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EXHIBIT 10.52
LEASE
THIS LEASE is made as of this 15th day of May, 1998, between LIBERTY
PARKWAY INDUSTRIAL, LTD., an Ohio limited liability company (hereinafter called
"Landlord"), and DECORA, INC., a New York corporation (herein after called
"Tenant").
1. Lease. Landlord leases the Premises located at 33460, 33464, 33468,
33472, and 00000 Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxxxxx, Xxxx and consisting of
approximately 10,000 square feet and being Xxxxx 0, 0, 0, 0 and 8 of the Liberty
Park Business Condominium, formed pursuant to a Declaration, as amended,
recorded at Document No. 500568A of Lorain County Records, herein called the
"Premises", to Tenant. Prior to the cessation of Tenant's right to possession
or, if earlier, the termination of this Lease, Tenant shall peaceably and
quietly hold, occupy and enjoy the Premises without let, hinderance or
molestation by Landlord or any other person or persons lawfully claiming under
Landlord, except with respect to and subject to the Declaration of the Liberty
Park Business Condominium, as amended, and the rights of all beneficiaries
thereof and the Bylaws of the Liberty Park Business Condominium Association and
the rules and regulations of said Association, promulgated in accordance with
said Declaration and Bylaws.
2. Examination of Premises. Tenant has fully examined the Premises and
acknowledges that the Premises are satisfactory to Tenant on the date hereof.
After substantial completion of the Premises as provided in Section 3(A), within
three (3) business days, authorized representatives of Tenant and Landlord shall
meet at the Premises to inspect the same. In good faith, Tenant and Landlord
shall prepare a list of items to be corrected, due to failure to substantially
comply with the plans and specifications described in Section 3(A), at
Landlord's expense which list shall be signed by both. All of said items shall
be corrected by Landlord within thirty (30) days of the commencement date of the
term, if reasonably possible. With respect to items which cannot be reasonably
be completed within said period, said items shall be corrected within a
reasonable length of time by Landlord acting with all due diligence and in good
faith.
3. Term of Lease.
(A) The term of the Lease shall be five (5) years commencing on the
date the Premises have been substantially completed in accordance with plans and
specifications approved by Tenant. Substantial completion shall be determined in
good faith by Landlord's architect and when a certificate of occupancy has been
issued by the City of North Ridgeville for Tenant's occupancy of the Premises.
Unless renewed as provided below, the term of the Lease shall end on the date
five (5) years after the last day of the calendar month during which the
Premises are substantially completed, as provided above. Subject to delays
beyond Landlord's reasonable control, Landlord shall substantially complete the
Premises, in accordance with said plans and specifications, as soon as is
reasonably possible. Landlord and Tenant acknowledge that completion of the
Premises shall take approximately sixty (60) days from the issuance of a
building permit by the City of North Ridgeville. Landlord shall apply for the
building permit
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as soon as all required plans and specifications have been prepared and to
commence construction within ten (10) business days after issuance of the
building permit. Landlord represents and warrants that the plans and
specifications necessary have been authorized to be prepared and are, on the
date hereof, in process of completion. Landlord shall in good faith cooperate
with the parties preparing the same in order to cause the same to be prepared as
soon as possible.
(B) At Tenant's option, Tenant may extend the term of the Lease for
an additional five (5) year period by providing Landlord with written notice
thereof prior to 180 days prior to the end of the initial term, time being of
the essence; provided, however, that Tenant is not then in default of any
material provision of the Lease and that no material default occurs prior to the
end of the initial term. Tenant shall not be deemed to be in default of the
Lease if Landlord elects to waive the default or if the default is cured prior
to the end of any applicable cure period.
(C) Notwithstanding any contrary provision of this Lease, Landlord
warrants that for one (1) year after the commencement date of the term, the
structural components and fixtures of the Premises will be free from defects in
material and workmanship. An item will be defective for purposes of this
subsection only if it fails to conform to the general standards for the
construction of commercial office and warehouse structures in the greater
Cleveland area. Landlord's obligations with respect to the foregoing warranty
shall be, as soon as reasonably possible, to correct, at Landlord's expense, the
defective condition upon written notice from Tenant received prior to the end of
said one (1) year period. In no event shall Landlord be liable or responsible
for any special or consequential damages. Tenant shall have the benefit of all
manufacturers' warranties with respect to equipment.
4. Rent and Deposit.
(A) Tenant shall pay to Landlord, time being of the essence, rent,
herein called the "Rent" (payment of which shall not be delayed, excused or set
off for any reason) for the use of the Premises during the term of this Lease in
the amount of Ninety-Six Thousand Six Hundred Dollars ($96,600.00) per year,
payable in equal monthly installments of Eight Thousand Fifty Dollars
($8,050.00). Rent shall be payable in advance commencing on the first day of the
calendar month next following the month of substantial completion of the
Premises as provided above and continuing on the first day of each succeeding
month. A pro rata portion of the monthly installment shall be due and payable on
the date of substantial completion. If Tenant fails to pay, when due and
payable, the Rent or amounts or charges of any kind or character provided in
this Lease and if all applicable cures have expired, such unpaid amounts shall
bear interest at ten percent (10%) per annum from the due date to the date of
payment. In addition to such interest, if Tenant shall fail to pay any monthly
installment of Rent by the fifth (5th) day of the month in which such
installment is due, a late charge equal to five percent (5%) of the installment.
