EXHIBIT 10.4
LEASE
THIS LEASE, executed at Columbus, Ohio, this 21st day of July, 2003, by and
between BRC PROPERTIES INC., an Ohio corporation, hereinafter referred to as
"Landlord," and DOMINION HOMES, INC., an Ohio corporation, hereinafter referred
to a "Tenant".
1. In consideration of the mutual covenants and agreements herein
set forth, and other good and valuable consideration, Landlord does hereby lease
to Tenant, and Tenant does hereby lease from Landlord, upon the terms and
provisions hereinafter set forth, the following property (the "Leased
Premises"): (a) the real property (the "Land") located at 0000 Xxxxxx Xxxxxxxx
Xxxx., Xxxxxxxx, Xxxx and described in Exhibit A attached to this Lease, (b) the
building containing approximately 35,000 gross square feet (33,260 net rentable
square feet) located on the Land and all related fixtures and appurtenances (the
"Building"), (c) all other improvements now or in the future located in the
Land, and (d) all other rights and easements appurtenant to the Land, the
building and other improvements. Tenant acknowledges and agrees that Tenant is
responsible for obtaining a final certificate of occupancy for the Building, and
that this Lease cannot be canceled or abated in the event that such certificate
of occupancy is not obtained prior to or after the Commencement Date.
2. TERM
The term of this Lease shall be for a period of fifteen (15) years,
commencing on October 1, 2003 (the "Commencement Date"), and expiring on
September 30, 2018 (the "Primary Term").
3. RENT
Tenant agrees to pay to Landlord as fixed rent (the "Fixed Rent") during
the term hereof, the sum of SIX MILLION FIVE HUNDRED EIGHTY FIVE THOUSAND AND
00/100 DOLLARS ($6,585,000.00) payable in monthly installments on or before the
first day of each and every month in advance without off-set. The first rent
payment shall be due on the Commencement Date. The monthly installments shall be
payable as follows:
Years 1 through 5 $ 34,875.00
Years 6 through 10 $ 36,541.67
Years 11 through 15 $ 38,333.33
If Fixed Rent is not paid within 5 days after the due date, Tenant shall pay a
late charge in the amount of $2,000.00. Such late charge shall be due with the
Fixed Rent for the next month.
4. USE
The Leased Premises shall be used as commercial offices and for related
uses, and for no other business or purpose without the express written consent
of Landlord, which shall not be unreasonably withheld. No use shall be made or
permitted to be made of the Lease Premises nor acts done which will increase the
rate established for insurance of the Leased Premises or cause a cancellation of
any insurance policy covering the Building or any part thereof, nor shall Tenant
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keep, use or sell or permit to be kept, used or sold in or about the Lease
Premises, any articles which may be prohibited by standard form of fire
insurance policies. Further, Tenant shall, at its sole cost and expense, comply
with any and all requirements of any insurance organization or company which
said insurance organization or company deems necessary for the maintenance of
reasonable fire and public liability insurance covering the building and
appurtenances thereto that are required by Tenant's use of the Leased Premises
only.
5. INSURANCE
(a) Tenant shall procure and maintain public liability insurance for the
Leased Premises with policy limits of not less that $1,000,000.00
for personal injury to one person, $2,000,000.00 for personal injury
to any group of persons as a result of one accident or occurrence,
and $1,000,000.00 property damage. In addition to the foregoing,
Tenant shall procure and maintain an umbrella public liability
insurance policy with limits of not less than $5,000,000.00. Tenant
shall name Landlord and any mortgagee as additional insured under
these policies.
(b) Tenant shall keep the Building insured against loss by fire and all
of the risks and perils usually covered by an "all risk of physical
loss" endorsement to a policy of fire insurance upon property
comparable to the Leased Premises, in an amount equal to not less
than the replacement cost of the Building (but in no event less that
$4,000,000.00), and with deductible amounts approved by Landlord.
Landlord shall be the insured party under this policy, with Tenant
and the holder of any mortgage on the Leased Premises as additional
insured as their interests may appear.
