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Exhibit 10.2
BUSINESS TECHNOLOGY CENTER, INC.
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SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made this 7th day of March
1999, between Business Technology Center, Inc., an Ohio not-for-profit
corporation ("Sublessor"), and OxyNet, Inc. ("Subtenant").
1. LEASE OF PREMISES. In consideration of the rent, the Sublessor
subleases to Subtenant, the space ("Premises"), located at the following
address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ (the "Real Property"). The Premises
consists of approximately 1512 square feet of space as more particularly
described in Exhibit A.
This Sublease is subject and subordinate to a certain lease dated
January 18, 1994 between the Ohio State University, as "Lessor," and Sublessor,
as "Lessee," (the "Main Lease").
2. PARKING. See attached Rider.
3. TERM. Subtenant shall lease the Premises for a term of 1 YEAR
(months/years) beginning on NOVEMBER 1, 1999, and ending on OCTOBER 31, 2000.
Sublessor shall not be liable for failure to deliver the Premises to Subtenant
on the beginning date of this Sublease for reasons beyond Sublessor's control.
4. RENT/LATE CHARGES/ADDITIONAL RENT.
A. RENT. Subtenant agrees to pay Sublessor rent at the annual rate of
FIFTEEN THOUSAND ONE HUNDRED TWENTY 00/100 Dollars ($15,120.00) in equal monthly
payments of ONE THOUSAND TWO HUNDRED SIXTY 00/100 Dollars ($1,260.00) in
advance, on the first day of each calendar month during the term. In the event
that the term agreed to does not begin on the first day of the month, or end on
the last day of the month, the first and/or last monthly rental payment shall be
prorated.
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B. LATE CHARGE. Subtenant agrees to pay Sublessor a late charge of Ten
Dollars ($10.00) per day if the rent is not paid in full by the tenth day of the
month up to a maximum of $600.00.
C. ADDITIONAL RENT. Subtenant agrees to pay all charges incurred for
Business Technology Center services furnished by Sublessor as well as any other
amounts due to Sublessor as additional rent which shall be paid along with the
monthly installments of rent.
5. USE OF PREMISES. The Premises shall only be used for: DEVELOP,
MANUFACTURE, AND MARKET OXYGEN generation systems.
6. SECURITY DEPOSIT. Sublessor acknowledges receipt of a Security
Deposit in the amount of ONE THOUSAND SEVENTY ONE DOLLARS 00/100 ($1,071.00) as
a deposit for the faithful performance by Subtenant of all its obligations under
this Sublease as well as any extensions or renewals thereof. No interest shall
be paid on Subtenant's Security Deposit.
7. REPORTS. Subtenant acknowledges that Sublessor provides space and
business incubation services through grants and subsidies from city, state and
other governmental agencies, and such agencies have various funding requirements
and often require periodic information reports, including information as to the
number of new, full time jobs created by subtenant's business enterprise.
Subtenant further acknowledges that subtenant's participation in sublessor's
business incubation program is subject to sublessor's admission, graduation, and
reporting guidelines as described in Exhibit B, and will require periodic
reporting of business status in areas of planning and finance. Subtenant agrees
to provide such information as required by Sublessor in a timely and accurate
manner, and acknowledges that this Sublease is not binding upon Sublessor if
Subtenant does not qualify for the funding programs of the various governmental
agencies in which Sublessor participates.
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8. SUCCESS OR FAILURE OF SUBTENANT'S BUSINESS. Subtenant specifically
recognizes and acknowledges that the business venture to be undertaken by
Subtenant under this Sublease depends upon the ability of Subtenant as an
independent business person, as well as other factors, such as market and
economic conditions beyond the control of Sublessor and Subtenant. Subtenant
acknowledges that success or failure of Subtenant's business enterprise will be
dependent on the business acumen and diligence of Subtenant. Subtenant agrees
that success or failure of Subtenant's business will not depend on Sublessor's
performance under this Sublease Agreement, and Sublessor makes no
representations or warranties as to the success of Subtenant's business.
9. RULES AND REGULATIONS. Subtenant shall observe any rules and
regulations regarding the Premises which are enforceable against Sublessor under
the Main Lease. Sublessor shall provide a copy of any such rules and regulations
to Subtenant within 5 days after receipt by Sublessor. Failure to enforce any
rules and regulations shall not constitute a waiver thereof. It shall be
Subtenant's obligation to see that Subtenant's employees, invitees and agents
obey such rules and regulations.
10. SUBTENANT'S PROPERTY. All fixtures, furnishings, equipment,
inventory and other personal property at any time located upon the Premises,
whether such property is owned by Subtenant, Sublessor or any other person, and
any additions, alterations and improvements to the Premises made by Subtenant
shall be kept and maintained by Subtenant at its sole risk, and Subtenant shall
bear all cost, loss and expense for any casualty or theft risk in connection
with such fixtures, furnishings, equipment, inventory and other personal
property. Subtenant shall indemnify and save and hold harmless Sublessor from
and against any and all loss, cost and expense, including but not limited to
reasonable attorney fees, by reason of any
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damage to or destruction of any fixtures, furnishings, equipment, inventory and
other personal property and any such additions, alterations and improvements
made to the Premises by Subtenant. Sublessor will, however, be responsible for
any damage to the personal property of Subtenant or its invitees or clients,
while such property is in the Premises, that results from the negligent act or
omission of Sublessor's employees or agents while acting within the scope of
their employment.
