Exhibit 10(a)
LEASE
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the latest
date on which it is executed by either of the parties hereto (the "Lease Date").
1. TERMS AND DEFINITIONS. The following capitalized terms shall be defined as
follows:
1.1 LANDLORD: Corporate Exchange Buildings IV and V Limited Partnership,
an Ohio limited partnership, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000.
1.2 TENANT: Frontstep Solutions Group, Inc., 0000 Xxxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxx 00000 (the "Tenant").
1.3 BUILDING: Corporate Exchange Building V, 2800 Corporate Exchange
Drive, Columbus, Franklin County, Ohio.
1.4 PREMISES: Approximately 68,309 rentable square feet (the "Area") of
office and storage space on the lower level, third and fourth floors
of the Building as set forth in Section 2.1 and shown on the diagram
attached as Exhibit A, consisting of approximately 66,118 rentable
square feet of office space on the lower level, third and fourth
floors (the "Office Area") and approximately 2,191 rentable square
feet of storage space on the lower level (the "Storage Area").
1.5 TERM: Two consecutive "Lease Years" (defined in Section 3). The
"Commencement Date" shall be July 1, 2002 and the "Termination Date"
shall be June 30, 2004.
1.6 TENANT IMPROVEMENT ALLOWANCE: Provided Tenant is not in default of its
obligations pursuant to this Lease or under the Lease Agreement with
2600 Realty Corp. V (Landlord's predecessor) dated April 3, 1991 as
amended, Landlord shall pay Tenant a Tenant Improvement Allowance in
the amount of $100,000.00 upon receipt of the executed Commencement
Agreement required by Section 3.
1.7 BASE RENT: $81,998.10 per month, payable as set forth in Section 4.
1.8 TENANT'S SHARE: Tenant's "Share" for Lease calculations shall be
51.38% and shall exclude the Storage Area.
1.9 OPERATING EXPENSES AND REAL PROPERTY TAXES: Operating Expenses and
Real Property Taxes are included in Base Rent.
2. PREMISES AND BUILDING.
2.1 LEASED PREMISES. The Premises shall include all appurtenances and
improvements at any time located thereon. The Area, Office Area and Storage
Area set forth in Section 1.4 shall be used for all purposes of this Lease.
2.2 BUILDING. The Building shall include the Premises, all space leased to
other tenants, all "Common Areas" (defined in Section 2.4), easements,
rights of way and access, and all public, non-public or quasi-public areas.
The real estate on which the Building and parking lot are located is
referred to as the "Land". Landlord retains the right at any time and from
time to time to change the name and/or street address of the Building as
Landlord deems advisable, and Landlord shall not incur any liability to
Tenant as a consequence thereof.
2.3 PARKING. Provided Tenant is not in default of its Lease obligations,
Tenant shall have a license to use, without additional cost, (i) any
unassigned parking provided on the exterior parking lots adjacent to the
Building; and (ii) sixteen parking spaces in the underground parking garage
provided for the Building. One garage parking space will be designated for
Tenant's exclusive use (the "Designated Space") and fifteen garage spaces
will be available in common with other tenants on a first-come-first-served
basis. Landlord will provide sixteen key cards to allow
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entry into the underground parking area. Tenant shall pay Landlord's actual
costs for replacing lost or damaged cards. Tenant shall not use more than
sixteen garage spaces. Landlord is not responsible for policing or
enforcing the exclusivity of any parking spaces, but will use reasonable
efforts to effect exclusivity for Tenant's Designated Space. The location
of any non-exclusive parking space may or may not be assigned and the
location of assigned parking spaces, including Tenant's Designated Space,
may be reassigned from time to time in Landlord's sole discretion. Use of
the underground parking spaces and all other parking areas shall be subject
to Landlord's reasonable rules and regulations.
2.4 COMMON AREAS. "Common Area(s)" shall include both interior and exterior
Common Areas, and shall mean all areas and improvements located on the Land
or in the Building as provided from time to time by Landlord, subject to
Landlord's control and to reasonable rules and regulations prescribed from
time to time by Landlord, for the general use, in common, of tenants, their
officers, agents, employees, and customers, including, but not limited to,
parking areas, walkways, concourses, approaches, elevators, ground floor
lobby area, exits, entrances, stairways, sidewalks, service areas, garbage
and refuse disposal facilities, maintenance and operation facilities,
signs, security, docks and loading areas, and equipment and services at or
on the Land or Building. Landlord may, in its sole discretion, increase,
decrease, or change the interior or exterior Common Areas from time to time
and may close all or part of the Common Areas if necessary to prevent
dedication thereof or the accrual of rights to the public or any person.
3. TERM. The Term of this Lease shall begin on the Commencement Date and shall
expire on the Termination Date without further notice from Landlord, unless
sooner terminated as provided herein. A "Lease Year" shall be twelve
consecutive calendar months starting on the Commencement Date; thereafter,
a Lease Year shall consist of successive periods of twelve calendar months.
Within ten business days after the Commencement Date, Tenant shall deliver
to Landlord an executed Commencement Agreement in the form attached hereto
as Exhibit B.
4. RENT.
4.1 BASE RENT. Tenant shall pay Landlord "Base Rent" for the Premises in
advance in twelve equal monthly installments due and payable on the first
day of each calendar month, without set off or demand, beginning on the
Commencement Date and continuing each calendar month until the expiration
of the Term in the amount set forth in Section 1.7.
4.2 OPERATING EXPENSES. Tenant's Share of the Operating Expenses is
included in the Base Rent.
4.2.1 DEFINITIONS. "Operating Expenses" shall mean all expenses, costs
and disbursements of every kind and nature relating to or incurred or
paid in connection with the ownership, management, service, repair,
improvement and operation of the Building and Land, including, but not
limited to, the following: (i) wages, salaries, taxes, insurance and
benefits of all persons directly engaged in, or properly allocable to,
management, operation, maintenance, security or access control for the
Building or Land; (ii) supplies, tools, equipment and materials used in
the management, operation and maintenance of the Building or Land;
(iii) all utilities for the Common Areas, including, but not limited
to, water and power for heating, lighting, air conditioning and
ventilation; (iv) trash removal services; (v) all management,
maintenance and service agreements for the Building and Land and the
equipment therein, including, but not limited to, property management,
security service,
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window cleaning, elevator maintenance and janitorial service; (vi)
repairs, replacements, repainting, decorating and general maintenance
(excluding repairs and general maintenance paid by proceeds of
insurance or by tenants or other third parties); (vii) amortization of
"Designated Capital Investment Items" (defined below); (viii) all
insurance obtained by Landlord for the Building and Land, which may
include, without limitation, fire and extended coverage insurance,
rental insurance and liability insurance applicable to the Building and
Land and to Landlord's personal property used in connection therewith;
(ix) license, permit and inspection fees; (x) snow and ice removal;
(xi) paving, striping and repair of parking areas; (xii) interior and
exterior landscaping services; (xiii) reasonable legal fees of outside
or special counsel retained by Landlord in connection with proceedings
to reduce real estate taxes, labor relations or other matters of
general benefit to tenants in the Building; and (xiv) an administrative
charge equal to 10% of all other Operating Expenses. Landlord, or its
affiliate, may perform services for the Building and Land, provided
that the charges are commercially reasonable compared to then current
charges for similar services in comparable buildings in the Columbus
area. "Operating Expenses" shall exclude the following: (1) payments of
principal and interest on mortgages, loans or ground leases; (2)
leasing commissions; (3) costs of preparing, improving or altering any
space in preparation for occupancy of any new or renewal tenant; (4)
depreciation or amortization of the Building, or any equipment or other
property; (5) any and all collection costs, including legal fees and/or
bad debt losses or reserves; (6) any costs or expenses arising from
Landlord's violation of any laws or ordinances or governmental rules,
regulations or orders with which it is Landlord's obligation to comply
pursuant to this Lease; and (7) costs incurred by Landlord to the
extent that Landlord is reimbursed by insurance proceeds, governmental
agencies or entities, or any tenant or other person.
"Designated Capital Investment Items" shall mean capital investment
items which are installed to reduce or avoid increases in Operating
Expenses, are required by governmental authority, or improve the
operating efficiency of the Building or Land. Costs of Designated
Capital Investment Items shall be amortized over the item's useful life
as reasonably determined by Landlord.
4.2.2 COMPUTATION AND PAYMENT. If Tenant's Share of the Operating
Expenses is not included in Base Rent, then Tenant's Share of the
Operating Expenses shall be payable on the first day of each month, in
advance, in an amount equal to 1/12th of the initially estimated annual
rate per square foot. Landlord may adjust the estimated monthly charge
at the end of each calendar quarter based on Landlord's reasonably
anticipated costs for the next quarter. Within 120 days after the end
of each calendar year during the Term and any renewals or extensions
thereof, Landlord shall furnish Tenant with a written statement of the
actual Operating Expenses for that calendar year. If Tenant's Share of
the actual Operating Expenses for any year of occupancy exceeds
Tenant's payments for that year, Tenant shall pay Landlord the
deficiency within ten days after receipt of written notice of the
deficiency. If Tenant's payments for any year exceed Tenant's Share,
the excess shall be applied to future payments or refunded at the end
of the Term if no renewal options exist or have been exercised and if
Tenant surrenders the Premises without default. Operating Expenses
shall be computed annually on a calendar year basis using the accrual
method. Tenant's Share of Operating Expenses for a partial first and/or
last Lease Year shall be pro-rated based on the number of days of the
applicable Lease Year falling within the calendar year.
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4.2.3 AUDIT. Provided there is no Event of Default continuing under
this Lease and provided that Tenant strictly complies with the
provisions of this Section 4.2.3, Tenant shall have the right, during
normal business hours and upon reasonable advance notice to Landlord,
to reasonably review, at its expense, supporting data for any portion
of Landlord's annual statement of Operating Expenses; provided,
however, that the audit shall not be conducted by a third-party
contingency auditor. The audit shall be conducted at Landlord's offices
located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000. Tenant must
notify Landlord and commence its audit within sixty days after receipt
of Landlord's statement of reconciled Operating Expenses for the
calendar year it seeks to audit, or Tenant's right to audit shall be
waived as to that calendar year. Tenant must have paid all outstanding
balances required by Landlord's statement of reconciled Operating
Expenses before requesting the review and must complete its audit
within ninety days. Tenant agrees that all documents and data reviewed
hereunder are confidential information of Landlord and shall not be
disclosed to anyone other than those persons performing the review and
principals of Tenant. Any improper disclosure is a material breach of
the Lease. Any discrepancies which Tenant's auditor proves by clear and
convincing evidence shall be paid by Landlord to Tenant, or by Tenant
to Landlord, within thirty days after proof is made. This provision
shall survive the termination of this Lease for sixty days.
