Exhibit 10.17
TECHCOLUMBUS
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made this 2nd day of August, 2006
between TECHCOLUMBUS, an Ohio not-for-profit corporation ("Sublessor"), and
METAMATERIA PARTNERS, LLC. ("Subtenant").
1. LEASE OF PREMISES. In consideration of the rent, the Sublessor subleases
to Subtenant, the space ("Premises"), located at the following address: 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx (the "Real Property"). The Premises consist of
approximately 8287 square feet of space as more particularly described as
suite(s) 130, 133, 135, 136, 137, 237, 239, 241, 255, 257, 274 and 276. (see
exhibit A)
This Sublease is subject and subordinate to a certain lease dated January
18, 1994 between the Ohio State University, as "Lessor", and Sublessor, as
"Lessee", (the "Main Lease").
2. PARKING. Client and employee parking is located at the east end of the
building, parking spaces located in the front of the building are reserved for
visitors.
3. TERM. Subtenant shall lease the Premises for a term of 1 year
(months/years) beginning on July 1, 2006 and ending on June 30, 2007. Sublessor
shall not be liable for failure to deliver the Premises to Subtenant on the
beginning date of this Sublease for reasons beyond Sublessor's control.
4. RENT/LATE CHARGES/ADDITIONAL RENT.
A. RENT. Subtenant agrees to pay Sublessor rent at the annual rate of
ONE HUNDRED SIX THOUSAND TWO HUNDRED DOLLARS AND 00/100 ($106,200.00) in equal
monthly payments of EIGHT THOUSAND EIGHT HUNDRED FIFTY DOLLARS AND 00/100
($8,850.00) in advance, on the first day of each calendar month during the term.
In the event that the term agreed to does not begin on the first day of the
month, or end on the last day of the month, the first and/or last monthly rental
payment shall be prorated.
B. LATE CHARGE. Subtenant agrees to pay Sublessor a late charge of Ten
Dollars ($10.00) per day if the rent is not paid in full by the tenth day of the
month up to maximum of $600.00.
C. ADDITIONAL RENT. Subtenant agrees to pay all charges incurred for
TechColumbus services furnished by Sublessor as well as any other amounts due to
Sublessor as additional rent, which shall be paid along with the monthly
installments of rent.
5. USE OF PREMISE. The Premises shall only be used for: Commercial
Development of Proprietary Materials Technology.
6. SECURITY DEPOSIT. Sublessor acknowledges receipt of a Security Deposit
in the amount of SIX THOUSAND TWO HUNDRED DOLLARS AND 00/100 ($6,200.00) as a
deposit for the
faithful performance by Subtenant of all its obligations under this Sublease as
well as any extensions or renewals thereof. No interest shall be paid on
Subtenant's Security Deposit.
7. REPORTS. Subtenant acknowledges that Sublessor provides space and
business incubation services through grants and subsidies from city, state and
other governmental agencies, and such agencies have various funding requirements
and often require periodic information reports, including information as to the
number of new, full time jobs created by Subtenant's business enterprise.
Subtenant further acknowledges that Subtenant's admission, graduation, and
reporting guidelines as described in Exhibit B and will require periodic
reporting of business status in areas of planning and finance. Subtenant agrees
to provide such information as required by Sublessor in a timely and accurate
manner, and acknowledges that this Sublease is not binding upon Sublessor if
Subtenant does not qualify for the funding programs of the various governmental
agencies in which Sublessor participates.
8. SUCCESS OR FAILURE OF SUBTENANT'S BUSINESS. Subtenant specifically
recognizes and acknowledges that the business venture to be undertaken by
Subtenant under this Sublease depends upon the ability of Subtenant as an
independent businessperson, as well as other factors, such as market and
economic conditions beyond the control of Sublessor and Subtenant. Subtenant
acknowledges that success or failure of Subtenant's business enterprise will be
dependent on business acumen and diligence of Subtenant. Subtenant agrees that
success or failure of Subtenant's business will not depend on Sublessor's
performance under this Sublease Agreement, and Sublessor makes no representation
or warranties as to the success of Subtenant's business.
9. RULES AND REGULATIONS. Subtenant shall observe any rules and regulations
regarding the Premises, which are enforceable against Sublessor under the Main
Lease. Sublessor shall provide a copy of any such rules and regulations to
Subtenant within 5 days after receipt by Sublessor. Failure to enforce any rules
and regulations shall not constitute a waiver thereof. It shall be Subtenant's
obligation to see that Subtenant's employees, invitees and agents obey such
rules and regulations.
10. SUBTENANT'S PROPERTY. All fixtures, furnishings, equipment, inventory
and other personal property at any time located upon the Premises, whether such
property is owned by Subtenant, Sublessor or any other person, and any
additions, alterations and improvements to the Premises made by Subtenant shall
be kept and maintained by Subtenant at its sole risk, and Subtenant shall bear
all cost, loss and expense for any casualty or theft risk in connection with
such fixtures, furnishings, equipment, inventory and other personal property.
Subtenant shall indemnify and save and hold harmless Sublessor from and against
any and all loss, cost and expense, including but not limited to reasonable
attorney fees, by reason of any damage to or destruction of any fixtures,
furnishings, equipment, inventory and other personal property and any such
additions, alterations and improvements made to the Premises by Subtenant.
Sublessor will, however, be responsible for any damage to the personal property
of Subtenant or its invitees or clients, while such property is in the Premises,
which results from the negligent act or omission of Sublessor's employees or
agents while acting within the scope of their employment.
