Exhibit 10.8
LEASE
BY AND BETWEEN
XXXXXX HEALTH PRODUCTS INC.
AND
SQUARE FEET UNLIMITED
WEST UNITY INDUSTRIAL PARK
REF 66,000 SQ. FT. BUILDING
XXXX XXXX XXX XXXX
14 723 WMS. CO. RD. "M" 0000 XXX XXXX
XXXXXXXXXX, XXXX 00000 XXXXXX, XX 00000
000-000-0000 000-000-0000
HELPING INDUSTRY FIND A HOME
INDEX TO LEASE BETWEEN
SQUARE FEET UNLIMITED (LANDLORD)
XXXXXX HEALTH PRODUCTS, INC. (TENANT)
WEST UNITY (WEST) INDUSTRIAL PARK
ARTICLE HEADING PAGE NO.
1 Premises . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 Term and Option to Renew . . . . . . . . . . . . . . . . . . 1
3 Minimum Rent . . . . . . . . . . . . . . . . . . . . . . . . 2
4 Real Estate Tax Obligations. . . . . . . . . . . . . . . . . 2
5 Use of Premises. . . . . . . . . . . . . . . . . . . . . . . 2
6 Assignment and Subletting. . . . . . . . . . . . . . . . . . 3
7 Tenant's Right to Make Improvements. . . . . . . . . . . . . 3
8 Tenant's Right to Mortgage . . . . . . . . . . . . . . . . . 3
9 Care and Maintenance of Exterior Premises. . . . . . . . . . 3
10 Landlord's Obligation to Repair and Maintain . . . . . . . . 4
11 Tenant's Obligations to Repair and Maintain. . . . . . . . . 4
12 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 4
13 Restoration; Damage by Fire or Other Casualty. . . . . . . . 5
14 Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . 6
15 Gas, Water, Heat, Electricity. . . . . . . . . . . . . . . . 6
16 Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . 6
17 Bankruptcy and Insolvency. . . . . . . . . . . . . . . . . . 7
18 Default by Tenant and Right to Cure by Landlord. . . . . . . 7
19 Default by Landlord and Right to Cure by Tenant. . . . . . . 7
20 Right to Re-Entry. . . . . . . . . . . . . . . . . . . . . . 8
21 Subordination - Attornment . . . . . . . . . . . . . . . . . 8
22 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . 8
23 Ownership of Improvements. . . . . . . . . . . . . . . . . . 9
24 Investment Tax Credit. . . . . . . . . . . . . . . . . . . . 9
25 Compliance with Laws . . . . . . . . . . . . . . . . . . . . 9
26 Environmental Matters. . . . . . . . . . . . . . . . . . . . 9
27 Interpretation . . . . . . . . . . . . . . . . . . . . . . . 12
28 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
29 Holding Over . . . . . . . . . . . . . . . . . . . . . . . . 12
30 Consent Not Unreasonably Withheld. . . . . . . . . . . . . . 13
31 Estoppel Certificate . . . . . . . . . . . . . . . . . . . . 13
32 Cumulative Rights. . . . . . . . . . . . . . . . . . . . . . 13
33 Partial Invalidity . . . . . . . . . . . . . . . . . . . . . 13
34 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
35 Short Form Lease . . . . . . . . . . . . . . . . . . . . . . 13
36 Landlord's Work. . . . . . . . . . . . . . . . . . . . . . . 14
37 Captions and Section Numbers . . . . . . . . . . . . . . . . 14
38 Successors . . . . . . . . . . . . . . . . . . . . . . . . . 14
39 Real Estate License Disclosure . . . . . . . . . . . . . . . 14
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 15
Notary for Landlord. . . . . . . . . . . . . . . . . . . . . 15
Notary for Tenant. . . . . . . . . . . . . . . . . . . . . . 16
Exhibit "A"
Exhibit "B"
LEASE
This Lease, made and entered into as of the ___ day of July 1994, is by and
between SQUARE FEET UNLIMITED, a Michigan Partnership ("Landlord"), or Lessor,
whose address is 0000 Xxx Xxxx at Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, and XXXXXX
HEALTH PRODUCTS INC. ("Tenant"), or Lessee, a Delaware Corporation, whose
address is 0000 Xxxx 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
WITNESSED: THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS:
1. PREMISES.
Landlord, for and in consideration of the rents to be paid and the
covenants and agreements to be kept and performed by Tenant, does hereby lease
to Tenant premises situated in the Village of West Unity, Xxxxxxxx Co., Ohio,
containing 66,000 square feet of building area located on the property more
particularly described on Exhibit "A" attached hereto and made a part hereof,
together with the exclusive right to use the parking area and the grounds which
are a part thereof (which premises are collectively hereinafter referred to as
the "Demised Premises" or "Leased Premises").
