EXHIBIT 10.60
SUBLEASE AGREEMENT
------------------
THIS SUBLEASE is made pursuant to the terms of a lease dated July 21, 2003
between BRC Properties Inc., the owner of the commercial office building at 5000
Tuttle Crossing Boulevard, Dublin, Ohio (hereinafter called "BRC") and Dominion
Homes, Inc. as Lessee.
THIS SUBLEASE made as of the 22/nd/ day of September, 2003 by and between
DOMINION HOMES, INC., an Ohio corporation (hereinafter called "Lessor") and
DOMINION HOMES FINANCIAL SERVICES, LTD., an Ohio limited liability company
(hereinafter called "Lessee"). Lessee is a wholly owned subsidiary of the
Lessor.
1. Lease of Premises and Term. In consideration for the rents and
covenants to be performed by Lessee as set forth herein, Lessor hereby leases
unto Lessee, and Lessee hereby hires and takes from Lessor 4,756 leasable square
feet of commercial office space located on the first floor of Dominion Homes,
Inc.'s corporate office building (the "Building") 5000 Tuttle Crossing
Boulevard, Dublin, Ohio, as shown on the attached Exhibit "A" (the "Premises")
for a term of five (5) years, commencing on the earlier of November 1, 2003 or
move-in by the Lessee and ending October 31, 2008.
2. Rent. The total rent for the term of this lease shall be Four Hundred
Eighty Nine Thousand Three Hundred Ninety Two Dollars and Forty Cents
($489,392.40). Lessee agrees to pay Lessor said rent in advance in monthly
installments of Eight Thousand One Hundred Fifty Six Dollars and 54 Cents
($8,156.54) on or before the first day of each month, commencing November 1,
2003. In the event Lessee moves into the Premises prior to November 1, 2003, the
monthly rent shall be prorated. Included in the stated rent is Eight Dollars
($8.00) per square foot per year which represents Lessee's proportionate share
of the Premises' real estate tax, insurance, common area maintenance, janitorial
service, telephone equipment, and decorating allowance. All rent installments
shall be due and payable, without demand, deduction, or setoff to Lessor at the
address provided above.
3. Security Deposit. Lessee and Lessor hereby agree that no security
deposit will be provided to secure the lease.
4. Use of Premises. Lessee shall occupy and use the Premises solely for
office use and for no other purpose. Lessee will comply with all applicable
laws, ordinances, rules and regulations of any duly constituted public authority
relating to its business and the use of the Premises. Lessee shall maintain the
Premises in a clean, sanitary condition at all times and shall not permit
rubbish to accumulate on or about the Premises. Lessee agrees to comply with all
Building rules and regulations which are adopted by Lessor from time to time.
5. Improvements, Repairs and Maintenance. Lessee shall take good care of
the Premises and the fixtures and improvements therein, and all trade fixtures
and/or all alterations or installations installed by Lessee or Lessor, keeping
same in good order and repair and will use the premises during the term for the
purpose above specified and no other. At the expiration, or earlier termination
in any manner, or the term hereof, Lessee shall quit and surrender the Premises
together with all installations, improvements and alterations (including
partitions) which may have been installed by Lessor or Lessee, broom clean and
in as good condition and repair as when possession was delivered, reasonable use
and wear excepted, failing which Lessor may restore the Premises to such
conditions and Lessee shall pay the costs thereof. If Lessee removes any of its
trade fixtures, it shall repair any damage to the Premises caused by such
removal. If Lessee fails to remove Lessee's trade fixtures which it has a right
to remove from the Premises prior to the end of the term, Lessee shall be
conclusively presumed to have abandoned the same and ownership thereof shall
forthwith vest in Lessor without payment or credit to Lessee.
6. Alterations. Lessee shall not make any alteration, additions,
improvements or other changes in or to the Premises or the building, or attach
affix or build therein any improvement or installation nor do anything to alter
the exterior appearance of the building without the Lessor's prior written
consent in each and every instance. If prior to the termination of the Lease,
Lessor so directs Lessee by written notice, Lessee shall promptly remove any
specified alterations, improvements or installations placed in or upon the
Premises by Lessee, the Lessee shall repair any damage occasioned by such
removal.
7. Lessee's Acceptance of Premises. Lessor's delivery of the Premises to
Lessee and Lessee's entering onto the Premises for the rental purpose identified
above shall be deemed acceptance by the Lessee of the Premises in the condition
as of the date of said entering, and Lessee shall take possession of the
Premises in "as is" condition, and Lessee shall be bound by the terms of this
Lease.
8. Late Payments. Without limiting the remedies of the Lessor under the
terms of this Lease or the laws of the State of Ohio or of the United States,
any payment of any kind which is to be made by Lessee to Lessor, if not paid
within ten (10) calendar days of the date same is due, shall incur a late charge
equal to Five Percent (5%) of that month's monthly rental.
