Exhibit 10(ix)
LEASE
THIS LEASE, made and entered into this 31st day of July, 1997, by and
between XXXXXXX AVENUE PROPERTIES, LTD., an Ohio limited liability company,
whose address 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, as "Landlord", and
LYTTON INCORPORATED, a Delaware close corporation, whose address is 0000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxx 00000, as "Tenant".
WITNESSETH:
WHEREAS, Landlord is desirous of leasing the premises located at 0000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000 to Tenant, and Tenant is desirous of leasing
from the Landlord said premises upon the terms and conditions set forth
hereinbelow.
NOW, THEREFORE, in consideration of the rents and mutual covenants
hereinafter set forth, Landlord and Tenant agree as follows:
ARTICLE I
LEASED PREMISES
1.1) Landlord hereby leases to Tenant pursuant to the term hereinafter
set forth the land, building square feet, structures, and fixtures as
hereinafter defined and other improvements (hereinafter, the "Premises") thereon
located at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000, more particularly described
on Exhibit A attached hereto and made a part hereof.
ARTICLE II
TERM
2.1) The Original Term of this Lease shall be for a term of five (5)
years commencing on August 1, 1997, and terminating on the last day of a full
"Lease Year" as hereinafter defined, subject to Tenant's options to extend as
hereinafter provided.
2.2) "Lease Year" shall mean each twelve (12) month period beginning on
the first day of the term of the Lease, and each yearly anniversary thereafter,
provided the commencement of the term of this Lease is on the first day of the
month. If the term of this Lease commences on any day other than the first day
of the month, then the "Lease Year" shall begin on the first day of the month
following the end of the month during which the term of this Lease commences.
Rent or any other matters provided in this Lease for which the "Lease Year" is a
factor shall be adjusted on a pro rata basis for any period prior to the first
"Lease Year" or any period subsequent to the last "Lease Year" within the term
of this Lease.
2.3) Provided this Lease is in full force and effect at the conclusion
of the Original Term or the first Renewal Term, if exercised, and Tenant is not
in default under the terms herein, Tenant shall have the option to renew this
Lease for two (2) terms of five (5) years each (hereinafter referred to as
"Renewal Term") at the Base Rent specified for the Renewal Term in Article III
below, and under the same terms, conditions and provisions as established herein
for the Original Term of the Lease. Any option to renew to be effective must be
exercised by Tenant by written notice to Landlord at the address specified in
Article XIX at least one hundred eighty (180) days prior to the commencement
date of the Renewal Term. The commencement date for the Renewal Term granted
pursuant to this section shall be immediately upon the expiration of the
preceding term.
2.4) If Tenant has not exercised an option to renew as herein provided
during the final one hundred eighty (180) days of the Lease or any Renewal Term,
Landlord shall have the right during the final one hundred eighty (180) days of
the Lease to advertise the availability of the Premises with a sign displayed
thereon and to show the Premises.
2.5) At the expiration of the Original Term or the Renewal Term if
exercised, Tenant shall promptly quit and surrender the Premises in good order
and condition in conformity with the applicable provisions of the Lease. If
Tenant shall holdover beyond the expiration of the Original Term or the Renewal
Term if exercised, such holdover shall not be construed to effect or constitute
other than a month-to-month tenancy regardless of any express or implied
acceptance of the holdover by Landlord. Tenant agrees to pay to Landlord during
any holdover period rent equal to one and one-half times the rent due during the
last year of the Original Term or the Renewal Term if exercised.
ARTICLE III
RENT
3.1) a) Tenant agrees to pay to Landlord in advance as Base Rent
for the Premises as follows:
(1) Commencing August 1, 1997 ("Commencement Date"), the sum
of Two Hundred Fourteen Thousand Seven Hundred Five and 92/100 Dollars
($214,705.92) for the first Lease Year payable in monthly payments of Seventeen
Thousand Eight Hundred Ninety Two and 16/100 Dollars ($17,892.16) ;
(2) For each Lease Year commencing with the second Lease Year
during the Original Term and any Renewal Term, if exercised, the Base Rent
shall, in each case, be the Base Rent the immediately preceding Lease Year of
this Lease plus the percentage increase, if any, in the Consumer Price Index
("CPI") from the level of said index for the month and year that the immediately
preceding Lease Year commenced to the level of that index for the first month of
the following Lease Year for which the Base Rent is being computed, provided,
however, that the Base Rent shall not decrease in any event. CPI is the average
for "all items" shown on the "United States city average for urban wage earners
and clerical workers, all items, groups, subgroups, and special groups of items
as promulgated by the Bureau of Labor Statistics of the United States Department
of Labor," using 1982-84 as a base of 100. In the event the CPI
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data is not available, the adjustment shall be computed as soon as possible and
applied retroactively
b) Monthly installments of the Base Rent provided in Paragraph
3.1(a) hereinabove shall be due and payable on or before the first day of each
month of the Original Term and the Renewal Term if exercised. Rent shall be
payable to Xxxxxxx Avenue Properties, Ltd., at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000.
