1
Exhibit 10.21
LEASE
-----
THIS LEASE, executed at Columbus, Ohio, this 29th day of December,
1997, by and between BORROR REALTY COMPANY, an Ohio corporation, hereinafter
referred to as "Landlord," and DOMINION HOMES, INC., an Ohio corporation,
hereinafter referred to as "Tenant."
1. In consideration of the mutual covenants and agreements herein set
forth, and other good and valuable consideration, Landlord does hereby demise
and lease to Tenant, and Tenant does hereby lease from Landlord, upon the terms
and provisions hereinafter set forth, the following property (the "Leased
Premises"): (a) the real property (the "Land") located at 5501 Frantz Road,
Columbus, Ohio and described in Exhibit A attached to this Lease, (b) the
building containing approximately 39504 gross square feet (37557 net rentable
square feet) located in the Land and all related fixtures and appurtenances (the
"Building"), (e) all other improvements now or in the future located in the
Land, and (d) all other rights and easements appurtenant to the Land, the
Building and other improvements.
2. TERM
The term of this Lease Agreement shall be for a period of fifteen (15)
years, commencing on January 1, 1998 (the "Commencement Date"), and expiring on
December 31, 2013 (the "Primary Term").
3. RENT
Tenant agrees to pay to Landlord as fixed rent (the "Fixed Rent")
during the term hereof, the sum of SIX MILLION SEVEN HUNDRED SIXTY THOUSAND TWO
HUNDRED SIXTY AND 00/100 DOLLARS ($6,760,260.00) payable in monthly installments
of THIRTY SEVEN THOUSAND FIVE HUNDRED FIFTY-SEVEN AND 00/100 DOLLARS
($37,557.00) on or before the first day of each and every month in advance
without off-set. The first rent payment shall be due on the Commencement Date.
4. USE
The Leased Premises shall be used as commercial offices and for related
uses, and for no other business or purpose without the express written consent
of Landlord, which shall not be unreasonably withheld. No use shall be made or
permitted to be made of the Leased Premises nor acts done which will increase
the rate established for insurance of the Leased Premises or cause a
cancellation of any insurance policy covering the Building or any part thereof,
nor shall Tenant keep, use or sell or permit to be kept, used or sold in or
about the Leased Premises, any articles which may be prohibited by the standard
form of fire insurance policies. Further, Tenant shall, at its sole cost and
expense, comply with any and all requirements of any insurance organization or
company which said insurance organization or company deems necessary for the
maintenance of reasonable fire and
2
public liability insurance covering the building and appurtenances thereto that
are required by Tenant's use of the Leased Premises only.
5. INSURANCE
(a) Tenant shall procure and maintain public liability insurance for
the Leased Premises with policy limits of not less than $1,000,000.00 for
personal injury to one person, $2,000,000.00 for personal injury to any group of
persons as a result of one accident or occurrence, and $1,000,000.00 property
damage. In addition to the foregoing, Tenant shall procure and maintain an
umbrella public liability insurance policy with limits of not less than
$5,000,000.00. Tenant shall name Landlord and any mortgagee as additional
insureds under these policies.
(b) Tenant shall keep the Building insured against loss by fire and all
of the risks and perils usually covered by an "all risk of physical loss"
endorsement to a policy of fire insurance upon property comparable to the Leased
Premises, in an amount equal to not less than the replacement cost of the
Building (but in no event less than $3,500,000.00), and with deductible amounts
approved by Landlord. Landlord shall be the insured party under this policy,
with Tenant and the holder of any mortgage on the Leased Premises as additional
insureds as their interests may appear.
(c) The policies required by Sections 5(a) and 5(b) shall contain an
agreement by the insurer that it will not cancel the policy except after thirty
days' prior written notice to Landlord and Tenant and that any loss otherwise
payable under the policy shall be payable notwithstanding any act or negligence
of Landlord or Tenant that might, absent such agreement, result in a forfeiture
of all or a part of the insurance payment.
At the Commencement Date, Tenant shall deliver to Landlord certificates
of the insurance required to be maintained under this Section. Tenant shall also
deliver to Landlord at least 10 days prior to the expiration date of any such
policy (or of any renewal policy), certificates for the renewal policy of this
insurance.
6. SUBROGATION AND WAIVER OF LIABILITY
Neither Landlord nor Tenant shall be liable for any damage to property
of the other found or located within the Leased Premises or for any damage to
the Leased Premises or the Building or other improvements caused by fire or
other peril usually covered by a policy of insurance of the type described in
Section 5 and each party releases the other from all liability for damage from
those causes, including any subrogation claims of any insurer. This provision
shall apply regardless of the negligence of either party and shall not be
limited by the amount of insurance coverage. This Section 6 shall override any
inconsistent provisions of this Lease. However, this provision shall not apply
to the extent that it would render void the insurance coverage obtained by
Landlord or Tenant, but only if that party (a) makes reasonable efforts to
obtain insurance coverage that would not be voided by this waiver of liability
and (b) notifies the other party in writing that this waiver will not apply.
