EXHIBIT 10.7
FORM OF
OFFICE LEASE
BETWEEN
NATIONWIDE MUTUAL INSURANCE COMPANY
LANDLORD
AND
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
NATIONWIDE FINANCIAL SERVICES, INC.
TENANT
PREMISES
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365,238 Square Feet at Xxx Xxxxxxxxxx Xxxxx
000,000 Xxxxxx Feet at Three Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
SECTION 1 - BASIC LEASE PROVISIONS
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1.01. DATE AND PARTIES. This lease ("Lease") is made December ___, 1996,
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between NATIONWIDE MUTUAL INSURANCE COMPANY ("Landlord") and NATIONWIDE LIFE
INSURANCE COMPANY, NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY and NATIONWIDE
FINANCIAL SERVICES, INC. (collectively, "Tenant"). Landlord is a corporation,
organized under the laws of Ohio, with principal offices at Xxx Xxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxx. Each of Tenant is a corporation, organized under the
laws of Ohio or Delaware, as the case may be, with principal offices at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx.
1.02. PREMISES. Landlord leases to Tenant 365,238 square feet in One
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Nationwide Plaza and 102,934 square feet in Three Nationwide Plaza, Columbus,
Ohio ("Premises"), as further described on the attached list of offices
("Exhibit A"). The location and/or square footage of the Premises may change
from time to time as agreed to by the parties. Any changes to the size and
location of the Premises shall be contained in a monthly rent report, without
further amendment to this Lease. The Premises contain the fixtures,
improvements, and other property now installed in the Premises.
Tenant and its agents, employees, and invitees, have the non-exclusive
right with others designated by Landlord, to the free use of the common areas in
the buildings in which the Premises are located (collectively, "Building") and
of the land ("Land") on which the Building is located ("Exhibit B") for the
common areas' intended and normal purpose. Common areas include walkways,
elevators, sidewalks, driveways, hallways, stairways, public bathrooms, common
entrances, lobby, and other similar public areas and access ways. Tenant or
Tenant's employees shall be entitled to such exclusive parking spaces in the
Executive Parking Garage located in the basement of the Building and such non-
exclusive parking spaces in the Front Street Parking Garage adjacent to the
Building as Landlord reasonably designates from time to time. Tenant agrees that
Landlord may charge Tenant and/or its employees for the use of such parking
spaces at a reasonable market rate as determined from time to time. The parties
may agree from time to time to change the location or number of the parking
spaces provided by Landlord hereunder. Landlord may change the common areas if
the changes do not materially and unreasonably interfere with Tenant's access to
or use of the Premises.
1.03. USE. Tenant shall use the Premises only for insurance and financial
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service (or a related business) offices or for general office use, unless
Landlord gives its advance written consent to another use. Landlord warrants
that applicable laws, ordinances, regulations, and restrictive covenants permit
the Premises to be used for the above-mentioned purpose. Tenant shall not
create a nuisance or use the Premises for any immoral or illegal purposes.
1.04. TERM. The Lease begins ("Beginning Date") on _____________, and
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ends, as may be extended, ("Ending Date") twelve (12) months after the Beginning
Date, unless ended earlier under this Lease. The Lease shall automatically
renew for successive twelve (12) month periods unless either party gives thirty
(30) days' prior written notice of its intent not to renew to the other party.
SECTION 2 - RENT AND ADJUSTMENT FORMULA
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2.01. RENT. Tenant shall pay to Landlord annual Rent of $____________
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from the Beginning Date until December 31, 1997, payable in equal monthly
installments of $__________. The Rent is calculated based on the Rental
Adjustment Factor of $19.53 per square foot for office space and, except for
those areas for which rent is $19.67, as shown on Exhibit A, $12.71 per square
foot for concourse space in the Building. If the number of square feet in the
Premises changes after the Beginning Date, the parties agree that Rent shall be
adjusted accordingly based upon the number of square feet used by Tenant times
the Rental Adjustment Factor then in effect. From and after January 1, 1998,
the Rental Adjustment Factor will change annually based on the Rental Adjustment
Formula set forth in Section 2.02.
The Rent shall be paid:
(i) without advance notice, demand, offset, or deduction;
(ii) by the first day of each month during the Term; and
(iii) to Landlord at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000,
Attn: Corporate Money Management, or as Landlord may specify in
writing to Tenant. At its option, Landlord may deduct the Rent
from Tenant's General Ledger Account.
If the Term does not begin on the first day or end on the last day of a
month, the Rent for that partial month shall be prorated by multiplying the
monthly Rent by a fraction, the numerator of which is the number of days of the
partial month included in the Term and the denominator of which is the total
number of days in the full calendar month.
If Tenant fails to pay part or all of the Rent within ten (10) days after
it is due, Tenant shall also pay:
(i) a late charge equal to one (1) percent of the unpaid Rent, plus
(ii) interest at ten percent (10%) per annum or the maximum then
allowed by applicable law, whichever is less, on the remaining
unpaid balance, retroactive to
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the date originally due until paid.
2.02. RENTAL ADJUSTMENT FORMULA.
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2.02(a). DEFINITIONS.
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(i) Tenant's pro-rata share means: a percentage which is calculated
by dividing the average rentable square footage of the Premises
for any calendar month ("numerator") by the rentable square
footage of the Building ("denominator").
(ii) Property means: the Building and its equipment and systems, and
the Land.
(iii) Real Estate Taxes means:
(1) real property taxes and currently due installments of
assessments, special or otherwise, imposed upon the
Property, and
(2) reasonable legal fees, costs, and disbursements incurred for
proceedings to contest, determine or reduce Real Estate
Taxes.
(iv) Operating Expenses means: Landlord's operating costs (which may
include capital improvements amortized over the life of the
Building) that are reasonable, actual and necessary (except
Landlord may use its normal accrual method of accounting), and
that are attributable to the improvement, operation,
maintenance, management and repair of the Property.
(v) Adjustment Period means: each calendar year occurring during the
Term beginning with calendar year 1998, which shall be the first
Adjustment Period.