ARTICLE IV
USE OF PREMISES
4.1) The demised Premises shall be used and occupied by the Tenant for
light manufacturing, sales, service, distribution and activities reasonably
related thereto, and for no other purpose or purposes, without the written
consent of the Landlord.
4.2) Tenant will not use the Premises in violation of any law or for
any illegal purpose and will perform or comply with the terms of this Lease
covering the Premises.
ARTICLE V
ALTERATIONS/REPAIRS
5.1) Tenant shall not, at any time during the Original Term or the
Renewal Term, if exercised, make any change or alteration, structural or
otherwise, to the building and improvements on the Premises without first
obtaining Landlord's prior consent in writing which shall not be unreasonably
withheld.
5.2) Except as provided in Article IX (Destruction of Premises) and
Article X (Condemnation) hereof, Tenant shall make all necessary repairs and
replacements to the Premises, major and minor, structural and non-structural,
including parking areas, drive-ways and sidewalks and general maintenance of the
interior and exterior of the Premises and shall keep all improvements in good
condition and repair throughout the Original Term or the Renewal Term if
exercised. Tenant shall operate and keep the Premises in a clean and sanitary
condition in conformance with all applicable laws and codes. In the event Tenant
shall fail to do so, then Landlord may, but shall not be required to perform
such acts for and on behalf of Tenant and the cost of any such work shall become
additional rent to be paid with the next installment of rents due hereunder.
Landlord and its agents shall have the right at reasonable times, upon
reasonable notice, to inspect the Premises but in such a manner as to avoid
interference with the Tenant's business.
ARTICLE VI
INSURANCE
6.1) Commencing on the Commencement Date and at all times during the
Original Term of the Lease, and any extensions thereof, Tenant shall maintain
and provide general liability insurance naming Landlord, Tenant, and any
mortgagee as named insureds in a single limit amount of at least One Million and
00/100 Dollars ($1,000,000.00) for injury to or death of any one person and Two
Million and 00/100 Dollars ($2,000,000.00) for injury to or death of
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more than one person and for damage to property in an amount not less than Five
Hundred Thousand and 00/100 Dollars ($500,000.00). Tenant shall carry Landlord
as an additional insured for such insurance coverage. Tenant shall provide
Landlord with written proof of such coverage upon execution of the Lease and
annually thereafter.
6.2) Tenant also shall maintain and provide during the Original Term
and the Renewal Term if exercised, fire and extended coverage insurance insuring
the Premises against all risk of physical loss to their full replacement cost,
with a deductible amount of Five Thousand and 00/100 Dollars ($5,000.00). Such
fire and extended coverage insurance policies shall be in the names of Landlord
and Tenant, as their respective interests may appear, and shall provide that any
losses payable thereunder shall be directed to and held jointly by Landlord and
Tenant in trust for distribution as directed by this Lease, subject however to
the rights of the Landlord's Mortgagee, if any.
6.3) Any policies of insurance required to be carried by Tenant shall
provide that said policies shall not be cancelled except upon thirty (30) days
written notice to Tenant and Landlord. In the event Tenant shall fail to obtain
the insurance policies specified herein, Landlord may obtain same and the cost
thereof shall become additional rent payable by Tenant with the next installment
of rent to become due, or at its option after giving notice in accordance with
Article XIX, seek all its remedies pursuant to Article XVII herein.
6.4) Landlord shall not be liable to Tenant and Tenant waives all
claims against Landlord for any damage to or death of any person or damage to or
destruction of property in or about the Lease Premises occasioned by theft,
fire, act of God, public enemy, riot, strike, war, court order, requisition or
order of governmental body or authority, or for any damage or inconvenience
which may arise through repair or alterations of any part of the Leased Premises
or failure to make any such repairs. Tenant shall not hold Landlord liable for
injury or damage to any person or property caused by any other tenant or persons
on the Leased Premises or resulting from the operation of heating or air
conditioning system, or lighting apparatus, or from falling plaster, or from
steam, gas, electricity, water, rain, or dampness which may leak or flow from
any part of the Leased Premises, or from the pipes, appliances or plumbing work
of the same, or from any other place. All goods or property or personal effects
stored or placed by the Tenant in or about the Leased Premises shall be at the
sole risk of the Tenant.
Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims, actions, liabilities, damages or loss arising out of
any injuries to or death of any person or damage to or destruction of property
occurring in or about the Leased Premises from any cost whatsoever due directly
or indirectly to the tenancy, use or occupancy of the Leased Premises by the
Tenant or any person claiming through or under the Tenant. This indemnification
obligation of Tenant shall include attorneys fees and all other costs and
expenses incurred by Landlord from the first notice that any claim or demand is
or may be made.