2
3
7. MAINTENANCE AND REPAIRS
During the term of this Lease, Tenant, at its sole expense, shall
maintain the Leased Premises in good condition and repair, and shall make all
repairs, replacements and renewals, whether structural or non-structural,
foreseen or unforeseen, ordinary or extraordinary, interior or exterior,
necessary to put or maintain the Leased Premises in that state of repair and
condition. Tenant's obligations include, but are not limited to, keeping the
sidewalks, parking areas and drives on or about the Leased Premises paved and
striped and in a clean, sightly, and sanitary condition, free of ice and snow;
and keeping all lawns mowed, shrubbery trimmed and yards free of excessive weed
growth so that the laws and yards shall at all times be maintained in a neat and
presentable condition.
Subject to reimbursement as provided for in this Section, Landlord
shall perform "Major Replacement" to the roof and structural elements of the
Leased Premises and to the heating, ventilating and air conditioning system
serving the Leased Premises occurring during the last five years of the term of
this Lease. A "Major Replacement" means the replacement of a structural item,
system or component costing $50,000.00 or more. If Landlord performs a Major
Replacement pursuant to this Section, Tenant shall pay to Landlord, as an
addition to the rent, an amount which will amortize the cost of the Major
Replacement together with interest at the rate of 9% per annum in 120 equal
monthly installments. The first monthly installment shall be due and payable on
the first day of the month following the date that the Major Replacement is
completed. Installments in the same amount shall continue to be due and payable
on the first day of each month for the remainder of the term of this Lease,
including any option term exercised by Tenant, until the cost of the Major
Replacement has been fully reimbursed. However, if the term of this Lease
expires before the cost of the Major Replacement is fully reimbursed, Tenant
shall not be responsible for the unamortized balance remaining at the expiration
of this Lease.
8. UTILITY USE AND INTERRUPTION OF SERVICE
Tenant shall pay for all utilities, furnished to or consumed on the
Leased Premises. Landlord shall not be liable for any stoppage or interruption
of any of said services caused by energy shortages, breakdown of equipment,
riot, labor dispute, accident or necessary repairs or other causes beyond
Landlord's control.
9. TAXES
Tenant shall pay and fully discharge all real property taxes and
special assessments which may be levied or assessed against the land and
improvements of which the Leased Premises are a part which become due and
payable during the term of this Lease. Tenant shall pay and fully discharge all
taxes and assessments on its personal property which may become due and payable
during the term of this Lease.
3
4
10. ALTERATIONS AND LIENS
Tenant shall not make or suffer to be made any alterations of the
Leased Premises or any part thereof exceeding TEN THOUSAND DOLLARS ($10,000.00)
without first obtaining the written consent of Landlord, which consent shall not
be unreasonably withheld. Any additions to or alterations of the Leased
Premises, except movable furniture and trade fixtures, shall at once become a
part of the realty and thereafter belong to Landlord. Tenant shall keep the
Leased Premises free from any liens arising out of any work performed, materials
furnished, or obligations incurred by the Tenant.
11. SIGNS
Tenant shall erect signs on any portion of the exterior of the Leased
Premises, including, but not limited to the exterior walls, windows and doors,
only with written approval of Landlord, which will not be unreasonably withheld.
12. ABANDONMENT
Tenant shall assume the risk of, be responsible for, have the
obligation to insure against, and indemnify Landlord and hold it harmless from
any and all liability for any loss, damage or injury to person or property
occurring in, on or about the Leased Premises, regardless of cause, except for
that caused by the negligence or intentional tortious acts of Landlord and its
employees, agents, and invitees; and Tenant hereby releases Landlord from any
and all liability for the same. Tenant's obligation to indemnify Landlord
hereunder shall include the duty to defend against any claims asserted by reason
of such loss, damage or injury and to pay any judgments, settlements, costs,
fees, and expenses, including attorney's fees, incurred in connection therewith.