(B) Landlord acknowledges receipt of a security deposit in the
amount of Eight Thousand Fifty Dollars ($8,050.00). The deposit shall not bear
interest and shall be returned to Tenant within thirty (30) days after the Lease
terminates less any and all damages incurred
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by Landlord arising, directly or indirectly, as a result of any breach or
default of this Lease or of any damage or injury to the Premises. Landlord at
any time and from time to time may apply all or any portion of the deposit to
damages and other costs incurred by Landlord. In such event, after notice,
Tenant shall immediately restore the deposit to the original amount.
(C) In the event the term is extended as provided in Section 3(B),
the annual rent for each year of the renewal term shall be the sum of One
Hundred Seven Thousand One Hundred Dollars ($107,100.00) plus the product of
Ninety-Six Thousand Six Hundred Dollars ($96,600.00) times a fraction. The
denominator of the fraction shall be the value of the Consumer Price Index of
the United States Department of Labor (All Urban Consumers, All Items, U.S.
Cities Average, 1982-84 = 100) for April, 1998. The numerator of said fraction
shall be the difference in the value of said index for the calendar month which
is the second month prior to the first month of the renewal term minus the value
of said index for April, 1998. The annual rent for the renewal terms shall be
payable in monthly installments equal to one-twelfth (1/12th) of the annual
rent, rounded to the nearest cent.
5. Use of Leased Premises. The Premises shall be used only for general
office and warehouse purposes.
6. Repairs and Alterations.
(A) No Landlord Obligations. Landlord shall have no obligation or
responsibility whatsoever with respect to the maintenance, repair or replacement
of the Premises, except as otherwise provided in Sections 2, 3(A), 3(C) and
6(B).
(B) Maintenance, Cleaning and Repairs. Tenant, at its sole cost and
expense, whether the same shall be the property of Tenant or Landlord, shall
maintain, clean, repair and replace the Premises such that the same is at all
times in good repair and condition and otherwise in compliance with all
provisions of this Lease and such that all operational components of the
Premises are functional and such that the Premises remain, at a minimum, in
substantially the same condition as it is on the date hereof, except for normal
wear and tear. The Premises do not include any portions of the Common Areas of
the Condominium of which the Premises are a part, including, but not limited to,
the exterior walls of the Units which comprise the Premises. Notwithstanding the
foregoing to the contrary, in the event an item is to be replaced which has a
useful life longer than the remaining portion of the term, the cost for the
replacement shall be allocated between Landlord and Tenant and each shall be
responsible for the portion allocated to it. The Tenant shall be allocated a
portion equal to a fraction. The numerator of the fraction shall be the number
of months (including the month of installation of the replacement) remaining in
the term. The denominator shall be the useful life of the replacement defined as
a number of months. The useful life shall be the number of months it is
reasonably anticipated that the replacement will be functionally operational,
taking into account obsolescence as well as physical deterioration. If Landlord
and Tenant cannot agree, after good faith negotiations, upon the useful life,
the useful life shall be determined by the architect who designed the building
in which the Premises is located or a member of his firm. If the architect or
his firm declines to do so, the
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useful life shall be determined through a declaratory judgment filed with the
Lorain County Court of Common Pleas.
(C) Alterations. Tenant shall not make or suffer to be made any
alterations, additions or improvements, in, on or to the Premises or any part
thereof without the prior written consent of Landlord, which consent shall not
be unreasonably denied, withheld or delayed. Such alteration, except moveable
furniture and trade fixtures, shall at once become a part of the realty and
belong to Landlord.
(D) Tenant's Neglect. Regardless of any obligation otherwise imposed
upon Landlord, Tenant shall pay, immediately upon receipt of invoice therefor,
for the cost of any repairs or damage resulting from the negligence or the
unlawful or willful acts of Tenant or its employees, representatives. invitees,
agents, officers, directors, shareholders, partners, owners or visitors.
(E) Landlord's Liability Limitations. Landlord shall not be liable
to Tenant for failure to make any repairs required of Landlord, or damages as a
consequence thereof, unless written notice of necessity thereof has been given
by Tenant to Landlord, specifying in reasonable detail the repairs required, and
Landlord shall not have made such repairs within a reasonable period of time
sufficient to accomplish such repairs after receipt of such notice with due
allowances being made for delays beyond the control of Landlord. Notwithstanding
any provisions of this Lease to the contrary, Landlord shall not be liable for
any consequential or special or compensatory damages nor for any damage to the
person or to any personal property, trade fixtures, inventory or other property
or assets of Tenant or any other party located in, on or about the Premises
arising due to any cause whatsoever, including, but not limited to, roof leaks,
bursting pipes, roof or ceiling collapse, wind damage, rain, fire, floods,
vandalism, or theft. The risk of loss with respect to such items shall be borne
solely by Tenant.
7. Compliance with Laws and with Condominium Restrictions.
(A) Tenant shall at all times comply with all applicable Federal,
state and local laws, statutes, ordinances, rules, regulations and requirements
and the orders of all duly authorized governmental officials with respect to the
Premises and the use and occupancy of the Premises and the physical condition of
the Premises and shall cause the Premises to at all times conform to said
governmental requirements listed above. Notwithstanding the foregoing to the
contrary, in the event that any of the foregoing requirements apply generally to
all commercial real estate in North Ridgeville, costs shall be allocated as
provided in Section 6(B) with respect to replacements. If the requirement
applies due to the activities of Tenant or the items or materials located on the
Premises, then Tenant shall be responsible for the full cost.
(B) Tenant shall at all times comply with all applicable
restrictions of the Declaration of the Liberty Park Business Condominium and the
Bylaws and rules and regulations of the Liberty Park Business Condominium
Association (herein called the "Association") as if Tenant were the owner of the
Premises. Not in limitation of the foregoing, Tenant shall pay when
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due all condominium assessments (whether monthly, annual or special) and all
dues and fees of the condominium association, which become due and payable
during the Term.
