oral or written warranties or representations to Tenant
relative to the condition or use by Tenant of said Leased Premises, the
Building or the Developed Parcel.
(36) WAIVERS:
--------
(a) No waiver by Landlord or Tenant of any provision hereof shall
be deemed a waiver of any other provision hereof or of any
subsequent breach by Landlord or Tenant of the same or any
other provision. Landlord's consent to, or approval of, any
act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by
Tenant.
(b) The acceptance of rent hereunder by Landlord shall not be a
waiver of any preceding breach by Tenant of any provision
hereof, other than the failure of Tenant to pay the particular
rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
(37) SEVERABILITY:
-------------
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If any provision of this Lease (or portion thereof) shall at any time
be deemed to be invalid, illegal or unenforceable by any court of
competent jurisdiction, this Lease shall not be invalidated thereby.
Any such provision shall be construed to be valid, legal and
enforceable to the fullest extent permitted by law and this Lease shall
be read and construed as if such invalid, illegal or unenforceable
provision had not been contained herein.
(38) RECORDING:
----------
This Lease shall not be placed of record; however, either Landlord or
Tenant shall, upon request of the other, execute, acknowledge and
deliver to the other a "short form" memorandum of this Lease for
recording purposes.
(39) BINDING EFFECT:
---------------
Subject to any provisions hereof restricting assignment or subletting
by Tenant, this Lease shall be binding upon and inure to the benefit of
the parties, their heirs, personal representatives, successors and
assigns.
(40) AUTHORITY:
----------
If Tenant is a corporation, trust, general or limited partnership, each
individual executing this Lease on behalf of such entity represents and
warrants that he or she is duly authorized to execute and deliver this
Lease on behalf of said entity and shall, at the execution of this
Lease, deliver to Landlord evidence of such authority satisfactory to
Landlord.
(41) CONFLICT:
---------
Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provision.
(42) GOVERNING LAW; FORUM:
---------------------
This Lease is made under and is to be governed by the laws of the State
of Kentucky. Any action arising out of this Lease shall be brought only
in a court of competent jurisdiction in Kenton County, Kentucky.
(43) JOINT AND SEVERAL OBLIGATIONS:
------------------------------
In case two (2) or more persons or entities shall constitute the Tenant
hereunder, the covenants, obligations, and agreements herein made
binding upon the Tenant, shall be the joint and several obligations of
such persons or entities, and in the event of the death or dissolution
of any one or more of them, the survivors or survivor shall succeed to
all Tenant's right, title and interest hereunder.
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(44) GUARANTORS:
-----------
The following person(s) or entity(ies) are guaranteeing the performance
of Tenant's obligations under this Lease pursuant to separate
instrument(s) entitled "Lease Guaranty": None.
--------------
(45) AIR RIGHTS LEASE:
----------------
(a) The leasehold estate created by this Lease for the Plaza Level
and floors 3, 5, 6, 7, 8, 9, 11, and 12 of the RiverCenter II
Office Building constitutes a sublease of a portion of the
premises demised to CPX RiverCenter Two Limited Partnership, as
lessee, by the City of ▇▇▇▇▇▇▇▇▇, as lessor, by an instrument
dated and recorded in the lease records of the Kenton County
Clerk at Covington, Kentucky as follows: instrument dated August
1, 1988 and recorded September 8, 1988 at 10:22 a.m. in Lease
Book 17, Page 645, Kenton County, Kentucky Clerk's records at
Covington, Kentucky as assigned by Assignment and Assumption of
Second Office Air Rights Lease Agreement and Grant of Easement by
and between Corporex Companies, Inc. and CPX RiverCenter
Development Corporation recorded September 8, 1988 in
Miscellaneous Book ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Clerk's
records at Covington, Kentucky, as amended by First Amendment to
Second Office Air Rights Lease Agreement recorded April 20, 1995
in Miscellaneous Book ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Clerk's records at Covington, Kentucky, and as Subsequently
amended by Second Amendment to Second Office Air Rights Lease
Agreement recorded August 23, 1995 in Miscellaneous Book ▇▇▇,
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Clerk's records at Covington,
Kentucky, and as amended by the Third Amendment to Second Office
Air Rights Lease Agreement and Grant of Easements dated December
12, 1995 and recorded December 13, 1995 in Miscellaneous Book
329, Page 92, of the Kenton County, Kentucky Clerk's records at
Covington, Kentucky, and as subsequently assigned by Second
Assignment and Assumption of Second Office Air Rights Lease
Agreement and Grant of Easement by and between CPX-RiverCenter
Development Corporation and CPX RiverCenter II Limited
Partnership, a Kentucky limited partnership, dated September 4,
1996 and recorded September 6, 1996 in Miscellaneous Book ▇▇▇,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Clerk's records at Covington,
Kentucky, demising the "Second Office Air Lot" as further set
forth and described on the Plat of Covington RiverCenter recorded
in Plat Envelope 1467, 1467A, 1468, and 1468A, and on the Amended
Plat of Covington RiverCenter recorded on August 23, 1995 in Plat
Envelope 1726, 1727, and 1728, Kenton County, Kentucky Clerk's
records at Covington, Kentucky. Such instruments shall be
collectively referred to under this Lease as the "Air Rights
Lease". This Lease and all of Tenant's rights hereunder are and
shall be subject and subordinate to the Air Rights Lease and the
rights of all parties under such Air Rights Lease.
