Preview
ELECTRONICALLY-FILED
WOOD COUNTY COMMON PLEAS COURT
Wednesday, April 03, 2024 2:51:07 PM
2024CV0222 - Mary "Molly" L Mack
DOUGLAS F. CUBBERLEY
CLERK OF COURTS WOOD COUNTY OHIO
IN THE COURT OF COMMON PLEAS
WOOD COUNTY, OHIO
W. HORTON ENTERPRISES LLC :
4393 Blacks Road SW : Case No.
Hebron, Ohio 43025 :
: Judge
Plaintiff, :
:
v. :
:
ACTIVE DAY OH, INC. :
c/o CT Corporation System :
4400 Easton Commons Way, Suite 125 :
Columbus, Ohio 43219 :
:
Defendant. :
COMPLAINT
______________________________________________________________________________
Now comes Plaintiff W. Horton Enterprises LLC (“Horton”) and for its complaint against
Defendant Active Day OH, Inc. (“Active Day”) states and avers as follows:
I. PARTIES, JURISDICTION, AND VENUE
1. Horton is an Ohio limited liability company with its principal place of business in Licking
County, Ohio.
2. Active Day is a Delaware corporation licensed to operate in the State of Ohio.
3. This Court has jurisdiction as the actions and transactions giving rise to this complaint
occurred in Wood County, Ohio and the contracts underlying this action affirm the
applicability of Ohio law and suitability of jurisdiction in Ohio.
1
4. Venue is proper in Wood County, Ohio pursuant to Civ.R. 3(C)(3) & (5).
II. FACTS COMMON TO ALL CLAIMS
5. A true and accurate copy of a lease agreement between Horton and Active Day for the
premises located at 741 Commerce Drive, Perrysburg, Ohio 43551 (“Perrysburg Property”)
is attached as Exhibit A (“Perrysburg Lease”).
6. The Perrysburg Lease was validly executed by, and mutually enforceable between, Horton
and Active Day.
7. The Perrysburg Property is a uniquely designed property suited primarily to the purpose of
providing adult day services.
8. Prior to entering into the Perrysburg Lease, Horton was leasing the Perrysburg Property to
a different company who was providing adult day services at the location.
9. Horton entered into the Perrysburg Lease with Active Day in conjunction with Active Day
acquiring the business previously providing adult day services at those properties,
including the Perrysburg Property.
10. Horton has performed all conditions precedent to bringing this action.
11. The lease term of the Perrysburg Lease was a period of 5 years commencing on October
24, 2019 and ending on October 31, 2024.
12. The basic rent schedule for the Perrysburg Lease (“Basic Rent”) was as follows:
a. Year 1: $170,000.00 payable as $14,166.67 per month;
b. Year 2: $173,400.00 payable as $14,450.00 per month;
c. Year 3: $176,868.00 payable as $14,739.00 per month;
d. Year 4: $180,405.36 payable as $15,033.78 per month;
e. Year 5: $184,013.47 payable as $15,337.46 per month.
2
13. All Basic Rent payments under the Perrysburg Lease were to be paid in advance and due
on the first day of each calendar month.
14. The Perrysburg Lease is a triple-net lease wherein Active Day agreed to pay additional rent
(“Additional Rent”) as described in Article 7 of the Perrysburg Lease.
15. Under the Perrysburg Lease, Horton is entitled to receive interest at 12% per annum on all
rent that is not paid within 15 days following the due date.
16. Under the Perrysburg Lease, Horton is entitled to receive a 5% late charge on all rent
payments that are paid 10 or more days after the due date.
17. On or about October 24, 2019, Active Day commenced its occupancy of the Perrysburg
Property.
18. On or about June 9, 2023, Active Day vacated the Perrysburg Property.
19. On May 9, 2023, Active Day provided notice of its default (“Default Notice”) to Horton.
20. A true and accurate copy of the Default Notice is attached as Exhibit B.
21. On May 26, 2023, Horton responded to the Default Notice outlining its options under the
Perrysburg Lease.
22. A true and accurate copy of Horton’s response to the Default Notice is attached as Exhibit
C.
23. Active Day has not paid any Basic Rent under the Perrysburg Lease since April 2023.
24. Active Day has not paid any Additional Rent under the Perrysburg Lease since April 2023.
25. The Perrysburg Lease provides, under Section 14.02, Horton the right to recover reasonable
costs and expenses incurred for any repairs, maintenance, changes, alterations, and
improvements to the Premises to prevent damage, advertising costs, brokerage
commissions, and reasonable attorney fees.
3
III. LEGAL CLAIMS
COUNT ONE:
Breach of Contract
26. Horton incorporates the allegations above as if rewritten here.
27. The Perrysburg Lease is a valid and binding written contract between Horton and Active
Day.
28. Active Day breached the Perrysburg Lease by failing to make payment of Basic Rent and
Additional Rent when due.
29. Horton has fulfilled all conditions precedent to pursuing damages relating to Active Day’s
failure to pay Basic Rent and Additional Rent when due, but Active Day has failed to cure
said defaults.
30. Active Day breached the Perrysburg Lease by failing to make payment of Basic Rent and
any Additional Rent when due for a period greater than 10 days after notice of the same
being due.
31. Horton has fulfilled all conditions precedent to pursuing damages relating to Active Day’s
nonpayment of rent due and subsequent abandonment of the Perrysburg Property, but
Active Day has failed to cure said default.
32. On May 9, 2023, Active Day provided notice of its default.
33. Active Day operated in bad-faith, or in a vexatious, wanton, obdurate, or malicious manner
when it breached the Perrysburg Lease.
34. Horton is not in breach of the Perrysburg Lease.
35. As a result of the breach by Active Day, Horton has been damaged in excess of $25,000
comprised of Basic Rent, Additional Rent (including reasonable attorney fees and expenses
per Article 14 of the Perrysburg Lease), interest at the contract rate of 12% per annum and
4
late charges to the fullest extent permitted under Section 14.02 of the Perrysburg Lease and
Ohio law.
IV. PRAYER FOR RELIEF
Horton respectfully requests this Court grants the following relief:
a. Judgment in its favor and against Active Day under the Perrysburg Lease and awarding
all available legal and equitable remedies including attorney fees and costs in bringing
and prosecuting this action plus pre-judgment interest from June 9, 2023, at the contract
rate of 12% per annum and post judgment interest at the contract rate of 12% per
annum.
b. Any other legal remedy and equitable relief this Court deems just.
Respectfully submitted,
/s/ Andrew C. Clark
Andrew C. Clark (0083519)
Colleen R. Vance (0099665)
Samantha M. Lewis (0100975)
Onda LaBuhn Ernsberger & Boggs Co., LPA
acc@ondalabuhn.com
crv@ondalabuhn.com
sml@ondalabuhn.com
35 North Fourth Street, Suite 100
Columbus, Ohio 43215-2511
Phone: (614) 716-0500
Fax: (614) 716-0511
Co-Counsel for Plaintiff W. Horton Enterprises LLC
and
/s/ Shamus B. Cassidy
Shamus B. Cassidy (0083566)
Cassidy Law, LTD
shamus@cassidylawltd.com
7650 Rivers Edge Drive, Suite 101
Columbus, Ohio 43235
Phone: (614) 888-4911
Fax: (614) 888-4402
5
WK 2FWREHU
A
Tenant shall pay to the Landlord basic rent in the amount of $170,000.00 annually, which shall be payable as $14,166.67 per month
(hereinafter referred to as “Basic Rent”). Upon the first anniversary of the Rent Commencement Date, and for each and every year
thereafter throughout the Term of the Lease, including any Renewal Term as provided for under Section 24.01 of this Lease, the annual
Basic Rent amount shall increase two percent (2%) from the most recent Basic Rent amount.
Section 3.02. The Basic Rent shall be payable in advance on the first day of each calendar month during the Term in monthly
installments as set forth above commencing on the Rent Commencement Date, except that a proportionately lesser sum may be paid for
the first and last months of the Term of this Lease if the Term commences on a date other than the first day of the month, in accordance
with the provisions of this Lease hereinafter set forth. The Basic Rent and Additional Rent, as hereinafter defined and at times referred to
herein together with Basic Rent as “Rent”, shall be payable at the office of the Landlord, at the address above set forth, or as may
otherwise be directed by notice from the Landlord to the Tenant.
Section 3.03. Late Charges and Interest. Any Rent not paid within fifteen days from the due date shall bear interest at twelve
percent (12%) per annum until payment is received by Landlord. In addition, Tenant shall pay Landlord a late charge equal to five
percent (5%) of any amount ten (10) days or more overdue to compensate Landlord for the extra costs Landlord will incur as a result of
such late payment. The parties agree that: (i) it would be impractical and extremely difficult to fix the actual damage that Landlord will
suffer on account of Tenant’s late payment; (ii) such interest and late charges represent a fair and reasonable estimate of the detriment that
Landlord will suffer by reason of late payment by Tenant; and (iii) the payment of interest and late charges are distinct and separate in that
the payment of interest is to compensate Landlord for the use of Landlord’s money by Tenant, while the payment of late charge is to
compensate Landlord for Landlord’s processing, administrative and other costs incurred by Landlord as a result of Tenant’s delinquent
payments. Acceptance of such late charges and interest payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord’s right to insist upon timely payments at any time, nor a waiver of any remedies to which Landlord is entitled as a result of
the late payment of Rent.