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ARTICLE VII
TAXES AND ASSESSMENTS
7.1) Commencing on the Commencement Date, Tenant covenants and agrees
to pay Landlord for all real estate taxes and assessments, personal property
taxes, special assessments and interest thereon, water, sewer and other utility
rates and changes, privileges or gross receipts taxes on rental payments
hereunder; and governmental levies and charges of any kind and nature whatsoever
which become due and payable during the Original Term and the Renewal Term, if
exercised, of the Lease. Notwithstanding the foregoing, all taxes and
assessments which become due and payable during the first and last years of the
Lease, as defined, shall be prorated between Landlord and Tenant based on the
Commencement and Termination Dates of the Original Term and the Renewal Term if
exercised.
a) Landlord shall provide the Tenant the invoice received from
the County Treasurer upon receipt and the Tenant shall thereupon pay to the
Landlord an amount sufficient to pay the installment of all real estate taxes
and assessments at least five (5) business days prior to the due date. Tenant
may at its option pay the taxes and assessments to the County Treasurer and
provide proof thereof to the Landlord prior to the due date.
b) Tenant shall, in addition to the foregoing, pay any new tax
of a nature not presently in effect but which may hereafter be levied, assessed
or imposed upon Tenant or the Premises, if such tax shall be based on or arise
out of the use or occupancy of the Premises including but not limited to any tax
levied upon the payment of rent.
c) Nothing in this Lease shall be construed as placing upon
Tenant any obligation to pay any income tax, transfer tax, inheritance tax,
capital gain tax, franchise tax or corporate stock tax imposed upon or payable
by Landlord.
7.2) Tenant will pay all fees for licensing, registration and
certificates of title and will pay all taxes, charges or assessments incident to
the ownership, use, operation and leasing of any Equipment, including personal
property taxes, but exclusive of taxes based upon income or gross receipts of
Landlord. Any such fees, taxes, charges or assessments if paid by Landlord,
shall be additional rent payable on demand with interest at the highest legal
rate from the date of payment.
ARTICLE VIII
UTILITIES
8.1) Commencing on the Commencement Date, Tenant shall pay or cause to
be paid all charges for water, gas, electricity, light and heat or power,
telephone or other utility services used, rendered or supplied to or in
connection with the operation of the Premises during the Original Term and the
Renewal Term if exercised of the Lease. Landlord makes no representation as to
the availability or adequacy of any utility services. Landlord shall have no
responsibility or liability of any kind for the quality, quantity, impairment,
interruption, stoppage or other interference with any utility service to the
Premises unless the same was caused by Landlord's negligence.
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ARTICLE IX
DAMAGE TO OR DESTRUCTION OF THE PREMISES
9.1) If the improvements (existing or made hereafter) on the Premises
shall be damaged or destroyed by fire or other cause , the Tenant shall
immediately undertake the repairs necessary to restore the Premises to the
condition immediately prior to the occurrence of the damage or destruction.
There shall be no abatement of rent during the time of repair provided the same
was not caused by acts of negligence of the Landlord. Tenant's duty to repair,
restore or replace the Premises shall not be conditioned upon or limited by the
receipt of insurance proceeds for the amount thereof.
9.2) Any insurance proceeds received by Landlord or Tenant as a result
of damage to or destruction of the Premises shall be retained in a joint trust
account by Landlord and Tenant for the repair, restoration or replacement of the
Premises pursuant to Section 9.1 but subject to rights of the Mortgagee.
Landlord and Tenant shall release said proceeds to Tenant and its contractors on
a progress payment basis as repair, restoration or replacement proceeds subject
to receipt of such documentation as Landlord may reasonably require to ensure
that work is properly progressing, such as invoices, lien waiver releases, etc.
9.3) In the event that the parties elect by mutual agreement not to
have the Premises repaired, the Lease shall thereupon terminate and all
insurance proceeds shall become the sole property of Landlord.
ARTICLE X
CONDEMNATION
10.1) If the whole of the Premises shall be taken or condemned by any
competent authority for any public or quasi public use, then in either event,
this Lease shall terminate as of the date of such taking and any unearned rental
paid in advance shall be repaid by Landlord to Tenant.
10.2) If only a portion of the Premises shall be taken or condemned by
a competent authority for a public or quasi public use or purpose, and if:
a) the part so taken includes the building or any part
thereof; or
b) the part so taken shall consist of twenty-five
(25%) percent or more of the leased Premises; or
c) the taking shall result in cutting off direct access from
the Premises to the public street or highway;
then Landlord or Tenant may elect any time prior to or within 30 days after
date possession of the Premises shall be required by the condemning authority,
to terminate this Lease upon written notice to the other. If the Lease is not
terminated pursuant to this paragraph, then this Lease shall
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remain in full force and effect with such abatement of rent which shall be in an
amount equal to the amount of the Premises taken or condemned, and Tenant shall
proceed with due diligence to make the alterations and repairs to the Premises
necessitated by such condemnation.
10.3) All damages awarded for any such taking under the power of
eminent domain, whether for the whole or a part of the Premise, shall belong to
and be the property of Landlord whether such damages shall be awarded as
compensation for diminution in value of the leasehold or for the fee of the
Premises, provided, however, that Landlord shall make available to Tenant such
portion of the award as is reasonably necessary for the Tenant to restore the
premises and Landlord shall not be entitled to any award made to Tenant for loss
of or damage to Tenant's trade fixtures and removable personal property or for
damages for cessation or interruption of Tenant's business.
