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Exhibit 10.D
LEASE
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THIS INDENTURE OF LEASE dated as of the 1st day of March, 1998, by and
between GREAT LAKES BANK, an Ohio corporation, hereinafter called "Landlord",
and OSAIR Inc., an Ohio Corporation, hereinafter called "Tenant".
EXHIBIT TO LEASE AND DEFINITIONS:
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Section 1.
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(a) The following listed exhibit is attached to and made a
part of this Lease:
EXHIBIT "A". The floor plan showing the Building of which
the Premises are a part. The Premises consist of that area
shown on EXHIBIT "A" which is outlined in red.
(b) The term "Common Areas" means the parking areas, access
roads and facilities which may be furnished by Landlord and which are located
adjacent to the Building. The truck ways, driveways, loading docks and areas,
pedestrian sidewalks, ramps, landscaped and planting areas, retaining walls,
stairways, and all other areas and improvements which may be provided and/or
changed from time to time by the Landlord for the general use in common of the
tenants and their officers, agents, employees, and customers, and all lighting
facilities incident thereto, as such areas and facilities may be changed from
time to time by Landlord.
(c) The word "Premises" shall mean the area of the Building
leased to the Tenant by the Landlord, as indicated in red on EXHIBIT "A", known
as 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxx including approximately five thousand
(5,000) square feet of office space.
(d) The word "Building" means the building of which the
Premises are a part. Exhibit "A" is a floor plan of the Building.
(e) The term "Building Site" means the location of the
Building, parking areas, driveways and common areas.
(f) The term "Date of Delivery of Possession" shall be and
mean March 1, 1998, notwithstanding that the term of this Lease shall not have
commenced as of such date.
PREMISES
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Section 2.
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(a) For the rent and upon the agreements contained in this
Lease, Landlord leases to Tenant and Tenant rents from Landlord the Premises
described as follows:
(b) The premises are indicated in red on EXHIBIT "A" attached
hereto for the purpose of more specifically locating the space leased to Tenant.
(c) The Landlord expressly reserves the use of the rear and
side wall and of the roof of the Premises and the right to install, maintain,
use, repair, and replace the pipes, ducts, conduits, and wires leading through
the Premises in locations which will not materially interfere with Tenant's use
thereof and serving other parts of the Building.
TERM
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Section 3.
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(a) The primary term of this Lease (the "Initial Term") shall
commence on the 1st day of March, 1998, and shall terminate on the 28th day of
February, 2003.
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FIXED RENT
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Section 4.
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(a) Tenant agrees without demand and without any deduction or
setoff to pay to Landlord at Landlord's office, or such other place as Landlord
may from time to time designate, as a fixed rent for the Premises ("Fixed Rent")
commencing March 1, 1998 and thereafter throughout the Initial Term, the sum of
five thousand ($5,000) per calendar month. Each installment of Fixed Rent shall
be due and payable in advance on the first day of the calendar month for which
Fixed Rent is being paid.
REAL ESTATE TAXES
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Section 5.
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(a) During the term of this Lease, Landlord shall pay any and
all real estate taxes attributable to the Premises, the Building and the
Building Site.
COMMON AREAS
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Section 6.
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(a) Landlord hereby grants to Tenant and Tenant's employees,
agents, customers and invitees the right, during the term hereof, to use, in
common with Landlord and other tenants, employees and invitees entitled to the
use thereof, the appropriate Common Areas within the limits of the Building
Site. Landlord shall operate, manage, and maintain in good condition and repair
during the term of this Lease all Common Areas within the Building and
expenditures made therefor shall be at the sole discretion of the Landlord, and
the use of such areas and facilities shall be subject to such reasonable
regulations as Landlord shall make from time to time.
CONDITION OF PREMISES
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Section 7.
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(a) On the Date of Delivery of Possession, Tenant shall accept
the Premises in their present, as is condition. Tenant has thoroughly inspected
the Premises and is satisfied that the Premises are suitable for Tenant's
intended use.
USE
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Section 8.