ARTICLE 4
THE BUILDING
Section 4.01. The Demised Premises is the entire building of approximately twelve thousand (12,000) usable square feet, which
the Tenant acknowledges leasing as the Demised Premises.
ARTICLE 5
USE
Section 5.01. The Demised Premises may be used for, subject to the terms and conditions of this Lease, the operation of an adult
day care facility or similar purpose (the “Permitted Uses”), unless Landlord shall give Tenant prior written consent for a different use,
which consent will not be unreasonably withheld, conditioned or unduly delayed. Tenant shall be entitled to use the entire parking lot at
the Building currently existing on the property and common areas of the Building, if any, during the Term of the Lease. Tenant shall be
permitted to park their clients/patients shuttle vans on site and overnight.
ARTICLE 6
QUIET ENJOYMENT
Section 6.01. The Landlord covenants that if, and so long as, the Tenant pays the Basic Rent, and any Additional Rent as herein
provided, and performs the material covenants hereof, the Landlord shall do nothing to affect the Tenant's right to peaceably and quietly
have, hold and enjoy the Demised Premises for the Term herein mentioned, subject to the provisions of this Lease and to any mortgage or
deed of trust to which this Lease shall be subordinate.
ARTICLE 7
TRIPLE NET LEASE
Section 7.01. Except as may be provided for otherwise herein, Landlord and Tenant agree that this Lease is and shall be deemed
to be a “Triple-Net” Lease and that, accordingly, Tenant shall pay as “Additional Rent,” all taxes, assessments and other governmental
charges, sewer, water, electric, telephone and other public utility charges; premiums on all insurance policies; all licensing fees and
2
related governmental charges; and all other expenses and charges of which shall be levied, assessed, charged or imposed upon or with
respect to, or be incurred in connection with, the ownership, possession, use, occupancy, operation, maintenance, repair, improvement or
alteration of the Premises. It is the purpose and intent of both Landlord and Tenant that the rent payable in accordance with this Lease
shall be absolutely net to Landlord at all times during the term of this Lease or any renewal thereof, and that all costs, expenses, and
obligations of whatever kind relating to the Premises, including repair and maintenance of the Premises, or the operation thereof arising or
becoming due during the term of this Lease shall be paid by Tenant, except as otherwise stated herein to be the obligations of Landlord.
Tenant shall and does hereby indemnify and save harmless Landlord from and against any and all loss, damage, liability, cost and expense
arising directly or indirectly out of any failure by Tenant to make any payment required to be made by Tenant in accordance herewith.
Notwithstanding anything to the contrary contained in this Lease, Landlord, at Landlord’s sole cost and expense, shall be responsible for
all costs and expenses which are deemed capital improvements or expenditures and the items that are Landlord’s responsibility under
Section 9.02 of this Lease. “Capital improvements or expenditures” are defined as those costs or expenses that are related to the general
structural integrity of the Premises including the exterior walls, roof, floor, foundation, HVAC, Building systems, and structural steel and
components (both interior and exterior).
Section 7.02. Notwithstanding anything to the contrary contained in this Lease (including, but not limited to Section 7.01),
Tenant shall not be responsible for: (a) Payment of principal and interest or other finance charges made on any debt and rental payments
made under any ground or underlying lease or leases, (b) the cost of repairs or other work to the extent Landlord is reimbursed by
insurance or condemnation proceeds, (c) costs incurred in connection with the sale, financing or refinancing of the Building, (d) Costs
incurred by Landlord for any trustee’s fees, entity creation or organizational expenses and accounting fees except accounting fees relating
to the ownership and operation of the Building, (e) Costs incurred in connection with the original construction of the Building and costs of
repairing, replacing or otherwise correcting defects or deficiencies in the design, construction or components of the improvements
comprising the Building (Landlord hereby agreeing to promptly repair and correct all such defects, latent or otherwise, and deficiencies, at
Landlord’s sole cost and expense, including defects and/or deficiencies in the Building and/or the design or construction of the same
and/or the materials, fixtures, equipment and the like relating thereto but excluding any defects or deficiencies in installations made, or
work performed, by Tenant, which shall be the sole responsibility of Tenant to correct), (f) Costs incurred in connection with the
investigation, removal, remediation or clean-up of Hazardous Substances from the Building or the land on which the Building sits
(including the fees of any environmental consultants), unless such costs were incurred as a result, in whole or in part, of any action or
omission of Tenant, including any agent or invitee of Tenant (g) Costs incurred in connection with the sales, mortgaging, selling or
change of ownership of the Building, the land on which the Building sits or any part thereof, including brokerage commissions,
consultants’, attorneys’ and accountants’ fees, closing costs, title insurance premiums, transfer taxes and interest charges, (h) Costs, fines,
interest, penalties, legal fees or costs of litigation incurred due to the late payment of taxes, utility bills and other costs incurred by
Landlord’s failure to make such payments when due, (i) Landlord’s general corporate overhead and general and administrative expenses,
(j) management fees, (k) Advertising and promotional costs associated with the leasing of the Building and the costs of signs in or on the
Property identifying the owners of the Property, (l) Any "tap fees" or one-time lump sum sewer or water connection fees for the Building
payable in connection with the original construction of the Building, (m) Costs incurred for any item to the extent covered by a
manufacturer’s, materialman’s, vendor’s or contractor’s warranty and paid by such manufacturer, materialman, vendor or contractor
(Landlord shall pursue a breach of warranty claim for items covered by a warranty unless Landlord determines in its reasonable discretion
that such action would not be in the best interest of the tenants in the Building), (n) Non-cash items such as deductions for depreciation
and amortization of the Building and the Building equipment, (o) Reserves for maintenance, repairs and replacements or any other
purpose, (p) Development fees, impact fees and similar charges, (q) Wages, salaries, fees, and fringe benefits paid to administrative or
executive personnel or officers or partners of Landlord not having direct day to day responsibility for operating or providing services to
the Building or any portion thereof, (r) Any and all deductibles and retentions on any insurance maintained by Landlord, (s) Any capital
expenditures whatsoever or any cost of a capital nature, including the costs of any capital improvements, alterations or replacements, as
determined in accordance with generally accepted accounting principles, consistently applied.
ARTICLE 8
COVENANTS OF TENANT
Section 8.01. Commencing with and during the Term of this Lease, the Tenant hereby covenants and agrees as follows:
3
(A) Utilities Paid by Tenant. Tenant shall cause to have placed in its name to the extent possible all utilities for the Premises but
in any event Tenant shall pay the full cost of all public utility and other charges servicing the Premises.
(B) Taxes Paid by Tenant. Tenant shall pay all taxes, assessments, fees and other governmental charges relating to the Premises,
and any increases in taxes, assessments and/or fees relating thereto, directly to the County Treasurer or other appropriate agency that
become due or owing on following the Commencement Date.
(C) Insurance. It is the intent of the parties that all risk of loss for the Premises be shifted to insurance to the maximum extent
practicable, and that Tenant shall be responsible for such insurance. Accordingly, unless Landlord otherwise agrees in its sole discretion,
Tenant shall maintain, or cause to be maintained, insurance as enumerated below. The premiums for such insurance shall be paid by
Tenant.
(i) Tenant shall obtain and maintain during the term of this Lease, fire and extended coverage insurance, insuring
against all reasonable perils and liabilities, for one hundred percent (100%) of the replacement value of the Premises.
(ii) Tenant shall obtain and maintain during the term of this Lease general public liability insurance against the claims
for personal injury, death, or property damage occurring in, on or about the Premises with policy limits for each occurrence (personal
injury and property damage), of not less than Two Million Dollars ($2,000,000.00).
(iii) Tenant shall further maintain property insurance on all of the personal property and trade fixtures leased hereunder
and any other personal property belonging to Tenant. Any personal property, goods, inventory, or equipment on or about t he Premises
shall be kept at the risk of Tenant only, and Landlord shall not be liable to Tenant for any damage to any personal property, goods,
inventory, or equipment or to the Premises, and Tenant hereby waives all causes or rights of recovery against Landlord, for any loss to
personal property or to consequential loss arising therefrom caused by fire or other casualty.
(iv) All insurance policies required to be carried by Tenant under this Lease shall: (i) name Landlord, and any other
reasonable number of parties designated by Landlord as additional insureds; (ii) as to liability coverages, be written on an “occurrence”
basis; (iii) INTENTIONALLY DELETED; and (iv) contain a provision that no act or omission of Tenant shall affect or limit the
obligation of the insurer to pay the amount of any loss sustained. Tenant shall provide Landlord thirty (30) days’ notice before any
cancellation or change in coverage of Tenant’s insurance policies required to be carried by Tenant under this Lease. Each such policy
shall contain a provision that such policy and the coverage evidenced thereby shall be primary and non−contributing with respect to any
policies carried by Landlord. Tenant shall deliver reasonably satisfactory evidence of such insurance to Landlord on or before the date
Tenant first enters or occupies the Premises, and thereafter at least thirty (30) days before the expiration dates of expiring policies.
