L E A S E
WATERFRONT PLAZA
THIS LEASE entered into on November 8, 1996, by and between
HOME SUPPLY COMPANY, a Kentucky Corporation
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter "LANDLORD")
and
PERENNIAL DEVELOPMENT CORPORATION and
IN HOUSE REHAB, INC., a Kentucky corporation
(its wholly owned subsidiary)
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter "TENANT")
WITNESSETH:
WHEREAS, the Tenant desires to lease from Landlord and the Landlord desires to
lease to Tenant the hereinafter described premises comprising a part of the
office building known as Waterfront Plaza Building, (the "Building"),325 West
Main Street, Louisville, Jefferson County, Kentucky, under the terms and
conditions hereinafter set forth.
1. GRANT, PREMISES AND TERM
1.1 Grant and Premises
Landlord leases to Tenant and Tenant leases from landlord upon the terms and
conditions set forth herein the described space to be known as 14th Floor,
Center
Tower (the "Premises"), Waterfront Plaza Building, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ consisting of 7,375 sq. ft.
1.2 Additional Areas
In addition to the Premises, Tenant shall have the non-exclusive use, during
the
term of this Lease, of the common facilities designated from time to time by
Landlord, subject to the Rules and Regulations attached as Exhibit "A" and to
such other rules and regulations as Landlord may from time to time require or
impose on all tenants, including the following common facilities: sidewalks;
driveways; lobby; elevators; mail room; parking facilities and any and all
finished or improved areas outside the Premises (present or future). Landlord
reserves the right to make changes or revisions in the site, including,
without
limitation, any designated parking spaces, sidewalks, driveways, parking
facilities, malls and finished or improved areas. Landlord further reserves
the
right to change the size, location, nature and use of common facilities so
long
as it does not disturb Tenant's space, or materially diminish the character or
quality of the lobby. No change shall reduce the number of elevators
available
to the Tenant's facility. Landlord may at any time close temporarily any
common
areas to make repairs or changes therein or to the effect construction,
repairs
or changes within the Premises to prevent the acquisition of public rights in
such areas and to discourage non-customer parking, and may do such other acts
in
and to the common areas as in its judgment may be desirable to improve the
convenience thereof.
1.3 Roof and Walls
Landlord shall have the exclusive right to use all or any part of the roof,
front, side and rear exterior walls of the Building for any purpose,
including,
but not limited to, erecting signs or other structures on or over all or any
part
of the same, erecting scaffolds and other aids to the construction and
installation of the same, and installing, maintaining, using, repairing and
replacing of pipes, ducts, conduits and wires leading through, to or from the
Building and serving other parts of the Premises in locations which do not
materially Interfere with Tenant's use of the Building. Tenant shall have no
right whatsoever in the exterior or exterior walls or the roof of the
Building.
1.4 Term
The term of this Lease ("Lease Term") shall be for a period of five (5) years,
beginning on February 1, 1997 and ending on January 31, 2002. If the Premises
is
not ready for occupancy by February 1, then the term of the Lease shall begin
the
first day of the month following the month in which possession is given to the
Tenant and run for the full term (five years) of the Lease from that date.
2. RENT
2.1 Base Rent
Tenant shall pay to Landlord without notice or demand and without set off or
deduction for any reason at Landlords office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as Landlord shall direct
in writing to Tenant the base rent and any additional rent. The rent for the
premises is a total sum of FOUR HUNDRED TWENTY FOUR THOUSAND SIXTY TWO AND
50/100
($424,062.50) DOLLARS and is payable as follows:
(a) EIGHTY FOUR THOUSAND EIGHT HUNDRED TWELVE AND 50/100 ($84,812.50) DOLLARS
per
year, payable in monthly installments of SEVEN THOUSAND SIXTY SEVEN AND 71/100
($7,067.71) DOLLARS per month. The first month's rent shall be due and payable
on February 1, 1997.
2.2 Early/Late Possession
If Tenant shall take possession prior to February 1, 1997, Tenant shall pay
the
rent for that portion of the month which Tenant occupies the Premises before
the.
effective date. If Tenant takes possession before February 1, such shall not
lengthen the term of the Lease. If Tenant takes possession after February 1,
the
Lease shall run for a period of five (5) years beginning with the first day of
the month following the taking of possession.
2.3 Late Payment Charge
A late payment charge of ten (10%) percent of monthly rental shall be due and
payable with rent received after the tenth Clothe calendar day of the month.