11. SUBTENANT ALTERATIONS, INSTALLATIONS AND CHANGES IN PREMISES.
Sublessor and Subtenant shall comply with all applicable provisions of Ohio
Revised Code Chapter 4115, entitled Wages and Hours on Public Works, and with
the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Section 12131.
Subtenant shall not, without the prior written consent of Sublessor and
the lessor under the Main Lease ("Lessor"), make any additions, alterations or
improvements (other than routine interior redecoration such as painting and
wallpapering) in or to the Premises, including but not limited to the
installation of fixtures, appliances or equipment, or the changing of the
Premises or any part thereof. Prior to the commencement of any permitted
additions, alterations or improvements to the Premises, Subtenant shall submit
plans and specifications therefor to Sublessor for its approval in writing,
which shall not unreasonably be withheld. Said additions, alterations or
improvements shall be made in a good and workmanlike manner, in accordance with
the said plans and specifications therefor and in compliance with all applicable
statutes, ordinances, rules and regulations. Sublessor may, but shall not be
obligated to, inspect such additions, alterations or improvements which
Subtenant shall make to the Premises. Subtenant shall pay all costs of making
any additions, alterations or improvements and shall agree to keep the leased
Premises free from any liens, claims or encumbrances, and shall indemnify and
save
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Sublessor harmless from and against all loss, cost and expense, including
but not limited to reasonable attorney's fees, arising out of Subtenant's
additions, alterations or improvements.
All additions, alterations and improvements made by Subtenant shall
become the property of Sublessor (or Lessor, as provided in the Main Lease) upon
the expiration or termination of this Sublease; provided, however, that
Sublessor may, at its option and in accordance with Section 26 below, require
Subtenant to remove, at Subtenant's sole cost and expense, any such additions,
alterations and improvements at the end of the Sublease term or any renewal
thereto.
12. MAINTENANCE AND REPAIR. Subtenant shall not damage the Premises and
shall keep and maintain the interior of the Premises and all additions,
alterations, and improvements thereto in good condition and repair, including
but not limited to the exterior doors, windows and window frames, custodial
services, carpet cleaning, window washing, other minor interior repairs and
maintenance, bulb replacement, and reasonable periodic painting as determined by
Sublessor. Subtenant shall, further, keep the Premises in a clean, safe and
healthy condition free of insects, rodents, termites, vermin and other pests so
as to conform to all lawful requirements, laws and ordinances and directions of
the proper public authorities. In the event any portion of the Premises shall be
damaged because of improvements installed by Subtenant or through the fault or
neglect of Subtenant, Subtenant shall promptly and properly repair such damages
at its cost even though it involves foundation or structural repairs. If
Subtenant refuses or neglects to commence or complete said repairs and/or
replacements promptly and adequately, Sublessor may, but shall not be required
to, make or complete said repairs and replacements and Subtenant shall pay the
costs thereof to Sublessor upon demand.
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Subtenant shall coordinate its trash removal with the Sublessor and
shall deposit its ordinary trash and refuse in the trash dumpster provided by
the Sublessor (or Lessor, as the case may be). Subtenant shall be responsible
for the collection, storage, and disposal of its extraordinary trash and refuse
including, but not limited to, bio-hazardous materials, chemicals, and low level
nuclear materials as provided in Section 23. Said collection, storage, and
disposal shall be in accordance with Section 5 hereof and subject to the general
direction of The Ohio State University's Office of Environmental and
Occupational Health and Safety.
All repairs and replacements made by Subtenant shall be equal or better
in quality to the original work. If Subtenant refuses or neglects to commence or
complete repairs and/or replacements for which Subtenant is responsible,
promptly and adequately, Sublessor may, but shall not be required to, make or
complete said repairs and replacements, and Subtenant shall pay the costs
thereof to Sublessor immediately upon Sublessor giving notice of same to
Subtenant; provided, however, that no such action by Sublessor shall in any way
be deemed to be a waiver by Sublessor of any right Sublessor may have hereunder
on account of any default by Subtenant.
13. MECHANIC'S LIENS. If, as a result of any such additions,
alterations, improvements, repairs or replacements (hereinafter in this section
referred to as the "construction"), the Premises or any part thereof shall at
any time during the Sublease term or any renewal term thereof, become subject to
any vendor's, mechanic's, laborer's, materialmen's or other similar liens based
upon furnishing of materials or labor to the Premises and not contracted for by
Sublessor or Lessor, Subtenant shall cause the same to be discharged at its sole
cost and expense within 45 days after Subtenant shall have actual notice of the
existence thereof. If such liens are not discharged within said 45 day period,
Sublessor may at any time thereafter while the lien remains undischarged,
repossess the Premises and enjoy the same as if this
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Sublease had not been made, and thereupon Subtenant's rights under this Sublease
shall terminate, without prejudice, however, to any of the rights of Sublessor,
including recovery from Subtenant of all rent reserved hereunder, which will
thereupon accelerate and become immediately due and payable. The foregoing
notwithstanding, Subtenant agrees that in the event any such liens are filed,
they shall affect only the leasehold estate vested in Subtenant and shall in no
way affect the leasehold estate vested in Sublessor or Lessor's fee simple
ownership of the Premises.
