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Exhibit 10.14
EXECUTION COPY
LEASE AGREEMENT
THIS LEASE (the "Lease Agreement"), made as of this 1st day of
January, 1996, by and between 00000 XXXXXX XXXX COMPANY, LTD., an Ohio limited
partnership, with its principal place of business located at 00000 Xxxxxx Xxxx,
Xxxxx, Xxxx 00000 (hereinafter referred to as "Landlord"), and VENTURE LIGHTING
INTERNATIONAL, INC., an Ohio corporation, with its current mailing address at
00000 Xxxxxx Xxxx, Xxxxx, Xxxx 00000 (hereinafter referred to as "Tenant").
NOW, THEREFORE, for valuable consideration, the parties agree
as follows:
ARTICLE I.
DEFINITIONS
All capitalized terms shall have the meaning ascribed to such
terms in Exhibit "A" attached hereto.
ARTICLE II.
LEASED PREMISES
2.1. LEASED PREMISES. In consideration of the rents, terms,
provisions and covenants of this Lease Agreement, Landlord hereby leases, lets
and demises to Tenant the premises, consisting of a portion of a freestanding
office/warehouse building consisting of approximately 84,822 square feet of
space of Landlord's property located at 00000 Xxxxxx Xxxx, Xxxxx, Xxxx, as
outlined in blue Exhibit "B", including the manufacturing area on the first
floor of the two story building (the "Building"), (said leased area is
hereinafter referred to as the "Leased Premises"). Tenant shall also have
reasonable access to such other areas of the Building as is necessary for the
operation of Tenant's business,including but not limited to those areas
described on Schedule 2.1, subject however, to the written approval of Landlord,
which shall not be unreasonably withheld or delayed provided, however in case of
an emergency, Landlord's written approval shall not be required. Landlord shall
cause each new tenant of the Premises to agree in its lease with Landlord to
provide Tenant reasonable access to such areas of the Building as is necessary
for the operation of Tenants' business, including but not limited to, those
areas described on Schedule 2.1, upon twenty four hours prior written notice by
Tenant except in case of emergency in which event Tenant shall have immediate
access to such areas. The exercise of these rights to access shall not
unreasonably interfere with Landlord or other tenants' operations or occupancy.
2.2. THE COMMON AREAS. Landlord hereby grants to Tenant and
Tenant's employees, agents, customers and invitees the non-exclusive right,
during the term hereof, to use the Common Areas, in common with other tenants,
employees and invitees entitled to the use thereof.
Landlord reserves the right to alter or vary such areas from
time to time so long as it does not either materially reduce the total
facilities available for Tenant's use or impair in any material respect access
to and from adjacent public rights of way.
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2.3. PARKING. Tenant shall receive vehicle parking privileges
over the existing parking lot area of the Leased Premises, as shown on attached
Exhibit "C". Landlord shall have no responsibility for the security or
patrolling of such parking areas or for the unauthorized use of such parking
spaces by other persons; nor for damage or loss to any vehicle while parked on
the Premises unless caused by the negligence of the Landlord.
2.4. MECHANICAL EQUIPMENT ROOM AND BOILER ROOM. Tenant shall
have a right of nonexclusive access and license to use the Boiler Room, and
shall be provided a key to the outside door of the Boiler Room upon execution of
the Lease. Tenant shall provide Landlord with the names of three (3) employees
of Tenant who shall have a nonexclusive right of access and license to use the
Mechanical Equipment Rooms. Tenant shall also have the nonexclusive right of
access and license to be able to continue to run two additional exhaust pipes
through the wall between the low and high bays (Column row 8) and up through the
ceiling. The exercise of these rights to access and use shall not unreasonably
interfere with Landlord or other tenants' operations or occupancy. Access to the
Mechanical Equipment Rooms shall be permitted only to allow Tenant to maintain
its operations and systems.
2.5. CONDITION OF LEASED PROPERTY. Tenant has thoroughly
inspected the Leased Premises and is satisfied that the Leased Premises are
suitable for Tenant's intended use. Upon expiration of the term or earlier
termination of this Lease, Tenant shall surrender and deliver possession of the
Leased Premises to Landlord in broom clean condition and in good condition and
repair and excepting only ordinary wear and tear and loss by insured casualty,
subject to the terms and conditions of Section 5.5 herein.
ARTICLE III.
TERM
3.1. TERM OF LEASE. The term of this Lease Agreement shall be
six (6) years commencing on the 1st day of January, 1996, and shall terminate on
the 31st day of December, 2001, or otherwise mutually agreed by the parties, or
pursuant to Landlord's remedies hereinafter provided in the event of Tenant's
default in the performance of its obligations hereunder.
3.2. HOLDING OVER. If Tenant shall remain in possession of all
or any part of the Leased Premises after the expiration of the term of this
Lease, Tenant shall be deemed a tenant of the Leased Premises from
month-to-month, at a monthly rental equal to one hundred and fifty percent
(150%) of the Base Rent ("Holdover Rent") and subject to all the other terms and
conditions of the within Lease which are not inconsistent with such
month-to-month tenancy. Nothing herein contained shall be deemed a consent to or
approval of, or to excuse, any holding over by Tenant without Landlord's prior
written consent or without a new written agreement between the parties.
Negotiations shall not be construed as an agreement to renew or enter into a new
lease agreement. Upon any such holding over Tenant shall hold harmless and
indemnify Landlord from and against any and all damages, costs and expenses
sustained by Landlord as a result of Tenant's retention of possession of the
Leased Premises or any portion thereof, less any Holdover Rent received herein.
In the event that any environmental remediation of the Leased Premises is
required to be performed by Tenant and has not been completed prior to the
expiration of the Lease or any month-to-month tenancy thereafter, Tenant shall
pay Holdover Rent for the Leased Premises. Such completion shall be determined
upon inspection by Landlord's Environmental Expert which inspection shall occur
within two (2) weeks after the expiration of the lease or any month-to-month
tenancy thereafter.
3.3. TERMINATION OF LEASE. Upon termination of this Lease
Agreement, or upon the termination of the Tenant's right to possession in the
event of Tenant's default, without termination of the Lease Agreement, the
Tenant shall surrender possession and vacate the Leased Premises immediately,
and
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deliver possession of the Leased Premises to Landlord in broom-clean condition
and in good condition and repair, excepting ordinary wear and tear and/or loss
by insured casualty. Landlord may enter into and repossess said Leased Premises
with process of law and remove all persons and property therefrom in accordance
with the terms of this Agreement in the same manner and with the same right as
if this Lease Agreement had not been made.
Upon the termination of this Lease Agreement, or upon the
termination of the Tenant's right to possession in the event of Tenant's
default, without termination of the Lease Agreement, and subject to Tenant's
rights set forth in Section 10.3, any and all property may be removed from the
Leased Premises by the Landlord at Landlord's sole discretion and may be
handled, removed, stored or otherwise disposed of by the Landlord at the risk
and expense of the Tenant, and the Landlord shall in no event be responsible for
the preservation or safekeeping thereof. The Tenant shall pay to the Landlord
upon demand, any and all expenses incurred in such removal and all storage
charges against such property so long as the same shall be in the Landlord's
possession or under the Landlord's control. In the event the Landlord sells any
or all of the personal property of the Tenant, any funds received for the sale
therefrom shall be applied first to the payment of Landlord's expenses incurred
in said sale and then to the payment of rent and all other sums due from Tenant
hereunder. If any property shall remain on the Leased Premises or in the
possession of the Landlord and shall not be retaken by the Tenant within a
period of twenty (20) days from and after the time when the Leased Premises are
either abandoned by Tenant or repossessed by the Landlord under the terms of
this Lease Agreement, said property, at the sole option of Landlord, shall
conclusively be deemed to have been forever abandoned by the Tenant and shall
thereafter be the exclusive property of Landlord, subject to the terms of any
Landlord Agreement.
The Landlord shall charge the Tenant for the reasonable cost
of the removal of debris.
ARTICLE IV.
TITLE
4.1. QUIET ENJOYMENT. Landlord covenants that Landlord will
warrant and defend Tenant in the quiet enjoyment and peaceable possession of the
Leased Premises and all appurtenances thereto belonging, free from the claims of
all persons whatsoever, throughout the term hereof, so long as Tenant shall
perform the covenants to be performed by it hereunder, or so long as the period
for remedying any default in such performance shall not have expired. Landlord
warrants that it has not received written notice from any governmental authority
that the Leased Premises is not in compliance with any government regulations,
including, but not limited to, zoning ordinances, building codes, and health and
safety regulations, except with respect to matters Tenant has agreed to repair
or remediate pursuant to the terms of this Lease.
ARTICLE V.
RENT
5.1. BASE RENT. Tenant agrees to pay as rent for the Leased
Premises during the term of this Lease Agreement without demand, deduction or
offset, the amount of Two Million Three Hundred Five Thousand Dollars
($2,305,000.00) (a) Three Hundred Fifty Five Thousand Dollars ($355,000.00)
payable in twelve (12) equal, consecutive installments of Twenty-Nine Thousand
Five Hundred Eighty Three and 33/100 Dollars ($29,583.33) on the first day of
each month from January 1, 1996 through December 31, 1996; (b) Seven Hundred
Fifty Thousand Dollars ($750,000.00) in twenty four (24) equal, consecutive
payments of Thirty One Thousand Two Hundred Fifty Dollars ($31,250.00) on the
first day of each month from January 1, 1997 through December 31, 1998; and (c)
One Million Two Hundred Thousand Dollars ($1,200,000.00) in thirty six (36)
equal, consecutive payments of Thirty Three Thousand Three Hundred
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Thirty Three and 33\100 Dollars ($33,333.33) on the first day of each month from
January 1, 1999 through December 1, 2001.
