Exhibit 10.15
EXECUTION COPY
LEASE AGREEMENT
THIS LEASE AGREEMENT (sometimes hereinafter called the "LEASE"),
is made and entered into as of the 25th day of September, 1998 by and between
GBDG, LTD., an Ohio limited liability company, (sometimes hereinafter called
"LESSOR"), and S.E.A., Inc., an Ohio corporation doing business in Franklin
County, Ohio and wholly-owned subsidiary of FTI Consulting, Inc., a Delaware
corporation (sometimes hereinafter called "LESSEE");
WITNESSETH:
WHEREAS, LESSOR is the owner of certain real property (together
with all improvements constructed thereon) located in the City of Columbus,
Ohio, and which is more particularly described on the attached Exhibit "A" (the
"PROPERTY") and desires to lease the PROPERTY to LESSEE, and LESSEE desires to
lease the PROPERTY from LESSOR;
NOW, THEREFORE, for and in consideration of the premises and of
the covenants herein contained, LESSOR and LESSEE hereby make the following
agreement, intending to be legally bound thereby:
ARTICLE I
Definition of Certain Terms
---------------------------
1.01 The terms defined in this ARTICLE I shall have the meanings
specified herein when used in this LEASE.
1.02 The term "LEASED PREMISES" means all of the lands,
bui1dings, improvements, and all accretions, easements, privileges and
appurtenances thereto, located in the City of Columbus, County of Franklin and
State of Ohio and described on the attached Exhibit "A".
1.03 The term "LEASE TERM" means the period specified in
Section 3.01 of the LEASE, plus any period during which LESSEE may be a tenant
from month-to-month under Section 3.02 of this LEASE, or the shorter period
expiring upon the termination of the LEASE TERM by LESSOR or by LESSEE as
provided elsewhere in this LEASE.
1.04 THE TERM "RENT" means the amount to be paid by LESSEE to
LESSOR as rental for the LEASED PREMISES as provided in ARTICLE IV and elsewhere
in this LEASE.
ARTICLE II
Lease of Premises
-----------------
2.01 LESSOR does hereby demise and let unto LESSEE, and LESSEE
does hereby lease and hire from LESSOR, upon the terms and conditions set forth
in this LEASE, the LEASED PREMISES.
ARTICLE III
Lease Term
----------
3.01 The LEASE TERM shall commence September 1, 1998 and shall
terminate at midnight on August 31, 2008, unless the LEASE TERM is earlier
terminated as elsewhere provided in this LEASE.
3.02 If LESSEE remains in possession of the LEASED PREMISES
after the expiration of the LEASE TERM, LESSEE shall be deemed to be a tenant
from month-to-month only, subject to all of the terms and provisions of this
LEASE until LESSEE or LESSOR shall have given to the other thirty (30) calendar
days notice of termination of such tenancy from month-to-month.
ARTICLE IV
RENT
----
4.01 During the LEASE TERM, LESSEE shall pay RENT to LESSOR at
the rates set forth on Exhibit B attached to this LEASE and incorporated by
reference herein. The RENT shall be payable in advance without demand in
consecutive monthly installments as set forth on Exhibit B and shall be due and
payable on the first day of each month during the LEASE TERM.
4.02 LESSOR may, by written notice to LESSEE, direct that the
payment of all RENT be made to an agent of LESSOR or any other party designated
by LESSOR in said notice, and LESSEE agrees to comply with the directions
contained in said notice. All payments made pursuant to said notice shall
constitute the payment of RENT hereunder.
4.03 Notwithstanding the provisions of Section 4.01, if the LEASE
TERM shall commence on a day other than the first calendar day of a month, then
the monthly installment of rent due and payable in the first month of the LEASE
TERM only shall be pro-rated to reflect the number of calendar days in said
month that fall within the LEASE TERM.
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ARTICLE V
Taxes, Assessments and Other Charges
------------------------------------
5.01 LESSEE shall pay all real estate taxes and assessments, both
general and special, and all other impositions or charges of any and every kind
heretofore or hereafter levied, assessed, charged, taxed or imposed by any
governmental taxing authority during the LEASE TERM upon the LEASED PREMISES and
upon any improvements now or hereafter placed thereon during the LEASE TERM.
If LESSOR pays any sums required to be paid by LESSEE hereunder, LESSEE shall,
within 10 calendar days of presentation to LESSEE of evidence of the payment
thereof, reimburse and pay as additional RENT to LESSOR the full amount of any
and all payments made by LESSOR.
5.02 LESSEE shall pay any and all taxes, assessments, impositions
or charges of any and every kind levied, assessed, charged, taxed or imposed by
any governmental taxing authority during the LEASE TERM upon any and all
personal property now present or hereinafter brought upon the LEASED PREMISES,
notwithstanding the ownership of said personal property. Within 10 calendar days
of a request to inspect evidence of payment of said taxes, assessments,
impositions or charges, LESSEE shall provide to LESSOR all evidence of
the payment thereof.
ARTICLE VI
Insurance
---------
6.01 At all times during the LEASE TERM, LESSOR shall maintain
or cause to be maintained for the benefit of LESSOR and LESSEE:
(1) Comprehensive general public liability insurance against
claims for bodily injury or death occurring upon, in or
about the LEASED PREMISES, with such insurance to afford
protection to the limits of not less than $500,000 in
respect of bodily injury or death to any one person and to
the limit of not less than $500,000 in respect of any one
accident; and
(ii) Property damage liability insurance against claims for
damage to property of others occurring upon, in or about the
LEASED PREMISES with such insurance to afford protection the
limit of not less
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than $500,000 in respect of damages to the property of any
one owner.