(b) The leasehold estate created by this Lease for the Retail Level
of the RiverCenter I office building constitutes a sublease of a
portion of the premises demised to CPX RiverCenter Limited
Partnership by that certain
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Office Air Rights Lease Agreement and Grant of Easements among
The City of Covington, Kentucky, a municipal corporation, The
City of Covington, Kentucky Municipal Properties Corporation, and
Corporex Companies, Inc. dated as of August 1, 1988, and recorded
September 8, 1988 at 9:54 a.m. in Lease Book 17, Page 452, Kenton
County, Kentucky Clerk's records at Covington, Kentucky, as
subsequently assigned by Corporex Companies, Inc. to
CPX-RiverCenter Development Corporation, by Assignment and
Assumption of Office Air Rights Lease Agreement and Grants of
Easements dated as of August 1, 1988 and recorded September 8,
1988 at 10:25 a.m. in Miscellaneous Book ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Clerk's records at Covington, Kentucky, and as
confirmed by that certain Notice Confirming the issuance of the
Certificate of Occupancy for the Office Building and confirming
the Office Date of Occupancy, recorded September 28, 1990 in
Miscellaneous Book ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Clerk's
records at Covington, Kentucky, and as subsequently assigned by
CPX-RiverCenter Development Corporation to CPX RiverCenter
Limited Partnership, by Second Assignment and Assumption of
Office Air Rights Lease Agreement and Grant of Easements dated as
of December 20, 1993 and recorded December 28, 1993 in
Miscellaneous Book 247, Page 39, Kenton County Clerk's records at
Covington, Kentucky, and as subsequently amended by this First
Amendment to Office Air Rights Lease Agreement and Grant of
Easements, dated as of April 11, 1995 and recorded April 20, 1995
in Miscellaneous Book ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Clerk's records at Covington, Kentucky and as subsequently
amended by the Second Amendment to Office Sir Rights Lease
Agreement and Grant of Easements dated as of August 22, 1995 and
recorded August 23, 1995 in Miscellaneous Book 315, Page 173 of
the Kenton County Clerk's records at Covington, Kentucky, and as
subsequently amended by Third Amendment to Office Air Rights
lease Agreement and Grant of Easements, dated December 12, 1995
and recorded December 13, 1995 in Miscellaneous Book 329, Page 84
of the Kenton County Clerk's records at Covington, Kentucky,
demising the "Office Air Lot" (as defined in said Lease), as
further set forth and described on the Plat of Covington
RiverCenter recorded on August 23, 1995 in Plat Envelope 1726,
1727, and ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇.
(46) FINANCIAL STATEMENTS:
---------------------
Within (20) days of written request by Landlord, Tenant will provide
Landlord with its most recent financial statement, certified to be true
and correct by either Tenant's chief financial officer or an
independent certified public accountant; provided, however, Landlord
may only share such statements with its mortgagee, ground lessor,
prospective mortgagees and ground lessors, purchasers and partners, and
attorneys, accountants, and other advisors of Landlord and each of the
foregoing.
(47) HAZARDOUS SUBSTANCES:
---------------------
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For the purposes of this Lease, the term "Hazardous Substance" shall be
interpreted broadly to mean (i) petroleum, (ii) asbestos, (iii)
polychlorinated biphenyls, (iv) radioactive materials, (v) radon gas or
(vi) any chemical, material or substance defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous waste", "restricted hazardous waste"
or "toxic substances" or words of similar impact under any applicable
laws, including but not limited to, the Federal Water Pollution Act, as
amended, 33 U.S.C. sec. 1251 ET SEQ., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. sec. 6901 ET SEQ., the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. sec. 9601 ET SEQ., the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. sec. 1801 ET SEQ., or any
other federal or state laws, in any amount which: (a) exceeds the
"action level", "maximum allowable level", or any similar base level
amount which is determined by any governmental or quasi-governmental
authority or health advisory board (or any similar body) to be the
maximum allowable or recommended concentration for the Hazardous
Material in question; (b) results in any investigative or remedial
order or activity by any governmental or quasi-governmental authority;
(c) would constitute a health hazard to occupants of the Property; or
(d) would result in any material disruption or interference with
Tenant's use of the Premises.
Tenant warrants and represents that it shall not use, store, treat,
accumulate or transport Hazardous Substances at, on, to or from the
Leased Premises during the Lease Term except in the ordinary conduct of
its business and in a manner that complies with all federal, state, and
local laws, regulations, and ordinances. Tenant additionally warrants
and represents that Tenant's occupancy of the Leased Premises and its
activities thereon shall not cause or result in any release, leak,
discharge, spill, disposal, or emission of Hazardous Substances at, in,
on, from or under the Leased Premises during or following the Lease
Term.
Tenant agrees to indemnify and hold Landlord harmless from any and all
claims, damages, fines, judgements, penalties, costs, liabilities, or
losses (including, without limitation reasonable sums paid for
settlement of claims, attorneys fees, consultant and expert fees)
arising during or after the Lease Term from or in connection with the
presence of any Hazardous Substances in, on or under the Leased
Premises during or after the Lease Term where the presence of such
Hazardous Substances is caused by or arises from Tenant's occupancy of
the Leased Premises or otherwise from Tenant's activities. Without
limitation the foregoing, this Indemnification shall include reasonable
costs incurred due to any investigation of the Leased Premises or any
clean-up, removal or restoration mandated by a federal, state or local
agency or political subdivision with respect to any such Hazardous
Substance present on the Leased Premises during the Lease Term. The
provisions of this paragraph shall survive the expiration or
termination of this Lease.
Landlord warrants and represents that, to the best of its knowledge,
any use, storage, treatment, accumulation, or transportation of
Hazardous Substances which has occurred in or on the Developed Parcel
prior to the date hereof has been in compliance with the
32
37
applicable federal, state, or local laws, regulations, and ordinances.
Landlord additionally warrants and represents that, to the best of its
knowledge, no release, leak, discharge, spill, disposal, or emission of
Hazardous Substances has occurred in, or under the Developed Parcel
prior to the date hereof.
Landlord agrees to indemnify and hold the Tenant harmless from any and
all claims, damages, fines, judgements, penalties, costs, liabilities,
or losses (including without limitation reasonable sums paid for
settlement of claims, attorneys' fees, consultant and expert fees)
arising during or after the Lease Term from or in connection with the
presence of any Hazardous Substance in, or under the Premises prior to
the Lease Term. Without limiting the foregoing, this Indemnification
shall include reasonable cost incurred due to any investigation of the
Premises or any clean-up, removal or restoration mandated by a federal,
state or local agency or political subdivision, with respect to any
Hazardous Substance present on the Premises prior to the Lease Term
other than such as may be caused by or arise out of Tenant's occupancy
of the Leased Premises or from Tenant's activities. The provisions of
this paragraph shall survive the expiration or termination of this
Lease.