(c) The policies required by Sections 5(a) and 5(b) shall contain an
agreement by the insurer that it will not cancel the policy except
after thirty days' prior written notice to Landlord and Tenant and
that any loss otherwise payable under the policy shall be payable
notwithstanding any act or negligence of Landlord or Tenant that
might, absent such agreement, result in a forfeiture of all or part
of this insurance payment.
At the Commencement Date, Tenant shall deliver to Landlord
certificates of the insurance required to be maintained under this Section.
Tenant shall also deliver to Landlord at least 10 days prior to the expiration
date of any such policy (or of any renewal policy), certificates for the renewal
policy of this insurance.
6. SUBROGATION AND WAIVER OF LIABILITY
Neither Landlord nor Tenant shall be liable for any damage to property
of the other found or located within the Leased Premises or for any damage to
the Leased Premises or the Building or other improvements caused by fire or
other peril usually covered by a policy of insurance of the type described in
Section 5 and each party releases the other from all liability for damage from
those causes, including any subrogation claims of any insurer. This provision
shall apply regardless of the negligence of either party and shall not be
limited by the amount of insurance coverage. This Section 6 shall override any
inconsistent provisions of this Lease. However, this provision shall not apply
to the extent that it would render void the insurance coverage obtained
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by Landlord or Tenant, but only if that party (a) makes reasonable efforts to
obtain insurance coverage that would not be voided by this waiver of liability
and (b) notifies the other party in writing that this waiver will not apply.
7. MAINTENANCE AND REPAIRS
During the term of this Lease, Tenant, at its sole expense, shall
maintain the Leased Premises in good condition and repair, and shall make all
repairs, replacements and renewals, whether structural or non-structural,
foreseen or unforeseen, ordinary or extraordinary, interior or exterior,
necessary to put or maintain the Leased Premises in that state of repair and
condition. Tenant's obligations include, but are not limited to, keeping the
sidewalks, parking areas and drives on or about the Leased Premises paved and
striped and in a clean, sightly, and sanitary condition, free of ice and snow;
and keeping all lawns mowed, shrubbery trimmed and yards free of excessive weed
growth so that the lawns and yards shall at all times be maintained in a neat
and presentable condition.
8. UTILITY USE AND INTERRUPTION OF SERVICE
Tenant shall pay for all utilities, furnished to or consumed on the
Leased Premises. Landlord shall not be liable for any stoppage or interruption
of any of said services caused by energy shortages, breakdown of equipment,
riot, labor dispute, accident or necessary repairs or other causes beyond
Landlord's control.
9. TAXES
Tenant shall pay and fully discharge all real property taxes and special
assessments which maybe levied or assessed against the land and improvements of
which the Leased Premises are a part which become due and payable during the
term of this Lease. Tenant shall pay and fully discharge all taxes and
assessments on its personal property which may become due and payable during the
term of this Lease.
10. ALTERATIONS AND LIENS
Tenant shall not make or suffer to be made any alterations of the Leased
Premises or any part thereof exceeding TEN THOUSAND DOLLARS ($10,000.00) without
first obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. Any additions to or alterations of the Lease Premises,
except movable furniture and trade fixtures, shall at once become a part of the
realty and thereafter belong to Landlord. Tenant shall keep the Leased Premises
free from any liens arising out of any work performed, materials furnished, or
obligations incurred by the tenant.
11. SIGNS
Tenant shall erect signs on any portion of the exterior of the Leased
Premises, including but not limited to the exterior walls, windows and doors,
only with written approval of Landlord, which will not be unreasonably withheld.