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(a) The Premises shall be occupied and used by Tenant for the
operation of its business and for any other purpose reasonably incidental
thereto, subject to the provisions of the following Sub-Section.
(b) Tenant shall use and occupy the Premises in accordance
with all governmental laws, ordinances, rules and regulations. Tenant shall not
use, or allow the Premises to be used, for any purpose other than as specified
herein and shall not use or permit the Premises to be used for any unlawful,
disreputable or immoral purpose or in any way that will injure the reputation of
the Building, or permit the Premises to be occupied in whole or in part by any
other person, except as otherwise provided herein.
UTILITIES
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Section 9.
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(a) Tenant shall reimburse Landlord for natural gas
and electric charges incurred by Landlord in connection with its operation of
the Building, by reimbursing to Landlord promptly upon request accompanied by a
copy of xxxxxxxx for same by the applicable utility companies an amount equal to
that percentage thereof which is represented by a fraction, the numerator of
which is $5,000 and the denominator of which is $14,500. (34.5%) Except as to
the foregoing, Landlord shall pay for all utilities attributable to the Premises
during the Term hereof.
ALTERATION, INSTALLATIONS AND REMOVAL OF IMPROVEMENTS BY TENANT
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Section 10.
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(a) Tenant shall have the right during the continuance of this
Lease to make such interior alterations, changes and improvements to the
Premises, except structural alterations, changes or improvements, as may be
proper and necessary for the conduct of Tenant's business and for the full
beneficial use of the Premises. Tenant shall pay all costs and expenses of such
alterations, changes, and improvements, shall make the same in good and
workmanlike manner, and in accordance with all applicable laws and building
regulations, and shall prior to the making of such alterations, changes, and
improvements, assure Landlord that payment for the same will be made by Tenant.
Tenant hereby completely and fully indemnifies Landlord against any Mechanic's
Liens or other liens or claims in connection with the making of such
alterations, changes, and improvements. Any liens arising out of such
alterations, changes, and improvements shall be removed by Tenant within ten
(10) days after the same has been filed.
(b) Except as otherwise provided, all signs, furnishings,
trade fixtures and other removable equipment installed in the Premises by Tenant
and paid for by Tenant shall remain the property of Tenant and shall be removed
by Tenant upon the termination of this Lease provided that any of such as are
affixed to the Premises and require severance shall be removed at Tenant's cost,
and Tenant shall repair any damage caused by such removal.
REPAIRS AND MAINTENANCE
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Section 11.
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(a) Landlord shall keep the foundation, the four outer walls
and roof of the Premises in good repair, except that Landlord shall not be
responsible to make any such repairs, occasioned by the act or negligence of
Tenant or its agents, employees, invitees, or licensees. Landlord shall not be
required to make any other improvements or repairs of any kind upon the Premises
and appurtenances, and the Premises and appurtenances shall at all times be kept
in good order, condition, replacement and repair by Tenant. Tenant shall keep
the Premises in a clean, sanitary, and safe condition in accordance with the
laws of the State of Ohio, and in accordance with all directions, rules, and
regulations of the health officer, fire marshal, building inspector, or other
proper officers of the governmental agencies governing the Premises, at the sole
cost and expense of Tenant, and Tenant shall comply with and shall keep the
Premises in the condition required by all requirements of law, ordinance and
otherwise involving the Premises, as the same may be in effect from time to
time. Tenant shall permit no waste, damage or injury to the Premises, and Tenant
shall, at its own cost and expense, replace any glass windows and doors in the
Premises which may be broken. At the expiration of the tenancy created
hereunder, Tenant shall surrender the Premises to Landlord in good condition,
reasonable wear and tear, loss by fire and other unavoidable casualty excepted.
It is expressly agreed that Tenant shall not be required to make any permanent
capital improvements to the Premises, unless the same shall result from Tenant's
use of the Premises.
INDEMNIFICATION AND INSURANCE AND WAIVER OF SUBROGATION
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Section 12.
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(a) Tenant will indemnify Landlord and save Landlord harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss, damage or injury to persons or property occurring in, on
or about, or arising out of the Premises, or occasioned wholly or in part by any
act or omission of Tenant, Tenant's agents, contractors, customers or employees.