2.02(b). OPERATING EXPENSES CONTROL. Landlord shall use reasonable
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efforts to keep Operating Expenses at reasonable amounts, while maintaining a
first class office building.
2.02(c). RENTAL ADJUSTMENT FACTOR. The Rental Adjustment Factor for each
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Adjustment Period shall be determined by adding together Operating Expenses and
Real Estate Taxes for the Building, plus an Investment Factor as defined below,
and multiplying the sum of such numbers by Tenant's pro rata share. The
resulting number shall constitute the Rental Adjustment Factor for each
Adjustment Period. The Investment Factor shall be determined by adding 100% of
the value of the Land and 50% of the value of the Building. The sum of such
numbers shall be multiplied by five percent (5%) (or another investment return
as determined by Landlord's Board of Directors from time to time). The product
shall be the Investment Factor. Landlord may, from time to time, but not more
than once per year, adjust the Investment Factor.
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2.02(d) MANNER OF PAYMENT. Landlord may give Tenant notice of Landlord's
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estimate of amounts payable under this paragraph for each Adjustment Period.
Landlord's estimate shall be reasonable and based upon generally accepted
accounting principles consistently applied. If Tenant requests, Landlord shall
give Tenant reasonably detailed documentation to support Landlord's estimate.
By the first day of each month during the Adjustment Period, Tenant shall
pay Landlord one-twelfth (1/12) of the estimated amount as Rent. If, however,
the estimate is not given before the Adjustment Period begins, Tenant shall
continue to pay on the basis of last year's estimate, if any, until the month
after the new estimate is given.
2.03. PERSONAL PROPERTY TAX. Before delinquency, Tenant shall pay taxes
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assessed during the Term against trade fixtures or personal property placed by
Tenant in the Premises. If these taxes are assessed against the Building,
Tenant shall pay its share of the taxes to Landlord within twenty (20) days
after receiving Landlord's written statement setting forth the amount of taxes
applicable to Tenant's property and the basis for the charge to Tenant.
Tenant's failure to pay within the twenty (20) day period shall entitle Landlord
to the same remedies it has upon Tenant's failure to pay Rent.
2.04. ADJUSTMENT TO RENT. The Landlord agrees that no increase in the rent
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pursuant to paragraph 2.01 hereof or in the Investment Factor pursuant to
paragraph 2.02(c) hereof, which either (i) causes the amount of rent per square
foot to be paid by the Tenant to exceed the then prevailing commercial market
rent for the same or similar class of commercial office space in the downtown
Columbus, Ohio area or (ii) was determined by the Landlord using a methodology
for determining rent and/or the Investment Factor which is inconsistent with the
methodology used by the Landlord in determining increases in rent for its other
subsidiaries and affiliates, will be effective until approved by the Board of
Directors of Nationwide Financial Services, Inc., including the approval by a
majority of the directors who do not serve as an officer, director (other than
as a director of Nationwide Financial Services, Inc.) or employee of any member
of the Nationwide Insurance Enterprise.
SECTION 3 - AFFIRMATIVE OBLIGATIONS
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3.01. COMPLIANCE WITH LAWS.
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3.01(a). LANDLORD'S COMPLIANCE. Landlord warrants that, to the best of
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its knowledge, on the Beginning Date, the Premises comply with all applicable
laws, ordinances, rules, and regulations of governmental authorities, including,
but not limited to, The Americans with Disabilities Act ("Applicable Laws").
During the Term, Landlord shall comply with all Applicable Laws regarding the
Premises and Building except to the extent Tenant must comply under paragraph
3.01(b).
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3.01(b). TENANT'S COMPLIANCE. Tenant shall comply in all material
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respects with all Applicable Laws: (i) regarding the physical condition of the
Premises, but only to the extent the Applicable Laws pertain to the particular
manner in which Tenant uses the Premises; or (ii) that do not relate to the
physical condition of the Premises but relate to the lawful use of the Premises
and with which only the occupant can comply, such as laws governing maximum
occupancy, workplace smoking, and illegal business operations, such as gambling.
3.02 SERVICES AND UTILITIES
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3.02(a). SERVICES. Landlord shall provide, at its expense, subject to
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reimbursement under paragraph 2.02:
(i) Heating, ventilation and air conditioning (HVAC) for the
Premises during business hours to maintain temperatures for
comfortable use and occupancy;
(ii) Automatic passenger elevators providing adequate service leading
to the floors on which the Premises are located;
(iii) Freight elevators providing service to the floors on which the
Premises are located as reasonable scheduling permits;
(iv) Janitorial services to the Premises as specified in Exhibit C;
(v) Hot and cold water sufficient for drinking, lavatory, toilet and
ordinary cleaning purposes;
(vi) Electricity to the Premises during business hours that provides
electric current in reasonable amounts necessary for normal
office use, lighting and HVAC;
(vii) Replacement of lighting tubes, lamp ballasts and bulbs;
(viii) Extermination and pest control when necessary; and
(ix) Maintenance of common areas in a first class manner comparable
to other first class office buildings in the downtown Columbus
area. The maintenance shall include cleaning, HVAC,
illumination, snow shoveling, de-icing, repairs, replacements,
lawn care, trash disposal and landscaping.
3.02(b). BUSINESS HOURS. In paragraph 3.02, business hours means:
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(i) Monday through Friday, 7:00 a.m. through 6:00 p.m., and
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(ii) Saturday, 8:00 a.m. through 1:00 p.m., but excludes the
following holidays or the days on which the holidays are
designated for observance: New Year's Day, Memorial Day, July
Fourth, Labor Day, Thanksgiving Day, and Christmas Day, or any
other holiday during which Landlord's or Tenant's offices are
generally closed.
3.02(c). 24 HOUR ACCESS. Tenant, its employees, agents and invitees shall
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have access to the Premises twenty-four (24) hours a day, seven (7) days a week.
At any time, Landlord may restrict access by requiring persons to show a badge
or identification card issued by Landlord. Landlord shall not be liable for
denying entry to any person unable to show the proper identification.