14. DAMAGE OR DESTRUCTION. If the Premises shall be so damaged or
destroyed by fire or other casualty that the same, in the opinion of Sublessor
(or Lessor, as the case may be), are untenantable, then Sublessor shall have the
right to terminate this Sublease effective as of the date of such damage or
destruction, which option shall be exercised, if at all, by Sublessor giving
Subtenant written notice of same within thirty (30) days after such damage or
destruction if reasonably possible. If this Sublease shall be terminated in
accordance with this section, the rent hereunder shall be apportioned to the
date of such damage or destruction, and Subtenant shall immediately surrender
and deliver up the Premises to Sublessor. If Sublessor elects not to terminate
this Sublease in accordance with this section, provided, however, that the Main
Lease is not terminated by Lessor, the rent hereunder shall ▇▇▇▇▇ from the date
of such damage or destruction to the date the Premises are again tenantable. In
such event, Sublessor shall use its best efforts to enforce the provisions of
the Main Lease requiring Lessor to promptly repair or rebuild the Premises
(except such fixtures, furnishings, equipment and tenant improvements as shall
have been installed by Subtenant), and this Sublease shall remain in full force
and effect.
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If the Premises shall be so damaged by fire of other casualty that the
Premises (exclusive of such fixtures, furnishings, equipment and tenant
improvements as shall have been installed by Subtenant), in the sole opinion of
Sublessor, is not thereby rendered untenantable, provided, however, that the
Main Lease is not terminated by Lessor, then Sublessor shall use its best
efforts to enforce the provisions of the Main Lease requiring Lessor to promptly
repair the Premises (except such fixtures, furnishings, equipment and tenant
improvements as shall have been installed by Subtenant), and this Sublease shall
remain in full force and effect; provided, however, that until such repairs have
been completed, the refit shall be reduced by the same proportion as that
proportion of the Premises that in the sole reasonable opinion of Sublessor is
untenantable. All decisions of Sublessor in accordance with this section shall
be final and shall be binding upon Subtenant.
Anything in this section to the contrary notwithstanding, if any of the
said damage or destruction shall have been caused by the willful or negligent
act or omission of Subtenant, no right or obligation of Sublessor under this
section nor the exercise of any such right of the performance of any such
obligation shall prejudice or be deemed to constitute a waiver of any rights or
claims Sublessor may have against Subtenant by reason of such willful of
negligent act or omission by Subtenant.
15. SUBTENANT'S CASUALTY INSURANCE. During the term of this Sublease,
Subtenant shall, at its sole cost and expense, carry and maintain for the mutual
benefit of itself and Sublessor, a policy of fire and extended coverage
insurance insuring all fixtures, furnishings, equipment, inventory and other
personal property at any time located upon the Premises, against damage and
destruction by all causes generally insured against in policies of fire and
extended coverage insurance written on properties in Franklin County, Ohio, in
the amount of 80% of the
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full insurable value thereof, as determined by the insurance company issuing
such policy of insurance. Such policy of insurance shall bear an endorsement to
the effect that the insurer agrees to notify Sublessor not less than ten (10)
days in advance of any modification or cancellation thereof. Such policy of
insurance shall be issued by an insurance company and shall be in form
acceptable to Sublessor. Upon the execution hereof, Subtenant shall deposit with
Sublessor such policy of insurance of a certificate thereof. Not less than ten
(10) days prior to the due date for the payment of premiums upon such policy of
insurance, Subtenant shall deposit with Sublessor evidence satisfactory to
Sublessor of the payment of such premiums. Not less than ten (10) days prior to
the termination date of such policy of insurance, Subtenant shall deposit with
Sublessor evidence satisfactory to Sublessor of the renewal of such policy of
insurance. Sublessor's failure to receive or demand any evidence of insurance
required herein, however, shall in no way diminish or affect Subtenant's
obligation to obtain Such insurance.
Subtenant shall cause each insurance policy carried by it pursuant to
this Sublease to be, written in such a manner so as to provide that insurer
waives all right of recovery by way of subrogation against Sublessor in
connection with any loss or damage covered by the policy. If Subtenant falls to
procure such waiver, it will indemnify Sublessor for all moneys to which any
subrogor hereunder becomes entitled and the cost of reasonable attorney's fees
of any claim for subrogation.