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12. INDEMNIFICATION
Except to the extent liability is waived under Section 6, Tenant shall
indemnify and hold Landlord harmless against any and all claims, liabilities,
damages or losses resulting from injury or death or any person or damage to
property occurring on or about the Lease Premises or in any manner in
conjunction with the use and occupancy of the Leased Premises in whole or in
part, unless the death, injury or damage was sustained as a result of any
tortuous or negligent act of Landlord, Landlord's agents or employees. In
addition, Tenant shall indemnify and hold Landlord harmless against any claims,
liabilities, damages, losses or expenses resulting from the release of hazardous
substances, hazardous wastes or petroleum products on or from the Leased
Premises or other violations of applicable environmental laws occurring during
the term of this Lease.
13. PERSONAL PROPERTY
All personal property of Tenant in or upon the Lease Premises shall be
at the risk of Tenant only, and Landlord shall not be liable for any damage
thereto or disappearance or theft thereof, unless due to the negligent acts of
Landlord, its employees, agents, and invitees, and Landlord shall not be liable
to Tenant or any person or persons claiming by, through, or under Tenant for any
loss or property or for any damage or injury to persons or property resulting
from plumbing, gas, water, steam, sewer, or other pipes or tanks, or electric,
telegraph or telephone wires or equipment, or due to the happening of any
accident to or about said premises, unless due to the negligent acts of Landlord
and its employees, agents and invitees or unless such damage to Tenant's
personal property results from Landlord's failure to comply with its covenants
and obligations under the Lease.
14. QUIET ENJOYMENT
Landlord covenants that Landlord is lawfully seized of and in possession
of the Lease Premises and agrees that if Tenant shall promptly pay the rent and
perform all of the covenants and agreements herein stipulated to be performed on
Tenant's part, Tenant shall have the peaceable and quiet enjoyment and
possession of the Leased Premises during the term hereof, without any manner of
hindrance from Landlord or any other person lawfully claiming through Landlord,
subject to the conditions herein set forth.
15. FIRE AND CASUALTY DAMAGE
If at any time after the execution hereof, the Leased Premises shall be
wholly or substantially destroyed or damaged by fire, the elements, or casualty,
Tenant shall give immediate written notice thereof to Landlord.
If the Leased Premises are totally or substantially destroyed, then
either party hereto may, at its option, terminate this Lease by giving written
notice thereof to the other party within thirty (30) days after the date of such
casualty. Following a partial destruction or injury [less than fifty percent
(50%) of the Leased Premises] whereby the Tenant shall be deprived of the
occupancy of
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only a portion of the Leased Premises, and if the function of the Tenant's
business is not substantially impaired, this Lease shall not terminate; but a
proportionate allowance shall be made from the Fixed Rent during such period in
the proportion which the number of square feet of the Leased Premises which the
Tenant is deprived of by such damage and the making of repairs bears to the
total square feet of the Leased Premises; and the Landlord shall repair such
damage with due diligence. In the event, however, that the Leased Premises
cannot be replaced, repaired or restored within one hundred eighty (180) days
from the fire or casualty, or if Landlord elects not to make and complete said
replacement, repairs and restoration within said one hundred eighty (180) day
period, Tenant, upon notice in writing to landlord, may terminate this Lease and
surrender possession of said premises to Landlord and thereupon this Lease shall
terminate and be void and Tenant shall not be required to pay or be liable for
any rent from the date of said fire or casualty.
16. CONDEMNATION
If the whole or any substantial part of the Leased Premises shall be
taken or condemned by any competent authority for any public use or purpose, the
term of this Lease shall end upon the date when the possession of the part so
taken shall be required for such use or purpose. Fixed Rent shall be apportioned
as of the date of such termination. In that event, Landlord shall promptly
restore any damage to the leased Premises caused by the taking in a manner
reasonably suitable to Tenant, and if the size of the Building or Tenant's use
of the Leased Premises has been diminished, the Fixed Rent for the Leased
Premises shall be equitably reduced commencing on the date when possession of
the part taken is surrendered by Tenant. The event of any taking, Landlord shall
be entitled to the entire condemnation award, regardless of whether this Lease
is terminated in accordance with this Section 16, except that Tenant shall be
entitled to any separate award allocated by the condemning authority to Tenant's
trade fixtures, personalty and moving expenses. If this Lease is terminated
pursuant to this Section 16, Landlord shall refund to Tenant any rent prepaid
beyond the effective date of termination.