3. USE AND OCCUPANCY
3.1 Use
The Premises are to be used solely for the purpose of maintaining an office
for
use in connection with Tenant's business including its use as a conference and
meeting center and for no other business or purpose without the prior written
consent of Landlord. Tenant shall not do or permit to be done in or about the
Premises anything which is illegal or unlawful; or which is of a hazardous or
dangerous nature, or which is noxious or offensive to other tenants in the
Premises or to Landlord, or which will increase the rates of insurance carried
by Landlord. Tenant shall not use any portion of the Premises for providing
of
any medical or rehabilitation services or related similar services and the
Premises shall be used solely as a business office. Tenant shall obtain all
permits, licenses, certificates or other authorization and any renewals,
extensions or continuances of the same required in connection with the lawful
and
proper use of the Premises except for a Certificate of Occupancy and shall pay
when due all taxes upon its merchandise, stock, fixtures and equipment in the
Premises. Neither a failure on the part of Tenant to procure such permit,
license, certificate or other authorization, nor the revocation of the same,
shall in any way affect the liability of Tenant for payment of rent herein
reserved or the performance or observance of any of the covenants or
conditions
herein contained on Tenant's part to be performed and observed. Tenant shall
(and
shall cause its employees to) observe the Rules and Regulations attached as
Exhibit "A" or such other rules and regulations applicable to the Premises as
may
be imposed by Landlord from time to time on a nondiscriminatory basis to all
Tenants and Tenant shall comply with all governmental laws; and ordinances and
all regulations applicable to the use and occupancy of the Premises, except
that
Tenant shall not be required to install or pay for any improvement to the
leased
Premises that is required of the Building as a whole. Without limiting the
generality of the foregoing, Tenant shall not display anything outside of the
Premises nor operate any loud speakers without the specific written consent of
Landlord.
3.2 Occupancy - Improvements to Premises and Tenant's Taxes
(a) The Landlord and Tenant have agreed upon the necessary finish work to be
made
to the Premises to make them useable in accordance with Tenant's preferences.
The
improvements that are to be made to the Premises are reflected off the
attached
Exhibit B, initialed by the parties and dated coincident with the execution of
this Lease. The Landlord shall provide a sprinkler system to the Premises as a
part of the improvements to be made. The Landlord and Tenant have also agreed
upon the extent to which the Landlord will install such improvements at its
sole
expense and those where Landlord will install improvements at Tenant's expense
and the amount that Tenant is to pay therefore. Such agreement is attached
hereto
as Exhibit C. Said amounts shall be due coincident with the commencement of
the
lease term and shall be due and payable. The failure to timely pay the same
shall
be a breach of the terms of this Lease. (See Exhibits B and C attached.)
(b) Tenant shall pay before delinquency any and all taxes and assessments and
licenses, sales, business, occupational or other taxes, fees or charges
levied,
assessed or impose upon its business operations, upon its trade fixtures,
merchandise and other personal property in, on or upon the Premises.
(c) In the event any taxes, fees or charges referred to in the preceding
subparagraph (b) shall be assessed, levied on or imposed upon or with the
business or property of Landlord, such assessment, fees or charges shall be
paid
by Tenant to Landlord promptly upon Landlord's request for such payment.
(d) The Landlord agrees to complete the common areas on the 14th floor in
accordance with its standard finish.
4. REPAIRS
(a) Landlord shall keep or cause to be kept in as good repair as same are in
when possession hereunder is given to Tenant (subject to certain completion
responsibilities set forth elsewhere in this lease); the foundations, the roof
and the structural soundness of the Building, the plumbing, heating and air
conditioning and all the improvements made to the Premises by the Landlord for
the purposes of the Tenant's utilization provided that Tenant shall be
responsible for any damage done to any of said improvement by its personnel or
invitees, employees and agents and Tenant shall be liable for damage to any of
the common areas caused by the negligence or deliberate acts of the Tenant,
its
employees, agents or invitees. The Landlord shall keep the Building and its
common areas of the Building in a good state of repair.
{b) The Landlord shall not be liable for the interior of the Premises or to
make
any repairs or to perform any maintenance unless such failure shall persist
for
an unreasonable time after written notice or the need for such repairs or
maintenance is given to the Landlord by Tenant. Landlord shall, as promptly as
circumstances permit, proceed and diligently proceed to repair any or correct
any
maintenance failure. Except as otherwise provided for herein there shall be no
abatement of rent and no liability of Landlord by reason of any injury to or
interference of Tenant's business arising from the making of repairs,
alterations, or improvements in or to any portion of the Building or the
Premises
therein. Landlord shall perform such repairs in a manner so as to create the
least amount of interference with Tenant's business.
5. SERVICE
(a) So long as Tenant is not in default hereunder Landlord agrees to supply,
at
its expense during the hours of 7:00 a.m. to 5:00 p.m. on all days during the
term hereof except Saturdays, Sundays and holidays, city water to establish
outlets for drinking, lavatory and toilet purposes, lighting, heat and air
conditioning in the common areas of Tenant's floor and adequate lighting for
entering and exiting the Premises. Holidays shall be defined as major holidays
recognized by a majority of businesses operating in Jefferson County as days
on
which they do not operate. These shall include New Years Eve, New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Eve and
Christmas Day. Landlord shall have the right to establish other dates as
holidays
but any such addition of dates shall apply to all Tenants within the Building.
Landlord agrees to provide ordinary cleaning services for the Premises
including
all common areas and maintenance of the passenger elevators for Tenants during
all such days that the Building is open as provided for herein.
(b} Tenant shall be guaranteed during the term hereof five (5) parking spaces
in
the adjacent garage maintained by the Landlord at the current monthly charge
of
$40.00 per month per parking space, and five (5) additional parking spaces on
a
month to-month basis with a 30 day cancellation clause. Landlord shall have
the
right to adjust the rate for all parking from time to time provided such
adjustments apply to other tenants in the garage adjacent to the Premises.
(c) Heating and air conditioning in appropriate seasons during all such
business
days, excluding holidays, Saturdays and Sundays.