16. LIABILITY INSURANCE. During the initial and any additional term of
this Sublease, Subtenant shall at its sole cost and expense, carry and maintain,
for the mutual benefit of itself, Sublessor and its officers, agents and
employees, a policy of general liability insurance against claims for personal
injuries, wrongful death or property damage occurring on or about the Premises
with minimum amount of coverage of One Million Dollars ($1,000,000.00) on
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account of bodily injury and/or death of persons and/or on account of damage to
property. Subtenant agrees to deposit said policy or policies (or certificates
thereof) with Sublessor prior to the date of occupancy by Subtenant, said policy
or policies naming as insured both Subtenant and Sublessor. Such policy of
insurance shall be issued by an insurance company acceptable to Sublessor, and
shall bear an endorsement to the effect that the insurer agrees to notify
Sublessor not less than ten (10) days in advance of any modification or
cancellation thereof. Not less than ten (10) days prior to the termination date
of such policy of insurance, Subtenant shall deposit with Sublessor evidence
satisfactory to Sublessor of the renewal of such policy of insurance.
Sublessor's failure to demand or request a Certificate of Insurance shall not
affect Subtenant's obligation to obtain and maintain the required insurance.
Subtenant shall cause to be issued and shall maintain during the term
of this Sublease such Workers' Compensation and disability insurance as may,
from time to time, be required by city, county, state or federal laws. Evidence
of such insurance shall be delivered to Sublessor prior to the date of occupancy
by Subtenant, and thereafter, at such times as Sublessor may require.
17. UTILITIES. Subtenant shall be responsible for telephone and data
communications installation and usage charges. Sublessor shall not be
responsible for the quality, quantity, interruption or failure in the supply of
any utility to the Premises when said supply is so affected as a result of
conditions beyond the control of Sublessor. Sublessor shall use its best efforts
to enforce the provisions of the Main Lease requiring Lessor to provide all
other utilities.
18. ASSIGNMENT AND SUBLETTING BY SUBTENANT. Subtenant shall not,
without the prior written consent of Sublessor and Lessor, assign or transfer
its interests under
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this Sublease in whole or in part or sublet all or any part of the Premises. If
Subtenant is a corporation, any transfer of this Sublease from Subtenant by
merger, consolidation or liquidation shall constitute an assignment for the
purpose of this Sublease and shall require the written consent of Sublessor and
Lessor. Sublessor shall not unreasonably withhold consent to any such
assignment, sublet or transfer. Any consent by Sublessor to any assignment or
subletting shall not constitute a waiver of the necessity of such consent to any
subsequent assignment or subletting each assignee or transferee shall assume and
be deemed to have assumed this Sublease and shall remain liable jointly and
severally with Subtenant for the payment of all rent and for the due performance
of all the terms, covenants, conditions and agreements herein contained on
Subtenant's part to be paid and performed for the term of this Sublease. No
assignment shall be binding on Sublessor unless such assignee or Subtenant shall
deliver to Sublessor a counterpart of such assignment and instrument in
recordable form which contains a covenant of assumption by the assignee. No
assignment or subletting by Subtenant with the consent of Sublessor and Lessor
shall relieve Subtenant of its obligations hereunder unless Sublessor and Lessor
expressly so agree in writing.
19. INDEMNIFICATION. Subtenant shall indemnify and save and hold
harmless Sublessor and its officers, trustees, agents and employees from and
against any and all loss, liability, damage, cost and expense, including but not
limited to reasonable attorney fees, for injury, death, loss or damage of
whatever nature to any person, property or any other claim by Subtenant or its
officers, employees, agents, customers, licensees, invitees or any other person,
firm or corporation resulting from the Subtenant's occupancy or use of the
Premises. In the event that any action or proceeding is instituted against
Sublessor by reason of any such claim or event, Subtenant shall resist and
defend such action or proceeding at Subtenant's sole cost and
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expense or cause it to be resisted and defended by an insurer. Notwithstanding
the foregoing, Sublessor shall be responsible for any liability that results
from the negligent, reckless or intentional act or omission or its employees or
agents while they are acting within the scope of their employment.
20. SUBLESSOR'S LIEN FOR RENT. Subtenant hereby grants a lien, to
Sublessor, of Subtenant's interest in all improvements, fixtures or personal
property on the Premises. In the event Subtenant falls to cure a default under
this Sublease, Subtenant authorizes Sublessor to take possession of the property
free and clear of Subtenant's interest therein.
21. SUBORDINATION AND EARLY TERMINATION. Subtenant agrees that this
Sublease and Subtenant's interest in this shall be secondary to any mortgage,
deed of trust or other method of financing or refinancing now or hereafter
placed on the Premises, the property, the land underlying the Premises and/or
the building of which the Premises is a part. Subtenant further agrees that it
will execute and deliver any and all documents necessary to show that
Subtenant's rights are secondary under this Sublease.
If the Main Lease is terminated, this Sublease shall be terminated as
well, in which case, Subtenant shall pay all rent due and perform and observe
all of the covenants hereof up to the time of vacation by Subtenant, and neither
Sublessor nor Subtenant shall have a claim against the other for damages for
such early termination.
22. HOLDING OVER. Should Subtenant hold over after the term of this
Sublease expires, with Sublessor's written approval, Subtenant shall become a
Subtenant on a month-to-month basis upon all of the terms and conditions
specified in this Sublease.
