EXHIBIT 10(e) TO SYMIX SYSTEMS, INC. 1998 FORM 10-K
FOURTH LEASE AMENDMENT
This Fourth Lease Amendment is made and entered into as of
the latest date on which it is executed by either of the parties hereto (the
"Amendment Date"), by and between Corporate Exchange Buildings IV and V
Limited Partnership, an Ohio limited partnership, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000 (the "Landlord") and Symix Computer Systems, Inc., an
Ohio corporation, whose address is 0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxx 00000 (the "Tenant")
RECITALS
A. 2600 Realty Corp. V, Landlord's predecessor in
interest, and Tenant entered into a lease agreement dated April 3, 1991, a
Start Date Agreement dated October 15, 1992, and a Lease For Storage Space
dated March 16, 1992, and Landlord and Tenant entered into a First Lease
Amendment dated December 1, 1993, a Start Date Agreement dated December 1,
1993, a Second Lease Amendment dated April 1, 1994, a Start Date Agreement
dated April 1, 1994, a Third Lease Amendment dated July 12, 1994, and a Start
Date Agreement dated July 12, 1994 (collectively these documents are referred
to herein as the "Lease"), by which Landlord leased to Tenant, and Tenant
leased from Landlord, certain premises containing approximately 68,684
rentable square feet (the "Premises") as shown on the floor plans attached
hereto as Exhibit A, located on the lower level, second, third, and fourth
floors of Corporate Exchange Building V, 2800 Corporate Exchange Drive,
Columbus, Franklin County, Ohio (the "Building").
B. Tenant desires to lease additional office space in the
Building and to amend the Lease.
IT IS, THEREFORE, agreed as follows:
1. Tenant hereby leases an additional one thousand three
hundred eighty (1,380) rentable square feet of office space (the "Additional
Expansion Space") located on the second floor of the Building as shown on the
floor plan attached hereto as Exhibit B.
2. The Term of the lease for the Additional Expansion
Space shall commence on November 1, 1994, shall be concurrent with the Term
of the Lease, and shall expire on June 30, 2001, unless sooner terminated as
provided in the Lease.
3. Commencing on November 1, 1994, the Premises shall be
deemed to include the Additional Expansion Space and will
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contain an aggregate of approximately 70,064 rentable square feet.
4. Tenant shall pay Landlord Base Rent for the Premises in
advance on the first day of each calendar month, without set off or demand,
beginning on November 1, 1994 and continuing each calendar month until the
expiration of the Term as follows:
November 1, 1994, through June 30, 1997: Fifty One Thousand
Three Hundred Seventy and 73/100 Dollars ($51,370.73) per month.
July 1, 1996, through June 30, 1997: Fifty Two Thousand Two
Hundred Forty and 06/100 Dollars ($52,240.06) per month.
July 1, 1997, through June 30, 1999: Fifty Four Thousand Eight
Hundred Ninety Six and 16/100 Dollars ($54,896.16) per month.
July 1, 1999, through June 30, 2001: Fifty Seven Thousand Five
Hundred Fifty Two and 26/100 Dollars ($57,552.26) per month.
5. Tenant accepts the Additional Expansion Space in "AS IS"
condition. By occupying the Additional Expansion Space (including occupancy for
Tenant's construction of its alterations and improvements), Tenant shall be
deemed conclusively to have accepted the Additional Expansion Space and to have
acknowledged that the Additional Expansion Space is in the condition required by
the Lease and this Amendment. Tenant shall execute and deliver to Landlord an
acceptance letter in the form attached as Exhibit C hereto no later than
November 1, 1994.