2. TERM AND OPTION TO RENEW.
A. The term of this lease shall commence upon August 1st, 1994 and shall end
on May 31st, 1995, unless extended or sooner terminated as hereinafter provided.
B. Upon expiration of the 10 month term of this Lease, and provided that
Lessee is not then in default under the terms of this Lease beyond any grace
period herein provided, Tenant may, at its option, continue the term for an
additional one year period (the "Renewal Term"). Lessee shall give Lessor no
less than three months notice in writing of its intention to renew. Any such
renewal term shall be upon the same terms and conditions as this Lease. If the
renewal option is not exercised, the Lease shall continue beyond May 31st, 1995
on a month to month basis until terminated by 30 days written notice given by
either Landlord or Tenant.
If during the Renewal Term additional improvements such as offices or more
building area are required, Landlord and Tenant may negotiate for Landlord or
Tenant to provide them and make provision for an adjustment in the rents to
cover the costs involved by adding an addendum hereto.
All rental payments due hereunder shall be sent to Landlord's address, the first
above given, or such other place as Landlord may designate to Tenant in writing.
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3. FIXED RENT.
A. Tenant hereby hires said Demised Premises for the term herein mentioned,
and, in consideration of the peaceful use and enjoyment of the Demised Premises
and the performance of all of the terms and provisions thereof to be performed
by Landlord, does hereby covenant and agree to pay Landlord, as the fixed rent
for said premises, the sum of Thirteen thousand four hundred and twenty dollars
($13,420) per month to be paid in advance, on or before the first day of each
month, commencing on the First day of August, 1994.
B. It is noted that an existing customer occupies 8,000 sq. ft. of this
building on a month to month lease. Immediately upon the signing of this Lease,
Landlord will give this customer notice to move out within 30 days, and Landlord
will use its best efforts to cause this customer to vacate the building as soon
as possible. If the customer has not moved out by Xxxxxx 0xx, 0000, Xxxxxx
(Xxxxxx) may deduct One thousand six hundred and twenty six dollars and sixty
seven cents ($1,626.67) from the August rent and from each monthly installment
thereafter until such customer vacates such space.
IN THE EVENT TENANT FAILS TO MAIL THE RENT ON OR BEFORE THE 8TH DAY OF THE
MONTH, TENANT SHALL PAY THE REQUIRED RENT, PLUS FIVE PERCENT (5%) OF THE MONTHLY
RENT AS A "LATE PAYMENT FEE". This late payment fee will continue to accumulate
and compound as long as the lease is in default.
Notwithstanding any provision of this Lease to the contrary, Tenant will have no
liability whatsoever in connection with (i) any action or omission of, or any
claim asserted by, such customer or any employee, agent, contractor, licensee,
or invitee of such customer (in each case an "existing user"), or (ii) any claim
brought by any person in connection with any space in the building occupied or
used by existing user which claim arises out of any event occurring or any
circumstance existing at any time during which any such space is so occupied or
used, except and only to the extent of the negligence or willful misconduct of
Tenant or of any of Tenant's employees or agents.
4. REAL ESTATE TAX OBLIGATIONS.
The Real estate taxes on all improvements on this property have been abated
by the village of West Unity for a period of 10 years (six years remaining).
Landlord agrees to pay the real estate taxes for the land and all improvements
and assessments for the term of this Lease.
5. USE OF PREMISES.
The Leased Premises may be used and occupied by Tenant for offices,
manufacturing, warehousing and related operations, and for any other lawful
purpose with the written consent of Landlord. Landlord warrants that the above
uses are permissible under the existing zoning.
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6. ASSIGNMENT AND SUBLETTING.
Tenant shall have the right at all times to assign or sublet all or any part of
the Demised Premises with Landlord's written consent, provided, however, that
any such assignment or subletting shall not release Tenant from liability
hereunder.
7. TENANT'S RIGHT TO MAKE IMPROVEMENTS.
Landlord agrees that Tenant may, from time to time and at any time during the
term hereof, in its sole discretion and at its own cost and expense, remove,
remodel, alter, add to or modify the interior of the Leased Premises, so long as
same does not affect the structural integrity of the building provided Tenant
complies with the provisions set forth in this Paragraph.
All such improvements shall be of a good substantial character and such as will
not tend to decrease the value of the Leased Premises.
Tenant shall pay for all labor performed and materials furnished in making such
improvements thereon keeping it at all times free and clear of all liens for
labor or materials furnished in and about such construction, and will defend, at
it's own cost and expense, each and every lien asserted or claim filed against
said premises and/or the buildings or improvements thereon, or any part thereof,
for labor claimed to have been so performed or material claimed to have been so
furnished, and promptly pay each and every judgment made or given against said
premises, or any part thereof or the buildings and/or improvements thereon,
and/or against Landlord or Tenant, on account of any such lien and indemnify and
save harmless Landlord, their successors and assigns from all and every claim
and action on account of such claim, lien or judgment.