5.2. OPERATING EXPENSES, INSURANCE AND TAXES. If for any
Comparison Year commencing January 1, 1996, Tenant's Share of Operating Expenses
exceeds Tenant's Share of Base Operating Expenses or if for any Comparison Year
commencing January 1, 1996, Tenant's Share of Insurance and Taxes exceeds
Tenant's Share of Base Insurance and Taxes Tenant shall pay the excess amount to
Landlord as Additional Charges. Notwithstanding the foregoing, Tenant's Share of
Operating Expenses for each Comparison Year, commencing January 1, 1996, shall
not exceed one hundred ten percent (110%) of Tenant's Share of Operating
Expenses for the immediately preceding year. Tenant shall pay such Additional
Charges in the following manner:
(i) Prior to January 1, 1996, and prior to the commencement of
each succeeding Comparison Year or as soon thereafter as
possible, Landlord shall furnish to Tenant a statement showing
Landlord's estimate of Operating Expenses, Insurance and Taxes
for the previous year and the amount of any Additional Charges
due from Tenant based upon that estimate;
(ii) Commencing as of January 1 of each Comparison Year, and on or
before the first day of each calendar month, Tenant shall pay
Landlord one-twelfth (1/12) of the amount of the estimated
Additional Charges due from Tenant for the Comparison Year, as
shown by the statement; provided, however, that for any
partial Comparison Year, on or before the first day of each
calendar month during any partial Comparison Year within the
Lease Term, Tenant shall pay to Landlord a sum equal to the
total estimated Additional Charges due from Tenant for that
partial Comparison Year (based on the proration in clause (iv)
of this subparagraph) divided by the number of calendar months
in that partial Comparison Year (counting any fractional
calendar month as a whole month). If Landlord's statement is
furnished after January 1 of a Comparison Year, on or before
the first day of the first calendar month following Tenant's
receipt of Landlord's statement, in addition to the monthly
installment of estimated Additional Charges for the Comparison
Year due on that date, Tenant shall pay another monthly
installment of estimated Additional Charges for each calendar
month or fraction thereof that has already elapsed in that
Comparison Year;
(iii) There shall be a final adjustment at the end of each
Comparison Year, to reflect annual Operating Expenses,
Insurance and Taxes as provided in Section 5.3; and
(iv) If the Commencement Date is other than January 1 or the Lease
Term expires or terminates on a day other than December 31,
the Additional Charges payable by Tenant shall be prorated on
a daily basis, based on a 360-day year.
5.3. FINAL STATEMENT. As soon as reasonably practicable after
the end of each Comparison Year, Landlord shall present Tenant with a final
statement of actual Operating Expenses, Insurance and Taxes for that Comparison
Year ("Final Statement"). Within thirty (30) days of presentation of the final
statement, Tenant shall pay Landlord, as Additional Charges, any amount due for
Tenant's Share of Insurance and Taxes and Tenant's Share of Operating Expenses
subject to the limitations set forth in Section 5.2. Any credit due Tenant for
overpayment of Tenant's Share of Insurance and Taxes or Tenant's Share of
Operating Expenses shall be credited against the monthly installments of
Tenant's Share of Operating Expenses or Tenant's Share of Insurance and Taxes
next coming due (except that Landlord shall refund to Tenant the amount of any
such credit for the final Comparison Year in the Lease Term). Tenant shall have
thirty (30) days after presentation of Landlord's final statement of actual
Insurance, Taxes and Operating Expenses within which to object in writing to the
accuracy of the statement; and shall be entitled to receive reasonable
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documentation and information relating to the sums set forth in the statement.
Upon expiration of said thirty (30) day period, Landlord's statement shall be
conclusive and binding on Tenant, provided Tenant has not objected to such
statement. Objection by Tenant shall not excuse or xxxxx Tenant's obligation to
make the payments required by this paragraph pending resolution of Tenant's
objection. In the event Landlord and Tenant cannot resolve Tenant's objection
within thirty (30) days of receipt of notice by Landlord of Tenant's objection,
and Tenant is not in default under any provision of the Lease, they shall each
appoint an arbitrator, both of whom shall select a third arbitrator. The
decision of the arbitrators shall be made within thirty (30) days of such
appointment and shall be final, and shall be pursuant to the then existing rules
of the American Arbitration Association. It shall be a condition precedent to
arbitration that Tenant have paid the total charges for Tenant's share of
Operating Expenses, Taxes and Insurance appearing on Landlord's statement. The
party ruled in error by the arbitration shall bear the total costs associated
with the arbitration. In the event that the difference between the amount of
Operating Expenses, Taxes and Insurance set forth on the Final Statement and the
actual amount of Operating Expenses, Taxes and Insurance is less than five
percent (5%) of the Final Statement, then Tenant shall bear its own and
Landlord's costs of the arbitration.
5.4. SECURITY DEPOSIT. There is currently Ten Thousand Two
Hundred Fifty and 98/100 Dollars ($10,250.98) on deposit for the Cleveland
Illuminating Company, and Four Thousand Seven Hundred Thirty Five and 09/100
Dollars ($4,735.04) for the Solon Department of Water and Sewer all of which
shall be deemed to be deposits for the benefit of Landlord should Tenant fail to
pay the utilities as billed. Tenant will deposit with Landlord funds equal to
one (1) month Base Rent. Tenant will replenish funds if deposits are used during
the term of the Lease for any payments by Landlord due to Tenant's default
within five (5) business days of demand; provided, however, that if, in the
reasonable opinion of Tenant, a default has not occurred, Landlord and Tenant
shall each appoint an arbitrator, both of whom shall appoint a third arbitrator
to determine whether a default hereunder Section 13 has occurred. The decision
of the arbitrators shall be final and shall be pursuant to the then existing
rules of the American Arbitration Association. In the event the arbitrators
determine that an event of default has not occurred, Landlord shall reimburse
Tenant the amount of funds replenished by Tenant within five (5) days of the
decision of the arbitrators. It shall be a condition precedent to arbitration
that Tenant shall have replenished the full amount of its security deposit. The
party ruled in default by the arbitrators shall bear the total costs associated
with the arbitration. Upon the occurrence of any default by Tenant or breach by
Tenant of Tenant's covenants under this Lease Agreement, Landlord may from time
to time without prejudice to any other remedy, use the security deposit to the
extent necessary to make good any arrears of rent and/or any damage, injury,
expense or liability caused to Landlord by the event of default or breach of
covenant, any remaining balance of the security deposit to be returned by
Landlord to Tenant upon termination of this Lease Agreement, and further
provided, that no default by Tenant under the Lease shall have occurred and be
continuing without cure at such time. Landlord may, but shall not be obligated
to, use or apply all or any part of the security deposit, as necessary, to cure
such default of Tenant.
5.5 PAYMENTS DUE IN ADVANCE. All monthly rental amounts are
due in advance on the first day of the month, and if not so paid, late charges
as set forth in Article 5.6 hereinbelow shall apply.
5.6 LATE CHARGES. The rental installments and the amounts due
in connection with the increase in the cost of Operating Expenses Taxes and
Insurance, as set forth in Article VI are all due in accordance with the
provisions contained within said Articles. If, after the fifth (5th) business
day beyond which such payments are to be made Tenant has not made such payments,
Landlord may charge Tenant a late charge of five percent (5%) of Base Rent for
each month or partial month said payments are not timely made.
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ARTICLE VI.
UTILITIES
6.1. UTILITIES.
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(a) Tenant shall pay the equitable share of the cost of all
utility services, including, but not limited to, all charges for electricity,
gas, water and sewer services consumed on the Leased Premises as a result of its
occupancy and for all electric light lamps and/or tubes as follows:
(i) TELEPHONE CHARGES. Tenant will pay 100% of its own
telephone charges.
(ii) NATURAL GAS. Subject to subparagraph (c) herein, Tenant
will pay for heating gas to the Leased Premises, based upon a formula set forth
on Schedule 6.1.
(iii) WATER/SEWER. Subject to subparagraph (c) herein, Tenant
will pay 100% of the water and sewer charges.
(iv) ELECTRICITY. Subject to subparagraph (c) herein, Tenant
will pay for electricity to the Leased Premises based upon a formula set forth
on Schedule 6.1.
(b) Tenant covenants to pay all water and sewer charges
accrued through the Commencement Date of this Lease Agreement. Landlord shall be
responsible for all costs to install any additional necessary utility meters,
except meters for Tenant's processed gas and water lines. Notwithstanding any
other provision contained herein, all utilities and utilities accesses and
services shall be in compliance with the applicable building codes and
regulations.
(c) In the event that new or current tenants leasing the
Premises use utility services to a greater extent than such utilities are being
used by tenants of the Premises (other than Tenant) as of September 1, 1995,
then Tenant's equitable share of the cost of such utility service reflected on
Schedule 6.1 shall be immediately adjusted and reduced by the cost of such
utility services used by other tenants. Tenant's equitable share of the cost of
such utility service shall be adjusted on Schedule 6.1 commencing upon the
billing period in which the cost of utility services used by other tenant's
increases. In the event Tenant pays more than its equitable share of such
utility services, Landlord shall promptly reimburse Tenant for such excess
payment. In the event of such utility increases, Tenant shall have the option,
at its expense, to install meters on its water and steam and gas lines and shall
pay one hundred percent (100%) of its metered charges arising from its use of
such utilities. Upon Tenant's request, Landlord shall install meters, at its own
expense, to measure electricity and Tenant shall pay one hundred percent (100%)
of its metered charges arising from its use of such electricity.