17. INSPECTION BY LANDLORD
Upon twenty-four (24) hours prior written notice, except in an
emergency, Tenant shall permit the Landlord or his agents to enter into and upon
the Leased Premises, accompanied by an employee of Tenant, except in the case of
emergency, at all reasonable times for the purpose of inspecting the same or for
the purpose of placing upon the property in which the Leased Premises are
located, any usual or ordinary "For Sale" signs without any rebate of rent and
without any liability to Tenant for the loss of occupation or quiet enjoyment of
the Leased Premises occasioned thereby and shall permit Landlord at any time
within three (3) months prior to the expiration of this Lease to put upon the
Leased Premises any usual or ordinary "to let" or "to lease" signs, provided,
however, that Landlord shall have 24 hour a day access without notice and
without Tenant's employee being there to perform ordinary janitorial maintenance
services.
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18. OFFSET STATEMENT ATTORNMENT AND SUBORDINATION
(a) OFFSET STATEMENT. Tenant agrees within ten (10) days after request
therefor by Landlord to execute in recordable form and deliver to
Landlord a statement, in writing, certifying:
i. that this Lease is in full force and effect;
ii. that date of commencement of the term of this Lease;
iii. that rent is paid currently without any offset;
iv. the amount of rent, if any, paid in advance; and
v. that there are no uncured defaults by Landlord, or
stating those claimed by Tenant, providing that, if any,
such facts are accurate and ascertainable.
vi. Tenant's obligation to provide the above statements are
contingent upon each such statement being true.
(b) ATTORNMENT. Tenant shall, in the event any proceedings are brought
for the foreclosure of, or in the event of any exercise of the power
of sale under any mortgage made by Landlord covering the Leased
Premises, attorn to the purchaser upon any such foreclosure or sale
and recognize such purchaser as the Landlord under this Lease.
(c) SUBORDINATION. Tenant agrees that this Lease shall, at the request
of the Landlord, be subordinate to any mortgages or deeds of trust
that may hereafter be placed on the Leased Premises by Landlord and
to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, replacements, and extensions thereof,
provided that the mortgagee or trustee may elect to have this Lease
a prior lien to its mortgage or deed of trust, and in the event of
such election and upon notification by such mortgagee or trustee to
Tenant to that effect, this Lease should be deemed prior in lien to
the said mortgage or deed of trust, whether this Lease is dated
prior or subsequent to the date of said mortgage or deed of trust.
Tenant agrees, that upon the request of Landlord, any mortgagee or
trustee, it shall execute whatever instruments may be required to
carry out the intent of this Section. Notwithstanding the foregoing,
this subordination by Tenant is on the condition that Tenant obtains
the written agreement of the holder of said mortgage or deed of
trust that so long as Tenant is not in default under this Lease
beyond the expiration of any cure period, Tenant will not be made a
party to any action to foreclose said mortgage or deed of trust and
the leasehold estate and rights of Tenant created hereby shall not
be affected or terminated by such action or any judgement rendered
as a result thereof.
(d) REMEDIES. Failure of Tenant to execute any of the above instruments
within fifteen (15) days after written request to do so by Landlord
shall constitute a breach of this Lease, and Landlord may, at its
option, cancel this Lease and terminate Tenant's interest therein if
Tenant shall fail to cure such failure to execute the requested
instruments within an additional fifteen (15) days after written
notice by Landlord to Tenant of such breach.
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20. ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or any interest therein, and shall
not sublet the Leased Premises or any part thereof, or any right or privilege
appurtenant thereto or suffer any other person to occupy or use the Leased
Premises or any portion thereof without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld, except that Tenant
shall have the right to assign the Lease to a wholly-owned subsidiary, affiliate
or purchasers of the Tenant without Landlord's consent or enter in time sharing
agreements for the use of its space for the purposes set forth in Section Four
(4). It is understood and agreed that a consent to one assignment or subletting
or occupation or use by any other person shall not be deemed to be a consent to
any subsequent assignment, subletting, occupation or use by any other person.