(b) Tenant, at all times during the term of the Lease, shall,
at its own expense, keep in full force and effect public liability insurance
with minimum limits of One Million Dollars ($1,000,000.00) on account of bodily
injuries to or death of one (1) person, and One Million Dollars ($1,000,000.00)
on account of bodily injuries to or death of more than one (1) person as a
result of any one (1) accident or disaster, and Two Hundred Thousand Dollars
($200,000.00) on account of damages to property, naming Landlord as an
additional insured, and shall deposit the policy or policies of such insurance,
or certificates thereof with Landlord.
(c) Tenant shall not carry any stock or goods or do anything
in or about the Premises which will in any way tend to increase the insurance
rates on said Premises and/or the Building. Tenant shall pay as additional
rental any increases in the insurance as a result of its use of the Premises.
(d) Landlord and Tenant do hereby waive all rights of recovery
and causes of action which either has or may have or which may arise hereafter
against the other, whether caused by negligence or otherwise for any damage to
the Premises or any property or business of Landlord or Tenant caused by any of
the property or business of Landlord or Tenant caused by any of the perils
covered by fire and extended coverage, building and contents and business
interruption insurance, or for which either party may be reimbursed as a result
of insurance coverage affecting any loss suffered by it; provided however, that
the foregoing waiver shall apply only to the extent of any recovery made by the
parties hereto under any policy of insurance now or hereafter issued, it being
stipulated by the parties hereto that the foregoing waiver shall not apply in
any case in which the application thereof would result in the invalidation of
any such policy of insurance. In the event any additional premium shall be
charged for such waiver provision, the party benefitted by such waiver shall pay
the cost of such endorsement.
SIGNS
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Section 13.
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(a) Tenant shall not display any "For Rent", "For Lease", or
"for Sub-Lease", or similar signs. Except for the foregoing, Tenant shall have
the right to install any ground, building, or roof signs provided that Tenant
shall secure in advance the written consent of Landlord thereto, which consent
shall not unreasonably be withheld, and further provided that all signs
installed by Tenant shall comply with all requirements of appropriate
governmental authority, and all necessary permits or licenses shall be obtained
by Tenant. Tenant shall maintain all signs in good condition and repair at all
times, and shall save Landlord harmless from injury to person or property,
arising from the erection, installation, and maintenance of said signs. Upon
vacating the Premises, Tenant shall remove all signs and repair all damage
caused by such removal.
ASSIGNMENT AND SUBLETTING
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Section 14.
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(a) This Lease shall not be mortgaged, pledged, encumbered,
assigned or otherwise transferred by Tenant, voluntarily or involuntarily, by
operation of law or otherwise, or the Premises or any part thereof sublet, used
or occupied for the conduct of any business by any third person or corporation
or for any purpose other than herein authorized, without the prior consent of
the Landlord. Any consent of Landlord to any assignment or subletting shall not
constitute a waiver of the necessity for such consent under any subsequent
assignment or subletting. If Tenant is a corporation, the sale or sales, during
the term hereof, aggregating fifty percent (50%) or more of the outstanding
shares of stock of Tenant shall be deemed to be an assignment of this Lease
within the meaning of this Section.
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(b) In the event of any permitted assignment or other transfer
of this Lease by Tenant, (i) Tenant shall remain liable for performance of all
obligations of the assignee or transferee of Tenant hereunder, and Tenant hereby
agrees to absolutely and unconditionally guarantee the performance hereunder of
such assignee or transferee; and (ii) any rent which Tenant receives pursuant to
any sublease in excess of the Fixed Rent shall be paid by Tenant to Landlord.
REPAIR AFTER CASUALTY
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Section 15.