(C) Landlord represents that the Association will be responsible for
providing insurance (in accordance with the Condominium Declaration), trash
removal, snow removal, landscaping maintenance, maintenance of signs identifying
the Condominium, maintenance of exterior walls (comprising portions of the
Common Areas), fire and extended coverage insurance on the Common Areas and
necessary accounting services. During the Term hereof, Tenant shall only pay its
pro rata portion of the actual costs incurred by the Association for said
services but in no event shall the amount Tenant is required to pay exceed Five
Hundred Seventy-Five Dollars ($575.00) per month, provided, however, that the
foregoing limitation shall not apply to the excess of Tenant's share of the
costs of snow removal and plowing over Six Hundred Dollars ($600.00) per year.
Upon reasonable notice and during normal business hours, Tenant may audit the
books and records of the Association. Tenant's prorata portion or share shall be
the percentage interest in the Common Areas appertaining to the Units of the
Condominium which comprise the Premises.
8. Utilities. Tenant shall be responsible for and shall pay for all
utilities costs (except tap-in fees and the costs of meters) with respect to the
Premises and shall cause all utilities to be placed in the name of Tenant as
soon as is reasonably possible after the date hereof. The Landlord shall not be
responsible or liable to the Tenant in damages or otherwise for the quality or
quantity or for any interruptions, curtailment, or suspension of utility service
due to any cause, including, but not limited to, repairs, action of public
authority, strikes, acts of God or the public enemy, except due to Landlord's
negligent or wilful acts or omissions.
9. Insurance. At Tenant's expense, Tenant shall (to the extent of its
insurable interest) obtain and at all times maintain fire and extended coverage
insurance for the full replacement value of the Premises and public liability
coverage with a combined single limit of no less than Three Million Dollars
($3,000,000.00). Landlord shall be an additional named insured. Tenant shall
immediately provide Landlord evidence that said insurance is in full force and
effect. Said policies shall provide that they will not be cancelled without at
least thirty (30) days prior written notice to Landlord. The policies shall have
such terms, provisions and coverages as are reasonably acceptable to Landlord in
accordance with the types and amounts of coverage as are typical for commercial
office/warehouse facilities in the greater Cleveland area. The insurer shall be
licensed to sell insurance in Ohio and shall have a Best's Rating of B+ or
better and shall be of a Financial Classification of XI or better. In the event
that Tenant is unable to obtain said insurance, Landlord shall do so and Tenant
shall reimburse Landlord for the premiums therefor within three (3) business
days, time being of the essence, after delivery of invoice therefor. In the
event Landlord obtains insurance, Tenant will be listed as an additional named
insured. Upon obtaining the coverage required hereunder, Tenant shall
immediately forward to Landlord a copy of the insurance policy and shall do so
with respect to each subsequent renewal and shall provide copies thereof to
Landlord's counsel, Xxxxxx X. Xxxxx, Xx. of Xxxxxxx, Xxxxxx & Xxxxx, 0000 Xxxx
Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, XX 00000-0000.
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10. Real Estate Taxes. Tenant shall pay when due all real estate taxes
and assessments with respect to the Premises which become due and payable during
the Term. Tenant shall be entitled to receive all credits, rollbacks and
adjustments to such real estate taxes and assessments with respect to the
Premises. Landlord hereby consents to Tenant filing real estate tax complaints
for valuation reassessments and Landlord shall cooperate with such proceedings.
11. Protection of Landlord.
(A) Limitation of Liability. Except for intentional, malicious torts
and not in limitation of any other limitations or exculpations of liability of
Landlord set forth herein, Landlord shall not be responsible or liable for any
damage, loss, theft or injury to or of any property, fixtures, buildings, or
other improvements or to any person or persons, at any time on the Premises,
including any damage or injury to Tenant or to any of Tenant's officers, agents,
servants, employees, contractors, invitees, licensees, customers, or sublessees.
(B) Exculpation. Except as provided in Section 3(C), Landlord shall
not be under any responsibility or liability in any way whatsoever for any
defect in the Premises. All implied warranties are excluded. Tenant acknowledges
that the Premises may contain hidden defects, which Landlord may or may not have
knowledge of and which Landlord may or may not have disclosed to Tenant. Tenant
shall take possession of the Premises and shall occupy the same in their "as is"
condition. Not in limitation of the foregoing, Landlord makes no representations
or warranties with respect to any matters, including, but not limited to, no
warranties with respect to the fitness of the Premises for any purpose, the
zoning applicable to the Premise, physical condition of the Premises, the
availability of utilities services, the cost of utilities services, the amount
of real estate taxes and assessments, the amount of insurance premiums, the
presence or absence of Hazardous Substances in, on or about the Premises, the
presence of asbestos in, on or about the Premises, the compliance of the
Premises with any law, statute, regulation, rule, order or other governmental
requirement or standard or any other matters. Notwithstanding the foregoing to
the contrary, the provisions of this subsection shall not limit Landlord's
responsibilities and liabilities with respect to the warranties described in
Section 3(C) of this Lease.