(d) Landlord shall have the right to cut off and discontinue,
after thirty (30) days' written notice to Tenant, any utility service furnished
by Landlord, whenever and during any period for which charges for same remain
unpaid beyond the due date.
6.2. INTERRUPTION OF SERVICES. Tenant understands and
acknowledges that any one or more utilities or other building services may be
interrupted by reason of accident, failure of equipment, emergency or other
causes beyond Landlord's control, or may be discontinued or diminished
temporarily by Landlord or other persons until certain repairs, alterations or
improvements are made within a reasonable period of time; that Landlord does not
represent or warrant the uninterrupted availability of such utilities or
building services and that any such interruption shall not be deemed an eviction
or disturbance of Tenant's right to possession, occupancy and use of the Leased
Premises or any part thereof, or render Landlord liable
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to Tenant for damages by abatement of rent or otherwise, or relieve Tenant from
obligations to perform its covenants under this Lease; provided, such repairs,
alterations or improvements are made within a reasonable period of time and in
no event longer than three (3) days, or in the event such repairs, alterations
or improvements cannot be completed within three (3) days Landlord shall
diligently perform and complete such repairs, alterations or improvements within
such time as is reasonably necessary.
ARTICLE VII.
INSURANCE
7.1. TENANT'S INSURANCE. Tenant hereby agrees to indemnify and
hold Landlord harmless from and against any cost, damage, claim, liability or
expense incurred by or claimed against Landlord, directly or indirectly, as a
result of or in any way arising from the negligent or intentional acts or
omissions of Tenant and Tenant's employees, agents, contractors and invitees on
the Leased Premises. Landlord hereby agrees to indemnify and hold Tenant
harmless from and against any cost, damage, claim, liability or expense incurred
by or claimed against Landlord, directly or indirectly, as a result of or in any
way arising from the negligent or intentional acts or omissions of Landlord and
Landlord's employees, agents, contractors and invitees on the Leased Premises.
Tenant further covenants and agrees that at all times during
the term of this Lease or any renewals or extensions hereof, it shall maintain
in full force and effect, with a financially responsible insurance carrier
licensed to transact business in the jurisdiction in which the Leased Premises
is located and reasonably approved by Landlord, at Tenant's sole cost and
expense, the following policies of insurance:
(a) Tenant, at all times during the term of this lease, and at
its expense, will procure, maintain and keep in force to indemnify Tenant and
Landlord as their respective interests may appear general public liability
insurance for claims for personal injury, death or property damage, occurring in
or about the Leased Premises, with a deductible not to exceed Twenty-Five
Thousand Dollars ($25,000.00), and with limits of not less than Five Million
Dollars ($5,000,000.00) with respect to personal injury or death and not less
than Five Million Dollars ($5,000,000.00) with respect to property damage.
(b) An all-risk policy of Fire and Extended Coverage insurance
on Tenant's trade fixtures, merchandise, equipment, improvements and all other
personal property located in or comprising a part of the Leased Premises and
either belonging to Tenant or in the care, custody and control of Tenant, and
providing insurance against damage caused by fire, lightning, flood and all
other risks typically included within the coverage provided by an all risk
policy. Said policy of insurance shall be in an amount not less than the
replacement value of Tenant's trade fixtures, merchandise, improvements and
other personal property. Tenant shall be the sole owner of such insurance and
shall recover and retain the proceeds of such insurance in the event of any loss
covered by such insurance.
(c) Tenant shall also provide and maintain rent insurance
payable in the event of a casualty in an amount equal to the sum of the annual
rent as provided for herein, and any increases in the annual rent, plus the
amount of any real estate taxes that Tenant is required to pay, for a period of
one (1) year, which policies shall be payable to Landlord, or to mortgagee of
Landlord, as their interest may appear, if procurable in that form. Duplicate
originals of policies of insurance shall be deposited with Landlord. The
proceeds of such insurance collected shall be applied by Landlord on account of
the annual rent or any increased annual rent or any additional rent accruing
under the terms of this Lease Agreement, the balance, if any, to be paid to
Tenant and Tenant shall pay the premium on all said policies from time to time.
It is agreed that the annual rent or the increased annual rent payable hereunder
shall xxxxx to the extent of the proceeds of such insurance policies as may be
received by Landlord but that Tenant shall remain fully
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responsible for such rents which exceed the amount of the proceeds of such
insurance, except as otherwise provided herein.
Each such policy or certificate therefor issued by the insurer
shall (i) to the extent obtainable, provide that any loss otherwise payable
thereunder shall be payable notwithstanding any act or negligence of Landlord or
Tenant which might, absent such agreement, result in a forfeiture of all or part
of the payment of such loss, and (ii) contain an agreement by the insurer that
such policy shall not be changed or cancelled without at least twenty (20) days
prior written notice to Landlord and to any such fee mortgagee named as a loss
payee thereunder. Tenant shall have the right to take out such insurance under a
blanket insurance policy or policies which can cover other properties owned or
occupied by Tenant, as well as the Leased Premises, provided such blanket
policies otherwise comply with the provisions of this Section, and provided
further that such policies shall provide for a reserved amount thereunder with
respect to the Leased Premises, so as to assure that the proceeds of the
insurance policies required by the provision hereof will be available,
notwithstanding any losses incurred with respect to the other properties covered
by such blanket policy. Tenant shall deliver to Landlord at least twenty (20)
days prior to the expiration of any of the aforementioned policies, certificate
evidencing replacement of the same.
Upon the failure at any time on the part of Tenant to procure
and deliver to Landlord any of the policies of insurance or certificates
hereinabove provided, at least twenty (20) days before the expiration of the
prior insurance policies, if any, or to pay the premiums therefor, Landlord
shall be at liberty from time to time, as often as such failure shall occur,
following ten (10) days prior written notice to Tenant, to procure such
insurance for a term not exceeding one (1) year and to pay the premiums
therefor, and any sums paid for insurance by Landlord shall be and become and
are hereby declared to be additional rent under this Lease Agreement forthwith
due and payable, and shall be collectible accordingly.
Tenant shall not take out separate insurance concurrent in
form or contributing in the event of a loss with that required to be furnished
by Tenant under this Section, unless Landlord and the holder of any fee mortgage
covering the Leased Premises are included therein as named insureds, with loss
payable as provided for hereinabove. Tenant shall immediately notify Landlord
whenever any such separate insurance is taken out and shall deliver to Landlord
duplicate original(s) thereof, or original certificates evidencing the same with
true copies thereof, as provided for in this Lease Agreement.
7.2. WAIVER OF SUBROGATION. Landlord and Tenant hereby waive
all causes of action and rights of recovery which either has or may have or
which may hereafter arise, and on behalf of any person or entity claiming
through or under them by way of subrogation or otherwise, for any loss or damage
to the Building on the Leased Premises or any portion thereof, property or
operation therein, by reason of fire or any peril insured against by standard
fire and extended coverage insurance, regardless of cause or origin, including
any act of negligence by either party, but only to the extent of any recovery
under any such policy of insurance then in effect, and only if such waiver shall
not invalidate or impair the coverage of any such policy of insurance. Each
party to this Lease shall give to each insurance company which has issued to it
one or more policies of fire and extended coverage insurance, notice of the
terms of the mutual releases contained in this Section 7.2 and have such
insurance policies properly endorsed, if necessary, to prevent the invalidation
of such insurance by reason of the provisions of this Section 7.2 Landlord and
Tenant hereby indemnify the other against any loss or expense, including
reasonable attorney fees, resulting from the failure to obtain such waiver.
7.3. LOSS OR DAMAGE TO PROPERTY. Tenant hereby agrees that all
personal property of every kind or description which may at any time be kept in
or about the Leased Premises including, but not limited to, motor vehicles,
merchandise, fixtures and equipment, shall be there at the sole risk of Tenant,
or at the risk of those claiming under Tenant, and Landlord shall not be liable
for the care, safety or theft of said
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property, nor for any damage or injury thereto unless caused by the negligence
of Landlord. In addition, Landlord shall have no liability for any damage to
said property or loss suffered by Tenant arising directly or indirectly from the
bursting, overflowing or leaking of water, sewer or steam pipes, beating and
plumbing fixtures, and roof leaks; electrical wiring and equipment; heat or
cold; gas or odors; any act of any other tenant or occupant of the Building; and
any other manner whatsoever, unless caused by Landlord's negligence, but only to
the extent not waived by the Waiver of Subrogation contained above.
7.4. LANDLORD'S INSURANCE. During the Lease term, Landlord
shall keep the Building insured against loss by fire and all of the risks and
perils usually covered by an extended coverage endorsement to a policy of fire
insurance upon property comparable to the Premises, and shall maintain, or
caused to be maintained, public liability insurance upon the Premises. This
insurance shall be written by a company of recognized financial standing which
is authorized to an insurance business in the State of Ohio, and shall be in
amounts customary for property comparable to the original Premises. Landlord may
also procure other insurance on the Leased Premises deemed appropriate by
Landlord, including, but not limited to, boiler and machinery, plate glass, rent
loss and "all risk of physical loss" insurance or endorsements.
7.5. INCREASE IN TENANT'S INSURANCE PREMIUMS. In the event
that the operations of any tenant of the Premises causes an increase in the
insurance premiums of Tenant in excess of Five Thousand Dollars ($5,000.00) on
an annual basis, and Tenant provides Landlord reasonable evidence that the
operations of such other Tenant caused such increase Landlord and Tenant shall
within a reasonable period of time after Tenant receives notice of such
increase, agree upon an equitable adjustment to Base Rent or credit to Tenant,
which adjustment or credit shall be made within a reasonable period of time. In
the event that Tenant's insurance is cancelled as the result of the operations
of any tenant of the Premises and after diligent efforts Tenant can not obtain
insurance, Landlord shall cause the other tenant to modify its operations within
ten (10) days of written notice of such cancellation so that Tenant can obtain
insurance coverage equivalent to the coverage carried by Tenant at the date of
cancellation in accordance with Section 7.1.