13. INDEMNIFICATION
Except to the extent liability is waived under Section 6, Tenant shall
indemnify and hold Landlord harmless against any and all claims, liabilities,
damages or losses resulting from injury or death of any person or damage to
property occurring on or about the Leased Premises or in any manner in
conjunction with the use and occupancy of the Leased Premises in whole or in
part, unless the death, injury or damage was sustained as a result of any
tortious or negligent act of Landlord, Landlord's agents or employees. In
addition, Tenant shall indemnify and hold Landlord harmless against any claims,
liabilities, damages, losses or expenses resulting from the release of hazardous
substances, hazardous wastes or petroleum products on or from the Leased
Premises or other violations of applicable environmental laws occurring during
the term of this Lease.
4
5
14. PERSONAL PROPERTY
All personal property of Tenant in or upon the Leased Premises shall be
at the risk of Tenant only, and Landlord shall not be liable for any damage
thereto or disappearance or theft thereof, unless due to the negligent acts of
Landlord, its employees, agents, and invitees, and Landlord shall not be liable
to Tenant or any person or persons claiming by, through, or under Tenant for any
loss of property or for any damage or injury to persons or property resulting
from plumbing, gas, water, steam, sewer, or other pipes or tanks, or electric,
telegraph or telephone wires or equipment, or due to the happening of any
accident to or about said premises, unless due to the negligent acts of Landlord
and its employees, agents, and invitees or unless such damage to Tenant's
personal property results from Landlord's failure to comply with its covenants
and obligations under the Lease.
15. QUIET ENJOYMENT
Landlord covenants that Landlord is lawfully seized of and in
possession of the Leased Premises and agrees that if Tenant shall promptly pay
the rent and perform all of the covenants and agreements herein stipulated to be
performed on Tenant's part, Tenant shall have the peaceable and quiet enjoyment
and possession of the Leased Premises during the term hereof, without any manner
of hindrance from Landlord or any other person lawfully claiming through
Landlord, subject to the conditions herein set forth.
16. FIRE AND CASUALTY DAMAGE
If at any time after the execution hereof, the Leased Premises shall be
wholly or substantially destroyed or damaged by fire, the elements, or casualty,
Tenant shall give immediate written notice thereof to Landlord.
If the Leased Premises are totally or substantially destroyed, then
either party hereto may, at its option, terminate this Lease by giving written
notice thereof to the other party within thirty (30) days after the date of such
casualty. Following a partial destruction or injury [less than fifty percent
(50%) of the Leased Premises] whereby the Tenant shall be deprived of the
occupancy of only a portion of the Leased Premises, and if the function of
Tenant's business is not substantially impaired, this Lease shall not terminate;
but a proportionate allowance shall be made from the Fixed Rent during such
period in the proportion which the number of square feet of the Leased Premises
which the Tenant is deprived of by such damage and the making of repairs bears
to the total square feet of the Leased Premises; and the Landlord shall repair
such damage with due diligence. In the event, however, that the Leased Premises
cannot be replaced, repaired or restored within one hundred twenty (120) days
from the fire or casualty, or if Landlord elects not to make and complete said
replacement, repairs, and restoration within said one hundred twenty (120) day
period, Tenant, upon notice in writing to Landlord, may terminate this Lease and
surrender possession of said premises to Landlord and thereupon this Lease shall
terminate and be void and Tenant shall not be required to pay or be liable for
any rent from the date of said fire or casualty.
5
6
17. CONDEMNATION
If the whole or any substantial part of the Leased Premises shall be
taken or condemned by any competent authority for any public use or purpose, the
term of this Lease shall end upon the date when the possession of the part so
taken shall be required for such use or purpose. Current rent shall be
apportioned as of the date of such termination. If part of the Leased Premises
or the access to the same is taken without substantially interfering with the
use of the Leased Premises by Tenant, this Lease shall not terminate. In that
event, Landlord shall promptly restore any damage to the Leased Premises caused
by the taking in a manner reasonably suitable to Tenant, and if the size of the
Building or Tenant's use of the Leased Premises has been diminished, the rent
for the Leased Premises shall be equitably reduced commencing on the date when
possession of the part taken is surrendered by Tenant. In the event of any
taking, Landlord shall be entitled to the entire condemnation award, regardless
of whether this Lease is terminated in accordance with this Section 17, except
that Tenant shall be entitled to any separate award allocated by the condemning
authority to Tenant's trade fixtures, personalty and moving expenses. If this
Lease is terminated pursuant to this Section 17, Landlord shall refund to Tenant
any rent prepaid beyond the effective date of termination.