3.02(d). EXCESS UTILITY USE. Tenant shall not place or operate in the
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Premises any electrically operated equipment or other machinery, other than
typewriters, personal computers, adding machines, reproduction machines and
other machinery and equipment normally used in offices, unless Tenant receives
Landlord's advance written consent. Landlord shall not unreasonably withhold or
delay its consent. Landlord may require payment for the extra use of
electricity caused by operating any additional equipment or machinery.
Landlord may require that special, high electricity consumption installations of
Tenant such as computer or reproduction facilities (except personal computers or
normal office photocopy machines) be separately sub-metered for electrical
consumption at Tenant's cost.
3.02(e). INTERRUPTION OF SERVICES.
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(i) Interruptions. Landlord does not warrant that any services
Landlord supplies will not be interrupted. Services may be
interrupted because of accidents, repairs, alterations,
improvements or any reason beyond the reasonable control of
Landlord. Except as noted in (ii) below, any interruption shall
not: (A) be considered an eviction or disturbance of Tenant's
use and possession of the Premises; (B) make Landlord liable to
Tenant for damages; (C) xxxxx Rent; or (D) relieve Tenant from
performing Tenant's Lease obligations.
(ii) Remedy. If any essential services (such as HVAC, passenger
elevators, electricity, water) supplied by Landlord are
interrupted, and the interruption does not result from the
negligence or willful misconduct of Tenant, its employees,
invitees or agents, Tenant shall be entitled to an abatement of
Rent. The abatement shall begin on the tenth (10th) consecutive
business day of the interruption or when Tenant stops using the
Premises because of the interruption, whichever is later. The
abatement shall end when the services are restored. Tenant shall
have the option to cancel this Lease if the interruption
unreasonably and materially interferes with Tenant's use of or
access to the Premises for at least
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sixty (60) consecutive days and Landlord is not exercising its
best efforts to restore the services.
3.03. REPAIRS AND MAINTENANCE.
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3.03(a). TENANT'S CARE OF PREMISES. Tenant shall:
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(i) keep the Premises and fixtures in good order;
(ii) make repairs and replacements to the Premises or Building needed
to the extent due to Tenant's misuse or primary negligence,
except to the extent that the repairs or replacements are
covered by Landlord's insurance or the insurance Landlord is
required to carry under Section 5, whichever is greater;
(iii) not commit waste; and
(iv) not use any Hazardous Substances (as defined below) in the
Premises, Building or the Land.
3.03(b). LANDLORD'S REPAIRS. Except for repairs and replacements that
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Tenant must make under paragraph 3.03(a), Landlord shall pay for and make all
other repairs and replacements to the Premises, common areas and Building
(including Building fixtures and equipment). Landlord shall make the repairs
and replacements to maintain the Building in a first class condition comparable
to other first class buildings in the downtown Columbus area. This maintenance
shall include the roof, foundation, exterior walls, interior structural walls,
all structural components and all systems such as mechanical, electrical, HVAC
and plumbing.
3.03(c). TIME FOR REPAIRS. Repairs or replacements required under
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paragraphs 3.03(a) or 3.03(b) shall be made within a reasonable time (depending
on the nature of the repair or replacement needed) after receiving notice or
having actual knowledge of the need for a repair or replacement.
3.03(d). SURRENDERING THE PREMISES. On the Ending Date, Tenant shall
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surrender the Premises to Landlord in the same condition that the Premises were
in on the Beginning Date except for:
(i) ordinary wear and tear;
(ii) damage by the elements, fire, and other casualty unless Tenant
would be required to repair under paragraph 3.03(a);
(iii) condemnation;
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(iv) damage arising from any cause not required to be repaired or
replaced by Tenant; and
(v) alterations as permitted by this Lease unless consent was
conditioned on their removal.
On surrender Tenant shall remove from the Premises its personal property,
trade fixtures, any alterations required to be removed under paragraph 4.01 and
repair any damage to the Premises caused by the removal. Any items not removed
by Tenant as required above shall be considered abandoned. Landlord may dispose
of abandoned items as Landlord chooses and xxxx Tenant for the cost of their
disposal, minus any revenues received by Landlord for their disposal.
3.04. ENVIRONMENTAL OBLIGATIONS.
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3.04(a). DEFINITIONS.
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(i) "Hazardous Substance" means (A) "hazardous waste" as
defined by the Resource Conservation and Recovery Act of
1976, as amended; (B) "hazardous substance" as defined
by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; (C)
"toxic substances" as defined by the Toxic Substances
Control Act, as amended; (D) "hazardous materials" as
defined by the Hazardous Materials Transportation Act,
as amended; (E) any other substances regulated under
applicable federal, state or local laws, and the
regulations adopted under these acts, as amended; (F)
oil or other petroleum products; (G) any highly
combustible substance; (H) polychlorinated bipheyls; (I)
any other substance whose presence could reasonably be
detrimental to the Building, the Premises or the Land,
or which could be hazardous to health or the
environment. "Hazardous Substances" excludes normal
quantities of substances customarily used in the
operation of an office provided that such substances are
used in strict compliance with all Applicable Laws.
(ii) "Release" shall be defined as transport onto or across,
storage, dumping, spilling, leaking, atmospheric
injection, generation, use, causing or permitting to
escape, onto or from the Building, the Premises, or the
Land, of any Hazardous Substance.
3.04(b). LANDLORD'S REPRESENTATIONS AND OBLIGATIONS. Landlord represents
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that no governmental entity is currently investigating or conducting remediation
activities at the Building, nor has the Building been declared a "Superfund"
site. Landlord, its agents or employees, shall not, either with or without
negligence, Release any Hazardous Substance on or about the Building, the
Premises or the land on which the Building is located, except in strict
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compliance with all Applicable Laws.
3.04(c). TENANT'S REPRESENTATIONS AND OBLIGATIONS. Tenant, its agents,
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invitees, suppliers, contractors and employees shall not, either with or without
negligence, Release any Hazardous Substance on or about the Building, the
Premises or the Land. Tenant shall execute affidavits, representations and the
like from time to time at Landlord's reasonable request concerning Tenant's best
knowledge and belief regarding the presence or Release of Hazardous Substances
about the Building, the Premises or the Land.