ARTICLE XI
ASSIGNMENT AND SUBLETTING
11.1) Landlord's consent required:
a) Without first obtaining Landlord's prior written consent
(which consent shall not be unreasonable withheld by Landlord), Tenant shall not
sublet the whole or any portion of the Leased Premises, nor by operation of law
or otherwise shall Tenant pledge, hypothecate or assign all or any of its
interest in this Lease, whether for collateral purposes or otherwise. Any such
subletting or assignment shall be referred to as a "Transfer," and the person to
whom Tenant's interest is transferred shall be referred to as a "Transferee."
b) The consent referred to in Section 11.1(a) hereof shall not
be required in the case of any transfer by Tenant to a parent, subsidiary, or
other corporation or entity affiliated with the Tenant or to any entity into
which the Tenant is merged or to any entity which acquires substantially all of
the assets or capital stock of the Tenant.
c) Any Transfer by Tenant consented to by Landlord in
accordance with this Section 11.1 shall be only for the Permitted Use and for no
other purpose, and in no event shall any Transfer release or relieve Tenant from
any of its obligations under this Lease. If Landlord consents to a Transfer, the
permitted Transferee shall assume Tenant's obligations under this Lease and such
Transferee, at least thirty (30) days prior to the effective date of the
permitted Transfer, shall deliver to Landlord the proposed sublease, assignment
and assumption agreement or other instrument evidencing the Transfer and the
Transferee's undertaking of Tenant's obligations under this Lease. All of such
documents shall be subject to Landlord's approval. Tenant shall pay to Landlord
upon demand as additional rent Landlord's attorneys fees and administrative
expenses incurred in connection with the review or preparation of any documents
in connection with any Transfer.
d) Any Transfer without Landlord's consent shall not be
binding upon Landlord, and shall confer no rights upon any third person. Each
such unpermitted Transfer shall, without notice or grace period of any kind,
constitute a default by Tenant under this Lease. The acceptance by Landlord of
the payment of Rent following any Transfer prohibited by this Article
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XI shall not be deemed to be either a consent by Landlord to any such Transfer
or a waiver by Landlord of any remedy of Landlord under this Lease. Consent by
Landlord to any one Transfer shall not constitute a waiver of the requirement
for consent to any other Transfer. No reference in this Lease to assignees,
Concessionaires, subtenants or licensees shall be deemed to be a consent by
Landlord to the occupancy of the Leased Premises by any such assignee,
Concessionaire, subtenant or licensee.
11.2) Indemnity. Without limiting the other indemnities in favor of
Landlord contained in this Lease, Tenant shall indemnify, defend (with counsel
acceptable to Landlord) and hold Landlord harmless from and against any loss,
damage, costs and expenses, including, without limitation, attorneys' fees,
sustained or incurred by Landlord as a result of, or arising out of or in
connection with any claims made by any Transferee, any proposed Transferee, or
any broker, finder or other person claiming a commission or other compensation
in connection with a proposed Transfer.
ARTICLE XII
PERSONAL PROPERTY & FIXTURES
12.1) All Leasehold improvements such as the building, heating, air
conditioning equipment, and all equipment considered necessary to the general
operation and maintenance of the Premises ("Fixtures"), shall when installed and
attached to the Premises, become and remain the property of Landlord.
Notwithstanding the foregoing, "Personal Property" of Tenant, including
machinery and other equipment which are supplied and used by Tenant in the
conduct of its business (trade fixtures), which are not necessary for the
general operation and maintenance of the Premises, are not attached to the
Premises as Fixtures or Leasehold Improvements shall be the property of Tenant
and may be removed by Tenant at any time prior to the termination of this Lease
so long as Tenant is not in default under the terms of the Lease. Damages to the
Premises caused by such removal shall be repaired by Tenant at its expense.
12.2) At the termination hereof or on default hereunder all Fixtures
and Leasehold Improvements which are attached and not used by Tenant in the
conduct of his business shall become the property of the Landlord and shall not
be removed from the Premises.
ARTICLE XIII
NO WARRANTIES
13.1) Landlord makes no warranties, express or implied or
representations as to habitability of the structure on the Premises or as to its
use for a particular purpose. Tenant agrees that it has had an opportunity to
inspect the Premises and accepts them in "As Is" condition.
ARTICLE XIV
MORTGAGE
14.1) Landlord may mortgage or otherwise encumber the Premises or its
leasehold estate.
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14.2 a) This Lease and all of Tenant's rights are and shall be
subordinate to any mortgage that may be placed upon the Leased Premises by
Landlord and to any and all advances to be made thereunder, and to the interest
thereon, including renewals, replacements and extensions thereon.
b) Such subordination shall be automatic, without the
execution of any further subordination agreement by Tenant. If however, a
written subordination agreement, consistent with this provision is required by
the mortgagee, Tenant agrees to execute, acknowledge and deliver the same, all
in accordance with this section.
c) The Tenant will join in the signing of any non-disturbance
agreement and agree that Tenant will be bound to the mortgagee under the terms
of this lease remaining and will attorn to the mortgagee as its landlord.