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(a) If the Premises shall be destroyed or so injured by any
cause as to be unfit, in whole or in part, for occupancy and such destruction or
injury could reasonably be repaired within six (6) months from the date of such
damage or destruction, then Tenant shall not be entitled to surrender possession
of the Premises nor shall Tenant's liability to pay rent under this Lease cease
without the mutual consent of the parties hereto; but in case of any such
destruction or injury Landlord shall repair the same with all reasonable speed
and shall complete such repairs within six (6) months from the date of such
damage or destruction. If during such period Tenant shall be deprived of the use
of all or any portion of the Premises, a proportionate allowance shall be made
to Tenant from the rent corresponding to the time during which and to the
portion of the Premises of which Tenant shall be so deprived.
(b) If such destruction or injury cannot reasonably be
repaired within six (6) months from the date of such damage or destruction,
Landlord shall notify Tenant within thirty (30) days after the happening of such
destruction or injury whether or not Landlord will repair or rebuild. If
Landlord elects not to repair or rebuild, this Lease shall be terminated. If
Landlord shall elect to repair or rebuild Landlord shall specify the time
within which such repairs or reconstruction will be completed, and Tenant shall
have the option within thirty (30) days after the receipt of such notice to
elect either to terminate this Lease and any further liability hereunder or to
extend the term of the Lease by a period of time equivalent to the time from the
happening of such destruction or injury until the Premises are restored to their
former condition. In the event Tenant elects to extend the term of the Lease,
Landlord shall restore the Premises to their former condition within the time
specified in such notice, and Tenant shall not be liable to pay rent for the
period from the time of such destruction or injury until the Premises are so
restored to their former condition.
CONDEMNATION
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Section 16.
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(a) In the event the entire Premises shall be taken by
condemnation or right of eminent domain, this Lease shall terminate as of the
day possession shall be taken by the taking authority, and Landlord and Tenant
shall be released from any further liability hereunder thereafter accruing. In
the event only a portion of the Premises shall be taken by condemnation or right
of eminent domain and the portion so taken renders the balance unsuitable for
the use of this Lease, either the Landlord or the Tenant shall be entitled to
terminate this lease, such termination to become effective as the of the day
possession shall be taken, provided thirty (30) days notice in writing of such
termination is given. If, in such event, this Lease is not terminated, Landlord
agrees to restore the Premises with reasonable speed to an architectural unit as
nearly like its condition prior to such taking as shall be practicable, and if
during and/or after the work of restoration, Tenant is deprived of the use of
all or a part of the Premises, an appropriate reduction of rent, depending upon
the time during which and the portion of said Premises of which Tenant is
deprived, shall be granted.
(b) All damages awarded in connection with the taking of the
Premises, whether allowed as compensation for diminution in value to the
leasehold or to the fee of the Premises, shall belong to the Landlord.
Notwithstanding the foregoing, Tenant shall be entitled to make a separate claim
for damage to merchandise and fixtures, and removal, reinstallation, and moving
expense.
LANDLORD'S REMEDIES UPON DEFAULT
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Section 17.
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(a) If Tenant or any guarantor of Tenant shall at any time (i)
be in default in the payment of rent or other sums of money required to be paid
by Tenant, or in the performance of any of the covenants, terms, conditions,
provisions, rules and regulations of this Lease, the Tenant shall fail to remedy
such default within ten (10) days in the event of default is as to payment of
rent or other sums of money, or within twenty (20) days after receipt of written
notice thereof, if the default relates to matters other than the payment of rent
and other sums of money (but Tenant shall not be deemed to be in default if
Tenant commences to remedy said defaults other than relate to payment of rent
and other sums of money within said twenty (20) day period, and proceeds
therewith with due diligence); (ii) commit waste upon the Premises, vacate the
Premises, or fail to continuously occupy and conduct Tenant's business in the
Premises; (iii) become insolvent or make an assignment for the benefit of
creditors, or if a receiver or trustee of Tenant's property shall be appointed,
or if proceedings under any chapter of the Bankruptcy Code shall be instituted
by or against Tenant or any guarantor of this Lease and shall not be dismissed
by the Court within sixty (60) days after being filed, or if any event shall
happen which, aside from this provision, would cause any assignment or
devolution of Tenant's interest or occupancy hereunder by operation of law, then
Landlord in addition to all other remedies given to Landlord in law or in
equity, may by written notice to Tenant, terminate this Lease, or without
terminating this Lease, re-enter the Premises by summary proceedings or
otherwise. In any event Landlord may dispossess the Tenant, it being the
understanding that under no circumstances is this Lease to be an asset for
Tenant's creditors by operation of law or otherwise. In the event of such
re-entry Landlord may relet the Premises without being obligated so to do, and
in the event of a reletting may apply the rent therefrom first to the payment of
Landlord's expenses, including attorneys' fees incurred by reason of Tenant's
default, and the expense of reletting including, but not limited to, repairs,
renovation or alteration of the Premises and then to the amount of rent and all
other sums due from Tenant hereunder, Tenant remaining liable for all other sums
due from Tenant hereunder and for any deficiency. Any and all such deficiencies
shall be payable by the Tenant monthly on the date herein provided for the
payment of rent.