(iii) Insurance (with provisions for a deductible of no more than
$25,000) covering the LEASED PREMISES against loss or
damage by fire and such risks as are customarily included
in extended coverage endorsements attached to insurance
policies providing primary coverage for and insuring
buildings and improvements similar to the LEASED PREMISES
in Franklin County, Ohio, in an amount equal to one hundred
percent (100%) of the full rep1acement value of the LEASED
PREMISES without deduction for depreciation.
(iv) Such other insurance, including, but not limited to,
sprinkler leakage, workers' compensation, boiler and
machinery insurance, and in such form and amount, that may
be reasonably required by LESSOR against other insurable
hazards which at the time are commonly insured against in
the case of premises similarly situated, with due regard to
the height and type of buildings, its construction, use and
occupancy.
6.02 Originals, duplicate originals or certificates of each
policy of insurance required to be carried and maintained by LESSEE under this
ARTICLE VI, and renewal or other policies, as the case may be, or certificates
thereof shall be delivered by LESSOR to LESSEE promptly upon the issuance or
effectuation thereof by the insurer.
6.03 LESSEE shall pay LESSOR in addition to RENT specified in
Exhibit B, the amount of the premiums for the insurance policies maintained
pursuant to Section 6.01. Such amounts shall be paid in monthly installments
following the month in which LESSOR paid such premium to the insurance carrier.
6.04 LESSOR AND LESSEE each hereby waive each and every claim
which arises or may arise in its favor and against the other party hereto during
the LEASE TERM or renewal thereof, for any and all loss of, or damage to, any of
its property located within or upon, or constituting a part of, any LEASED
PREMISES, which loss or damage is covered by valid and collectible insurance
policies, to the extent that such loss or damage is recoverable in full under
such policies. Said mutual waiver shall be in addition to, and not in limitation
or derogation of, any other waiver or release contained in this LEASE with
respect to any loss or damage to property of the parties hereto. Inasmuch as the
said waivers will preclude the assignment of any aforesaid claim by way of
subrogation (or otherwise) to an insurance company (or any other person), LESSOR
and
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LESSEE each agree immediately to give each insurance company which has issued to
it policies of insurance, written notice of the terms of said mutual waivers,
and to have such insurance policies properly endorsed, if necessary, to prevent
the invalidation of said insurance coverage by reason of said waivers, so long
as such endorsement is available at a reasonable cost.
ARTICLE VII
Maintenance and Repair
----------------------
7.01 LESSEE shall, throughout the LEASE TERM, at LESSEE's sole
cost and expense, keep and maintain In good, safe and lawful order, repair and
condition, the LEASED PREMISES, and LESSEE shall not commit or suffer any waste
with respect thereto, except, LESSEE may modify the premises with LESSOR's
consent, which shall not be unreasonably withheld. LESSEE shall promptly make
all repairs to the LEASED PREMISES, ordinary as well as extraordinary, foreseen
as well as unforeseen, necessary to keep the LEASED PREMISES in good and lawful
order and in the same condition as the LEASED PREMISES were on the commencement
date hereof, ordinary wear and tear and damage, from casualty beyond LESSEE's
control excepted. When used in this ARTICLE VII, the term "repairs" shall be
deemed to include replacements, restorations and/or renewals when necessary of
any fixtures that are part of the LEASED PREMISES. LESSEE shall keep and
maintain all portions of the LEASED PREMISES in a clean and orderly condition,
free of accumulation of dirt and rubbish and shall be responsible for snow
removal. The LESSEE shall not permit or suffer the overloading of any floor of
the building that is a part of the LEASED PREMISES.
7.02 LESSEE shall permit LESSOR and the authorized representative
of LESSOR and of any fee mortgagee to enter the LEASED PREMISES at all
reasonable times during business hours for the purpose of inspecting the repair
and condition of all or any part thereof. Further, if LESSEE shall fail to
perform any repairs, restoration or other work which LESSEE is obligated to
perform under this LEASE and such default Is not remedied within the applicable
grace period provided therefor in this LEASE, or at any other time in the case
of an emergency, LESSOR and its authorized representatives shall have the right
to enter the LEASED PREMISES and to perform such work. Any amount paid by LESSOR
for any of said purposes, and all necessary and necessary costs and expenses
(including counsel fees) of LESSOR in connection therewith, shall be due and
payable by LESSEE to LESSOR as additional rent. Nothing in this Section 7.02
shall imply any duty upon the part of LESSOR to do any such work or to make any
alterations, repairs (including but not limited to repairs and other restoration
work made necessary due to any fire or other casualty), additions or
improvements to the LEASED PREMISES, of any kind whatsoever. The performance
thereof by Landlord shall not constitute a waiver of LESSEE's default in
failing to perform the same. During the progress of any such work, LESSOR may
keep and store on the LEASED PREMISES all necessary materials, supplies,
equipment and tools LESSOR shall not in any event be liable for any
inconvenience, annoyance, disturbance, loss of business or other damage of
LESSEE or any other occupancy of the LEASED PREMISES or part thereof by reason
of making repairs or the performance of any work on the LEASED PREMISES or on
account of bringing or keeping materials, supplies, and equipment into, on or
through the LEASED PREMISES, during the course
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thereof, and the obligations of LESSEE under this LEASE shall not thereby be
affected in any manner whatsoever.