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11. SUBTENANT ALTERATIONS, INSTALLATIONS AND CHANGES IN PREMISES. Sublessor
and Subtenant shall comply with all applicable provisions of Ohio Revised Code
Chapter 4115, entitled Wages and Hours on Public Works, and with the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. section 12131.
Subtenant shall not, without the prior written consent of Sublessor and the
Lessor under the Main Lease ("Lessor"), make any additions, alterations or
improvements (other than routine interior redecoration such as painting and
wallpapering) in or to the Premises, including but not limited to the
installation of fixtures, appliances or equipment, or the changing of the
Premises or any part thereof. Prior to the commencement of any permitted
additions, alterations or improvements to the Premises, Subtenant shall submit
plans and specifications therefore to Sublessor for its approval in writing,
which shall not unreasonably be withheld. Said additions, alterations or
improvements shall be made in a good and workmanlike manner, in accordance with
the said plans and specifications therefore and in compliance with all
applicable statutes, ordinances, rules and regulations. Sublessor may, but shall
not be obligated to, inspect such additions, alterations or improvements, which
Subtenant shall make to the Premises. Subtenant shall pay all costs of making
any additions, alterations or improvements and shall agree to keep the leased
Premises free from any liens, claims or encumbrances, and shall indemnify and
save Sublessor harmless from and against all loss, cost and expense, including
but not limited to reasonable attorney's fees, arising out of Subtenant's
additions, alterations or improvements.
All additions, alterations and improvements made by Subtenant shall become
the property of Sublessor (or Lessor, as provided in the Main Lease) upon the
expiration or termination of this Sublease; provided, however, that Sublessor
may, at its option and in accordance with Section 26 below, require Subtenant to
remove, at Subtenant's sole cost and expense, any such additions, alterations
and improvements at the end of the Sublease term or any renewal thereto.
12. MAINTENANCE AND REPAIR. Subtenant shall not damage the Premises and
shall keep and maintain the interior of the Premises and all additions,
alterations, and improvements thereto in good condition and repair, including
but not limited to the exterior doors, windows and window frames, custodial
services, carpet cleaning, window washing, other minor interior repairs and
maintenance, bulb replacement, and reasonable periodic painting as determined by
Sublessor. Subtenant shall, further, keep the Premises in a clean, safe and
healthy condition free of insects, rodents, termites, vermin and other pests so
as to conform to all lawful requirements, laws and ordinances and directions of
the proper public authorities. In the event any portion of the Premises shall be
damaged because of improvements installed by Subtenant or through the fault or
neglect of Subtenant, Subtenant shall promptly and properly repair such damages
at its cost even though it involves foundation or structural repairs. If
Subtenant refuses or neglects to commence or complete said repairs and/or
replacements promptly and adequately, Sublessor may, but shall not be required
to, make or complete said repairs and replacements and Subtenant shall pay the
costs thereof to Sublessor upon demand.
Subtenant shall coordinate its trash removal with the Sublessor and shall
deposit its ordinary trash and refuse in the trash dumpster provided by the
Sublessor (or Lessor, as the case may be). Subtenant shall be responsible for
the collection, storage, and disposal of its extraordinary trash and refuse
including, but not limited to, bio-hazardous materials, chemicals,
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and low-level nuclear materials as provided in Section 23. Said collection,
storage, and disposal shall be in accordance with Section 5 hereof and subject
to the general direction of The Ohio State University's Office of Environmental
and Occupational Health and Safety.
All repairs and replacements made by Subtenant shall be equal or better in
quality to the original work. If Subtenant refuses or neglects to commence or
complete repairs and/or replacements for which Subtenant is responsible,
promptly and adequately, Sublessor may, but shall not be required to, make or
complete said repairs and replacements, and Subtenant shall pay the costs
thereof to Sublessor immediately upon Sublessor giving notice of same to
Subtenant; provided, however, that no such action by Sublessor shall in any way
be deemed to be a waiver by Sublessor of any right Sublessor may have hereunder
on account of any default by Subtenant.
13. MECHANIC'S LIENS. If, as a result of any such additions, alterations,
improvements, repairs or replacements (hereinafter in this section referred to
as the "construction"), the Premises or any part thereof shall at any time
during the Sublease term or any renewal term thereof, become subject to any
vendor's, mechanic's, laborer's, materialmen's or other similar liens based upon
furnishing of materials or labor to the Premises and not contracted for by
Sublessor or Lessor, Subtenant shall cause the same to be discharges at its sole
cost and expense within 45 days after Subtenant shall have actual notice of the
existence thereof. If such liens are not discharged within said 45-day period,
Sublessor may at any time thereafter while the lien remains undischarged,
repossess the Premises and enjoy the same as if the Sublease had not been made,
and thereupon Subtenant's rights under this Sublease shall terminate, without
prejudice, however, to any of the rights of Sublessor, including recovery from
Subtenant of all rent reserved hereunder, which will thereupon accelerate and
become immediately due and payable. The foregoing notwithstanding, Subtenant
agrees that in the event any such liens are filed, they shall affect only the
leasehold estate vested in Subtenant and shall in no way affect the leasehold
estate vested in Sublessor or Lessor's fee simple ownership of the Premises.
14. DAMAGE OR DESTRUCTION. If the Premises shall be so damaged or destroyed
by fire or other casualty that the same, in the opinion of Sublessor (or Lessor,
as the case may be), are untenantable, the Sublessor shall have the right to
terminate this Sublease effective as of the date of such damage or destruction,
which option shall be exercised, if at all, by Sublessor giving Subtenant
written notice of same within thirty (30) days after such damage or destruction
if reasonably possible. If this Sublease shall be terminated in accordance with
this section, the rent hereunder shall be apportioned to the date of such damage
or destruction, and Subtenant shall immediately surrender and deliver up the
Premises to Sublessor. If Sublessor elects not to terminate this Sublease in
accordance with this section, provided, however, that the Main Lease is not
terminated by Lessor, the rent hereunder shall xxxxx from the date of such
damage or destruction to the date the Premises are again tenantable. In such
event, Sublessor shall use its best efforts to enforce the provisions of the
Main Lease requiring Lessor to promptly repair or rebuild the Premises (except
such fixtures, furnishings, equipment and tenant improvements as shall have been
installed by Subtenant), and this Sublease shall remain in full force and
effect.