(d) Tenant shall reimburse Landlord for all electrical consumed on the
Premises
except that needed for heating and air conditioning. Tenant shall reimburse
Landlord at the rate of $.095 per kilowatt hour and such reimbursement shall
be
due within and as a part of the rent and the failure to pay the same shall be
a
default herein.
(e) Landlord shall provide replacement during the first lease year only bulbs
and ballasts in the lighting system. Thereafter, the same shall be replaced
at
the sole cost or expense of the Tenant.
(f) The Landlord shall be the judge (but shall always be required to provide
services of a character comparable to those provided during the initial term
of
the lease) as to the character or amount of such services and shall not be
liable
in damages or by way of abatement of rent for the stoppage, delay or
interruption
of any of the aforesaid services in whole or in part by the act or default by
the
Tenant or any other parties, repairs, renewals or improvements or by any
strike,
labor unrest, accident, casualty acts of God or any other cause beyond the
reasonable control of the Landlord including the inability to provide any
utility
or any other service.
5.1 Quiet Enjoyment
If and so long as Tenant pays the prescribed rent and performs and observes
all
of the terms, conditions, covenants and obligations of this Cease required to
be
performed or observed by it hereunder, Tenant shall at all times during the
term
hereof, have the peaceful and quiet enjoyment, possession, occupancy and use
of
the Premises without any interference from Landlord or any person or persons
claiming the Premises by, through or under Landlord, subject to any mortgages,
underlying leases or other matters of record to which this Lease is or may
become
subject.
6. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord, its agents and employees shall have the following rights,
exercisable
after reasonable notice and without liability to Tenant for damage or injury
to
property, person or business and without effecting an eviction, constructive
or
actual, or disturbance of Tenant's use or possession or giving rise to any
claim
for set-off or abatement of rent:
(a) To, after reasonable notice to Tenant, change the Building's name or
street
address; and to install, affix and maintain any and all signs on the exterior
and/or interior of the Building;
(b) To designate and/or approve all types of window shades, blinds, drapes,
awnings, window ventilators and other similar equipment, and to control all
internal lighting that would effect or deteriorate from either the comfort and
use by other tenants or which would detract from the overall exterior
appearance
of the Building;
{c) To grant to anyone or to reserve to Landlord the exclusive right to
designate, limit, restrict and/or control the business and any service in or
to
the Building and its tenants, provided such exclusive right shall not operate
to
exclude Tenant from the use expressly permitted herein;
(d) To show the Premises to prospective Tenants at reasonable hours during the
last six (6) months of the term and, if vacated during the Term, to prepare
the
Premises for re-occupancy;
(e) To retain at all times, and to use in permitted circumstances for entry,
keys
to all doors within and into the Premises;
(f) To decorate or to make repairs , alterations , additions or improvements,
whether structural or otherwise, in and about the Building or the Premises, or
any part thereof, and for such purposes to enter upon the Premises, and during
the continuance of any of said work, temporarily to close doors, entryways,
public space and corridors and to interrupt or suspend temporarily services
and
facilities, all without abatement of rent or affecting any of Tenant's
obligations hereunder, so long as the Premises are reasonably accessible and
usable;
(g) To have and retain a paramount title to the Premises free and clear of
any
act of Tenant purporting to burden or encumber it;
(h) To approve the weight, size and location of safes and other heavy
equipment
and articles in and about the Premises and the Building (so as not to exceed
the
legal live load), and to require all such items and furniture and similar
items
to be moved into and/or out of the Building or the Premises only at such times
and in such manner as Landlord shall direct in writing. Movements of Tenant's
property into, within, or out of the Building are entirely at the risk and
responsibility of Tenant, and Landlord reserves the right to require permits
before allowing any such property to be moved into or out of the Building.
(i) To prohibit the placing of vending or dispensing machines of any kind in
or
about the Premises without the prior written permission of Landlord which will
not be unreasonably withheld and provided said vending or dispensing machines
are
used for their employees only and do not otherwise create an inconvenience to
other tenants; and
(j) To close the Building after regular working hours and on Saturdays,
Sundays
and legal holidays, subject, however, to Tenant's and its business invitees'
rights to admittance, under such regulations as Landlord may prescribe from
time
to time, which may include by way of example but not of limitation, that
persons
entering or leaving the Building identify themselves and that said persons
established their right to enter or leave the Building.
(k) The Landlord may at any time restrict usage of any adjacent parking
facilities to the number of spaces which it As required to provide to the
Tenant
as set forth in Paragraph 5(b) hereof and otherwise limit parking by employees
and invitees of the Tenant, on Premises owned or controlled by the Landlord.
Landlord presently permits invitees and customers while conducting business
with
Tenant to utilize the parking facilities. Tenant reserves the right to impose
charges to said persons for the use of said parking facilities or otherwise
limit
usage.
Landlord, its agents and employees, may enter upon the Premises and may
exercise
any or all of the foregoing rights hereby reserved without being deemed guilty
of an eviction or disturbance of Tenant's use or possession and without being
liable in any manner to Tenant. Landlord agrees to give reasonable notice of
at
least two hours prior to inspection, except in the event of an emergency.