(C) Definition. As used in this Lease, the term "Hazardous
Substances" shall be defined as asbestos, urea formaldehyde, petroleum
hydrocarbons and other petroleum products (including gasoline, diesel fuel, fuel
oil, crude oil and motor oil and constituents of those products),
tetrachloroethylene, polychlorinated biphenyls (" PCB's"), nuclear fuel or
materials, chemicals, biological or medical wastes, radioactive materials,
explosives, known carcinogens, petroleum products, and all dangerous, toxic or
hazardous pollutants, contaminants, chemicals, materials or substances defined
as hazardous or as a pollutant or contaminant in, or the release or disposal of
which is regulated by any federal, state or local environmental Laws and/or
Regulations. As used in this Lease, the term "Laws and Regulations" shall mean
and include the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA" or the "Federal Super Fund Act") of 1980, as amended by the Super
Fund Amendments and Reauthorization Act of 1986 ("XXXX"); the Federal Resource
Conservation and Recovery Act
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of 1986 ("RCRA"); the Clean Water Act; the Clean Air Act; and the Toxic
Substances Control Act; all as the same may be amended from time to time and any
other federal, state, county, municipal, local or other statute, law, ordinance
or regulation which may relate to or deal with human health or the environment
including without limitation all regulations promulgated by a regulatory body
pursuant to any such statute, law or ordinance.
(D) Notice. Tenant shall immediately notify Landlord of the
existence of any Hazardous Substances, known to Tenant now or at any time, in,
on or about the Premises, and of the disposal of, deposit on or release of any
Hazardous Substance in, on or about the Premises. The foregoing shall apply to
Hazardous Substances whether or not disposed of, deposited or released by
Tenant. Landlord shall notify Tenant if Landlord becomes aware of the disposal
of, deposit on or release of any Hazardous Substance in, on or about the
Premises. The foregoing shall apply to Hazardous Substances whether or not
disposed of, deposited or released by Tenant. Landlord shall have no obligation
to monitor or inspect the Premises or any other real estate to determine if any
Hazardous Substance has been disposed of, deposited on or released.
12. Fire and Casualty.
(A) Substantial Damage. If the Premises or a substantial portion
thereof shall be made untenantable by fire or other casualty, Landlord, if it so
elects, may:
(1) Terminate the term of this Lease, effective as of the date
of such fire or casualty, by written notice given to
Tenant within thirty (30) days after such date, or
(2) Repair, restore, or rehabilitate said Premises at
Landlord's expense (unless the damage is due to Tenant's
acts or omissions or those of Tenant's employees, agents,
sublessees, licensees, contractors or invitees in which
case, the repairs shall be at Tenant's expense) within
twelve (12) months after the date of such fire or
casualty, in which event the Term shall not terminate but
any Rent shall be abated on a per diem and pro rata basis,
based on the percentage of the Premises untenantable
(unless the damage is due to Tenant's acts or omissions or
those of Tenant's employees, licensees, contractors,
agents or invitees) while the Premises or a portion
thereof shall remain untenantable. If Landlord elects to
so repair, restore or rehabilitate the Premises and shall
fail to substantially complete the same within said twelve
(12) months period, due allowance being made for delay due
to causes beyond Landlord's reasonable control, either the
Landlord or Tenant, by written notice to the other, given
within fifteen (15) days next following the last day of
said twelve (12) months period, may terminate the Term as
of the date of such fire or casualty, provided, however,
that Tenant shall not have the right of termination if
Tenant was in default prior
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to said fire or other damage or if fire or other damage
was due, directly or indirectly, to the acts or omissions
of Tenant or its employees, agents, representatives,
invitees, licensees, directors, officers, partners,
shareholders, owners or visitors. In the event of
termination of the Term hereof pursuant to this Section,
Rent shall be apportioned on a per diem basis and paid to
the date of termination and neither Landlord nor Tenant
shall have any further liability or obligation to the
other under this Lease, except with respect to damage or
liability arising prior to the termination.
(B) Non-Substantial Damage. If the Premises shall be damaged (unless
due to the acts or omissions of Tenant or those of Tenant's employees, agents or
invitees) such that the provisions of Subsection (A) of this Section are not
applicable, Landlord, to the extent of insurance proceeds, shall with reasonable
dispatch restore the Premises (except those portions which have been constructed
by Tenant at Tenant's expense or which are the property of Tenant) to
substantially their condition prior to the damage. In such event, Rent shall not
xxxxx, provided, however, that Landlord shall not be obligated to make said
repairs during the last one (1) year of the then existing term unless Tenant,
within thirty (30) days after demand by Landlord, extends the lease for the
period of any renewal term then authorized. In the event Tenant does not elect
to extend the Lease, either Landlord or Tenant may terminate the Lease upon
thirty (30) days notice and in such event neither Landlord nor Tenant shall have
any further obligation or liability to the other under this Lease, except with
respect to damage or claims arising prior to the termination.
13. Eminent Domain. In the event all or a part of the Premises shall be
taken by a public or private authority under the power of eminent domain or like
power, this Lease shall terminate, with respect to the portion of the Premises
so taken, as of the date of possession thereof shall be required to be delivered
to the appropriate authority. There shall be an equitable abatement of the Rent
proportionate to the part of the Premises taken under such power. In the event
of any total or partial taking under such power, Landlord shall be entitled to
all such awards of damages as may be allowed. Tenant shall, however, be entitled
to claim, prove and receive in such condemnation proceedings such award as may
be allowed for fixtures and other equipment installed by Tenant at Tenant's
expense and for moving expenses.
14. Assignment and Subletting and Encumbrances. Tenant shall not assign
this Lease, sublet any part of the Premises, or otherwise transfer any right or
interest hereunder, or encumber in any way all or any portion of Tenant's
interest in this Lease or any right or interest hereunder. Any merger or
acquisition of Tenant shall be deemed to be a prohibited assignment of this
Lease, except if the surviving entity, based upon generally accepted accounting
principles, has a net worth equal or in excess of Tenant and a cash flow equal
to or in excess of that of Tenant on the date hereof or, if higher, on the date
of the assignment and provided, however, that Landlord receives reasonable prior
notice of the merger or acquisition and is provided financial statements
demonstrating the satisfaction of said net worth and cash flow conditions. Any
change in the ownership (whether legal or equitable, whether through the sale of
existing shares or partnership
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or membership interests or the issuance of new shares or partnership or
membership interests or other interests in Tenant) shall be deemed to be a
prohibited assignment. Landlord shall not unreasonably withhold, deny or delay
the grant of a consent to an assignment or sublease.