If the Premises shall be so damaged by fire or other casualty that the
Premises (exclusive of such fixtures, furnishings, equipment and tenant
improvements as shall have been installed by
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Subtenant), in the sole opinion of Sublessor, is not thereby rendered
untenantable, provided, however, that the Main Lease is not terminated by
Lessor, then Sublessor shall use its best efforts to enforce the provisions of
the Main Lease requiring Lessor to promptly repair the Premises (except such
fixtures, furnishings, equipment and tenant improvements as shall have been
installed by Subtenant), and this Sublease shall remain in full force and
effect; provided, however, that until such repairs have been completed, the rent
shall be reduced by the same proportion as that proportion of the Premises that
in the sole reasonable opinion of Sublessor is untenantable. All decisions of
Sublessor in accordance with this section shall be final and shall be binding
upon Subtenant.
Anything in this section to the contrary notwithstanding, if any of the
said damage or destruction shall have been caused by the willful or negligent
act or omission of Subtenant, no right or obligation of Sublessor under this
section nor the exercise of any such right or the performance of any such
obligation shall prejudice or be deemed to constitute a waiver of any rights or
claims Sublessor may have against Subtenant by reason of such willful or
negligent act of omission by Subtenant.
15. SUBTENANT'S CASUALTY INSURANCE. During the term of this Sublease,
Subtenant, shall, at its sole cost and expense, carry and maintain for the
mutual benefit of itself and Sublessor, a policy of fire and extended coverage
insurance insuring all fixtures, furnishings, equipment inventory and other
personal property at any time located upon the Premises, against damage and
destruction by all causes generally insured against in policies of fire and
extended coverage insurance written on properties in Franklin County, Ohio, in
the amount of 80% of the full insurable value thereof, as determined by the
insurance company issuing such policy of insurance. Such policy of insurance
shall bear an endorsement to the effect that the insurer agrees to notify
Sublessor not less than ten (10) days in advance of any modification or
cancellation thereof. Such policy of insurance shall be issued by an insurance
company and shall be in form acceptable to Sublessor. Upon the execution hereof,
Subtenant shall deposit with Sublessor such policy of insurance or a certificate
thereof. Not less than ten (10) days prior to the due date for the payment of
premiums upon such policy of insurance, Subtenant shall deposit with Sublessor
evidence satisfactory to Sublessor of the payment of such premiums. Not less
than ten (10) days prior to the termination date of such policy of insurance,
Subtenant shall deposit with Sublessor evidence satisfactory to Sublessor of the
renewal of such policy of insurance. Sublessor's failure to receive or demand
any evidence of insurance required herein, however, shall in no way diminish or
affect Subtenant's obligation to obtain such insurance.
Subtenant shall cause each insurance policy carried by it pursuant to this
Sublease to be written in such a manner so as to provided that insurer waives
all right of recovery by way of subrogation against Sublessor in connection with
any loss or damage covered by the policy. If Subtenant fails to procure such
waiver, it will indemnify Sublessor for all moneys to which any subrogor
hereunder becomes entitled and the cost of reasonable attorney's fees of any
claim for subrogation.
16. LIABILITY INSURANCE. During the initial and any additional term of this
Sublease, Subtenant shall at its sole cost and expense, carry and maintain, for
the mutual benefit of itself, Sublessor and its officers, agents and employees,
a policy of general liability insurance against claims for personal injuries,
wrongful death or property damage occurring on or about
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the Premises with minimum amount of coverage of One Million Dollars
($1,000,000.00) on account of bodily injury and/or death of persons and/or on
account of damage to property. Subtenant agrees to deposit said policy or
policies (or certificates thereof) with Sublessor prior to the date of occupancy
by Subtenant, said policy or policies naming as insured both Subtenant and
Sublessor. Such policy of insurance shall be issued by an insurance company
acceptable to Sublessor, and shall bear an endorsement to the effect that the
insurer agrees to notify Sublessor not less than ten (10) days in advance of any
modification or cancellation thereof. Not less than ten (10) days prior to the
termination date of such policy of insurance, Subtenant shall deposit with
Sublessor evidence satisfactory to Sublessor of the renewal of such policy of
insurance. Sublessor's failure to demand or request a Certificate of Insurance
shall not affect Subtenant's obligation to obtain and maintain the required
insurance. Subtenant shall cause to be issued and shall maintain during the term
of this Sublease such Workers' Compensation and disability insurance as may,
from time to time, be required by city, county, state or federal laws. Evidence
of such insurance shall be delivered to Sublessor prior to the date of occupancy
by Subtenant, and thereafter, at such times as Sublessor may require.
17. UTILITIES. Subtenant shall be responsible for telephone and data
communications installation and usage charges. Sublessor shall not be
responsible for the quality, quantity, interruption or failure in the supply of
any utility to the Premises when said supply is so affected as a result of
conditions beyond the control of Sublessor. Sublessor shall use its best efforts
to enforce the provisions of the Main Lease requiring Lessor to provide all
other utilities.