(48) ADDITIONAL EXHIBITS:
--------------------
The following exhibits are attached hereto and incorporated into this
Lease, in addition to previously identified Exhibits A, B, C, D, E, F,
and G (identify additional exhibits by letter and title; if none,
please so state): None.
(49) CONSENTS:
---------
Unless expressly stated to the contrary herein, anytime the consent of
either Landlord or Tenant is required as to any matter, such consent
shall not be unreasonably withheld, delayed or conditioned.
(50) RIGHT OF RENEWAL:
-----------------
Provided Tenant is not in default during the initial term of this
Lease, Tenant shall have the privilege of renewing this Lease for two
additional terms of five (5) years each. The first renewal term, if
exercised, shall commence upon the expiration of the initial term of
this Lease. The second renewal term, shall commence on the expiration
of the first renewal term, provided Tenant has exercised its option for
the first renewal term.
If Tenant desires to exercise a renewal option, Tenant shall give
Landlord written notice of such intent at least twenty-four (24) months
prior to the expiration of the initial term or the first renewal term.
All the conditions which prevailed during the initial term shall also
prevail during each renewal term, except only that:
1. The Annual Base Rent and the Additional Rent shall be set at
the then current market rate for the Towers of RiverCenter,
but in no event less than the current
33
38
Annual Base Rent charged per square foot for the Leased
Premises pursuant to this lease Agreement; and
2. The Annual Base Rent shall escalate throughout the term of the
renewal option by 3% annually.
3. There shall be no financial incentives as previously granted
to Tenant in this Lease (such as Landlord Incentives)
Once Tenant exercises its right to renew, the parties shall have thirty
(30) days to enter into a written lease or amendment to this Lease
which establishes the new financial terms for the renewal.
(51) Intentionally omitted.
(52) RIGHTS OF FIRST REFUSAL
-----------------------
(a) For Floors 9 and 10, RiverCenter I Office Building:
---------------------------------------------------
Provided that Tenant is not in default under this Lease Agreement and
in the event that Landlord at anytime, and from time to time, during
the term of this Lease Agreement receives an offer(s) to rent all or
portions of Floors 9 and/or 10 in the RiverCenter Tower I office
building, Landlord hereby grants to Tenant a one-time right of first
refusal to lease such space or portions thereof. This right will be
explicitly subject to pre-existing rights, if any, of any other tenant
in the complex, as they may apply to those spaces. Landlord shall
notify Tenant when it receives a bona fide offer(s), acceptable to
Landlord, to lease any part of or all of such expansion space. Tenant
shall have ten (10) business days from receipt or delivery of written
notice from Landlord to exercise its right of first refusal by entering
into a written addendum(s) to this Lease Agreement for the expansion
space. The first year annual rental rate per square foot for such
additional space shall be calculated as the average rent per square
foot (annualized) for all leases within building I of the Towers of
RiverCenter as they exist in the month that Tenant notifies Landlord of
its intent to exercise this right. The annual rental rate per square
foot shall escalate 3% per annum. If such right of first refusal is
exercised during the first five years of the Lease term, the expansion
space shall have a term coterminous with the then remaining term of the
primary lease term. If such right of first refusal is exercised during
the second five years of the primary lease term or any extensions
thereof, the expansion space term shall have a term coterminous with
the primary lease term, but in no event less than 5 years. In the event
that at the time of exercise of such right(s) of first refusal Tenant
has less than 5 years remaining on the base lease term, then in order
to exercise this right Tenant shall extend the lease term for the
entire leased premises for a minimum of five (5) years from the date of
occupancy of the latest occupied expansion space. No financial
incentives previously granted to ▇▇▇▇▇▇ in the Lease Agreement shall
apply to the right of first refusal space, except that Tenant shall be
entitled to a $5.00 per occupiable square foot allowance towards
retrofitting the space.
34
39
If Tenant fails to exercise its right of first refusal and so lease
upon the conditions set forth above, the Landlord may lease such
expansion space or such portion(s) thereof, to any third party and
Tenant shall have no further right of first refusal with regard to that
part of the expansion space. Any space added pursuant to the written
addendum shall thereafter become part of the Leased Premises and shall
be subject to all other terms and conditions contained in this Lease
Agreement.
(b) RiverCenter II Office Building:
-------------------------------
Provided that Tenant is not in default under this Lease Agreement and
in the event that Landlord at anytime, and from time to time, during
the term of this Lease Agreement receives an offer(s) to rent all or
portions of Floors 2, 4, and 10 in the RiverCenter Tower
35
40
II office building, Landlord hereby grants to Tenant a continuing right
of first refusal to lease such space or portions thereof. This right
will be explicitly subject to any pre-existing rights of any other
tenant in the complex, as they may apply to those spaces. Landlord
shall notify Tenant when it receives a bona fide offer(s), acceptable
to Landlord, to lease any part of or all of such expansion space.
Tenant shall have ten (10) business days from receipt or delivery of
written notice from Landlord to exercise its right of first refusal by
entering into a written addendum(s) to this Lease Agreement for the
expansion space. The first year annual rental rate per square foot for
such additional space shall be calculated as the average rent per
square foot (annualized) for all leases within buildings I and II of
the Towers of RiverCenter as they exist in the month that Tenant
notifies Landlord of its intent to exercise this right. The annual
rental rate per square foot shall escalate 3% per annum. If such right
of first refusal is exercised during the first five years of the Lease
term, the expansion space shall have a term coterminous with the then
remaining term of the primary lease term. If such right of first
refusal is exercised during the second five years of the primary lease
term or any extensions thereof, the expansion space term shall have a
term coterminous with the primary lease term, but in no event less than
5 years. In the event that at the time of exercise of such right(s) of
first refusal Tenant has less than 5 years remaining on the original
lease term, then in order to exercise this right Tenant shall extend
the lease term for the entire leased premises for a minimum of five (5)
years from the date of occupancy of the latest occupied expansion
space. No financial incentives previously granted to ▇▇▇▇▇▇ in the
Lease Agreement shall apply to the right of first refusal space, except
that Tenant shall be entitled to a $5.00 per occupiable square foot
allowance towards retrofitting the space.