3.04(d). LIABILITY. If any lender, purchaser or governmental agency
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shall ever require testing of the Building, the Premises, or the Land to
ascertain whether or not there has been any Release of Hazardous Substances, and
such Release is reasonably determined to be attributable to Tenant, its agents,
invitees, suppliers, contractors or employees, Tenant shall be liable, to the
extent it caused such Release, for all testing and remediation costs, including
returning the Building, the Premises or the Land to their previous conditions,
any sums paid for settlement of claims, judgments, or any governmental fines
associated, directly or indirectly, with a Release, and Tenant shall indemnify
against, defend and hold Landlord harmless from such fines, claims and
judgments.
SECTION 4 - NEGATIVE OBLIGATIONS
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4.01. ALTERATIONS.
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4.01(a). DEFINITIONS. "Alterations" means alterations, additions,
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substitutions, installations, changes and improvements, but excludes minor
decorations.
4.01(b). CONSENT. Tenant shall not make alterations without Landlord's
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advance written consent. Landlord's consent shall not be unreasonably withheld
or unduly delayed for nonstructural interior Alterations to the Premises that do
not adversely affect the Building's appearance, value and structural strength.
4.01(c). CONDITIONS OF CONSENT. Landlord may condition its consent in
---------------------------------
paragraph 4.01(b) on all or any part of the following:
(i) Tenant shall furnish Landlord with reasonably detailed plans and
specifications of the Alterations;
(ii) The Alterations shall be performed and completed--
(A) in accordance in all material respects with the submitted
plans and specifications;
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(B) in a workmanlike manner;
(C) in compliance in all material respects with all Applicable
Laws, regulations and building codes;
(D) using new materials and installations at least equal in
quality to the original Building materials and
installations;
(E) by not unreasonably disturbing the quiet possession of the
other tenants or Landlord's employees;
(F) by not unreasonably interfering with the construction,
operation or maintenance of the Building, and
(G) with due diligence;
(iii) Tenant shall use workers and contractors whom Landlord employs
or approves in writing, which approval shall not be unreasonably
withheld or unduly delayed;
(iv) Tenant's contractors shall carry builder's risk insurance in an
amount then customarily carried by prudent contractors and
workers' compensation insurance for its employees in statutory
limits;
(v) Tenant shall give Landlord at least fifteen (15) days advance
notice before beginning any Alterations so that Landlord may
post or record notices of nonresponsibility;
(vi) At Landlord's request, Tenant shall remove the Alterations and
repair any damage caused by their removal by the Ending Date.
4.01(d). PAYMENT AND OWNERSHIP OF THE ALTERATIONS. Alterations made under
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this paragraph shall be at Tenant's expense. The Alterations shall belong to
Landlord on the Ending Date except for those Alterations required to be removed
by Landlord. Nevertheless, Tenant may remove its trade fixtures, furniture,
equipment and other personal property if Tenant promptly repairs any damage
caused by their removal.
4.02. ASSIGNMENT AND SUBLEASING.
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4.02(a). CONSENT REQUIRED. Tenant shall not transfer, mortgage,
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encumber, assign or sublease all or part of the Premises without Landlord's
advance written consent.
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4.02(b). CONDITIONS. Permitted subleases and assignments by Tenant are
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subject to:
(i) The terms of this Lease;
(ii) The term shall not extend beyond the Lease Term;
(iii) Tenant shall remain liable for all Lease obligations; and
(iv) Consent to one sublease or assignment does not waive the consent
requirement for future assignments or subleases.
SECTION 5 - INSURANCE
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5.01. INSURANCE.
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5.01(a). LANDLORD'S BUILDING INSURANCE. Landlord shall keep the
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Building, including the improvements, insured against damage and destruction by
fire, earthquake, vandalism and other perils in the amount of the replacement
value of the Building, as the value may exist from time to time. The insurance
shall include an extended coverage endorsement of the kind required by an
institutional lender to repair and restore the Building.
5.01(b). PERSONAL PROPERTY INSURANCE. Each party shall keep its personal
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property and trade fixtures in the Premises and Building insured with "all
risks" insurance in an amount to cover the replacement cost of the property and
fixtures. Tenant shall also keep any non-Building standard improvements and
betterments made to the Building at Tenant's request insured to the same degree
as Tenant's personal property.
5.01(c). LIABILITY INSURANCE. Each party shall maintain contractual and
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comprehensive general liability insurance, including public liability and
property damage, with a minimum combined single limit of liability of five
million dollars ($5,000,000.00) for personal injuries or deaths of persons
occurring in or about the Building and Premises.
5.01(d). WAIVER OF SUBROGATION. Each party waives claims arising in any
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manner in its ("Injured Party's") favor and against the other party for loss or
damage to its property in the Building. The waiver does not apply to claims
caused by a party's willful misconduct or negligence. This waiver applies to
the extent the loss or damage is covered by:
(i) the Injured Party's insurance; or
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(ii) the insurance the Injured Party is required to carry under
Section 5, whichever is greater. The waiver also applies to each
party's directors, officers, employees, shareholders, and
agents.
5.01(e). INSURANCE CRITERIA. Insurance policies required by this Lease shall:
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(i) be issued by financially sound insurance companies licensed to
do business in the State of Ohio;
(ii) name the nonprocuring party as an additional insured as its
interest may appear; other landlords or tenants may also be
added as additional insureds in a blanket policy;
(iii) provide that the insurance not be canceled or materially changed
in the scope or amount of coverage unless fifteen (15) days'
advance notice is given to the nonprocuring party;
(iv) be permitted to be carried through a "blanket policy" or
"umbrella" coverage;
(v) may include "self insurance", in whole or in part, to the extent
Landlord or Tenant meets the requirements of this paragraph
5.01(e).