18. ASSIGNMENT AND SUBLETTING BY SUBTENANT. Subtenant shall not, without
the prior written consent of Sublessor and Lessor, assign or transfer its
interests under this Sublease in whole or in part or sublet all or any part of
the Premises. If Subtenant is a corporation, any transfer of this Sublease from
Subtenant by merger, consolidation or liquidation shall constitute an assignment
for the purpose of this Sublease and shall require the written consent of
Sublessor and Lessor. Sublessor shall not unreasonably withhold consent to any
such assignment, sublet or transfer. Any consent by Sublessor to any assignment
or subletting shall not constitute a waiver of the necessity of such consent to
any subsequent assignment or subletting. Each assignee or transferee shall
assume and be deemed to have assumed this Sublease and shall remain liable
jointly and severally with Subtenant for the payment of all rent and for the due
performance of all the terms, covenants, conditions and agreements herein
contained on Subtenant's part to be paid and performed for the term of this
Sublease. No assignment shall be binding on Sublessor unless such assignee or
Subtenant shall deliver to Sublessor a counterpart of such assignment and
instrument in recordable form which contains a covenant of assumption by the
assignee. No assignment or subletting by Subtenant with the consent of Sublessor
and Lessor shall relieve Subtenant of its obligations hereunder unless Sublessor
and Lessor expressly so agree in writing.
19. INDEMNIFICATION. Subtenant shall indemnify and save and hold harmless
Sublessor and its officers, trustees, agents and employees from and against any
and all loss, liability, damage, cost and expense, including but not limited to
reasonable attorney fees, for injury, death, loss or damage of whatever nature
to any person, property or any other claim by Subtenant or its officers,
employees, agents, customers, licensees, invitees or any other person, firm or
corporation resulting from the Subtenant's occupancy or use of the Premises. In
the
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event that any action or proceeding is instituted against Sublessor by reason of
any such claim or event, Subtenant shall resist and defend such action or
proceeding at Subtenant's sole cost and expense or cause it to be resisted and
defended by an insurer. Notwithstanding the foregoing, Sublessor shall be
responsible for any liability that results from the negligent, reckless or
intentional act or omission or its employees or agents while they are acting
within the scope of their employment.
20. SUBLESSOR'S LIEN FOR RENT. Subtenant hereby grants a lien, to
Sublessor, of Subtenant's interest in all improvements, fixtures or personal
property on the Premises. In the event Subtenant fails to cure default under
this Sublease, Subtenant authorizes Sublessor to take possession of the property
free and clear of Subtenant's interest therein.
21. SUBORDINATION AND EARLY TERMINATION. Subtenant agrees that this
Sublease and Subtenant's interest in this shall be secondary to any mortgage,
deed of trust or other method of financing or refinancing now or hereafter
placed on the Premises, the property, the land underlying the Premises and/or
the building of which the Premises is a part. Subtenant further agrees that it
will execute and deliver any and all documents necessary to show that
Subtenant's rights are secondary under this Sublease.
If the Main Lease is terminated, this Sublease shall be terminated as well,
in which case, Subtenant shall pay all rent due and perform and observe all of
the covenants hereof up to the time of vacation by Subtenant, and neither
Sublessor nor Subtenant shall have a claim against the other for damages for
such early termination.
22. HOLDING OVER. Should Subtenant hold over after the term of this
Sublease expires, Subtenant shall become a Subtenant on a month-to-month basis
upon all of the terms and conditions specified in this Sublease.
23. HAZARDOUS SUBSTANCES.
A. SUBLESSOR'S CONSENT REQUIRED. Subtenant shall not cause or permit
any Hazardous Substances, as defined below, to be brought upon or kept or used
in or about the Premises and the Property (the "Real Property") by Subtenant,
its agents, employees, contractors or invitees, unless (a) such hazardous
Substances are necessary for Subtenant's business (and such business is a
permitted use under Section 5) and (b) Subtenant first obtains the written
consent of Sublessor.
B. COMPLIANCE WITH ENVIRONMENTAL LAWS. Subtenant shall at all times
and in all respects comply with all local, state and federal laws, ordinances,
regulations and orders (collectively, "Hazardous Substances Laws") relating to
industrial hygiene, environmental protection, or the use, analysis, generation,
manufacture, storage, disposal, or transportation of any Hazardous Substances.
C. HAZARDOUS SUBSTANCES HANDLING. Subtenant shall at its own expense
procure, maintain in effect and comply with all conditions of any and all
permits, licenses and other governmental and regulatory approvals required for
Subtenant's use of the Premises, including, without limitation, discharge of
(appropriately treated) materials or wastes into or through any sanitary sewer
serving the Real Property. Except as discharged into the
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sanitary sewer in strict accordance and conformity with all applicable Hazardous
Substances Laws and only with the proper written consent of the Sublessor,
Subtenant shall cause any and all Hazardous Substances removed from the Premises
(or from the Real Property, if at Subtenant's direction) to be removed and
transported solely by duly licensed haulers to duly licensed facilities for
final disposal of such materials and wastes. Subtenant shall in all respects
handle, treat, deal with, and manage any and all Hazardous Substances in, on,
under, or about the Real Property in total conformity with all applicable
Hazardous Substances Laws and prudent industry practices regarding management of
such Hazardous Substances. Upon expiration or earlier termination of the term of
the Sublease, Subtenant shall cause all Hazardous Substances to be removed from
the Premises (except such Hazardous Substances, if any, as were located in the
Premises prior to the commencement of Subtenant's occupancy thereof) and the
Real Property (if Subtenant caused such Hazardous Substances to be located on
the Real Property) and to be transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Substances Laws;
provided, however, that Subtenant shall not take any remedial action in response
to the presence of any Hazardous Substances in or about the Premises, or the
Real Property, nor enter into any settlement agreement, consent, decree, or
other compromise in respect to any claims relating to any Hazardous Substances
in any way connected with the Premises or the Real Property, without first
notifying Sublessor of Subtenant's intention to do so and affording Sublessor
ample opportunity to appear, intervene, or otherwise appropriately assert and
protect Sublessor's interest with respect thereto.