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23. HAZARDOUS SUBSTANCES.
A. SUBLESSOR'S CONSENT REQUIRED. Subtenant shall not cause or
permit any Hazardous Substances, as defined below, to be brought upon or kept or
used in or about the Premises and the Property (the "Real Property") by
Subtenant, its agents, employees, contractors or invitees, unless (a) such
hazardous Substances are necessary for Subtenant's business (and such business
is a permitted use under Section 5) and (b) Subtenant first obtains the written
consent of Sublessor.
B. COMPLIANCE WITH ENVIRONMENTAL LAWS. Subtenant shall at all times
and in all respects comply with all local, state and federal laws, ordinances,
regulations and orders (collectively, "Hazardous Substances Laws") relating to
industrial hygiene, environmental protection, or the use, analysis, generation,
manufacture, storage, disposal, or transportation of any Hazardous Substances.
C. HAZARDOUS SUBSTANCES HANDLING. Subtenant shall at its own
expense procure, maintain in effect and comply with all conditions of any and
all permits, licenses and other governmental and regulatory approvals required
for Subtenant's use of the Premises, including, without limitation, discharge of
(appropriately treated) materials or wastes into or through any sanitary sewer
serving the Real Property. Except as discharged into the sanitary sewer in
strict accordance and conformity with all applicable Hazardous Substances Laws
and only with the proper written consent of the Sublessor, Subtenant shall cause
any and all Hazardous Substances removed from the Premises (or from the Real
Property, if at Subtenant's direction) to be removed and transported solely by
duly licensed haulers to duly licensed facilities for final disposal of such
materials and wastes. Subtenant shall in all respects handle, treat, deal with,
and manage any and all Hazardous Substances in, on, under, or about the
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Real Property in total conformity with all applicable Hazardous Substances Laws
and prudent industry practices regarding management of such Hazardous
Substances. Upon expiration or earlier termination of the term of the Sublease,
Subtenant shall cause all Hazardous Substances to be removed from the Premises
(except such Hazardous Substances, if any, as were located in the Premises prior
to the commencement of Subtenant's occupancy thereof) and the Real Property (if
Subtenant caused such Hazardous Substances to be located on the Real Property)
and to be transported for use, storage or disposal in accordance and compliance
with all applicable Hazardous Substances Laws; provided, however, that Subtenant
shall not take any remedial action in response to the presence of any Hazardous
Substances in or about the Premises, or the Real Property, nor enter into any
settlement agreement, consent, decree, or other compromise in respect to any
claims relating to any Hazardous Substances in any way connected with the
Premises or the Real Property, without first notifying Sublessor of Subtenant's
intention to do so and affording Sublessor ample opportunity to appear,
intervene or otherwise appropriately assert and protect Sublessor's interest
with respect thereto.
D. NOTICES. If at any time Subtenant shall become aware, or
have reasonable cause to believe, that any Hazardous Substance has come to be
located on or beneath the Real Property, Subtenant shall, immediately upon
discovering such presence or suspected presence of the Hazardous Substance, give
written notice of that condition to Sublessor. In addition, Subtenant shall
immediately notify Sublessor in writing of (i) any enforcement, cleanup, removal
or other governmental or regulatory action instituted, completed or threatened
pursuant to any Hazardous Substances Laws, (ii) any claim made or threatened by
any person against Subtenant, the Premises or the Real Property relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous
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Substances and (iii) any reports made to any local, state, or federal
environmental agency, fire and safety agency or board of health arising out of
or in connection with any Hazardous Substances in or removed from the Premises
or the Real Property, including any complaints, notices, warnings, or asserted
violations in connection therewith. Subtenant shall also supply to Sublessor as
promptly as possible, and in any event within five (5) business days after
Subtenant first receives or sends the same, copies of all claims, reports,
complaints, notices, warnings, or asserted violations relating in any way to the
Premises, the Real Property, or Subtenant's use thereof. Subtenant shall
promptly deliver to Sublessor copies of hazardous waste manifests reflecting the
legal and proper disposal of all Hazardous Substances removed from the Premises
or the Real Property.
E. DEFINITION OF HAZARDOUS SUBSTANCES. As used in this Sublease,
the term "Hazardous Substance or Substances" means any hazardous or toxic
substances, materials or wastes, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances, (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes which are or become
regulated under any applicable local, state or federal law including without
limitation, any materials, waste or substance which is (i) petroleum, (ii)
asbestos, (iii) polychlorinated biphenyls, (iv) defined as a "hazardous waste"
under the laws and regulations of the State of Ohio, (v) defined as a "Hazardous
substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. 1251, ET
SEQ. (33 U.S.C. 1321) or listed pursuant to Section 307 of the Clean Water Act
(33 U.S.C. 1317), (vi) defined as a "hazardous waste" pursuant to Section 1004
of the Resource Conservation and Recovery Act, 42 U.S.C. 6901, (42 U.S.C. 6903)
or (vii) defined as a
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"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. 9601, ET SEQ. (42 U.S.C.
9601).