Notwithstanding the foregoing, if any such insurance expires without having been renewed by Tenant, Landlord shall have the option,
after Tenant’s receipt of five (5) business days written notice from Landlord as to said failure and Tenant’s subsequent failure to renew or
obtain such insurance, in addition to Landlord’s other remedies to procure such insurance for the account of Tenant, and the reasonable
cost thereof shall be paid to Landlord within ten (10) days written notice. The limits of the insurance required under this Lease shall not
limit Tenant’s liability. Tenant may satisfy its insurance obligations hereunder through blanket and/or excess policies it maintains.
(D) Covenant to Hold Harmless. Tenant hereby indemnifies and agrees to hold harmless Landlord from and against all claims,
losses, liabilities, damages, and expenses (including but not limited to attorneys’ fees) that arise within the Premises or that arise from or
in connection with (i) Tenant’s possession, use, occupation, management, repairs, maintenance or control of the Premises, or any portion
thereof, (ii) any wrongful act or negligence of Tenant, its employees, agents, contractors, licensees, or invitees, or (iii) any violation,
breach, or default of this Agreement by Tenant beyond the expiration of any applicable notice and cure period. Tenant shall, at its own
cost and expense, defend any and all actions which may be brought against Landlord with respect to the foregoing. Tenant shall pay,
satisfy and discharge any and all judgments, orders and decrees which may be recovered against Landlord in connection with the
foregoing. Notwithstanding anything to the contrary contained in this Lease, any obligation of Tenant to indemnify Landlord under this
Lease shall be deemed met if Tenant’s insurance carriers defend Landlord, its agents and employees by insurance carrier’s attorneys
without charge and pay any resulting judgment against Landlord arising out of the events specified in this Lease. Landlord acknowledges
that nothing contained in this Lease shall create, impose, or constitute any liability on the part of Tenant with respect to any casualty or
occurrence due to the wrongful acts, omissions or negligence of Landlord, its agents, servants, contractors, invitees or employees, or with
4
respect to any casualty or occurrence for which Landlord shall be covered by insurance. Landlord further represents that Landlord’s
insurance cost shall not increase as a result of Tenant’s contemplated uses, as set forth in this Lease, and as such, Landlord shall not pass
on any increased costs to Tenant. Landlord shall not be responsible or liable at any time to Tenant, or to those claiming by, through or
under Tenant, for any loss of life, bodily or personal injury, or damage to property or business, or for business interruptio n, that may be
occasioned by or through the wrongful acts or negligence of Tenant or any other sub-tenants of the Premises.
ARTICLE 9
REPAIRS; ALTERATIONS
Section 9.01. Except as may be provided for as Landlord’s obligations herein, the Tenant shall keep the Demised Premises in
good condition and repair, ordinary wear and tear and casualty excepted. The Tenant shall keep the Demised Premises and all parts
thereof in a clean and sanitary condition and free from trash and physical waste.
(A) Tenant will provide, at Tenant's sole cost and expense, janitorial services and supplies for the Demised Premises using a
cleaning contractor of its choice.
(B) Except to the extent Landlord is obligated to undertake repairs as provided in this Lease, upon completion of Landlord’s
Work (if any), Tenant shall thereafter be responsible for all maintenance and repair related to the Premises and will keep the Demised
Premises and the fixtures contained therein in good, neat and orderly condition, reasonable wear and tear and casualty excepted and shall
comply with all laws, orders, rules or requirements of any governmental authorities. At the end of the Term, Tenant shall deliver the
Demised Premises to Landlord in good repair and condition, subject to reasonable wear and tear and casualty excepted.
Section 9.02. Landlord, at Landlord’s sole cost and expense, shall make all repairs and replacements to keep in good order and
repair and in compliance with all applicable codes, laws and regulation (a) the sewer and water lines outside the Premises, (b) the
electrical, plumbing, sprinkler systems and HVAC systems, (c) the parking lot, access and egress to and from the Premises, stairs or
ramps leading to the Premises from the parking lot, window encasements, sidewalks and curbs, and (d) the structural supports, inclusive
of the slab, exterior walls, roof and membrane, of the Premises.
Section 9.03. Tenant may perform any future alterations to the Premises (hereinafter “Alterations”) by using a general contractor,
construction manager, subcontractor and engineer of its choice, subject to Landlord’s written approval, which approval shall not be
unreasonably withheld, conditioned, or delayed. Except as may be provided for otherwise herein, prior to commencing any Alterations,
Tenant shall submit plans and specifications to Landlord for approval, which approval shall not be unreasonably withheld, conditioned or
delayed, and if Landlord fails to approve or disapprove within ten (10) business days after submission, the same shall be deemed
approved by Landlord. Landlord shall not charge any supervisory fees or construction chargebacks as related to Tenant’s future
alterations. Notwithstanding the foregoing, for decorative or non-structural Alterations which does not affect any Premises systems or the
structure of the Premises, no consent of Landlord shall be required. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have no restoration obligations related to the Premises.
Section 9.04. Notwithstanding anything to the contrary contained in this Lease, if (i) there shall be an interruption or suspension
of any of the Building’s services, causing an interruption of or material interference with the conduct of Tenant's business in the Premises,
as a result of the performance by Landlord of its repair obligations under this Lease or any affirmative or negligent act of Landlord (or any
of Landlord’s agents, servants, employees, contractors) (the foregoing referred to as an "Interruption"), (ii) such Interruption shall
continue for at least three (3) business days following Tenant’s sending to Landlord written notice from Tenant describing such
Interruption, (iii) such Interruption shall materially impair the operation of Tenant's business in the Premises, or render the Premises fully
or partially inaccessible or untenantable and (iv) such Interruption shall not have been caused, in whole or in part, by reason of (a) an
event which is covered under any Article of the Lease relating to casualty or condemnation, (b) a wrongful act or negligence on the part of
Tenant in default or violation of this Lease or Tenant's obligations hereunder, (c) the negligence of Tenant or Tenant's agents, servants,
employees, contractors or visitors (with respect to visitors, when in the Premises) or (d) force majeure (an Interruption that satisfies all of
the foregoing conditions, a "Material Interruption"), then, as Tenant's sole remedy in connection with such Material Interruption, Tenant
shall be entitled to an abatement of fixed rent and additional rent for the period which shall begin on the fourth (4th) consecutive business
5
day of such Material Interruption and which shall end on the day following the day on which such Material Interruption shall cease.
Should the Material Interruption exceed thirty (30) days, Tenant may terminate this Lease upon written notice to Landlord.
ARTICLE 10
CASUALTY
Section 10.01. If the Demised Premises or the Building is damaged or destroyed by fire, explosion, the elements or otherwise
during the Term so as to render the Demised Premises wholly untenantable or unfit for occupancy, or should the Demised Premises be so
badly injured that the same cannot be repaired within ninety (90) days from the happening of such injury, then, and in such case, the Term
hereby created shall, at the option of either the Landlord or the Tenant, terminate upon the giving of a notice of termination. If a notice of
termination is given, the Term of this Lease shall terminate effective as of the date of such damage or destruction, and the Tenant shall
immediately surrender the Demised Premises and all the Tenant's interest therein to the Landlord, and pay Term Basic Rent and
Additional Rent up to the time of such damage or destruction (but not beyond), and the Landlord may re-enter and repossess the Demised
Premises discharged from this Lease and may remove all parties therefrom.
Section 10.02. Should the Demised Premises be rendered untenantable and unfit for occupancy, but yet be repairable within
ninety (90) days from the happening of said injury, or if the Demised Premises cannot be repaired within ninety (90) days from the
happening of such injury but Landlord and Tenant choose not to terminate the Lease in accordance with Section 10.01, the Landlord will,
enter and repair the same with reasonable speed, and the Term Basic Rent and Additional Rent shall not accrue from the date of said
injury and while repairs are being made, but shall recommence immediately after such repairs shall be completed provided Tenant is
permitted by the appropriate State of Ohio authorities to do so. For purposes hereof, completion shall mean that all of the work necessary
to repair the Premises shall be completed, except for minor items of detail, finish and correction, the non-completion of which shall not
interfere with Tenant's use and occupancy of the Premises for the purposes permitted under this Lease.
Section 10.03. If the Demised Premises shall be so slightly injured as not to impact the licensure status of the Premises as unfit
for occupancy, the Landlord shall repair the same with reasonable promptness and the Term Basic Rent and Additional Rent accrued and
accruing shall not cease or terminate. The Tenant shall immediately notify the Landlord in case of fire or other damage to the Demised
Premises. Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the option to cancel this Lease, in the
event (i) the casualty occurs during the last eighteen (18) months of the Lease Term and/or (ii) the casualty occurs at any time and the
restoration will take over ninety (90) days from the date of any fire or other casualty, in which case of any of such events, the Basic Rent
and Additional Rent shall abate as of the date said damage occurred.