D. NOTICES. If at any time Subtenant shall become aware, or have
reasonable cause to believe, that any Hazardous Substance has come to be located
on or beneath the Real Property, Subtenant shall, immediately upon discovering
such presence or suspected presence of the Hazardous substance, give written
notice of that condition to Sublessor. In addition, Subtenant shall immediately
notify Sublessor in writing of (i) any enforcement, cleanup, removal or other
governmental or regulatory action instituted, completed or threatened pursuant
to any Hazardous Substances Laws, (ii) any claim made or threatened by any
person against Subtenant, the Premises or the Real Property relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from or
claimed to result from any Hazardous Substances and (iii) any reports made to
any local, state, or federal environmental agency, fire and safety agency or
board of health arising out of or in connection with any Hazardous Substances in
or removed from the Premises of the Real Property, including any complaints,
notices, warnings, or asserted violations in connection therewith. Subtenant
shall also supply to Sublessor as promptly as possible, and in any event within
five (5) business days after Subtenant first receives or sends the same, copies
of all claims, reports, complaints, notices, warnings, or asserted violations
relating in any way to the Premises, the Real Property, or Subtenant's use
thereof. Subtenant shall promptly deliver to Sublessor copies of hazardous waste
manifests reflecting the legal and proper disposal of all Hazardous Substances
removed from the Premises or the Real Property.
E. DEFINITION OF HAZARDOUS SUBSTANCES. As used in this Sublease, the
term "Hazardous Substance or Substances" means any hazardous or toxic
substances, materials or wastes, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (459 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances, (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes which are or become
regulated under any applicable local, state or federal law including without
limitation,
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any materials, waste or substance which is (i) petroleum, (ii) asbestos, (iii)
polychlorinated biphenyls, (iv) defined as a "hazardous waste" under the laws
and regulations of the State of Ohio, (v) defined as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, 33 U.S.C. 1251, et seq. (33
U.S.C. 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C.
1317), (vi) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. 6901, (42 U.S.C. 6903) or
(vii) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
9601, et seq. (42 U.S.C. 9601).
F. INDEMNIFICATION OF SUBLESSOR. Subtenant shall indemnify, defend (by
counsel acceptable to Sublessor), protect, and hold harmless Sublessor, and each
of Sublessor's trustees, officers, and assigns, from and against any and all
claims, liabilities, penalties, fines, judgments, forfeitures, losses
(including, without limitation, diminution in the value of the Premises or the
Real Property), damages for the loss or restriction on use of rentable or usable
space or of any the expiration or earlier termination of the term of the
Sublease. For purposes of the release and indemnity provisions hereof, any acts
or omissions of Subtenant, or by employees, agents, assignees, contractors, or
subcontractors of Subtenant or others acting for or on behalf of Subtenant
(whether or not they are negligent, intentional, willful, or unlawful), shall be
strictly attributable to Subtenant.
G. SUBLESSOR ENVIRONMENTAL COMPLIANCE COSTS. Sublessor and Subtenant
acknowledge that Sublessor may become legally liable for costs of complying with
Hazardous Substances Laws that are not the responsibility of Subtenant pursuant
to Subsection F, including the following:
(i) Hazardous Substances present in the soil or ground water on the
Property of which Sublessor has no knowledge as of the date hereof;
(ii) a change in Hazardous Substance Laws making certain Hazardous
Substances that are present on the Real Property as of the date
hereof, whether known or unknown to Sublessor, a violation of such new
Laws; (iii) Hazardous Substances that migrate, flow, percolate,
diffuse, or in any way move onto or under the Real Property after the
date hereof; (iv) Hazardous Substances present on or under the Real
Property as a result of any discharge, dumping, or spilling (whether
accidental or otherwise) on the Real Property by other lessees of the
Real Property or their agents, employees, contractors, or invitees, or
by others. Accordingly, Sublessor and Subtenant agrees that the cost
of complying with Hazardous Substances Laws on the Real Property for
which Sublessor is legally liable and that are paid or incurred by
Sublessor shall not be charged to Subtenant as any other charge. In
the event the Premises becomes uninhabitable, as so determined by a
government agency, for a period in excess of 30 days due to the
presence of a Hazardous Substance in violation of the Hazardous
Substances Laws and the Sublessor is responsible for the presence of
such Hazardous Substance, then the Sublease shall terminate and the
Sublessor shall not be liable to the Subtenant for any damages or
costs whatsoever resulting from such early termination.
H. WITHHOLDING CONSENT TO PROPOSED TRANFEREES. Subtenant acknowledges
and agrees that it shall not be unreasonable for Sublessor to withhold its
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consent to any proposed assignment, subletting, or transfer of Subtenant's
interest in the Sublease if (i) the anticipated use of the Premises by the
proposed assignee, subtenant, or transferee (collectively, a "Transferee")
involves the generation, storage, use, treatment, or disposal of Hazardous
Substances; (ii) the proposed Transferee has been required by any prior lessor,
lender, or governmental authority to make remedial action in connection with
Hazardous Substances contaminating a property, if the contamination resulted
from such Transferee's actions or use of the property in question; or (iii) the
proposed Transferee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
Hazardous Substance. Subtenant acknowledges and agrees that this section shall
not be interpreted to modify the section of the Sublease restricting assignment,
subletting or transfer of the Subtenant's interest in the Sublease, including
implying that such consent cannot be unreasonably withheld.