(b) In the event of default by Tenant of any of the terms,
provisions, covenants, conditions, rules and regulations of this Lease, Landlord
shall have the right to invoke any remedy permitted to Landlord in law or in
equity. All remedies available to Landlord are declared to be cumulative and
concurrent. No termination of this Lease and no taking recovering of possession
of the Premises shall deprive Landlord of any of its remedies or actions against
Tenant and Tenant shall remain liable for all past or future rent, including all
additional rent, taxes, insurance premiums and all other charges and rent
payable by Tenant under this Lease, during and for the balance of the term
hereof. The bringing of any action for rent or other default shall not be
construed as a waiver of the right to obtain possession of the Premises.
(c) If suit shall be brought for recovery of possession of the
Premises, for the recovery of rent, or any other amount due under the provisions
of this Lease, or because of the breach of any other covenant herein contained
on the part of Tenant to be kept or performed, and breach shall be established,
Tenant shall pay to Landlord all expenses incurred therefor, including a
reasonable attorney's fee.
(d) All rights and remedies provided herein or otherwise
existing at law or in equity are cumulative, and the exercise of one or more
rights or remedies by either party shall not preclude or waive its right to the
exercise of any or all of the others.
RIGHT OF LANDLORD
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Section 18.
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(a) Landlord reserves the right at all reasonable times, by
itself, or its duly authorized agents, to go upon and inspect the Premises and
every part thereof, and at its option to make repairs, alterations and additions
to the Premises or the Building.
(b) If Landlord shall make any payments on behalf of Tenant
which are Tenant's obligation in order to fulfill Tenant's covenants, then any
amounts paid by Landlord are agreed and declared to be "additional
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rent" and shall be due and payable to Landlord from Tenant with the next
installment of Fixed Rent due thereafter under this Lease. Any such amounts
which shall be paid by Landlord on behalf of Tenant shall bear interest at the
rate of ten percent (10%) per annum or at the prime rate of interest then being
charged by AmeriTrust Company, Cleveland, Ohio, whichever is higher, provided in
no event shall such rate be charged to Tenant be in excess of that otherwise
permitted by law.
MORTGAGE SUBORDINATION
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Section 19.
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(a) Landlord reserves the right to demand and obtain from
Tenant a Waiver of Priority of Tenant's lien arising by virtue of the within
Leasehold estate, thereby subordinating Tenant's lien in favor of any first or
second mortgage loan, any first or second mortgage lien, or any refinancing or
replacing of such first mortgage or second mortgage loans that Landlord may
determine necessary or desirable from time to time in the future. Tenant, upon
demand by the Landlord for same, agrees to execute at any and all times such
instruments as may be required by any lending institution or prospective
mortgagee in order to effectuate such Waiver of Priority and subordination of
Tenant's lien. If Tenant, within five (5) days after submission of such
instrument, fails to execute the same, Landlord is hereby authorized to execute
the same as attorney-in-fact for Tenant. In the event any proceedings are
brought for foreclosure, or in the event of the exercise of the power of sale
under any mortgage or deed of trust, Tenant shall attorn to the purchaser in any
such foreclosure or sale and recognize such purchaser as landlord under this
Lease.