9. Utilities. Except as otherwise provided herein, Lessor shall furnish
at no additional cost to Lessee all electric, heat, air conditioning, water,
telephone equipment, elevator services, lavatory and toilets and janitorial
service necessary for the normal use of the Premises during normal and customary
working hours on all weekdays and Saturday mornings, excluding holidays.
Lessor does not warrant that any of the services above-mentioned will
be free from interruptions caused by war, insurrection, civil commotion, riots,
acts of God, or the enemy, or governmental action, repairs, renewals,
improvements, alterations, strikes, lockouts, picketing, whether legal or
illegal, accidents, inability of Lessor to obtain fuel or supplies, or any other
cause or causes beyond the reasonable control of Lessor. Any such interruption
of service shall never be deemed an eviction or disturbance of the Lessee's use
and possession of the Premises or any part hereof or render the Lessor liable to
the Lessee for damages, or relive the Lessee from the performance of Lessee's
obligations under this lease. Lessor's obligation to furnish light, heat and
power shall be conditioned upon the availability of adequate energy sources.
Lessor shall have the right to reduce heat and lighting within the Premises and
the common areas as required by any mandatory or voluntary fuel or energy
saving, allocation or similar statute, regulation, order or program.
10. Common Areas. Lessee and Lessee's agents, employees, licensees and
invitees shall have the right to use, in common and on an available basis with
Lessor and Lessor's tenants and agents, employees, licensees and invitees of
each: interview rooms, conference rooms, public sidewalks and parking areas,
corridors, public toilets and other public areas located on the first floor of
the Building, subject, however, to all applicable Building rules and
regulations.
11. Insurance.
A. Lessor shall, at Lessor's expense, procure and maintain in force
during the term of this lease and any extension thereof, fire and extended
coverage insurance on the building of which the Premises are a part. A
memorandum of insurance providing at least ten (10) days written notice in the
event of cancellation, if applicable, will be furnished to Lessee evidencing
such coverage.
B. Lessor agrees to procure and maintain in force during the term of
this lease and any extensions thereof at their expense, public liability
insurance for damage claims through public use of or arising out of accidents
occurring in or around the Premises, in such amounts as Lessor shall require.
Said insurance shall cover the Premises as well as the sidewalks and driveways
adjoining the Premises. Such insurance policies shall name Lessee as an
additional insured. A certificate of insurance with a clause providing at least
ten (10) days written notice to Lessee in the event of cancellation, shall be
provided to Lessee upon execution hereof.
C. Lessee covenants and agrees to indemnify and save Lessor, its
successors and assigns, harmless from all loss, expense liability, causes of
action and judgments in any way arising from Lessee's occupancy of the Premises
and conduct of Lessee's business therein, including without limitation paying
Lessor's costs of defending any such claim or action.
D. Tenant will not do, or permit to be done, in or upon the Premises
or bring or keep or permit anything to be brought into or kept on the Premises
which shall increase the premiums for fire and extended coverage insurance on
the building of which the Premises form a part or on the property located
thereon. Lessee agrees to pay such increase in premium for fire
2
and extended coverage insurance that may be charged during the term of this
Lease on the amount of such insurance which may be carried by Lessor on said
Premises or the building of which it is a part, resulting from any of the above
omissions or commissions of Lessee.
12. Casualty Loss. In the event that all or a material portion of the
Premises or building are damaged or destroyed by fire or other casualty or are
taken by condemnation proceeding (including a deed in lieu thereof) then this
lease shall terminate as of the date of damage or destruction or as of the date
possession is required by the condemning authority. In such event, Lessee shall
be liable for all accrued rent and other charges only to such date, and Lessee
shall be released from all future obligations hereunder. All loss proceeds and
condemnation awards shall belong to BRC. Lessor shall in no event be obligated
to repair or restore the Premises. The foregoing notwithstanding, in the event
of an insubstantial casualty loss of taking affecting the Premises or the
building or land, and in the event that the Premises can be restored to their
former economic utility to Lessee within 60 days after such event, then, at
Lessor's option, this lease shall not terminate, but rather Lessor shall proceed
to restore the Premises and Lessee's rent shall abate for the period and to the
extent that use of the Premises is denied Lessee as a result thereof.
13. Inspection and Maintenance. Lessor and BRC reserves the right to enter
the Premises at reasonable times to inspect them, to perform required
maintenance and repairs, to make additions or alterations on any part of the
building in which the Premises are located and Lessee agrees to permit Lessor to
do so. Lessor or BRC may, in connection with such alteration additions, or
repairs, erect scaffolding, fences and similar structures, post relevant
notices, and place movable equipment; provided that in so doing Lessor shall use
its best efforts to avoid disturbing Lessee's quiet enjoyment of the Premises,
or interfering with their occupation thereof.