All such construction and improvements shall comply with all laws and ordinances
relating thereto.
8. TENANT'S RIGHT TO MORTGAGE.
Tenant, in its sole discretion, shall have the right, from time to time, to
borrow money and grant as security therefore a mortgage (or deed of trust) on
Tenant's leasehold interest covering the Demised Premises upon such terms and
conditions as are satisfactory to Tenant.
9. CARE AND MAINTENANCE OF EXTERIOR PREMISES.
During the term of this Lease, Landlord, at its sole expense agrees to maintain
the exterior of the building, take care of the lawns and remove snow from
drives, parking and dock areas.
Tenant will clean snow from sidewalks.
Tenant at its sole expense will keep and maintain the interior of the Leased
Premises in a clean, sanitary and safe condition.
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The Leased Premises will be kept free from rubbish and dirt at all times, and
Tenant shall store all trash and garbage within an area east of and adjacent to
Leased Premises, and will arrange for the regular pick up of garbage at Tenant's
expense. Tenant shall not perform any acts or carry on any practices which may
be a nuisance or menace to other occupants of contiguous properties.
10. LANDLORD'S OBLIGATIONS TO REPAIR AND MAINTAIN.
With respect to the building occupied by Tenant, Landlord shall, during the term
of the Lease, at Landlord's expense, keep the foundation, exterior walls and
roof in good condition and repair and at Landlord's expense will make all
capital replacements and major repairs to heating, sprinklers on premises and
major electrical and plumbing to or in the building. Tenant shall, at Tenants
expense, make all repairs to building system necessary in the normal course of
Tenants operation.
Landlord warrants that the heating equipment will be sufficient to heat the
manufacturing and warehouse space to 65 Degrees when the outside temperature is
0 Degrees.
11. TENANT'S OBLIGATIONS TO REPAIR AND MAINTAIN.
Except as provided in Paragraph 10 hereof, with respect to the Leased Premises,
Tenant covenants and agrees that it will, at its own expense, during the
continuance of this Lease, keep the interior of such premises in good condition
and repair, and at the expiration of the term or any renewal or extension
thereof, to yield and give up the premises in good condition, damage by usual
wear and tear, fire, the elements or other casualties excepted.
Tenant will specifically be responsible for fork truck damage to doors, the
building liner and exterior siding.
12. INSURANCE.
A. Tenant shall indemnify and hold harmless Landlord from all costs and
liabilities arising out of or connected with the activities of Tenant, its
employees, agents or business invitees upon the Demised Premises or the property
of which the Demised Premises are a part. Landlord shall indemnify and hold
harmless Tenant from all costs and liabilities arising out of or connected with
the activities of Landlord, its employees, agents, business invitees or other
Tenants upon the Demised Premises or the property of which the Demised Premises
are a part.
B. Tenant and Landlord each agree to procure and keep in full force and effect
during the term hereof its own policy of public liability and property damage
insurance with respect to its respective risks described above in the sum of One
Million Dollars ($1,000,000.00) per occurrence and, and One Million Dollars
($1,000,000.00) annual aggregate. Tenant and Landlord shall deliver
certificates evidencing said policies, to each other, and upon either party's
failure to do so, each may, at its option,
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obtain such insurance, and the cost thereof shall be paid as additional rent due
and payable upon the next ensuing rent day, or deducted from such rent as
appropriate.
Each party shall be indicated as an additional insured on the other party's
coverage.
C. At all times during the term of this Lease, Landlord agrees, at is expense,
to maintain fire and extended coverage insurance ("all risk") on all buildings
and improvements erected and constructed upon the property described on Exhibit
"A" attached hereto, with insurance companies of generally recognized
responsibility and credit and authorized to do business in the State of Ohio, in
an amount not less than the full replacement cost thereof.