I. ADDITIONAL INSURANCE OR FINANCIAL CAPACITY. If at anytime it
reasonably appears to Sublessor that Subtenant is not maintaining sufficient
insurance or other means of financial capacity to enable Subtenant to fulfill
its obligations to Sublessor pursuant to this Section 23, whether or not then
accrued, liquidated, conditional, or contingent, Subtenant shall procure and
thereafter maintain in full force and effect such insurance or other form of
financial assurance, with or from companies or persons and in forms reasonably
acceptable to Sublessor, as Sublessor may from time to time reasonably request.
Furthermore, any firm retained by Subtenant to remove Hazardous Substances from
the Premises or the Real Property must provide to the Sublessor a certificate of
insurance designation public liability, comprehensive auto insurance and
environmental impairment liability (or compliance with federal responsibility
requirements) with limits to be approved by the Sublessor in each individual
case.
24. ACCESS TO PREMISES. Sublessor and Lessor shall have the right to enter
upon the Premises at all reasonable times for all reasonable purposes. Except in
cases of emergency, Sublessor shall make reasonable efforts, but shall not be
required, to give 24 hours advance notice of its intent to enter the Premises.
25. SURRENDER OF PREMISES,. Upon the expiration of this Sublease, or any
extension thereof, or its termination in any way, Subtenant shall surrender and
deliver up the Premises broom clean and in as good order and condition as the
same shall have been at the commencement of the initial term of this Sublease,
or shall have been put by Subtenant and/or Sublessor, except for reasonable wear
and tear, repairs and replacements that Sublessor is required to make and loss
by fire or other casualty, and deliver the keys to Sublessor and inform
Sublessor of all combinations of locks, safes, or vaults, if any.
Subtenant hereby expressly authorizes Sublessor as agent of Subtenant to
remove such debris and make such changes and repairs as may be necessary to
restore the Premises to such condition at the expense of Subtenant without
notice to Subtenant, in the event that this covenant and other covenants of this
Sublease on the part of the Subtenant in respect to repair are not complied with
at the termination of this Sublease, the intent being that the agreement
respecting damages suffered by Sublessor through the breach of said covenants
shall survive the termination of this Sublease.
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26. RESTORATION OF PREMISES. Upon the expiration or termination of this
Sublease or any extension thereof, whether due to default or otherwise,
Sublessor shall have the option to have any additions, alterations, and
improvements made to the Premises in accordance with Section 11 hereof removed
and the Premises restored to the condition in which they were delivered to
Subtenant at the beginning of the term of this Sublease. Upon notice to
Subtenant from Sublessor of Sublessor's decision to exercise its option to have
the additions, alterations, and improvements removed and the Premises restored,
Subtenant shall cause the same to be done, at Subtenant's sole expense, no later
than forty-five (45) days after the expiration of Subtenant's leasehold estate.
Sublessor's exercise of this option shall not affect Subtenant's obligations
under Section 25 of the Sublease.
If this Sublease is terminated due to default by Subtenant, then the notice
required from Sublessor to Subtenant under this section shall be served with
Sublessor's notice of default required under Section 27 hereof. Should
termination of the Sublease result from the expiration of the term or any
renewal term of the Sublease, Sublessor shall notify Subtenant of Sublessor's
decision to exercise its option to have the additions, alterations, and
improvements removed and the Premises restored at least sixty (60) days before
the date on which Subtenant's leasehold estate will expire.
Should Subtenant fail to cause the additions, alterations, and improvements
to be removed and the Premises restored with forty-five (45) days after
expiration of Subtenant's leasehold, Sublessor may, but shall not be required
to, cause the same to be done, and Subtenant shall pay the costs thereof to
Sublessor immediately upon Sublessor's giving notice of the same to Subtenant.
No such action by Sublessor shall in any way be deemed to be a waiver by
Sublessor of any right Sublessor may have hereunder on account of any default by
Subtenant.
27. DEFAULT. If the said rent or any part thereof shall at any time be in
arrears and remain unpaid for a period of ten (10) days after Sublessor shall
have given notice of same to Subtenant, or if Subtenant shall default in
performance of any of the other terms, covenants or conditions of this Sublease
and such default shall continue for a period of twenty (20) days after Sublessor
shall have given notice thereof to Subtenant, during which period Subtenant
shall not have proceeded forthwith to remedy such default and prosecuted such
effort diligently until such default shall have been remedied, or if Subtenant
shall make an assignment for the benefit of creditors, be adjudged a bankrupt,
suffer a receiver or trustee to be appointed in any action or proceeding by or
against Subtenant and fail to secure the discharge of such receiver or trustee
within forty-five (45) days following such appointment, or if Subtenant shall
make an application for an arrangement or reorganization under the bankruptcy
laws of the United States, or if Subtenant shall abandon or vacate the Premises,
then and in any such cases, it shall be lawful for Sublessor to enter into the
Premises and again have, repossess and enjoy the same as if this Sublease had
not been made, and thereupon this Sublease and everything contained herein on
the part of Sublessor to be done and performed shall cease, terminate and be
utterly void, without prejudice however to the rights of Sublessor and
obligations of Subtenant (including Sublessor's right to recover from Subtenant
all rent reserved hereunder which will thereupon accelerate and become
immediately due and payable). Sublessor shall be responsible for any damages to
the personal property of Subtenant that both occurs during any such re-entry and
results from the negligent, reckless or intentional act or omission of
Sublessor's employees or agents while they are acting with the scope of their
employment. In the event of acceleration, the total of all
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remaining rents to be paid by Subtenant will be discounted to present value
using the ten-existing rate for one-year Treasury Bills. The commencement of a
proceeding or suit in forcible entry and detainer or in ejectment or otherwise
after any default by Subtenant shall be equivalent in every respect to actual
entry by Sublessor, and in case of such default by Subtenant and entry by
Sublessor, Sublessor may, but shall not be obligated to, re-let the Premises.