Tenant shall make no alterations, additions or improvements
to the Premises without the prior written consent of Landlord. Tenant shall
submit a statement of planned alterations, together with detailed
architectural plans, specifications, and description of materials for
Landlord's approval. Tenant shall not commence any work without first (a)
obtaining Landlord's written approval of Tenant's plans, specifications, and
description of materials, and (b) delivering to Landlord copies of Tenant's
comprehensive general liability insurance certificates naming Landlord as an
additional insured. Tenant shall perform all work in strict accordance with
Tenant's approved plans and specifications and with all applicable laws,
orders, regulations and requirements, in compliance with such rules and
regulations as Landlord may make, and shall obtain approval by all
appropriate governmental or quasi-governmental agencies. Tenant shall obtain
all applicable permits and
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authorizations before commencing work. All changes and alterations shall be
made at the sole cost of Tenant, shall be performed in a good and workmanlike
manner, shall not affect any structural parts of the Building, and shall not
interfere with the quiet enjoyment of other tenants. Tenant at its cost
shall repair any damage to the Building and/or Land caused by Tenant's
alterations and shall restore them to the condition in which they were prior
to the damage. Tenant shall promptly remove from the Premises and the
Building all trash resulting from its work. All materials placed in the
Premises or in the Building by Tenant, its contractors, agents,
representatives, employees, concessionaires, licenses, or invitees, and all
Tenant's work at any time, shall be at Tenant's sole risk. Tenant shall
indemnify Landlord, Landlord's managing agent, and anyone claiming through
them from all costs and expense incurred in connection with Tenant's
performance of Tenant's alterations.
Tenant shall keep the Premises, the Building, and the Land
free and clear of all mechanics' and/or materialman's liens resulting from
work done by or for Tenant. If any mechanics' or materialman's liens are
filed against the Premises or the Building as a result of or purporting to be
the result of any work for or act of Tenant, Tenant shall discharge the lien
within thirty (30) days by payment, or by notice and bond meeting the
requirements of the Ohio Revised Code. If Tenant does not discharge the
lien, Landlord may pay the lien for the account of Tenant without inquiring
into its validity and treat the amount of such payment as additional rent
immediately due from Tenant; and/or treat Tenant's failure to discharge the
lien as a default. Tenant shall indemnify and save harmless Landlord against
and from all costs, liabilities, suits, penalties, claims and demands,
including reasonable attorneys' fees resulting therefrom.
Nothing in this Lease shall be construed as constituting the
express or implied consent or request of Landlord to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials, fuel, machinery or supplies or any specific
improvements, alterations of or repair to the Building or the Premises or any
improvement thereto, nor as giving Tenant any right, power or authority to
act as agent of Landlord to contract for, or to permit the performance or
furnishing of any labor, materials, fuel, machinery or supplies on any basis
which would entitle any person to assert and/or perfect a mechanic's lien or
other claim encumbering the Building, the Premises or Landlord's interests in
the Premises. Tenant shall post and maintain at the Premises any notices
appropriate for the protection of the Premises from efforts by others to
perfect or assert mechanic's liens or other claims in respect of the Premises.
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Landlord will provide Tenant with an allowance for tenant
improvements to the Additional Expansion Space (the "Allowance") in the
amount of Eleven Thousand Forty and 00/000 Dollars ($11,040.00). Tenant
shall pay all costs for tenant improvements to the Additional Expansion Space
in excess of the allowance. Landlord shall remit the Allowance to Tenant
within thirty (30) days of receipt of Tenant's written notification that the
improvements to the Additional Expansion Space are complete, together with
originals of a Certificate of Occupancy, if necessary, from the applicable
governmental building authority.
6. Except as provided below, Tenant's combined payments for
Operating Expenses and Real Property Taxes shall not exceed Thirty Three
Thousand Five Hundred Seventy Two and 33/100 Dollars ($33,572.33) per month
during calendar year 1994, Thirty Four Thousand Six Hundred Twenty Three and
29/100 Dollars ($34,623.29) per month during calendar year 1995, and Thirty Five
Thousand Six Hundred Seventy Four and 25/100 Dollars (35,674.25) per month
during calendar year 1996. If, however, in Landlord's judgement, specific
events outside of Landlord's control cause Tenant's share of Operating Expenses
or Real Estate Taxes to exceed the preceding maximum expense levels for the
corresponding calendar year, Tenant shall pay the excess amount. Landlord shall
use reasonable efforts to notify Tenant as soon as possible when such special
events occur.