13. RESTORATION: DAMAGE BY FIRE OR OTHER CASUALTY.
In the event the Leased Premises shall be damaged or destroyed in whole or in
part by fire or other casualty during the term hereof, Landlord will immediately
repair and restore the same to good, tenantable condition within sixty (60) days
from the date of such damage or destruction, and the rental herein provided for
shall xxxxx entirely in case the entire premises are untenantable and pro-rata
for the portion rendered untenantable, or in case a part only is untenantable,
until the same shall be restored to a tenantable condition. Tenant, in its sole
discretion, shall have the right to determine whether or not the Premises are
tenantable for its use. If such damage or destruction cannot reasonably be
repaired within the aforementioned period, Landlord shall notify Tenant within
ten (10) days after the happening of such damage or destruction 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 period within such repairs or restoration shall
be completed, and Tenant shall have the option, within ten (10) days after
receipt of such notice, to elect whether to terminate this Lease without any
further liability hereunder, or to extend the period of the term of this Lease
equivalent to the time from the happening of such damage or destruction until
the Leased Premises are restored to their former condition. Tenant shall not
have any right to terminate with respect to the foregoing if Landlord repairs or
rebuilds the damaged premises within the sixty (60) day period, and Landlord may
not elect not to repair if property can be repaired in 60 days. In the event
Tenant elects to extend this 60 day rebuilding period, Landlord shall restore
the leased Premises to its former condition within the time agreed, and Tenant
shall not be liable to pay rent for the period from the time of such damage or
destruction until the Premises are so restored to their former condition.
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14. WAIVER OF SUBROGATION.
Each party hereto does hereby remise, release and discharge the other party
hereto and any officer, agent, employee or representative of such party of and
from any liability whatsoever hereafter arising from loss, damage or injury
caused by fire or other casualty for which insurance (permitting waiver of
liability and containing a waiver of subrogation) is carried by the injured
party at the time of such loss, damage or injury to the extent of any recovery
by the injured party under such insurance.
15. GAS, WATER, HEAT, ELECTRICITY.
Tenant will pay all charges, if any, made against said Leased Premises for gas,
water, heat and electricity during the continuance of this Lease as the same
shall become due. Tenant shall maintain a minimum temperature in the Leased
Premises of 45 Degrees Fahrenheit to prevent damage to the sprinkler system.
16. EMINENT DOMAIN.
If the whole or any part of the floor area of the Leased Premises hereby leased
or access thereto shall be taken by public authority under the power of eminent
domain, then the term of this Lease shall cease at the option of the Tenant as
of the date possession thereof or title thereto shall be taken by such public
authority, and the rent shall be paid up to that date with a proportionate
refund by Landlord of such rent as shall have been paid in advance.
In the event that as a result of any taking under the power of eminent domain
the common areas and the parking area shall be reduced to less than Eighty
Percent (80%) of its former area, or access thereto shall be materially reduced
Tenant may, at Tenant's sole election, terminate the term of this Lease by
giving Landlord notice of the exercise of its election within sixty (60) days
after taking, and the termination shall be effective as of the time that
possession of the part so taken shall be required for public use. Thereafter
the parties shall be relieved of all subsequent obligations under the terms of
this Lease.
Landlord reserves to itself, and Tenant assigns to Landlord, all rights to
damages accruing on account of any taking under the power of eminent domain or
by reason of any act of any public or quasi-public authority for which damages
are payable. Tenant agrees to execute instruments of assignment as may be
reasonably required by Landlord, and to turn over to Landlord any damages that
may be recovered in any proceedings. It is agreed and understood, however, that
Landlord does not reserve to itself, and Tenant does not assign to Landlord, any
damages payable for loss of business or goodwill, and loss of favorable
leasehold, depreciation to and costs of removal of stock and trade fixtures of
Tenant and relocation of Tenant's signs, if any.
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17. BANKRUPTCY AND INSOLVENCY.
Subject to the Federal Bankruptcy Act, if a petition in bankruptcy shall be
filed by Tenant, or if Tenant shall be adjudicated bankrupt, or if Tenant
shall make a general assignment for the benefit of creditors, or if in any
proceeding based upon the insolvency of Tenant a receiver of all the property of
Tenant shall be appointed and shall not be discharged within ninety (90) days
after such appointment, then Landlord may terminate this Lease by giving notice
to Tenant of its intention so to do; provided, however, neither bankruptcy,
insolvency, an assignment for the benefit or creditors nor the appointment of a
receiver shall affect this Lease or permit its termination so long as the
covenants on the part of Tenant to be performed shall be performed by Tenant or
someone claiming under it.
18. DEFAULT BY TENANT AND RIGHT TO CURE BY LANDLORD.
In the event default shall be made by Tenant in the payment of rent upon the day
it becomes due and payable and such default continues for a period of (10) days
after receipt by Tenant of written notice thereof, or if default shall be made
or suffered by Tenant in any of the other covenants and conditions of this Lease
required to be kept or performed by Tenant (other than payment of rent), and
Tenant fails to cure any such default(s) or fails to commence to cure such
default(s) within thirty (30) days after receipt by Tenant of written notice
from Landlord specifying the default or defaults complained of, then and in any
such event or events and whenever and as often as such failure default shall
occur, it shall and may be lawful for Landlord, at Landlord's election, at any
time thereafter, to re-enter into and repossess the premises and the building(s)
and improvements situated thereon, and every part thereof, and Tenant, subleases
or assignee of tenant, to remove and vacate. In the event that Tenant's default
(other than nonpayment of rent) is not cured within said thirty (30) day period
by reason of labor troubles, war, governmental regulations, unavailability of
materials or any condition beyond Tenant's reasonable control, the time for
curing such default shall be extended accordingly. Not withstanding the
foregoing, if the Tenant commences to remedy a non-monetary default within the
thirty day cure period, and proceeds to complete such remedy with due diligence,
the Tenant will not be deemed to be in default.