7. ALTERATIONS TO PREMISES, SIGNS
(a) Tenant shall not make any alterations, additions or improvements to the
Premises without first obtaining Landlord's prior written consent, which
consent
will not be unreasonably withheld. Further Tenant shall not place, direct,
maintain or paint any signs on the Premises except such signs as are in
accordance with plans which have been submitted to and approved in writing by
Landlord, which consent will not be unreasonably withheld. Landlord shall
provide
building standard signage on the lobby. Signage at Tenant's suite entrance
will
be provided by Tenant at its expense, subject to Landlord's approval. Landlord
may make any repairs, alterations or improvements which Landlord may deem
necessary for the preservation, safety or improvement of the Premises or the
Building, provided, however, that in so doing Landlord shall not unreasonably
interfere with Tenant's use and occupancy of the Premises. All alterations,
additions and improvements made by Tenant shall become the property of
Landlord
upon the making thereof and shall be surrendered to Landlord upon the
expiration
of this Lease. Any damage to the Premises in connection with the making of
alterations, additions and improvements by Tenant or in connection with the
placement, direction, maintenance painting or removal of any signs on the
Premises shall be paid by Tenant.
8. DAMAGE OR DESTRUCTION
(a) In the event the Premises are damaged or destroyed by fire, earthquake or
any other casualty to such an extent as to render the same untenantable in
whole
or in substantial part, Tenant shall give Landlord immediate notice of the
occurrence of any such casualty. Unless Landlord, within sixty (60) days after
receipt of such notice, notifies Tenant of its election to repair or to
restore
the Premises, this Lease shall terminate at the end of such sixty (60) day
period
and if Tenant shall not be in default under this Lease, then Tenant's
liability
for rent shall cease as of the day following the casualty and any rent paid by
Tenant in advance and not yet earned as of the date of termination shall be
refunded to Tenant. If Landlord elects to repair or restore the Premises, the
rent shall be abated during the period from the day following the casualty
until
completion of the repair or restoration in the same proportion as the
untenantable portion of the Premises bears to the former rentable area
thereof.
(b) In the event the Premises are damaged by fire, earthquake or any other
casualty to such an extent that the Premises shall be rendered untenantable in
part (but less than a substantial part), then Landlord shall promptly at its
own
expense repair and restore the Premises, provided, however, nothing herein
shall
obligate Landlord to repair or restore the Premises if the casualty occurs
within
twelve (12) months of the end of the Lease Term. The rent shall be abated
proportionately as to the portion of the Premises rendered untenantable from
the
day following the casualty until completion of the repair and restoration.
9. INDEMNITY AND TENANT INSURANCE
(a) Tenant shall indemnify and hold Landlord harmless from all loss, damage,
liability or expense resulting from any injury to or death of any person, or
any
loss of or damage to any property, caused by or resulting from any act or
omission of any officer, agent, employee, guest, invitee or visitor of Tenant
in
or about the Premises or the Building, but the foregoing provision shall not
be
construed to make Tenant responsible for injuries to third parties caused by
the
negligence of Landlord or any agent or employee of [andlord. Landlord shall
not
be liable for any injury to or the death of any person, or any loss of or
damage
to property, sustained by Tenant, or by any other person Is) whatsoever, which
may be caused by the Building or the Premises or any appurtenances thereto or
thereof being out of repair, or by the bursting or leakage of any water, gas
sewer or steam pipes, or by any act or negligence of any tenant or occupant of
the Building, or of any other person, or by any other cause of whatsoever
nature,
unless caused by the negligence of Landlord or its officers, agents or
employees.
(b) Tenant covenants and agrees that it will carry and maintain during the
Lease
Term, at Tenant's sole cost and expense, bodily injury liability insurance
within
limits of not less than one million ($1,000,000.00) dollars per person and one
million ($1,000,000.00) dollars per occurrence and property damage insurance
with
minimum 1 imits of not less than one million ($1,000,000.00) dollars insuring
against any and all liability of the insured with respect to the Premises
arising
out of all maintenance, use or occupancy thereof. Such bodily injury liability
insurance shall specifically insure the performance by Tenant of the indemnity
agreement as to liability for injury to or death of persons and loss of or
damage
to property contained in subparagraph (a) of this Lease, and shall name
Landlord
as additional insured.
(c) Certificates of such policies shall be delivered to Landlord within ten
(10)
days after delivery of possession of the Premises to Tenant and thereafter
within
thirty (30) days prior to the expiration of the term of each such policy.
Such
policies shall contain a provision that Landlord, although named as an
insured,
shall nevertheless be entitled to recovery thereunder for any loss occasioned
to
it, its servants, agents and employees by reason of the negligence of Tenant.
Renewal or additional policies shall be procured and maintained by Tenant in
like
manner and to like extent. All policies of insurance must contain a provision
that the insuring company will give to Landlord thirty (30) days notice in
writing in advance of any cancellation or lapse of the policies or of the
effective date of any reduction in the amounts of insurance.
{d) Tenant covenants and agrees that it will carry and maintain during the
Lease
Term, at Tenant's sole cost and expense, casualty insurance covering the
damage
by fire and the usual extended coverage clauses, including theft and vandalism
coverage insuring Tenant's fixtures and persona] property to the extent of the
full insurable value thereof. Certificates of such policies shall be delivered
to Landlord within ten (10) days after delivery of possession of the Premises
to
Tenant and thereafter within thirty (30) days prior to the expiration of the
term
of each such policy.
