FIFTH LEASE AMENDMENT
This Fifth Lease Amendment is made and entered into as of the latest date
on which it is executed by either of the parties hereto (the "Amendment Date"),
by and between Corporate Exchange Buildings IV and V Limited Partnership, an
Ohio limited partnership, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (the
"Landlord") and Symix Computer Systems, Inc., an Ohio corporation, whose address
is 0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 (the "Tenant").
RECITALS
A. 2600 Realty Corp. V, Landlord's predecessor in interest, and Tenant
entered into a lease agreement dated April 3, 1991, a Start Date Agreement dated
October 15, 1992, and a Lease For Storage Space dated March 16, 1992, and
Landlord and Tenant entered into a First Lease Amendment dated December 1, 1993,
a Start Date Agreement dated December 1, 1993, a Second Lease Amendment dated
April 1, 1994, a Start Date Agreement dated April 1, 1994, a Third Lease
Amendment dated July 12, 1994, a Start Date Agreement dated July 12, 1994, and a
Fourth Lease Amendment dated November 11, 1994, (collectively these documents
are referred to herein as the "Lease"), by which Landlord leased to Tenant, and
Tenant leased from Landlord, certain premises containing approximately 70,064
rentable square feet (the "Premises") as shown on the floor plans attached
hereto as Exhibit A, located on the lower level, second, third, and fourth
floors of Corporate Exchange Building V, 2800 Corporate Exchange Drive,
Columbus, Franklin County, Ohio (the "Building")
B. Tenant desires to lease additional office space in the Building and to
amend the Lease.
IT IS, THEREFORE, agreed as follows:
1. Tenant hereby leases an additional four thousand five hundred seventy
eight (4,578) rentable square feet of office space (the "New Additional
Expansion Space") located on the first floor of the Building as shown on the
floor plan attached hereto as Exhibit B.
2. The Term of the lease for the New Additional Expansion Space shall
commence on July 1, 1998, shall be concurrent with the Term of the Lease, and
shall expire on June 30, 2001, unless sooner terminated as provided in the
Lease. Landlord's estimated occupancy date is projected to be May 31, 1998.
Tenant may occupy the Premises after Landlord's notice that the New Additional
Expansion Space is Ready for Occupancy provided all other terms of
the Lease and this amendment are in full force and effect except the payment
of Base Rent, Operating Expenses and Real Property Taxes pertaining to the
New Additional Expansion Space ONLY shall not begin until the New Additional
Expansion Space Commencement Date. Notwithstanding other provisions of this
Amendment, the Commencement Date shall be extended one day for each day after
July 1, 1998 that Landlord notifies Tenant the New Additional Expansion Space
is Ready for Occupancy, unless such delay is caused by the act or omission of
Tenant.
3. Commencing on July 1, 1998 (the "New Additional Expansion Space
Commencement Date"), the Premises shall be deemed to include the New Additional
Expansion Space and will contain an aggregate of approximately 74,642 rentable
square feet. Tenant's prorata share of Operating Expenses and Real Property
Taxes shall be computed based upon the ratio of the number of rentable square
feet contained in the Premises in relation to the total number of rentable
square feet of office space contained in the Building.
4. Tenant shall pay Landlord Base Rent for the Premises in advance on the
first day of each calendar month, without set off or demand, as set forth in the
Lease until June 30, 1998, and beginning on July 1, 1998 and continuing each
calendar month until the expiration of the Term as follows:
July 1, 1998, through June 30, 1999: Fifty Nine Thousand Seven Hundred
Three and 06/100 Dollars ($59,703.06) per month.
July 1, 1999, through June 30, 2001: Sixty Two Thousand Five Hundred
Eighty Four and 25/100 Dollars ($62,584.25) per month.
5. Upon completion of Landlord's Work to be performed in accordance with
the plans and specifications as indicated on Exhibit C, attached hereto, and in
accordance with the Corporate Exchange Tenant Standard attached hereto as
Exhibit D, Tenant accepts the New Additional Expansion Space in "AS IS"
condition. By occupying the New Additional Expansion Space (including occupancy
for Tenant's construction of its alterations and improvements), Tenant shall be
deemed conclusively to have accepted the New Additional Expansion Space and to
have acknowledged that the New Additional Expansion Space is in the condition
required by the Lease and this Amendment. Tenant shall execute and deliver to
Landlord an acceptance letter in the form attached as Exhibit E hereto no later
than September 1, 1998.