14. Defaults. If Lessee defaults in payment of rent, Lessee's share of
Common Expenses, or in the performance of any of the conditions or covenants of
this lease, or if any bankruptcy, insolvency or similar proceeding is filed by
or against the Lessee, or if Lessee abandons the Premises or ceases business
operations therein for more than 15 days (unless in connection with restoration
after casualty loss) Lessor lawfully may, in addition to any other remedies
available in law or in equity, immediately or at any time thereafter, and
without demand or notice, enter into and upon the Premises and repossess the
same as of its former estate, and expel Lessee and those claiming through or
under it and remove its or their effects (forcibly, if necessary) without being
deemed guilty of any manner of trespass, and without prejudice to any remedies
which might otherwise be used for arrears or rent or preceding breach of
covenant, and upon entry as aforesaid this Lease shall terminate; and Lessee
covenants and agrees, notwithstanding any entry or re-entry by Lessor whether by
summary proceedings, termination or otherwise, to pay and be liable for, on the
days originally fixed herein for the payment thereof, amounts equal to the
several installments of rent and other charges reserved as would, under the
terms o this Lease, become due if this Lease had not been terminated or if
Lessor had not entered or re-entered as aforesaid, and whether the Premises be
relet or remain vacant in whole or in part or for a period less than the
exceeding amount of any deficiency then existing, or at the election of Lessor,
Lessee will upon such termination pay to the Lessor as damages such a sum as at
the time of such termination represents the difference between the then rental
value of the Premises for the remainder of the said term and the rent and other
payments named herein.
15. Holding Over. It is hereby agreed that in the absence of a written
lease extension as described in Paragraph One of this Lease, upon termination of
the initial lease term or any renewal hereof, Lessee shall occupy the Premises
solely as a tenant from month to month under the same terms and conditions as
are then in effect.
16. Subordination. Lessee shall, upon the request of Lessor or BRC in
writing, subordinate this Lease and the lien hereof by executing promptly,
without cost, any instruments which may be necessary or desirable to evidence
such subordination, to the lien of any present or future mortgage or mortgages
upon the Premises or any property of which the Premises are a part irrespective
of the time of execution or the time of recording of any such mortgage or
mortgages, provided that the holder of any such mortgage shall enter into a
written agreement with Lessee to the effect that in the event of foreclosure or
other action taken under the mortgage by the holder thereof this Lease and the
rights of Lessee hereunder shall not be disturbed but shall continue in full
force and effect so long as Lessee shall not be in default hereunder. The word
"mortgage" as
3
used herein includes mortgages, other similar instruments and modifications,
extensions, renewals and replacements thereof, and any and all advances
thereunder.
17. Notices. All notices required or agreed to be given hereunder by
either party shall be in writing and sent by registered or certified mail with
postage prepaid to Lessor or Lessee at 5000 Tuttle Crossing Boulevard, Dublin,
Ohio 43016, or to such other person or place as the parties may direct in
writing from time to time. Any notice to Lessee or Lessor addressed to any other
address or city shall be of no force or effect. Date of service of notice shall
be the date such notice is deposited in a post office of the U.S. Postal
Service.
18. Waiver. No waiver of any covenant of this lease or a breach of such
covenant shall constitute a waiver of any other covenant or the continued breach
of said covenant.
19. Authority and Peaceable Enjoyment. Lessors represents that it
maintains a master lease of the Premises that has the right to lease the same.
If Lessee performs the covenants herein agreed to be performed by it. Lessor
shall warrant and defend Lessee in the enjoyment and peaceful possession of the
Premises during the term hereof.
20. Assignment. Lessee shall not assign or sublease the Premises, or any
part thereof, or to allow any other person, to occupy the Premises or any part
thereof, without first obtaining Lessor's advance written consent. If Lessor
consents to any assignment or subletting, Lessee shall nevertheless remain
primarily liable for Lessee's obligations under the Lease. Any such unauthorized
assignment, sublease or license to occupy shall be void and shall terminate the
lease at the Lessor's sole option.
21. Miscellaneous. This lease and covenants and conditions hereof apply to
and are binding upon the heirs, successors, executors, administrators and
assigns of the parties hereto. This instrument is the entire agreement and
understanding between Lessor and Lessee with respect to the subject matter
hereof. It may be amended only in writing signed by the party to be charged.
This lease shall be governed by and construed in accordance with the laws of the
State of Ohio. If a court of competent jurisdiction subsequently declares any
provision hereof to be invalid or unenforceable, the remaining provisions hereof
shall remain in full force and effect to the maximum extent possible. This lease
shall not be recorded, but Lessor agrees to execute a memorandum hereof upon
Lessee's request.
4
IN WITNESS WHEREOF, the parties to these presents have hereunder set their
hands and seals the day and year first above written.
DOMINION HOMES, INC.,
an Ohio corporation
By: /s/ Terry E. George
-------------------------------------
Terry E. George
Senior Vice President
DOMINION HOMES FINANCIAL SERVICES, LTD.,
an Ohio limited liability company
By: /s/ Brian A. Connor
-------------------------------------
Brian A. Connor
Vice President and Operations Manager
BRC PROPERTIES INC.,
an Ohio corporation
By: /s/ Terry E. George
-------------------------------------
Terry E. George
Vice President
5