7.6. NOTICE OF NEW TENANT. In the event that any person or
entity ("New Tenant") enters into a lease of a portion of the Premises
subsequent to the date hereof, Landlord shall give notice to Tenant upon
execution of a lease, whichever occurs earlier setting forth the name of the New
Tenant, a reasonably detailed description of the New Tenant's business and the
date of occupancy of the Premises by the New Tenant.
ARTICLE VIII.
DESTRUCTION
8.1. CASUALTY DAMAGE AND RESTORATION. In the event of damage
to or destruction of the Leased Premises or to common facilities and areas
necessary to provide normal access to the Leased Premises or to other portions
of the Building or its equipment, which portions and equipment are necessary to
provide services to the Leased Premises in accordance herewith, then the
following provisions shall apply:
(a) If the Leased Premises shall be destroyed or damaged by
any cause as to be unfit in whole or in part for occupancy, and in Landlord's
sole judgment, such destruction or damage could reasonably be repaired within
ninety (90) days from the date of said destruction or damage, then Tenant shall
not be entitled to surrender possession of the Leased Premises, nor shall
Tenant's liability to pay rent under this Lease cease without the mutual consent
of the parties hereto; provided, however in the case of any such destruction or
damage, Landlord shall repair the same with all reasonable speed and shall
complete such repairs within ninety (90) days from the date of said destruction
or damage, and if, during such period, Tenant shall be unable to use all or any
portion of the Leased Premises, a proportionate allowance shall be made to
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Tenant from the rent and other charges, including, but not limited to, Operating
Expenses, Taxes and Insurance due from Tenant corresponding to the time during
which and to the portion of the Leased Premises of which Tenant shall be so
deprived of the use on account thereof.
(b) If, in Landlord's sole judgment, such destruction or
damage cannot reasonably be repaired within ninety (90) days form the date of
said destruction or damage, Landlord shall notify Tenant within thirty (30) days
after the happening of such destruction or damage whether or not Landlord will
repair or rebuild. If Landlord shall elect to repair or rebuild, Landlord shall
specify the time within which such repairs or reconstruction will be completed.
Tenant shall have the option within thirty (30) days after the receipt of such
notice, to elect either to terminate this Lease and thereupon both Landlord and
Tenant shall be relieved of all further liability hereunder or to extend the
term of this Lease by a period of time equivalent to the time from the happening
of such destruction or injury until the Leased Premises are restored to their
former condition. In the event Tenant elects to extend the term of the Lease,
Landlord shall restore the Leased Premises to their former condition within the
time specified in the notice, and if, during such period, Tenant shall be unable
to use all or any portion of the Leased Premises, a proportionate allowance
shall be made to Tenant from the rent and other charges, including, but not
limited to, Operating Expenses, Taxes and Insurance due from Tenant
corresponding to the time during which and to the portion of the Leased Premises
of which Tenant shall be so deprived of the use on account thereof.
(c) If the Leased Premises are destroyed or damaged during the
last eighteen (18) months of the term of the Lease or any extension thereof to
the extent of fifty percent (50%) or more of the then value of the Leased
Premises or the Building of which the Leased Premises are a part, then Landlord
shall have the right to cancel and terminate this Lease as of the date of such
damage or destruction by giving notice thereof within thirty (30) days after the
date of such damage or destruction.
(d) Notwithstanding anything contained herein to the contrary
in this Section 8.1(d), Landlord may cancel this Lease with no further liability
to Tenant whatsoever, in the event that following any such damage or
destruction, Landlord's mortgagee requires Landlord to make advance payments
upon or full payment of the outstanding mortgage balance.
(e) Except as provided herein, the obligation to pay the rent
provided for herein and to otherwise perform Tenant's obligations hereunder
shall continue unabated by reason of any such damage or destruction of the
Leased Premises; that is, there shall be no abatement or diminution of rent or
release from any of Tenant's obligations hereunder by reason of such damage or
destruction, regardless of the period of time, if any, during which the Leased
Premises or any part hereof remain untenantable, any laws to the contrary
notwithstanding, except to the extent Landlord actually receives the proceeds of
any rent insurance as its sole property.
(f) In the event the insurance proceeds are not permitted by a
mortgagee of the Leased Premises to be made available for such repair or
restoration, or in the event such repair or restoration cannot be effected
within ninety (90) days of the damage or destruction, the Tenant may elect:
(i) To terminate the term of this Lease Agreement by giving to
Landlord written notice thereof within thirty (30) days after the determination
that proceeds are not available and such proceeds not having been made
available; or
(ii) To continue this Lease Agreement, and in such event, the Base
Rent for the Leased Premises shall be abated in proportion to the amount of the
Leased Premises rendered unsuitable for Tenant's uses during such time as such
insurance proceeds are not made so available for restoration; provided, however,
that in the event the Landlord promptly notifies Tenant of Landlord having other
funds available for
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use in rebuilding and restoring in lieu of and in the amount of not less than
the insurance proceeds, Tenant may not terminate this Lease Agreement, and such
substitute funds shall be used for repair and rebuilding as if they were the
insurance proceeds, and the rent shall be abated in proportion to the amount of
the Leased Premises rendered unsuitable for Tenant's uses.
ARTICLE IX.
USE
9.1. USE OF LEASED PREMISES. Landlord specifically consents to
the use of the Leased Premises solely for office, manufacture, distribution and
storage of lighting bulbs, lamps, fixtures, supplies and related activities and
for no other purpose or use whatsoever without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed.
9.2. COVENANTS REGARDING USE. In connection with its use of
the Leased Premises, Tenant agrees to the following:
(a) Tenant shall not use the Leased Premises in any hazardous
manner because of fire risk or otherwise without taking normal precautions. No
hazardous substance or equipment shall be brought or kept on the Leased Premises
or adjacent areas, or stored or used therein, in violation of any applicable
laws. If any of Tenant's operations produce gases, vapors, odors, smoke,
residuary material or noise other than that which is currently produced by its
operations or which is significantly disturbing to the other tenants of the
Premises, Tenant will, on Landlord's written request, forthwith cease such
operation and shall install ventilating or other apparatus to eliminate such
disturbances. If Tenant installs equipment which unbalances or overloads
electrical equipment or wiring in or about the Leased Premises, it shall correct
such unbalanced or overloaded condition and replace any equipment or wiring
thereby damaged at its own expense. Tenant shall not deposit oil, grease,
solvents or other toxic or hazardous substances in sewers or drains serving the
Leased Premises in violation of any Environmental Laws. In the event of a spill
or release by Tenant in violation of any Environmental Laws, Tenant shall have
such sewers and drains cleaned at its expense.
(b) Tenant shall not use the Leased Premises, or allow the
Leased Premises to be used, for any purpose or in any manner which would
invalidate any policy of insurance now or hereafter carried on the Building or
increase the rate of premiums payable on any such insurance policy. Tenant, at
its sole expense, shall comply with any and all reasonable requirements of any
insurance organization or company necessary for the maintenance of fire and
public liability insurance covering the Leased Premises and the Building at a
reasonable cost and upon reasonable prior written notice of such requirements
and an opportunity to modify its activities. Should Tenant fail to comply with
this covenant, Landlord may, at its option, require Tenant to stop engaging in
such activity or to reimburse Landlord as additional rent for any increase in
premiums charged during the term of this Lease on the insurance carried by
Landlord on the Leased Premises and attributable to the use being made of the
Leased Premises by Tenant.
9.3. ACCESS AND INSPECTION OF THE LEASED PREMISES. Landlord
reserves the right to enter the Leased Premises or any part thereof, at any time
in the event of an emergency, and otherwise at reasonable times, after
reasonable written notice delivered twenty-four (24) hours prior to the time of
entry, to take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Leased Premises or to the
Building, as may be necessary or desirable for the safety, protection or
preservation of the Leased Premises or the Building or as may be necessary in
order to comply with all laws, orders, and requirements of any governmental
authority; or for the purpose of exhibiting same to prospective purchasers,
lenders or mortgagees.
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9.4. COMPLIANCE WITH LAWS. Tenant shall, at its sole cost and
expense, comply with all laws, ordinances, orders, rules and regulations of
state, federal or municipal or other agencies or bodies having jurisdiction
relating to the use, conditions and occupancy of the Leased Premises, provided,
however, failure to comply with any minor provision of such laws, ordinances,
orders, rules and regulations shall not constitute a default hereunder unless
any such state, federal, municipal or other agency or such body having
jurisdiction requires compliance with such provisions by notice to Landlord.
Notwithstanding anything to the contrary herein, Tenant shall have no obligation
to make any repairs to the Leased Premises, except as provided in Schedule 11.1,
or to make any alteration or improvement to the Leased Premises, or to the
Building of which the Leased Premises forms a part, which would constitute a
capital improvement to the extent that said capital improvements are not
necessitated as a result of Tenant's use and/or operations without or about the
Leased Premises, or make any other structural change to the Leased Premises or
remedy any condition of the Premises existing prior to the commencement of
Tenant's leasing of the Premises.
Tenant shall secure all necessary governmental permits for its
use and occupancy of the Leased Premises as are required by law from time to
time and shall provide copies of the same to Landlord upon request or whenever a
new permit is required to be obtained.