4.3 REAL PROPERTY TAXES. "Real Property Taxes" means all real property
taxes and general and special assessments levied against the Land,
Premises, Building and all improvements thereon. Tenant's Share of the Real
Property Taxes is included in Base Rent.
4.4 PAYMENT OF RENT. Tenant shall pay its Share of Operating Expenses and
Real Property Taxes together with Base Rent, in twelve equal installments,
in advance, on the first day of each calendar month during the Term and any
extensions and renewals thereof. Tenant's obligation to pay Base Rent, its
Share of Operating Expenses and Real Property Taxes, and all other charges
due and payable hereunder (collectively, "Rent") shall be an independent
covenant, separate from any covenants of Landlord in this Lease, and Rent
shall be paid without set off, recoupment or demand, and without any
counterclaim or abatement. Installments of Base Rent, Operating Expenses
and Real Property Taxes for partial calendar month(s) shall be pro-rated
and the pro-rated installments shall be paid in advance.
4.5 LATE CHARGE. Delinquent installments or payments of Rent shall be
subject to a late charge equal to 5% of the delinquent amount. The late
charge is intended to compensate Landlord for loss and expense occasioned
by the delinquency in payment. The provisions herein for a late charge
shall not be construed to extend the date for payment of any installment of
Rent, to relieve Tenant of its obligation to pay Rent when due, or as a
waiver or cure of any default by Tenant. In addition, all Rent shall bear
interest from the date when due until paid at the lesser of eighteen
percent per year or the maximum rate of interest allowed by law.
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5. USE OF PREMISES.
5.1 PERMITTED USE. The Tenant named in Section 1.2 of this Lease shall use
and occupy the Premises solely for the purpose of providing business
software and services for manufacturing, distribution and other companies
and related e-business consulting services ("Tenant's Use"). The Premises
shall not be used or occupied for any other purpose or business or by any
other occupant, nor shall any activity inconsistent with the permitted use
be conducted without Landlord's prior written consent. All uses must be
legal and comply with all applicable governmental and quasi-governmental
rules, regulations, laws, codes, and ordinances.
5.2 GENERAL USE AND OCCUPANCY OBLIGATIONS. Tenant shall use, occupy and
keep the Premises in a careful, safe, clean and proper manner and
condition, and shall comply with all local ordinances and the lawful
direction of proper public officers. Tenant shall at its own expense: (i)
conduct its business in all respects in a dignified manner in accordance
with the high standards of operation of a first class building; (ii) keep
all mechanical and electrical apparatus in good repair, free of vibration
and noise which may be transmitted beyond the Premises; (iii) keep any
garbage, trash, rubbish or refuse in appropriate containers within the
interior of the Premises until removed; (iv) Tenant may use any trash
dumpsters provided by Landlord for tenants in the Building, provided that
if Tenant's use exceeds the amount Landlord deems reasonable, Tenant shall
pay additional charges imposed by Landlord upon presentation of an invoice
therefor. Tenant shall not permit or commit waste on the Premises.
5.3 GENERAL USE AND OCCUPANCY PROHIBITIONS. Tenant shall not without
Landlord's prior written consent: (i) place or maintain any merchandise,
trash, refuse or other articles in any vestibule or entry of the Premises
or the Building, on the foot walks, corridors, sidewalks or parking areas
adjacent thereto, or elsewhere on the exterior of the Premises or the
Building, or obstruct any driveway, foot walk, aisle or stairway; (ii) use
or permit the use of any audible, moving or flashing advertising medium
which is in any manner audible or visible outside the Premises; (iii) cause
or permit odors to emanate or be dispersed from the Premises; (iv) solicit
business in the Common Areas; (v) park delivery trucks or other vehicles,
or load or unload merchandise, equipment or personal property in a way that
interferes other tenants or with the use of any driveway, foot walk, aisle,
stairway or other common facility; (vi) block or impede access to the
Building; (vii) receive or ship articles of any kind except at times which
Landlord may establish, in its discretion; (viii) use foot walks or other
Common Areas for the sale or display of any merchandise; (ix) conduct or
permit to be conducted any wholesale, auction, fire, going out of business,
bankruptcy, or other similar sale in or connected with the Premises; (x)
suffer or commit waste; (xi) use or permit the use of any portion of the
Premises for any unlawful purposes; or (xii) store merchandise, equipment
or other personal property outside the Premises.
5.4 COMPLIANCE WITH LAWS. Tenant, at its own expense, shall comply with the
present and future requirements of law and with all present and future
ordinances, statutes, regulations, directives, orders, or other lawful
enactments or pronouncements of any federal, state, municipal or other
lawful authority applicable to the Premises and of any insurance company
insuring the Premises or insuring Landlord against liability for accident
or injury in or upon the Premises. Tenant shall obtain and maintain in
effect all permits and licenses necessary for the operation of Tenant's
business and shall pay all licenses, fees and taxes arising out of its
business or its use and occupancy of the Premises. Tenant shall make all
repairs, alterations, additions or replacements to the Premises required by
any present or future law, statute, ordinance, order or regulation of any
governmental authority. Specifically, and without limiting the generality
of the foregoing,
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after the Premises are delivered to Tenant, Tenant shall be wholly
responsible for any accommodations or alterations that are required by any
applicable governmental codes, ordinances, rules, regulations and laws to
be made to the Premises to accommodate disabled employees, licensees and
invitees of Tenant, including, without limitation, compliance with the
Americans with Disabilities Act of 1990 ("ADA") . Notwithstanding the
foregoing, Tenant shall not be responsible for structural alterations to
the Premises required by this Section, unless required because of Tenant's
particular use of the Premises.
6. QUIET ENJOYMENT. If and so long as Tenant pays the Rent reserved hereunder
and observes and performs all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant may peaceably and
quietly have, hold and enjoy possession of the Premises during the Term without
hindrance by Landlord or any party lawfully claiming through Landlord, subject
to all of the provisions of this Lease.
7. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES.
7.1 HAZARDOUS SUBSTANCES. The term "Hazardous Substances" as used in this
Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls, chemicals known
to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and
petroleum products, and substances declared to be hazardous or toxic under
any law or regulation now or hereafter enacted or promulgated by any
governmental authority.
7.2 TENANT'S RESTRICTIONS. Neither Tenant, nor any of its employees,
agents, contractors, representatives, licensees, customers or invitees
shall: (i) violate any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental conditions
on, under, or about the Premises, or arising from Tenant's use or occupancy
of the Premises, including, but not limited to, soil and ground water
conditions; or (ii) cause or permit the use, generation, release,
manufacture, refining, production, processing, storage, or disposal of any
Hazardous Substance on, under, or about the Premises, or the transportation
to or from the Premises of any Hazardous Substance.
7.3 ENVIRONMENTAL CLEAN-UP. Tenant shall, at Tenant's own expense, comply
with all laws regulating the use, generation, storage, transportation, or
disposal of Hazardous Substances ("Laws"). Tenant shall, at Tenant's own
expense, make all submissions to, provide all information required by, and
comply with all requirements of all governmental authorities (the
"Authorities") under the Laws. Should any Authority or any third party
demand that a clean-up plan be prepared and/or that a clean-up be
undertaken because of any deposit, spill, discharge, and/or other release
of Hazardous Substances that occurs during the Term (as extended), of this
Lease, originating at or from the Premises, and/or which arises at any time
from Tenant's use or occupancy of the Premises, then Tenant shall, at
Tenant's own expense, prepare and submit the required plans and all related
bonds and other financial assurances; and Tenant shall carry out all
clean-up plans. Tenant shall promptly provide all information regarding the
use, generation, storage, transportation, or disposal of Hazardous
Substances that is reasonably requested by Landlord. If Tenant fails to
fulfill any duty imposed under this Section 7.3 within a reasonable time,
Landlord may but shall not be required to do so; and Tenant shall cooperate
with Landlord in order to prepare all documents Landlord deems necessary or
appropriate to determine the applicability of the Laws to the Premises and
Tenant's use thereof, and for compliance therewith, Tenant shall execute
all documents promptly upon Landlord's request and Tenant shall pay, as
additional Rent, all of Landlord's costs (including reasonable attorneys'
and consultants' fees) in
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fulfilling Tenant's obligations hereunder. No such action by Landlord and
no attempt made by Landlord to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Section 7.
7.4 TENANT'S INDEMNITY AS TO ENVIRONMENTAL MATTERS. Tenant shall indemnify,
defend, and hold harmless Landlord, the property manager, and their
respective officers, directors, beneficiaries, shareholders, partners,
agents, and employees from all fines, suits, procedures, claims, and
actions of every kind, and all costs associated therewith (including
reasonable attorneys' and consultants' fees) arising out of or in any way
connected with a breach of its covenants set forth in Sections 7.2 and 7.3.
7.5 LANDLORD'S WARRANTY AND INDEMNITY. Landlord warrants to Tenant, to the
best of its actual knowledge without any duty of inquiry, that as of the
Commencement Date the Premises and Building do not contain any Hazardous
Substances, including asbestos. Landlord agrees to indemnify, defend and
hold Tenant harmless from a breach of the foregoing warranty and all
related fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith (including reasonable attorneys' and
consultants' fees).
7.6 SURVIVAL. Tenant's obligations and liabilities under this Section 7
shall survive the expiration of this Lease.
8. LEASEHOLD ALTERATIONS.
8.1 TENANT IMPROVEMENTS. By occupying the Premises, Tenant accepts the
Premises in their "AS IS-WHERE IS" condition and acknowledges that they
fully comply with Landlord's covenants and obligations hereunder. Neither
Landlord nor its agents or employees make any warranty or representation,
express or implied, regarding the condition of the Premises or its fitness
for any particular use or purpose.