If Tenant fails to exercise its right of first refusal and so lease
upon the conditions set forth above, the Landlord may lease such
expansion space or such portion(s) thereof, to any third party and
Tenant shall have no further right of first refusal with regard to that
part of the expansion space. Any space added pursuant to the written
addendum shall thereafter become part of the Leased Premises and shall
be subject to all other terms and conditions contained in this Lease
Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this
Lease as of the day and year first above written.
WITNESSES: LANDLORD (as to the Plaza Level and Floors, 3, 5, 6,
7, 8, 9, 11, & 12, RiverCenter II Office Building
only):
CPX-RIVERCENTER TWO LIMITED
PARTNERSHIP, a Kentucky limited partnership
By: CPX-RiverCenter Development
Corporation, a Kentucky corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Its: General Partner
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇. ▇. ▇▇▇▇▇▇
---------------------
▇. ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Its: President
------------------------ ---------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
36
41
WITNESSES: LANDLORD (as to the Retail Level, RiverCenter I
Office Building only):
CPX-RIVERCENTER LIMITED PARTNERSHIP,
a Kentucky limited partnership
By: CPX-RiverCenter Development
Corporation, a Kentucky corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Its: General Partner
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇. ▇. ▇▇▇▇▇▇
---------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Its: President
------------------------ ---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
WITNESSES: TENANT
------
▇▇▇▇▇▇ GREETINGS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇▇
----------------------- ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ITS: Executive Vice President
---------------------------------
Finance & Operations and
Chief Financial Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
STATE OF KENTUCKY )
------------- ) SS:
COUNTY OF KENTON )
-------------
The foregoing instrument was acknowledged before me this 13th day
of August, 1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the President of CPX-RiverCenter
Development Corporation, a Kentucky corporation, general partner of
CPX-RiverCenter Two Limited Partnership, a Kentucky limited partnership,
Landlord in the foregoing Lease Agreement, on behalf of the corporation and the
partnership.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
NOTARY PUBLIC
My Comm. Expires:__________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, Kentucky State at Large
My Commission Expires June 13, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
---------------- ) SS:
COUNTY OF KENTON )
----------------
37
42
The foregoing instrument was acknowledged before me this 13th day
of August, 1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the President of CPX-RiverCenter
Development Corporation, a Kentucky corporation, general partner of
CPX-RiverCenter Limited Partnership, a Kentucky limited partnership, Landlord in
the foregoing Lease Agreement, on behalf of the corporation and the partnership.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
NOTARY PUBLIC
My Comm. Expires:
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, Kentucky State at Large
My Commission Expires June 13, 2000
(for corporate tenant)
STATE OF OHIO )
--------- ) SS:
COUNTY OF ▇▇▇▇▇▇▇▇ )
----------
The foregoing instrument was acknowledged before me this 12th day
of August, 1998 by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Executive Vice President-Finance and
Operations of ▇▇▇▇▇▇ Greetings, Inc., a Delaware corporation, Tenant in the
foregoing Lease Agreement, on behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
NOTARY PUBLIC
My Comm. Expires: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of Ohio
My Commission Expires May 9, 2000
38
43
EXHIBIT "A"
LEASED PREMISES
The Leased Premises are shown on the drawings attached hereto, marked as
Exhibits A-1 through A-6, and made a part hereof.
Initials:
LANDLORD /s/ WPB/MCB
-------------------------
TENANT JW
-------------------------
A
44
EXHIBIT A
---------
Retail ▇▇▇▇▇
▇, ▇▇▇ ▇.▇.▇.
Diagram Showing Floor Plan of Retail Level
A-1
45
EXHIBIT A
---------
PLAZA LEVEL
-----------
11,898 R.S.F.
Diagram ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇-▇
46
3rd, 5th & 6th Levels
TYPICAL FLOOR PLAN
16, 618 R.S.F. Per Floor
Diagram Showing Typical Floor Plans of 3rd, 5th and 6th Levels
A-3
47
7th, 8th & 9th Levels
TYPICAL FLOOR PLAN
16, 473 R.S.F. Per Floor
Diagram Showing ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇ and 9th Levels
A-4
48
11th Level
16, 294 R.S.F.
Diagram Showing Floor Plan of 11th ▇▇▇▇▇
▇-▇
▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇, ▇▇▇ ▇.▇.▇.
Diagram Showing Floor Plan of 12th ▇▇▇▇▇
▇-▇
▇▇
▇▇▇▇▇▇▇ "▇"
DEVELOPED PARCEL
Initials:
LANDLORD /s/ MCB
-----------------------
TENANT /s/ JW
-----------------------
B-1
51
EXHIBIT "B"
DEVELOPED PARCAL
Diagram Showing Developed Parcal
B-2
52
EXHIBIT "C"
ALTERATIONS AND IMPROVEMENTS
(WORK LETTER)
No promise of Landlord to alter, remodel, improve, repair, decorate, or clean
the Leased Premises or any part thereof, and no representation respecting the
condition of the Leased Premises, the Building or the Developed Parcel has been
made to Tenant by Landlord except as made herein. In the event Landlord has
agreed or is required to make any alterations or improvements to the Leased
Premises to prepare same for Tenant's occupancy, the same shall be limited to
those alterations and improvements which are enumerated and detailed in this
Work Letter.