ARTICLE 11
CONDEMNATION
Section 11.01. If, during the Term, twenty-five percent (25%) or more of the area of the Demised Premises shall be taken under
any power of eminent domain or condemnation or if, by reason of such acquisition or condemnation, Tenant no longer has reasonable
means of access to the Premises, then, at the option of the Tenant, to be exercised in writing within thirty (30) days of the taking of title
thereto, this Lease shall expire within thirty (30) days of the date of such notice and the Term Basic Rent and Additional Rent herein
reserved shall be apportioned as of said date. However, if the Tenant does not exercise the aforementioned option, this Lease shall not
expire. No part of any award shall belong to the Tenant except that nothing contained herein is intended to affect or limit t he Tenant's
claim for fixtures or other improvements owned by Tenant provided the same does not diminish the Landlord's award. It is expressly
understood and agreed that the provisions of this Article 11 shall not be applicable to any condemnation or taking for governmental
occupancy for a limited period of time.
ARTICLE 12
COMPLIANCE WITH LAWS, ETC.
Section 12.01. Except as may be provided for otherwise in this Lease and the Permitted Uses, the Tenant shall not do or permit
anything to be done in the Demised Premises which shall constitute a public nuisance or which will conflict with the regulations of the
Fire Department or with any insurance policy upon said improvements or any part thereof.
6
Section 12.02. The Tenant shall, at its own expense, obtain all necessary and operating permits and comply with all requirements
of law and with all ordinance or orders, rules and regulations of any State, Municipal or other public authority relating to Tenant’s use of
the Demised Premises.
Section 12.03. Tenant acknowledges the existence of environmental laws, rules and regulations. Tenant shall comply with all
Environmental Laws including, but not limited to, furnishing Landlord and the appropriate governmental agencies with information
required in connection with Environmental Laws; preparing and implementing cleanup or remediation plans resulting from or required as
a result of Tenant's use or occupation of the Demised Premises. At Landlord’s reasonable discretion, Tenant shall grant Landlord access
to the Demised Premises to supervise Tenant's performance of any such environmental work.
During the Term of this Lease, Tenant shall not store, manufacture, dispose of, discharge, mine, generate, refine,
treat, transport or otherwise permit Hazardous Materials to be present on or about the Demised Premises, except in such amounts and as
required to carry on the Permitted Use and in accordance with and in compliance with all Environmental Laws.
Landlord represents and warrants (a) the Premises shall be in compliance with all applicable law, regulations, and
state, local, and federal codes of any governmental or quasi-governmental body, agency or other entity (including, without limitation, the
ADA and all sprinkler/life safety laws and regulations) as of the Commencement Date, except to the extent any non-compliance is
caused by Tenant, (b) there are no structural or other defects in the Premises, which would prevent or interfere with Tenant’s intended
alterations or use of the Premises, (c) to the best of Landlord’s knowledge, the Premises and Building are free of asbestos, asbestos
containing material, mold, underground storage tanks and other hazardous materials or substances (“Hazardous Materials”) as defined by
state law in which the Premises is located and applicable federal law. If, during construction of any initial or future improvements,
Tenant discovers any structural defects, conditions unfit to accept the tenant improvements pursuant to Tenant’s approved plans,
Hazardous Materials or violations of Laws (including open permits and whether or not of record), or any condition which is a breach of
any representation of Landlord set forth in this Lease, Tenant, at Tenant’s option may either (i) cure such condition at Landlord’s cost
and expense (following five (5) business days’ notice to Landlord), or (ii) cease work at the Premises and require Landlord at its sole
cost and expense to cure such condition. In either event, the Rent Commencement Date shall be extended one (1) day for each day that
Tenant is delayed in performing its work due to such condition. Landlord shall accordingly indemnify to Tenant for all costs and
expenses related to any cleanup, remediation, or other cost for all Hazardous Materials which existed prior to the Commencement Date
or subsequent to the Commencement Date if not introduced to the Project, the Building and/or the Premises by or thru Tenant.
ARTICLE 13
SUBORDINATION
Section 13.01. This Lease and any option contained herein is and shall be subject and subordinate to all present and future first
mortgages or first deeds of trust or ground leases affecting the Demised Premises, provided Tenant shall have previously received a
commercially reasonable subordination and non-disturbance agreement reasonably acceptable to Tenant (an “SNDA”) from Landlord
under any of the foregoing. The Tenant shall, at no cost to Tenant, execute any instrument which may reasonably be deemed necessary or
desirable by the Landlord to further effect or to evidence the subordination of this Lease to any such mortgage or deed of trust. The
Landlord may assign this Lease to any such mortgagee or trust deed holder in connection with any such lien superior to this Lease, and
the Tenant shall execute, at no expense to the Tenant, any instrument which may be necessary or desirable by the Landlord or the holder
of said lien in connection with said assignment. Any expense incurred in the preparing, executing or recording of such assignment to any
such holder shall be without expense or cost to the Tenant. The Tenant further agrees, within ten (10) business days of Landlord's written
request, to, at no cost to Tenant, certify by written instrument duly executed and acknowledged to any mortgagee, trust deed holder or
purchaser, or any proposed mortgage lender, trust deed holder or purchaser, that this Lease is in full force and effect, or i f not, in what
respect it is not, that this Lease has not been modified, or the extent to which it has been modified, that there are no existing defaults
hereunder to the best of the knowledge of the party so certifying, or specifying the defaults, if any. Any such certification shall be without
prejudice as between the Landlord and the Tenant, it being agreed that any document required hereunder shall not be used in any litigation
between the Landlord and the Tenant. Landlord shall provide Tenant with an SNDA from existing holders of mortgages, deeds of trust or
ground leases within thirty (30) days of the date of this Lease.
7
ARTICLE 14
DEFAULTS, REMEDIES
Section 14.01. Each of the following shall constitute an “Event of Default”:
(A) The Tenant shall default in making any payment of Basic Rent or any Additional Rent as and when the same shall
become due and payable, and such default shall continue for a period of ten (10) days after Tenant’s receipt of written notice from the
Landlord that such payment is due and unpaid; or
(B) The Tenant shall default in the performance of or compliance with any of the other covenants, agreements, terms or
conditions of this Lease to be performed by the Tenant (other than any default curable by payment of money), and such default shall
continue for a period of thirty (30) days after Tenant’s receipt of written notice thereof from the Landlord to the Tenant, or, in the case of
a default which cannot with due diligence be cured within thirty (30) days, the Tenant shall fail to proceed promptly (except for
unavoidable delays) after the receipt of such notice and with all due diligence to cure such default and thereafter to prosecute the curing
thereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within thirty (30)
days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the
same to be cured with all due diligence); or
(C) The Tenant or any guarantor of this Lease (if any) shall make an assignment for the benefit of creditors or file a
voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Tenant or of all or any substantial part of its
properties or of all or any part of the Demised Premises; or
(D) If, within sixty (60) days after the filing of an involuntary petition in bankruptcy against the Tenant or any guarantor
of this Lease, or the commencement of any proceeding against the Tenant or such guarantor seeking any reorganization, composition,
readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the
appointment, without the consent or acquiescence of the Tenant or such guarantor, of any trustee, receiver or liquidator of the Tenant or
such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or
otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty
(60) days after the taking possession, without the consent or acquiescence of the Tenant or such guarantor, of the property of the Tenant,
or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of the Tenant
or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise;
(E) If the Demised Premises shall be abandoned by the Tenant for a period of thirty (30) consecutive days without the
payment of Rent, then, and in any such event, and during the continuance thereof, the Landlord may, at its option, then or thereafter while
any such Event of Default shall continue and notwithstanding the fact that the Landlord may have any other remedy hereunder or at law
or in equity, by notice to the Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall
terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon t he date
specified in such notice with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the
expiration of the Term of this Lease, and all rights of the Tenant hereunder shall expire and terminate, but the Tenant shall remain liable
as hereinafter provided. Additionally, Tenant agrees to pay, as Additional Rent, all reasonable attorneys' fees and other expenses incurred
by the Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this
Lease;
(F) If Tenant conducts business other than for the Permitted Use;
(G) If Tenant shall falsify any report required to be furnished to Landlord under this Lease; or
(H) If Tenant shall fail or refuse to keep and to perform any of the other covenants, conditions, stipulations or
8
agreements herein contained for more than thirty (30) days after written notice of such default shall have been mailed (or such additional
reasonable time as Tenant may require if cure is not practicable with such thirty (30) day period and Tenant has commenced the cure and
is diligently continuing to completion). Notwithstanding the foregoing, if Tenant fails to pay for ten (10) days after it becomes due an
installment of Basic Rent or any Additional Rent for three (3) or more consecutive months during any twelve (12) month period, then,
even if such failures or defaults have been cured by Tenant, any further similar failure or default by Tenant during the twelve (12) month
period shall be deemed an Event of Default hereunder without the ability of cure by Tenant and Landlord shall not be obligated to send
Tenant any notice of default.