5.01(f). EVIDENCE OF INSURANCE. Upon the reasonable written request of
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either party, the other party shall give copies of certificates of insurance to
the requesting party. The certificate shall specify amounts, types of coverage
and the insurance coverages listed in paragraphs 5.01 (a), (b) and (c). The
policies shall be renewed or replaced and maintained by the party responsible
for that policy. If either party fails to give copies of the required
certificate within thirty (30) days after notice of demand for it, the other
party may obtain and pay for that insurance and receive reimbursement from the
party required to have the insurance.
5.02. INDEMNIFICATION.
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5.02(a). TENANT'S INDEMNITY. Subject to paragraph 5.01(d) herein, Tenant
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indemnifies, defends, and holds Landlord harmless from claims:
(i) for personal injury, death or property damage;
(ii) for incidents arising in or about the Premises or Building; and
(iii) caused by the negligence or willful misconduct of Tenant, its
agents, employees or invitees. When the claim is caused by the
joint negligence or willful misconduct of Tenant and Landlord or
Tenant and a third party unrelated to Tenant, except its
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agents, employees or invitees, Tenant's duty to defend,
indemnify and hold Landlord harmless shall be in proportion to
Tenant's allocable share of the joint negligence or willful
misconduct.
5.02(b). LANDLORD'S INDEMNITY. Subject to paragraph 5.01(a) herein,
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Landlord indemnifies, defends and holds Tenant harmless from claims:
(i) for personal injury, death or property damage;
(ii) for incidents occurring in or about the Premises or Building;
and
(iii) caused by the negligence or willful misconduct of Landlord, its
agents, employees or invitees. When the claim is caused by the
joint negligence or willful misconduct of Landlord and Tenant or
Landlord and a third party unrelated to Landlord, except its
agents, employees or invitees, Landlord's duty to defend,
indemnify and hold Tenant harmless shall be in proportion to
Landlord's allocable share of the joint negligence or willful
misconduct.
5.02(c). RELEASE OF CLAIMS. Notwithstanding paragraphs 5.02(a) and (b),
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the parties release each other from any claims either party ("Injured Party")
has against the other, except for conduct arising out of or relating to the
willful misconduct or the negligence of the other party. This release is limited
to the extent the claim is covered by the Injured Party's insurance or the
insurance the Injured Party is required to carry under Section 5, whichever is
greater.
5.03. LIMITATION OF LANDLORD'S LIABILITY.
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5.03(a). TRANSFER OF PREMISES. If the Building is sold or transferred,
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voluntarily or involuntarily, Landlord's Lease obligations and liabilities
accruing after the transfer shall be the sole responsibility of the new owner
if:
(i) the new owner expressly agrees in writing to assume Landlord's
obligations; and
(ii) Tenant's funds that Landlord is holding, such as any security
deposits or any prepaid rent are transferred to the new owner.
SECTION 6 - LOSS OF PREMISES
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6.01. DAMAGES.
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6.01(a). DEFINITION. "Relevant Space" means:
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(i) the Premises as defined in paragraph 1.02, excluding any
improvements installed by Tenant at its sole expense or any
improvements installed by Landlord but paid for by Tenant ("Non-
Building Standard Fixtures");
(ii) access to the Premises; and
(iii) any part of the Building that provides essential
services to the Premises.
6.01(b). REPAIR OF DAMAGE. If the Relevant Space is damaged in part or
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whole from any cause and the Relevant Space can be substantially repaired and
restored within one hundred and twenty (120) days from the date of the damage
using standard working methods and procedures, Landlord shall, at its expense,
promptly and diligently repair and restore the Relevant Space to substantially
the same condition as existed before the damage. The repair and restoration
shall be made within one hundred and twenty (120) days from the date of the
damage unless the delay is due to causes beyond Landlord's reasonable control.
If the Relevant Space cannot be repaired and restored within a one hundred
and twenty (120) day period, then either party may, within ten (10) days after
determining that the repairs and restoration cannot be made within one hundred
and twenty (120) days, cancel the Lease by giving written notice to the other
party.
6.01(c). ABATEMENT. Unless the damage is caused by Tenant's willful
--------------------
misconduct, the Rent shall xxxxx in proportion to that part of the Premises that
is unfit for use in Tenant's business. The abatement shall consider the nature
and extent of interference to Tenant's ability to conduct business in the
Premises and the need for access and essential services. The abatement shall
continue from the date the damage occurred until the earlier of (i) ten (10)
business days after Landlord completes the repairs and restoration to the
Relevant Space or the part rendered unusable and gives notice to Tenant that the
repairs and restoration are completed, or (ii) until Tenant again uses the
Premises or the part rendered unusable.
6.01(d). TENANT'S PROPERTY. Notwithstanding anything else in Section 6,
-----------------------------
Landlord is not obligated to repair or restore damage to Tenant's trade
fixtures, furniture, equipment or other personal property, or any Tenant
improvements unless such damage is caused by the willful misconduct or
negligence of Landlord or any of its agents.
6.01(e). DAMAGE TO BUILDING. If:
------------------------------
(A) more than forty (40%) percent of the Building is damaged;
(B) any mortgagee of the Building shall not allow adequate insurance
proceeds for repair and restoration;
-14-
(C) the damage is not covered by Landlord's insurance required by
this Lease; or
(D) this Lease is in the last six (6) months of its Term, then
Landlord may cancel this Lease. To cancel, Landlord must give
notice to Tenant within thirty (30) days after Landlord knows of
the damage. The notice must specify the cancellation date, which
shall be at least thirty (30) but not more than sixty (60) days
after the date notice is given.
6.01(f). CANCELLATION. If either party cancels this Lease as permitted by
-----------------------
paragraph 6.01, then this Lease shall end on the day specified in the
cancellation notice. The Rent and other charges shall be payable up to the
cancellation date and shall account for any abatement.
6.02. CONDEMNATION.
--------------------
6.02(a). DEFINITIONS. The terms "eminent domain," "condemnation," "taken"
----------------------
and the like in paragraph 6.02 include takings for public or quasi-public use
and private purchases in place of condemnation by any authority authorized to
exercise the power of eminent domain.