I. GENERAL PROVISION'S RELATING TO
-------------------------------
PREPARATION OF PLANS AND SPECIFICATIONS
------------------------------------------
Landlord has heretofore delivered to Tenant, and Tenant has heretofore
received and approved, a floor plan prepared by Landlord's architect
for the Premises detailing Landlord's work as described in Section II
of this Exhibit "C" ("Landlord's Plans"). In the event Tenant requests,
which request will not be unreasonably denied by Landlord, any
additional changes, modifications or alterations to Landlord's Plans or
the work to be performed by Landlord pursuant to Section II hereof, or
both, as a result of a change in Tenant's space or design requirements
or otherwise, all additional architectural and engineering fees,
construction costs and other costs and expenses incurred by Landlord in
connection therewith shall be the sole responsibility of Tenant and
payable by Tenant to Landlord. If, as a result of any changes,
modifications or alterations to Landlord's Plans or the work required
to be performed by Landlord pursuant to Section II hereof made at the
request of Tenant, there is any delay in the substantial completion of
Landlord's work, then for all intents and purposes of this Lease,
including this Exhibit "C", Landlord's work shall be deemed to have
been substantially completed on the date, that such work would have
been substantially completed before such changes, modifications or
alterations made at the request of the Tenant.
II. GENERAL PROVISIONS RELATING TO
-------------------------------
CONSTRUCTION OF LANDLORD'S WORK
---------------------------------
The term "Landlord's Work" shall mean the construction by Landlord of
only the following work as part of Landlord's base building costs as
distinguished from tenant finish cost.
53
BASE BUILDING
-------------
1. Floor:
-----
The floor shall be smooth finish concrete ready to receive
finish flooring and base.
2. Core and Public Areas:
----------------------
Main building entrance provided in accordance with building
plans and code requirements. Each floor shall have men's and
women's lavatories in accordance with code.
3. Heating and Air Conditioning:
-----------------------------
The building has incorporated a modern forced air, chilled
water system. Each floor contains its own air handling unit
with main trunk distribution through-out.
4. Fire Protection:
----------------
Landlord provides a primary sprinkler main loop through-out as
required by code. The branching of secondary lines and the
dropping of sprinkler heads is included in tenant work.
5. Emergency Exit Signage and Emergency Lighting
---------------------------------------------
Landlord provides building standard and code required signs to
identify core exits only. Additional exit signs and emergency
lighting required in Tenant space is Tenant's expense.
6. Power
-----
Main power is distributed to an electrical panel on each
floor. Secondary power distribution to tenant's panel and
circuiting from this panel is included in tenant work.
54
TENANT WORK
-----------
Landlord will provide in addition, an allowance towards Tenant
installation work, as herein outlined:
1. Floor Covering
--------------
a) Carpet: Building standard carpet, without pad, of
color and texture as selected by Tenant from choice
of selections furnished by landlord, except for
toilet rooms and areas subject to soiling and
spillage.
b) Vinyl Composition Tile: ▇▇▇▇▇▇▇▇▇ Excelon, 1 ft.
squares.
c) Vinyl cove Base 4".
2. Ceiling:
-------
Suspended acoustical building standard revealed edge tile in
exposed metal 2'x 2' grid. The ceiling height is 8'6" - 9'.
3. Corridor & Demising Walls:
--------------------------
Shall extend from floor to structure above and shall be
constructed of metal studs and gypsum wallboard. Sound
attenuation blanket shall be included. Tenant Work Letter
shall include a pro rata share of the corridor wall
construction.
4. Perimeter Walls
---------------
The exterior walls of the leased space shall be gypsum
wallboard construction (taped and spackled) on metal studs, or
glass as shown on the drawings.
5. Interior Partitions:
--------------------
One lineal foot of metal studs and gypsum board partition per
12.5 square feet of usable tenant area, trimmed and painted
with two (2) coats of flat latex paint, 9'0".
6. Columns:
--------
Interior column wraps finished smooth and ready for paint.
7. Entry Door:
-----------
Full height 1 3/4" solid core with associated hardware -
Number required by Code.
8. Interior Doors:
---------------
3' 0" x 7'0" solid core with associated hardware - One door
per 300 square feet of usable Tenant area.
55
EXHIBIT "C"
ALTERATIONS AND IMPROVEMENTS
Continued
(WORK LETTER)
Landlord has agreed to build out the Leased Premises based upon Building
Standard Specifications, with a mixture of 90% open office area and 10% enclosed
private office area within the Leased Premises. The parties hereto further agree
that the additional allowance of $200,000.00 set forth below herein for electric
and wire distribution has been given in consideration of such reduced percentage
of enclosed private office space. Notwithstanding the above, Landlord agrees
that it will build out the Leased Premises based upon Building Standard
Specifications and Finishes at Tenant's request up to a ratio of 70% open space
and 30% enclosed private office area, provided, however, in such event, that the
parties hereto agree that the additional $200,000.00 allotment for electrical
and wiring distribution provided for below herein shall be decreased by up to
$100,000.00 in proportion to the percentage increase in enclosed private office
space exceeds ten (10%) (i.e. an increase in enclosed private office area from
10% to 15% shall cause a decrease of $25,000.00 in the Special Electrical
Allowance). Building Standard Finishes are further delineated in the remainder
of Exhibit "C". The Building Standard Specifications and Building Standard
Finishes are collectively referred to as the "Building Standards." Provided
Tenant adheres to these Building Standards, the Leased Premises shall be built
at Landlord's expense. In the event that Tenant requests over standard
improvements or any other improvements in excess of Building Standards, Tenant
shall be responsible for payment of such over standard improvement costs at
least 14 days prior to occupancy of the Leased Premises.
In consideration of the reduction of private enclosed offices to 10% of the
total space, Landlord, subject to the provisions first set forth in the first
paragraph in this Exhibit "C", shall provide the sum of $200,000.00 for electric
and wiring distribution beyond the subpanels on each floor of the Leased
Premises ( the "Special Electrical Allowance"). Such Special Electrical
Allowance shall be payable only in the proportion that the amount of square feet
of leased space actually occupied bears to 148,782 square feet.