ARTICLE VIII
Damage and Destruction
----------------------
8.01 LESSEE covenants and agrees that in the event of damage to
or destruction of the LEASED PREMISES, or any part thereof, during the LEASE
TERM, by fire or other casualty, LESSEE shall immediate1y notify LESSOR. LESSOR
shall, but only to the extent insurance proceeds are available therefor, proceed
to restore, repair, rebuild or replace the LEASED PREMISES to the same condition
and character as the LEASED PREMISES are immediately prior to such damage or
destruction; provided that LESSOR may elect to alter the LEASED PREMISES as long
as the LEASED PREMISES continue to be suitable for use for LESSEE's described
purpose under this LEASE. Any monies paid by any companies issuing the policies
of insurance required by ARTICLE VI hereof shall be paid to LESSOR and used for
the purpose of repairing, reconstructing or restoring the LEASED PREMISES. Any
excess funds not so used shall be paid to LESSEE (unless required to be paid to
any mortgagee of the LEASED PREMISES pursuant to any mortgage, in which event
such monies shall be paid to such mortgagee). Any fixture acquired as a
replacement hereunder, or any item acquired, in whole or in part, out of
insurance proceeds under this ARTICLE VIII, whether or not a replacement of or
substitute for any damaged or destroyed fixture, if the insurance proceeds with
which such fixture was purchased, in whole or in part, were derived from
insurance on property which was part of the LEASED PREMISES, shall be and become
part of the LEASED PREMISES and subject to this LEASE. Such restoration,
repairs, replacements or rebuilding shall be commenced prompt1y and prosecuted
with reasonable diligence.
In the case of damage involving a loss of $100,000 or less, at
LESSOR's option, and provided such payment would not be contrary to the
provisions of any mortgage on the LEASED PREMISES, the insurance proceeds may be
paid to LESSEE and applied to the payment of the cost of the aforesaid
restoration, repairs, replacements or rebuilding, including expenditures made
for temporary repairs or for the protection of property pending the completion
of permanent restoration, repairs, replacements, or rebuilding or to prevent
interference with the business operated thereon.
If the insurance proceeds shall be insufficient to pay all costs
of the restoration, at LESSOR's option, LESSEE shall immediately pay the
deficiency and LESSOR shall proceed to complete the restoration upon payment by
LESSEE of the cost thereof.
8.02 Except as may be expressly provided in this Section 8.02,
destruction of or damage to all or any portion of the LEASED PREMISES by fire or
other casualty shall neither terminate the LEASE TERM nor entitle LESSEE to
surrender the LEASED PREMISES nor in any way affect LESSEE's obligation to pay
RENT or any other money obligation payable by LESSEE under this LEASE, and there
shall be no abatement, diminuation or reduction in the amount of any such
obligations payable by LESSEE for any cause whatsoever.
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If the LEASE TERM is terminated by LESSOR as provided elsewhere
in this ARTICLE VIII, the RENT and any other money obligations payable by LESSEE
in accordance with this LEASE shall be apportioned to the date of such
termination.
8.03 Notwithstanding the Provisions of the foregoing sections of
this ARTICLE VIII, LESSOR shall not be required, to repair, restore, replace or
rebuild the LEASED PREMISES, or any part thereof, if LESSOR elects to terminate
this LEASE pursuant to the provisions of paragraph 8.04 hereof.
8.04 Notwithstanding the provisions of the foregoing sections of
this ARTICLE VIII, LESSOR shall, in the event of damage involving a loss of more
than $100,000, have the right and option in its sole discretion to terminate
this LEASE. LESSOR may exercise the aforementioned option at any time by giving
written notice to LESSEE of the election to terminate this LEASE. Thirty (30)
days after the occurrence of such damage (if such notice of LESSOR's election to
terminate this LEASE has already been given to LESSEE at that time) or upon
giving notice of LESSOR's election to terminate this LEASE (if such notice is
given more than thirty (30) days after the occurrence of such damage) this LEASE
shall terminate, and LESSEE shall have no further rights hereunder, and LESSOR
shall have no obligation under the terms of this LEASE to repair, restore,
replace or rebuild the LEASED PREMISES.
ARTICLE IX
Indemnification
---------------
9.01 LESSEE shall indemnify and save LESSOR harmless from and
against all loss, liability, damage or claims for injury, death, loss or damage
of whatever nature any person or property caused by or resulting from any event
or occurrence in, on or about the LEASED PREMISES (other than such injury,
death, loss or damage resulting from any act or omission of LESSOR) and from and
against any and all costs, expenses or liabilities incurred by LESSOR in
connection with any claim, action or proceeding in respect of any such loss,
liability, damage or claim. In the event that any action or proceeding is
instituted against LESSOR by reason of any such claim or event, LESSEE shall, if
requested by LESSOR, resist and defend such action or proceeding at LESSEE's
sole cost and expense or cause it to be resisted and defended by an insurer.
LESSEE may settle any such action or proceeding in its sole discretion so long
as any such settlement shall absolve LESSOR of all liability thereunder at no
cost to LESSOR.
ARTICLE X
Utility Charges
---------------
10.01 At all times during the LEASE TERM, LESSEE shall contract
for and pay for all charges and bills for water, sewer, gas, electric, heating
or cooling fuels, telephone, trash collection and all other public utilities and
other services which may be charged or assessed with
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respect to the LEASED PREMISES, the occupants thereof or against LESSEE on
account of said LEASED PREMISES. If any utilities or services are unavailable or
are interrupted during the LEASE TERM, there shall be no abatement of rent or
other compensation therefor, nor shall any right or claim in favor of LESSEE and
against LESSOR arise as a result thereof.