8.2 SUBSEQUENT ALTERATIONS. Tenant shall not make, or allow to be made, any
alterations, additions or improvements to the Premises without Landlord's
prior written consent. Tenant shall submit a statement of all planned
alterations, together with drawings, plans, specifications, and description
of materials before starting any work. Neither Landlord's review and
approval of Tenant's plans and specifications, nor its observation or
supervision of the construction or installation thereof, shall constitute
any warranty or agreement by Landlord that they comply with applicable
codes, ordinances, rules, regulations and/or laws ("Codes"). Tenant's
alterations shall be approved by all appropriate governmental or
quasi-governmental agencies, and Tenant shall obtain all applicable permits
and authorizations before commencing work. After obtaining Landlord's
consent, and prior to commencing work, Tenant shall deliver to Landlord
copies of all required building permits, an executed construction contract,
an executed Notice of Commencement pursuant to Ohio Revised Code Section
1311 et seq., and, if not previously provided, property damage and
liability insurance policies naming Landlord as an additional insured. All
changes and alterations shall be made at Tenant's cost in strict compliance
with the approved plans and specifications, shall be performed in a good
and workmanlike manner, shall not affect any Building systems or any
structural parts of the Building, and shall not interfere with the quiet
enjoyment of other tenants. Landlord shall have the right to inspect the
alterations during and after construction. Tenant shall immediately correct
any alterations which do not comply with Codes, do not conform to permits
or to the approved plans and specifications, or adversely affect the
Building structure or any Building systems ("Non-Conforming Alterations").
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Tenant shall pay Landlord $150.00 per day for each day after the 5th day
following Landlord's written notice that the Non-Conforming Alterations
remain uncorrected.
All alterations, additions, fixtures, or improvements made or installed by
either party (except Tenant's moveable trade fixtures, personal property,
furniture and signs), shall become a part of the Premises when made and
shall remain upon and be surrendered with the Premises at the termination
of this Lease for any reason; except, however, if Landlord requires that
Tenant remove any specified alterations, additions, improvements or
fixtures, then Tenant, at its expense shall remove the designated items and
restore the Premises to their original condition.
9. MECHANICS' LIENS. Tenant shall keep the Premises, the Building, and the
Land free and clear of all mechanics' and/or materialman's liens resulting from
work done by or for Tenant. If any mechanics' or materialman's liens are filed
against the Premises or the Building as a result of or purporting to be the
result of any work for or act of Tenant, Tenant shall discharge the lien within
thirty days of notice thereof by payment, or by notice and bond meeting the
requirements of the Ohio Revised Code. If Tenant does not timely discharge the
lien, Landlord may pay the lien for Tenant's account without inquiring into its
validity and treat the amount of the payment as additional Rent immediately due
from Tenant; and/or treat Tenant's failure to discharge the lien as a default.
Nothing in this Lease shall be construed as constituting the express or implied
consent or request of Landlord to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of any materials,
fuel, machinery or supplies or any specific improvements, alterations of or
repair to the Building or the Premises or any improvement thereto, nor as giving
Tenant any right, power or authority to act as Landlord's agent to contract for,
or to permit the performance or furnishing of any labor, materials, fuel,
machinery or supplies on any basis which would entitle any person to assert
and/or perfect a mechanic's lien or other claim encumbering the Building, the
Premises or Landlord's interests in the Premises. Tenant shall post and maintain
at the Premises the executed and recorded Notice of Commencement, as required by
the Ohio Revised Code, Section 1311 et seq.
10. SIGNS. Subject to the repair, removal and governmental approval
requirements of this Section, Tenant shall have the right to maintain the
existing signs described on Exhibit C. Tenant shall not place any sign, banner
or advertising display of any kind on the exterior of the Premises, or any part
of the interior visible from the exterior, without (i) Landlord's prior written
approval and (ii) obtaining all required governmental approvals. Disapproval
based on color, size, sign material, method of mounting, support or attachment,
location or non-conformance to style or architectural integrity of the Building
is deemed reasonable. Tenant shall maintain all signs, banners, decorations,
lettering or advertising displays permitted hereunder in good condition and
repair at all times and shall remove them and restore the Building to its
previous condition at the termination of this Lease, unless otherwise directed
by Landlord.
11. LANDLORD SERVICES. Provided that no Event of Default has occurred and is
continuing, and subject to the provisions of Section 11.7, Landlord will furnish
the utilities and services described below. All normal charges for utilities and
services, including water, heating, ventilation, air-conditioning, Building
electricity, janitorial services, security, and maintenance are included in
Operating Expenses.
11.1 HEATING AND AIR-CONDITIONING. Landlord shall provide heating,
ventilation, and air-conditioning ("HVAC") necessary, in Landlord's
estimation, for comfortable occupancy of the Premises under normal business
conditions on Monday through Friday from 8:00 A.M. to 6:00
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P.M., and Saturday from 8:00 A.M. to 1:00 P.M., holidays excepted
("Building Hours"). Landlord shall not be liable to Tenant if HVAC services
are interrupted or terminated because of repairs or alterations, local,
county, state, and federal laws, regulations and curtailments, or causes
beyond Landlord's reasonable control. Landlord will take reasonable steps
to restore the interrupted services. Tenant shall cooperate with Landlord
and abide by all regulations and requirements which Landlord may reasonably
prescribe for the proper functioning and protection of the HVAC systems.
11.2 ELECTRICITY. Landlord shall provide electricity for a reasonable level
of illumination using 2x4 florescent light fixtures or other equipment
providing substantially similar illumination. Landlord is not required to
provide electricity for reproduction equipment other than machinery
requiring standard 110 volt power, for computers or other equipment except
standard personal computers, electric typewriters and desk adding machines,
nor for any equipment requiring greater voltage than the lighting circuits
standard in the Building. Any installation of nonstandard office equipment
must have Landlord's prior approval, which will not be unreasonably
withheld, conditioned or delayed, and shall be subject to special charges
and regulations. Landlord shall provide all light bulbs, light globes,
florescent tubes, ballasts and/or starters used in the Premises and
maintain the florescent lighting equipment located in the Premises. The
expense of lighting supplies and maintenance is included in Operating
Expenses.
11.3 ELEVATOR SERVICE. Landlord shall provide public passenger elevator
service during Building Hours, and shall have one elevator subject to call
at times when normal passenger service is not furnished.
11.4 JANITORIAL SERVICES. Landlord shall provide janitorial service for and
maintain the Common Areas of the Building. Landlord shall also provide the
following janitorial services for the Premises: trash removal and ordinary
dusting and vacuuming according to building standards. Janitorial services
shall not include shampooing carpets or rugs, cleaning draperies or
furniture, or other unusual services.
11.5 WATER. Landlord shall provide water for drinking, lavatory, and toilet
purposes in the Common Areas drawn through fixtures installed by Landlord,
and to the Premises, if applicable.
11.6 ADDITIONAL SERVICES. If Tenant requires more cleaning services, HVAC,
electricity, elevator or other services than Landlord reasonably determines
is customary for similar office space in the Columbus area or if Tenant
requires utility or other services outside Building Hours, Landlord may,
upon advance notice to Tenant, furnish the additional services and Tenant
shall pay Landlord upon demand an expense charge, determined by Landlord,
for the costs incurred in providing the additional service. Payment for
these additional services shall be made by Tenant directly to Landlord, and
shall not be included in Operating Expenses. If Tenant requires new or
additional electrical facilities or other utility installations, such as
wiring, plumbing, conduit and/or mains, Tenant shall submit detailed plans
and specifications to Landlord for written approval. Upon receipt of
Landlord's written approval, Tenant shall make all arrangements for and pay
all the costs of the additional services, including construction, meters,
and connections, in conformance with Sections 8.2 and 9. The additional
utilities shall be metered and billed to Tenant.
11.7 PAYMENT. Tenant shall pay for any additional services billed directly
to Tenant within ten days after the date of Landlord's invoice. Failure to
pay additional service charges or any Rent
Page 9
when due, shall entitle Landlord, upon not less than five days' written
notice, to stop furnishing the additional services. Discontinuing services
pursuant to this Section 11.7 shall be cumulative with Landlord's other
remedies, and shall not be deemed an eviction or disturbance of Tenant's
use and occupancy of the Premises, render Landlord liable to Tenant for
damages, relieve Tenant from the performance of Tenant's covenants and
agreements hereunder, or prejudice Landlord's exercise of any other
remedies available to it at law or in equity.
11.8 LIABILITY FOR SERVICE. Landlord shall not be liable for damages, by
abatement of rent or otherwise, for failure to furnish or delay in
furnishing any service, or for any diminution in the quality or quantity
thereof, when the failure or delay or diminution is occasioned, in whole or
in part, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Building after
reasonable effort so to do, by any accident or casualty, by act or default
of Tenant or other parties, or by any other cause beyond Landlord's
reasonable control; and failures, delays and/or diminution shall not be
deemed to constitute an eviction or disturbance of Tenant's use and
possession of the Premises or relieve Tenant from the obligation to pay
Rent or perform any of its other obligations under this Lease. Landlord
also reserves the right temporarily to suspend, delay or discontinue
furnishing any of the services to be provided by Landlord under this Lease,
without abatement or diminution in Rent and without any liability to Tenant
as a result thereof, for inspections, cleaning, repairs, replacements,
alterations, improvements or renewals which Landlord deems necessary or
desirable, provided that Landlord shall make reasonable efforts to minimize
interference with Tenant's normal business operations and shall, to the
extent reasonably possible under the circumstance, give Tenant advance
notice of any proposed suspension of services. If any utility service
furnished by Landlord is interrupted, delayed or terminated because of
repairs, alterations, or any cause beyond Landlord's reasonable control,
Landlord will take all reasonable steps to restore the interrupted utility
or service promptly.
12. REPAIRS. Tenant shall keep the Premises at all times in a clean, neat and
sanitary condition, as required by Section 5.2 of this Lease. Landlord will make
all repairs necessary to maintain the structure, plumbing, HVAC, and electrical
and mechanical systems serving the Building and, if installed by Landlord, the
Premises provided, as to the Premises, Tenant gives written notice of the
necessity for repair. All repairs by Landlord shall be Operating Expenses.