It shall be a default under and breach of this Sublease by Sublessor if
Sublessor shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Sublease for a
period of thirty (30) days after notice thereof from Subtenant; provided,
however, that if the term, condition, covenant or obligation to be performed is
of such nature that the same cannot reasonably be performed within such 30-day
period, such default shall be deemed to have been cured if Sublessor commences
such performance within said 30-day period and thereafter diligently undertakes
to complete the same. Upon the occurrence any such default by Sublessor,
Subtenant may (i) take or commence any action to enforce this Sublease that is
permitted under Ohio law, (ii) cure the default and, if such cure required
Subtenant to make any payment deduct any reasonable such payment from
Subtenant's future rent payments to Sublessor, notwithstanding Section 4 of this
Sublease, or (iii) terminate this Sublease, immediately surrender the Premises
to Sublessor and cease paying rent hereunder.
28. RELATIONSHIP OF SUBLESSOR AND SUBTENANT. Subtenant shall not use any
trademark, service xxxx or trade name of Sublessor, not shall Subtenant hold
itself out as having any business affiliation with Sublessor without having
specific written consent from Sublessor.
29. ESTOPPEL CERTIFICATE. Subtenant will execute, acknowledge, and deliver
to Sublessor or any proposed mortgagee or purchaser a certificate by tenant
which confirms the terms and conditions of this Sublease with five (5) days of a
written request by Sublessor.
30. NO WAIVER OF BREACH. Any failure or neglect by Sublessor to assert or
enforce any rights or remedies because of any breach or default by Subtenant
under this Sublease shall not (except as to those specific instances when
express time limits are provided for taking action) prejudice Sublessor's rights
or remedies with respect to any existing or subsequent breaches or defaults.
Acceptance of any partial payment from Subtenant will not waive Sublessor's
right to pursue Subtenant for any remaining balance due nor shall any
endorsement or statement on any check or any letter which acknowledges a check
or payment of rent be deemed an accord or satisfaction.
31. TERMINATION BY COURT ORDER. In the event this Sublease is determined in
any court action to be in violation of any state law, Subtenant shall vacate the
Premises as soon as possible, not look to Sublessor for recovery of any damages
or reimbursement of expenses of any kind or of any rent paid hereunder and, upon
vacating the Premises, pay all unpaid rent accruing to the time of such
vacation.
32. SIGNS. Subtenant will not place or cause to be placed or maintained on
the exterior of the Premises, any sign, advertising matter or other thing of any
kind and will not place or maintain any decoration, lettering or advertising
matter on the glass of any window or door of the Premises without first
obtaining written approval from Sublessor and Lessor, and
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Subtenant will maintain such sign, decoration, lettering, advertising matter or
other thing as may be approved in good condition and repair at all times.
Subtenant shall comply with all laws, ordinances, and regulations which shall
apply to said signs.
33. ACTS BEYOND CONTROL OF EITHER PARTY. In the event that either party
shall be delayed or hindered or prevented from the performance of any act
required hereunder by reason of strikes, lock-outs, labor troubles, inability to
procure materials, failure of power, inadequate power, restrictive governmental
laws or regulations, severe weather conditions, disaster, riots, insurrection,
war or other reason of a like nature not the fault of such party in performing
work or doing acts required under the terms of this Sublease, the performance of
such acts shall be excused for the period of the delay. This provision shall not
operate to excuse Subtenant from prompt payment of rent or any other payments
required by the terms of this Sublease.
34. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and shall
inure to the benefit of the respective successors and assigns of Sublessor and
Subtenant.
35. APPLICABLE LAW. This Sublease shall be governed and construed according
to the laws of the State of Ohio.
36. NOTICES. Whenever any payment notice, consent, or request is given or
made under this Sublease, it shall be made in writing and delivered in person or
sent by certified mail. Communications and payments to Subtenant shall be
addressed to:
Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
000-000-0000
xxxxxxx@xxxxxxxx.x.xxx
or any other address as may have been specified by prior notice to Sublessor.
Communications and payments to Sublessor shall be addressed to:
TechColumbus
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Checks shall be made payable to the TechColumbus.
37. ENTIRE AGREEMENTS. This Sublease contains all the agreements and
understandings made between the parties and may only be modified in writing by
the parties or their respective successors in interest.
38. SEVERABILITY. If any provision of this Sublease shall be invalid, then
the remainder of this Sublease shall not be affected or impaired and shall
remain in full force and effect.
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39. HEADINGS. The headings of the various sections of this Sublease are
inserted only for convenience and for reference and in no way define, limit, or
describe the scope or intent of this Sublease or any of its provisions.
40. COUNTERPARTS. This Sublease has been executed by the parties in several
counterparts, each of which shall be deemed to be an original copy.
41. GOVERNMENTAL REGULATIONS. Each party shall comply with all laws,
ordinances and regulations of the Government of the United States, State of
Ohio, and county and municipal authorities applicable to such party with respect
to the use, occupancy, construction, or maintenance of the Premises and site;
provided, however, that Sublessor shall be responsible for ensuring compliance
with the Americans with Disabilities Act and any other similar legislation as it
affects the common areas of the building and Subtenant shall be responsible for
ensuring such compliance as it affects the Premises. These laws, ordinances, and
regulations include (but are not limited to) those prohibiting discrimination
and those requiring payment of "prevailing wages" and participation of minority
businesses in construction of improvements.