6.02(b). ENTIRE TAKING. If the entire Premises or the portions of the
------------------------
Building required for reasonable access to, or the reasonable use of, the
Premises are taken by eminent domain, this Lease shall automatically end on the
earlier of:
(i) the date title vests; or
(ii) the date Tenant is dispossessed by the condemning authority.
6.02(c). PARTIAL TAKING. If the taking of a part of the Premises
-------------------------
materially interferes with Tenant's ability to continue its business operations
in substantially the same manner and space then Tenant may end this Lease on the
earlier of:
(i) the date when title vests;
(ii) the date Tenant is dispossessed by the condemning authority; or
(iii) sixty (60) days following notice to Tenant of the date when
vesting or dispossession is to occur.
If there is a partial taking and this Lease continues, then the Lease shall
end as to the part taken and the Rent and Additional Rent shall xxxxx in
proportion to the part of the Premises taken and Tenant's pro rata share shall
be equitably reduced.
6.02(d). TERMINATION BY LANDLORD. If title to a part of the Building
-----------------------------------
other than the
-15-
Premises is condemned, and in the Landlord's reasonable opinion, the Building
should be restored in a manner that materially alters the Premises, Landlord may
cancel this Lease by giving notice to Tenant. Cancellation notice shall be given
within sixty (60) days following the date title vested. This Lease shall end on
the date specified in the cancellation notice, which date shall be at least
thirty (30) days but not more than ninety (90) days after the date notice is
given.
6.02(e). RENT ADJUSTMENT. If this Lease is canceled, then the Rent and
---------------------------
other charges shall be payable up to the cancellation date and shall account for
any abatement. Landlord, considering any abatement, shall promptly refund to
Tenant any prepaid, unaccrued Rent plus security deposit, if any, less any sum
then owing by Tenant to Landlord.
6.02(f). REPAIR. If this Lease is not canceled, then Landlord, at its
------------------
expense, shall promptly repair and restore the Premises to the condition that
existed immediately before the taking, except for the part taken, to render the
Premises a complete architectural unit, but only to the extent of the:
condemnation award received for the damage; and shall not be obligated to repair
Non-Building Standard Fixtures.
6.02(g). AWARDS AND DAMAGES. Landlord reserves all rights to damages paid
-----------------------------
because of any partial or entire taking of the Premises. Tenant assigns to
Landlord any right Tenant may have to the damages or award. Further, Tenant
shall not make claims against Landlord or the condemning authority for damages.
Notwithstanding anything else in paragraph 6.02(g), Tenant may claim and
recover from the condemning authority a separate award for Tenant's moving
expenses, business dislocation damages, Tenant's personal property and fixtures,
the unamortized costs of leasehold improvements paid for by Tenant and any other
award that would not substantially reduce the award payable to Landlord. Each
party shall seek its own award, as limited above, at its own expense, and
neither shall have any right to the award made to the other.
6.02(h). TEMPORARY CONDEMNATION. If part or all of the Premises are
----------------------------------
condemned for a limited period of time ("Temporary Condemnation"), this Lease
shall remain in effect. The Rent and Tenant's obligations for the part of the
Premises taken shall xxxxx during the Temporary Condemnation in proportion to
the part of the Premises that Tenant is unable to use in its business operations
as a result of the Temporary Condemnation. Landlord shall receive the entire
award for any Temporary Condemnation.
SECTION 7 - DEFAULT
-------------------
7.01. TENANT'S DEFAULT.
------------------------
7.01(a). DEFAULTS. Each of the following constitutes a default
--------------------
("Default"):
-16-
(i) Tenant's failure to pay Rent within seven (7) days after Tenant
receives notice from Landlord of Tenant's failure to pay Rent;
(ii) Tenant's failure to pay Rent by the due date, at any time during
a calendar year in which Tenant has already received three
notices of its failure to pay Rent by the due date;
(iii) Tenant's failure to perform or observe in all material respects
any other Tenant obligation after a period of thirty (30)
business days or the additional time, if any, that is reasonably
necessary to promptly and diligently cure the failure, after it
receives notice from Landlord setting forth in reasonable detail
the nature and extent of the failure and identifying the
applicable Lease provision(s);
(iv) Tenant's failure to vacate or stay any of the following within
ninety (90) days after they occur:
(A) a petition in bankruptcy or state rehabilitation or
insolvency proceedings are filed by or against Tenant;
(B) Tenant is adjudicated as bankrupt or insolvent;
(C) a receiver, trustee or liquidator is appointed for all or a
substantial part of Tenant's property; or
(D) Tenant makes an assignment for the benefit of creditors.
7.02. LANDLORD'S REMEDIES.
---------------------------
7.02(a). REMEDIES. Landlord, in addition to the remedies given in this
--------------------
Lease or under the law, may do any one or more of the following if Tenant
commits a Default under paragraph 7.01:
(i) end this Lease, and Tenant shall then surrender the Premises to
Landlord;
(ii) enter and take possession of the Premises either with process of
law and remove Tenant, with or without having ended the Lease;
and
(iii) alter locks and other security devices at the Premises.
Tenant waives claims for damages by reason of Landlord's reentry,
repossession, or alteration of locks or other security devices and for damages
by reason of any legal process, unless the same was done in violation of the
terms hereof.
-17-
7.02(b). NO SURRENDER. Landlord's exercise of any of its remedies or its
------------------------
receipt of Tenant's keys shall not be considered an acceptance or surrender of
the Premises by Tenant. A surrender must be agreed to in a writing signed by
both parties.
7.02(c). RENT. If Landlord ends this Lease or ends Tenant's right to
----------------
possess the Premises because of a Default, Landlord may hold Tenant liable for
Rent and other indebtedness accrued to the date the Lease ends. Tenant shall
also be liable for the Rent and other indebtedness that otherwise would have
been payable by Tenant during the remainder of the Term had there been no
Default, reduced by any sums Landlord receives by reletting the Premises during
the Term.