Notwithstanding the foregoing, if any damage to the Premises or Building is
caused by the negligence or willful act of Tenant, its concessionaires,
officers, agents, invitees, employees, licensees or contractors, Landlord shall
perform the repairs and Tenant shall pay the costs thereof plus Landlord's
supervisory fee of 15% of the cost thereof. All other maintenance, alterations
and repairs to the Premises or to any plumbing, sewer lines, electrical or other
mechanical installation placed in the Premises by Tenant, or to any of Tenant's
improvements or fixtures, are solely Tenant's responsibility; provided, however,
if the repairs affect the Building's structural components or the major
mechanical, electrical, plumbing, HVAC or other systems servicing the Building,
Landlord shall perform the repairs on behalf of Tenant and Tenant shall pay
Landlord on demand for the cost thereof plus Landlord's 15% supervisory fee. If
Tenant refuses or neglects to make and/or diligently complete any repairs which
are its obligation to make hereunder after written notice from Landlord of the
need therefor, Landlord may, but shall not be obligated to, make the repairs at
Tenant's expense. The expense of the repairs plus Landlord's 15% supervisory fee
shall be collectible on demand as additional Rent.
13. ACCESS TO PREMISES. Landlord, its employees and agents shall have the right
to enter the Premises at all reasonable times and upon reasonable notice for the
purpose of examining or inspecting the same; showing the same to mortgagees or
to prospective purchasers, mortgages or
Page 10
tenants of the Building; for performing all janitorial and custodial services
and providing all utilities required by this Lease; for inspection by public
officials for health, building code, or fire and safety purposes; and/or for
making any replacements, alterations, repairs, improvements or additions to the
Premises or the Building that Landlord deems necessary or desirable. If Tenant's
representatives are not be present to open and permit entry into the Premises at
any time when entry by Landlord is necessary or permitted hereunder, Landlord
may enter by means of a master key (or forcibly in the event of an emergency)
without liability to Tenant and without the entry constituting an eviction of
Tenant or termination of this Lease. Landlord shall not be liable for any
expense, loss or damage resulting from any emergency entry.
14. DAMAGE FROM CERTAIN CAUSES. Landlord shall not be liable for any damage
done or caused by the electrical, HVAC, plumbing, sewer, or sprinkler systems in
the Premises or the Building, nor for damage from water, snow or ice coming
through roofs, ceilings, walls, windows or otherwise, nor for the willful or
negligent acts of other tenants, or their agents, employees, representatives,
contractors, licensees or invitees. Landlord shall not be liable for damage
occasioned by the construction of the Premises and/or Building or by failure to
repair, except that Landlord shall be liable to Tenant for actual (but not
consequential) damages suffered by Tenant if Landlord fails to perform a repair
which Landlord is obligated to perform under this Lease within a reasonable time
after Landlord has actual notice of the need for the repair. Landlord shall not
at any time be liable for any damage to Tenant or to Tenant's materials,
personal property, fixtures, furniture, furnishings, equipment, ceiling, floor
and wall coverings, stock or merchandise regardless of the cause thereof unless
the damage is caused solely by the gross negligence or willful misconduct of
Landlord. In no event shall Landlord be obligated under any provision of this
Lease to repair any damage caused by any act, omission or negligence of Tenant
or its employees, agents, invitees, licensees, sublessees, or contractors.
15. TRANSFER, ASSIGNMENT AND SUBLETTING.
15.1 BY TENANT. Tenant shall not assign or hypothecate this Lease or any
interest herein or sublet the Premises or any part thereof without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, provided that Landlord's determination that (i) the proposed
assignee or subtenant would adversely affect the Building, other tenants
in the Building, or the image or reputation of the Building, (ii) the
proposed assignee's or subtenant's business would cause a material
increase in Operating Expenses, (iii) the financial condition of the
proposed assignee or subtenant are unacceptable to Landlord, or (iv) the
proposed tenant's business would be disruptive or would violate an
exclusive use provision contained in any other lease in the Building, (v)
the proposed tenant is an existing tenant or occupant of Corporate
Exchange Buildings IV or V or a person or entity with whom Landlord is
negotiating or has negotiated for the lease of space in Corporate Exchange
Buildings IV or V, shall be a reasonable basis for withholding consent. No
assignment shall be effective, whether or not Landlord's consent is
required, unless and until Landlord receives an executed copy of the
assignment, in recordable form, under which the assignee assumes this
Lease and agrees to perform and observe Tenant's covenants and conditions.
Tenant may assign this Lease or sublet any portion of the Premises without
Landlord's consent to any of the following: an affiliate or subsidiary of
Tenant; a corporation resulting from the merger or consolidation of
Tenant; or a person or entity which acquires Tenant or substantially all
the assets of Tenant's business, provided that the acquiring entity's net
worth is greater than Tenant's net worth on the Commencement Date. For the
purpose of this Section 15, an "affiliate" shall
Page 11
mean an entity which directly or indirectly controls, is controlled by, or
is under common control with Tenant; "control" shall mean direct or
indirect power to direct the management and policies of the corporation
through ownership of voting securities, by contract or otherwise; and
"subsidiary" shall mean an entity for which Tenant owns more than 50% of
the outstanding stock.
There shall not be more than one subletting during the Term, or any
extensions or renewals, without Landlord's consent which may be withheld
for any reason. Tenant shall pay Landlord as Rent, the entire amount of any
and all rents, additional rents, additional charges or other consideration
payable under or in connection with any approved sublease, which exceeds
the Rent accruing under this Lease, including all sums paid for the sale or
rental of Tenant's fixtures, leasehold equipment, furniture or other
personal property. The sums due hereunder shall be Rent, due and payable at
the time they are payable by the subtenant under the sublease.
Regardless of Landlord's consent, no subletting or assignment shall
release Tenant from Tenant's obligations or alter the primary liability of
Tenant to pay Rent and to perform all other obligations to be performed by
Tenant hereunder. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against any
assignee or successor. Landlord may consent to subsequent assignment or
subletting of this Lease or amendments or modifications to this Lease with
assignees of Tenant without notifying Tenant or any successor of Tenant,
and without obtaining its or their consent thereto and such action shall
not relieve Tenant of liability under this Lease. Tenant shall reimburse
Landlord for Landlord's costs, including reasonable attorney's fees,
incurred in connection with processing any proposed assignment or sublease
hereunder.
15.2 BY LANDLORD. Landlord shall have the right to transfer and assign, in
whole or in part, all of its rights and obligations hereunder and in the
Building, and Tenant shall look to the purchaser, assignee or transferee
of Landlord's interest in this Lease for the performance of Landlord's
obligations hereunder, and Landlord shall from and after the conveyance,
assignment or transfer be relieved and discharged from any and all
liabilities and obligations under this Lease. Tenant shall attorn to any
the purchaser, assignee or transferee.
16. SURRENDER OF PREMISES. At the end of the Term through expiration, early
termination, or otherwise, Tenant shall surrender the Premises to Landlord,
together with all alterations, additions and improvements thereto, in as good
condition, broom clean and free of Tenant's property and any subtenancies, as it
was on the Commencement Date, ordinary wear and tear excepted. If Tenant is not
in default, Tenant shall have the right at the end of the Term to remove any
equipment, furniture, inventory or other personal property placed in the
Premises by Tenant provided that removal does not cause structural damage. If
requested by Landlord as provided in Section 8.2, Tenant shall remove any
alterations, additions, improvements or installations designated by Landlord.
Within seven calendar days after the Termination Date, Tenant at its cost shall
repair any damage to the Premises, Building and/or Land caused by the removal of
Tenant's property and shall restore the Premises, Building and/or Land to the
condition in which they were prior to the installation of the items removed,
ordinary wear and tear excepted.
17. INDEMNIFICATION AND LIABILITY. Tenant shall indemnify, and save Landlord
harmless and, at Landlord's option, defend Landlord (with counsel acceptable to
Landlord) from and against any and all costs, expenses (including attorney's
fees), liabilities, losses, damages (actual and/or
Page 12
punitive), suits, penalties, actions, fines, claims, judgments or demands of any
kind asserted by or on behalf of any person or governmental authority, arising
out of or in any way connected with the Premises or Tenant's use thereof, and
Landlord shall not be liable to Tenant on account of: (i) Tenant's failure to
perform any of the agreements, covenants, terms or conditions of this Lease
required to be performed by Tenant, (ii) any failure by Tenant to comply with
any statutes, ordinances, regulations or orders of any governmental authority,
or (iii) any accident, death or personal injury, or damage to or loss or theft
of property, which shall occur in or about the Premises unless caused solely by
the gross negligence of Landlord, its employees or agents. This Section shall
not be construed to impose upon Landlord any liability as to which rights of
subrogation have been waived pursuant to Section 18.4 of this Lease.
18. INSURANCE.
18.1 TENANT'S COVERAGE. Tenant at its cost shall maintain commercial
general liability and property damage insurance with a minimum single
combined liability limit of $1,000,000 or split limits of $1,000,000 and
$2,000,000, with Fire Legal Liability endorsements, insuring against all
liability of Tenant, its employees, agents and guests, licensees and
invitees, arising out of or in connection with Tenant's use or occupancy
of the Premises and including a contractual liability endorsement covering
the matters set forth in Section 17 and insuring Tenant's performance of
all indemnification provisions of this Lease. Tenant shall insure the full
replacement cost of all alterations and improvements made by Tenant in and
to the Premises and all of Tenant's trade fixtures, furniture,
decorations, equipment, floor and wall coverings and all other items of
personal property of Tenant located on or within the Premises. Tenant also
shall maintain insurance, in form and amount satisfactory to Landlord,
against injury of any kind to person or property suffered by others as a
result of the intentional or negligent acts of Tenant or those persons in
the Premises or Building or on the Land in connection with Tenant. If, in
the reasonable opinion of Landlord, Landlord's mortgagee or Landlord's
insurance carrier, the amount of public liability or property damage
insurance coverage provided in this Section 18.1 is not adequate, Tenant
shall increase the insurance coverage as required by Landlord or by
Landlord's mortgagee or insurance carrier. No damages, compensation, loss
of income, inconvenience, loss of business, annoyance or other claims
shall be payable by Landlord arising from any fire or other casualty or
from any repair or restoration of any portion of the Premises, Building or
Land.