10. WAIVER OF SUBROGATION
Landlord and Tenant each releases and relieves the other and on behalf of its
insurers waives its entire right of recovery against the other for loss or
damage
arising out of or incident to the perils of fire, explosion or any other
perils
generally described in "extended coverage" insurance endorsements used in
Louisville, Kentucky, which occur in, on or about the Building and/or the
Premises, whether due to the negligence of such other party, its agents or
employees, or otherwise.
11. LIENS
Tenant will keep the Premises and/or the Building free and clear of all
mechanics' and materialmens' liens and other liens on account of work done for
or by Tenant or persons claiming under it. Should any such lien be filed
against
the Premises and/or the Building, Landlord may, without notice to Tenant,
elect
to obtain the release of such lien and any sums expended by Landlord shall be
immediately repaid to Landlord by Tenant together with interest at the rate of
eight (8%) percent per annum, unless Tenant shall within thirty (30) days
after
the filing thereof cause the same to be released.
12. ASSIGNMENT, SUBLETTING, MORTGAGING
Tenant shall not voluntarily, involuntarily or by operation of law assign,
transfer, mortgage or otherwise encumber all or any part thereof without first
obtaining in each and every instance Landlord prior written consent, which
consent shall not be unreasonably withheld, and any attempt to so assign,
transfer, mortgage, encumber or sublet without Landlord's written consent
shall
be null and void; and if any such assignment, transfer, mortgage or
encumbrance
is made with the written consent of the Landlord, Tenant shall nevertheless
remain liable to Landlord for payment of rent according to the terms here of
and
for due performance of all the terms, covenants and conditions of this Lease .
If Tenant is a corporation, then any transfer of this Lease by merger,
consolidation or liquidation or any change in the ownership of, or power to
vote
the majority of its outstanding voting stock, shall constitute an assignment
for
the purpose of this paragraph. If written consent is once given by Landlord
to
any such assignment or subletting, such consent shall not operate as a waiver
of
the necessity for obtaining Landlord's written consent to any subsequent
assignment or subletting. Landlord's consent to assignment or subletting
should
not be unreasonably withheld.
13. PRIORITY OF LEASE
This Lease shall be subordinate to any and all mortgages and other security
instruments now existing, or which may hereafter be made covering the Building
and/or the real property underlying the same or any portion or portions
thereof,
and for the full amount of all advances made thereunder (without regard to the
time or character of such advances) together with interest thereon and subject
to all the terms and provisions thereof and to any renewals, extension,
modifications and consolidations thereof; and Tenant covenants to make,
execute,
acknowledge and deliver upon request any and all documents or instruments
demanded by Landlord which are or may be necessary or proper for more fully
and
certainly assuring the subordination of this Lease to any such mortgages or
other
security instruments; provided, however, that any person or persons purchasing
or otherwise acquiring any interest at any sale and/or proceedings under such
mortgages or other security instruments shall continue this Lease in full
force
and effect in the same manner and with like effect as if such person or
persons
had been named Landlord herein, and in the event of such election, this Lease
shall continue in full force and effect as aforesaid and Tenant hereby attorns
and agrees to attorn to such person or persons. If required by any first
mortgagee, Tenant shall execute an agreement that this Lease will be superior
to
such first mortgage or if required by any first mortgagee, Tenant shall
execute
a separate subordination, attornment and nondisturbance agreement. Tenant
agrees
to promptly, within ten (10) days after request, execute and deliver any
document
provided for within this paragraph. So long as Tenant shall not be in default
under this Lease, its right of possession and enjoyment of the Premises shall
be
and remain undisturbed and unaffected and any subordination agreement executed
by Landlord shall contain language specifically so providing.
14. ESTOPPEL CERTIFICATE AND NON-RECORDING PROVISION
14.1 Tenant shall at any time and from time to time execute, acknowledge and
deliver to Landlord a statement in writing certifying:
(a) that this Lease is unmodified and in full force and effect (or if there
has
been any modification hereof that the same is in full force and effect as
modified and stating the nature of the modification or modifications).
{b) that to the best of its knowledge Landlord is not in default under this
Lease
(or if any such default exists the specific nature and extent thereof).
(c} the date to which rent and other charges have been paid in advance, if
any.
14.2 It is agreed between the parties that neither this Lease nor any
memorandum
thereof shall be recorded.
15. FIXTURES AND PERSONAL PROPERTY; SURRENDER
15.1 Fixtures
Upon the termination of this Lease, Tenant shall surrender to Landlord the
Premises (including, without limitation, all buildings, apparatus and
fixtures,
except trade fixtures and furniture, installed by Tenant, then upon the
Premises)
in good condition and repair, reasonable wear and tear and damage by casualty
not
caused by Tenant or its agents or employees excepted, and all alterations,
improvements, additions, machinery and equipment which may be made or
installed
from time to time by either party hereto, in, upon or about the Premises
(except
trade fixtures and furniture installed by Tenant) shall be the property of
Landlord and upon such termination, shall be surrendered to Landlord by Tenant
without any injury, damage or disturbance thereto or payment therefor.
15.2 Personal Property
Trade fixtures, furniture, partitions and other personal property installed or
placed in the Premises at the cost of the Tenant shall be the property of
Tenant
unless otherwise specified in this Lease and Tenant shall remove the same
prior
to the termination of this Lease e Tenant shall at its own cost and expense
completely repair any and all damage to the Premises resulting from or caused
by
such removal. If Tenant fails to remove all or any of such property, Landlord
may
at Landlord's option retain all or any of such property and title thereto
shall
thereupon vest in Landlord, or Landlord may remove from the Premises and
dispose
of in any manner all or any of such property, in which latter event Tenant
shall,
upon demand, pay to Landlord the actual expense of such removal and
disposition
and the cost of repair of any and all damage to the Premises resulting from or
caused by such removal.