With respect to the Retail Level and Plaza Level (containing approximately
16,500 square feet) tenant improvements, Landlord has no "turn-key"
responsibility. In substitution thereof, Landlord shall provide $300,000.00
allowance toward the tenant improvements for the showroom and display facility
to be located on the Retail and Plaza Levels. In the event the costs for Retail
Level and Plaza Level tenant improvements are less than $300,000.00, Tenant
shall be entitled to apply the remaining amount of such $300,000.00 allowance to
any other portion of the Leased Premises as Tenant may designate.
Landlord will have sole right to act as general contractor.
56
Landlord further agrees to pay Tenant a monthly payment in the amount of
$13,105.86 per month during the original ten (10) year term of this lease for
computer and data processing room expenses incurred by Tenant.
Tenant shall be entitled to cause a stairway to be installed between the Retail
and Plaza Levels of the Leased Premises. Such stairway shall be installed in a
location which is mutually agreeable to Landlord and Tenant by Landlord at
Tenant's expense.
Landlord agrees to use its best efforts to cause one of the existing public
building elevators to be retrofitted to allow double door access from the Plaza
Level only by adding a door on the south elevator of the Plaza Level space. Such
elevator retrofitting shall be made by Landlord at Tenant's cost and expense.
In addition, Landlord shall also install, at Tenant's cost, certain
extraordinary items for the Tenant's use and benefit. Landlord agrees to provide
Tenant a copy of minimum of two qualified subcontractor bids for each
construction category division of the extraordinary work indicated on Exhibit
"C-2." Landlord shall include, with the two qualified bids, its recommendation
for subcontractor selection. The Tenant shall have 24 hours to consent to the
subcontractor recommended by Landlord. Tenant shall also have the right to
select a subcontractor that is not included with the Landlord's qualified
subcontractor bids, however, in such event, Landlord shall not be responsible
for delays in Lease Commencement due to construction delays caused by such
subcontractor. Landlord shall be entitled to compute as cost for the Exhibit
"C-2" alterations and improvements, the actual cost thereof (including General
Conditions) plus (12%) overhead and profit computed on the actual cost.
Initials:
LANDLORD /s/ MCB
------------------
TENANT /s/ JW
------------------
57
EXHIBIT "C-1"
The following critical dates must be met by Tenant and Tenant's architect:
- All preliminary drawings, including, but not limited to, Computers,
HVAC/Liebert Units, FM 200 Fire Suppression. 8/28/98
The following dates shall be met by Landlord:
- All construction/permit final drawings 9/4/98
NOTE 1: The construction permit documents need to be complete, including all
finish selections (including color, style, model, etc.) electrical/telecom
location, lighting layouts, these drawings are to be clear and descriptive so
that they can be bid out and sent to the State of Kentucky for permit.
NOTE 2: Long lead times may be experienced on non-standard items. For instance:
----------------------------------------------------------------------------
- Computer HVAC/Liebert Units 8 to 10 weeks
----------------------------------------------------------------------------
- FM 200 Fire Suppression 8 to 10 weeks
----------------------------------------------------------------------------
- Carpet (other than standard) 6 to 8 weeks
----------------------------------------------------------------------------
- Wall coverings 4 to 6 weeks
----------------------------------------------------------------------------
Upon completion of construction drawings, Landlord shall advise Tenant of any
finish selections that have long lead times that will affect the schedule.
Tenant shall immediately make alternative selections or make other arrangements
to accommodate the schedule.
58
EXHIBIT "C-2"
List of Extraordinary Tenant Improvement Items:
1) Raised computer flooring
2) Dry pipe sprinkler system required for the computer room
3) All HVAC equipment for the computer room
4) Internal staircase between the plaza level and the retail level
5) Upgraded electric for the computer room including separate electric
meters
6) HVAC/▇▇▇▇▇▇▇ Units
7) FM 200 Fire Suppression
8) Carpet (other than standard)
9) Wall coverings
59
EXHIBIT "D"
The Annual Base Rent for the initial term of this lease is as follows:
Total Annual Total Monthly
Year Base Rent Rent
------ ------------ -------------
1 $2,189,927 $182,493
2 $2,255,624 $187,969
3 $2,323,294 $193,608
4 $2,392,992 $199,416
5 $2,464,782 $205,399
6 $2,538,725 $211,560
7 $2,614,887 $217,907
8 $2,693,334 $224,444
9 $2,774,134 $231,178
10 $2,857,358 $238,113
Initials:
LANDLORD /s/ MCB
------------
TENANT /s/ JW
------------
60
EXHIBIT "E"
CLEANING, JANITOR AND ROUTINE MAINTENANCE SERVICE
Nightly: Empty wastepaper baskets, ash trays and other receptacles.
Dry mop all resilient and hard floors, vacuum clean or carpet
sweep all carpets and rugs.
Dust and wipe clean all office furniture, fixtures, including
telephones and window ▇▇▇▇▇.
Wipe clean all water fountains and coolers.
Dust and damp dust, as necessary, ash trays.
Remove waste paper and normal office refuse.
Sweep and dust all private stairways.
Clean all Men's and Ladies' Toilets. These areas will be
checked daily for neatness and orderliness.
Damp mop all ceramic tile, marble and terrazzo flooring.
Clean elevator cabs nightly.
Clean, as necessary, the outside of all mail chutes.
Clean all cigarette urns as necessary.
Fill toilet tissue holders, soap and towel dispensers, as
needed.
Clean all glass furniture tops.
Clean entrance doors.
Buff halls and lobby area, as necessary.
Clean and polish washroom mirrors.
Wash and wipe washroom towel and waste receptacles.
Scour all washroom wash basins.
Remove splash marks from wall in washroom wash basin area.
Wet mop restroom floors.
After cleaning, all lights shall be turned off (except as
otherwise directed by Tenant), doors locked and offices left
in an orderly fashion.
Weekly: Wet mop, spot wax and buff traffic area.
Wash sides of drinking fountains.
Clean washroom partitions.
Monthly: Dust all door and other ventilating louvers, as necessary.
Wash unblocked partition glass.
Remove dust from hard to reach places (picture frames,
baseboards, ledges, etc.).