15. Landlord Mortgages and Estoppel Certificates and Subordination.
(A) Mortgages. At the option of Landlord, this Lease shall be
subordinated to the lien of any mortgage (hereinafter called "Mortgage") which
Landlord may place on the Premises, or any portion of the foregoing. Upon
Landlord's request, Tenant shall execute any instrument which may be required to
effectuate such a subordination, provided Landlord shall first have delivered to
Tenant a document signed by the mortgagee(s) providing in substance that, as
long as Tenant shall discharge its obligations under this Lease: (1) its tenancy
shall not be disturbed; (2) this lease shall not be affected by any default
under the Mortgage; (3) in the event of foreclosure of the Mortgage, the right
of Tenant shall survive, provided Tenant fully performs all of its obligations
hereunder, and provided further that Tenant shall not have prepaid any Rent,
except as the same becomes due under the terms of this Lease. If Tenant is
notified of Landlord's assignment of this Lease as security for a Mortgage and
of the name and address of the mortgagee or trustee, Tenant shall not terminate
or cancel this Lease for any default on the part of the Landlord. Tenant shall
promptly complete and deliver, from time to time, such estoppel certificates as
Landlord delivers to Tenant after Tenant has in good faith completed the same in
a truthful manner. Tenant, at Tenant's expense, shall comply with all covenants
of any Mortgage.
(B) Estoppel. Tenant shall deliver to Landlord, within ten (10) days
after Landlord's request for the same, a document certifying that an attached
copy of this Lease and any amendments have not been further modified and are in
full force and effect and that Landlord is not in default under the Lease (if
there is no default) or the nature of Landlord's default(s) under this Lease (if
there has been a default) and indicating the amount of any past due Rent and
other charges and that there has been no prepaid Rent (if there has been no
prepaid Rent) or the amount of any prepaid Rent if any. Tenant represents and
warrants that the information contained in said certificate(s) will be true.
Said certificate will be given subject to the penalties of perjury. Tenant
acknowledges that said certificate will be relied upon by third parties, but
only if such third party or parties is/are made known to Tenant.
16. Entry of Landlord. Landlord, with reasonable advance notice (except
for an emergency threatening person or property), may, at all reasonable times,
enter the Leased Premises: (A) to inspect or protect the Premises or any of its
equipment thereon; (B) to effect compliance with any law, order or regulation of
any lawful authority; (C) to make or supervise repairs, alterations or
additions; (D) to exhibit the Premises to prospective tenants, purchasers or
other persons; (E) to alter or otherwise prepare the Premises for reoccupancy at
any time after Tenant has vacated the Premises; and (F) to prepare "as-built"
drawings and to survey the Premises for any purpose, including, but not limited
to, to prepare drawings to comply with the requirements of the Condominium Act.
No authorized entry by Landlord shall constitute an eviction of Tenant or a
deprivation of Tenant's rights, alter the obligations of Tenant, or create any
right in Tenant adverse to Landlord's interests hereunder and the Rent reserved
shall in no
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way xxxxx, by reason of loss or interruption of business of Tenant, or
otherwise, while any repairs, alterations, improvements or additions are being
made. During the last six (6) months prior to the expiration of the term of this
Lease or any renewal terms, Landlord may place upon the Premises the usual
notices "to let", "for lease" or "for sale", which notices Tenant shall permit
to remain thereon without molestation. The authority to enter granted to
Landlord shall extend to and include all those authorized by Landlord,
including, but not limited to, authorized employees, agents, officers,
directors, invitees and contractors of Landlord.
17. Removal of Equipment and Fixtures. Tenant must remove Tenant's trade
fixtures and personal property within thirty (30) days after Tenant's right to
possession ends but within thirty (30) days prior to the stated termination date
of the Lease, time being of the essence provided that the foregoing shall not
limit Landlord's right to enter, remove and dispose of said trade fixtures and
personal property upon an Event of Default. In the event Tenant removes any
items, Tenant shall immediately repair or reimburse Landlord for all damage or
defacement resulting from the removal. If items are not removed within said
deadlines, at Landlord's option, said items shall become and remain the property
of Landlord and shall be deemed to be abandoned or at Landlord's option,
Landlord may remove and dispose of said items and Tenant shall immediately
reimburse Landlord for the reasonable costs for said removal.
18. Holding Over by Tenant. During any period of holding over, Tenant
shall be a Tenant at will subject to all the obligations imposed upon Tenant by
this Lease except that the Rent shall be increased by twenty-five percent (25%).
Such holding over shall be a month-to-month tenancy subject to all other
provisions of this Lease except those with respect to the term.