19. DEFAULT BY LANDLORD AND RIGHT TO CURE BY TENANT.
In the event default shall be made by Landlord in any of the covenants and
conditions in this Lease required to be kept or performed by Landlord and
Landlord fails to cure any such default(s) or fails to commence to cure such
default(s) within thirty (30) days after receipt by Landlord of written notice
from Tenant specifying the default or defaults complained of, then and in any
such event or events and whenever and as often as such failure or default shall
occur, it shall and may be lawful for Tenant, at Tenant's election, and at any
time thereafter, to cure such default for the account of Landlord and Landlord
shall,
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within fifteen (15) days after notice, reimburse Tenant for any amount paid by
Tenant, provided, however, if Landlord's failure to perform would result in an
emergency which affects personal life or damage to property, then Tenant may
proceed immediately to remedy the situation and give Landlord notice thereof as
soon as reasonably possible. In the event that Landlord's default is not cured
within said thirty (30) day period by reason of labor troubles, war,
governmental regulations, unavailability of materials or any condition beyond
Landlord's reasonable control, the time for curing such default shall be
extended accordingly.
20. RIGHT TO RE-ENTRY.
In the event that Landlord shall, during the period covered by this Lease,
obtain possession of said premises by re-entry, summary proceedings or
otherwise, Tenant hereby agrees to pay Landlord the expense (including
attorneys' fees) incurred in obtaining possession of said premises.
21. SUBORDINATION - ATTORNMENT.
A. This Lease shall, at the request of Landlord, be subordinate to any first
mortgage or deed of trust that may now or hereafter be placed upon the Leased
Premises and to any and all advances to be made thereunder and to the interest
thereon and all renewals, replacements and extensions thereof, provided the
mortgagee or trustee named in the mortgages or trust deeds shall agree to
recognize the Lease of Tenant in the event of foreclosure, if Tenant is not
then in default. Landlord agrees to keep Tenant advised as to the existence of
all mortgages on the property, including the names and addresses of all
mortgagees. Landlord agrees to request all mortgagees to notify Tenant in
writing of any default in any mortgage payments. Tenant shall have the right,
at its option, to make payments of rentals directly to the mortgagees involved
until such default is cured or removed.
B. Landlord covenants, warrants and represents that any mortgagee or trustee
under a deed of trust of the Leased Premises shall agree in writing to recognize
the Lease of Tenant in the event of foreclosure if Tenant is not in default
hereunder. Tenant shall, in the event any proceedings are brought for the
foreclosure or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by Landlord covering the Leased Premises, attorn
to the purchaser upon such foreclosure or sale and recognize any such purchaser
as Landlord under this Lease.
22. QUIET ENJOYMENT.
Landlord represents, covenants and warrants that it is the record title holder
of the Leased Premises at the time of commencement of the term of this Lease
free and unencumbered, and has full right and lawful authority to enter into
this Lease for the full term hereof and that upon Tenant's paying the rent and
observing and performing all the terms, covenants and conditions on Tenant's
part to be observed and performed, Tenant may
8
peaceably and quietly have, hold, occupy and enjoy the Leased Premises without
hindrance or molestation for the full Lease term hereof.
23. OWNERSHIP OF IMPROVEMENTS.
Upon the termination of this Lease, whether by lapse of time or otherwise, all
buildings and improvements then and at such time upon said Leased Premises shall
belong to Landlord, other than manufacturing or materials handling equipment,
furniture, trade fixtures and signs, that are at any time or from time to time
installed or placed by Tenant in or at the Leased Premises. Landlord shall have
no right or interest in such equipment, furniture, trade fixtures or signs and
Tenant may remove them at any time.
24. INVESTMENT TAX CREDIT.
Landlord hereby agrees to elect under the applicable provision of the INTERNAL
REVENUE CODE of 1954, as amended (hereinafter referred to as the "code"), to
pass through to Tenant all investment tax credit which may be available to the
facility covered by this Lease under Section 38 of said Code which is not
available to Landlord pursuant to the Code with respect to qualified property
installed by Landlord on the Leased Premises. Landlord agrees to promptly
execute all documents submitted by Tenant and required by said Code, and
regulations issued thereunder, to enable Tenant to obtain such credit and to
cooperate with Tenant with respect to the maintenance of records in connection
therewith.