7.02(d). OTHER EXPENSES. Tenant shall also be liable for that part of
--------------------------
the following sums paid by Landlord and attributable to that part of the Term
ended due to Tenant's Default:
(i) reasonable broker's fees incurred by Landlord for reletting part
or all of the Premises prorated for that part of the reletting
Term ending concurrently with the then current Term of this
Lease;
(ii) the cost of removing and storing Tenant's property;
(iii) the cost of minor repairs, alterations and remodeling, necessary
to put the Premises in a condition reasonably acceptable to a
new Tenant; and
(iv) other necessary and reasonable expenses incurred by Landlord in
enforcing its remedies.
7.02(e). PAYMENT. Tenant shall pay the sums due in paragraphs 7.02(c)
-------------------
and (d) within thirty (30) days of receiving Landlord's proper and correct
invoice for the amounts.
7.02(f). MITIGATION. Landlord shall mitigate its damage by making
---------------------
reasonable efforts to relet the Premises on reasonable terms. Landlord may
relet for a shorter or longer period of time than the Lease Term and make any
necessary repairs or alterations. Landlord may relet on any reasonable terms
including a reasonable amount of free rent. If Landlord relets for a period of
time longer than the current Lease Term, then any special concessions given to
the new Tenant shall be allocated throughout the entire reletting Term to not
unduly reduce the amount of consideration received by Landlord during the
remaining period of Tenant's Term.
7.03. LANDLORD'S DEFAULT. Landlord's failure to perform or observe any of
--------------------------
its Lease obligations after a period of thirty (30) business days or the
additional time, if any, that is reasonably necessary to promptly and diligently
cure the failure after receiving notice from Tenant is a Default. The notice
shall give in reasonable detail the nature and extent of the failure and
identify the Lease provision(s) containing the obligation(s). After Tenant
receives notice of a mortgagee's name and address and request for notice upon
Landlord's Default, Tenant shall also
-18-
provide the notice required by this paragraph to the mortgagee at the same time
Tenant gives notice to Landlord.
If Landlord commits a Default, Tenant may pursue any remedies given in this
Lease or under the law or in equity.
7.04. SELF-HELP. If either party defaults ("Defaulting Party"), the other
-----------------
party ("Nondefaulting Party") may, without being obligated and without waiving
the Default, cure the Default. The Nondefaulting Party may enter the Premises or
Building to cure the Default. The Defaulting Party shall pay the Nondefaulting
Party, upon demand, all costs, expenses, and disbursements incurred by the
Nondefaulting Party to cure the Default.
7.05. SURVIVAL. The remedies permitted by Section 7, the parties'
----------------
indemnities and environmental obligations in paragraphs 5.02 and 3.04, and the
Landlord's obligation to mitigate damages in paragraph 7.02(f) shall survive the
ending of this Lease.
SECTION 8 - NONDISTURBANCE
--------------------------
8.01. SUBORDINATION.
---------------------
8.01(a). MORTGAGES. Subject to paragraph 8.01(b), this Lease is
---------------------
subordinate to prior or subsequent mortgages covering the Building.
8.01(b). FORECLOSURES. If any mortgage is foreclosed, then:
------------------------
(i) This Lease shall continue;
(ii) Tenant's quiet possession shall not be disturbed if Tenant is
not in Default;
(iii) Tenant will attorn to and recognize the mortgagee or purchaser
at foreclosure sale ("Successor Landlord") as Tenant's landlord
for the remaining Term, provided that such Successor Landlord
has executed and delivered a non-disturbance agreement in
accordance with paragraph 8.01(c); and
(iv) The Successor Landlord shall not be bound by:
(A) any payment of Rent for more than one (1) month in advance,
(B) any amendment, modification or termination of this Lease
without Successor Landlord's consent, and
-19-
(C) any liability for any act or omission of a prior Landlord.
8.01(c). SELF-OPERATING. Paragraph 8.01 is self-operating. However,
--------------------------
Landlord and Tenant shall as promptly as practicable execute and deliver any
documents reasonably needed to confirm this arrangement.
8.02. ESTOPPEL CERTIFICATE.
----------------------------
8.02(a). OBLIGATION. Either party ("Answering Party") shall from time to
----------------------
time, within ten (10) business days after receiving written request by the other
party ("Asking Party"), execute and deliver to the Asking Party a written
statement. This written statement, which may be relied upon by the Asking Party
and any third party with whom the Asking Party is dealing shall certify:
(i) the accuracy of the Lease document;
(ii) the Beginning and Ending Dates of the Lease;
(iii) that the Lease is unmodified and in full effect (or in full
effect as modified and stating the date and nature of the
modification);
(iv) whether, to the Answering Party's knowledge, the Asking Party is
in default or whether the Answering Party has any claims or
demands against the Asking Party and, if so, specifying the
Default, claim or demand; and
(v) to other correct and reasonably ascertainable facts that are
covered by the Lease terms.
8.02(b). QUIET ENJOYMENT. If Tenant is not in default, and subject to
---------------------------
the Lease terms and the above encumbrances, Tenant's peaceable and quiet
enjoyment of the Premises shall not be disturbed.
SECTION 9 - LANDLORD'S RIGHTS
-----------------------------
9.01. RULES. Tenant, its employees and invitees, shall comply (following
-------------
a reasonable time after receipt in writing thereof by Tenant) with any rules and
reasonable modifications and additions to rules adopted by Landlord that do not
unreasonably and materially interfere with Tenant's conduct of its business or
Tenant's use and enjoyment of the Premises and that are delivered to Tenant in
writing.
-20-
9.02. MECHANICS LIENS.
-----------------------
9.02(a). DISCHARGE LIEN. Tenant shall, within twenty (20) days after
--------------------------
receiving notice of any mechanic's lien for material or work claimed to have
been furnished to the Premises on Tenant's behalf and at Tenant's request:,
(i) discharge the lien; or
(ii) post a bond equal to the amount of the disputed claim with
companies reasonably satisfactory to Landlord.
9.02(b). LANDLORD'S DISCHARGE. If Tenant does not discharge the lien or
--------------------------------
post the bond within the twenty (20) day period, Landlord may pay any amounts,
including interest and legal fees, to discharge the lien. Tenant shall then be
liable to Landlord for the amounts paid by Landlord.