ARTICLE XV
RIGHT OF FIRST REFUSAL TO PURCHASE
15) If, during the term of this Lease, Landlord receives and desires to
accept any bona fide offer (an "Offer") for the sale of the Leased Premises,
Landlord shall notify Tenant in writing of each Offer. This notice (the "Notice
of Offer") shall contain a copy of the Offer and all other terms and conditions
applicable to the Offer. Tenant shall have the right to purchase ("Right of
First Refusal") the Leased Premises at the purchase price set forth in the
Offer. Tenant shall exercise its Right of First Refusal, if at all, by giving
written notice of exercise of Landlord no later than the date ten (10) days
after Tenant's receipt of the Notice of Offer. Tenant's Right of First Refusal
shall terminate with respect to the Leased Premises if Tenant does not exercise
it right of first refusal. This Lease shall not terminate upon the sale of the
Leased Premises to a third party.
ARTICLE XVI
BROKER'S COMMISSION
16) Landlord and Tenant agree that no brokerage commission or similar
compensation is due in connection with this transaction. Each party agrees to
indemnify the other against all claims for brokerage commissions or other
compensation for services rendered at its instance in connection with this
transaction.
ARTICLE XVII
DEFAULT
17.1) If at any time during the Original Term or any Renewal Term of
this Lease:
a) Tenant shall default in the payment of Base Rent, taxes and
other assessments, insurance payments or utility charges or any other sum herein
required to be paid by Tenant and such default continues for ten (10) days; or,
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b) Tenant shall default in the observance or performance of
any material non-monetary covenant or provision of this Lease and such default
continues for twenty (20) days after written notice of such default from
Landlord, excepting, however, any such default which cannot be cured by the
payment of money and which cannot with due diligence be cured within said twenty
(20) days and which Tenant shall in good faith and with due diligence and
continuity be proceeding to cure; or,
c) The material interest of Tenant or any material property of
Tenant in the Premises or part thereof shall be levied or attached in any
proceeding and such process shall not be vacated or discharged within thirty
(30) days after such levy or attachment; or,
d) Tenant shall make an assignment for the benefit of
creditors; or,
e) A voluntary or involuntary petition is filed by or against
Tenant under any law for the purpose of adjudication of Tenant as bankrupt, or
for the extension of the time of payment, composition, arrangement, adjustment,
modification, settlement or satisfaction of the liabilities of Tenant, or for
the reorganization of Tenant under the Bankruptcy Act of the United States or
any future law of the United States having the same general purpose; or a
receiver is appointed for Tenant by reason of insolvency of Tenant; and such
adjudication, order, judgement, decree, custody or supervision has not been
vacated or set aside or otherwise terminated or permanently stayed within thirty
(30) days after the date of entry or beginning thereof; or,
f) Any interest of Tenant in the Lease is transferred without
the prior written consent of Landlord;
then Landlord may without any additional notice: (i) institute an action or
actions to enforce this Lease; or (ii) reenter the Premises by summary
proceedings or otherwise and re-let the Premises, but Tenant shall remain liable
for the difference between the amount of all rent received due to re-letting the
Premises and the rent due pursuant to the terms of this Lease and such amount
shall be due and payable to Landlord as rent payments as herein provided; or
(iii) then Landlord may give a written notice ("Termination Notice") to Tenant
that Landlord elects to terminate this Lease, upon the date specified in such
notice, which date shall be at least three (3) days from the giving of such
Termination Notice, the remaining portion of the Original Term or Renewal Term
if exercised shall expire and terminate and all rights of Tenant under this
Lease shall cease and Tenant shall surrender the Premises to Landlord.
Tenant will pay as additional rent all costs and expenses
incurred by or on behalf of Landlord including, without limitation, reasonable
attorneys' fees and expenses occasioned by any default or event of default by
Tenant under this Lease. If Tenant fails to cure any default in the time
allotted in this paragraph 17 and thereafter Landlord fails to give written
notice of termination to Tenant, then without jeopardizing any of Landlord's
rights or remedies herein, the remaining portion of the Original Term or Renewal
Term if exercised of this Lease shall automatically terminate and any continuing
occupancy of the Premises shall be on a month-to-month basis.
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17.2) If an event of default shall have occurred and be continuing,
whether or not the Original Term or exercised Renewal Term of this Lease shall
have been terminated pursuant to Section 17.1 or Section 17.2 hereof, Landlord
may re-enter upon and repossess the Premises, or any part thereof, peaceably or
otherwise, by summary proceedings, ejectment or other means, and may remove
Tenant and all other persons and any and all property therefrom. Landlord shall
not have or be under any liability, except for its own negligence, for or by
reason of any such re-entry, repossession or removal.
17.3) In the event that the Original Term or any exercised Renewal Term
of this Lease shall terminate as provided in Section 17.1 or Section 17.2 before
the expiration date originally fixed, or in the event Tenant is dispossessed or
removed therefrom by summary proceedings or otherwise, pursuant to Section 17.3
whether or not this Lease has been terminated pursuant to Section 17.1 or
Section 17.2, Landlord shall use all reasonable efforts to rent the Premises or
any part thereof in its own name, or for the account of Tenant, for the residue
of the Original Term or the Renewal Term if exercised of this Lease or for a
longer period of which said residue is a part, or for a shorter period or
periods on such commercially reasonable rentals and terms as Landlord can obtain
(which may include concessions or rent-free periods), and may receive rents
therefore applying any monies collected for the residue of such Original Term or
the Renewal Term if exercised, first, to the payment of such reasonable expenses
to which Landlord may have been put to obtain possession of, and to rents to the
performance of Tenant's obligations under this Lease. Any surplus shall belong
to Landlord but Tenant shall remain liable for any deficiency.