Before occupying or using the Premises, Tenant shall provide to Landlord
certificates evidencing Tenant's insurance coverage and, if requested by
Landlord, a copy of Tenant's policies of insurance, together with all
riders, attachments, schedules, etc. Tenant's insurance shall provide that
Landlord and Landlord's managing agent are named on the certificates,
policies and all attachments thereto as additional insureds, shall contain
a waiver of subrogation endorsement, shall contain a standard mortgagee
clause, and shall bear endorsements requiring the insurer to notify
Landlord not less than thirty days in advance of any modification or
cancellation. Tenant's insurance policies shall permit waiver of any claim
against Landlord and Landlord's managing agent for loss or damage within
the scope of the insurance and Tenant, for itself and its insurers, waives
all claims against Landlord.
18.2 LANDLORD'S COVERAGE. Landlord shall carry policies insuring
Landlord's improvements and the Building against those perils and losses
that Landlord or Landlord's mortgagee reasonably deems appropriate,
including, without limitation, fire, vandalism, malicious mischief, and
other perils covered by extended coverage endorsements. Tenant shall have
no rights in the
Page 13
insurance policy or policies maintained by Landlord and shall not be
entitled to be a named insured.
18.3 LANDLORD'S INSURANCE COVERAGE ADVERSELY AFFECTED BY TENANT. If Tenant
uses the Premises in a manner which voids, suspends or otherwise adversely
affects Landlord's insurance coverage, Tenant shall hold Landlord harmless
from any liability to Tenant resulting therefrom or occurring during the
suspension, and shall reimburse or refund to Landlord as additional Rent
any reasonable costs incurred by Landlord as a result thereof, including
any rate increases which Landlord's insurance carrier attributes to any
activity of Tenant.
18.4 WAIVER OF RECOVERY AND SUBROGATION RIGHTS. Landlord and Tenant each
hereby waives any and all rights of recovery, claims, actions or causes of
action, against the other, its agents, servants, partners, shareholders,
officers or employees, for any loss or damage that may occur to the
Premises or the Building, or any improvements thereto, or any personal
property therein, by reason of fire, the elements or any other cause which
is insured against under the terms of the insurance policies required to be
maintained pursuant to Sections 18.1 and 18.2 or actually maintained by the
other party, regardless of cause or origin, including negligence of the
other party hereto, its agents, officers, partners, shareholders, servants
or employees, and covenants that no insurer shall hold any right of
subrogation against the other party; provided, however, the waiver set
forth in this Section 18.4 shall not apply to any deductibles. If an
insurance policy required hereunder does not permit a waiver without an
appropriate endorsement, the policy holder shall notify its insurer of the
waiver set forth herein and secure an appropriate endorsement covering the
waiver.
19. FIRE OR OTHER CASUALTY. If the Premises are partially or totally damaged or
rendered wholly untenantable by fire or other casualty, or if the Building is
substantially damaged, and if Landlord decides to demolish it or not to rebuild
or restore the Building or the Premises, then within sixty days after the fire
or other casualty, Landlord shall give Tenant written notice of its decision,
and the Term shall end on the later of the third day after notice is given or
the date Tenant vacates the Premises. Tenant shall vacate the Premises and
surrender them to Landlord promptly after receipt of Landlord's notice.
If this Lease is not terminated in accordance with the preceding provisions of
this Section 19, Landlord will repair the damage, and replace, restore and
rebuild the Premises and the Building using available insurance proceeds.
Landlord has no obligation to expend more than the available insurance proceeds.
Landlord will commence repair, replacement, restoration or rebuilding as soon as
practicable after receiving notice of the damage or destruction, but under no
circumstances later than the last to occur of: (i) thirty days after settlement
and receipt of insurance proceeds, or (ii) sixty days after receipt of the
notice. Landlord shall restore the Premises substantially to their condition on
the Commencement Date. Landlord is not obligated to restore or rebuild any
tenant improvements to the Premises. Tenant shall bear the entire risk of loss,
damage or destruction of all additions, improvements, fixtures and other
property in or on the Premises or the Building.
If the Premises are partially damaged or destroyed, Base Rent and Tenant's Share
of Operating Expenses and Real Property Taxes shall xxxxx in proportion to the
applicable part of the Premises rendered untenantable by the casualty from the
date of the damage until the Premises are substantially restored. If the
Premises are totally or substantially damaged, destroyed or rendered unfit for
Tenant's use, the entire Base Rent and Tenant's Share of Operating Expenses and
Real Property Taxes shall xxxxx from the date of the damage until the Premises
are substantially restored.
Page 14
If, however, Tenant reoccupies a portion of the Premises while the restoration
work is taking place and before the entire Premises are substantially restored,
Base Rent and Tenant's Share of Operating Expenses and Real Property Taxes shall
be payable by Tenant in proportion to the part of the Premises occupied by
Tenant.
20. CONDEMNATION. If the Premises or any material part thereof are condemned
for public use, this Lease shall terminate upon the vesting of title for public
use. If this Lease terminates due to condemnation, Rent shall be paid through
the date of termination and Tenant shall remain liable for matters described in
Sections 7, 9, 17, 23 and 27.4. If only a part of the Premises are taken and the
part not taken is sufficient for the operation of Tenant's business, Tenant
shall retain the part not taken and Base Rent and Tenant's Share of Operating
Expenses and Real Property Taxes shall be reduced proportionately. All
compensation awarded or paid upon a total or partial taking of the Premises
shall belong to Landlord without any participation by Tenant. Tenant may
prosecute any claim directly against the condemning authority for moving
expenses, or depreciation to, damage to, or cost of removal of trade fixtures,
furniture and other personal property belonging to Tenant; provided, however,
that no claim by Tenant shall diminish or otherwise adversely affect Landlord's
award or the award of any mortgagee of Landlord.
21. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE. Tenant accepts this Lease
subject and subordinate to all mortgages (including, without limitation, the
notes or other obligations secured thereby, any assignments of leases and rents
securing such notes and any and all renewals, modifications, consolidations,
replacements or extensions of any mortgages, notes or other obligations secured
thereby) now in existence or hereinafter made by Landlord as mortgagor from time
to time, affecting the fee title or the leasehold estate to the Building or any
part thereof or Landlord's interest therein, provided that so long as Tenant
complies with all the terms, obligations, and conditions of this Lease, Tenant's
use and possession of the Premises shall remain undisturbed and this Lease shall
not terminate. Tenant also accepts this Lease subject and subordinate to all
instruments in the chain of fee title and/or the leasehold estate of Landlord to
the Building or the Land, including, without limitation, any and all renewals,
modifications, consolidations, replacements or extensions of such instruments.
This clause shall be self-operative and no further instrument of subordination
shall be required in confirmation thereof. Notwithstanding the foregoing, Tenant
shall execute, acknowledge and deliver to the holder of any mortgages or to any
of the parties to such instruments, at any time upon demand by the holder or by
any such party, any releases, certificates, further assurances or other
documents that may be required by the holder or by any such party, for the
purpose of evidencing the subordination of this Lease to the mortgages or
instruments or to any renewals, modifications, consolidations, replacements or
extensions thereof. In the event of a sale under any mortgage (or any note or
other obligation secured thereby) to which this Lease is subordinate, or a
taking of possession of the Premises by the mortgagee or other person acting for
or through the mortgagee under any mortgage to which this Lease is subordinate,
then and upon the happening of any such events, if the mortgagee or other person
acting under or through the mortgagee shall so request, Tenant shall attorn to
and recognize the mortgagee as Landlord. This attornment shall be effective and
self-operative, without the execution of any other instruments, immediately upon
the mortgagee succeeding to Landlord's interest. Tenant shall attorn to any
successor in interest to Landlord (whether succession is by purchase,
foreclosure, sale in lieu of foreclosure, power of sale, any sale-leaseback
transaction, or otherwise), if required by Landlord; provided that so long as
Tenant complies with all the terms, obligations and conditions of this Lease,
Tenant's use and possession of the Premises shall remain undisturbed and this
Lease shall not terminate. Tenant shall, upon demand, execute any agreement or
agreements confirming its attornment. Tenant shall give any mortgagee notice of
any default by Landlord under this Lease and
Page 15
shall afford any mortgagee the same right (but not the obligation) to cure the
default as Landlord, but not less than thirty days to cure. Landlord, Landlord's
mortgagee or any other similarly secured party, may, at their option, make this
Lease superior to any mortgage, ground lease or other security instrument by
giving Tenant ten days prior written notice. No other documentation shall be
necessary to effect this change. This Lease will, in all events, be prior to all
other mortgages or deeds of trust on the Premises at any time recorded. Tenant
will not subordinate this Lease to any other mortgage without the prior written
consent of Landlord and Landlord's mortgagee, and any attempted subordination
without such consent shall be void.
22. ESTOPPEL CERTIFICATES. Tenant, at any time and from time to time, within
ten days after Landlord's written request, shall execute, acknowledge and
deliver to Landlord any estoppel certificates requested by Landlord certifying
that this Lease is in full force and effect and has not been assigned , amended,
extended or modified (or stating the nature of the change); the date to which
the Rent reserved hereunder has been paid; that there are no uncured defaults by
Landlord, or specifying the defaults if any are claimed; that possession has
been assumed, Tenant is in occupancy, and all improvements to be provided by
Landlord have been completed; that Tenant's address shown on the estoppel is
accurate; and other matters as Landlord reasonably may require. Any such
statement may be relied upon by any prospective assignee, purchaser or mortgagee
of all or any part of the Building or the Land. Tenant shall pay to Landlord a
fine in the amount of Five Hundred Dollars for each day after the tenth day from
Landlord's request that delivery of the estoppel certificate is delayed.