25. COMPLIANCE WITH LAWS.
Tenant shall, at its own expense, promptly comply with all lawful laws, orders,
regulations or ordinances of all municipal, county and state authorities
affecting the premises hereby leased which are directly attributable to Tenant's
use of the Leased Premises, and the cleanliness, safety, occupation and use of
the same. Landlord hereby warrants and represents to Tenant that at the
commencement of the term hereof, the Leased Premises will comply with all laws,
orders, regulations and ordinances of all governmental authorities having
jurisdiction.
Landlord further warrants that the space to be occupied by Tenant, associated
parking areas and common facilities are free from and otherwise not encumbered
by any environmental impairments currently regulated under the Resource
Conservation and Recovery Act ("RCRA"), Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") and any other Federal, state, and/or
local environmental regulations.
26. ENVIRONMENTAL MATTERS
(a) DEFINITIONS. For purposes of these environmental provisions, the
following terms shall have the meanings set forth below.
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"Hazardous Material" means any substance:
(i) the presence of which requires investigation or remediation
under any federal, state or local environmental statute, regulation, rule,
ordinance or order; or
(ii) which is or becomes defined as a "hazardous waste", "hazardous
substance", pollutant, or contaminant under any federal, state, or local
environmental statute, regulations, rule, or ordinance, or amendments
thereto, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9601, (ET
SEQ.) and/or the Resource Conservation and Recovery Act (42 U.S.C. Section
6901, ET SEQ.); or
(iii) the presence of which on the Leased Premises causes or
threatens to cause under any common law in connection with any Hazardous
Material, as defined under clause (ii) above a nuisance upon the Leased
Premises or to the adjacent properties, or poses or threatens to pose a
hazard to the health or safety of persons on or about the Leased Premises;
or
(iv) without limitation, which contains petroleum, including crude oil
or any fraction thereof; or
(v) without limitation, which contains polychlorinated bipheynols
(PCBs), asbestos, or urea formaldehyde foam insulation.
"Off-Site Location" shall mean any site or facility to which Hazardous
Material generated on the Leased Premises has been transported for recycling,
reuse, treatment, storage, or disposal.
"Environmental Requirements" means all applicable present and future
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises, and similar items, of
all governmental agencies, departments, commissions, boards, bureaus, or
instrumentalities of the United States, states, and political subdivisions
thereof, and all applicable judicial, administrative, and regulatory decrees,
judgments, and orders relating to the protection of human health or the
environment.
"Environmental Damages" means all claims, judgments, damages, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs and expenses of investigation and defense of any claim (whether or not
such claim is ultimately defeated), and of any good faith settlement or
judgment, of whatever kind or nature, contingent or otherwise, matured or
unmatured, foreseeable or unforeseeable, including, without limitation,
reasonable attorneys' fees and disbursements and consultants' fees, any of which
are incurred at any time as a result of:
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(i) the existence of Hazardous Material upon, about, or beneath
the Leased Premises or migrating or threatening to migrate to or from
the Leased Premises, or the existence of a violation of Environmental
Requirements pertaining to the Leased Premises arising out of or in
connection with the use and occupancy of the Leased Premises; or
(ii) the release or threatened release of Hazardous Material
upon, about, or beneath Off-Site Locations or the existence of a
violation of Environmental Requirements pertaining to the Off-Site
Locations but in either case only to the extent arising out of or in
connection with any event or circumstance specified in clause (i) of
this definition.
(b) COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS. Neither party hereto
shall cause, permit, or suffer the existence or the commission by such party,
its agents, employees, contractors, or any invitees, of a violation of any
Environmental Requirements upon, about, or beneath the Leased Premises or any
portion thereof.
(c) HAZARDOUS MATERIAL. Neither party hereto shall cause or permit
any Hazardous Material to be used, stored, generated, or disposed of on or in
the Leased Premises in violation of any Environmental Requirement without first
obtaining the other party's written consent.
(d) INDEMNITY. Tenant will indemnify and save harmless Landlord from
and against any and all Environmental Damages which may be imposed upon,
incurred by, or asserted against Landlord or the Leased Premises, except those
which are a result of Hazardous Materials which were: (i) present at the Leased
Premises prior to the Commencement Date; (ii) placed or released at the Leased
Premises by the Landlord or Landlord's predecessor in title or any agent,
employee, contractor or invitee of either of them; or, (iii) in the case of an
Off-Site Location, were present at the Leased Premises or released or were
generated prior to the Commencement Date.