Section 14.02. Subject to the terms and conditions of this Lease, upon the occurrence of any “Event of Default,” Landlord in
addition to any other rights or remedies it may have under this Lease, in law or in equity, may:
(A) Lease Termination. Elect to terminate this Lease and the tenancy created hereby by giving written notice to Tenant,
which termination shall be effective as of the date of such notice or any later date therein specified by Landlord in such notice (and on the
effective date of such termination, all obligations and liabilities of Landlord hereunder shall terminate), and, without further notice,
Landlord shall have the right to repossess the Premises, by summary proceedings or otherwise, and remove Tenant and all other persons
and property from the Premises, without liability for damage to, and without obligation to store, such property. After such termination,
Landlord may change the locks. Landlord shall be entitled to recover all reasonable loss and damage Landlord may suffer by reason of
such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, including without limitation, the
following (without duplication by any element of damages): (i) accrued Rent to the effective date of termination together with late
charges and interest thereon as specified within this Lease from the date owed through the date paid; plus (ii) the cost of recovering the
Premises, including without limitation
Preview
ELECTRONICALLY-FILED WOOD COUNTY COMMON PLEAS COURT Wednesday, April 03, 2024 2:51:07 PM 2024CV0222 - Mary "Molly" L Mack DOUGLAS F. CUBBERLEY CLERK OF COURTS WOOD COUNTY OHIO IN THE COURT OF COMMON PLEAS WOOD COUNTY, OHIO W. HORTON ENTERPRISES LLC : 4393 Blacks Road SW : Case No. Hebron, Ohio 43025 : : Judge Plaintiff, : : v. : : ACTIVE DAY OH, INC. : c/o CT Corporation System : 4400 Easton Commons Way, Suite 125 : Columbus, Ohio 43219 : : Defendant. : COMPLAINT ______________________________________________________________________________ Now comes Plaintiff W. Horton Enterprises LLC (“Horton”) and for its complaint against Defendant Active Day OH, Inc. (“Active Day”) states and avers as follows: I. PARTIES, JURISDICTION, AND VENUE 1. Horton is an Ohio limited liability company with its principal place of business in Licking County, Ohio. 2. Active Day is a Delaware corporation licensed to operate in the State of Ohio. 3. This Court has jurisdiction as the actions and transactions giving rise to this complaint occurred in Wood County, Ohio and the contracts underlying this action affirm the applicability of Ohio law and suitability of jurisdiction in Ohio. 1 4. Venue is proper in Wood County, Ohio pursuant to Civ.R. 3(C)(3) & (5). II. FACTS COMMON TO ALL CLAIMS 5. A true and accurate copy of a lease agreement between Horton and Active Day for the premises located at 741 Commerce Drive, Perrysburg, Ohio 43551 (“Perrysburg Property”) is attached as Exhibit A (“Perrysburg Lease”). 6. The Perrysburg Lease was validly executed by, and mutually enforceable between, Horton and Active Day. 7. The Perrysburg Property is a uniquely designed property suited primarily to the purpose of providing adult day services. 8. Prior to entering into the Perrysburg Lease, Horton was leasing the Perrysburg Property to a different company who was providing adult day services at the location. 9. Horton entered into the Perrysburg Lease with Active Day in conjunction with Active Day acquiring the business previously providing adult day services at those properties, including the Perrysburg Property. 10. Horton has performed all conditions precedent to bringing this action. 11. The lease term of the Perrysburg Lease was a period of 5 years commencing on October 24, 2019 and ending on October 31, 2024. 12. The basic rent schedule for the Perrysburg Lease (“Basic Rent”) was as follows: a. Year 1: $170,000.00 payable as $14,166.67 per month; b. Year 2: $173,400.00 payable as $14,450.00 per month; c. Year 3: $176,868.00 payable as $14,739.00 per month; d. Year 4: $180,405.36 payable as $15,033.78 per month; e. Year 5: $184,013.47 payable as $15,337.46 per month. 2 13. All Basic Rent payments under the Perrysburg Lease were to be paid in advance and due on the first day of each calendar month. 14. The Perrysburg Lease is a triple-net lease wherein Active Day agreed to pay additional rent (“Additional Rent”) as described in Article 7 of the Perrysburg Lease. 15. Under the Perrysburg Lease, Horton is entitled to receive interest at 12% per annum on all rent that is not paid within 15 days following the due date. 16. Under the Perrysburg Lease, Horton is entitled to receive a 5% late charge on all rent payments that are paid 10 or more days after the due date. 17. On or about October 24, 2019, Active Day commenced its occupancy of the Perrysburg Property. 18. On or about June 9, 2023, Active Day vacated the Perrysburg Property. 19. On May 9, 2023, Active Day provided notice of its default (“Default Notice”) to Horton. 20. A true and accurate copy of the Default Notice is attached as Exhibit B. 21. On May 26, 2023, Horton responded to the Default Notice outlining its options under the Perrysburg Lease. 22. A true and accurate copy of Horton’s response to the Default Notice is attached as Exhibit C. 23. Active Day has not paid any Basic Rent under the Perrysburg Lease since April 2023. 24. Active Day has not paid any Additional Rent under the Perrysburg Lease since April 2023. 25. The Perrysburg Lease provides, under Section 14.02, Horton the right to recover reasonable costs and expenses incurred for any repairs, maintenance, changes, alterations, and improvements to the Premises to prevent damage, advertising costs, brokerage commissions, and reasonable attorney fees. 3 III. LEGAL CLAIMS COUNT ONE: Breach of Contract 26. Horton incorporates the allegations above as if rewritten here. 27. The Perrysburg Lease is a valid and binding written contract between Horton and Active Day. 28. Active Day breached the Perrysburg Lease by failing to make payment of Basic Rent and Additional Rent when due. 29. Horton has fulfilled all conditions precedent to pursuing damages relating to Active Day’s failure to pay Basic Rent and Additional Rent when due, but Active Day has failed to cure said defaults. 30. Active Day breached the Perrysburg Lease by failing to make payment of Basic Rent and any Additional Rent when due for a period greater than 10 days after notice of the same being due. 31. Horton has fulfilled all conditions precedent to pursuing damages relating to Active Day’s nonpayment of rent due and subsequent abandonment of the Perrysburg Property, but Active Day has failed to cure said default. 32. On May 9, 2023, Active Day provided notice of its default. 33. Active Day operated in bad-faith, or in a vexatious, wanton, obdurate, or malicious manner when it breached the Perrysburg Lease. 34. Horton is not in breach of the Perrysburg Lease. 35. As a result of the breach by Active Day, Horton has been damaged in excess of $25,000 comprised of Basic Rent, Additional Rent (including reasonable attorney fees and expenses per Article 14 of the Perrysburg Lease), interest at the contract rate of 12% per annum and 4 late charges to the fullest extent permitted under Section 14.02 of the Perrysburg Lease and Ohio law. IV. PRAYER FOR RELIEF Horton respectfully requests this Court grants the following relief: a. Judgment in its favor and against Active Day under the Perrysburg Lease and awarding all available legal and equitable remedies including attorney fees and costs in bringing and prosecuting this action plus pre-judgment interest from June 9, 2023, at the contract rate of 12% per annum and post judgment interest at the contract rate of 12% per annum. b. Any other legal remedy and equitable relief this Court deems just. Respectfully submitted, /s/ Andrew C. Clark Andrew C. Clark (0083519) Colleen R. Vance (0099665) Samantha M. Lewis (0100975) Onda LaBuhn Ernsberger & Boggs Co., LPA acc@ondalabuhn.com crv@ondalabuhn.com sml@ondalabuhn.com 35 North Fourth Street, Suite 100 Columbus, Ohio 43215-2511 Phone: (614) 716-0500 Fax: (614) 716-0511 Co-Counsel for Plaintiff W. Horton Enterprises LLC and /s/ Shamus B. Cassidy Shamus B. Cassidy (0083566) Cassidy Law, LTD shamus@cassidylawltd.com 7650 Rivers Edge Drive, Suite 101 Columbus, Ohio 43235 Phone: (614) 888-4911 Fax: (614) 888-4402 5 WK 2FWREHU A Tenant shall pay to the Landlord basic rent in the amount of $170,000.00 annually, which shall be payable as $14,166.67 per month (hereinafter referred to as “Basic Rent”). Upon the first anniversary of the Rent Commencement Date, and for each and every year thereafter throughout the Term of the Lease, including any Renewal Term as provided for under Section 24.01 of this Lease, the annual Basic Rent amount shall increase two percent (2%) from the most recent Basic Rent amount. Section 3.02. The Basic Rent shall be payable in advance on the first day of each calendar month during the Term in monthly installments as set forth above commencing on the Rent Commencement Date, except that a proportionately lesser sum may be paid for the first and last months of the Term of this Lease if the Term commences on a date other than the first day of the month, in accordance with the provisions of this Lease hereinafter set forth. The Basic Rent and Additional Rent, as hereinafter defined and at times referred to herein together with Basic Rent as “Rent”, shall be payable at the office of the Landlord, at the address above set forth, or as may otherwise be directed by notice from the Landlord to the Tenant. Section 3.03. Late Charges and Interest. Any Rent not paid within fifteen days from the due date shall bear interest at twelve percent (12%) per annum until payment is received by Landlord. In addition, Tenant shall pay Landlord a late charge equal to five percent (5%) of any amount ten (10) days or more overdue to compensate Landlord for the extra costs Landlord will incur as a result of such late payment. The parties agree that: (i) it would be impractical and extremely difficult to fix the actual damage that Landlord will suffer on account of Tenant’s late payment; (ii) such interest and late charges represent a fair and reasonable estimate of the detriment that Landlord will suffer by reason of late payment by Tenant; and (iii) the payment of interest and late charges are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord’s money by Tenant, while the payment of late charge is to compensate Landlord for Landlord’s processing, administrative and other costs incurred by Landlord as a result of Tenant’s delinquent payments. Acceptance of such late charges and interest payments shall not be deemed consent by Landlord to late payments, nor a waiver of Landlord’s right to insist upon timely payments at any time, nor a waiver of any remedies to which Landlord is entitled as a result of the late payment of Rent. ARTICLE 4 THE BUILDING Section 4.01. The Demised Premises is the entire building of approximately twelve thousand (12,000) usable square feet, which the Tenant acknowledges leasing as the Demised Premises. ARTICLE 5 USE Section 