19. Default.
(A) Definition of Default. As used in this Lease, the term "Event of
Default" shall mean any of the following:
(1) Tenant's failure to timely make payment of any rental
installment or any other amounts payable by Tenant to
Landlord hereunder and if any such default shall continue
for a period of more than five (5) days;
(2) Tenant's failure, within thirty (30) days after receipt of
demand from Landlord, to fulfill any non-payment
obligation imposed on Tenant by this Lease provided,
however, that if the cause for giving such notice involves
a making of repairs or other matters reasonably requiring
a longer period of time than the period of such notice,
Tenant shall be deemed to have complied with such notice
so long as it has commenced to comply with said notice and
has taken and continues to diligently pursue compliance
with such notice;
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(3) Tenant or its guarantor shall file in any court a petition
in bankruptcy or insolvency or for reorganization or for
arrangement or liquidation within the meaning of the
Bankruptcy Code or any comparable state law, or for the
appointment of a receiver or trustee of all or a portion
of Tenant's property; or
(4) an involuntary petition of the kind referred to in
Subsection (3) of this Section shall be filed against
Tenant or its guarantor, if any, and such petition shall
not be vacated within thirty (30) days after the date of
filing thereof; or
(5) Tenant or guarantor, if any, shall make an arrangement for
the benefit of creditors, or shall be adjudicated a
bankrupt; or
(6) any property used in connection with Tenant's leasehold
interest or Tenant's interest in the Lease shall be taken
on execution or attached and such levy, attachment or
assignment is not dismissed or discharged within thirty
(30) days; or
(7) Tenant shall, for reasons other than those specifically
permitted in this Lease, cease to conduct its normal
business operations in the Premises or leave the same
vacated or abandoned for a period of ten (10) days.
(B) Remedies. Upon the happening of an Event of Default, Landlord at
is option, may (1) terminate this Lease or (2) end Tenant's rights to possession
of the Premises without terminating the term of this Lease. Upon termination of
this Lease for any reason, or upon loss of the Tenant's right of possession as
provided above, Tenant shall promptly surrender possession to Landlord and
vacate the Premises, and Landlord may re-enter the Premises and expel the Tenant
or anyone claiming under the Tenant and remove the property of any of them
without notice, formal claim or judicial process, Landlord being absolved of any
liability or claim for damages in doing anything reasonably necessary or
appropriate in connection therewith. If Landlord elects to end Tenant's right of
possession without terminating the term of this Lease, Landlord may, at its
option, lease or sublet all or any part of the Premises on such terms and
conditions as Landlord may elect and collect from Tenant any balance remaining
due on the Rent or other obligations payable by Tenant under this Lease as well
as charge Tenant for any leasehold improvement work incurred in a re-letting the
Premises or portion thereof or Landlord may declare, without further notice, all
Rent which otherwise would have been due and payable to be immediately due and
payable discounted to present value at an eight percent (8%) capitalization
rate.
20. No Recording of Lease. This Lease shall not be recorded. Landlord
and Tenant will, at any time, at the request of either one, promptly execute
duplicate originals of an instrument, in recordable form, which will constitute
a short form of lease, setting forth a
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description of the Premises, the term of the Lease and any other portions
thereof, except rent provisions, as either party may request.
21. Requirements of Insurers and Governments. Notwithstanding any
provision of this Lease to the contrary, Tenant shall comply with all reasonable
requests of any insurer of the Premises and shall comply with all governmental
ordinances, statutes, rules, regulations and all demands and requests of
authorized governmental officials, as if Tenant were the owner of the Premises,
provided, however, that the costs for any items which are capital assets, shall
be treated as "replacements" as provided in Section 6 of this Lease with the
cost therefor allocated in accordance with the formula described in Section 6.
Tenant shall take no action and shall not refrain from taking any action if such
action or failure to act would cause any insurance premium with respect to all
or any portion of the Premises to be increased or any insurance coverage to be
lost or limited or to lapse. Landlord represents that the Premises have been
constructed in compliance with all applicable governmental laws, statutes,
ordinances, building codes and rules and regulations.
22. Transfer of Landlord's Interest. In the event Landlord conveys the
fee simple interest in the Premises, Landlord on the date of conveyance shall
not be liable to Tenant with respect to this Lease for any matters whatsoever
except for those arising or accruing prior to the date of conveyance.
23. Landlord Reimbursement. At Landlord's sole option, after all
applicable cure periods, Landlord may satisfy any of Tenant's obligations
hereunder. In such event, Tenant shall reimburse Landlord for any expenses
incurred by Landlord, which expenses shall bear interest at a rate equal to the
prime lending rate of Premier Bank & Trust or its successors plus three (3)
percentage points and shall be paid in full, with accrued interest, on the date
Rent is due and payable hereunder next following the date on which Tenant
receives an invoice.
24. Bankruptcy.
(A) If a petition is filed by, or an order for relief is entered
against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant
elects to assume this Lease for the purpose of assigning it, such election or
assignment, or both, may be made only if all of the terms and conditions of
subparagraphs (B) and (D) below are satisfied. To be effective, an election to
assume this Lease must be in writing and addressed to Landlord, and in
Landlord's business judgment, all of the conditions hereinafter stated, which
Landlord and Tenant acknowledge to be commercially reasonable, must have been
satisfied If the trustee fails so to elect to assume this Lease within sixty
(60) days after such filing or entry or order, this Lease will be deemed to have
been rejected, and Landlord shall then immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee, and this Lease
shall be terminated. Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive such termination.
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(B) To the extent permitted by the United States Bankruptcy Code, if
Tenant files a petition for reorganization under Chapters 11 or 13 of the
Bankruptcy Code, or if a proceeding filed by or against Tenant under any other
chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and
Tenant's trustee or Tenant as debtor-in-possession fails to assume this Lease
within sixty (60) days from the date of the filing of such petition or
conversion, then the trustee of the debtor-in-possession shall be deemed to have
rejected this Lease. To be effective, any election to assume this Lease must be
in writing addressed to Landlord and, in Landlord's business judgment, all of
the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable, must have been satisfied.
(1) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in
this subparagraph, that:
(a) It will cure all monetary defaults under this Lease
within ten (10) days from the date of assumption;
and
(b) It will cure all non-monetary defaults under this
Lease within thirty (30) days from the date of
assumption.