Any such assignment or subletting without the consent provided for herein shall
be void and shall, at the option of the Landlord terminate this Lease.
21. DEFAULT
Tenant agrees that the violation of any of the foregoing covenants and
conditions shall, at the option of Landlord, void this Lease and render the same
null and void, and shall constitute a ground of forfeiture and ejection under
the provisions for that purpose hereinafter contained if such violation is not
cured within the applicable time period after written notice of the violation to
Tenant, if such written notice is expressly required hereunder.
Provided, however, and this Lease is made upon this condition, that if
Fixed Rent, any part thereof or any other sum due and payable to Landlord
hereunder shall remain unpaid for fifteen (15) days after written notice by
Landlord of such default in payment (but Landlord shall only be required to give
notice of a monetary default two times during the term of this Lease and
thereafter default is automatic), or if Tenant shall assign this Lease or sublet
the Leased Premises, or any part thereof, or any interest therein, without the
consent of Landlord, or if Tenant shall use the Leased Premises for any purpose
other than herein agreed, or if Tenant shall apply for relief under the Federal
Bankruptcy Code, or any similar state or Federal laws providing relief to
debtors, or if an involuntary petition is filed against Tenant under Federal
Bankruptcy Code or any such similar state or Federal laws, or if Tenant shall
make an assignment for the benefit of creditors, or if a receiver or receivers
be appointed for Tenant, or if the interest of Tenant in the Lease Premises
shall be sold under execution, foreclosure, or legal process, or if any judicial
sale of the interest of Tenant be had, or if a voluntary or involuntary sale,
transfer, or assignment of this Lease of any kind or character whatsoever shall
be made, or if Tenant shall fail to perform, keep, fulfill, or observe any of
the terms, agreements, covenants, and conditions contained in this Lease on the
part of Tenant to be kept, performed, fulfilled, or observed, and such failure
shall remain uncured for a period of thirty (30) days after written notice by
Landlord of such failure, it shall be lawful for Landlord at its option to
re-enter into the Leased Premises and the same to have again, repossess and
enjoy, as in its first and former estate, and that without notice to or demand
upon Tenant or any other person, and thereupon, at its option, this Lease and
everything herein contained on the Landlord's behalf to be done and performed,
shall cease, determine, and be utterly void and that without prejudice to any
remedies or proceedings for arrearages of rent, breach of covenant, or
collection of debt, or alternatively this Lease shall remain in full force and
effect. Tenant hereby expressly waives any and all claims or demands for
injuries or damages
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occasioned by and an account of any such re-entry by Landlord. If Tenant
abandons the Leased Premises, or otherwise defaults in performance of this Lease
thereby entitles Landlord to terminate Tenant's possession of the Leased
Premises, and Landlord elects to terminate Tenant's right to possession only
without termination of the Lease, Landlord may, at Landlord's option, enter into
the Leased Premises, remove Tenant's signs and other evidences of tenancy, and
take and hold possession thereof, without such entry and possession terminating
the Lease or releasing Tenant, in whole or in part, from tenant's obligations to
pay all rent due hereunder for the full term, and in any such case Tenant shall
pay forthwith to Landlord, if Landlord so elects, a sum equal to the entire
amount of all rent due under this Lease for the residue of the stated term, plus
any other sums then due Landlord hereunder, including, without limitation,
Landlord's expenses, Landlord's expenses incurred in connection with the default
(such as Landlord's legal, broker/realtor and accounting fees). Upon and after
entry into possession without termination of the Lease, Landlord shall use
reasonable efforts to re-rent the Leased Premises (or such part thereof as
Landlord deems proper) for the account of Tenant, to any persons, firm or
corporation other than Tenant, for such rent and for such time and upon such
terms as Landlord, in Landlord's sole discretion, shall determine, and Landlord
shall not be required to obtain consent of Tenant for such re-renting, nor to
accept any tenant offered by Tenant, or to observe any instructions given by