5.01. The Demised Premises may be used for, subject to the terms and conditions of this Lease, the operation of an adult day care facility or similar purpose (the “Permitted Uses”), unless Landlord shall give Tenant prior written consent for a different use, which consent will not be unreasonably withheld, conditioned or unduly delayed. Tenant shall be entitled to use the entire parking lot at the Building currently existing on the property and common areas of the Building, if any, during the Term of the Lease. Tenant shall be permitted to park their clients/patients shuttle vans on site and overnight. ARTICLE 6 QUIET ENJOYMENT Section 6.01. The Landlord covenants that if, and so long as, the Tenant pays the Basic Rent, and any Additional Rent as herein provided, and performs the material covenants hereof, the Landlord shall do nothing to affect the Tenant's right to peaceably and quietly have, hold and enjoy the Demised Premises for the Term herein mentioned, subject to the provisions of this Lease and to any mortgage or deed of trust to which this Lease shall be subordinate. ARTICLE 7 TRIPLE NET LEASE Section 7.01. Except as may be provided for otherwise herein, Landlord and Tenant agree that this Lease is and shall be deemed to be a “Triple-Net” Lease and that, accordingly, Tenant shall pay as “Additional Rent,” all taxes, assessments and other governmental charges, sewer, water, electric, telephone and other public utility charges; premiums on all insurance policies; all licensing fees and 2 related governmental charges; and all other expenses and charges of which shall be levied, assessed, charged or imposed upon or with respect to, or be incurred in connection with, the ownership, possession, use, occupancy, operation, maintenance, repair, improvement or alteration of the Premises. It is the purpose and intent of both Landlord and Tenant that the rent payable in accordance with this Lease shall be absolutely net to Landlord at all times during the term of this Lease or any renewal thereof, and that all costs, expenses, and obligations of whatever kind relating to the Premises, including repair and maintenance of the Premises, or the operation thereof arising or becoming due during the term of this Lease shall be paid by Tenant, except as otherwise stated herein to be the obligations of Landlord. Tenant shall and does hereby indemnify and save harmless Landlord from and against any and all loss, damage, liability, cost and expense arising directly or indirectly out of any failure by Tenant to make any payment required to be made by Tenant in accordance herewith. Notwithstanding anything to the contrary contained in this Lease, Landlord, at Landlord’s sole cost and expense, shall be responsible for all costs and expenses which are deemed capital improvements or expenditures and the items that are Landlord’s responsibility under Section 9.02 of this Lease. “Capital improvements or expenditures” are defined as those costs or expenses that are related to the general structural integrity of the Premises including the exterior walls, roof, floor, foundation, HVAC, Building systems, and structural steel and components (both interior and exterior). Section 7.02. Notwithstanding anything to the contrary contained in this Lease (including, but not limited to Section 7.01), Tenant shall not be responsible for: (a) Payment of principal and interest or other finance charges made on any debt and rental payments made under any ground or underlying lease or leases, (b) the cost of repairs or other work to the extent Landlord is reimbursed by insurance or condemnation proceeds, (c) costs incurred in connection with the sale, financing or refinancing of the Building, (d) Costs incurred by Landlord for any trustee’s fees, entity creation or organizational expenses and accounting fees except accounting fees relating to the ownership and operation of the Building, (e) Costs incurred in connection with the original construction of the Building and costs of repairing, replacing or otherwise correcting defects or deficiencies in the design, construction or components of the improvements comprising the Building (Landlord hereby agreeing to promptly repair and correct all such defects, latent or otherwise, and deficiencies, at Landlord’s sole cost and expense, including defects and/or deficiencies in the Building and/or the design or construction of the same and/or the materials, fixtures, equipment and the like relating thereto but excluding any defects or deficiencies in installations made, or work performed, by Tenant, which shall be the sole responsibility of Tenant to correct), (f) Costs incurred in connection with the investigation, removal, remediation or clean-up of Hazardous Substances from the Building or the land on which the Building sits (including the fees of any environmental consultants), unless such costs were incurred as a result, in whole or in part, of any action or omission of Tenant, including any agent or invitee of Tenant (g) Costs incurred in connection with the sales, mortgaging, selling or change of ownership of the Building, the land on which the Building sits or any part thereof, including brokerage commissions, consultants’, attorneys’ and accountants’ fees, closing costs, title insurance premiums, transfer taxes and interest charges, (h) Costs, fines, interest, penalties, legal fees or costs of litigation incurred due to the late payment of taxes, utility bills and other costs incurred by Landlord’s failure to make such payments when due, (i) Landlord’s general corporate overhead and general and administrative expenses, (j) management fees, (k) Advertising and promotional costs associated with the leasing of the Building and the costs of signs in or on the Property identifying the owners of the Property, (l) Any "tap fees" or one-time lump sum sewer or water connection fees for the Building payable in connection with the original construction of the Building, (m) Costs incurred for any item to the extent covered by a manufacturer’s, materialman’s, vendor’s or contractor’s warranty and paid by such manufacturer, materialman, vendor or contractor (Landlord shall pursue a breach of warranty claim for items covered by a warranty unless Landlord determines in its reasonable discretion that such action would not be in the best interest of the tenants in the Building), (n) Non-cash items such as deductions for depreciation and amortization of the Building and the Building equipment, (o) Reserves for maintenance, repairs and replacements or any other purpose, (p) Development fees, impact fees and similar charges, (q) Wages, salaries, fees, and fringe benefits paid to administrative or executive personnel or officers or partners of Landlord not having direct day to day responsibility for operating or providing services to the Building or any portion thereof, (r) Any and all deductibles and retentions on any insurance maintained by Landlord, (s) Any capital expenditures whatsoever or any cost of a capital nature, including the costs of any capital improvements, alterations or replacements, as determined in accordance with generally accepted accounting principles, consistently applied. ARTICLE 8 COVENANTS OF TENANT Section 8.01. Commencing with and during the Term of this Lease, the Tenant hereby covenants and agrees as follows: 3 (A) Utilities Paid by Tenant. Tenant shall cause to have placed in its name to the extent possible all utilities for the Premises but in any event Tenant shall pay the full cost of all public utility and other charges servicing the Premises. (B) Taxes Paid by Tenant. Tenant shall pay all taxes, assessments, fees and other governmental charges relating to the Premises, and any increases in taxes, assessments and/or fees relating thereto, directly to the County Treasurer or other appropriate agency that become due or owing on following the Commencement Date. (C) Insurance. It is the intent of the parties that all risk of loss for the Premises be shifted to insurance to the maximum extent practicable, and that Tenant shall be responsible for such insurance. Accordingly, unless Landlord otherwise agrees in its sole discretion, Tenant shall maintain, or cause to be maintained, insurance as enumerated below. The premiums for such insurance shall be paid by Tenant. (i) Tenant shall obtain and maintain during the term of this Lease, fire and extended coverage insurance, insuring against all reasonable perils and liabilities, for one hundred percent (100%) of the replacement value of the Premises. (ii) Tenant shall obtain and maintain during the term of this Lease general public liability insurance against the claims for personal injury, death, or property damage occurring in, on or about the Premises with policy limits for each occurrence (personal injury and property damage), of not less than Two Million Dollars ($2,000,000.00). (iii) Tenant shall further maintain property insurance on all of the personal property and trade fixtures leased hereunder and any other personal property belonging to Tenant. Any personal property, goods, inventory, or equipment on or about t he Premises shall be kept at the risk of Tenant only, and Landlord shall not be liable to Tenant for any damage to any personal property, goods, inventory, or equipment or to the Premises, and Tenant hereby waives all causes or rights of recovery against Landlord, for any loss to personal property or to consequential loss arising therefrom caused by fire or other casualty. (iv) All insurance policies required to be carried by Tenant under this Lease shall: (i) name Landlord, and any other reasonable number of parties designated by Landlord as additional insureds; (ii) as to liability coverages, be written on an “occurrence” basis; (iii) INTENTIONALLY DELETED; and (iv) contain a provision that no act or omission of Tenant shall affect or limit the obligation of the insurer to pay the amount of any loss sustained. Tenant shall provide Landlord thirty (30) days’ notice before any cancellation or change in coverage of Tenant’s insurance policies required to be carried by Tenant under this Lease. Each such policy shall contain a provision that such policy and the coverage evidenced thereby shall be primary and non−contributing with respect to any policies carried by Landlord. Tenant shall deliver reasonably satisfactory evidence of such insurance to Landlord on or before the date Tenant first enters or occupies the Premises, and thereafter at least thirty (30) days before the expiration dates of expiring policies. Notwithstanding the foregoing, if any such insurance expires without having been renewed by Tenant, Landlord shall have the option, after Tenant’s receipt of five (5) business days written notice from Landlord as to said failure and Tenant’s subsequent failure to renew or obtain such insurance, in addition to Landlord’s other remedies to procure such insurance for the account of Tenant, and the reasonable cost thereof shall be paid to Landlord within ten (10) days written notice. The limits of the insurance required under this Lease shall not limit Tenant’s liability. Tenant may satisfy its