ARTICLE XI
Use of Leased Premises
----------------------
11.01 Subject to the provisions of Section 11.02, LESSEE may
occupy and use the LEASED PREMISES for operation of a commercial office and
research facility. LESSEE shall not use the LEASED PREMISES for any other
purpose without the prior written approval of LESSOR, which approval shall not
be unreasonably withheld.
11.02 LESSEE shall not occupy or use the LEASED PREMISES or
permit the same to be occupied or used contrary to any statute, rule, order,
ordinance, requirement or regulation applicable thereto.
ARTICLE XII
Alterations
-----------
12.01 LESSEE shall not do or permit others under its control to
do any work on the LEASED PREMISES related to any repair, rebuilding, alteration
of or addition to the improvements constituting part of the LEASED PREMISES
unless (1) LESSEE shall have first procured and paid for all requisite municipal
and other governmental permits and authorizations and (2) except for alterations
which cost less than S25,000 and do not affect the structure of the LEASED
PREMISES, shall have first procured LESSOR's prior written consent, which
consent shall not be unreasonably withheld. If LESSOR consents to the doing of
any such work on the LEASED PREMISES, LESSOR shall join in the application of
any such permit or authorization whenever required, but LESSEE shall indemnify
and hold LESSOR harmless against and from all costs and expenses which may be
thereby incurred by LESSOR. All such work shall be done in a good and
workmanlike manner and in compliance with all applicable building, zoning and
other laws, ordinances, governmental regulations and requirements and in
accordance with the reasonable requirements, rules and regulations of all
insurers under the policies required to be carried by the provisions of this
LEASE.
12.02 If the LEASED PREMISES or any part thereof or LESSEE's
interest therein shall at any time during the LEASE TERM become subject to any
vendor's, mechanic's, laborer's, materialman's or other similar lien based
upon furnishing of materials or labor to the LEASED PREMISES or to LESSEE and
not contracted for by LESSOR, LESSEE shall cause the same to be discharged at
its sole cost and expense within thirty (30) calendar days after LESSEE shall
have
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actual notice of the existence thereof, unless such lien and the claim
occasioning it are contested or litigated in good faith by LESSEE and LESSEE
shall first have posted a bond sufficient to insure that, upon final
determination of the validity of such lien or claim, LESSEE shall then
immediately pay any final judgment rendered against it, with all related costs
and charges, and shall have such lien or claim released without cost to LESSOR.
12.03 Nothing contained in this LEASE shall be construed to
prohibit LESSOR from making, and LESSOR shall be entitled to enter upon the
LEASED PREMISES and make, any alterations of or additions to the improvements
that constitute part of the LEASED PREMISES, which alterations or additions seem
desirable or necessary to LESSOR in its sole discretion, provided that no such
alteration or addition, nor the making of the same, shall materially interfere
with LESSEE's use of the LEASED PREMISES.
ARTICLE XIII
Property of LESSEE
------------------
13.01 All furniture, furnishings, trade fixtures and other
equipment and property installed or maintained in and at the LEASED PREMISES by
LESSEE shall be installed, placed or kept therein at the sole risk of LESSEE but
subject to any other written agreement between LESSOR and LESSEE regarding such
equipment, and LESSOR shall not be liable or responsible in any way for any loss
of or damage to such property, unless such damage is caused by the negligent or
intentional acts of LESSOR, their agents or employees.
13.02 As between LESSOR and LESSEE, all furniture, furnishings,
trade fixtures and other equipment and property installed in and at the LEASED
PREMISES by LESSEE shall be personal property and shall not become a part of the
LEASED PREMISES, and LESSEE may remove any of such property (subject to any
restrictions in other written agreements between LESSOR and LESSEE) at any time
and from time to time prior to or upon termination of the LEASE TERM (provided
that LESSEE is not then in default hereunder) and LESSEE shall repair all
damage, if any, resulting from such removal.
ARTICLE X1V
Condemnation
------------
14.01 If all or any portion of the LEASED PREMISES are taken by
any condemning authority under the power of eminent domain or by any purchase or
other acquisition in lieu of condemnation, at the option of the LESSOR this
LEASE shall be terminated as of the date possession is required by any
condemning authority. In the event of such termination, all RENT hereunder shall
be apportioned as of the termination date. In the event LESSOR elects to
terminate this LEASE upon the occurrence of any such taking, purchase or other
acquisition in lieu of
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condemnation, LESSEE shall not be entitled to share in any award of payment made
as a result of such taking, purchase or other acquisition in lieu of
condemnation.
14.02 Except as provided in Section 14.03, in the event that
LESSOR does not elect to terminate this LEASE pursuant to its option in Section
14.01, this LEASE shall continue in full force and effect, LESSEE shall continue
to be obligated to perform all the terms and conditions of this LEASE except
that RENT shall xxxxx proportionately, and LESSEE shall be entitled to
participate in and to prove in any condemnation proceedings any damages
sustained by LESSEE by reason of such condemnation, and to receive any awards
made therefor.
14.03 If, as a result of the taking, the part of the PREMISES
remaining is insufficient to enable LESSEE to reasonably conduct its business
thereon, LESSEE may terminate this LEASE as of the effective date of such
taking after thirty (30) days written notice to LESSOR.
ARTICLE XV
Subordination: Incorporation of Mortgages and Trust Indentures
--------------------------------------------------------------
15.01 This LEASE and LESSEE's rights hereunder are and shall be
subject and subordinate (i) to all present or future trust indentures or
agreements or all fee mortgages, and all advances made or to be made thereunder,
if any; and (ii) to all renewals, modifications, consolidations, replacements
and extensions of any or all of the foregoing.