Tenant about such re-renting. Tenant expressly agrees that, in the event
Landlord, shall enter into possession without terminating this Lease, Landlord
need not attempt to re-let said Leased Premises to any person, firm or
corporation whom Landlord believes might rent other space in the Building or any
other building of Landlord. In any case, Landlord may make repairs,
alternations, and additions in or to the Leased Premises, and redecorate the
same to the extent deemed by Landlord as necessary or desirable, and Tenant
shall, upon demand, pay the cost thereof, together with Landlord's expense of
the re-renting. If the consideration collected by Landlord upon any such
re-renting for Tenant's account is not sufficient to pay the full amount of
Tenant's rent reserved in this Lease, together with the costs of repairs,
alternations, additions, redecorating and all of Landlord's other expenses
incurred in connection with the default (including, without limitation,
Landlord's legal, broker/realtor and accounting fees), Tenant shall pay to
Landlord the amount of the deficiency upon demand; and if the consideration so
collected from any such re-letting is more than sufficient to pay the full
amount of the rent reserved herein, together with the costs and expenses of
Landlord, Landlord may retain the surplus without any duty to pay the surplus to
Tenant.
Any and all property which may be removed from the Leased Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed or stored by Landlord at the risk,
cost and expense of Tenant, and Landlord shall in no event be responsible for
the value, preservation or safekeeping thereof. Tenant shall pay to Landlord
upon demand, any and all expenses incurred in such removal, and all storage,
sale and disposition charges against such property so long as the same shall be
in Landlord's possession or under Landlord's control. Any such property of
Tenant not removed from the Leased Premises or retaken from storage by Tenant
within ten (10) days after removal shall be presumed, at the option of Landlord,
to have been conveyed by Tenant to Landlord under this Lease as a xxxx of sale
without further payment of credit by Landlord to Tenant, and Landlord shall
thereafter be free to use such property for its own benefit, or otherwise sell
or dispose of such property, as Landlord deems appropriate in its sole
discretion.
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If Tenant shall default in the observance or performance of any term or
covenant on its part to be observed or performed under or by virtue of any of
the terms and provisions in any section of this Lease, Landlord, without being
under any obligation to do so and without thereby waiving such default, may
remedy such default for the account of and at the expense of Tenant, immediately
and without notice in case of emergency or in any other case.
If Landlord shall default in the observance or performance of any term
or covenant on its part to be observed or performed under or by virtue of any of
the terms and provisions in any section of this Lease or any term implied in
fact or in law on the part of Landlord to be performed or observed, Tenant
agrees that Tenant shall look solely to Landlord's interest in the Leased
Premises, and no other assets of Landlord shall be subject to levy, execution or
other judicial process or award from the satisfaction of Tenant's claim.
22. TERMINATION AND SURRENDER
Upon the termination of this Lease, whether by lapse of time or
otherwise, Tenant will at once, upon five (5) working days written notice from
Landlord, surrender possession of the Lease Premises to Landlord and remove all
effects therefrom, and if such possession be not immediately surrendered,
Landlord may forthwith re-enter the Lease Premises and repossess itself thereof,
as of its first and former estate, and remove all the effects therefrom without
being deemed guilty of any manner of trespass or forcible entry or detainer. No
receipt of money by Landlord from Tenant after the termination in any way of
this Lease, or after the giving of notice shall reinstate, continue, or extend
the term of this Lease or affect any notice given to Tenant prior to the receipt
of such money. If Tenant shall not remove all effects from the Leased Premises
as above agreed, Landlord may, at its option, after notice, sell said effects or
any of the same at public or private sale for such price as Landlord may deem
best, and apply the proceeds of such sale upon any amounts due under this Lease
from Tenant to Landlord, including the expenses of the removal and sale.