42. NON-DISCRIMINATION. During the term of this Sublease, Subtenant shall
operate the Premises without discrimination as to race, creed, color, age, sex,
religion, national origin or disability with respect to its employees, vendors,
contractors, business invitees, and guests.
IN WITNESS WHEREOF, the parties have caused this Sublease to be executed as
of the day and year first above written.
SUBLESSOR SUBTENANT
TECHCOLUMBUS METAMATERIA PARTNERS, LLC
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------- ------------------------------------
Xxxxxx Xxxxx Xxxxxxx Xxxxxx
Vice President, Incubation President
Services
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EXHIBIT "B"
ADMISSION GUIDELINES
The TechColumbus is a non-profit organization supported by City of Columbus and
State of Ohio, and has a public obligation to assist development stage
technology-based companies. The Board of Trustees has established a number of
policies to ensure that the Center's services will be fairly distributed to
those who demonstrate the potential to grow and contribute to the employment and
economic advancement of the community.
Candidates for admission must meet the definition of a technology-based company
and must evidence the ability to commercialize a technology-based product,
process or service venture via a business plan.
Candidates for admission must meet the definition of a technology-based company
which is pursuing commercial applications of science-based innovation, employing
technicians, scientists, engineers and business executives; and requiring
extensive commercialization assistance to introduce new products or services to
the market
1. It is the policy of TechColumbus that a business plan be submitted to
the Vice President of Incubation Services.
The business plan should address:
Company organization (business description)
Products and services
Proprietary technology
Market assessment and sales forecast
Status of research and development
Manufacturing methods
Financial plan and 3 year forecast
Sources of capital
Future financing requirements
- Business plan goals will be reviewed quarterly by the Vice
President and Senior Staff of Incubation Services.
- Business plans will be reviewed at least once a year by the Vice
President and Senior Staff of Incubation Services.
2. Establish and maintain an advisory board that is appropriate for the
Client and which may include members of the TechColumbus staff.
3. Submit mutually agreeable financial reports to Incubation Services of
TechColumbus. These reports shall include an Income Statement, Balance
Sheet, Sources and Uses of Funds Statement.
4. Participate with TechColumbus in preparing periodic and other reports
as requested by the Ohio Department of Development, The State of Ohio
and TechColumbus Board of Trustees.
5. Cooperate in co-marketing and joint marketing programs via mutually
agreeable channels.
6. Client shall provide a capitalization table of the shareholders,
calculated on a fully diluted basis, of the Client's organization
including the total number of authorized, issued and outstanding
shares of Client's equity securities.
7. It is the policy of the TechColumbus to require lease agreements of
all tenants.
A. Following the initial one year lease, negotiation of a subsequent
lease is dependent on progress toward the business plan
objectives, and subject to the approval of the Vice President and
other Senior Staff of Incubation Services.
B. The lease contains clauses stipulating the payment of a security
deposit with the first month's rent, a penalty for late payment
of rent, and TechColumbus reserves the right to evict any tenant
found in violation of the lease agreement.
C. Basic services are to be included in the rental agreement to be
provided by the Business Technology Center per the current "Rent
and Basic Services" policy.
D. Rental rate are described in the "Tenant Rent Structure" policy.
GRADUATION GUIDELINES
It is the intent of these guidelines to frame the expectations regarding the
length of occupancy of the clients of TechColumbus. It is necessary to state
these expectations because TechColumbus is intended to serve as an interim
facility to assist technology-based businesses in the early stages of their
development. TechColumbus must balance its desire to provide each client with
sufficient resources to permit business success with the need to provide as many
entrepreneurs as possible with an opportunity to incubate their businesses.
TechColumbus intends to deal with each client's situation in a flexible manner
and retains the right to consider extenuating circumstances in each case.
1. We have an expectation that science and technology-based companies
will require incubation periods of 3-5 years while companies in more
market sensitive industries may require only 1-3 years. This is true
because the former have longer product development cycles resulting
from the need for clinical evaluations, field trials, regulatory
approvals, etc.
2. During the period of residency in TechColumbus, we will employ a
process which continually monitors a client's progress against their
business plan and assists with certain matters of business
development. This will include, but not be limited to:
- A quarterly business reporting system of goals and performance
against goals including historical and pro forma financial
statements.
- Assistance with identification and creation of a business
advisory board within the first 18 months of residency.
We recognize that a company's business plan is a dynamic document that is
continually changing. The Incubation Services Committee will formally review
each company's business plan at least once annually in order to determine how
TechColumbus can be of continuing assistance to the client.
3. Planning for graduation will take place at a meeting between the
Client and the Incubation Services Committee. This meeting will
normally occur at the end of Year 2. At this meeting, both parties
will work to develop milestones, a timetable, and a list of action
items that will enable the client to make a smooth transition from
TechColumbus.
4. At the time for graduation approaches, the Incubation Services
Committee will attempt to assist in the relocation process by
introducing the client to facilities and sources of support, such as
OSU's Research Park, the Incubator Without Walls, the Commercial
Realtors Association, the Chamber of Commerce, etc.
5. At the end of the fifth year of occupancy, the Incubation Services
Committee may grant an extension for an additional year, if there are
extenuating circumstances that would indicate that a company's chances
of viability would be significantly
enhanced by remaining in the incubator. Rental fees would increase to
equal commercial rates, unless there were mitigating factors in the
judgment of the Incubation Services Committee.
6. If additional extensions are requested by the client past the sixth
year, approval by the Board of Directors will be required.