16. INSOLVENCY, ETC.
In the event that Tenant becomes insolvent or files a voluntary petition in
bankruptcy or becomes involuntarily bankrupt, or if a receiver, assignee or
other
liquidating officer is appointed for the business of Tenant, then Landlord at
its
option may immediately cancel this Lease by notice to Tenant to that effect.
17. DEFAULT AND REMEDY
17.1 Default
If at any time Tenant shall fail to pay the sums due under this Lease for ten
(10) days after such payment is due or within three (3) business days after
notice of such default from Landlord to Tenant or fail to remedy any default
with
respect to any of the other provisions, covenants or conditions of this Lease
to
be kept or performed by Tenant within thirty (30) days after notice (or such
additional time as is reasonably required to cure such default), then Landlord
shall have all such rights and remedies as are provided by law in respect to
such
default, including, at Landlord's election, the right to terminate this Lease,
provided, however, that Tenant's obligation and liability to make good any
damages and deficiencies from any reletting shall survive such termination of
this Lease.
17.2 Remedy
Landlord shall in no event be in default in the performance of any of its
obligations in this Lease contained unless and until Landlord shall have
failed
to perform such obligation within thirty (30) days (or such additional time as
is reasonably required to correct any such default) after notice by Tenant to
Landlord properly specifying wherein Landlord has failed to perform any such
obligation.
18. NON-WAIVER OF DEFAULTS
No waiver of any default by Tenant hereunder shall be implied from any
omission
by Landlord to take any action on account of such default persists or is
repeated, and no express waiver shall affect any default other than the
default
specified in the express waiver, and that only for the time and to the extent
therein stated. The acceptance by Landlord of rent with knowledge of the
breach
of any of the covenants of this Lesae by Tenant shall not be deemed a waiver
of
any such breach. One or more waivers of any breach of any covenant, term or
condition of this Lease shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
Landlord to or of any act by Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render unnecessary Landlord consent or
approval
to or of any subsequent similar acts by Tenant.
19. NON-PERFORMANCE BY TENANT
If Tenant shall default in the performance of any covenant on its part to be
performed by virtue of any provisions of this Lease, Landlord may, after any
notice and the expiration of any period with respect thereto as required
pursuant
to the applicable provisions of this Lease, perform the same for the account
of
Tenant. If Landlord, at any time, is compelled to pay or elects to pay any sum
of money or do any acts which would require the payment of any sum of money by
reason of the default of Tenant, or if Landlord is compelled to incur any
expense, including reasonable attorney's fees, in instituting, prosecuting, or
defending any action or proceeding instituted by reason of the default of
Tenant,
the sum or sums so paid by Landlord with interest at the rate of ten (10%)
percent per annum from the date paid until the date repaid by Tenant, plus
costs
and damages, shall be deemed to be additional rental hereunder and shall be
due
from Tenant to Landlord on the first day of the month following the incurring
of
such expenses. If Tenant is compelled to incur any expenses, including
reasonable
attorney's fees, in instituting, prosecuting or defending any action or
proceeding instituted by reason of the default of Landlord and if Tenant is
successful in such litigation, the sum or sums so paid by Tenant with interest
at the rate of ten (10%) percent per annum from the date paid until the date
repaid by Landlord, plus costs and damages, shall be due and payable from
Landlord to Tenant, pursuant to the provisions of this paragraph, shal1 in no
event be treated as an offset against the rent due due and payable under this
Lease.
20. HOLD OVER TENANCY
If, without the execution of a new lease or written extension and with the
consent of Landlord, Tenant shall hold over after the expiration of the Lease
Term of this Lease, Tenant shall be deemed to be occupying the Premises as a
tenant from month to month, which tenancy may be terminated as provided by
law.
During such tenancy, Tenant agrees to pay to Landlord the same rate of rental
as
set forth herein, unless a different rate is agreed upon, and to be bound by
all
of the terms, covenants and conditions as herein specified, as far as
applicable;
provided, however, that if Tenant fails to surrender the Premises upon the
termination of this Lease, in addition to ally other liabilities to Landlord
arising therefrom, Tenant shall indemnify and hold Landlord harmless from loss
or liability resulting from such failure, including any claims made by any
succeeding tenant founclet1 or such failure.
21. CONDEMNATION
If the whole or any part of the Premises shall be taken under the power of
eminent domains, then this Lease shall terminate as to the part taken on the
day
when Tenant is required to yield possession thereof, and Landlord, to the
extent
of the condemnation award, shall make such repairs and alterations as may be
necessary in order to restore the part not taken to useful condition. The
minimum
rental shall be reduced proportionately as to the part of the Premises taken,
the
reduction to be effective on the date that Tenant is required to yield
possession. If the amount of the Premises so taken is such as to impair
substantially the usefulness of the Premises for the purposes for which the
same
are hereby leased, then either party shall have the option to terminate this
Lease as fo the date when Tenant is required to yield possession. All
compensation awarded for such taking of the fee and the leasehold shall belong
to and be the property of Landlord; provided, however, that Landlord shall not
be entitled to any portion of the award made to Tenant for the cost of removal
Of stock and fixtures.