18. INSPECTION BY LANDLORD
Upon twenty-four (24) hours prior written notice, except in an
emergency, Tenant shall permit the Landlord or his agents to enter into and upon
the Leased Premises, accompanied by an employee of Tenant, except in the case of
emergency, at all reasonable times for the purpose of inspecting the same or for
the purpose of placing upon the property in which the Leased Premises are
located, any usual or ordinary "For Sale" signs without any rebate of rent and
without any liability to Tenant for the loss of occupation or quiet enjoyment of
the Leased Premises occasioned thereby; and shall permit Landlord at any time
within three (3) months prior to the expiration of this Lease to put upon the
Leased Premises any usual or ordinary "to let" or "to lease" signs, provided,
however, that Landlord shall have 24 hour a day access without notice and
without Tenant's employee being there to perform ordinary janitorial and
maintenance services.
19. OFFSET STATEMENT ATTORNMENT AND SUBORDINATION
(a) OFFSET STATEMENT. Tenant agrees within ten (10) days after
request therefor by Landlord to execute in recordable form and deliver
to Landlord a statement, in writing, certifying:
(i) that this Lease is in full force and effect;
(ii) the date of commencement of the term of this
Lease;
(iii) that rent is paid currently without any
offset;
(iv) the amount of rent, if any, paid in advance;
and
6
7
(v) that there are no uncured defaults by
Landlord, or stating those claimed by
Tenant, providing that, if any, such facts
are accurate and ascertainable.
(vi) Tenant's obligation to provide the above
statements are contingent upon each such
statement being true.
(b) ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of any exercise of the
power of sale under any mortgage made by Landlord covering the Leased
Premises, attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as the Landlord under this Lease.
(c) SUBORDINATION. Tenant agrees that this Lease shall, at the
request of the Landlord, be subordinate to any mortgages or deeds of
trust that may hereafter be placed on the Leased Premises by Landlord
and to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, replacements, and extensions thereof,
provided that the mortgagee or trustee named in said mortgages or trust
deeds shall agree to recognize the Lease of Tenant in the event of
foreclosure if Tenant is not then in default. Tenant also agrees that
any mortgagee or trustee may elect to have this Lease a prior lien to
its mortgage or deed of trust, and in the event of such election and
upon notification by such mortgagee or trustee to Tenant to that
effect, this Lease should be deemed prior in lien to the said mortgage
or deed of trust, whether this Lease is dated prior or subsequent to
the date of said mortgage or deed of trust. Tenant agrees, that upon
the request of Landlord, any mortgagee or trustee, it shall execute
whatever instruments may be required to carry out the intent of this
Section.
(d) REMEDIES. Failure of Tenant to execute any of the above
instruments within fifteen (15) days after written request to do so by
Landlord shall constitute a breach of this Lease, and Landlord may, at
its option, cancel this Lease and terminate Tenant's interest therein
if Tenant shall fail to cure such failure to execute the requested
instruments within an additional fifteen (15) days after written notice
by Landlord to Tenant of such breach.
20. ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or any interest therein, and shall
not sublet the Leased Premises or any part thereof, or any right or privilege
appurtenant thereto or suffer any other person to occupy or use the Leased
Premises or any portion thereof without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld, except that Tenant
shall have the right to assign the Lease to a wholly-owned subsidiary or
affiliate without Landlord's consent or enter into time sharing agreements for
the use of its space for the purposes set forth in Section Four (4). It is
understood and agreed that a consent to one assignment or subletting or
occupation or use by any other person shall not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by any other person. Any
such assignment or subletting
7
8
without the consent provided for herein shall be void and shall, at the option
of the Landlord, terminate this Lease.
21. DEFAULT
Tenant agrees that the violation of any of the foregoing covenants and
conditions shall, at the option of Landlord, void this Lease and render the same
null and void, and shall constitute a ground of forfeiture and ejection under
the provisions for that purpose hereinafter contained if such violation is not
cured within the applicable time period after written notice of the violation to
Tenant, if such written notice is expressly required hereunder.