17.4) No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy herein or by law
provided, but each shall be cumulative and in addition to every other right or
remedy given herein or not hereafter existing at law or in equity or by statute.
17.5) Any installments of rent or other payment required which are not
paid when due shall at Landlord's option bear interest at the rate of prime, as
determined by The Provident Bank, plus two (2%) percent, but in no event
exceeding the highest rate allowed by law.
17.6) Landlord, after written notice to Tenant and expiration of any
applicable cure period, may perform for the account of Tenant any covenant in
the performance of which Tenant is in default. Tenant shall pay to Landlord, as
additional rent, upon demand, that amount paid by Landlord in the performance of
such covenant and that amount which Landlord shall have paid by reason of
failure of Tenant to comply with any covenant or provision of this Lease,
including attorneys' fees, in connection with prosecution or defense of any
proceedings instituted by reason of default of Tenant, together with interest at
the rate of prime, as determined by The Provident Bank, plus two (2%) percent,
not to exceed the highest rate allowed by law, from the date of notice of
payment by Landlord until paid by Tenant.
17.7) No waiver by Landlord of any breach by Tenant of any of its
obligations, agreements or covenants hereunder shall be a waiver of any
subsequent breach of any obligation, agreement or covenant, nor shall any
forbearance by Landlord of its rights and remedies with respect to such or any
subsequent breach constitute such a waiver. No waiver, change,
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modification or discharge by either party hereto of any provision in this Lease
shall be deemed to have been made or shall be effective unless expressed in
writing and signed by both parties.
ARTICLE XVIII
LIABILITY OF LANDLORD
18.1) If Landlord fails to perform any of its obligations under this
Lease, and, as a consequence of this default, Tenant recovers a money judgment
against Landlord, that judgment may be satisfied only out of the proceeds of
sale received upon execution of the judgment against the right, title and
interest of Landlord in the Leased Premises, and neither Landlord nor any of the
officers, directors, shareholders or employees of Landlord shall be liable for
any deficiency. In no event shall Tenant have the right to levy its execution
against any property of Landlord other than its interest in the Leased Premises.
In the event of the sale or other transfer of Landlord's interest in the Leased
Premises, Landlord shall be released from all liability and obligations under
this Lease except those for which a claim has been initiated or judgment
obtained.
ARTICLE XIX
NOTICE
19.1) Any notices or consents required to be given by or on behalf of
either party to the other shall be in writing, shall be effective upon receipt
and shall be given by mailing such notices or consents by certified mail, return
receipt requested, addressed to Tenant, and to Landlord at the above respective
addresses or at such other address or addresses as may be specified from time to
time in writing delivered to the other party in accordance with this Article. If
notice is returned showing failure of delivery, paid notice may thereupon be
mailed by regular mail, postage prepaid and shall be deemed effective upon
mailing.
ARTICLE XX
MECHANICS LIENS
20.1) Tenant shall not permit nor suffer any mechanic's, materialmen's
or other similar lien, claim of lien or notice of an intention to file the same
to be filed or claimed against the Premises or the Landlord's or Tenant's
interest therein by reason of any work, labor, materials, services or supplies
furnished or purportedly furnished to or for Tenant. Notwithstanding the
foregoing, if any mechanic's or materialmen's lien should be filed and/or
claimed against or encumber the Premises, then Tenant shall within thirty (30)
days of the filing or claiming thereof fully discharge and release the same from
the Premises by posting bond or otherwise. If Tenant shall fail to do so,
Landlord may do so and all cost or expense, including reasonable attorney's
fees, incurred by Landlord in connection therewith shall become additional rent
to be paid by Tenant together with the next rent to become due.
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ARTICLE XXIII
ENVIRONMENTAL
23.1) DEFINITIONS
-----------
a) ENVIRONMENTAL LAWS. For purposes of this Lease, the term
"Environmental Laws" shall include all present and future federal, state,
regional, county and local administrative, regulatory and judicial laws, rules,
statutes, codes, ordinances, regulations, binding interpretations, binding
policies, licenses, permits, approvals, plans, authorizations, directives,
rulings, injunctions, decrees, orders, judgments, common law and any similar
items, which now, or hereafter are, or will be in effect, and as the same have,
or hereafter may be, amended, modified, or supplemented from time to time,
relating to the protection of human health, safety or environment (including
ambient air, surface water, ground water, land surface, or subsurface strata);
including without limitation; (a) the Comprehensive Environmental Responses,
Compensation and Liability Act of 1980 (42 U.S.C. ss.ss.9601 et seq.); (b) the
Superfund Amendments and Authorization Act of 1986 (42 U.S.C. ss.ss.9601 et
seq.); (c) the Hazardous Materials Transportation Control Act of 1970 (49 U.S.C.