insurance obligations hereunder through blanket and/or excess policies it maintains. (D) Covenant to Hold Harmless. Tenant hereby indemnifies and agrees to hold harmless Landlord from and against all claims, losses, liabilities, damages, and expenses (including but not limited to attorneys’ fees) that arise within the Premises or that arise from or in connection with (i) Tenant’s possession, use, occupation, management, repairs, maintenance or control of the Premises, or any portion thereof, (ii) any wrongful act or negligence of Tenant, its employees, agents, contractors, licensees, or invitees, or (iii) any violation, breach, or default of this Agreement by Tenant beyond the expiration of any applicable notice and cure period. Tenant shall, at its own cost and expense, defend any and all actions which may be brought against Landlord with respect to the foregoing. Tenant shall pay, satisfy and discharge any and all judgments, orders and decrees which may be recovered against Landlord in connection with the foregoing. Notwithstanding anything to the contrary contained in this Lease, any obligation of Tenant to indemnify Landlord under this Lease shall be deemed met if Tenant’s insurance carriers defend Landlord, its agents and employees by insurance carrier’s attorneys without charge and pay any resulting judgment against Landlord arising out of the events specified in this Lease. Landlord acknowledges that nothing contained in this Lease shall create, impose, or constitute any liability on the part of Tenant with respect to any casualty or occurrence due to the wrongful acts, omissions or negligence of Landlord, its agents, servants, contractors, invitees or employees, or with 4 respect to any casualty or occurrence for which Landlord shall be covered by insurance. Landlord further represents that Landlord’s insurance cost shall not increase as a result of Tenant’s contemplated uses, as set forth in this Lease, and as such, Landlord shall not pass on any increased costs to Tenant. Landlord shall not be responsible or liable at any time to Tenant, or to those claiming by, through or under Tenant, for any loss of life, bodily or personal injury, or damage to property or business, or for business interruptio n, that may be occasioned by or through the wrongful acts or negligence of Tenant or any other sub-tenants of the Premises. ARTICLE 9 REPAIRS; ALTERATIONS Section 9.01. Except as may be provided for as Landlord’s obligations herein, the Tenant shall keep the Demised Premises in good condition and repair, ordinary wear and tear and casualty excepted. The Tenant shall keep the Demised Premises and all parts thereof in a clean and sanitary condition and free from trash and physical waste. (A) Tenant will provide, at Tenant's sole cost and expense, janitorial services and supplies for the Demised Premises using a cleaning contractor of its choice. (B) Except to the extent Landlord is obligated to undertake repairs as provided in this Lease, upon completion of Landlord’s Work (if any), Tenant shall thereafter be responsible for all maintenance and repair related to the Premises and will keep the Demised Premises and the fixtures contained therein in good, neat and orderly condition, reasonable wear and tear and casualty excepted and shall comply with all laws, orders, rules or requirements of any governmental authorities. At the end of the Term, Tenant shall deliver the Demised Premises to Landlord in good repair and condition, subject to reasonable wear and tear and casualty excepted. Section 9.02. Landlord, at Landlord’s sole cost and expense, shall make all repairs and replacements to keep in good order and repair and in compliance with all applicable codes, laws and regulation (a) the sewer and water lines outside the Premises, (b) the electrical, plumbing, sprinkler systems and HVAC systems, (c) the parking lot, access and egress to and from the Premises, stairs or ramps leading to the Premises from the parking lot, window encasements, sidewalks and curbs, and (d) the structural supports, inclusive of the slab, exterior walls, roof and membrane, of the Premises. Section 9.03. Tenant may perform any future alterations to the Premises (hereinafter “Alterations”) by using a general contractor, construction manager, subcontractor and engineer of its choice, subject to Landlord’s written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. Except as may be provided for otherwise herein, prior to commencing any Alterations, Tenant shall submit plans and specifications to Landlord for approval, which approval shall not be unreasonably withheld, conditioned or delayed, and if Landlord fails to approve or disapprove within ten (10) business days after submission, the same shall be deemed approved by Landlord. Landlord shall not charge any supervisory fees or construction chargebacks as related to Tenant’s future alterations. Notwithstanding the foregoing, for decorative or non-structural Alterations which does not affect any Premises systems or the structure of the Premises, no consent of Landlord shall be required. Notwithstanding anything to the contrary contained in this Lease, Tenant shall have no restoration obligations related to the Premises. Section 9.04. Notwithstanding anything to the contrary contained in this Lease, if (i) there shall be an interruption or suspension of any of the Building’s services, causing an interruption of or material interference with the conduct of Tenant's business in the Premises, as a result of the performance by Landlord of its repair obligations under this Lease or any affirmative or negligent act of Landlord (or any of Landlord’s agents, servants, employees, contractors) (the foregoing referred to as an "Interruption"), (ii) such Interruption shall continue for at least three (3) business days following Tenant’s sending to Landlord written notice from Tenant describing such Interruption, (iii) such Interruption shall materially impair the operation of Tenant's business in the Premises, or render the Premises fully or partially inaccessible or untenantable and (iv) such Interruption shall not have been caused, in whole or in part, by reason of (a) an event which is covered under any Article of the Lease relating to casualty or condemnation, (b) a wrongful act or negligence on the part of Tenant in default or violation of this Lease or Tenant's obligations hereunder, (c) the negligence of Tenant or Tenant's agents, servants, employees, contractors or visitors (with respect to visitors, when in the Premises) or (d) force majeure (an Interruption that satisfies all of the foregoing conditions, a "Material Interruption"), then, as Tenant's sole remedy in connection with such Material Interruption, Tenant shall be entitled to an abatement of fixed rent and additional rent for the period which shall begin on the fourth (4th) consecutive business 5 day of such Material Interruption and which shall end on the day following the day on which such Material Interruption shall cease. Should the Material Interruption exceed thirty (30) days, Tenant may terminate this Lease upon written notice to Landlord. ARTICLE 10 CASUALTY Section 10.01. If the Demised Premises or the Building is damaged or destroyed by fire, explosion, the elements or otherwise during the Term so as to render the Demised Premises wholly untenantable or unfit for occupancy, or should the Demised Premises be so badly injured that the same cannot be repaired within ninety (90) days from the happening of such injury, then, and in such case, the Term hereby created shall, at the option of either the Landlord or the Tenant, terminate upon the giving of a notice of termination. If a notice of termination is given, the Term of this Lease shall terminate effective as of the date of such damage or destruction, and the Tenant shall immediately surrender the Demised Premises and all the Tenant's interest therein to the Landlord, and pay Term Basic Rent and Additional Rent up to the time of such damage or destruction (but not beyond), and the Landlord may re-enter and repossess the Demised Premises discharged from this Lease and may remove all parties therefrom. Section 10.02. Should the Demised Premises be rendered untenantable and unfit for occupancy, but yet be repairable within ninety (90) days from the happening of said injury, or if the Demised Premises cannot be repaired within ninety (90) days from the happening of such injury but Landlord and Tenant choose not to terminate the Lease in accordance with Section 10.01, the Landlord will, enter and repair the same with reasonable speed, and the Term Basic Rent and Additional Rent shall not accrue from the date of said injury and while repairs are being made, but shall recommence immediately after such repairs shall be completed provided Tenant is permitted by the appropriate State of Ohio authorities to do so. For purposes hereof, completion shall mean that all of the work necessary to repair the Premises shall be completed, except for minor items of detail, finish and correction, the non-completion of which shall not interfere with Tenant's use and occupancy of the Premises for the purposes permitted under this Lease. Section 10.03. If the Demised Premises shall be so slightly injured as not to impact the licensure status of the Premises as unfit for occupancy, the Landlord shall repair the same with reasonable promptness and the Term Basic Rent and Additional Rent accrued and accruing shall not cease or terminate. The Tenant shall immediately notify the Landlord in case of fire or other damage to the Demised Premises. Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the option to cancel this Lease, in the event (i) the casualty occurs during the last eighteen (18) months of the Lease Term and/or (ii) the casualty occurs at any time and the restoration will take over ninety (90) days from the date of any fire or other casualty, in which case of any of such events, the Basic Rent and Additional Rent shall abate as of the date said damage occurred. ARTICLE 11 CONDEMNATION Section 11.01. If, during the Term, twenty-five percent (25%) or more of the area of the Demised Premises shall be taken under any power of eminent domain or condemnation or if, by reason of such acquisition or condemnation, Tenant no longer has reasonable means of access to the Premises, then, at the option of the Tenant, to be exercised in writing within thirty (30) days of the taking of title thereto, this Lease shall expire within thirty (30) days of the date of such notice and the Term Basic Rent and Additional Rent herein reserved shall be apportioned as of said date. However, if the Tenant does not exercise the aforementioned option, this Lease shall not expire. No part of any award shall belong to the Tenant except that nothing contained herein is intended to affect or limit t he Tenant's claim for fixtures or other improvements owned by Tenant provided the same does not diminish the Landlord's award. It is expressly understood and agreed that the provisions of this Article 11 shall not be applicable to any condemnation or taking for governmental occupancy for a limited period of time. ARTICLE 12 COMPLIANCE WITH LAWS, ETC. Section 12.01. Except as may be provided for otherwise in this Lease and the Permitted Uses, the Tenant shall not do or permit anything to be done in the Demised Premises which shall constitute a public nuisance or which will conflict with the regulations of the Fire Department or with any insurance policy upon said improvements or any part thereof. 