Keep venetian blinds dusted, as required.
Machine scrub all floors wherever required.
Wax all scrubbed flooring, as required.
Machine polish all waxed flooring, as required.
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Annually: Dust ceiling surfaces, other than acoustical ceiling material.
Vacuum all radiator and under-window air conditioning
equipment and reassemble.
Other: Clean all building standard lighting fixtures, as necessary.
Wash all exterior windows outside three times a year, weather
permitting, inside three times a year.
Daily check building plaza for neatness and appearance, as
expected for a Class "A" building.
Initials:
LANDLORD /s/ MCB
------------------
TENANT /s/ JW
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E-2
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EXHIBIT "F"
RULES AND REGULATIONS
Definitions:
------------
Wherever in these Rules and Regulations the word "Tenant" is used, it
shall be taken to apply to and include Tenant and its agents,
employees, invitees, licensees, subtenants, and contractors, and is to
be deemed of such number and gender as the circumstances require. The
word "Landlord" shall be taken to include the employees and agents of
the Landlord.
1. The entry passages, lobbies, elevators, stairways and fire
exits of the Building may be used for ingress and egress only.
2. Doors leading to the corridors or main halls shall be kept
closed at all times except as they may be used in ingress and
egress.
3. All entrance doors in the Leased Premises shall be left locked
when not in use.
4. Furniture, supplies and equipment of Tenant shall be delivered
only at times and in locations designated by Landlord.
5. No bicycles or vehicles of any kind shall be brought into or
kept in or about said premises or the lobby or halls of the
Building.
6. Space for admitting natural light into any public area of the
Building shall not be covered or obstructed by Tenant except
in a manner approved by Landlord.
7. No sign, advertisement, notice or the like, shall be used in
the Building by Tenant (other than on its office doors and
then only as approved by Landlord), provided, however, that
Tenant shall be entitled to install signage on the Retail
Level of the Leased Premises upon Landlord's prior consent,
which consent shall not be unreasonably withheld or delayed,
provided that such signage is not detrimental to the overall
appearance of the Building and further provided that such
signage complies with all laws, ordinances, rules, and
regulations of all applicable governmental authorities. If
Tenant violates the foregoing, Landlord may remove the
violation without liability and may charge all costs and
expenses incurred in so doing to Tenant.
8. Landlord will furnish Tenant with a key for said premises. All
such keys in Lessee's possession or known by Tenant to be in
existence shall be delivered to Landlord at the termination of
this Lease. (If more than two keys for one lock are desired,
Landlord will provide them upon payment by Tenant.) Tenant
shall not place any additional lock on any door in the
Building.
F-1
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9. A Directory Board will be furnished to identify tenants within
the building. Landlord reserves the right to determine the
number of letters allowed by tenant on any directory it
maintains.
10. The said premises shall not be defaced in any way. Excepting
for those normally used in hanging of pictures,
certifications, artwork, and the like, no nails shall be
driven, no screws inserted, there shall be no boring or
cutting from wires, and no change in electric fixtures or
other appurtenances of said premises shall be made without
prior written approval of the Landlord.
11. Toilets and other like apparatus shall be used only for the
purpose for which they were constructed. Any and all damage
from misuse shall be borne by Tenant.
12. Tenant shall not install or use any air conditioning or
heating device or system other than approved by Landlord.
13. Tenant shall not place a load on any floor of said premises
exceeding one hundred (100) pounds per square foot. Landlord
reserves the right to prescribe the weight and position of all
safes and heavy equipment.
14. Tenant shall not throw or permit to be thrown anything out of
windows or doors or down passages or elsewhere in the Building
or bring or keep any pets or other animals therein, or commit
or make any indecent or improper act or noise, or do or permit
anything which will in any way obstruct, injure, annoy or
interfere with other tenants or those having business with
them, or affect any insurance rates on the Building or violate
any provision of any insurance policy on the Building.
15. Tenant and Lessee's agents, employees, licensees, and invitees
shall have the right to use in common with Landlord and
Lessor's tenants and the agents, employees, licensees and
invitees of each, the public sidewalks, entrances, lobbies,
vestibules, stairways, corridors, passenger and freight
elevators, public toilets and other public areas of the
Building, subject, however, to applicable Building rules,
regulations and security measures. Tenant and Lessee's agents,
employees, licensees and invitees shall not obstruct or
litter, or use for storage (temporary or otherwise) or for the
display of merchandise or services or for any purpose other
than the intended and normal purpose, any of said public
sidewalks, entrances, lobbies, vestibules, stairways,
corridors, passenger and freight elevators, public toilets and
other public areas of said Building; and no floor mats or
runners shall be placed by Tenant in any Building corridor,
lobby or vestibule.
F-2
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16. No cooking shall be done or permitted by Tenant on said
premises. Tenant, its officers and employees, shall however be
entitled to use small microwave ovens, coffee makers and
refrigerators in the Leased Premises, provided that the use of
same is not in violation of any fire, electrical, or building
codes, laws, ordinances, rules, and regulations of any
applicable governmental authorities. Tenant shall not cause or
permit any unusual or objectionable odors to be produced upon
or emanate from said premises.
17. Tenant shall not be permitted to install vending machines or
similar types of electric appliances such as coffee makers or
hot plates without Landlord's approval, and no Tenant shall
obtain or accept for use in the Leased Premises, ice, coffee
service, catering, drinking water, barbering and bootblacking
from any person not authorized by Landlord in writing to
furnish such services.
18. Tenant shall not permit cleaning by any person other than
employees of the Building or persons approved by Landlord.
19. Unless specifically authorized by Landlord, employees of
Landlord shall not perform nor be asked to perform work other
than their regularly assigned duties.
20. Landlord may close or temporarily suspend operation of
entrances, doors, corridors or other facilities, provided that
Landlord shall cause as little inconvenience or annoyance to
Tenant as it is reasonably necessary in the circumstances, and
shall not do any act which permanently reduces the size of the
Leased Premises. Landlord may do any such work during ordinary
business hours. If such work is done during other hours at
Tenant's request, Tenant shall pay Landlord for overtime and
any other expenses incurred.