LESSEE agrees that if the holder of any fee mortgage or the
trustee under any trust agreement, or any of its successors or assigns, or any
other person claiming by or through any fee mortgage or trustee or by or through
any foreclosure proceeding of any fee mortgage or trust indenture, or otherwise,
shall succeed to the rights of LESSOR under this LEASE, upon the demand of such
successor, LESSEE shall attorn to and recognize such successor as LESSEE's
landlord under this LEASE, and LESSEE shall promptly execute, acknowledge and
deliver at any time any instrument that may be necessary to evidence such
attornment. Upon such attornment, this LEASE shall continue in full force and
effect as a direct lease between LESSEE and such successor landlord, upon and
subject to all of the then executory terms, covenants and conditions of this
LEASE, except that such successor landlord shall not be (a) liable for any
previous act or omission or negligence of LESSOR under this LEASE, or (b)
subject to any counterclaim, defense or offset that LESSEE may have against
LESSOR.
15.02 The provisions of Section 15.01 shall be self-operative,
and no instrument of subordination or of attornment shall be required or needed
by any fee mortgagee or trustee. In confirmation of any subordination or
attornment provided for in this ARTICLE, LESSEE shall, at LESSOR's or any
trustee's request, or at the request of any fee mortgagee, promptly execute,
acknowledge and deliver any such further instruments within ten (10) working
days after having been requested to do so by LESSOR. LESSOR shall have the
right, in addition to any other rights or remedies available to LESSOR in the
case of such default, to execute and deliver any such further
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instruments for and on behalf of LESSEE and LESSEE hereby irrevocably
constitutes and appoints LESSOR as LESSEE's attorney in fact for such purpose.
15.03 If any act or omission by LESSOR would give LESSEE the right to
terminate this LEASE or to claim a partial or total eviction, LESSEE shall not
exercise any such right (a) until it shall have given written notice of such act
or omission to the holder or holders of any fee mortgage to which this LEASE is
or shall be subordinate, provided that the name and address of such holder or
holders shall have been furnished to LESSEE in writing, and (b) until a
reasonable period of time for remedying such act or omission shall have elapsed
following the giving of such notice, provided that within twenty (20) days (or
such shorter period as may be necessary in the event of emergency) following the
giving of such notice, LESSOR or the holder or holders of any such fee mortgage
shall, with reasonable diligence, have commenced and continued to remedy such
act or omission or to cause the same to be remedied.
15.04 LESSEE agrees to perform and comply with the terms, provisions,
covenants and conditions of any trust indenture or agreement insofar as they
relate to the LEASED PREMISES and are not modified herein, and agrees not to do
or suffer or permit anything to be done which would result in a default by any
person under any such trust indenture or agreement.
ARTICLE XVI
Right to Cure Certain Defaults
------------------------------
16.01 If LESSEE shall be in default in the performance of any of its
obligations under this LEASE, LESSOR may (but shall not be required to), after
the giving of notice in accordance with the provisions of Section 17.01, cure
such default on behalf of LESSEE, and the amount of the cost to LESSOR of curing
any such default shall be due as additional RENT under this LEASE and shall be
paid by LESSEE to LESSOR on demand, together with interest thereon at a rate per
annum equal to the sum of the "prime rate" of interest then being charged by
Bank One, Columbus, N.A., Columbus, Ohio, or its successor, plus two percent
(2%) from the date or dates of payment thereof by LESSOR.
ARTICLE XVII
Default
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17.01 If LESSEE fails to pay any installment of RENT or any other money
obligation to be paid by LESSEE until the terms of this LEASE when due, and if
the same remains unpaid for a period of ten (10) calendar days after written
notice or if LESSEE shall fail to perform or observe any of its other
obligations under this LEASE and shall fail to commence the correction of such
other default within ten (10) calendar days after notice to LESSEE by LESSOR of
such default and to complete the correction thereof within a reasonable time
thereafter; or if LESSEE abandons or vacates the LEASED PREMISES or makes an
assignment for the benefit of creditors;
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or if LESSEE suffers a receiver or trustee to be appointed for its business or
property, unless such appointment is vacated within sixty (60) calendar days of
its entry; or if an order for relief under the federal Bankruptcy Code is
entered naming LESSEE as debtor; or if LESSEE's interest in the LEASED PREMISES
is sold upon execution or other legal process, then, in any such event, the
right of LESSEE to occupy the LEASED PREMISES shall terminate immediately and
LESSOR shall have the right to repossess the LEASED PREMISES and each and every
part thereof, to declare all remaining rental payments under this LEASE to be
due and payable immediately, and to expel and put out LESSEE and every other
person occupying the LEASED PREMISES, without such termination, repossession or
expulsion working a termination of this LEASE. Neither such termination of the
right of LESSEE to occupy the LEASED PREMISES nor such repossession by LESSOR
shall relieve LESSEE from its obligations to pay RENT and to perform and observe
all of its other obligations under this LEASE.
17.02 In the event that LESSOR shall re-enter into possession of the LEASED
PREMISES without termination of the LEASE TERM as contemplated by Section 17.01
of this LEASE, LESSOR may, but shall not be required to, relet the LEASED
PREMISES, in whole or in part, for the account of LESSEE to any person, firm or
corporation at such rent and upon such other terms and conditions as LESSOR
shall desire. In any such case, LESSOR may make such repairs and alterations to
the LEASED PREMISES as are reasonably necessary in order to relet the same and
LESSEE shall, on demand by LESSOR, pay the costs thereof, together with LESSOR's
expenses of reletting the LEASED PREMISES as additional RENT due under this
LEASE. If the consideration collected by LESSOR upon any such reletting for
LESSEE's account is insufficient to pay the full amount of the monthly RENT and
any other monies to be paid the LESSEE under this LEASE, LESSEE shall pay to
LESSOR as additional RENT the amount of each such deficiency, upon demand by
LESSOR.