7. Except as set forth in this Fourth Lease Amendment, all
provisions of the Lease shall remain unchanged and in full force and effect and
shall apply to this Lease Amendment. All terms and conditions of the Lease not
specifically amended by this Fourth Lease Amendment shall apply as if fully
rewritten herein, and the rights and obligations of Tenant shall be governed and
controlled by the terms and conditions of the Lease as amended hereby.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Lease.
8. Tenant hereby certifies that no real estate broker has
or will represent it concerning this Fourth Lease Amendment and that no
finder's fees have or will be earned by any third party. Tenant shall
indemnify and hold Landlord harmless from any liability or expense that may
arise from such claims, including reasonable attorney's fees.
9. This Fourth Lease Amendment shall be construed,
governed and enforced in accordance with the laws of the State of Ohio.
10. This Agreement and the instruments and documents
contemplated hereby, and the execution and delivery hereof by Tenant, and the
consummation of the transactions herein provided,
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have been duly authorized and approved by Tenant's Board of Directors and do
not violate any provision of the constitution or bylaws of Tenant, or any
agreement to which Tenant is a party or by which Tenant is bound, and
constitute valid and binding obligations of Tenant enforceable against it in
accordance with their respective terms. No consent or governmental approval
is required in connection with the consummation of the transactions
contemplated hereby. Tenant represents and warrants to Landlord that it has
full right, power and authority to enter into the transactions provided for
in this Lease Amendment; and that it has not, at any time, subleased,
pledged, hypothecated, assigned or encumbered the Lease or in any other
manner encumbered the Premises and will not do so.
IN WITNESS WHEREOF, Landlord has executed this Fourth Lease
Amendment on the 11th day of November, 1994, and Tenant has executed
this Fourth Lease Amendment on the 4th day of November, 1994.
LANDLORD: CORPORATE EXCHANGE
BUILDINGS IV AND V LIMITED
PARTNERSHIP
By: Xxxxxx Xxxxxxx & Co.,
General Partner
WITNESSES:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
-------------------------------- -----------------------------
Xxxxx Xxxxxxx
Print Name: Xxxxxx X. Xxxxx President
------------------
/s/ Xxxxx Xxxxxxx Date: 11/11/94
-------------------------------- -----------------------
Print Name: Xxxxx Xxxxxxx
-------------------
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TENANT: SYMIX COMPUTER SYSTEMS, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxx
------------------------------- ----------------------------
Xxxxx X. Xxx
Print Name: Xxxxxxx X. Xxxxx Chairman of the Board and
------------------- Chief Executive Officer
Date: 11/4/94
----------------------------
/s/ Xxx Xxxxxx By: /s/ O. Xxxx XxXxxxx
------------------------------- ----------------------------
Print Name: Xxx Xxxxxx
-------------------
Date: 11/4/94
---------------------------
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxx
-------------------
/s/ Xxx Xxxxxx
-------------------------------
Print Name: Xxx Xxxxxx
-------------------
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NOTARIZATION FOR LANDLORD
STATE OF OHIO
COUNTY OF FRANKLIN
On this 11th day of November, 1994, before me, a notary public
in and for said County and State, personally appeared Xxxxx Xxxxxxx,
President of Xxxxxx Xxxxxxx & Co., an Ohio Corporation and the General
Partner of CORPORATE EXCHANGE BUILDINGS IV and V LIMITED PARTNERSHIP, an Ohio
limited partnership, on behalf of the limited partnership, who acknowledged
for and on behalf of the corporation and limited partnership that he did sign
the foregoing instrument on behalf of the corporation and limited partnership.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Notary Public
My Commission Expires: 11-1-97
---------
NOTARIZATION FOR CORPORATE TENANT
STATE OF OHIO
COUNTY OF FRANKLIN
On this 4th day of November, 1994, before me, a notary public
in and for said County and State, personally appeared Xxxxx X. Xxx, Chairman
of the Board and Chief Executive Officer and O. Xxxx XxXxxxx, President, of
Symix Computer Systems, Inc., an Ohio corporation, who represented that they
are duly authorized to sign and did sign the foregoing lease amendment on
behalf of the corporation.