22. NOTICES
Whenever in this Lease it shall be required or permitted that notice,
approval,
advice, consent or demand be given or served by either party to this Lease to
or
on the other, such notice of demand shall not be deemed to have been duly
given
or served unless in writing and forwarded by certified or registered mail to
the
following addresses (or such other address as may be given by one party to the
other pursuant to this paragraph 22):
To Landlord:
Home Supply Company
Attention: President
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To Tenant:
In House Rehab, Inc.
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23. MISCELLANEOUS PROVISIONS
(a) The term "Landlord" as used in this Lease so far as covenants or
obligations
on the part of Landlord are concerned shall be limited to mean and include
only
the owner at the time in question of the Premises and in the event of any
transfer or transfers of the title to the Premises, Landlord herein named (and
in case of any subsequent transfer or conveyances, the then Landiord) shall be
automatically freed and relieved from an after the date of such transfer or
conveyance of all liabilities as respects the performance of any covenants or
obligation on the part of Landlord contained in this Lease thereafter to be
performed.
(b) The captions of the paragraphs in this Lease are for convenience only and
shall not be considered or referred to in resolving questions or
interpretations
or construction.
(c) The terms "Landlord" and "Tenant" wherever used herein shall be applicable
to one or more persons, as the case may be, and the singular shall include the
plural, and the neuter shall include the masculine and feminine, and if there
be
more than one, the obligations hereof shall be joint and several.
(d) Both the word "person" and the word "persons" wherever used in this Lease
shall include individuals, partnerships, firms, associations and corporations
or
any other form of business entity. In the event that two or more individuals,
corporations, partnerships or other business associations (or any combination
of
two or more thereof) shall sign this Lease agreement as Tenant, the 1iability
of
each such individual, corporation, partnership or other business association
to
pay rent and perform all other obligations hereunder shall be deemed to be
joint
and several. In like manner, in the event that Tenant named in this Lease
shall
be a partnershp or other business association the members of which are, by
virtue
of statute or general law, subject to personal liability, then in that event,
the
liability of each such member shall be deemed joint and several.
(e) The various rights, options, elections, powers and remedies contained in
this Lesae shall be construed as cumulative and no one of them shall be
exclusive
of any of the others, or of any other legal or equitable remedy which either
party might otherwise have in the event of breach of default in the terms
hereof,
and the exercise of one right or remedy by such party shall not impair its
right
or any other right or remedy until all obligations upon the other party have
been
fully performed.
(f) Time is of the essence with respect to the performance of each of the
covenants and agreements under this Lease.
(g) Each and all of the provisions of this Lease shall be binding upon and
inure
to the benefit of the parties hereto and, except as set forth in subparagraph
(a)
of this paragraph and as otherwise specifically provided elsewhere in this
Lease,
their respective heirs, executors, administrators, successors and assigns,
subject at all times, nevertheless, to all agreements and restrictions
contained
elsewhere in this Lease with respect to the assignment, transfer, encumbering
or
subletting of all or any part of Tenant's interest in this Lease.
(h) This Lease shall be interpreted in accordance with the law of the
Commonwealth of Kentucky.
(i) This Lease contains all covenants and agreements between Landlord and
Tenant
relating in any manner to the rental, use and occupancy of the Premises and
Tenant's licensed use of the Building and the other matters set forth in this
Lease. No prior agreement or understanding pertaining to the same shall be
valid
or of any force or effect, and the covenants and agreements of this Lease
cannot
be altered, changed, modified or added to except in writing signed by Landlord
and Tenant. No representation, inducement, understanding or anything of any
nature whatsoever made, stated or represented on Landlord's behalf, either
orally
or in writing (except this Lease) has induced Tenant to enter into this Lease.
(j) Any provision or provisions of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other
provision
hereof, and the remaining provisions hereof shall nevertheless remain in full
force and effect.
(k} Except with respect to those conditions, covenants and agreements of this
Lease which by their nature could only be applicable after the commencement
of,
during or throughout the term of this Lease, all of the other conditions,
covenants and agreements of this Lease shall be deemed to be effective as of
the
date of execution of this Lease.
(1) Tenant represents and warrants to Landlord that it has not engaged any
broker, finder or other person who would be entitled to any commission or fee
in
respect of the negotiation, execution or delivery of this lease, and shall
indemnify Landlord against loss, cost, liability or expense incurred by
Landlord
as a result of any claim asserted by any broker' finder or other person on the
basis of any arrangements of agreements made or alleged to have been made by
or
on behalf of Tenant.
{m) Clothing contained herein will be deemed or construed by the parties
hereto,
nor by any third party, as creating the relationship of principal and agent or
of partnership or of joint venture between the parties thereto, it being
understood and agreed that neither method or computation of rent, nor any
other
provision contained herein nor any acts of the parties herein, shall be deemed
to create any relationships between the parties hereto other than the
relationship of Landlord and Tenant.
(n) Tenant agrees to give to whatever mortgagee designated by Landlord from
time to time (and suchother mortgagee or mortgagees as Landlord may designate
in
writing to Tenant) written notice of each and every default under this Liease
by
Landlord and further agrees not to exercise any remedy under this Lease unless
such mortgagee fails to cure Landlord's default within thirty (30) days (or
such
longer period as may be reasonably necessary if such default cannot be cured
within thirty (30) days) after receipt of such notice.