9.5. COMPLIANCE WITH BUILDING RULES AND REGULATIONS. Rules and
regulations governing the use and occupancy of the Building have been adopted by
Landlord for the mutual benefit and protection of all the tenants in the
Building. Tenant shall comply with and conform to the rules and regulations
currently in effect, which are set forth in a schedule attached hereto, made a
part hereof, and marked Exhibit "E". Landlord shall have the right to amend such
rules and regulations or to adopt new rules and regulations from time to time in
any manner that it deems necessary or desirable in order to insure the safety,
care and cleanliness of the Building and the preservation of order therein. All
such rules and regulations shall be made, applied and enforced uniformly as to
all tenants in the Building, whenever practical.
9.6. COMPLIANCE WITH ENVIRONMENTAL LAWS.
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(a) ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. For purposes
herein, the term "Environmental Law(s)" shall mean any federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability or standards of conduct concerning any
Hazardous Substance, as now or at any time hereafter in effect. For purposes
herein, the term "Hazardous Substance(s)" shall include, but not be limited to,
Hazardous Material, Hazardous Waste, Toxic Material, Toxic Waste, Infectious
Material, Infectious Waste and shall have the meaning ascribed in any
Environmental Law to any hazardous, toxic or dangerous waste, substance,
pollutant or material.
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant warrants and
represents that: (i) Tenant will not violate, in connection with the use, lease,
maintenance or operation of the Leased Premises and the conduct of the business
related thereto, any Environmental Laws, and (ii) Tenant, its agents, employees,
subtenants and independent contractors, will operate the Leased Premises and
will receive, handle, use, generate, manufacture, recycle, store, treat,
transport and dispose of all Hazardous Substances in substantial compliance with
all Environmental Laws. Notwithstanding the foregoing, Tenant shall not permit
the Leased Premises to become a storage or disposal site for hazardous or toxic
substances and wastes, in violation of any Environmental Law. Tenant shall have
no obligation to remediate any condition of the Premises described in a certain
environmental report prepared by ERT dated August 8, 1988, except Tenant shall
be responsible for the remediation of such condition if Tenant causes such
condition or any other condition to be in violation of any Environmental Law.
(c) TANKS. Tenant warrants that it will not install any
storage tanks without the written consent of Landlord, which shall not be
unreasonably withheld or delayed or waste water treatment facilities
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or other similar facilities on, under or at the Leased Premises which contain
materials which, if known to be present in soils or groundwater, would require
clean up, removal, or some other remedial action on the Leased Premises.
Landlord hereby consents to the installation of an above ground storage tank
located on the premises.
(d) NOTICES OR OTHER INFORMATION. If Tenant acquires any
knowledge of or receives any notice or other information regarding any
noncompliance with regard to any environmental, health or safety law, or if
Tenant is required to give notice of a release pursuant to any environmental
laws, Tenant shall immediately notify Landlord orally and in writing and provide
Landlord with copies of any written notice or information. If said violation was
caused by Tenant, or Tenant's agents or subtenants, then Tenant shall
immediately take any and all remedial action required by Environmental Laws. If
Tenant fails to take such immediate remedial action, Landlord may do so and the
costs of said action shall be payable by Tenant upon demand. If Landlord
acquires any knowledge of or receives any notice or other information regarding
any noncompliance with regard to any environmental, health or safety law by any
tenant on the Premises, Landlord shall immediately notify Tenant orally and in
writing and provide Tenant with copies of any written notice or information.
(e) INDEMNIFICATION. The Tenant agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities
(including strict liability), damages, orders and executions, injuries,
expenses, claims, penalties, costs of any settlement or judgment and claims of
any and every kind whatsoever paid, incurred or suffered by, or asserted
against, the Landlord by any person or entity or governmental agency for, with
respect to, or as a direct or indirect result of any activity of Tenant or
Tenant's subtenants, agents, licensees or invitees during the time Tenant is in
or has a right to possession or the presence caused by Tenant, agents, licensees
or invitees on or under the Leased Premises of, or the release, threatened
release or transportation by Tenant of, any Hazardous Substance. The provisions
of this Section shall survive termination of the Lease.
Landlord agrees to indemnity Tenant and hold Tenant harmless
from and against any and all losses, liabilities (including strict liability),
damages, orders and executions, injuries, expenses, claims, penalties,
reasonable attorney's fees, costs of any settlement or judgment and claims of
any and every kind whatsoever paid, incurred or suffered by, or asserted
against, the Tenant by any person or entity or governmental agency for, with
respect to, or as a direct or indirect result of (i) the presence on or under
the Leased Premises of, or the release, threatened release or transportation, of
any Hazardous Substance, except if released or caused by Tenant or (ii)
Landlord's noncompliance with any Environmental Laws. The provisions of this
Section shall survive termination of the Lease.
(f) INSPECTION OF LEASED PREMISES. Landlord's Environmental
Expert shall have reasonable access to inspect the Leased Premises for
compliance with the Environmental Laws upon twenty four (24) hours' prior
written notice, which notice shall specify the area and item(s) to be inspected,
subject to Tenant's consent, which shall not be unreasonably withheld. Tenant
shall be responsible for the utility, water and sewer charges relating to its
environmental compliance.
9.7. ASSIGNMENT AND SUBLETTING. Tenant may not sublet or
assign, whether by operation of law or otherwise, said Lease Agreement without
prior written approval of Landlord, which consent shall not be unreasonably
withheld or delayed.
If Landlord consents to an assignment or subletting, Tenant
shall nevertheless remain fully and primarily responsible and liable for the
payment of rent and the performance of all Tenant's obligations under this
Lease; provided, however, that in the event of a default under this Lease,
Landlord may, at its option, collect rent directly from the assignee or
subtenant and such action shall not be construed as a novation
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or release of Tenant, nor shall the acceptance of rent by Landlord or
performance of any other obligation under this Lease from or by any person other
than Tenant be deemed to be a waiver by Landlord of any provision of this Lease
nor shall it be deemed to be a consent to an assignment of this Lease or the
subletting of the Leased Premises.
In the event Landlord consents to any assignment or subletting
by Tenant, any option to renew this Lease or right to extend the lease term or
any right of first refusal to which Tenant may be entitled shall automatically
terminate unless otherwise agreed to in writing by Landlord.
If any sublease or assignment is at a rental rate which
exceeds the Base Rent and Additional Charges payable hereunder, such excess
rental shall be paid to Landlord when received by Tenant as additional rent
hereunder.
It shall be a condition to any consent by Landlord that Tenant
shall reimburse Landlord upon demand for any and all costs and expenses
including but not limited to, reasonable attorneys fees for the review and
preparation of the documents, which may be received by Landlord in connection
with any request for consent to an assignment or subletting, whether or not such
consent is granted. Tenant further agrees that a minimum fee of $100.00 shall be
payable to Landlord for each and every request to consent to an assignment or
sublease, which fee shall be paid simultaneously with such request.
9.8. ASSIGNMENT AS A RESULT OF MERGER OR CONSOLIDATION. Tenant
shall have the right, without Landlord's consent to assign this Lease Agreement
or sublet the Leased Premises, or any part thereof, to any corporation or
related entity or partnership into which or with which Tenant merges or
consolidates and to any parent, subsidiary or affiliated corporation. No such
assignment or subletting shall release Tenant of its liabilities and obligations
hereunder except for an assignment of this Lease Agreement to a corporation or
related entity or partnership into which or with which Tenant merges or
consolidates and transfers the bulk of its assets.
ARTICLE X.
ALTERATIONS, SIGNS AND FIXTURES
10.1. ALTERATIONS OR IMPROVEMENTS. Except as otherwise
provided herein, Tenant hereby agrees to make no structural additions,
improvements or alterations to the Leased Premises or Building without, in each
instance, having obtained the prior written consent of Landlord to Tenant's
plans and specifications (which response shall not be withheld or unreasonably
delayed) and also obtaining prior to the commencement of any work, any building
permit(s) and approvals which may be required by any governmental authority.
Tenant shall make said improvements or alterations in accordance with all
applicable laws and building codes, in a good and workmanlike manner and in
quality equal to or better than the original construction of the Leased Premises
and shall comply with such requirements as Landlord considers reasonably
necessary or desirable, including, without limitation, requirements as to the
manner in which and the times at which such work shall be done and the
contractor or subcontractors to be selected to perform such work. No material
modifications or additions to any previously approved plans and specifications
shall be made without Landlord's prior written consent, which response shall not
be unreasonably withheld or delayed. Tenant further agrees to promptly deliver
to Landlord "as built" plans and specifications subsequent to the completion of
any such alterations and improvements.
Tenant shall promptly pay all costs attributable to any
structural alterations and improvements and shall indemnify Landlord against
claims asserted as a result thereof, and against any costs or expenses which may
be incurred as a result of building code violations to such work.
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All additions, decorations, fixtures and equipment (except
Tenant's trade fixtures) and improvements in or upon the Leased Premises shall,
unless Landlord elects to require their removal, become the property of Landlord
and shall remain upon the Leased Premises at the termination of this Lease,
without compensation, allowance or credit to Tenant. If, upon Landlord's demand,
Tenant does not remove said improvements, Landlord may remove same at Tenant's
expense, including the cost of restoring the Leased Premises to its original
condition.
10.2. NON-STRUCTURAL ALTERATIONS. Tenant shall have the right,
during the term of this Lease Agreement, to make such non-structural
alterations, changes, replacements, improvements and additions in and to the
Leased Premises, as it may deem desirable; provided, however, that any such
alterations, additions, changes or other improvements shall be made in
accordance with the applicable zoning and building codes imposed by governmental
authorities.
Tenant may convert to Tenant's own use all old materials
removed by Tenant when making any such alterations, changes and improvements or
additions to the Leased Premises.
Upon the termination or expiration of this Lease Agreement, or
Tenant's occupancy of the Leased Premises, Tenant shall remove all of the
foregoing at Tenant's sole cost and expense.