23. DEFAULT AND REMEDIES.
23.1 DEFINED EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an Event of Default by Tenant: (i) Tenant fails to make
any payment required by this Lease and the failure continues for five
calendar days after Landlord gives written notice to Tenant; (ii) Tenant
fails to comply with any term, provision or covenant of the Lease other
than a required payment and does not cure the failure within ten calendar
days after Landlord gives written notice to Tenant, or if the default
cannot reasonably be cured within ten days, if Tenant does not commence the
cure within ten days and thereafter diligently prosecute it to completion;
(iii) Tenant becomes insolvent, makes a transfer in favor of creditors,
makes an assignment for the benefit of creditors, files or has filed
against it a petition under any section or chapter of the Bankruptcy Reform
Act, or any law or statute of the United States or any state thereof
relating to bankruptcy (collectively, the "Bankruptcy Code"), or a receiver
or trustee is appointed for all or part of Tenant's assets.
23.2 REMEDIES. If an Event of Default occurs, Landlord shall have the
option to pursue any one or more of the remedies set forth herein. These
remedies are not exclusive; they are cumulative and in addition to any
other remedies contained herein or any remedies now or later allowed by law
or in equity.
23.2.1 Terminate this Lease by written notice to Tenant and forthwith
repossess the Premises and be entitled to recover forthwith as damages
a sum of money equal to the total of (i) the cost of recovering the
Premises (including reasonable attorneys' fees and costs of suit),
(ii) the cost of removing and storing any personal property, (iii) the
unpaid Rent earned at the time of termination, plus interest thereon
at the rate described in Section 4.5, (iv) the present value
(discounted at the rate of 5% per year) of the balance of the Rent for
the remainder of the Term, subject to subsequent reimbursement by
Landlord to Tenant of rents actually received from other tenants of
the Premises after using reasonable efforts to
Page 16
re-let, after deducting the reasonable cost to prepare the Premises
for occupancy and the other costs (such as leasing commissions and
reasonable attorneys' fees) incurred by Landlord in connection
therewith, (v) the unamortized portion of the Tenant Improvement
Allowance, (vi) the unamortized portion of the Tenant Improvement
Allowance paid pursuant to Sections 1.6, (vii) the full amount of all
Rent concessions including Base Rent, Additional Operating Expenses,
Additional Real Property Taxes and all other abated amounts, (viii)
the unamortized portion of the real estate commission paid to CB
Xxxxxxx Xxxxx pursuant to Section 27.8, and (ix) all other sums of
money and damages owed by Tenant to Landlord under this Lease or
recoverable by Landlord from Tenant pursuant to applicable law.
23.2.2 Terminate Tenant's right of possession (but not this Lease) and
repossess the Premises by forcible entry and detainer suit or
otherwise, without thereby releasing Tenant from any liability
hereunder and without demand or notice of any kind to Tenant and
without terminating this Lease. Landlord shall use reasonable efforts
under the circumstances to re-let the Premises on terms and conditions
determined by Landlord, in its discretion, which may include a term
different than the Term of this Lease, Rent concessions, and
alterations and repairs to the Premises; provided that Landlord makes
reasonable efforts to mitigate its damages by reletting the Premises.
Listing the Premises (on an exclusive or non-exclusive basis) with a
broker in Franklin County or advertising the Premises for rent in a
Franklin County newspaper for sixty days, and Landlord's willingness
to enter into a new lease with a financially responsible tenant at the
same rent as provided in this Lease shall be conclusively deemed to be
a reasonable attempt to relet. Notwithstanding anything to the
contrary, Landlord hereby reserves the right (i) to lease any other
comparable space available in the Building before offering the
Premises for lease, and (ii) to refuse to lease the Premises to any
potential tenant which does not meet Landlord's standards and criteria
for leasing comparable space in the Building. Provided that Landlord
complies with the mitigation requirements contained in this Section
23.2.2, Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of Landlord's failure or
refusal to re-let the Premises for the reasons specified herein, any
re-letting of the Premises except to the extent the rent actually
received by Landlord exceeds all amounts owed from Tenant to Landlord,
or for any other reason except as provided by then applicable law.
Landlord shall have the right to make any repairs, changes,
alterations or additions in or to the Premises as may be reasonably
necessary or desirable for re-letting them. If the Premises are re-let
and the net proceeds of re-letting are not sufficient to satisfy the
Rent after first deducting all unpaid Rent and all other amounts due
hereunder at the time of re-letting plus interest at the rate
specified in Section 4.5, the cost of recovering possession (including
costs of suit and reasonable attorneys' fees), all costs and expenses
of repairs, changes, alterations and additions to the Premises, the
expense of re-letting and the cost of collecting the rent accruing
therefrom, then Tenant shall pay to Landlord as damages a sum equal to
the amount of the deficiency plus all other damages recoverable by
Landlord from Tenant pursuant to applicable law. Any payments due
Landlord pursuant to this Section 23 shall be made upon demand and
Tenant agrees that Landlord may file suit to recover any sums falling
due under the terms of this Section 23 from time to time. No delivery
to or recovery by Landlord of any portion due Landlord hereunder shall
be any defense in any action to recover any amount not theretofore
reduced to judgment in favor of Landlord, nor shall any re-letting be
construed as an election by Landlord to terminate this Lease unless
Landlord gives Tenant a written termination notice. Notwithstanding
any termination of Tenant's right of possession, Landlord may at any
time thereafter elect to
Page 17
terminate this Lease. In any proceedings to enforce this Lease under
this Section 23, Landlord shall be presumed to have used reasonable
efforts to re-let the Premises, and Tenant shall bear the burden of
proof to establish that reasonable efforts were not used.
23.2.3 Alter any and all locks and other security devices at the
Premises, and if it does so Landlord shall not be required to provide
a new key or other access right to Tenant unless Tenant has cured all
Events of Default; provided, however, that during Landlord's normal
business hours and at Landlord's convenience, and upon the written
request of Tenant accompanied by any written waivers and releases that
Landlord requires, Landlord will escort Tenant or its authorized
personnel to the Premises to retrieve any personal belongings or other
property of Tenant.
23.2.4 Seek to obtain a restraining order and/or injunction against
all violations, actual, attempted or threatened, of any covenant,
condition or provision of this Lease.
23.3 NON-WAIVER AND CUMULATION OF REMEDIES. Pursuit of any of the foregoing
remedies by Landlord shall not preclude pursuit of other remedies provided
to Landlord under this Lease, by law or in equity, nor shall pursuit of any
of the other remedies constitute a forfeiture or waiver of any Rent due
hereunder or of any damages accruing to Landlord by reason of the violation
of any of the terms, provisions and covenants herein. The forbearance,
failure or delay on the part of Landlord to enforce or exercise at any time
any of the provisions, rights or remedies in this Lease shall in no way be
construed to be a waiver thereof, nor in any way to affect the validity of
this Lease or any part hereof, or Landlord's right to thereafter enforce
each and every provision, right or remedy. No waiver of any breach of this
Lease shall be held to be a waiver of any other or subsequent breach. The
receipt by Landlord of Rent when an Event of Default has occurred shall not
be construed as a waiver of the Event of Default. The receipt by Landlord
of a lesser amount than the Rent due shall not be construed to be other
than a payment on account of the Rent then due, nor shall any statement on
Tenant's check be deemed an accord and satisfaction, and Landlord may
accept payment without prejudice to Landlord's right to recover the balance
of the Rent due or to pursue any other remedies provided in this Lease. No
act or thing done by Landlord or Landlord's agents or employees during the
Term (as extended), including acceptance of the keys to the Premises, shall
be deemed an acceptance of a surrender of the Premises, and no agreement to
accept a surrender shall be valid unless in writing and signed by Landlord.
23.4 DEFAULT RENT COMPUTATION. Unpaid Rent which would have accrued and
become payable under this Lease shall consist of the sum of: (i) the total
Base Rent for the balance of the Term, (ii) Tenant's Additional Operating
Expenses and Additional Real Property Taxes for the balance of the Term,
plus (iii) the full amount of all Rent concessions including abatements of
Base Rent, Additional Operating Expenses, Additional Real Property Taxes
and all other abated amounts. Additional Operating Expenses and Additional
Real Property Taxes for the calendar year of the default and each future
calendar year in the Term (as extended) shall be equal to the Additional
Operating Expenses and Additional Real Property Taxes for the calendar year
before the year in which default occurs compounded at a rate equal to the
average rate of inflation for the three calendar years preceding the
calendar year of the default, as determined by using the United States
Department of Labor, Bureau of Labor Statistics Consumer Price Index (All
Urban Consumers, all items, 1982-84 equals 100) for Columbus, Ohio.
23.5 LANDLORD'S RIGHT TO CURE DEFAULTS. All agreements and provisions to be
performed by Tenant under any of the terms of this Lease shall be at
Tenant's sole cost and expense and without
Page 18
any abatement of Rent. If Tenant shall fail to pay any sum of money, other
than Base Rent, or shall fail to perform any other act or obligation under
this Lease after the failure becomes an Event of Default as provided in
Section 23.1, or in the event of an emergency when Landlord believes
protection of property or persons is required, then Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations, make any payment or perform any such act on Tenant's part. All
sums paid by Landlord and all costs incurred by Landlord in taking such
action shall be deemed additional Rent hereunder and shall be paid to
Landlord on demand, and Landlord shall have (in addition to all other
rights and remedies of Landlord) the same rights and remedies in the event
of the non-payment thereof by Tenant as in the case of default by Tenant in
the payment of Rent.
23.6 ATTORNEYS' FEES. If either party defaults in the performance of any of
the terms, agreements or conditions contained in this Lease and the other
party places the enforcement of this Lease, or any part thereof, or the
collection of any Rent due or to become due hereunder, or recovery of the
possession of the Premises, in the hands of an attorney who files suit, the
defaulting party shall pay the reasonable attorneys' fees incurred by the
non-defaulting party, provided that the non-defaulting party prevails in
any the legal proceeding.