Provided, however, and this Lease is made upon this condition, that if
Fixed Rent, any part thereof or any other sum due and payable to Landlord
hereunder shall remain unpaid for thirty (30) days after written notice by
Landlord of such default in payment (but Landlord shall only be required to give
notice of a monetary default two times during the term of this Lease and
thereafter default is automatic), or if Tenant shall assign this Lease or sublet
the Leased Premises, or any part thereof, or any interest therein, without the
written consent of Landlord, or if Tenant shall use the Leased Premises for any
purpose other than herein agreed, or if Tenant shall apply for relief under the
Federal Bankruptcy Code, or any similar state or Federal laws providing relief
to debtors, or if an involuntary petition is filed against Tenant under the
Federal Bankruptcy Code or any such similar state or Federal laws, or if Tenant
shall make an assignment for the benefit of creditors, or if a receiver or
receivers be appointed for Tenant, or if the interest of Tenant in the Leased
Premises shall be sold under execution, foreclosure, or legal process, or if any
judicial sale of the interest of Tenant be had, or if a voluntary or involuntary
sale, transfer, or assignment of this Lease of any kind or character whatsoever
shall be made, or if Tenant shall fail to perform, keep, fulfill, or observe any
of the terms, agreements, covenants, and conditions contained in this Lease on
the part of Tenant to be kept, performed, fulfilled, or observed, it shall be
lawful for Landlord at its option to re-enter into the Leased Premises and the
same to have again, repossess and enjoy, as in its first and former estate, and
that without notice to or demand upon Tenant or any other person, and thereupon,
at its option, this Lease and everything herein contained on the Landlord's
behalf to be done and performed, shall cease, determine, and be utterly void and
that without prejudice to any remedies or proceedings for arrearages of rent,
breach of covenant, or collection of debt, or alternatively this Lease shall
remain in full force and effect. Tenant hereby expressly waives any and all
claims or demands for injuries or damages occasioned by and an account of any
such re-entry by Landlord. If Tenant abandons the Leased Premises, or otherwise
defaults in performance of this Lease and thereby entitles Landlord to terminate
Tenant's possession of the Leased Premises, and Landlord elects to terminate
Tenant's right to possession only without termination of the Lease, Landlord
may, at Landlord's option, enter into the Leased Premises, remove Tenant's signs
and other evidences of tenancy, and take and hold possession thereof, without
such entry and possession terminating the Lease or releasing Tenant, in whole or
in part, from Tenant's obligations to pay all rent due hereunder for all the
full term, and in any such case Tenant shall pay forthwith to Landlord, if
Landlord so elects, a sum equal to the entire amount of all rent due under this
Lease for the residue of the stated term, plus any other sums then due Landlord
hereunder, including, without limitation, Landlord's expenses incurred in
connection
8
9
with the default (such as Landlord's legal, broker/realtor and accounting fees).
Upon and after entry into possession without termination of the Lease, Landlord
shall use reasonable efforts to re-rent the Leased Premises (or such part
thereof as Landlord deems proper) for the account of Tenant, to any persons,
firm or corporation other than Tenant, for such rent and for such time and upon
such terms as Landlord, in Landlord's sole discretion, shall determine, and
Landlord shall not be required to obtain consent of Tenant for such rerenting,
nor to accept any tenant offered by Tenant, or to observe any instructions given
by Tenant about such re-renting. Tenant expressly agrees that, in the event
Landlord shall enter into possession without terminating this Lease, Landlord
need not attempt to relet said Leased Premises to any person, firm or
corporation whom Landlord believes might rent other space in the Building or any
other building of Landlord . In any case, Landlord may make repairs,
alterations, and additions in or to the Leased Premises, and redecorate the same
to the extent deemed by Landlord as necessary or desirable, and Tenant shall,
upon demand, pay the cost thereof, together with Landlord's expense of the
re-renting. If the consideration collected by Landlord upon any such re-renting
for Tenant's account is not sufficient to pay the full amount of Tenant's rent
reserved in this Lease, together with the costs of repairs, alterations,
additions, redecorating and all of Landlord's other expenses incurred in
connection with the default (including, without limitation, Landlord's legal,
broker/realtor and accounting fees), Tenant shall pay to Landlord the amount of
the deficiency upon demand; and if the consideration so collected from any such
reletting is more than sufficient to pay the full amount of the rent reserved
herein, together with the costs and expenses of Landlord , Landlord may retain
the surplus without any duty to pay the surplus to Tenant.
Any and all property which may be removed from the Leased Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed or stored by Landlord at the risk,
cost and expense of Tenant, and Landlord shall in no event be responsible for
the value, preservation or safekeeping thereof. Tenant shall pay to Landlord
upon demand, any and all expenses incurred in such removal, and all storage,
sale and disposition charges against such property so long as the same shall be
in Landlord's possession or under Landlord's control. Any such property of
Tenant not removed from the Leased Premises or retaken from storage by Tenant
within ten (10) days after removal shall be presumed, at the option of Landlord,
to have been conveyed by Tenant to Landlord under this Lease as a bill of sale
without further payment or credit by Landlord to Tenant, and Landlord shall
thereafter be free to use such property for its own benefit, or otherwise sell
or dispose of such property, as Landlord deems appropriate in its sole
discretion.
If Tenant shall default in the observance or performance of any term or
covenant on its part to be observed or performed under or by virtue of any of
the terms and provisions in any section of this Lease, Landlord, without being
under any obligation to do so and without thereby waiving such default, may
remedy such default for the account of and at the expense of Tenant, immediately
and without notice in case of emergency or in any other case.