6 Section 12.02. The Tenant shall, at its own expense, obtain all necessary and operating permits and comply with all requirements of law and with all ordinance or orders, rules and regulations of any State, Municipal or other public authority relating to Tenant’s use of the Demised Premises. Section 12.03. Tenant acknowledges the existence of environmental laws, rules and regulations. Tenant shall comply with all Environmental Laws including, but not limited to, furnishing Landlord and the appropriate governmental agencies with information required in connection with Environmental Laws; preparing and implementing cleanup or remediation plans resulting from or required as a result of Tenant's use or occupation of the Demised Premises. At Landlord’s reasonable discretion, Tenant shall grant Landlord access to the Demised Premises to supervise Tenant's performance of any such environmental work. During the Term of this Lease, Tenant shall not store, manufacture, dispose of, discharge, mine, generate, refine, treat, transport or otherwise permit Hazardous Materials to be present on or about the Demised Premises, except in such amounts and as required to carry on the Permitted Use and in accordance with and in compliance with all Environmental Laws. Landlord represents and warrants (a) the Premises shall be in compliance with all applicable law, regulations, and state, local, and federal codes of any governmental or quasi-governmental body, agency or other entity (including, without limitation, the ADA and all sprinkler/life safety laws and regulations) as of the Commencement Date, except to the extent any non-compliance is caused by Tenant, (b) there are no structural or other defects in the Premises, which would prevent or interfere with Tenant’s intended alterations or use of the Premises, (c) to the best of Landlord’s knowledge, the Premises and Building are free of asbestos, asbestos containing material, mold, underground storage tanks and other hazardous materials or substances (“Hazardous Materials”) as defined by state law in which the Premises is located and applicable federal law. If, during construction of any initial or future improvements, Tenant discovers any structural defects, conditions unfit to accept the tenant improvements pursuant to Tenant’s approved plans, Hazardous Materials or violations of Laws (including open permits and whether or not of record), or any condition which is a breach of any representation of Landlord set forth in this Lease, Tenant, at Tenant’s option may either (i) cure such condition at Landlord’s cost and expense (following five (5) business days’ notice to Landlord), or (ii) cease work at the Premises and require Landlord at its sole cost and expense to cure such condition. In either event, the Rent Commencement Date shall be extended one (1) day for each day that Tenant is delayed in performing its work due to such condition. Landlord shall accordingly indemnify to Tenant for all costs and expenses related to any cleanup, remediation, or other cost for all Hazardous Materials which existed prior to the Commencement Date or subsequent to the Commencement Date if not introduced to the Project, the Building and/or the Premises by or thru Tenant. ARTICLE 13 SUBORDINATION Section 13.01. This Lease and any option contained herein is and shall be subject and subordinate to all present and future first mortgages or first deeds of trust or ground leases affecting the Demised Premises, provided Tenant shall have previously received a commercially reasonable subordination and non-disturbance agreement reasonably acceptable to Tenant (an “SNDA”) from Landlord under any of the foregoing. The Tenant shall, at no cost to Tenant, execute any instrument which may reasonably be deemed necessary or desirable by the Landlord to further effect or to evidence the subordination of this Lease to any such mortgage or deed of trust. The Landlord may assign this Lease to any such mortgagee or trust deed holder in connection with any such lien superior to this Lease, and the Tenant shall execute, at no expense to the Tenant, any instrument which may be necessary or desirable by the Landlord or the holder of said lien in connection with said assignment. Any expense incurred in the preparing, executing or recording of such assignment to any such holder shall be without expense or cost to the Tenant. The Tenant further agrees, within ten (10) business days of Landlord's written request, to, at no cost to Tenant, certify by written instrument duly executed and acknowledged to any mortgagee, trust deed holder or purchaser, or any proposed mortgage lender, trust deed holder or purchaser, that this Lease is in full force and effect, or i f not, in what respect it is not, that this Lease has not been modified, or the extent to which it has been modified, that there are no existing defaults hereunder to the best of the knowledge of the party so certifying, or specifying the defaults, if any. Any such certification shall be without prejudice as between the Landlord and the Tenant, it being agreed that any document required hereunder shall not be used in any litigation between the Landlord and the Tenant. Landlord shall provide Tenant with an SNDA from existing holders of mortgages, deeds of trust or ground leases within thirty (30) days of the date of this Lease. 7 ARTICLE 14 DEFAULTS, REMEDIES Section 14.01. Each of the following shall constitute an “Event of Default”: (A) The Tenant shall default in making any payment of Basic Rent or any Additional Rent as and when the same shall become due and payable, and such default shall continue for a period of ten (10) days after Tenant’s receipt of written notice from the Landlord that such payment is due and unpaid; or (B) The Tenant shall default in the performance of or compliance with any of the other covenants, agreements, terms or conditions of this Lease to be performed by the Tenant (other than any default curable by payment of money), and such default shall continue for a period of thirty (30) days after Tenant’s receipt of written notice thereof from the Landlord to the Tenant, or, in the case of a default which cannot with due diligence be cured within thirty (30) days, the Tenant shall fail to proceed promptly (except for unavoidable delays) after the receipt of such notice and with all due diligence to cure such default and thereafter to prosecute the curing thereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within thirty (30) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence); or (C) The Tenant or any guarantor of this Lease (if any) shall make an assignment for the benefit of creditors or file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Tenant or of all or any substantial part of its properties or of all or any part of the Demised Premises; or (D) If, within sixty (60) days after the filing of an involuntary petition in bankruptcy against the Tenant or any guarantor of this Lease, or the commencement of any proceeding against the Tenant or such guarantor seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the Tenant or such guarantor, of any trustee, receiver or liquidator of the Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of the Tenant or such guarantor, of the property of the Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of the Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; (E) If the Demised Premises shall be abandoned by the Tenant for a period of thirty (30) consecutive days without the payment of Rent, then, and in any such event, and during the continuance thereof, the Landlord may, at its option, then or thereafter while any such Event of Default shall continue and notwithstanding the fact that the Landlord may have any other remedy hereunder or at law or in equity, by notice to the Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon t he date specified in such notice with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of the Tenant hereunder shall expire and terminate, but the Tenant shall remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as Additional Rent, all reasonable attorneys' fees and other expenses incurred by the Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this Lease; (F) If Tenant conducts business other than for the Permitted Use; (G) If Tenant shall falsify any report required to be furnished to Landlord under this Lease; or (H) If Tenant shall fail or refuse to keep and to perform any of the other covenants, conditions, stipulations or 8 agreements herein contained for more than thirty (30) days after written notice of such default shall have been mailed (or such additional reasonable time as Tenant may require if cure is not practicable with such thirty (30) day period and Tenant has commenced the cure and is diligently continuing to completion). Notwithstanding the foregoing, if Tenant fails to pay for ten (10) days after it becomes due an installment of Basic Rent or any Additional Rent for three (3) or more consecutive months during any twelve (12) month period, then, even if such failures or defaults have been cured by Tenant, any further similar failure or default by Tenant during the twelve (12) month period shall be deemed an Event of Default hereunder without the ability of cure by Tenant and Landlord shall not be obligated to send Tenant any notice of default. Section 14.02. Subject to the terms and conditions of this Lease, upon the occurrence of any “Event of Default,” Landlord in addition to any other rights or remedies it may have under this Lease, in law or in equity, may: (A) Lease Termination. Elect to terminate this Lease and the tenancy created hereby by giving written notice to Tenant, which termination shall be effective as of the date of such notice or any later date therein specified by Landlord in such notice (and on the effective date of such termination, all obligations and liabilities of Landlord hereunder shall terminate), and, without further notice, Landlord shall have the right to repossess the Premises, by summary proceedings or otherwise, and remove Tenant and all other persons and property from the Premises, without liability for damage to, and without obligation to store, such property. After such termination, Landlord may change the locks. Landlord shall be entitled to recover all reasonable loss and damage Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, including without limitation, the following (without duplication by any element of damages): (i) accrued Rent to the effective date of termination together with late charges and interest thereon as specified within this Lease from the date owed through the date paid; plus (ii) the cost of recovering the Premises, including without limitation