(e) OBLIGATION TO REMEDIATE. Notwithstanding any of the obligations
of Tenant to indemnify Landlord as provided above, Tenant shall, upon demand of
Landlord, and at Tenant's sole cost and expense, promptly take all actions to
remediate any Hazardous Material located upon, about or beneath the Leased
Premises which are (i) required by any federal, state, or local governmental
agency or political subdivision, as a result of Lessee's violation of
Environmental Requirements, or (ii) reasonably required to restore the Leased
Premises to the condition (in terms of environmental quality) in which they were
at the Commencement Date as a result of Tenant's violation of Environmental
Requirements.
(f) NOTICE. If either party hereto shall become aware of or receive
notice of any actual or alleged violation of Environmental Requirements, or
should either party hereto become aware of the release of Hazardous Material,
upon, beneath, or from the Leased Premises, then such party shall deliver to the
other party
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within ten (10) days of the receipt of any such notice or release of Hazardous
Material, a written description thereof, together with copies of any documents
in such party's possession which refer or relate to such violation or release.
(g) PRE-EXISTING CONDITIONS. Tenant shall have no liability under
the terms of this Lease for and Landlord will indemnify and save harmless Tenant
from and against any Environmental Damages resulting from (i) Hazardous
Materials which were present at the Leased Premises prior to the Commencement
date, (ii) any Hazardous Materials which are or have been generated, stored or
released by Landlord on or from the Leased Premises, or (iii) any breach by
Landlord of any of its obligations under this Section 26.
(h) TITLE III REPORTS/SITE INVESTIGATION OR ASSESSMENT REPORTS. Each
Party hereto shall provide the other party with copies of all XXXX S312 and S313
reports (and/or any analogous reports required under similar state or local
"Community Right to Know" statutes, ordinances or regulations) within ten (10)
days of their filing. Each Party hereto shall also promptly provide the other
party with copies of any and all reports or other documents prepared in
connection with any investigation, assessment or review of any nature which
relates to the environmental quality of the Leased Premises.
(i) UNDERGROUND STORAGE TANKS (UST'S). Landlord warrants there are
no UST'S on the Premises at the beginning of the Lease and each Party hereto
agrees that none shall be installed.
27. INTERPRETATION.
This Lease shall be interpreted in accordance with the laws of the state in
which the Leased Premises are situated.
28. NOTICES.
All notices provided for in this Lease shall be in writing and sent to the
respective parties at their addresses set forth at the beginning of this Lease
or at such other place or places as hereafter shall be designated in writing, by
the respective parties. Such notice shall be served personally or mailed by
U.S. registered or certified mail, return receipt requested, postage prepaid,
and shall be deemed to have been delivered upon such personal service or deposit
in such mails. Each party may, from time to time, designate other parties and
their addresses to whom copies of notices are to be sent on their behalf.
29. HOLDING OVER.
It is hereby agreed that in the event Tenant herein holds over after the
termination of this Lease, thereafter, the tenancy shall be from month-to-month
in the absence of a written agreement to the contrary, which month to month
lease may be terminated by either party upon thirty (30) days prior written
notice.
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30. CONSENT NOT UNREASONABLY WITHHELD.
Landlord agrees that whenever under this Lease, provision is made for Tenant
securing the consent of Landlord, such consent and the writing evidencing such
consent shall not be unreasonably withheld, conditioned or delayed.
31. ESTOPPEL CERTIFICATE.
At any time and from time to time, Landlord and Tenant agree, upon the request
in writing from the other, to execute, acknowledge and deliver to the requesting
party a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, then the same are in
full force and effect) and the dates to which minimum rent and other charges
have been paid.
32. CUMULATIVE RIGHTS.
It is agreed that each and every of the rights, remedies and benefits provided
by this Lease shall be cumulative and shall not be exclusive of any other of
said rights, remedies and benefits, or of any other rights, remedies and
benefits allowed by law.
33. PARTIAL INVALIDITY.
If any term, covenant or condition of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of the term, covenant, or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term, covenant
or condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
34. WAIVERS.
One or more waivers of any covenant or condition by either Landlord or Tenant
shall not be construed as a waiver of a further breach of the same covenant or
condition.
35. SHORT FORM LEASE.
Upon the request of either party hereto, the other party shall join in the
execution of a memorandum or so-called "short form" of lease for the purpose of
recordation. Said memorandum or short form of this Lease shall describe the
parties, the Leased Premises, the term of this Lease, options to renew and any
other special provisions except rentals payable hereunder and shall incorporate
this Lease by reference.
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36. LANDLORD'S WORK.
The Landlord, at its sole cost and expense, shall complete the work described in
Exhibit "B", attached hereto and made a part hereof ("Landlord's Work") by the
dates indicated therein. In the even the Landlord shall fail to complete all
items of Landlord's Work by the completion dates, the Tenant shall have the
right, but not the obligation, to complete any incomplete items of Landlord's
Work and deduct from the rent payable by the Tenant to the Landlord, a sum equal
to the cost of such completion.