23. ENVIRONMENTAL CONDITIONS
(a) DEFINITIONS. "Environmental Laws" shall mean any federal, state, or
local law, rule, regulation, or ordinance relating to environmental,
health, or safety matters.
"Environmental Damages" shall mean all liabilities, obligations,
responsibilities, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including, without
limitation, attorney, expert and consulting fees, and costs of
investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"Governmental Authority" shall mean any federal, state, or local
entity exercising executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government.
"Hazardous Materials" shall mean any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste, petroleum or
petroleum-derived
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substance or waste or any constituent of any such substance or waste
which is governed by any Environmental Law.
"Release" shall mean any actual or threatened spill, emission,
leak, escape, injection, deposit, or migration of Hazardous Materials.
(b) COVENANTS. Tenant shall not cause or permit, or allow its respective
agents, employees, contractors, or invitees to cause or permit, any
Hazardous Materials to be treated, stored, generated, or disposed
of, on or about the leased Premises, except in compliance with
applicable Environmental Laws.
If there is a Release of Hazardous Materials at the Leased
Premises cause or permitted by tenant, Tenant shall cleanup, remove, or
remediate the Release in compliance with all applicable Environmental
Laws, Tenant shall obtain Landlord's approval prior to undertaking any
such removal or remedial activities which are not urgent and Landlord's
approval shall not be unreasonably withheld or delayed.
If there is a Release of Hazardous Materials at the Leased
Premises caused or permitted by Landlord, any previous Tenant of
Landlord's, any previous owner or previous owners' Tenants, Landlord
shall cleanup, remove, or remediate the Release in compliance with
applicable Environmental Laws.
(c) INDEMNIFICATIONS. Landlord shall indemnify, defend, and hold
harmless Tenant, its officers, directors, employees, and agents from
and against any and all Environmental Damages which arise from: (i)
the presence in upon, about, or beneath the Leased Premises of any
Hazardous Materials requiring remediation under applicable
Environmental Laws and brought upon the Leased Premises by Landlord,
any previous Tenant of Landlord's, any previous owner or previous
owners' Tenants, or a third party; (ii) the breach of this Lease by
Tenant, its agents or contractors, or as a result of the acts or
omissions of Landlord's agents, employees, contractors, or invitees.
Tenant shall indemnify, defend and hold harmless Landlord, its
officers, directors, employees, and agents from and against any and all
Environmental Damages which arise from: (i) the presence upon, about or
beneath the Leased Premises of any Hazardous Materials requiring
remediation under applicable Environmental Laws and brought upon the
Leased Premises by Tenant, or its agents, contractors, employees,
patients and business invitees, or (ii) the breach of this Lease by
Tenant, its agents or contractors, or as a result of the acts or
omissions of Tenant's agents, employees, contractors, or invitees.
These indemnification obligations shall survive the termination
or expiration of this Lease.
(d) PERMITTED USE. Tenant will use the Leased Premises in compliance
with all applicable Environmental Laws.
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(e) TERMINATION. If there is a Release of Hazardous Materials at the
Leased Premises for which Landlord is responsible under this Section
and which interferes with Tenant's use of the Leased Premises,
Tenant shall have the right to terminate the Lease or require
Landlord to remedy the condition giving rise to the breach to
Tenant's reasonable satisfaction.
(f) NOTICE. The parties agree to provide each other with written notice;
(i) upon obtaining knowledge of any potential or known Release of
Hazardous Materials in, on, or from the Leased Premises, or (ii)
upon receipt of any notice of any such potential or known Release.
24. NOTICE
All notices to be given to the Tenant may be given personally or in
writing and sent by the United States registered or certified mail, postage paid
and addressed to the
Landlord: BRC Properties Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxx
Tenant: Dominion Homes, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx X'Xxxxxx
The effective date of notice shall be the date of receipt of said
notice.