F. INDEMNIFICATION OF SUBLESSOR. Subtenant shall indemnify,
defend (by counsel acceptable to Sublessor), protect, and hold harmless
Sublessor, and each of Sublessor's trustees, officers, and assigns, from and
against any and all claims, liabilities, penalties, fines, judgments,
forfeitures, losses (including, without limitation, diminution in the value of
the Premises or the Real Property, damages for the loss or restriction on use of
rentable or usable space or of any the expiration or earlier termination of the
term of the Sublease. For purposes of the release and indemnity provisions
hereof, any acts or omissions of Subtenant, or by employees, agents, assignees,
contractors, or subcontractors of Subtenant or others acting for or on behalf of
Subtenant (whether or not they are negligent, intentional, willful, or
unlawful), shall be strictly attributable to Subtenant.
G. SUBLESSOR ENVIRONMENTAL COMPLIANCE COSTS. Sublessor and
Subtenant acknowledge that Sublessor may become legally liable for costs of
complying with Hazardous Substances Laws that are not the responsibility of
Subtenant pursuant to Subsection F, including the following:
(i) Hazardous Substances present in the soil or ground water on the
Property of which Sublessor has no knowledge as of the date hereof;
(ii) a change in Hazardous Substances Laws making certain Hazardous
Substances that are present on the Real Property as of the date
hereof, whether known or unknown to Sublessor, a violation of such
new Laws; (iii) Hazardous Substances that migrate, flow, percolate,
diffuse, or in any way move onto or under the Real Property after
the date hereof; (iv) Hazardous Substances present on or under the
Real Property
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as a result of any discharge, dumping, or spilling (whether
accidental or otherwise) on the Real Property by other lessees of
the Real Property or their agents, employees, contractors, or
invitees, or by others. Accordingly, Sublessor and Subtenant agree
that the cost of complying with Hazardous Substances Laws on the
Real Property for which Sublessor is legally liable and that are
paid or incurred by Sublessor shall not be charged to Subtenant as
any other charge. In the event the Premises becomes uninhabitable,
as so determined by a government agency, for a period in excess of
30 days due to the presence of a Hazardous Substance in violation
of the Hazardous Substances Laws and the Sublessor is responsible
for the presence of such Hazardous Substance, then the Sublease
shall terminate and the Sublessor shall not be liable to the
Subtenant for any damages or costs whatsoever resulting from such
early termination.
H. WITHHOLDING CONSENT TO PROPOSED TRANSFEREES. Subtenant
acknowledges and agrees that it shall not be unreasonable for Sublessor to
withhold its consent to any proposed assignment, subletting, or transfer of
Subtenant's interest in the Sublease if (i) the anticipated use of the Premises
by the proposed assignee, subtenant, or transferee (collectively, a
"Transferee") involves the generation, storage, use, treatment, or disposal of
Hazardous Substances; (ii) the proposed Transferee has been required by any
prior lessor, lender, or governmental authority to make remedial action in
connection with Hazardous Substances contaminating a property, if the
contamination resulted from such transferee's actions or use of the property in
question; or (iii) the proposed Transferee is subject to an enforcement order
issued by any governmental authority in connection with the use, disposal, or
storage of a Hazardous Substance. Subtenant acknowledges and agrees that this
section shall not be
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interpreted to modify the section of the Sublease restricting assignment,
subletting or transfer of the Subtenant's interest in the Sublease, including
implying that such consent cannot be unreasonably withheld.
I. ADDITIONAL INSURANCE OR FINANCIAL CAPACITY. If at anytime
it reasonably appears to Sublessor that Subtenant is not maintaining sufficient
insurance or other means of financial capacity to enable Subtenant to fulfill
its obligations to Sublessor pursuant to this Section 23, whether or not then
accrued, liquidated, conditional, or contingent, Subtenant shall procure and
thereafter maintain in full force and effect such insurance or other form of
financial assurance, with or from companies or persons and in forms reasonably
acceptable to Sublessor, as Sublessor may from time to time reasonably request.
Furthermore, any firm retained by Subtenant to remove Hazardous Substances from
the Premises or the Real Property must provide to the Sublessor a certificate of
insurance designation public liability, comprehensive auto insurance and
environmental impairment liability (or compliance with federal financial
responsibility requirements) with limits to be approved by the Sublessor in each
individual case.
24. ACCESS TO PREMISES. Sublessor and Lessor shall have the right to
enter upon the Premises at all reasonable times for all reasonable purposes.
Except in cases of emergency, Sublessor shall make reasonable efforts, but shall
not be required, to give 24 hours advance notice of its intent to enter the
Premises.
25. SURRENDER OF PREMISES. Upon the expiration of this Sublease, or any
extension thereof, or its termination in any way, Subtenant shall surrender and
deliver up the Premises broom clean and in as good order and condition as the
same shall have been at the commencement of the initial term of this Sublease,
or shall have been put by Subtenant and/or
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Sublessor, except for reasonable wear and tear, repairs and replacements that
Sublessor is required to make and loss by fire or other casualty, and deliver
the keys to Sublessor and inform Sublessor of all combinations of locks, safes,
or vaults, if any.