6. Except as set forth in this Fifth Lease Amendment, all provisions of
the Lease shall remain unchanged and in full force and effect and shall apply to
this Fifth Lease Amendment. All
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terms and conditions of the Lease not specifically amended by this Fifth
Lease Amendment shall apply as if fully rewritten herein, and the rights and
obligations of Tenant shall be governed and controlled by the terms and
conditions of the Lease as amended hereby. Capitalized terms used herein and
not otherwise defined shall have the respective meanings ascribed thereto in
the Lease.
7. Tenant hereby certifies that no real estate broker has or will
represent it concerning this Fifth Lease Amendment and that no finder's fees
have or will be earned by any third party. Tenant shall indemnify and hold
Landlord harmless from any liability or expense that may arise from such claims,
including reasonable attorney's fees.
8. This Fifth Lease Amendment shall be construed, governed and enforced
in accordance with the laws of the State of Ohio.
9. This Agreement and the instruments and documents contemplated hereby,
and the execution and delivery hereof by Tenant, and the consummation of the
transactions herein provided, have been duly authorized and approved by Tenant's
Board of Directors and do not violate any provision of the constitution or
bylaws of Tenant, or any agreement to which Tenant is a party or by which Tenant
is bound, and constitute valid and binding obligations of Tenant enforceable
against it in accordance with their respective terms. No consent or
governmental approval is required in connection with the consummation of the
transactions contemplated hereby. Tenant represents and warrants to Landlord
that it has full right, power and authority to enter into the transactions
provided for in this Fifth Lease Amendment; and that it has not, at any time,
subleased, pledged, hypothecated, assigned or encumbered the Lease or in any
other manner encumbered the Premises and will not do so.
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IN WITNESS WHEREOF, Landlord has executed this Fifth Lease Amendment on the
28th day of May, 1998, and Tenant has executed this Fifth Lease Amendment on the
18th day of May, 1998.
LANDLORD: CORPORATE EXCHANGE
BUILDINGS IV AND V LIMITED
PARTNERSHIP
WITNESSES: By: Xxxxxx Xxxxxxx & Co.,
General Partner
/s/ Xxxxxx X. Xxxxx By:/s/ Xxxxx Xxxxxxx
--------------------------- -------------------------------
Xxxxx Xxxxxxx
Print Name: Xxxxxx X. Xxxxx President
---------------
Date: 5/28/98
/s/ Xxxxxx X. Xxxxxx -----------------------------
----------------------------
Print Name: Xxxxxx X. Xxxxxx
TENANT: SYMIX COMPUTER SYSTEMS, INC.
By: /s/ Xxxxx X. Xxx
--------------------------------
Xxxxx X. Xxx
/s/ Xxxxx X. Xxxxxxx Chairman of the Board and
---------------------------- Chief Executive Officer
Print Name: Xxxxx X. Xxxxxxx
-----------------
Date: 5/18/98
------------------------------
----------------------------
Print Name:
-----------------
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- -------------------------------
Print Name: Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
----------------- President
Date: 5/18/98
------------------------------
-----------------------------
Print Name:
------------------
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NOTARIZATION FOR LANDLORD
XXXXX XX XXXX
XXXXXX XX XXXXXXXX
Xx this 28th day of May, 1998, before me, a notary public in and for said
County and State, personally appeared Xxxxx Xxxxxxx, President of Xxxxxx
Xxxxxxx & Co., an Ohio Corporation and the General Partner of CORPORATE EXCHANGE
BUILDINGS IV and V LIMITED PARTNERSHIP, an Ohio limited partnership, on behalf
of the limited partnership, who acknowledged for and on behalf of the
corporation and limited partnership that he did sign the foregoing instrument on
behalf of the corporation and limited partnership.