25. WAIVERS
The waiver by Landlord of any breach of any term, covenant or condition
herein contained, shall not be deemed to be a waiver of any other term,
covenant, or condition or waiver of any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent acceptance
of rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant, or condition of this Lease
including a breach by virtue of the failure of Tenant to pay the particular rent
so accepted regardless of Landlord's knowledge of such preceding breach at the
time of the acceptance of such rent.
26. HOLDING OVER
Any holding over after the expiration of the term of this Lease without
the consent of Landlord shall be construed to be a tenancy from month to month
at one hundred twenty five percent (125%) of the latest rent sum and shall
otherwise be on the terms and conditions herein specified insofar as applicable.
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27. PARTIES BOUND
The covenants and conditions herein contained shall apply to and bind
the heirs, successors, administrators, and assigns of the parties hereto.
28. OHIO LAW
This Lease shall be construed under and in accordance with the laws of
the State of Ohio, and all obligations of the parties created hereunder are
performable and enforceable in Franklin County, Ohio.
29. LEGAL CONSTRUCTION
In case any one or more of the provisions contained in this Lease shall,
for any reason, be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this Lease shall be construed as if such invalid, illegal,
or unenforceable provision had been contained herein.
30. SOLE AGREEMENT OF THE PARTIES
This Lease constitutes the sole and only agreement of the parties hereto
and supersedes any prior understandings or written or oral agreements between
the parties respecting the within subject matter.
31. AMENDMENT
No amendment, modification, or alteration of the terms hereof shall be
binding, unless the same be in writing, dated subsequent to the date hereof, and
duly executed by the parties hereof.
32. TOPIC HEADINGS
Headings and caption in this Lease are inserted for convenience in
reference only and in no way define, limit, or describe the scope or intent of
this Lease, don not constitute any part of this Lease, and are not to be
considered in the construction of this Lease.
33. TIME IS OF THE ESSENCE
Time is of the essence in this Lease.
34. COMPLIANCE WITH LAWS
During the Lease term, Tenant, at its expense, shall comply with all
present and future laws and regulations applicable to its use and occupancy of
the Leased Premises, and shall make any repairs, modifications or additions to
the Leased Premises as may be required by any such laws or regulations. Tenant
agrees to hold Landlord harmless from any cost, expense or liability
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that may be imposed or assessed against Landlord in connection with Tenant's
noncompliance with any such law or regulation. Notwithstanding the above, Tenant
shall not be obligated to make, and Landlord shall be solely responsible for,
any structural repairs, modifications or additions to the Leased Premises that
(a) are not necessitated by negligent or wrongful actions of Tenant or Tenant's
agents, employees, contractors, licensees or invitees and (b) Landlord would be
required to make as the owner of the Building regardless of the specific nature
of Tenant's use or any hazards associated with Tenant's use.
IN WITNESS WHEREOF, the parties have signed this Lease on the day and
date aforementioned.
LANDLORD
BRC PROPERTIES INC.,
an Ohio Corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Vice President, Sec./Tres.
TENANT
DOMINION HOMES, INC.,
an Ohio Corporation
By: /s/ Xxxxx X. X'Xxxxxx
------------------------------
Xxxxx X. X'Xxxxxx
Senior Vice President and
Chief Financial Officer
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STATE OF OHIO
COUNTY OF FRANKLIN, SS.
BEFORE ME, the undersigned, a Notary Public, personally appeared the
above named BRC Properties, Inc, an Ohio Corporation, by Xxxxx X. Xxxxxx, its
Vice President, who acknowledged the signing of the foregoing instrument to be
his free act and deed and the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Columbus, Ohio, this 21st day of July, 2003.
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
NOTARY PUBLIC
STATE OF OHIO
COUNTY OF FRANKLIN, SS.
BEFORE ME, the undersigned, a Notary Public, personally appeared the
above named Dominion Homes, Inc, an Ohio Corporation, by Xxxxx X. X'Xxxxxx, its
Senior Vice President, who acknowledged the signing of the foregoing instrument
to be his free act and deed and the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Columbus, Ohio, this 21st day of July, 2003.
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
NOTARY PUBLIC
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