17.03 In addition to the right of LESSOR under this ARTICLE XVII to
terminate LESSEE's right to possession only to the LEASED PREMISES, LESSOR shall
have the right to elect, at any time, after default by LESSEE (including any
time after LESSOR has terminated LESSEE'S right to possession only to the LEASED
PREMISES as contemplated by Section 17.01 of this LEASE), to cancel and
terminate the LEASE TERM by giving notice to LESSEE of such election.
ARTICLE XVIII
Assignment and Subletting; Quiet Enjoyment
------------------------------------------
18.01 LESSEE may not assign this LEASE or any interest therein nor sublease
all or any part of the LEASED PREMISES without first obtaining the prior written
consent of LESSOR, which consent shall not be unreasonably withheld.
18.02 LESSOR shall have the right to assign its interest in this LEASE at
any time.
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18.03 Provided LESSEE is not in default hereunder, LESSOR covenants with
and warrants and represents to LESSEE that LESSEE shall at all times during the
LEASE TERM peaceably and quietly have, hold, occupy and enjoy the LEASED
PREMISES without hindrance or molestation by LESSOR or by any person claiming
through it.
ARTICLE XIX
Surrender
---------
19.01 Upon the termination of the LEASE TERM, LESSEE will surrender the
LEASED PREMISES to LESSOR in good order and condition, reasonable use and
ordinary wear excepted.
ARTICLE XX
Right of Entry by Lessor
------------------------
20.01 LESSOR may, during the LEASE TERM, enter upon the LEASED PREMISES at
all reasonable times for any lawful purpose, provided, however, that LESSOR
conducts such entry in a manner reasonably calculated to cause minimal
disruption to the normal functioning of LESSEE's business.
ARTICLE XXI
Payments and Notices
--------------------
21.01 All payments of RENT and other payments, if any, required to be made
by LESSEE to LESSOR under the provisions of this LEASE, and all notices and
other communications required or permitted to be given or delivered under this
LEASE to LESSOR or LESSEE, which notices or communications must be in writing,
shall be mailed by United States certified mail, postage prepaid, return receipt
requested, addressed as follows:
(A) If to LESSOR, to:
GBDG Properties
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx, Member
13
(B) If to LESSEE, to:
S.E.A., Inc.
0000 Xxxxxxxxxxx-Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
with a copy to:
FTI Consulting, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx XX, Chairman
21.02 LESSOR or LESSEE may, by notice given to the other, from time to time
and at any time designate a different address and method for making payments
required to be made, and for the giving of notices or other communications, to
the party designating such new address or method. Any notice, payment or other
communication required or permitted to be given in accordance with this LEASE
shall be deemed to have been given when received or refused by the addressee as
indicated on the return receipt
ARTICLE XXII
Brokers and Others
------------------
22.01 LESSOR and LESSEE each represent and warrant to the other that it has
had no dealings, negotiations. agreements, consultations or other transactions
with any broker, finder or other intermediary with respect to the LEASED
PROMISES or this LEASE and that no person is entitled to any brokerage fee,
commission or other payment in respect to this LEASE, the transaction
contemplated hereby and the LEASED PREMISES, arising from agreements,
arrangements or undertakings made or effected by it with any third party.
ARTICLE XXIII
Signs
-----
23.0 1 LESSEE may erect or attach signs on or to the LEASED PREMISES
identifying the LEASED PREMISES as a place of business of LESSEE, provided that
such signs are in compliance with all applicable laws, ordinances and
regulations, now or hereafter in force. LESSEE shall remove such signs at the
end of the LEASE TERM and repair any damage to the LEASED PREMISES caused by
such removal.
14
ARTICLE XXIV
Condition of Leased Premises
----------------------------
24.01 LESSOR has made no representations or promises with respect to the
LEASED PREMISES except as herein expressly set forth and no rights, easements or
licenses are acquired by LESSEE by implication or otherwise except as expressly
set forth in the provisions of this LEASE. The taking of possession of the
LEASED PREMISES by LESSEE shall be conclusive evidence, as against LESSEE, that
LESSEE accepts the same "as is," and that the LEASED PREMISES were in good and
satisfactory condition at the time such possession was so taken.
ARTICLE XXV
Miscellaneous Provisions
------------------------
25.01 Memorandum of Lease. LESSOR shall, upon request by LESSEE, execute
and deliver to LESSEE a Memorandum of Lease or similar instrument reflecting
such of the terms of this LEASE as LESSEE may designate, which instrument shall
be in a form recordable under the laws, regulations and customs of the State of
Ohio and its political subdivisions and which LESSEE may record in public
offices. LESSEE expressly agrees that it will not record this LEASE in any
public office without the prior written consent of LESSOR, which consent LESSOR
may withhold at will.
25.02 Successors and Assigns. This LEASE shall inure to the benefit of and
be binding upon the respective successors and assigns (including successive, as
well as immediate, successors and assignees) of LESSOR and of LESSEE.
25.03 Governing Law. This LEASE shall be governed by and construed in
accordance with the law of the State of Ohio.