ss.ss.1802 et seq.); (d) the Resource Conservation Act of 1976, as amended by
the Solid and Hazardous Waste Amendments of 1984 ("RCRA") (42 U.S.C. ss.ss.6901
et seq.); (e) the Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977 (33 U.S.C. ss.ss.1251 et seq.) (the " Clean Water Act"); (f)
the Safe Drinking Water Act (42 U.S.C. ss.ss.300th et seq.); (g) the Clean Air
Act, as amended by the Clear Air Act Amendments of 1990 (42 U.S.C. ss.ss.1857(h)
et seq.); (h) the Solid Waste Disposal Act, as amended by RCRA (42 U.S.C.
ss.ss.6901 et seq.); (i) the Toxic Substances Control Act (15 U.S.C. ss.ss.2601
et seq.); (j) the Public Health Service Act (42 U.S.C. ss.ss.300 et seq.); (k)
the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C.
ss.ss.1101 et seq.); (l) the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) (7 U.S.C. ss.ss.7401 et seq.); (m) the National Environmental Policy Act
of 1975 (42 U.S.C. ss.ss.4321 et seq.); (n) the Rivers and Harbors Act of 1899
(33 U.S.C. ss.ss.401 et seq.); (o) the Oil Pollution Act of 1990 (33 U.S.C.
ss.ss.1321 et seq.); (p) the Endangered Species Act of 1973, as amended (16
U.S.C. ss.ss.1531 et seq.); (q) the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. ss.ss.651 et seq.); (r) counterparts of any of the
foregoing federal statutes enacted within or outside the United States or by any
other nation, any U.S., state, region, county or local government (including any
subdivisions thereof) with jurisdiction over the Premises and/or Landlord or in
force therein including without limitation, any such statutes relating to
Hazardous Activity and Hazardous Materials; and (s) any and all laws, rules,
codes, ordinances, regulations, binding interpretations, binding policies,
licenses, permits, approvals, plans, authorizations, directives, rulings,
injunctions, decrees, orders and judgments relating to hazardous waste,
hazardous substances, toxic substances, pollution, water safety, polychiorinated
biphenyis, petroleum (its derivatives, byproducts, or constituents), and the
protection of human health, safety or the environment.
b) HAZARDOUS MATERIALS. For purposes of this Lease, the term
"Hazardous Materials" shall mean any solid, liquid or gaseous material, alone or
in combination, mixture or solution, which is now or hereafter defined, listed
or identified as "hazardous" (including "substances" or "wastes"), "toxic", a
"pollutant" or a "contaminant" pursuant to any Environmental Law including,
without limitation, asbestos, urea formaldehyde, polychiorinated
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biphenyis (PCB's), radon, fuel oil, petroleum (its derivatives, byproducts, or
constituents) and any other dangerous, explosives, corrosive, flammable,
infections, radioactive, carcinogenic or mutagenic material which is prohibited,
limited, controlled or regulated under any Environmental Law, or which poses or
could post a threat or nuisance to the safety or health of any person on the
Premises or any property geologically or hydrologically adjacent to or
surrounding the Premises or the environment, or the presence of which could
constitute a trespass by the Landlord.
c) HAZARDOUS ACTIVITY. For purposes of this Lease, the term
"Hazardous Activity" shall mean the generation, manufacturing, production,
processing, refinement, treatment, pumping, injection, pouring, handling
storage, use (including any withdrawal or other use of groundwater), management,
transfer, distribution, transportation, deposit, disposal (including, without
limitation, arrangement for placement in any landfill, temporary holding area,
impoundment, sump or dump), dumping, disbursal, release, discharge, spill,
emission, leak, leaching, migration of Hazardous Materials in, on, under, about
or from the Premises or any part thereof into the indoor or outdoor environment
including, without limitation, the ambient air, surface water, groundwater or
surface or subsurface strata and any other act or thing, business or operation,
that increases the danger, or risk of danger, or poses an unreasonable risk of
harm to persons or property, on or off the Premises, or which may impact the
value of the Premises.
23.2) COVENANTS.
The Tenant hereby agrees, unconditionally, absolutely and irrevocably,
to indemnity, defend and hold harmless Landlord, its successors, assigns, and
the officers, directors, employees and agents of Landlord against and in respect
to any loss, liability, cost, injury, expense or damage of any kind whatsoever
(including, without limitation, court costs and attorneys' fees) which results
from activities or operations after the execution of the Lease which Landlord
may suffer or incur in connection with any inquiry, charge, claim, cause of
action, judgment, administrative order, judicial order, demand or lien made or
arising, directly or indirectly, in conjunction with or in respect to the
presence in, on, or under, the Premises of any Hazardous Materials arising from
the escape, seepage, spillage, leakage, discharge, emission or release on, or
into the Premises, or from the Premises into or upon any land, the atmosphere,
or any watercourse, body of water or woodland, including, without limitation,
any adjoining property which may cause any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under the Environmental
Laws, whether now known or unknown, resultant from the following: Tenant's
failure to comply with all applicable Environmental Laws; or Hazardous Activity
on the Premises by Tenant's or any agent or party acting at the direction or
with the consent of the Tenant.