21. Canvassing, soliciting or peddling in the Building is
prohibited and each Tenant shall cooperate to prevent the
same.
22. Tenant shall not carry on or permit to be carried on upon said
Leased Premises or any part thereof any immoral or illegal
business, gambling, the selling of pools, lotteries or any
business that is prohibited by law.
23. Landlord shall have the right to prohibit any advertising by
Tenant on the Leased Premises, or showing, depicting or
providing the location of the Leased Premises, which, in
Lessor's opinion tends to impair the reputation of the
Building or its desirability as an office building and, upon
written notice from Landlord, Tenant shall promptly
discontinue such advertising.
24. Any parking regulations which may be established from time to
time by Landlord shall be obeyed.
F-3
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25. For the general welfare of all tenants and the security of the
Building, Landlord may require all persons entering and/or
leaving the Building on Saturdays, Sundays and/or holidays and
on other days between the hours of 6:00 P.M. and 8:00 A.M. to
register With the Building attendant or custodian by signing
his name and writing his destination in the Building, and the
time of entry and actual or anticipated departure. Landlord
may deny entry during such hours to any person who fails to
provide satisfactory identification.
26. Landlord shall have the right to change these Rules and
Regulations at any time, and Tenant shall be subject to all
such changed Rules and Regulations of which Tenant has been
notified in writing, provided such changes do not have a
material impact, financial or otherwise, on Tenant's business,
occupancy, or use of the Leased Premises for the permitted
uses stated herein.
27. All rules and regulations shall be enforced fairly and
uniformly by Landlord. Authorizations, as necessary, shall not
be unreasonably withheld.
Initials:
LANDLORD /s/ MCB
---------------
TENANT /s/ JW
---------------
F-4
66
EXHIBIT "G"
CONTROLLED PARKING
It is the intention of the parties that the City of ▇▇▇▇▇▇▇▇▇ will own and
operate a Parking Garage upon the Developed Parcel. This Parking Garage shall be
available for the use of tenants of the Building, tenants of other buildings
which may be built as part of the RiverCenter development, the general public
and others. No parking spaces in this Parking Garage are included as part of the
Leased Premises, except as otherwise provided in this Exhibit G.
Initials:
LANDLORD /s/ MCB
--------------
TENANT /s/ JW
--------------
G-1
67
LEASE ADDENDUM TO
▇▇▇▇▇▇ GREETINGS, INC. LEASE FOR
RIVERCENTER I AND RIVERCENTER II OFFICE TOWERS
DATED AUGUST 13, 1998
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
August 13, 1998, which lease embodies the occupancy by Tenant of approximately
148,782 rentable square feet within the RiverCenter I and RiverCenter II Office
Towers for a term of ten (10) years (the Base Lease); and
WHEREAS, pursuant to the provisions of Paragraph 1 of the Lease
Agreement, Tenant is entitled on or before August 31, 1998, to give back the
ninth (9th) floor of the Leased Premises; and
WHEREAS, certain allowances and incentives have been provided by
Landlord in order to induce the Tenant to enter into the Base Lease; and
WHEREAS, such allowances and incentives shall be subject to reduction
on a proportionate basis in the event that tenant elects to give back such ninth
floor space;
NOW, THEREFORE, in consideration of the terms and conditions of the
Base Lease and the mutual covenants of the parties hereto,
IT IS HEREBY AGREED as follows:
The parties hereto acknowledge and agree that the following allowances
and incentives as hereinafter set forth have been provided in order to induce
Tenant to execute and deliver the Base Lease:
(a) Monthly payments for the computer and data processing room expenses
incurred by Tenant as referenced in Exhibit "C" of the Base Lease;
(b) Two hundred thousand dollar ($200,000.00) electrical allowance for
electric and wiring distribution beyond the sub-panels on each floor of the
Leased Premises as referenced in Exhibit "C" of the Base Lease; and
(c) Three hundred thousand dollar ($300,000.00) Retail Level and Plaza
Level space fit-out allowance as referenced in Exhibit "C" of the Base Lease.
IT IS HEREBY ACKNOWLEDGED AND AGREED by the parties hereto that, to the
extent that the total rentable square footage of the base Leased Premises is
reduced pursuant to the give-back provisions of Paragraph 1 of the Base Lease
that the above-noted allowances and/or incentives shall be payable by Landlord
only in the proportion that the amount of square feet of leased space actually
occupied bears to 148,782 square feet.
LANDLORD /s/ MCB
-------------
TENANT /s/ JW
-------------
68
LEASE ADDENDUM TO
▇▇▇▇▇▇ GREETINGS, INC. LEASE FOR
RIVERCENTER I AND RIVERCENTER II OFFICE TOWERS
DATED AUGUST 13, 1998
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
August 13, 1998 which lease embodies the occupancy by Tenant of approximately
148,782 rentable square feet within the RiverCenter I and RiverCenter II Office
Towers for a term of ten (10) years (the Base Lease); and
WHEREAS, Tenant desires certain additional special equipment to be
installed in or about the Leased Premises for Tenant's sole benefit and use; and
WHEREAS, the parties hereto desire to set forth the terms and
conditions upon which such special equipment may be installed.
NOW, THEREFORE, in consideration of the terms and conditions of the
Base Lease and the mutual covenants of the parties hereto, the parties hereto
agree as follows:
LANDLORD HEREBY AGREES that Tenant shall have the right, at Tenant's
sole cost and expense, to install, maintain and operate a proprietary Liebert
air conditioning unit, a special electrical generator, and related electrical
and condensation lines and conduit. Landlord shall provide Tenant a location for
the placement of such special equipment acceptable to Landlord, together with
such specifications that may be required by Landlord for architectural
screening, landscaping, and installation and maintenance of said special
equipment within a distance that will allow normal operation of the system.
LANDLORD /s/ MCB
----------------
TENANT /s/ JW
----------------