24. BANKRUPTCY. If a petition is filed by or against Tenant for relief under
Title 11 of the United States Code, as amended (the "Bankruptcy Code"), and
Tenant (including for purposes of this Section, Tenant's successor in
bankruptcy, whether a trustee or Tenant as debtor in possession) assumes and
proposes to assign, or proposes to assume and assign, this Lease pursuant to the
provisions of the Bankruptcy Code to any person or entity who has made or
accepted a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of the proposed assignment setting forth the
name and address of the proposed assignee, all of the terms and conditions of
the offer and proposed assignment, and the adequate assurance to be furnished by
the proposed assignee of its future performance under the Lease, shall be given
to Landlord by Tenant no later than twenty days after Tenant has made or
received the offer, but in no event later than ten days prior to the date on
which Tenant applies to a court of competent jurisdiction for authority and
approval to enter into the proposed assignment. Landlord shall have the prior
right and option, to be exercised by notice to Tenant given at any time prior to
the date on which the court order authorizing the assignment becomes final and
non-appealable, to receive an assignment of this Lease upon the same terms and
conditions, and for the same consideration, if any, as the proposed assignee,
less any brokerage commissions which may otherwise be payable out of the
consideration to be paid by the proposed assignee for the assignment of this
Lease. If this Lease is assigned pursuant to the provisions of the Bankruptcy
Code, Landlord may require from the assignee a deposit or other security for the
performance of its obligations under the Lease in an amount substantially the
same as Landlord requires on initial leasing to a tenant similar to the
assignee. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or
documentation, to have assumed all of Tenant's obligations arising under this
Lease on and after the date of the assignment. Any assignee shall, upon demand,
execute and deliver to Landlord an instrument confirming the assumption. No
provision of this Lease shall be deemed a waiver of Landlord's rights or
remedies under the Bankruptcy Code to oppose any assumption and/or assignment of
this Lease, to require a timely performance of Tenant's obligations under this
Lease, or to regain possession of the Premises if this Lease has neither been
assumed on or rejected within sixty days after the date of the order for relief
or within any additional time set by a court of competent jurisdiction.
Notwithstanding anything in this Lease to the contrary, all amounts payable by
Tenant to or on behalf of Landlord under this Lease, whether or not expressly
denominated as Rent, shall constitute Rent for the purposes of Section 502(b)(6)
of the Bankruptcy Code.
Page 19
25. LIABILITY OF LANDLORD. Landlord and Landlord's managing agent (and in case
Landlord or its managing agent is a joint venture, partnership, tenancy in
common, association or other form of joint ownership, the members of the joint
venture, partnership, tenancy in common, association or other from of joint
ownership) shall have absolutely no personal liability with respect to any
provision of this Lease or any obligation or liability arising from or in
connection with this Lease. In the event of a breach or default by Landlord of
any of its obligations, Tenant shall look solely to the Landlord's equity in the
Building at the time of the breach or default (or if Landlord's interest is a
leasehold interest at that time, Tenant shall look solely to the leasehold
interest) for the satisfaction of any remedies of Tenant. This exculpation of
liability shall be absolute and without any exception. In the event of sale or
other transfer of Landlord's right, title and interest in the Building, Landlord
shall be released from all liability and obligations hereunder. Wherever
Landlord's liability is limited by the terms of this Lease and wherever Landlord
is indemnified and defended hereunder, the same limitations, indemnifications,
and defense requirements shall apply to Landlord's managing agent.
26. UNFORESEEN DELAY. The provisions of this Section shall be applicable if
there shall occur, during the Term, or any renewal or extension thereof, any
strike, lockout, or labor dispute; inability to obtain labor or materials or act
of God, governmental restriction, regulation, or control, enemy or hostile
governmental action, civil commotion, insurrection, revolution, sabotage, or
fire or other casualty, or other similar condition beyond the reasonable control
of Landlord or Tenant including fuel shortages. If Landlord or Tenant shall, as
the result of such event, fail punctually to perform any obligation except for
payment of Rent or other changes due from Tenant to Landlord, then the
obligation shall be punctually performed as soon as practicable after the event
shall xxxxx. If Landlord or Tenant shall, as a result of the event, be unable to
exercise any right or option within any time limit provided therefor in this
Lease, the time limit shall be deemed extended for a period equal to the
duration of the event.
27. MISCELLANEOUS.
27.1 SUCCESSORS. Except as provided in Section 15, this Lease and all
covenants, provisions and conditions herein shall inure to the benefit of
and be binding upon Landlord, its legal representatives, heirs, executors,
administrators, successors and assigns, shall be binding upon Tenant, its
heirs, administrators, legal representatives, successors and assigns, and
shall inure to the benefit of Tenant and its Landlord-approved assigns.
27.2 GOVERNING LAW. This Lease shall be construed, governed and enforced in
accordance with the laws of the State of Ohio.
27.3 SEVERABILITY. If any provisions of this Lease or the application
thereof to any person or circumstance shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall in no way be affected
or impaired and the remaining provisions shall remain in full force and
effect.
27.4 HOLDING OVER. Tenant shall indemnify and hold harmless Landlord from
and against any and all loss or liability resulting from Tenant's failure
to surrender possession of the Premises in accordance with the terms and
conditions of this Lease. No receipt of money by Landlord from Tenant after
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the
Premises shall reinstate, continue or extend the Term or affect any notice,
demand or suit, or imply consent for any action
Page 20
for which Landlord's consent is required. If Tenant remains in possession
of the Premises after termination of this Lease and without executing a new
Lease, Tenant, at Landlord's option, shall be deemed to be occupying the
Premises as a Tenant from month to month, at twice the Base Rent and
subject to all other charges, conditions, provisions, and obligations of
this Lease which are applicable to a month to month tenancy.
27.5 CAPTIONS. Marginal captions, titles or exhibits and riders and the
table of contents to this Lease are for convenience and reference only, and
are in no way to be construed as defining, limiting or modifying the scope
or intent of the various provisions of this Lease.
27.6 NOTICES. Notices shall be given and received on the date of actual
receipt or refusal thereof. Either party may change its Notice Address by
written notice to the other. Landlord and Tenant shall give notices to each
other in writing and delivered as follows:
27.6.1 TO LANDLORD by sending the notice by certified or registered
United States mail, return receipt requested, postage prepaid, or by
private courier service utilizing a return receipt, addressed to
Landlord at the address specified in Section 1.1, attention Xxxxx
Xxxxxxx.
27.6.2 TO TENANT by sending the notice by certified or registered
United States mail, return receipt requested, postage prepaid, or by
private courier service utilizing a return receipt addressed to Tenant
at the Premises.
27.7 COMPLIANCE NOTICES. Within five days after receipt, Tenant shall
advise Landlord, in writing, and provide Landlord with copies if applicable
of any notices alleging violation(s) of the ADA or any other governmental
requirements relating to any portion of the Premises; any claims made or
threatened in writing regarding non-compliance with the ADA or any other
governmental requirements; or any governmental or regulatory actions or
investigations instituted or threatened regarding non-compliance with the
ADA or any other Requirements; and advise Landlord of the measures Tenant
is undertaking to remedy the situation and/or achieve compliance.
27.8 BROKERS. After Tenant delivers a fully executed Commencement
Agreement, Landlord will pay CB Xxxxxxx Xxxxx a leasing commission in the
maximum amount of $78,718.18. The commission shall be payable monthly
during the Term in the amount of 4% of the Base Rent actually received from
Tenant for that month. Landlord shall not be obligated to pay any monthly
leasing commission installment unless and until it has received good funds
in the full amount of the Base Rent due for that month. Tenant and Landlord
each hereby certify that no real estate broker other than CB Xxxxxxx Xxxxx
("Tenant's Broker") has or will represent it in this transaction, that no
brokerage or finder's fees have been earned by any third party other than
Tenant's Broker and that Landlord has no obligation to Tenant's Broker
other than as set forth in this Section 27.8. Each party shall indemnify
and hold the other party harmless from any liability or expense that may
arise from such claims, including reasonable attorney's fees.
27.9 NO RECORDATION. Tenant shall not record this Lease or any notice of
this Lease, and if Tenant does so, Landlord may terminate the Lease by
recording a Notice of Termination which shall be effective with only
Landlord's signature appearing therein. Tenant hereby irrevocably
constitutes Landlord its attorney-in-fact for the purpose of executing such
instrument in recordable form.
Page 21
27.10 LANDLORD-TENANT RELATIONSHIP. Nothing contained herein shall be
deemed or construed by the parties hereto, nor by any third party as
creating any relationship between the parties hereto other than the
relationship of Landlord and Tenant.
27.11 AUTHORIZATION OF TENANT. This Lease and the instruments and documents
contemplated hereby, and the execution and delivery hereof by Tenant, and
the consummation of the transactions herein provided, do not violate any
provision of the constitution or bylaws of Tenant or any agreement to which
Tenant is a party or by which Tenant is bound, and constitute valid and
binding obligations of Tenant enforceable against it in accordance with
their respective terms. No consent or governmental approval is required in
connection with the consummation of the transactions contemplated hereby.
Tenant represents and warrants to Landlord that it has full right, power
and authority to enter into the transactions provided for in this Lease;
and that it has not, at any time, subleased, pledged, hypothecated,
assigned or encumbered the Lease or in any other manner encumbered the
Premises and will not do so. Tenant has provided evidence of authority to
Landlord substantially in the form attached as Exhibit D.
27.12 NO THIRD PARTY BENEFICIARY. Tenant is the individual or business
entity whose name appears in Section 1.2 of this Lease. This Lease does not
give any rights to any third party.
27.13 JOINT AND SEVERAL LIABILITY. If two or more individuals,
corporations, partnerships, limited liability companies or other business
associations (or any combination thereof), sign this Lease as Tenant, the
liability of each individual, corporation, partnership, limited liability
company or other business association to pay Rent and perform all other
obligations hereunder shall be joint and several. If a Tenant named in this
Lease is a partnership or other business association, the members of which
are, by virtue of statute or general law, subject to personal liability,
the liability of each member shall be joint and several.
27.14 EXHIBITS. All Exhibits referenced in this Lease are incorporated
herein for all purposes as if fully set forth within the text of this
Lease.
Exhibit A - Depiction of Premises
Exhibit B - Commencement Agreement
Exhibit C - Tenant's Approved Signs
Exhibit D - Tenant's Authorization
27.15 SURVIVAL OF TENANT'S OBLIGATIONS. All obligations of Tenant which, by
their nature, involve performance in any particular after the end of the
Term, or which cannot be ascertained to have been fully performed until
after the end of the Term, shall survive the expiration or sooner
termination of this Lease.