(2) The trustee or the debtor-in-possession has compensated
Landlord, or has provided Landlord with adequate
assurance, as hereinafter defined, that within ten (10)
days from the date of assumption Landlord will be
compensated for any pecuniary loss it has incurred arising
from the default of Tenant, the trustee, or the
debtor-in-possession, as recited in Landlord's written
statement of pecuniary loss sent to the trustee or
debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance
of each of Tenant's obligations under this Lease;
provided, however, that:
(a) From and after the date of assumption of this
Lease, it shall pay all monetary obligations,
including the Rent and additional Rents payable
under this Lease in advance in equal monthly
installments on each date that such Rents are
payable;
(b) It shall also deposit with Landlord, as security
for the timely payment of Rent, an amount equal to
three months' Rent and other monetary charges
accruing under this Lease;
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(c) If not otherwise required by the terms of this
Lease, it shall also pay in advance, on each day
that any installment of Rent is payable,
one-twelfth (1/12th) of Tenant's annual tax,
escalation and other obligations under this Lease;
and
(d) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after
the completion of bankruptcy proceedings.
(4) For purposes of this subparagraph, "adequate assurance"
means that:
(a) Landlord determines that the trustee or the
debtor-in-possession has, and will continue to
have, sufficient unencumbered assets, after the
payment of all secured obligations and
administrative expenses, to assure Landlord that
the trustee or the debtor-in-possession will have
sufficient funds timely to fulfill Tenant's
obligations under this Lease and to keep the
Premises properly staffed with sufficient employees
to conduct a fully operational, actively promoted
business in the Premises; and
(b) An order shall have been entered segregating
sufficient cash payable to Landlord and/or a valid
and perfected first lien and security interest
shall have been granted in property of Tenant,
trustee or debtor-in-possession which is acceptable
in value and kind to Landlord, to secure to
Landlord the obligations of the trustee or
debtor-in-possession to cure all monetary and
non-monetary defaults under this Lease within the
time periods set forth above.
(C) To the extent permitted by the United States Bankruptcy Code, in
the event this Lease is assumed by a trustee appointed for Tenant or by Tenant
as debtor-in-possession under the provisions of subparagraph (B) above and,
therefore, Tenant is either adjudicated a bankrupt or files a subsequent
petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord
may, at its option, termiminate this Lease and all the Tenant's rights under it,
by giving written notice of Landlord's election so to terminate.
(D) If the trustee or the debtor-in-possession has assumed this
Lease, pursuant to Subsections (A) or (B) above, to assign or to elect to assign
Tenant's interest under this Lease or the estate created by that interest to any
other person, such interest or estate may be assigned only if the intended
assignee has provided adequate assurance of future performance, as defined in
this Subsection, of all of the terms, covenants and conditions of this Lease.
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(E) For the purposes of this Section, "adequate assurance of future
performance" means that Landlord has ascertained, using reasonable standards,
that each of the following conditions has been satisfied by a preponderance of
the evidence:
(1) The assignee has submitted a current financial statement,
audited by a certified public accountant, which shows a
net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance
by the assignee of the Tenant's obligations under this
Lease;
(2) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to
Landlord, from one or more persons who satisfy Landlord's
standards of credit worthiness; and
(3) Landlord has obtained consents or waivers from any third
parties which may be required under any lease, mortgage,
financing arrangement, or other agreement by which
Landlord is bound, to enable Landlord to permit such
assignment.
(F) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy charges
for the use of all or part of the Premises, it is agreed that such charges will
not be less than the Rent and other monetary obligations of Tenant included
herein.
(G) To the extent permitted by the United States Bankruptcy Code,
neither Tenant's interest in this Lease nor any estate of Tenant created in this
Lease shall pass to any trustee, receiver, assignee for the benefit of
creditors, or any other person or entity, nor otherwise by operation of law
under the laws of any state having jurisdiction of the person or property of
Tenant, unless Landlord consents in writing to such transfer. Landlord's
acceptance of rent or any other payments from any trustee, receiver, assignee,
person, or other entity will not be deemed to have waived, or waiver, either the
requirement of Landlord's consent or Landlord's right to terminate this Lease
for any transfer of Tenant's interest under this Lease without such consent.
25. Covenant of Quiet Enjoyment. During the Term, Tenant shall peaceably
and quietly hold, occupy and enjoy the Premises without let, hindrance or
molestation by Landlord or any other person or persons lawfully claiming under
Landlord.
26. Right of Refusal.
(A) Landlord and Tenant acknowledge that the Landlord proposed to
sell the Premises to Tenant for Eight Hundred Forty Thousand Dollars
($840,000.00) and that no contract was formed between Landlord and Tenant with
respect to a sale of the Premises. In lieu thereof, Landlord agreed to provide
Tenant the right of first refusal as provided below.
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(B) Subject to Subsection (C), Landlord shall not sell, exchange or
convey all or any portion of the Premises or any interest (whether legal or
equitable) therein, without giving Tenant twenty (20) days written notice of
Landlord's intention to sell, exchange, or convey all or any portion of the
Premises or any interest therein (whether legal or equitable), with the notice
to contain all of the terms and conditions of the proposal and copies of all
proposed contracts and other instruments. Landlord shall not sell, exchange, or
convey all or any portion of the Premises or any interest therein (whether legal
or equitable) or enter into any contracts to do the same except pursuant to
written agreements and other instruments, except as provided herein. If Tenant
notifies Landlord within twenty (20) days, time being of the essence, after the
receipt of said notice that Tenant desires to purchase the Premises, Landlord
shall sell the Premises to Tenant under the terms and conditions in said notice
unless Section 26(C) applies. In the event Tenant fails to notify Landlord of
Tenant's intentions with respect to the Premises within said twenty (20) day
period, time being of the essence, Landlord may sell or otherwise dispose of the
Premises as set forth in the notice to Tenant during the six (6) month period
commencing on the date said twenty (20) day period ends.