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Notary Public
My Commission Expires: None
---------
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CERTIFICATE OF INCUMBENCY AND RESOLUTION
OF
SYMIX COMPUTER SYSTEMS, INC.
I, Xxxxxxx X. Xxxxx, duly elected Secretary of Symix
Computer Systems, Inc., an Ohio corporation (the "Company"), do hereby
certify that Xxxxx X. Xxx, is the duly elected and qualified Chairman of the
Board and Chief Executive Officer, and O. Xxxx XxXxxxx, is the duly elected
and qualified President of Symix Computer Systems, Inc., as of the date set
forth below, and the signatures set forth opposite their respective names are
the true and genuine signatures of both:
Name Signature
---- ---------
Xxxxx X. Xxx /s/ Xxxxx X. Xxx
---------------------------------
O. Xxxx XxXxxxx /s/ O. Xxxx XxXxxxx
---------------------------------
I, Xxxxxxx X. Xxxxx, further certify that the following is
a true and correct copy of the resolution duly adopted by unanimous written
consent of the Board of Directors of Symix Computer Systems, Inc., on
July 12, 1994 and that there are no modifications, additions or
rescissions thereto:
RESOLVED, that the Chairman of the Board and Chief Executive
Officer and President be and hereby are authorized and
empowered to execute in the name of and to deliver on behalf
of the Company any and all documents relating to real estate
transactions including, but not limited to, leases,
subleases, and purchase and sale documents, and amendments
and supplements thereto, and specifically that they are
authorized and empowered to enter into a lease amendment
with Corporate Exchange Buildings IV and V Limited
Partnership for the lease amendment at Corporate Exchange
Building V.
IN WITNESS WHEREOF, the undersigned has hereunto set (her)
(his) hand and affixed the seal of the Company on this 4th day of November,
1994.
SYMIX COMPUTER SYSTEMS, INC.
(CORPORATE SEAL) By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
EXHIBITS A AND B
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[VISUAL VIEW OF FLOOR PLAN]
(OMITTED)
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EXHIBIT C
TENANT ACCEPTANCE LETTER
[Letterhead of Tenant)
[Date]
Corporate Exchange Buildings IV and V Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxx
Re: Lease dated April 3, 1991, a Lease For Storage Space dated
March 16, 1992, a First Lease Amendment dated December 1,
1993, a Second Lease Amendment dated April 1, 1994, Third
Lease Amendment dated July 12, 1994, and Fourth Lease
Amendment at Corporate Exchange Building V, 0000 Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000
The undersigned, as Tenant, hereby confirms the following as of
November 4,1994:
1. Tenant has accepted possession of and is currently occupying
the entire Premises.
2. The commencement date for the Fourth Lease Amendment is
November 1, 1994.
3. Tenant accepts the Premises in "AS IS" condition and
acknowledges that the Premises are in the condition required
by the Lease and all amendments thereto.
4. As of the date hereof, Landlord has fulfilled all its
obligations under the Lease.
5. The Lease is in full force and effect and has not been
modified, altered, or amended except pursuant to the
instruments described above.
6. There are no offsets or credits against Rent or any other
charge payable by Tenant under the Lease, nor has any Rent
or any other charge payable by Tenant been prepaid.
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7. Tenant has no notice of any prior assignment, hypothecation,
or pledge of the Lease or any Rent due under the Lease.
Sincerely,
SYMIX COMPUTER SYSTEMS, INC.
By: /s/ Xxxxx X. Xxx
------------------------------
Xxxxx X. Xxx
Chairman of the Board and
Chief Executive Officer
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