9
10
If Landlord shall default in the observance or performance of any term
or covenant on its part to be observed or performed under or by virtue of any of
the terms and provisions in any section of this Lease or any term implied in
fact or in law on the part of Landlord to be performed or observed, Tenant
agrees that Tenant shall look solely to Landlord's interest in the Leased
Premises, and no other assets of Landlord shall be subject to levy, execution or
other judicial process or award for the satisfaction of Tenant's claim.
22. TERMINATION AND SURRENDER
Upon the termination of this Lease, whether by lapse of time or
otherwise, Tenant will at once, upon five (5) working days written notice from
Landlord, surrender possession of the Leased Premises to Landlord and remove all
effects therefrom, and if such possession be not immediately surrendered,
Landlord may forthwith re-enter the Leased Premises and repossess itself
thereof, as of its first and former estate, and remove all the effects therefrom
without being deemed guilty of any manner of trespass or forcible entry or
detainer. No receipt of money by Landlord from Tenant after the termination in
any way of this Lease, or after the giving of notice shall reinstate, continue,
or extend the term of this Lease or affect any notice given to Tenant prior to
the receipt of such money. If Tenant shall not remove all effects from the
Leased Premises as above agreed, Landlord may, at its option, remove the same or
any of the same in any reasonable manner that Landlord shall choose and store
the same without liability to Tenant for loss thereof or damage thereto, and
Tenant will pay Landlord on request any and all expenses reasonably incurred in
such removal and also storage on said effects for any length of time during
which the same shall be in Landlord's possession, or Landlord may, at its
option, after notice, sell said effects or any of the same at public or private
sale for such price as Landlord may deem best, and apply the proceeds of such
sale upon any amounts due under this Lease from Tenant to Landlord, including
the expenses of the removal and sale.
23. ENVIRONMENTAL CONDITIONS
(a) DEFINITIONS. "Environmental Laws" shall mean any federal,
state, or local law, rule, regulation, or ordinance relating to
environmental, health, or safety matters.
"Environmental Damages" shall mean all liabilities,
obligations, responsibilities, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including,
without limitation, attorney, expert and consulting fees, and costs of
investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present, or future.
"Governmental Authority" shall mean any federal, state, or
local entity exercising executive, legislative, judicial, regulatory,
or administrative functions of or pertaining to government.
10
11
"Hazardous Materials" shall mean any waste, pollutant,
hazardous substance, toxic substance, hazardous waste, special waste,
petroleum or petroleum-derived substance or waste, or any constituent
of any such substance or waste which is governed by any Environmental
Law.
"Release" shall mean any actual or threatened spill, emission,
leak, escape, injection, deposit, or migration of Hazardous Materials.
(b) COVENANTS. Tenant shall not cause or permit, or allow its
respective agents, employees, contractors, or invitees to cause or
permit, any Hazardous Materials to be treated, stored, generated, or
disposed of, on or about the Leased Premises, except in compliance with
applicable Environmental Laws.
If there is a Release of Hazardous Materials at the Leased
Premises caused or permitted by Tenant, Tenant shall cleanup, remove,
or remediate the Release in compliance with all applicable
Environmental Laws. Tenant shall obtain Landlord's approval prior to
undertaking any such removal or remedial activities which are not
urgent and Landlord's approval shall not be unreasonably withheld or
delayed.
If there is a Release of Hazardous Materials at the Leased
Premises caused or permitted by Landlord, any previous Tenant of
Landlord's, any previous owner or previous owners' Tenants, Landlord
shall cleanup, remove, or remediate the Release in compliance with
applicable Environmental Laws.
(c) INDEMNIFICATIONS. Landlord shall indemnify, defend, and
hold harmless Tenant, its officers, directors, employees, and agents
from and against any and all Environmental Damages which arise from:
(i) the presence in, upon, about, or beneath the Leased Premises of any
Hazardous Materials requiring remediation under applicable
Environmental Laws and brought upon the Leased Premises by Landlord,
any previous Tenant of Landlord's, any previous owner or previous
owners' Tenants, or a third party; (ii) the breach of this Lease by
Landlord or any third party as a result of the acts or omissions of
Landlord's agents, employees, contractors, or invitees.
Tenant shall indemnify, defend, and hold harmless Landlord,
its officers, directors, employees, and agents from and against any and
all Environmental Damages which arise from: (i) the presence upon,
about, or beneath the Leased Premises of any Hazardous Materials
requiring remediation under applicable Environmental Laws and brought
upon the Leased Premises by Tenant, or its agents, contractors,
employees, patients and business invitees, or (ii) the breach of this
Lease by Tenant, its agents or contractors, or as a result of the acts
or omissions of Tenant's agents, employees, contractors, or invitees.