(o) The submission of this Lease by Landlord to Tenant, whether in blank form
or
with one or more blanks completed and whether or not all exhibits referred to
herein are attached, for examination by Tenant shall not constitute a
reservation
of, or an option for, the Premises or any other space within the Building and
shall vest no rights in Tenant. This Lease and all exhibits incorporated
herein
shall become binding on Landlord only upon execution and delivery thereof by
Home
Supply Company, the Landlord. Until such execution and delivery, Tenant shall
have no rights under this Lease and the exhibits incorporated herein or in the
Premises or the Building.
(p) Landlord represents that to the best of its knowledge but without any
additional inquiry that there are no hazardous substances in or about the
Premises that pose a danger to health, life or safety.
IN WITNESS WHEREOF, Landlord and Tenant, have executed three originals hereof
on
the above date.
LANDLORD:
HOHE SUPPLY COMPANY
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Building Manager
TENANT:
IN HOUSE REHAB, INC.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
EXHIBIT "A"
TO LEASE FROM
HOME SUPPLY COMPANY
TO
IN HOUSE REHAB, INC.
NOVEMBER 8, 1996
WATERFRONT BUILDING - RULES AND REGULATIONS
GENERAL RULES
Lessee agrees that:
1. All deliveries or shipments of any kind to and from the Premises, including
loading and unloading of goods, shall be made to any location designated by
Landlord and only at times as designated by Landlord.
2. All garbage and refuse shall be stored in the type of containers specified
by
landlord for collection Tenant shall not collect on or about the Premises any
matters that would be contagious, hazardous or combustible without the prior
written consent of the Landlord. Any such soiled or dirty 1inen shall be
placed
in an approved metal container. Wet garbage shall be placed in planstic bags
or
approved containers.
3. No aerial for radios televisions, phonograph or other similar devices,
shall
be attached thereto (inside or outsicle the Premises) shall be installed
without
first obtaining in each instance the Landlord's prior written consent, and if
such consent be given, no such devise shall be used in a manner so as to be
heard
or seen outside of the Premises.
4. Tenant shall not deposit litter, trash or other debris in any of the common
areas of the Building or the common areas of its floor; and if it shall do so,
it shall be its obligation to remove same and keep said common areas neat,
clean,
free of rubbish and debris. Tenant shall not place any obstructions in any of
the
common areas or otherwise restrict the ability to enter and exit its Premises.
5. Tenant shall not use the commons areas in the Building for business or
promotional purposes.
6 Tenant and Tenant's employees shall park their cars only in those portions
of
the parking area, if any, designated for that purpose by Landlord, if the
Landlord provides designated areas for parking of Tenants' automobiles.
7. Plumbing, electrical and other facilities within or serving the Premises
shall
not be used for any purposes other than for which they were constructed, and
no
foreign substances of any kind sha11 be thrown therein.
Rules and Regulations - Waterfront Plaza In House Rehab, Inc.
Page 2
8. Tenant shall not burn trash or garbage in or about the Premises or the
property.
9. Tenant shall not place, suffer or permit any displays, decorations or other
advertising material outside of its Premises, or on or upon any of the parking
or other common areas of the property without the written consent of the
Landlord.
10. Tenant shall keep the Premises at all times at a temperature sufficiently
high to prevent the freezing of water in pipes and fixtures.
11. Tenant shall not use, permit or suffer the use of any portion of the
Premises
as living, sleeping or lodging quarters.
12. Tenant agrees to install and keep serviced fire extinguishers and any or
other requirement that may be imposed by the fire department from time to time
on the Premises.
13. If Tenant's use shall result in any need for pest extermination such shall
be at Tenant's sole cost, at times designated by Landlord and using
contractors
approved by Landlord.
AMENDMENT TO RULES AND REGULATIONS
Landlord may at Landlord's option, amend or add new rules and regulations for
the
use and care of the Premises, the building of which the Premises forms a part
or
the common areas of the property. Such amendments shall be effective upon
Landlord delivering a copy thereof to the Tenant and will provide that all
such
Rules and Regulations and Amendments shall be uniform and shall be applied to
all
tenants of the Building.
LANDLORD: Home Supply Company
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Building Manager
TENANT: In House Rehab, Inc.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief Financial Officer
EXHIBIT B
to Lease Agreement dated November 8, 1996
by and between
HOME SUPPLY COMPANY and
IN HOUSE REHAB, INC.
To be agreed to by the parties prior to December 9, 1996. If the parties are
unable to agree on the specifics of this Exhibit B, the foregoing Lease
Agreement
will be of no force and effect.
LANDLORD: Home Supply Company
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Building Manager
TENANT: In House Rehab, Inc.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief Financial Officer
EXHIBIT C
to Lease Agreement dated November 8, 1996
by and between
HOME SUPPLY COMPANY and
IN HOUSE REHAB, INC.
To be agreed to by the parties prior to December 9, 1996. If the parties are
unable to agree on the specifics of this Exhibit C, the foregoing Lease
Agreement
will be of no force and effect.
LANDLORD: Home Supply Company
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Building Manager
TENANT: In House Rehab, Inc.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief Financial Officer