25.04 Remedies Cumulative. All rights and remedies of LESSOR and of LESSEE
enumerated in this LEASE shall be cumulative and, except as specifically
contemplated otherwise by this LEASE, none shall exclude any other right or
remedy allowed at law or in equity, and said rights or remedies mall be
exercised and enforced concurrently. No waiver by LESSOR or by LESSEE of any
covenant or condition or of the breach of any covenant or condition of this
LEASE to be kept or performed by the other party, shall constitute a waiver by
the waiving party of any subsequent breach of such covenant or condition, or
authorize the breach or nonobservance on any other occasion of the same or any
other covenant or condition of this LEASE.
25.05 Severability. If any provision of this LEASE or the application of
any provision to any person or any circumstance shall be determined to be
invalid or unenforceable, then such determination shall not affect any other
provision of this LEASE or the application or said provision to any other person
or circumstance, all of which other provisions shall remain in full force and
effect. It is the intention of LESSOR and LESSEE that if any provision of this
LEASE is
15
susceptible of two or more constructions, one of which would render the
provision enforceable and the other or others of which would render the
provision unenforceable, then the provision shall have the meaning which renders
it enforceable.
25.06 Entire Agreement. This LEASE constitutes the entire
agreement between LESSOR and LESSEE in respect of the subject matter hereof; and
this LEASE supersedes all prior and contemporaneous agreements between LESSOR
and LESSEE in connection with the subject matter of this LEASE, including,
without limitation, that certain Lease Agreement between the parties dated
December 24, 1996 (the "Prior Lease Agreement"). Each party hereby releases the
other party from any and all claims such party may have under the Prior Lease
Agreement. No officer, employee or other servant or agent of LESSOR or of LESSEE
is authorized to make any representation, warranty or other Promise not
contained in this LEASE. No change, termination or attempted waiver of any of
the provisions of this LEASE shall be binding upon LESSOR or LESSEE unless in
writing and signed by the party affected.
25.07 Rights Created by Lease. Nothing contained in this LEASE
shall be deemed to have created, and shall not create, any rights in third
parties who are not signatories to this LEASE. This LEASE is extended to create
a lessor/lessee relationship only, and nothing herein contained shall be
construed to create a partnership, joint venture or other relationship between
LESSOR and LESSEE.
16
Signed and Acknowledged LESSOR:
in the pressence of:
GBDG, LTD, an Ohio limited liability
company
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------------------- ------------------------------
/s/ Xxxxx Xxxxx Its: MEMBER
--------------------------------------- ------------------------------
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------- ------------------------------
/s/ Xxxxx Xxxxx Its: MEMBER
--------------------------------------- ------------------------------
[SEAL] XXXXX X. XXXXXXX, Attorney At Law LESSEE:
NOTARY PUBLIC, STATE OF OHIO
My commission has no expiration date S.E.A., Inc., an Ohio corporation
Section 147.03 R.C
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------------- ------------------------------
/s/ Xxxxx Xxxxx Its: President
-------------------------------------- ------------------------------
STATE OF OHIO
FRANKLIN COUNTY, SS:
The foregoing instrument was acknowledged before me this 24 day of
September, 1998, by Xxxxx Xxxxx, a member of GBDG, LTD., an Ohio limited
liability company, on behalf of the limited liability company.
[SEAL] XXXXX X. XXXXXXX, Attorney At Law /s/ Xxxxx X. Xxxxxxx
NOTARY PUBLIC, STATE OF OHIO -------------------------------
My commission has no expiration date Notary Public
Section 147.03 R.C
STATE OF OHIO
FRANKLIN COUNTY, SS:
The foregoing instrument was acknowledged before me this 24 day of
September, 1998, by Xxxxx X. Xxxxx, the President of S.E.A., Inc. an Ohio
corporation, on behalf of the corporation.
[SEAL] XXXXX X. XXXXXXX, Attorney At Law /s/ Xxxxx X. Xxxxxxx
NOTARY PUBLIC, STATE OF OHIO -------------------------------
My commission has no expiration date Notary Public
Section 147.03 R.C
17
This Instrument Prepared by:
VORYS, XXXXX, XXXXXXX AND XXXXX
00 Xxxx Xxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxx 00000-0000
18
EXHIBIT A
Description of the LEASED PREMISES
Situated in the County of Franklin, State of Ohio and in the City of Columbus:
Being part of the First Quarter of Second Township, Range 18, United States
Military Lands and also being part of the North one-half of the North one-half
of Lot No. 4 of Xxxxx and Xxxxxxx Subdivision, of part of said Quarter Township
and being One Acre out of the southwest corner of said tract described as Fourth
Parcel in the deed of Eliza Xxxx Xxxxxxxx to Xxxxxx X. Xxxxxxxx, as the same is
shown of record in Deed Book 970, page 397, Recorder's Office. Franklin County,
Ohio, and being more particularly described as follows:
Beginning at an iron pin at the southwest corner of the North one-half of the
North one-half of Lot No.4, above mentioned, said iron pin being Northerly
measured along the Half Section line, 601.8 feet from its intersection with the
center line of the Worthington-Galena Road; thence from said beginning point,
North along the Half Section line, 194.33 ft. to an iron pin; thence Easterly,
parallel with the south line of the North One-half of the North One-half of said
Lot, 224.15 ft. to an iron pin; thence Southerly, parallel with the Half Section
line 194.33 ft. to an iron pin in the south line of the North one-half of the
North One-half of Lot No. 4, above mentioned; thence with said line Westerly,
224.15 ft. to the place of beginning, containing one acre.