These indemnification obligations shall survive the
termination or expiration of this Lease.
11
12
(d) PERMITTED USE. Tenant will use the Leased Premises in
compliance with all applicable Environmental Laws.
(e) TERMINATION. If there is a Release of Hazardous Materials
at the Leased Premises for which Landlord is responsible under this
Section and which interferes with Tenant's use of the Leased Premises,
Tenant shall have the right to terminate this Lease or require Landlord
to remedy the condition giving rise to the breach to Tenant's
reasonable satisfaction.
(f) NOTICE. The parties agree to provide each other with
written notice; (i) upon obtaining knowledge of any potential or known
Release of Hazardous Materials in, on, or from the Leased Premises, or
(ii) upon receipt of any notice of any such potential or known Release.
24. NOTICE
All notices to be given to the Tenant may be given personally or in
writing and sent by the United States registered or certified mail, postage paid
and addressed to the
Landlord: Borror Realty Company
5501 Frantz Road
Columbus, Ohio 43017
Attention:____________
Tenant: Dominion Homes, Inc.
5501 Frantz Road
Columbus, Ohio 43017
Attention:____________
The effective date of notice shall be the date of receipt of said
notice.
25. WAIVERS
The waiver by Landlord of any breach of any term, covenant or condition
herein contained, shall not be deemed to be a waiver of any other term,
covenant, or condition or waiver of any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent acceptance
of rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant, or condition of this Lease
including a breach by virtue of the failure of Tenant to pay the particular rent
so accepted regardless of Landlord's knowledge of such preceding breach at the
time of the acceptance of such rent.
12
13
26. HOLDING OVER
Any holding over after the expiration of the original or renewal term
of this Lease with the consent of Landlord shall be construed to be a tenancy
from month to month at one hundred twenty-five percent (125%) of the latest rent
sum and shall otherwise be on the terms and conditions herein specified insofar
as applicable.
27. PARTIES BOUND
The covenants and conditions herein contained shall apply to and bind
the heirs, successors, administrators, and assigns of the parties hereto.
28. OHIO LAW
This Lease shall be construed under and in accordance with the laws of
the State of Ohio, and all obligations of the parties created hereunder are
performable and enforceable in Franklin County, Ohio.
29. LEGAL CONSTRUCTION
In case any one or more of the provisions contained in this Lease
shall, for any reason, be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision hereof, and this Lease shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
30. SOLE AGREEMENT OF THE PARTIES
This Lease constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings or written or oral agreements
between the parties respecting the within subject matter.
31. AMENDMENT
No amendment, modification, or alteration of the terms hereof shall be
binding, unless the same be in writing, dated subsequent to the date hereof, and
duly executed by the parties hereof.
32. TOPIC HEADINGS
Headings and captions in this Lease are inserted for convenience in
reference only and in no way define, limit, or describe the scope or intent of
this Lease, do not constitute any part of this Lease, and are not to be
considered in the construction of this Lease.
13
14
33. TIME IS OF THE ESSENCE
Time is of the essence in this Lease.
34. OPTION TO RENEW
Tenant shall have the right to renew this Lease for 2 successive
additional 5 year term(s) ("Renewal Terms") upon the same terms, covenants, and
provisions as in this Lease, by giving Landlord one hundred twenty (120) days
written notice prior to the term of intent to do so. The rent for the extension
term shall be at the fair market rental for the locale and payable monthly
during this extension term.
35. COMPLIANCE WITH LAWS
During the Lease term, Tenant, at its expense, shall comply with all
present and future laws and regulations applicable to its use and occupancy of
the Leased Premises, and shall make any repairs, modifications or additions to
the Leased Premises as may be required by any such laws or regulations. Tenant
agrees to hold Landlord harmless from any cost, expense or liability that may be
imposed or assessed against Landlord in connection with Tenant's noncompliance
with any such law or regulation. Notwithstanding the above, Tenant shall not be
obligated to make, and Landlord shall be solely responsible for, any structural
repairs, modifications or additions to the Leased Premises that (a) are not
necessitated by negligent or wrongful actions of Tenant or Tenant's agents,
employees, contractors, licensees or invitees and (b) Landlord would be required
to make as the owner of the Building regardless of the specific nature of
Tenant's use or any hazards associated with Tenant's use.
