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Exhibit 10.17
AGREEMENT
THIS AGREEMENT made this 16th day of April, 2001, by and
between XXXXXX ASSOCIATES, a California Limited Partnership, (hereinafter
referred to as "Lessor") and DEPOSITION SCIENCES, INC., an Ohio Corporation
qualified to do business in the State of California, (hereinafter referred to as
"Lessee").
RECITALS
The parties hereto previously entered into an
Agreement dated March 2, 2001, (the "Lease") whereby Lessee would lease
certain real property owned by Lessor commonly known as 0000 Xxxxxx
Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, (the "Property") upon the satisfaction of
certain conditions precedent, all of which were required to occur no
later than March 16, 2001. All conditions were not satisfied on March
16, 2001, and the Lease, by its terms, automatically terminated.
The parties by this Agreement wish to provide for reinstatement of the
Lease subject to certain modifications to the Lease as expressly stated
herein and subject to the modifications to confirm and ratify all of
the terms, covenants, and conditions of the Lease.
AGREEMENT
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. Section 1.1 of the Lease is hereby amended to read in its
entirety as follows:
"1.1 This Agreement and this Amendment thereto shall become
effective when
(i) signed by all parties hereto upon the date of the party
last signing,
(ii) upon receipt by the Lessee of executed Nondisturbance and
Attornment Agreements as set forth in Paragraph 13.14 of this Lease
[Lessor has deposited with the Escrow Holder hereinafter named the
Nondisturbance and Attornment Agreements from Xxxxx Fargo Bank and Xxxx
Xxxxxx and provided copies to Lessee. Lessor has furnished Lessee
copies of correspondence from Bay Area Development Corp., the holder of
a second deed of trust against the Property
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which Lessee has accepted as satisfying the requirements that Lessor
executed Non-Disturbance and Attornment Agreement from said Bay Area
Development Corporation],
(iii) upon confirmation of the lease guaranty contained in the
Lease and execution of the lease guarantee provided with this amendment
by Advanced Lighting Technologies, Inc. (hereinafter "ADLT"),
(iv) upon the submission into escrow of the Option Fee as
provided for in the Option Agreement between the parties dated March 2,
2001,
(v) Xxxx Xxxxxx and his affiliates shall have acquired 100%
of the partnership interests of Lessor and all required consents to
such acquisition have been obtained [Lessor has provided Lessee with
documentation reflecting that Xxxx Xxxxxx now owns 80% of the
partnership interests in Lessor. The documentation reflecting that
Xxxxxx X. Xxxxxx has agreed to transfer the remaining 20% of the
partnership interest to Xxxx Xxxxxx'x nominees upon Xxxxxx X. Xxxxxx
acquiring the remaining 20% interest from Xxxxx Xxxxxxxx, and the
documentation reflecting that Xxxxxx X. Xxxxxx has entered into an
agreement with Xxxxx Xxxxxxxx to acquire the remaining 20% interest
subject to the approve of the U.S. Bankruptcy Court has been provided
to Lessee],
(vi) Xxxx Xxxxxx shall have filed a notice of recission with
respect to the notice of default recorded August 7, 2000, as instrument
00-078996 regarding deeds of trusts filed as instrument numbers 1997
0115820 and 1999 139354, Official Records of Sonoma County, California
[Notices of Rescission of Notice of Default has been deposited with the
Escrow Holder and a copy provided to Lessee],
(vii) Lessee shall have received satisfactory estoppel
certificates from the holders of all deeds of trust filed against the
Property, including among other things, a representation concerning the
outstanding balance, default rate and existing defaults [Lessor has
deposited an executed landlord waiver with Escrow Holder and provided a
copy to Lessee. An estoppel certificate from Xxxxx Fargo
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Bank and Xxxx Xxxxxx has been deposited into escrow and copies
furnished to Lessee. Lessor has furnished Lessee copies of
correspondence from Bay Area Development Corp., the holder of a second
deed of trust against the Property which Lessee has accepted as
satisfying the requirements that Lessor provide an estoppel certificate
from said Bay Area Development Corporation]; and
(viii) Lessee, at its expenses, shall have obtained a CLTA
standard leasehold and option policy of title insurance subject only to
(a) a lien to secure payment of real estate taxes and assessments, not
delinquent; (b) the lien of supplemental taxes, not delinquent; (c)
exceptions 4, 5, 6, 7, and 8 as set forth on Exhibit "C " hereto and
(d) the standard printed exceptions with endorsement to delete the
exclusions with respect to bankruptcy and creditor rights laws set
forth as Item 6 in the Exclusions From Coverage. [Lessee has received a
commitment from the Escrow Holder on behalf of Security Union Title
Insurance Company to provide the foregoing policy of title insurance
for the leasehold].
(ix) Lessee has received an acceptable legal opinion from Xxx
Xxxxxx opining to the enforceability of the Lease and Option.
2. Sonoma Title Guarantee Co., 000 Xxxxxxxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxxxxx, 00000, is hereby designated by the parties as the Escrow
Holder and is hereinafter referred to as "Escrow Holder"). The duties of the
Escrow Holder shall be the same as set forth in the Escrow Agreement entered
into on March 2, 2001, by the parties hereto and Sonoma Title Guarantee Co.
3. The Lease, as modified herein, shall be effective
("Effective Date") as of the date all of the conditions provided for in Section
1.1 of the Lease are satisfied but in no event later than June 30, 2001.
Foregoing notwithstanding, Lessee may commence occupation of the Property on the
date hereof and Lessee's obligation to commence paying rent as provided in
Section 3.1 of the Lease shall commence on the date hereof but shall not be due
and payable until the date the U.S. Bankruptcy Court for the Northern District
of California approval of the sale and transfer of Xxxxx Xxxxxxxx'x limited
partnership twenty percent (20%) interest in Lessor to Xxxxxx X. Xxxxxx.
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4. Except as herein otherwise expressly provided in this
modification, the parties hereby affirm and ratify all of the terms and
conditions of the Lease which shall commence as of the Effective Date as set
forth above.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the day and year first hereinabove written.
XXXXXX ASSOCIATES,
A California Limited Partnership
By /s/ Xxxx Xxxxxx
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General Partner
DEPOSITION SCIENCES, INC.
By /s/ Xxx Xxxxxxxxxx
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The undersigned hereby agrees to guarantee the obligations of the
lessee hereunder.
GUARANTOR:
ADVANCED LIGHTING TECHNOLOGIES, INC.
an Ohio Corporation
By: /s/ Xxxxx X. Xxxxxxx CEO
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(Title)
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