27.16 NEGOTIATIONS. This Lease has been negotiated by Landlord and Tenant
and this Lease, together with all the terms and provisions hereof, shall
not be deemed to have been prepared by either Landlord or Tenant, but by
both equally and shall be construed as an arm's length transaction. The
respective legal counsel of the parties hereto have reviewed this Lease,
and each has obtained the advice of its own legal counsel regarding this
Lease and the transactions contemplated herein.
27.17 ENTIRE AGREEMENT. This Lease, including the Exhibits and any riders
hereto, contains all the agreements, conditions, understandings,
representations and warranties made between the
Page 22
parties hereto with respect to the subject matter hereof, and may not be
modified orally or in any manner other than by an agreement in writing
signed by both parties hereto or their respective successors in interest.
27.18 NO VERBAL WARRANTIES. Tenant acknowledges and agrees that, except as
expressly set forth in this Lease, there have been no representations or
warranties made by or on behalf of Landlord with respect to the Premises,
the Building or the Land with respect to the suitability of any thereof for
the conduct of Tenant's business, present or future rents, expenses,
profits, operations, tenancies, or any other matters. The taking of
possession of the Premises by Tenant shall conclusively establish that the
Premises, the Building and the Land were then in satisfactory condition,
order and repair.
27.19 WAIVER OF JURY TRIAL. To the extent that a waiver is permitted by
law, Landlord and Tenant hereby knowingly, voluntarily and unconditionally
waive trial by jury in any action, proceeding or counterclaim brought in
connection with this Lease or any other document executed and delivered by
either party in connection herewith, or the Premises, Building or Land.
27.20 FINANCING CONDITION. Tenant acknowledges that the provisions of this
Lease may require approval by the institutional lender that finances or
refinances the purchase, construction and improvements to the Building and
Premises (the "Institutional Lender"). If, as a condition to financing, the
Institutional Lender requires modification of this Lease, Tenant shall
approve the required modification provided that the modification does not
change the dimensions or location of the Premises or the improvements that
are a part of the Premises, or increase the Rent Tenant is obligated to pay
hereunder. Landlord's obligations under this Lease are conditioned upon
approval of this Lease by the Institutional Lender.
27.21 ACKNOWLEDGMENT OF LANDLORD WAIVER. Landlord acknowledges the Waiver
and Consent by Real Property Owner(s) made and entered into between
Landlord and Foothill Capital Corporation on July 2, 2001 (the "Landlord
Waiver") and agrees that the Lease (as defined in the Landlord Waiver)
shall include this Lease. The intent of this Section 27.21 is to provide to
Foothill Capital Corporation all of the benefits, rights and protections
afforded by the original Landlord Waiver, notwithstanding the execution of
this Lease.
27.22 SIGNATURE REQUIREMENT. This document does not constitute an offer or
option to lease and is not valid unless it is signed by and a signed copy
delivered to both Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
respective dates set forth below.
WITNESSES: LANDLORD: Corporate Exchange Buildings IV
and V Limited Partnership, an Ohio
limited partnership, by Xxxxxx Xxxxxxx &
Co., General Partner
/s/ Xxxxxxxxx Xxxxxx
------------------------------
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Page 23
Printed Name/Date: Xxxxxxxxx Xxxxxx
6/26/02
------------ Xxxxx Xxxxxxx, President
Date: 6/26/02
/s/ Xxxxxxx X. Xxxx ------------------------------------
------------------------------
Printed Name/Date:
Xxxxxxx X. Xxxx
TENANT: Frontstep Solutions Group Inc.,
an Ohio corporation
/s/ Xxxxxxx X. Xxxx
------------------------------
Printed Name/Date: By: /s/ Xxxxxxxx X. Xxx
Xxxxxxx X. Xxxx / 6/17/02 -------------------------------------
Printed Name &
Title: Xxxxxxxx X. Xxx, Chairman of
Board
------------------------------
Date: 6/17/02
/s/ Xxxxxxx X. Xxxxxxxx ------------------------------------
------------------------------
Printed Name/Date:
Xxxxxxx X. Xxxxxxxx / 6/17/02
NOTARIZATION FOR LANDLORD
STATE OF OHIO
COUNTY OF FRANKLIN
On this 26th day of June, 2002, before me, a Notary Public in and for said
County and State, personally appeared Xxxxx Xxxxxxx, President of Xxxxxx
Xxxxxxx & Co., an Ohio corporation and the General Partner of Corporate Exchange
Buildings IV and V Limited Partnership, who acknowledged that he did sign the
foregoing instrument on behalf of the corporation and limited partnership.
/s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Notary Public
My commission expires: 11/12/05
--------------------
Page 24
NOTARIZATION FOR TENANT
COUNTY OF XXXXXXXX XX
STATE OF OHIO
On this 17 day of June, 2002, before me, a Notary Public in and for said County
and State, personally appeared Xxxxxxxx X. Xxx, the Chairman of the Board of
Frontstep Solutions Group, Inc., an Ohio corporation, who represented that he
did sign the foregoing Lease Amendment on behalf of the corporation.
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Notary Public
My commission expires: Does not expire
--------------------
Page 25
TABLE OF CONTENTS
1. TERMS AND DEFINITIONS................................................Page 1
1.1 Landlord........................................................Page 1
1.2 Tenant..........................................................Page 1
1.3 Building........................................................Page 1
1.4 Premises........................................................Page 1
1.5 Term............................................................Page 1
1.6 Tenant Improvement Allowance....................................Page 1
1.7 Base Rent.......................................................Page 1
1.8 Tenant's Share..................................................Page 1
1.9 Operating Expenses and Real Property Taxes:.....................Page 1
2. PREMISES AND BUILDING................................................Page 1
2.1 Leased Premises.................................................Page 1
2.2 Building........................................................Page 1
2.3 Parking.........................................................Page 1
2.4 Common Areas....................................................Page 2
3. TERM.................................................................Page 2
4. RENT.................................................................Page 2
4.1 Base Rent.......................................................Page 2
4.2 Operating Expenses..............................................Page 2
4.3 Real Property Taxes.............................................Page 4
4.4 Payment of Rent.................................................Page 4
4.5 Late Charge.....................................................Page 4
5. USE OF PREMISES......................................................Page 4
5.1 Permitted Use...................................................Page 4
5.2 General Use and Occupancy Obligations...........................Page 4
5.3 General Use and Occupancy Prohibitions..........................Page 4
5.4 Compliance with Laws............................................Page 5
6. QUIET ENJOYMENT......................................................Page 5
7. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES...............Page 5
7.1 Hazardous Substances............................................Page 5
7.2 Tenant's Restrictions...........................................Page 5
7.3 Environmental Clean-up..........................................Page 6
7.4 Tenant's Indemnity as to Environmental Matters..................Page 6
7.5 Landlord's Warranty and Indemnity...............................Page 6
7.6 Survival........................................................Page 6
8. LEASEHOLD ALTERATIONS................................................Page 6
8.1 Tenant Improvements.............................................Page 6
8.2 Subsequent Alterations..........................................Page 6
9. MECHANICS' LIENS.....................................................Page 7
10. SIGNS................................................................Page 7
11. LANDLORD SERVICES....................................................Page 7
11.1 Heating and Air-Conditioning....................................Page 8
11.2 Electricity.....................................................Page 8
11.3 Elevator Service................................................Page 8
11.4 Janitorial Services.............................................Page 8
11.5 Water...........................................................Page 8
11.6 Additional Services.............................................Page 8
11.7 Payment.........................................................Page 8
Page 26
11.8 Liability for Service.........................................Page 9
12. REPAIRS............................................................Page 9
13. ACCESS TO PREMISES.................................................Page 9
14. DAMAGE FROM CERTAIN CAUSES.........................................Page 10
15. TRANSFER, ASSIGNMENT AND SUBLETTING................................Page 10
15.1 By Tenant....................................................Page 10
15.2 By Landlord..................................................Page 11
16. SURRENDER OF PREMISES..............................................Page 11
17. INDEMNIFICATION AND LIABILITY......................................Page 11
18. INSURANCE..........................................................Page 12
18.1 Tenant's Coverage............................................Page 12
18.2 Landlord's Coverage..........................................Page 12
18.3 Landlord's Insurance Coverage Adversely Affected by Tenant...Page 12
18.4 Waiver of Recovery and Subrogation Rights....................Page 12
19. FIRE OR OTHER CASUALTY.............................................Page 13
20. CONDEMNATION.......................................................Page 13
21. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE......................Page 13
22. ESTOPPEL CERTIFICATES..............................................Page 14
23. DEFAULT AND REMEDIES...............................................Page 14
23.1 Defined Events of Default....................................Page 14
23.2 Remedies.....................................................Page 15
23.3 Non-Waiver and Cumulation of Remedies........................Page 16
23.4 Default Rent Computation.....................................Page 16
23.5 Landlord's Right to Cure Defaults............................Page 17
23.6 Attorneys' Fees..............................................Page 17
24. BANKRUPTCY.........................................................Page 17
25. LIABILITY OF LANDLORD..............................................Page 18
26. UNFORESEEN DELAY...................................................Page 18
27. MISCELLANEOUS......................................................Page 18
27.1 Successors...................................................Page 18
27.2 Governing Law................................................Page 18
27.3 Severability.................................................Page 18
27.4 Holding Over.................................................Page 18
27.5 Captions.....................................................Page 19
27.6 Notices......................................................Page 19
27.7 Compliance Notices...........................................Page 19
27.8 Brokers......................................................Page 19
27.9 No Recordation...............................................Page 19
27.10 Landlord-Tenant Relationship.................................Page 19
27.11 Authorization of Tenant......................................Page 19
27.12 No Third Party Beneficiary...................................Page 20
27.13 Joint and Several Liability..................................Page 20
27.14 Exhibits.....................................................Page 20
27.15 Survival of Tenant's Obligations.............................Page 20
27.16 Negotiations.................................................Page 20
27.17 Entire Agreement.............................................Page 20
27.18 No Verbal Warranties.........................................Page 20
27.19 Waiver of Jury Trial.........................................Page 21
27.20 Financing Condition..........................................Page 21
Page 27
27.21 Acknowledgment of Landlord Waiver............................Page 21
27.22 Signature Requirement........................................Page 21
Page 28