10.3. TRADE FIXTURES. All trade fixtures and equipment, signs,
movable partitions, shelving and like property installed on the Leased Premises
by Tenant and all inventory and other personal property of Tenant, shall be
removed by Tenant on the expiration or earlier termination of this Lease and
Tenant shall repair, at its own expense, any and all damage to the Leased
Premises resulting from such removal. If Tenant fails to remove any and all such
trade fixtures, furnishings and other property from the Leased Premises, then
Landlord may remove or otherwise dispose of same at Tenant's expense, including
the cost of restoring the Leased Premises to its original condition, pursuant to
the terms of the Landlord Agreement.
10.4. LIENS. Tenant shall not suffer or permit to remain upon
all or any part of the Leased Premises or the Building or Tenant's interest in
this Lease any lien for work performed or materials supplied to or for Tenant
and/or to or for the Leased Premises, or any other lien or encumbrance thereon
arising by reason of Tenant's use and occupancy thereof, unless such lien arises
from work performed by or on behalf of Landlord or its agents. Tenant, at its
own cost and expense, shall defend Landlord against any action, suit or
proceeding which may be brought on any such lien or for the enforcement thereof;
shall cause any such lien or encumbrance to be removed and satisfied of record
within thirty (30) days after notice of the filing thereof, and shall indemnify
and hold harmless and Landlord against any and all loss, damage, cost, expense
or liability by reason of or in connection with any claims, demands, suits,
actions or other proceedings for the enforcement thereof. In the event such lien
cannot be released and removed through appropriate proceedings within such
thirty (30) day period, Tenant shall cause such lien to be bonded or insured
over by a reputable title insurer or surety reasonably satisfactory to Landlord,
or provide Landlord with a letter of credit, certificate of deposit, or other
comparable security in the amount of 200% of the amount of such lien. Tenant
thereafter shall be entitled to contest such lien as long as Tenant shall
contest such lien diligently by appropriate proceedings (provided such contest
shall not cause any sale, foreclosure, or forfeiture of the Leased Premises by
reason of such nonpayment) and cause the same to be removed or discharged prior
to entry of any order foreclosing the same. In the event that any such lien is
not so released and removed, bonded over or secured against, or in the event
Tenant shall fail to contest such lien as herein required, Landlord may, upon at
least five (5) days' notice to Tenant, take all action necessary to release and
remove such lien and avail itself of any security provided by Tenant (without
any duty to investigate the validity thereof), and Tenant shall promptly, upon
demand, reimburse Landlord for all sums, costs and expenses
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(including, without limitation, reasonable attorneys' fees and expenses)
incurred by Landlord in connection with the release and removal of such lien.
10.5. SIGNAGE. Tenant may erect, at its sole cost, an
appropriate sign advertising Tenant's business on the portion of the exterior of
said Leased Premises designated by Landlord for the placement of Tenant's signs.
The size, number, design and location of all signs shall require Landlord's
written approval prior to installation, which shall not be unreasonably withheld
or delayed. All signs shall comply with all requirements of appropriate
governmental authorities and all necessary permits or licenses shall be obtained
by Tenant. Tenant shall maintain all signs in good condition and repair at all
times, and shall save the Landlord harmless from injury to person or property
arising from the erection and maintenance of said signs. Upon vacating the
Leased Premises, Tenant shall remove all signs and repair all damages caused by
such installation and removal. No signs shall be painted on the exterior of the
Leased Premises. The use of portable or free-standing signs is strictly
prohibited without the prior written consent of Landlord, which shall not be
unreasonably withheld or delayed. Tenant hereby acknowledges that Landlord has
the right, at any time, to rename and/or reidentify the Premises of which the
Leased Premises demised hereunder forms a part, at Landlord's sole discretion.
Tenant further agrees to remove, at Tenant's sole expense, its existing signage
from the Premises and restore any damages as a consequence of such removal, upon
sixty (60) days' prior written notice from Landlord.
ARTICLE XI.
MAINTENANCE AND REPAIRS
11.1. REPAIRS AND MAINTENANCE. Except for those repairs
described in Schedule 11.1 and any other repairs Tenant has assumed herein,
Landlord agrees, throughout the term of this Lease Agreement, to maintain and
make any repairs and replacements, structural or otherwise, necessary to
maintain the Leased Premises in good condition and repair, including but not
limited to repairs to any (i) heating or air-conditioning system which shall
include but not be limited to quarterly maintenance of the heating and air
conditioning systems, (ii) all mechanical, water and sanitary sewer systems,
(iii) replacements to common lighting fixtures, (iv) wiring and electrical
systems, including, but not limited to the electrical switch gear, and (v) all
replacements to common plumbing fixtures; provided, however, Landlord shall not
be required to replace anything that Tenant has agreed and failed to maintain
properly. Landlord shall also maintain the Common Areas, including but not
limited to, driveways, parking lots, sidewalks, and water and sewer fixtures and
lines located outside the Leased Premises, and perform any necessary ground
maintenance, including snow removal, lawn-mowing and weed control.
Tenant agrees at its expense, throughout the term of this
Lease Agreement to maintain and make any repairs necessary to maintain in good
condition and repair the non common electrical, lighting and plumbing fixtures
and other items serving the Leased Premises that are not part of the heating or
air conditioning system. Tenant agrees, at its expense throughout the term of
this Lease Agreement, to make those repairs described in Schedule 11.1.
Any and all loss, injury, breakage or damage to the Leased
Premises or the Building of which they are a part, caused, directly or
indirectly, by Tenant or its agents, contractors, employees and invitees,
including individuals and persons making deliveries to or from the Leased
Premises, except to the extent that the foregoing is inconsistent with the
provisions of the "Waiver of Subrogation" set forth in this Lease, shall be
repaired by Landlord. In the event such loss, injury, breakage or damage is not
covered by insurance, repairs of the foregoing shall be made at the sole expense
of Tenant. Payment of the cost of such repairs by Tenant shall be immediately
due and payable as additional rent. This provision shall not be in limitation of
any other rights and remedies which Landlord has or may have in such
circumstances.
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All repairs and replacements shall be in quality equal to or
better than the original equipment, materials or work. Tenant shall at all times
maintain sufficient heat in the Leased Premises to prevent freezing of sprinkler
or water lines. If Tenant installs or moves partitions or walls within the
Leased Premises, Tenant shall make, at its own expense but subject to Landlord's
approval, all additions to or changes in location of heating, plumbing,
sprinkler or electrical lines and equipment made necessary by those
installations.
Tenant shall be responsible for weed control and snow removal
over any sidewalks, stairways, ramps, driveways or dock areas contiguous to the
Leased Premises and over which Tenant has exclusive use or control.
If there is now or shall be installed in the Leased Premises
or Building a "sprinkler system", and if any governmental authority or
Landlord's fire insurance carrier require or recommend that any reasonable
changes, modifications, alterations or additional sprinkler heads or other
equipment be made or supplied by reason of the Tenant's business or operations,
or the location of partitions, trade fixtures, or other such changes,
modifications, alterations or penalty or charge against the full allowance for a
sprinkler system in Landlord's fire insurance premium or rate, Tenant shall, at
the Tenant's expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler heads or other equipment.
11.2. LANDLORD'S RIGHT. If Tenant fails to perform Tenant's
obligations under Section 11.1 hereof, Landlord may (but shall not be required
to) enter upon the Leased Premises after ten (10) days' prior written notice to
Tenant (except for cases of emergency or imminent threat of damage to person or
property where such notice will not be required) and put the Leased Premises in
good order, condition and repair, which shall include the right to cause the
Leased Premises to comply with all requirements set forth in any applicable
building codes and ordinances and the cost thereof, together with the sum of
fifteen percent (15%) of said costs for overhead and supervision by Landlord,
shall become due and payable to Landlord upon demand; provided, however, if
Tenant commences to perform such obligations within such ten (10) day period and
diligently pursues such performance to completion within a reasonable time and
to Landlord's reasonable satisfaction, Landlord shall not have the right to
perform such obligations.
Tenant shall keep the Leased Premises in a clean, sanitary,
and safe condition in accordance with the laws of the State of Ohio, and in
accordance with all directions, rules, and regulations of the health officer,
fire marshal, building inspector, or other proper officers of the governmental
agencies governing the Leased Premises, at the sole cost and expense of Tenant.
Tenant shall permit no waste, nuisance, damage or injury to the Leased Premises,
and Tenant shall, at its own cost and expense, replace any glass windows and
doors in the Leased Premises which may be broken by Tenant, and keep the Leased
Premises neat, clean and in orderly and sanitary condition, free of offensive
odors, vermin, rodents, bugs, insects and other pests. At the expiration of the
tenancy created hereunder, Tenant shall surrender the Leased Premises to
Landlord in as good a condition as it was upon the Commencement Date, reasonable
wear and tear excepted.
11.3. FURTHER TENANT IMPROVEMENTS. In addition to the
improvements discussed in Section 11.1 hereof, the Tenant is hereby given the
right and shall have the ability to make, at its own expense, any improvements
to the Leased Premises at any time during the Lease term it deems appropriate
provided:
(a) Whatever improvements are commenced shall be completed as
quickly as reasonably possible in a good and workmanlike manner and in
accordance with all applicable laws and building regulations.
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(b) Whatever improvements are for a unique manufacturing
purpose (unique to the business of Tenant) shall be removed by the Tenant upon
its vacation of the Leased Premises.
(c) That the Tenant is not in default.
(d) Any structural changes may be made only upon the consent
of Landlord, which consent will not be unreasonably withheld.
ARTICLE XII.