37. CAPTIONS AND SECTION NUMBERS.
The captions, section numbers and index appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of the sections of this Lease or in any way affect
this Lease.
38. SUCCESSORS.
The covenants, conditions and agreements of this Lease shall be binding upon and
shall inure to the benefit of the heirs, representatives, successors and
permitted assigns of the parties hereto.
39. REAL ESTATE LICENSE DISCLOSURE.
Tenant is advised that Xxxx X. Xxxx, a partner in Square Feet Unlimited, is a
licensed Real Estate Salesman in the State of Ohio.
Landlord and Tenant hereby represent and warrant to each other that it has not
dealt with any broker or finder in connection with the negotiation or execution
of this Lease and each of them hereby indemnifies and will defend the other
against all claims, losses, damages, liabilities and expenses (including
without limitation reasonable attorney's fees and expenses) arising out of or
in connection with a breach of the foregoing representation and warranty by the
indemnifying party.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
all as of the day and year first above written.
WITNESSES; SQUARE FEET UNLIMITED,
a Michigan Partnership
By:
--------------------------- --------------------------
Xxxx X. Xxxx
AND
--------------------------- --------------------------
Xxxxx X. Xxxx
--------------------------- XXXXXX HEALTH PRODUCTS INC.
/s/ Xxxxxx Page By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------- --------------------------
Dated: 8/2/96
---------------------
STATE OF : OHIO
ss.
COUNTY OF : Xxxxxxxx
BE IT REMEMBERED that on this ____th day of July, 1994 before me the
subscriber, a notary public in and for said county, personally came SQUARE FEET
UNLIMITED, a partnership by Xxxx X. Xxxx and Xxxxx X. Xxxx, it's partners, the
Lessor in the foregoing Agreement of Lease, and acknowledged the signing thereof
to be its voluntary act and deed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal on the day and year last aforesaid.
__________________________
Notary Public
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STATE OF: CALIFORNIA
ss.
COUNTY OF: ORANGE
Before me, a notary public in and for said county, personally appeared the above
name Xxxxx X. Xxxxxxxxx by __________________, who acknowledged that she did
sign the foregoing instrument and that the same is the free act and deed of said
Corporation, and the free act and deed of him personally as such officer.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal on this 2nd day of August, 1994.
/s/ Xxxxxx Page
------------------------------
Notary Public
[Notary Seal]
16
FIRST AMENDMENT OF LEASE
This first Amendment to Lease dated this 20th day of May, 1996, by and
between SQUARE FEET UNLIMITED, a Michigan Partnership, ("Landlord"), whose
address is 0000 Xxx Xxxx, Xxxxxx, Xxxxxxxx 00000 and XXXXXX HEALTH PRODUCTS
INC., ("Tenant"), a Delaware Corporation, whose address is 000 X. 000xx Xxxxxx,
Xxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease dated August 2nd, 1994,
(the "LEASE"); and
WHEREAS, the Lease is still in full force and effect,
NOW THEREFORE, Landlord and Tenant agree to amend the Lease as follows:
1. Effective the 1st day of June, 1996, the Lease term shall be the
period commencing the first day of June, 1996 and ending the 31st day of May,
1999.
2. Effective as of the 1st day of June, 1996, Tenant covenants and agrees
to pay to Landlord, without demand, at Landlord's office or such other place as
Landlord may from time to time designate, as rent for the premises, Thirteen
thousand four hundred and twenty dollars and no cents ($13,420.00) per month.
3. Upon the expiration of the term of the Lease, and provided that the
Tenant is not both in default and past the expiration of any applicable cure
periods under the terms of this Lease, Tenant may, at its option, continue Lease
for another 3 year period. If Tenant continues to occupy the Premises as of
January 1st, 1999, and no notice of intent to vacate has been received by
Landlord, the Lease shall be extended automatically for another 3 year term.
4. During the original term as stated above, either Tenant or Landlord
may terminate the Lease by giving the other one years written notice of its
intention to do so. If such notice is given, there will be no "holding over"
except as agreed and at whatever rate the participants hereto agree upon at the
time. If Landlord receives such notice of intent to vacate, Landlord shall not
disclose such information to the employees of Tenant or the community for a
period of 90 days or until Tenant has advised employees of its intent, whichever
happens first.
5. In all other respects the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have hereunto set their hands
to duplicate originals hereof as of the day and year first written above.
WITNESSED BY:
R & R PROPERTIES, LANDLORD
By:
----------------------------------- --------------------------------
-----------------------------------
XXXXXX HEALTH PRODUCTS INC. TENANT,
/s/ Xxxxxx Page, Notary Public By: /s/ XXXXXX X. XXX
----------------------------------- -------------------------------
Xxxxxx X. Xxx
Vice President, Operations
-----------------------------------