Subtenant hereby expressly authorizes Sublessor as agent of Subtenant
to remove such debris and make such changes and repairs as may be necessary to
restore the Premises to such condition at the expense of Subtenant without
notice to Subtenant, in the event that this covenant and other covenants of this
Sublease on the part of the Subtenant in respect to repair are not complied with
at the termination of this Sublease, the intent being that the agreement
respecting damages suffered by Sublessor through the breach of said covenants
shall survive the termination of this Sublease.
26. RESTORATION OF PREMISES. Upon the expiration or termination of this
Sublease or any extension thereof, whether due to default or otherwise,
Sublessor shall have the option to have any additions, alterations, and
improvements made to the Premises in accordance with Section 11 hereof removed
and the Premises restored to the condition in which they were delivered to
Subtenant at the beginning of the term of this Sublease. Upon notice to
Subtenant from Sublessor of Sublessor's decision to exercise its option to have
the additions, alterations, and improvements removed and the Premises restored,
Subtenant shall cause the same to be done, at Subtenant's sole expense, no later
than forty-five (45) days after the expiration of Subtenant's leasehold estate.
Sublessor's exercise of this option shall not affect Subtenant's obligations
under Section 25 of the Sublease.
If this Sublease is terminated due to default by Subtenant, then the
notice required from Sublessor to Subtenant under this section shall be served
with Sublessor's notice of default required under Section 27 hereof. Should
termination of the Sublease result from the expiration
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of the original term or any renewal term of the Sublease, Sublessor shall notify
Subtenant of Sublessor's decision to exercise its option to have the additions,
alterations, and improvements removed and the Premises restored at least sixty
(60) days before the date on which Subtenant's leasehold estate will expire.
Should Subtenant fall to cause the additions, alterations, and
improvements to be removed and the Premises restored within forty-five (45) days
after expiration of Subtenant's leasehold, Sublessor may, but shall not be
required to, cause the same to be done, and Subtenant shall pay the costs
thereof to Sublessor immediately upon Sublessor's giving notice of the same to
Subtenant. No such action by Sublessor shall in any way be deemed to be a waiver
by Sublessor of any right Sublessor may have hereunder on account of any default
by Subtenant.
27. DEFAULT. If the said rent or any part thereof shall at any time be
in arrears and remain unpaid for a period of ten (10) days after Sublessor shall
have given notice of same to Subtenant, or if Subtenant shall default in
performance of any of the other terms, covenants or conditions of this Sublease
and such default shall continue for a period of twenty (20) days after Sublessor
shall have given notice thereof to Subtenant, during which period Subtenant
shall not have proceeded forthwith to remedy such default and prosecuted such
effort diligently until such default shall have been remedied, or if Subtenant
shall make an assignment for the benefit of creditors, be adjudged a bankrupt,
suffer a receiver or trustee to be appointed in any action or proceeding by or
against Subtenant and fail to secure the discharge of such receiver or trustee
within forty-five (45) days following such appointment, or if Subtenant shall
make an application for an arrangement or reorganization the bankruptcy laws of
the United States, or if Subtenant shall abandon or vacate the Premises, then
and in any such cases, it shall be lawful for Sublessor to enter into the
Premises and again have, repossess and enjoy the same as if this Sublease had
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not been made, and thereupon this Sublease and everything contained herein on
the part of Sublessor to be done and performed shall cease, terminate and be
utterly void, without prejudice however to the rights of Sublessor and
obligations of Subtenant (including Sublessor's right to recover from Subtenant
all rent reserved hereunder which will thereupon accelerate and become
immediately due and payable). Sublessor shall be responsible for any damages to
the personal property of Subtenant that both occurs during any such re-entry and
results from the negligent, reckless or intentional act or omission of
Sublessor's employees or agents while they are acting within the scope of their
employment. In the event of an acceleration, the total of all remaining rents to
be paid by Subtenant will be discounted to present value using the then-existing
rate for one-year Treasury Bills. The commencement of a proceeding or suit in
forcible entry and detainer or in ejectment or otherwise after any default by
Subtenant shall be equivalent in every respect to actual entry by Sublessor, and
in case of such default by Subtenant and entry by Sublessor, Sublessor may, but
shall not be obligated to, relet the Premises.
It shall be a default under and breach of this Sublease by Sublessor if
Sublessor shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Sublease for a
period of thirty (30) days after notice thereof from Subtenant; provided,
however, that if the term, condition, covenant or obligation to be performed is
of such nature that the same cannot reasonably be performed within such 30-day
period, such default shall be deemed to have been cured if Sublessor commences
such performance within said 30-day period and thereafter diligently undertakes
to complete the same. Upon the occurrence of any such default by Sublessor,
Subtenant may (i) take or commence any action to enforce this Sublease that is
permitted under Ohio law, (ii) cure the default and, if such cure requires
Subtenant to make any payment deduct any reasonable such payment from
Subtenant's
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future rent payments to Sublessor, notwithstanding Section 4 of this Sublease,
or (iii) terminate this Sublease, immediately surrender the Premises to
Sublessor and cease paying rent hereunder.