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Notary Public
My Commission Expires: 11/5/02
-----------
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NOTARIZATION FOR CORPORATE TENANT
STATE OF OHIO
COUNTY OF FRANKLIN
On this 18th day of May, 1998, before me, a notary public in and for said
County and State, personally appeared Xxxxx X. Xxx, Chairman of the Board and
Chief Executive Officer and Xxxxx Xxxxxx, President, of Symix Computer Systems,
Inc., an Ohio corporation, who represented that they are duly authorized to sign
and did sign the foregoing lease amendment on behalf of the corporation.
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Notary Public
My Commission Expires: None
-----------
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CERTIFICATE OF INCUMBENCY AND RESOLUTION
OF
SYMIX COMPUTER SYSTEMS, INC.
I, Xxxxxxxx Xxxxxx, duly elected Secretary of Symix Computer Systems, Inc.,
an Ohio corporation (the "Company"), do hereby certify that Xxxxx X. Xxx, is the
duly elected and qualified Chairman of the Board and Chief Executive Officer,
and Xxxxxxx X. Xxxxxx, is the duly elected and qualified President of Symix
Computer Systems, Inc., as of the date set forth below, and the signatures set
forth opposite their respective names are the true and genuine signatures of
both:
NAME SIGNATURE
---- ---------
Xxxxx X. Xxx /s/ Xxxxx X. Xxx
-----------------------------
Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
-----------------------------
I, Xxxxxxxx Xxxxxx, further certify that the following is a true and
correct copy of the resolution duly adopted by unanimous written consent of the
Board of Directors of Symix Computer Systems, Inc., on May 17, 1998 and that
there are no modifi-cations, additions or rescissions thereto:
RESOLVED, that the Chairman of the Board and Chief Executive Officer
and President be and hereby are authorized and empowered to execute in
the name of and to deliver on behalf of the Company any and all
documents relating to real estate transactions including, but not
limited to, leases, subleases, and purchase and sale documents, and
amendments and supplements thereto, and specifically that they are
authorized and empowered to enter into a lease amendment with
Corporate Exchange Buildings IV and V Limited partnership for the
lease amendment at Corporate Exchange Building V.
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IN WITNESS WHEREOF, the undersigned has hereunto set (her) (his) hand and
affixed the seal of the Company on this 18th day of May, 1998.
SYMIX COMPUTER SYSTEMS, INC.
(CORPORATE SEAL)
By: /s/ Xxxxxxxx Xxxxxx
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EXHIBIT E
TENANT ACCEPTANCE LETTER
[Letterhead of Tenant]
[Date]
Corporate Exchange Buildings IV and V Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxx
Re: Lease dated April 3, 1991, a Lease For Storage Space dated
March 16, 1992, a First Lease Amendment dated December 1 1993, a
Second Lease Amendment dated April 1, 1994, Third Lease Amendment
dated July 12, 1994, Fourth Lease Amendment dated November 11,
1994, and a Fifth Lease Amendment at Corporate Exchange
Building V, 0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000.
The undersigned, as Tenant, hereby confirms the following as of
May 18, 1998:
1. Tenant has accepted possession of and is currently occupying the
entire Premises.
2. The commencement date for the Fifth Lease Amendment is July 1, 1998.
3. Tenant accepts the Premises and acknowledges that the Premises are in
the condition required by the Lease and all amendments thereto.
4. As of the date hereof, Landlord has fulfilled all its obligations
under the Lease.
5. The Lease is in full force and effect and has not been modified,
altered, or amended except pursuant to the instruments described
above.
6. There are no offsets or credits against Rent or any other charge
payable by Tenant under the Lease, nor has any Rent or any other
charge payable by Tenant been prepaid.
7. Tenant has no notice of any prior assignment, hypothecation, or pledge
of the Lease or any Rent due under the Lease.
Sincerely,
SYMIX COMPUTER SYSTEMS, INC.
By: /s/ Xxxxx X. Xxx
------------------------------
Xxxxx X. Xxx
Chairman of the Board and
Chief Executive Officer
EXHIBIT A
[VISUAL VIEW OF FLOOR PLAN OMITTED]
EXHIBIT B
Unattached and referred hereto by reference. The architectural plans comprising
Exhibit B are enclosed hereto and signed and dated by Tenant.