36. OTHER LEASES
It is understood by the parties hereto that a portion of the Leased
Premises is currently leased to third parties pursuant to the following two
leases (as amended, the "Other Leases"): (1) lease with David S. Blaugrund dated
as of February 25, 1991 and modified by lease amendments dated May 10, 1993 and
July 5, 1995; and (ii) lease with Robert W. Southworth and Robert W. Siekmann,
Jr. dated April 6, 1996 and that, therefore, this Lease is subject to the Other
Leases. Landlord hereby assigns to Tenant all of its right, title and interest
under the Other Leases, including, without limitation, the right to receive rent
and Tenant hereby accepts such assignment and agrees to assume all of the
obligations of the Landlord thereunder. Tenant shall have the full right and
authority to modify, amend and terminate such Other Leases with the consent of
Landlord, which consent shall not be unreasonably withheld.
14
15
IN WITNESS WHEREOF, the parties hereto have signed this Lease on the
day and date aforementioned.
Signed and acknowledged LANDLORD:
in the presence of:
- ------------------------------------ BORROR REALTY COMPANY, an Ohio
Print Name: Corporation
-------------------------
- ------------------------------------ By:*/s/ RANDOLPH B. ROBERT
Print Name: ---------------------------
------------------------- Its: VICE PRESIDENT
-----------------------
TENANT:
- ------------------------------------ DOMINION HOMES, INC., a OHIO
Print Name: Corporation -------
-------------------------
- ------------------------------------ By:*/s/ ROBERT A. MEYER, JR.
Print Name: ---------------------------
------------------------- Its: SR. VICE PRESIDENT
-----------------------
STATE OF OHIO
COUNTY OF FRANKLIN, SS.
BEFORE ME, the undersigned, a Notary Public, personally appeared the
above named Borror Realty Company, an Ohio corporation, by
________________________________, its _________________________, who
acknowledged 'the signing of the foregoing instrument to be free act and deed
and the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Columbus, Ohio, this ____ day of ________________________, 1997.
--------------------------------
NOTARY PUBLIC
15
16
STATE OF OHIO
COUNTY OF FRANKLIN, SS.
BEFORE ME, the undersigned, a Notary Public, personally appeared the
above named Dominion Homes, Inc., a ____________________ corporation, by
________________, its ________________, who acknowledged the signing of the
foregoing instrument to be free act and deed and the free act and deed of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Columbus, Ohio, this ____ day of _________________________, 1997.
--------------------------------
NOTARY PUBLIC
16
17
ADDENDUM TO LEASE
-----------------
WHEREAS, a certain Lease was executed December 29, 1997, by and between
Borror Realty Company, an Ohio corporation, hereinafter referred to as
"Landlord," and Dominion Homes, Inc., an Ohio corporation, hereinafter referred
to as "Tenant," pursuant to which Tenant leased 37,557 net rentable square feet
of office space identified as 5501 Frantz Road, Dublin, Ohio;
WHEREAS, Landlord and Tenant desire to change the term of the lease;
NOW THEREFORE, Landlord and Tenant agree that Section 2 of the Lease,
captioned "TERM," as executed on December 29, 1997, is deleted and the following
is substituted in its place:
2. TERM.
The term of this Lease Agreement shall be for a period of
twelve (12) years, commencing on January 1, 1998 (the "Commencement
Date"), and expiring on December 31, 2009 (the "Primary Term").
Except as modified above, the Lease shall remain in full force and
effect as originally written, including but not limited to Tenant's option to
renew the Lease for two successive additional five-year terms as set forth in
Section 34 of the Lease.
IN WITNESS WHEREOF, the parties hereto have signed this Addendum to
Lease on the day of February, 1998.
Signed and acknowledged LANDLORD:
in the presence of:
BORROR REALTY COMPANY, an Ohio
corporation
By:*/s/ RANDOLPH B. ROBERT
- ------------------------------- -------------------------------
Print Name: Randolph B. Robert
-------------------- Vice President
- -------------------------------
Print Name:
--------------------
18
TENANT:
DOMINION HOMES, INC., an Ohio
corporation
By:*/s/ ROBERT A. MEYER, JR.
- ------------------------------- -------------------------------
Print Name: Robert A. Meyer, Jr.
-------------------- Senior Vice President
- -------------------------------
Print Name:
--------------------
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
BEFORE ME, the undersigned, a Notary Public, personally appeared the
above-named Borror Realty Company, an Ohio corporation, by Randolph B. Robert,
its Vice President, who acknowledged the signing of the foregoing instrument to
be his free act and deed and the free act and deed of said corporation.
-------------------------------
Notary Public
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
BEFORE ME, the undersigned, a Notary Public, personally appeared the
above-named Dominion Homes, Inc., an Ohio corporation, by Robert A. Meyer, Jr.,
its Senior Vice President, who acknowledged the signing of the foregoing
instrument to be his free act and deed and the free act and deed of said
corporation.
-------------------------------
Notary Public
-2-