28. RELATIONSHIP OF SUBLESSOR AND SUBTENANT. Subtenant shall not use
any trademark, service ▇▇▇▇ or trade name of Sublessor, nor shall Subtenant hold
itself out as having any business affiliation with Sublessor without having
specific written consent from Sublessor.
29. ESTOPPEL CERTIFICATE. Subtenant will execute, acknowledge, and
deliver to Sublessor or any proposed mortgagee or purchaser a certificate by
tenant which confirms the terms and conditions of this Sublease within five days
of a written request by Sublessor.
30. NO WAIVER OF BREACH. Any failure or neglect by Sublessor to assert
or enforce any rights or remedies because of any breach or default by Subtenant
under this Sublease shall not (except as to those specific instances when
express time limits are provided for taking action) prejudice Sublessor's rights
or remedies with respect to any existing or subsequent breaches or defaults.
Acceptance of any partial payment from Subtenant will not waive Sublessor's
right to pursue Subtenant for any remaining balance due nor shall any
endorsement or statement on any check or any letter which acknowledges a check
or payment of rent be deemed an accord or satisfaction.
31. TERMINATION BY COURT ORDER. In the event this Sublease is
determined in any court action to be in violation of any state law, Subtenant
shall vacate the Premises as soon as possible, not look to Sublessor for
recovery of any damages or reimbursement of expenses of any kind or of any rent
paid hereunder and, upon vacating the Premises, pay all unpaid rent accruing to
the time of such vacation.
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32. SIGNS. Subtenant will not place or cause to be placed or maintained
on the exterior of the Premises, any sign, advertising matter or other thing of
any kind and will not place or maintain any decoration, lettering or advertising
matter on the glass of any window or door of the Premises without first
obtaining written approval from Sublessor and Lessor, and Subtenant will
maintain such sign, decoration, lettering, advertising matter or other thing as
may be approved in good condition and repair at all times. Subtenant shall
comply with all laws, ordinances, and regulations which shall apply to said
signs.
33. ACTS BEYOND CONTROL OF EITHER PARTY. In the event that either party
shall be delayed or hindered or prevented from the performance of any act
required hereunder by reason of strikes, lock-outs, labor troubles, inability to
procure materials, failure of power, inadequate power, restrictive governmental
laws or regulations, severe weather conditions, disaster, riots, insurrection,
war or other reason of a like nature not the fault of such party in performing
work or doing acts required under the terms of this Sublease, the performance of
such acts shall be excused for the period of the delay. This provision shall not
operate to excuse Subtenant from prompt payment of rent or any other payments
required by the terms of this Sublease.
34. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and
shall inure to the benefit of the respective successors and assigns of Sublessor
and Subtenant.
35. APPLICABLE LAW. This Sublease shall be governed and construed
according to the laws of the State of Ohio.
36. NOTICES. Whenever any payment notice, consent, or request is given
or made under this Sublease, it shall be made in writing and delivered in person
or sent by certified mail. Communications and payments to Subtenant shall be
addressed to:
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▇▇▇▇▇▇ ▇▇▇▇▇▇
OxyNet, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
or any other address as may have been specified by prior notice to Sublessor.
Communications and payments to Sublessor shall be addressed to:
Business Technology Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Checks shall be made payable to the Business Technology Center.
37. ENTIRE AGREEMENT. This Sublease contains all the agreements and
understandings made between the parties and may only be modified in a writing by
the parties or their respective, successors in interest.
38. SEVERABILITY. If any provision of this Sublease shall be invalid,
then the remainder of this Sublease shall not be affected or impaired and shall
remain in full force and effect.
39. HEADINGS. The headings of the various sections of this Sublease are
inserted only for convenience and for reference and in no way define, limit, or
describe the scope or intent of this Sublease or any of its provisions.
40. COUNTERPARTS. This Sublease has been executed by the parties in
several counterparts, each of which shall be deemed to be an original copy.
41. GOVERNMENTAL REGULATIONS. Each party shall comply with all laws,
ordinances and regulations of the Government of the United States, State of
Ohio, and County and municipal authorities applicable to such party with respect
to the use, occupancy, construction, or maintenance of the Premises and site;
provided, however, that Sublessor shall be
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responsible for ensuring compliance with the Americans With Disabilities Act and
any other similar legislation as it affects the common areas of the building and
Subtenant shall be responsible for ensuring such compliance as it affects the
Premises. These laws, ordinances, and regulations include (but are not limited
to) those prohibiting discrimination and those requiring payment of "prevailing
wages" and participation of minority businesses in construction of improvements.
42. NON-DISCRIMINATION. During the term of this Sublease, Subtenant
shall operate the Premises without discrimination as to race, creed, color, age,
sex, religion, national origin or disability with respect to its employees,
vendors, contractors, business invitees, and guests.
IN WITNESS WHEREOF, the parties have caused this Sublease to be
executed as of the day and year first above written.
SUBLESSOR SUBTENANT
BUSINESS TECHNOLOGY CENTER, INC. OXYNET, INC.
By: By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ------------------------------------
Its: Executive Director Its: President
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