OTHER PROVISIONS
12.1. ADDITIONAL AGREEMENTS. Tenant agrees that:
(a) This Lease Agreement shall be deemed entered into within
and shall be governed by and interpreted in accordance with the laws of Ohio,
and the parties submit to the jurisdiction of any appropriate court within that
state for adjudication of disputes arising from this Lease Agreement.
(b) Except as otherwise provided, this Lease Agreement shall
not be modified except by written agreement signed on behalf of Tenant and
Landlord by their respective authorized officers.
(c) This Lease Agreement supersedes all prior understandings,
representations, negotiations and correspondence between the parties,
constitutes the entire agreement between them with respect to the matters
described, and shall not be modified or affected by any course of dealing,
course of performance or usage of trade.
(d) If any provision of this Lease Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired.
(e) Tenant shall have all of its solid and liquid waste and
refuse taken away, at its sole expense and on a timely basis, to insure
compliance with all local ordinances and state and federal environmental
protection agency regulations and directives.
(f) If Tenant shall put its own locks on any doors, Tenant
shall deposit with Landlord copies of such keys. For the purpose of the safety
of the Leased Premises, Landlord may enter the Leased Premises at any reasonable
time, provided, except in the case of an emergency, Landlord gives Tenant
reasonable notice of such entry.
(g) During the last nine (9) months of the term of this Lease
Agreement, Landlord may enter the Leased Premises for the purpose of exhibiting
said Leased Premises upon twenty four (24) hours' prior written notice with name
of prospective tenant and putting up the usual "For Rent" and "For Sale"
notices, which shall not be removed, obliterated or hidden by Tenant. In the
event the prospective tenant is a competitor of Tenant (as reasonably determined
solely by Tenant), Tenant may restrict access to areas of the Leased Premises
reasonably necessary to protect the confidentiality of any of its processes or
trade secrets.
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ARTICLE XIII.
DEFAULT
13.1. DEFAULTS. The occurrence of any one or more of the
following events shall constitute a default hereunder by Tenant:
(a) Failure by Tenant to pay the rents reserved, charges for
operating expenses or any other charge payable by Tenant hereunder, as and when
due, and such failure shall continue for a period of five (5) business days
after written notice thereof by Landlord to Tenant; or
(b) Failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant, other than the payment of money and such failure shall continue for a
period of thirty (30) days after written notice thereof from Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, the Tenant shall not be
deemed to be in default if Tenant has commenced such cure within said thirty
(30) day period and thereafter diligently pursues such cure to completion within
a period of not more than thirty (30) additional days; or
(c) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing of a petition to have Tenant adjudged a
bankrupt or a petition for reorganization under any bankruptcy, insolvency or
other laws relating to the readjustment of indebtedness generally by Tenant or
against Tenant and which is not dismissed within sixty (60) days; (iii) the
appointment of a Trustee or receiver to take possession of substantially all of
Tenant's assets located at the Leased Premises or of Tenant's interest in this
Lease; or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Leased Premises or of
Tenant's interest in this Lease; and for purposes of this clause (c), "Tenant"
shall include any parent company of Tenant or any guarantor of some or all of
Tenant's obligations under this Lease; or
(d) Tenant shall vacate or abandon the Leased Premises.
Tenant's failure to occupy the Leased Premises for a period of thirty (30)
consecutive days shall be deemed conclusive evidence of abandonment.
(e) Tenant shall be in default of Section 9.6.
(f) An assignment or subletting of this Lease or any portion
of the Leased Premises without Landlord's prior written consent, which shall not
be unreasonably withheld or delayed.
13.2. REMEDIES. In the event of Tenant's default hereunder,
Landlord, at Landlord's option, may terminate this Lease, or without terminating
this Lease, re-enter and retake possession of the Leased Premises by any means
permitted by law and in either event may dispossess Tenant therefrom and neither
Tenant nor any person claiming under or through Tenant shall thereafter be
entitled to possession of the Leased Premises. If Landlord elects to terminate
this Lease, or if this Lease is otherwise terminated pursuant to law by reason
of any default on the part of Tenant, then Tenant shall pay to Landlord, as
damages, and Landlord shall be entitled to recover, the then present value of
the Base Rent and Additional Charges reserved hereunder for the entire remainder
of the stated term hereof as if this Lease had not been terminated. No re-entry
or retaking of possession of the Leased Premises by Landlord shall be deemed to
be an election by Landlord to terminate this Lease, which election may be made
only by written notice thereof given to Tenant. If Landlord elects to re-enter
and retake possession of the Leased Premises without terminating this Lease,
Tenant shall not be deemed released from its obligations to pay the Base Rent
and Additional Charges reserved, and additional and other charges payable by
Tenant hereunder and otherwise to perform the
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provisions of this Lease on Tenant's part to be performed hereunder, and all
Base Rent and Additional Charges reserved for the entire remainder of the stated
term hereof shall, at Landlord's option, be accelerated and become immediately
due and payable.
In no event shall Landlord be required to postpone or delay
suit for such damages or accelerated Base Rent and Additional Charges until the
date when the term of this Lease would have expired, or until such Base Rent and
Additional Charges would have become payable, had not the within Lease been so
terminated or the rents accelerated. If Landlord shall dispossess Tenant from
the Leased Premises as aforesaid, or if Tenant shall abandon or vacate the
Leased Premises, Landlord shall use its reasonable business efforts to relet all
or any part of the Leased Premises for such rents (including any reasonable rent
concessions) and upon such other terms and conditions as Landlord, in Landlord's
sole discretion, deems suitable and acceptable and for any use and purpose which
Landlord deems appropriate. In the event of any such reletting without the
termination of this Lease, any rents received by Landlord for the Leased
Premises shall be applied first to the costs and expenses incurred by Landlord
by reason of said repossession, retaking and reletting, including, without
limitation, brokerage costs, reasonable attorney fees and the cost of any
repairs or restoration or alterations of said Leased Premises for damages caused
by Tenant, and then to the amount of rents and other charges payable by Tenant
hereunder. The failure of Landlord to relet or, if relet, to collect the rent
under such reletting, shall not release or affect Tenant's liability hereunder
for all such costs and expenses.
13.3. REMEDIES CUMULATIVE. Exercise of any of the remedies of
Landlord under this Lease shall not prevent the concurrent or subsequent
exercise of any other remedy provided for in this Lease or otherwise available
to Landlord at law or in equity.
13.4. RENT DEMAND/ACCORD AND SATISFACTION.
(a) No payment by Tenant or receipt by Landlord of a lesser
amount than the Base Rent and Additional Charges herein stipulated shall be
deemed to be other than on account of the stipulated Base Rent and Additional
Charges nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Base Rent and Additional Charges be deemed
an accord and satisfaction. Landlord may accept such check or any partial
payment without prejudice to Landlord's right to recover the balance of such
Base Rent and Additional Charges or pursue any other remedy provided for in this
Lease or available at law or in equity to collect the balance of such Base Rent
and Additional Charges.
(b) After the service of any notice or commencement of any
suit or final judgment therein, Landlord may receive and collect any Base Rent
and Additional Charges due and such collection, or receipt shall not operate as
a waiver of nor affect such notice, suit or judgment.
ARTICLE XIV.
RECORDING AND SUBORDINATION
14.1. MEMORANDUM OF LEASE AND SUPPLEMENT TO LEASE. Landlord
and Tenant agree that this Lease Agreement shall not be recorded, but Landlord
and Tenant will at the request of either party execute a Memorandum of this
Lease Agreement, in form satisfactory to counsel for Tenant, which Memorandum of
Lease shall contain such matters as Tenant desire, but shall make no reference
to the rent payable hereunder, and which Memorandum of Lease may be filed for
record. The cost of preparation and recording shall be borne by the party
requiring same.
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14.2. SUBORDINATION. Tenant hereby acknowledges that Chase
Bank currently holds a first mortgage lien on the property of which the Leased
Premises forms a part. Tenant agrees that if and when it becomes necessary for
the Landlord to obtain any mortgage financing in connection with the Leased
Premises and if the lending institution shall so require, the Tenant will
execute a written waiver or such other instrument as may be required and/or
necessary waiving the priority of this Lease Agreement in favor of the mortgage
of any such lending institution. In return for the granting of same, the Tenant
shall receive a non-disturbance agreement from any lender requesting a
subordination agreement. Landlord shall use all reasonable efforts to secure a
non-disturbance agreement from its existing mortgagee on the Leased Premises. If
Tenant shall fail to execute such documents within ten (10) days of submission
of same to Tenant, then, notwithstanding above Section 14.1, Landlord may record
a memorandum of this Lease Agreement and this Lease Agreement shall be deemed to
grant unto Landlord an irrevocable power of attorney, coupled with an interest,
so as to allow Landlord to execute such documents on Tenant's behalf.
ARTICLE XV.
CONDEMNATION
In the event that the Leased Premises or any part thereof,
shall at any time after the execution of this Lease Agreement be taken for
public or quasi-public use in condemnation proceedings or by exercise of any
right of eminent domain, or if following the adoption of any resolution,
ordinance or other law expressing an interest by any public authority to
appropriate or authorize the acquisition of the whole or any part of the Leased
Premises, Landlord and such public authority shall agree upon a purchase of
subject premises by the public authority (all such proceedings being
collectively referred to herein as a "taking"), the Tenant shall not be entitled
to claim, or have paid to Tenant any compensation or damages whatsoever for or
on account of any loss, injury, damage, or taking of any right, interest or
estate of the Tenant and the Tenant hereby relinquishes to Landlord any rights
to any such damages; but the Landlord shall be entitled to claim and have paid
to it for the use and benefit of the Landlord all compensation and/or damages
for and/or on account of and/or arising out of such taking and/or condemnation
without deduction from the amount for or on account of any right, title,
interest or estate of the Tenant in or to said property, and the Lease shall
terminate as to the portion of the Leased Premises taken by the taking.