(C) In the event all or any portion of the Premises is proposed to
be conveyed without valuable consideration or wholly or partially for non-cash
consideration or as part of a sale, exchange or conveyance of additional real
estate and if the purchase price cannot be mutually determined by the Tenant and
Landlord within fourteen (14) days, after Tenant notifies Landlord of Tenant's
intention to purchase the Premises or the portion thereof set forth in the
notice, the purchase price shall be as provided below. The purchase price shall
be the average of three appraisals of the fair market value of the Premises or
the portion thereof, set forth in the notice, as determined by three appraisers,
one chosen by Tenant, one chosen by Landlord and the third chosen by the first
two appraisers. Said appraisers shall all be members in good standing of the
American Institute of Real Estate Appraisers ("MAI"). The cost of said
appraisers shall be borne equally by the parties. Said appraisers shall be
chosen within ten (10) days after the expiration of said fourteen (14) day
period, time being of the essence. Each appraiser shall deliver to the parties
his appraisal of the fair market value of the Premises, after his selection. In
the event an appraiser is not selected within said fourteen (14) day period or
if an appraiser does not deliver his appraisal within said thirty (30) day
period, the fair market value shall be determined by taking the average of the
appraisals which have been delivered to the parties within said thirty (30) day
period.
(D) If Tenant elects to purchase the Premises or the portion thereof
set forth in the notice, Tenant and Landlord shall execute multiple copies of a
purchase agreement prepared by Tenant or by an attorney chosen by Tenant at
Tenant's expense which shall contain the terms and conditions set forth in the
notice from Landlord to Tenant.
(E) This right of refusal shall terminate upon termination of this
Lease or upon cessation of Tenant's right to possession.
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27. Miscellaneous.
(A) The provisions of this Lease are severable. The unenforceability
or illegality of any provision shall not affect the enforceability or illegality
of any other provisions.
(B) The provisions of this Lease constitute the only agreement
between Landlord and Tenant with respect to the Premises and related matters and
supersede all prior and contemporaneous agreements, understandings,
representations, warranties and contracts.
(C) This Lease shall be binding upon and the benefits thereof shall
accrue to the benefit of Landlord and Tenant and their respective heirs, legal
and estate representatives, successors and assigns.
(D) Ohio law shall govern the interpretation and enforcement of this
Lease. Landlord and Tenant hereby submit to the personal jurisdiction of the
Courts of Lorain County Ohio. All disputes arising hereunder shall be properly
and exclusively venued in the Courts of Lorain County, Ohio.
(E) Tenant shall not commit waste with respect to the Premises.
(F) All titles are for convenience and are not substantive.
(G) Time shall be of the essence with respect to all provisions of
this Lease applicable to Tenant.
(H) All notices to Tenant shall be deemed delivered on the date
personally delivered to the Premises or the date when placed in the United
States mail, postage prepaid, addressed to 00000 Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxxxxx, XX 00000. All notices to Landlord shall be deemed delivered on the
date personally delivered to the principal place of business of Landlord, if
located with in Lorain County, or the date when placed in the United States
mail, postage pre-paid, addressed to X.X. Xxx 0000 Xxxxxx, XX 00000 or such
other address of which Landlord notifies Tenant at any time or from time to
time.
(I) Landlord represents and warrants that it holds fee simple title
to the Premises and has full power and authority to enter into this Lease.
[Document Continued On Next Page]
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IN WITNESS WHEREOF, Landlord and Tenant have set their hands as of the
day and year set forth above.
Signed and Acknowledged LIBERTY PARKWAY INDUSTRIAL, LTD.
In the Presence Of:
/s/ Xxxxx X. Xxxx By:/s/ Xxxxxxx X. Shave
-------------------------------- ----------------------------------
Xxxxxxx X. Shave, Managing Member
/s/ Xxxxx X. Xxxx "Landlord"
--------------------------------
DECORA, INC
/s/ Xxxxx Xxxxxxxx By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------------- ----------------------------------
Xxxxx Xxxxxxxx Xxxxxxx X. Xxxxxxx, Vice President
/s/ Xxxxxxx Xxxxx "Tenant"
--------------------------------
Xxxxxxx Xxxxx
STATE OF OHIO )
) SS:
COUNTY OF LORAIN )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named LIBERTY PARKWAY INDUSTRIAL, LTD., by and through its
duly authorized Managing Member, Xxxxxxx X. Shave, who acknowledged that he did
sign the foregoing instrument and that the same is his free act and deed and the
free act and deed of said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
N. Ridgeville, Ohio, this 5th day of August, 1998.
/s/ Xxxxx X. Xxxx
-------------------------------------
Notary Public
XXXXX X. XXXX
NOTARY PUBLIC, State of Ohio
My Commission Expires July 6, 1999
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STATE OF NEW YORK )
) SS:
COUNTY OF WASHINGTON )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Corporation, DECORA, INC., by and through Xxxxxxx X.
Xxxxxxx, its duly authorized Vice President, who acknowledged that he did sign
the foregoing instrument and that the same is his free act and deed individually
and as such Officer and the free act and deed of said Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Fort Xxxxxx, New York, this 27th day of May, 1998.
/s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Notary Public
XXXXXXXXX X. XXXXX
Notary Public, State of New York
Washington County #4928198
Commission Expires Apr. 18, 2000
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