(b) Upon the written request of Tenant, Landlord shall procure
from any such lending institution or mortgagee an agreement in writing, which
shall be delivered to Tenant, providing in substance that so long as Tenant
shall faithfully discharge the obligations on its part to be kept and performed
under the terms of this Lease, Tenant's tenancy will not be disturbed nor this
Lease affected by any default under such mortgage, and Tenant agrees that this
Lease shall remain in full force and effect even though default in the mortgage
may occur.
NO WAIVER OF LANDLORD
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Section 20.
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(a) No waiver of any of the terms, covenants, provisions,
conditions, rules and regulations imposed or required by this Lease, and no
waiver of any legal or equitable relief or remedy shall be implied by the
failure of the Landlord to assert any rights, to declare any forfeiture, or for
any other reason. No wavier of any of said terms, provisions, covenants, rules
and regulations shall be valid unless it shall be in writing signed by the
Landlord in respect to one or more tenants of the Building shall constitute a
waiver or forgiveness of performance in favor of Tenant herein, or any other
tenant. No waiver of any pledge of this Lease or the forgiveness of any one or
more of the terms, provisions, conditions, rules and regulations of this Lease
may be claimed or pleaded by Tenant to excuse a subsequent pledge or failure of
performance of any of the terms, provisions, conditions, covenants, rules, and
regulations of this Lease.
VACATION OF PREMISES
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Section 21.
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(a) Tenant shall deliver up and surrender to Landlord
possession of the Premises, including all Tenant's work (and all replacements
thereof) and all fixtures permanently attached to the Premises during the term,
upon the expiration of this Lease or its termination in any way in as good
condition and repair as the same shall be at the commencement of said term,
ordinary wear and tear and unavoidable casualty only excepted, and deliver the
keys at the office of Landlord or Landlord's agent.
NOTICES
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Section 22.
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Any notices or consent required to be given by or on behalf of
either party upon the other shall be in writing and shall be given by mailing
such notices or consent by Registered or Certified Mail, return receipt
requested, addressed to the Landlord at:
Great Lakes Bank
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
and to the Tenant at:
OsAir, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
or at such other address as may be specified from time to time, in writing,
delivered to the other party, and the time of the rendition of such notice shall
be when it is deposited in an official United States Post Office, postage
prepaid.
APPLICABLE LAW AND CONSTRUCTION
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Section 23.
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(a) The laws of the State of Ohio shall govern the validity,
performance, enforcement, and interpretation of this Lease. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision. The submission of this document for examination does not
constitute an offer to lease, or a reservation of or option for the Premises and
becomes effective only upon execution and delivery thereof by Landlord and
Tenant. All negotiations, considerations, representations and understandings
between the parties are incorporated herein and may be modified or altered only
by agreement in writing by the parties. Tenant shall have no right to quit the
Premises or cancel or rescind this Lease except as expressly granted herein.
This Lease has been negotiated by Landlord and Tenant and the Lease together
with all of the terms and provisions thereof, shall not be deemed to have been
prepared by either Landlord or Tenant, but by both equally.
QUIET ENJOYMENT
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Section 24.
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(a) Landlord hereby covenants and agrees that if Tenant shall
perform all of the covenants and agreements herein stipulated to be performed on
Tenant's part, Tenant shall at all times during the continuance hereof have
peaceable and quiet enjoyment and possession of the Premises without any manner
of let or hinderance from Landlord or any other person.
HOLDING OVER
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Section 25.
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(a) If at the expiration of the term of this Lease, or any
renewal thereof, Tenant continues to occupy the Premises, such holding over
shall not constitute a renewal of this Lease, but Tenant shall be a tenant from
month to month.
IN WITNESS WHEREOF, the parties hereto have set their hands this 1st
day of June, 1995, as to the Landlord, and this 1st day of March, 1998, as to
the Tenant.
LANDLORD:
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GREAT LAKES BANK
BY: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx., President
TENANT:
OSAIR, Inc.
an Ohio Corporation
BY: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
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