ARTICLE XXIV
MISCELLANEOUS
24.1) This Lease contains the entire understanding of the parties
hereto and may be modified or altered only by agreement in writing. This Lease
has been negotiated by Landlord and Tenant and the Lease together with all the
terms and provisions hereof shall not be deemed to have been prepared by either
Landlord or Tenant individually, but by both equally.
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24.2) This Lease is a net, net, net lease and the Base Rent, and all
other sums payable hereunder by Tenant shall be paid without notice, demand,
offset or deduction, except as provided herein.
24.3) Tenant hereby acknowledges that this Lease is subject to all
matters of public record or restrictions, easements, licenses, zoning
regulations, and all ordinances, regulations and statutes of any local, state or
federal entity which may affect the Premises and Tenant accepts the Premises in
such condition.
24.4) The Tenant will at its own cost and expense, during the Original
Term of the Lease and the Renewal Term if exercised comply with the requirements
of every applicable statute, law, ordinance, rule or regulations of any
governmental body or agency and with any direction given by any public officer
pursuant to the law with respect to the manner in which the Tenant uses the
Premises including compliance with the Americans with Disabilities Act. The
Tenant agrees to cause to be done, at its own expense, any work and to make any
changes in or installations upon the Premises which may be required or ordered
by any law or lawful authority at any time during the Original Term of the Lease
or any Renewal Term if exercised; and if the Tenant, after notice that such work
has been thus ordered or required, shall fail to cause the same to be done with
reasonable promptness, the Landlord may cause the same to be done with
reasonable promptness, the Landlord with interest thereon at the rate of prime
as set by The Provident Bank, plus two (2%) percent, not to exceed that highest
rate allowed by law, to the rent herein reserved, which additional rent shall be
due and payable upon demand.
24.5) The laws of the State wherein the Premises are located shall
govern the validity, performance and enforcement of this Lease. The invalidity
or enforceability of any provision of this Lease will not affect or impair any
other provisions.
24.6) Wherever used, "Landlord" and "Tenant" shall be deemed to include
the heirs, personal representatives, successors, sublessees, assigns and
purchasers of a majority of the assets of said parties unless the context
excludes such construction.
24.7) Tenant shall assume any obligations under service contracts
affecting the Premises. Tenant's obligations under such contracts shall commence
on the date Tenant is given possession of the Premises. Landlord shall not be
liable for obligations entered into by Tenant.
ARTICLE XXV
MEMORANDUM OF LEASE FOR RECORDING
25.1) Either party may, at its option, record a Memorandum of Lease.
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ARTICLE XXVI
OPTION TO PURCHASE
26.1) If the Tenant is not in default, Landlord hereby grants Tenant
the right and option to purchase the Premises at any time during the Original
Term or Renewal Term. The Purchase Price shall be by mutual agreement of the
parties, or, if the parties are unable to reach an agreement within thirty (30)
days, the following appraisal process will be undertaken. If the parties are
unable to agree upon the purchase price, it shall be determined by appraisers
selected in the following manner: Landlord and Tenant shall each appoint an
appraiser and the purchase price shall be as determined by the two appraisers so
appointed. If the higher of the two appraisals is no more than 10% greater than
the lower appraisal, the purchase price of the Premises shall be the average of
the two appraisals. If the higher appraisal is more than 10% greater than the
lower appraisal, the two appraisers will select a third appraiser [from a list
of appraisers approved by both parties, which approval shall not be unreasonably
withheld]. The purchase price shall be the average of the three prices
determined by the appraisers. All appraisal costs and expenses shall be shared
by the parties equally. All appraisers shall be qualified appraisers of
commercial properties in the Dayton, Ohio area. The appraisers shall give prompt
written notice of the determination of purchase price pursuant to this Section.
Tenant shall exercise this option, if at all, by giving
Landlord written notice of its intent to exercise the option. Within sixty (60)
days of receipt of written notice, Landlord shall convey good and marketable fee
simple title, by general warranty deed, free and clear of any and all
restrictions, conditions, easements, and encumbrances, except the following: (i)
real estate taxes and assessments then due and payable; (ii) easements,
covenants, conditions and restrictions of record; (iii) zoning, building and
other laws, ordinances and regulations; (iv) all legal highways; and (v) all
encumbrances on or affecting the Premises created or suffered to be created by
Tenant.
26.2) Tenant shall pay rent and all expenses required under this Lease
(including real estate taxes) to Landlord through the closing date.
ARTICLE XXVII
QUIET ENJOYMENT
27.1) Landlord hereby warrants that it and no other person or
corporation has the right to lease the Leased Premises, and so long as Tenant
shall perform each and every covenant to be performed by Tenant hereunder and
shall not be in default of any such term, covenant or obligation, Tenant shall
have peaceful and quiet possession of the Leased Premises without hindrance on
the part of the Landlord or anyone claiming by, through or under the Landlord.
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IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease as
of the day and year first above written.
LANDLORD:
XXXXXXX AVENUE PROPERTIES, LTD.,
an Ohio limited liability company
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
---------------------------------
Title: Managing Member
---------------------------------
TENANT:
LYTTON INCORPORATED,
a Delaware close corporation
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
--------------------
Title: Chairman
--------------------
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