9.03. RIGHT TO ENTER.
----------------------
9.03(a). PERMITTED ENTRIES. Landlord and its agents, servants and
-----------------------------
employees may enter the Premises at reasonable times, and at any time in an
emergency, without charge, liability or abatement of Rent, to:
(i) examine the Premises;
(ii) make repairs, alterations, improvements, and additions either
required by this Lease or advisable to preserve the integrity,
safety and good order of part or all of the Premises or
Building;
(iii) provide janitorial and other services required by this Lease;
(iv) comply with Applicable Laws;
(v) show the Premises to prospective lenders or purchasers and,
during the ninety (90) days immediately before this Lease ends,
to prospective tenants, accompanied, if requested by Tenant, by
a Tenant representative;
(vi) post notices of nonresponsibility;
(viii) remove any Alterations made by Tenant in violation of this
Lease.
-21-
9.04. HOLDOVER.
----------------
9.04(a). HOLDOVER STATUS. If Tenant continues occupying the Premises
---------------------------
after the Term ends ("Holdover") then:
(i) if the Holdover is with Landlord's written consent, this Lease
shall be a tenancy from month-to-month, terminable on thirty
(30) days advance written notice by either party;
(ii) if the Holdover is without Landlord's written consent, then
Tenant shall be a tenant-at-sufferance. Tenant shall pay by the
first day of each month 150% of the amount of Rent due in the
last full month immediately preceding the Holdover period and
shall be liable for any damages suffered by Landlord because of
Tenant's Holdover, as well as any other remedies permitted by
law.
9.05. SIGNS.
-------------
9.05(a). PERMITTED SIGNS. Landlord shall provide Tenant, at Landlord's
---------------------------
expense, the following listings and signs:
(i) Appropriate floor directories;
(ii) A sign on the exterior wall or door of the Premises inside the
Building.
9.05(b). NONPERMITTED SIGNS. Other than the signs and listings permitted
------------------------------
in paragraph 9.05(a), Tenant shall not place or have placed any other signs,
listings, advertisements or any other notices anywhere else in the Building.
SECTION 10 - MISCELLANEOUS
--------------------------
10.01. BROKER'S WARRANTY. The parties warrant that they have not dealt
--------------------------
with any broker with respect to this Lease. The party who breaches this
warranty shall defend, hold harmless and indemnify the nonbreaching party from
any claims or liability arising from the breach.
10.02. ATTORNEYS' FEES. In any litigation between the parties regarding
------------------------
this Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs (including attorneys' fees) incurred by the prevailing
party. A party shall be considered the prevailing party if:
(i) it initiated the litigation and substantially obtains the relief
it sought, either through a judgment or the losing party's
voluntary action before arbitration (after
-22-
it is scheduled), trial or judgment;
(ii) the other party withdraws its action without substantially
obtaining the relief it sought; or
(iii) it did not initiate the litigation and judgment is entered for
either party, but without substantially granting the relief
sought.
10.03. NOTICES. Unless a Lease provision expressly authorizes verbal
----------------
notice, all notices under this Lease shall be in writing and sent by registered
or certified mail, postage prepaid, as follows:
To Tenant:
Nationwide Financial Services, Inc.
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: President
To Landlord:
Nationwide Mutual Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: Properties Development - Leasing
Either party may change these persons or addresses by giving notice as
provided above. Tenant shall also give required notices to Landlord's mortgagee
after receiving written notice from Landlord of the mortgagee's name and
address. Notice shall be considered given and received on the latest original
delivery or attempted delivery date as indicated on the postage receipt(s) of
all persons and addresses to which notice is to be given.
10.04. PARTIAL INVALIDITY. If any Lease provision is invalid or
---------------------------
unenforceable to any extent, then that provision and the remainder of this Lease
shall continue in effect and be enforceable to the fullest extent permitted by
law.
10.05. WAIVER. The failure of either party to exercise any of its rights
---------------
is not a waiver of those rights. A party waives only those rights specified in
writing and signed by the party waiving its rights.
10.06. RECORDING. Recording of this Lease is prohibited except as allowed
------------------
in this paragraph. At the request of either party, the parties shall promptly
execute and record, at the
-23-
cost of the requesting party, a short form memorandum describing the Premises
and stating this Lease's Term, its Beginning and Ending Dates, and other
information the parties agree to include.
10.07. SURVIVAL OF REMEDIES. The parties' remedies shall survive the
-----------------------------
ending of this Lease when the ending is caused by the Default of the other
party.
10.08. AUTHORITY OF PARTIES. Each party warrants that (a) it is
-----------------------------
authorized to enter into this Lease, (b) that the person signing on its behalf
is duly authorized to execute this Lease and that no other signatures are
necessary, (c) no consents or approvals are necessary with respect to the
effectiveness of this transaction and (d) this lease is the legal, valid and
binding obligation of such party.
10.09. BUSINESS DAYS. Business days means Monday through Friday
----------------------
inclusive, excluding holidays identified at paragraph 3.02(b). Throughout this
Lease, wherever "days" are used, the term shall refer to calendar days.
Wherever the term "business days" is used, the term shall refer to business
days.
10.10. ENTIRE AGREEMENT. This Lease contains the entire agreement between
-------------------------
the parties with respect the Premises and Building.
10.11. AMENDMENTS AND MODIFICATIONS. This Lease shall be modified only
-------------------------------------
by a writing signed by both parties.
-24-
10.11. DEFINITION OF LEASE. This Lease includes Exhibits A - C attached.
----------------------------
LANDLORD
NATIONWIDE MUTUAL INSURANCE
COMPANY
By: __________________________
Its: __________________________
TENANT
NATIONWIDE LIFE INSURANCE COMPANY
By: ____________________________
Its: ____________________________
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By: ____________________________
Its: ____________________________
NATIONWIDE FINANCIAL SERVICES, INC.
By: _____________________________
Its: _____________________________
-25-
EXHIBIT A
---------
DESCRIPTION OF PREMISES
-----------------------