If all or any portion of the Leased Premises should become
subject to such eminent domain proceedings, the Tenant shall have the option, at
any time after the commencement of the condemnation proceedings, to terminate
this Lease Agreement as to the portion of the Leased Premises subject to
condemnation or, if more than twenty-five percent (25%) of the Leased Premises
are subject to condemnation, as to the whole of the Leased Premises. Such option
shall be exercised by giving the Landlord a written notice of termination or
partial termination, specifying the reasons for such termination and the part
terminated, if termination is partial. If Tenant elects to continue the Lease
Agreement as to the uncondemned portion of the property, future rentals will be
adjusted on a pro rata basis to reduce the total rental to the extent the
property has been diminished in quantity, serviceability and/or usefulness to
Tenant by the partial condemnation. Landlord and Tenant further agree that in
the event Tenant shall not have exercised its option to terminate earlier, on
the date of actual loss of possession by Tenant pursuant to the exercise of
rights by the condemnor, under any order of a court of competent jurisdiction
authorizing the condemnor in an eminent domain proceeding to take possession of
all or a portion of the Leased Premises, Tenant's obligation to pay the rental
hereby specified shall cease as to the portion or portions of the Leased
Premises subject to the taking. In addition, the Tenant shall be entitled to a
rebate of rental paid in advance for any period after the date of said loss of
possession for the portion or portions of the Leased Premises subject to the
taking. Nothing in this provision shall be construed to limit or affect the
Tenant's right to be relieved of rental obligations or the right to a rebate of
rental payments in the event of earlier termination of this Lease Agreement as
to all or a portion of the Leased Premises as the result of a condemnation
proceeding or otherwise.
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Tenant shall have the right to appear, claim, prove and
receive any award by the appropriation or condemning authority (i) for damages
to or condemnation of such trade fixtures, machines and equipment used in
Tenant's business and tenants betterments or other installations as Tenant would
otherwise have been entitled to remove from said Leased Premises pursuant to the
provisions of this indenture of lease, and (ii) in reimbursement of Tenant's
cost in moving and in relocating such trade fixtures, machines and equipment
used in Tenant's business.
Landlord shall provide Tenant with written notice of the
commencement of any condemnation proceeding affecting the Leased Premises as
soon as practical after Landlord becomes aware of same.
In the event the condemnation proceeds are not permitted by a
mortgagee of the Leased Premises to be made available for such repair or
restoration, the Tenant may elect:
(a) To terminate the term of this Lease Agreement by giving to
Landlord written notice thereof within thirty (30) days after request by Tenant
for such proceeds to be available and such proceeds not having been made
available; or
(b) To continue this Lease Agreement, and, in such event, the
Base Rent and Additional Charges for the Leased Premises shall be abated in
proportion to the amount of the Leased Premises rendered unsuitable for Tenant's
use during such time as such condemnation proceeds are not made so available for
restoration; provided, however, that in the event the Landlord promptly notifies
the Tenant of Landlord having other funds available for use in rebuilding and
restoring in lieu of and in the amount of not less than the condemnation
proceeds, Tenant may not terminate this Lease Agreement, and such substitute
funds shall be used for repair and rebuilding as if they were the condemnation
proceeds, and the rent shall not xxxxx from the time such substitute proceeds
are made available for such restoration.
ARTICLE XVI.
GENERAL NOTICES
All the notices required or permitted to be given to the
parties hereto shall be given in writing either by personally delivering same or
by depositing the same with the party or in the United States Mail, postage
prepaid, and addressed to the party for which such notice is intended, at the
addresses hereinafter specified or at such other address as either party may
hereinafter designate by notice to the other:
To Landlord: 00000 Xxxxxx Xxxx Limited Partnership
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attn: General Counsel
To Tenant: Venture Lighting International, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
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ARTICLE XVII.
MISCELLANEOUS
17.1. EXHIBITS. All exhibits referred to in, and attached to,
this Lease Agreement are hereby made a part of this Lease Agreement.
17.2. ENTIRE AGREEMENT. This Lease Agreement contains the
entire agreement of the parties and cannot be changed orally, but only by an
agreement in writing and signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
17.3. DUPLICATES. This Lease Agreement may be executed in
several duplicates, all of which shall be deemed to be but one original Lease.
17.4. NO BROKER. Landlord and Tenant represent and warrant to
each other that neither has dealt with any broker in connection with this
transaction, except Landlord has retained Weston Realty, Inc. as as a broker in
this transaction and shall be solely responsible for the payment of its fees and
shall indemnify, defend and hold harmless Tenant from any claims, damages,
causes of action, liability, costs or expenses, including reasonable attorney
fees arising from Landlord's failure to pay such fees to Weston Realty, Inc.
17.5. ESTOPPEL CERTIFICATE. Tenant shall, within ten (10) days
following receipt of a written request from Landlord, execute, acknowledge and
deliver to Landlord or to any lender or purchaser or prospective lender or
purchaser designated by Landlord a written statement certifying (i) that the
Lease Agreement is in full force and effect and unmodified (or, if modified,
stating the nature of such modification), (ii) the date to which rent has been
paid, and (iii) that there are not, to Tenant's knowledge, any existing defaults
(or specifying such default if any are claimed). Tenant's failure to deliver
such statement within such period shall be conclusive upon Tenant that this
Lease Agreement is in full force and effect and unmodified, and that there are
not existing defaults on the part of Landlord hereunder.
17.6. LANDLORD FINANCING. Landlord shall have the right at any
time to obtain financing secured in whole or in part by its interest in the
Leased Premises or under this Lease, and in connection therewith to mortgage or
otherwise collaterally transfer its interest in the Leased Premises or
collaterally assign its interest under this Lease. With respect to any financing
by Landlord, Tenant shall, within ten (10) days of request therefore, execute,
acknowledge and deliver to Landlord such amendments or modifications of this
Lease as may be reasonably requested by the holder of the indebtedness created
or to be created, but in no event shall any such amendment or modification
materially affect or alter the rights and obligations of Tenant under this
Lease.
17.7. ANNUAL FINANCIAL STATEMENTS. Tenant covenants and agrees
to furnish to Landlord annually, within ninety (90) days after the end of each
fiscal year of Tenant, copies of its most recent financial statements in
reasonable detail and agrees that Landlord may deliver any such financial
statements to any existing or prospective mortgagee, assignees or purchasers of
the Premises of which the Leased Premises forms a part, provided such
mortgagees, assignees or purchasers execute an agreement reasonably satisfactory
to Tenant to maintain the confidentiality of such information and not disclose
such information to any third party. Such financial statements shall be prepared
in accordance with generally accepted accounting principles consistently applied
and shall be certified by Tenant. In addition, Tenant hereby agrees to cooperate
with Landlord's existing or potential mortgagees, assignees or purchasers and to
comply with reasonable requests for financial information provided such
mortgagees, assignees or purchasers execute an agreement reasonably satisfactory
to Tenant to maintain the confidentiality of such information and not disclose
such information to any third party.
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17.8. NO WAIVER BY LANDLORD. No waiver of any of the terms,
covenants, provisions, conditions, rules and regulations required by this Lease,
and no waiver of any legal or equitable relief or remedy shall be implied by the
failure of Landlord to assert any rights, or to declare any forfeiture, or for
any other reason. No waiver of any of said terms, provisions, covenants, rules
and regulations shall be valid unless it shall be in writing signed by Landlord.
No waiver by Landlord or forgiveness of performance by Landlord with respect to
Tenant or one or ore other tenants of the Building shall constitute a waiver or
forgiveness of performance in favor of Tenant herein, or any other tenant, or
may be claimed or pleaded by Tenant to excuse a subsequent failure of
performance of any of the terms, provisions, conditions, covenants, rules and
regulations of this Lease.
17.9. LANDLORD AGREEMENT. Landlord's rights hereunder shall be
subject to the terms of any Landlord Agreement.
17.10. REPEATED DEFAULT. Notwithstanding anything to the
contrary set forth in this Lease, if Tenant shall be in default in the timely
payment of any rent due Landlord pursuant to this Lease, and if any such default
after written notice shall occur two (2) times in any period of twelve (12)
consecutive months, then, notwithstanding that such default shall have been
cured within the period after notice, as provided in Section 13.1 above, any
further similar default within said twelve (12) month period shall be deemed to
be a Repeated Default. In the event of a Repeated Default, Tenant shall not have
the right to cure same and Landlord, without giving Tenant any further notice
and without affording Tenant any opportunity to cure such default, may exercise
any rights or remedies available to Landlord pursuant to Section 13.2 hereof,
including, without limitation, the right to terminate this Lease or to require
Tenant to increase its security deposit to an amount satisfactory to Landlord,
at Landlord's sole discretion.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this
Lease Agreement as of the 9th day of November, 1995.
Witnesses: LANDLORD:
00000 XXXXXX XXXX COMPANY, LTD.,
an Ohio limited partnership
/s/
----------------------------
Print Name:
-----------------
/s/ By: /s/ X.X. Xxxxx
---------------------------- ----------------------------
Print Name: Name: X.X. Xxxxx
---------------- ---------------------------
Its: President
------------------------------
TENANT:
VENTURE LIGHTING INTERNATIONAL, INC.,
an Ohio corporation
/s/
----------------------------
Print Name:
-----------------
/s/ By: /s/ Xxxxx X. Xxxx
---------------------------- ----------------------------
Print Name: Name: Xxxxx X. Xxxx
---------------- ---------------------------
Its: Executive Vice President
------------------------------
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