EXCEPTING THEREFROM:
Beginning at the northeasterly corner of said one acre tract, said point also
being a southwesterly corner of a 1.259 acre tract of land described in Exhibit
"A" of the deed to S.E.A. Properties, of record in Deed Book 3778, page 490,
Recorder's Office, Franklin County, Ohio, said point also being in an easterly
right-of-way line of XxXxxxxxxx Road;
Thence, from said beginning point, S 87(degrees) 13' 22" E, with the northerly
line of said one acre tract and with a southerly line of said 1.259 acre tract,
a distance of 40,00 feet to a point;
Thence S 3(degrees) 09' 12" W, parallel with and 40 feet easterly from, as
measured at right angles, the westerly line of said one acre tract and an
easterly line of said XxXxxxxxxx Road, a distance of 179.61 feet to a point of
curvature.
Thence southeastwardly, with the arc, of a curve to the left having a radius of
23.77 feet, a central angle of 38(degrees) 46' 54" and a chord that bears S 18
(degrees) 25' l6" E, a chord distance of 15.78 feet to a point in the
southerly line of said one acre tract, said point also being in the northerly
line of a 1.177 acre tract of land designated as Parcel 3 and described in the
deed to Ranco Incorporated, of record in Deed Book 3046, Page 587, Recorder's
Office, Franklin County, Ohio;
Thence N 87(degrees) 13' 22" W, with the southerly line of said one acre tract
and with the northerly line of said Parcel 3, a distance of 45.81 feet to the
southwesterly corner of said one acre tract and the
19
northwesterly corner of said Parcel 3, said point also being in the easterly
right-of-way line of said XxXxxxxxxx Road;
Thence N 3(degree) 09' 12" E, with the westerly line of said one acre tract and
with the easterly line of said XxXxxxxxxx Road, a distance of 194.33 feet to the
point of beginning and containing 0.179 acre of land, more or less.
Parcel No. 610-128229
Street Address: 0000 Xxxxxxxxxxx Xxxxxx Xxxx
20
EXHIBIT B
A. The RENT required to be paid by LESSEE under the provisions of
Section 4.01 of this LEASE during the LEASE TERM shall be as follows, but
adjusted as provided in paragraph B hereof;
LESSEE shall pay RENT during the LEASE TERM in the total amount
of $2,500.00 in consecutive monthly installments commencing
September 1, 1998, and continuing on the same day of each month
thereafter. Such amount shall be prorated for any partial months.
RENT shall be adjusted on the second anniversary of the date of
this Agreement and every second year thereafter (each, a
"Measurement Date") as set forth below. At the Measurement Date,
the RENT shall be adjusted by the percentage equal to the
fraction, the numerator of which shall be the CPI Index in effect
on the then-current Measurement Date less the CPI Index in effect
on the prior Measurement Date (the "Base Index"), and the
denominator shall be the Base Index. Immediately following such
calculation, LESSOR shall send LESSEE a statement setting forth
the CPI Index, percentage Increase, and adjusted RENT. For
purposes of this Agreement, "CPI Index" shall mean the revised
Consumer Price Index for All Urban Consumers with a base of
1982-84=100, specified for "All items," U.S. city average, series
ID CUUR000SAO issued by the Bureau of Labor Statistics Data of
the United Stated Department of Labor. In the event the CPI Index
is hereafter converted to a different standard reference base or
otherwise revised, the determination under this paragraph shall
be made with the use of such conversion factor, formula or table
for converting the CPI Index as may be published by the Bureau of
Labor Statistics.
B. The RENT required to be paid by LESSEE for any period during
which LESSEE has possession of the LEASED PREMISES after the expiration of the
LEASE TERM shall be 125% of the average monthly installment of RENT payable by
LESSEE hereunder for the one year period immediately preceding the expiration of
the LEASE TERM.
21
LEASE AMENDMENT
This Amendment is made to the LEASE dated 25 September, 1998 by and between
GBDG, Ltd. (LESSOR) and S.E.A., Inc. (LESSEE)
PROVISIONS
1. Premises: The purpose of this Amendment is for the LESSEE to be provided
new construction office, warehouse, parking, and landscaping at the address
0000 Xxxxxxxxxxx-Xxxxxx Xxxx for its business use.
2. Term: The term shall remain the same as the original LEASE expiring August
31, 2008.
3. Rent: The base rent shall be increased by $91,800 per year or $7,650.00 per
month commencing at time of completion which is estimated to be November 1,
2001. All other provisions of the original LEASE pertaining to CPI
increases, pass thru charges and costs shall apply to this Amendment.
4. Additional: All other terms and conditions of LEASE remain the same.
Signed and Acknowledged LESSOR
in the presence of: GBDG, LTD., an Ohio limited liability company
/s/ Xxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- -----------------------------
/s/ Xxxxxxx X. Chrysler Its: Member
----------------------- ---------------------------
LESSEE:
S.E.A., Inc. an Ohio corporation
/s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ T Xxxxxx
----------------------- ----------------------------
/s/ Xxxxxxx X. Xxxxx, Xx. Xxxxxxxx Xxxxxx
Its: Treasurer
STATE OF OHIO
FRANKLIN COUNTY, SS:
The foregoing instrument was acknowledged before me this 30/th/ day of
November, 2001, by Xxxxxx X. Xxxxxxxx, a member of GBDG, LTD., and Ohio
limited liability company, on behalf of the limited liability company.
/s/ Xxxxx X. Xxxxxx
----------------------------
Notary Public
The foregoing instrument was acknowledged before me this 3/rd/ day of
December, 2001, by Xxxxxxxx X. Xxxxxx, the Treasurer of S.E.A., Inc., an Ohio
corporation, on behalf of the corporation.
/s/ Xxxxxx X. Xxxxx
----------------------------
Notary Public
22
