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Exhibit 10.18
SECOND AMENDMENT TO LEASE
THIS AMENDMENT made this 20th day of June, 2001, by and
between XXXXXX ASSOCIATES, a California Limited Partnership, (hereinafter
referred to as "Lessor") and DEPOSITION SCIENCES, INC., an Ohio Corporation
qualified to do business in the State of California, (hereinafter referred to as
"Lessee")
RECITALS
The parties hereto previously entered into an
Agreement dated March 2, 2001, (the "Lease") whereby Lessee
would lease certain real property owned by Lessor commonly
known as 0000 Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, (the
"Property") which Lease was modified by a First Amendment
dated April 16, 2001. The parties now wish to enter into a
Second Amendment to the Lease and subject to the modifications
herein contained confirm and ratify all of the terms,
covenants and conditions of the Lease as previously amended.
AGREEMENT
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. Section 3.5 is hereby added to the Lease providing
in full as follows:
3.5 PAYMENT OF RENT. Lessee shall pay the rent as
required by this Article 3 to an account maintained by Washington Mutual Bank,
FA (hereinafter referred to as the "Lender") from which Lender shall withdraw
the monthly payment due to Lender from Lessor pursuant to Lessor's promissory
note payable to Lender, the payment of which is secured by a deed of trust,
security agreement, assignment of leases and rent and fixture filing (
hereinafter collectively the "Deed of Trust") which creates a first lien on the
Premises. Lessor shall be permitted by Lender to withdraw the balance of the
rent paid each month from said account.
2. Section 10.1 is hereby modified to read in its
entirety as follows:
10.1 LESSEE'S DUTY TO RESTORE PREMISES. If at any time during
the term of this Lease the Premises are totally or partially damaged or
destroyed, Lessee shall, in the shortest time practicable and no later than six
(6) months after receiving the necessary governmental building approvals (which
approvals must be received within six (6) months of the damage or destruction of
the Premises), restore the Premises to substantially the same condition as they
were in
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immediately before such damage or destruction; provided however, that unless (i)
such damage or destruction is due to the fault of Lessee Lessee's financial
obligation shall be limited to the amount of insurance coverage required by
Article 9 of this Lease, (ii) Lessee's shall have no obligation to undertake
physical restoration of the Premises unless more than two (2) years remains n
the lease term, and (iii) Lessee shall have no obligation to undertake physical
restoration of the Premises if the holder of any mortgage or deed of trust on
the Premises exercises its right to apply to the funds received from Lessee's
insurer to satisfy the obligations secured by the mortgage or deed of trust. If
required by this Section, Lessee will do all acts reasonably necessary to
promptly obtain the necessary governmental building approvals and Lessor shall
diligently cooperate with Lessee to obtain these approvals. Lessor shall approve
all changes in the condition of the Premises occasioned by the restoration work.
Lessee's obligation to restore the Premises shall not be affected by Lessee's
failure to obtain or maintain the insurance Lessee is required to carry under
this Lease. If Lessee fails to restore the Premises as herein required, Lessor
may restore the Premises. Lessor shall not be required to restore the Lessee any
of his alterations, improvements, trade fixtures or personal property, such
excluded items being the sole responsibility of Lessee to restore, except to the
extent that such alterations, improvements, trade fixtures or personal property
can be restored with insurance proceeds.
3. Section 11.1 is hereby modified in its entirety to
read as follows:
11.1 LESSEE'S DEFAULT. The occurrence of any one or more
of the following events shall constitute a default and breach of this Lease by
Lessee.
(a) The failure by Lessee to make any rental payment or any other
payment required to be made by Lessee hereunder, as and when
due, where such failure shall continue for a period of thirty
(30) days after written notice thereof by Lessor to Lessee.
(b) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease, other than
those described in Section 11.1(a) herein where such failure
shall continue for a period of thirty (30) days after written
notice thereof by Lessor to Lessee; provided, however, if the
nature of Lessee's default is a non-monetary default that
reasonably requires that more than thirty (30) days for its
cure, then Lessee shall not be deemed to be in default if
Lessee commences such cure within said thirty (30) day period
and thereafter diligently pursues such cure to a prompt
completion. If Lessee does not pursue such a cure to a prompt
completion, then Lessor shall have the right to terminate this
Lease.
(c) The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; or the filing by or
against Lessee of a petition to have Lessee adjudged a
bankrupt, or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a
petition filed against Lessee, the same is dismissed within
sixty (60) days); or the appointment of a trustee or a
receiver to take possession of all or substantially all of
Lessee's assets located at
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the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
(d) If Lessee permits, commits, suffers, or maintains any unlawful
act, nuisance or waste on or about the Premises, which
materially damages the Premises.
4. Section 11.2(f) is hereby added to read as follows:
(f) Notwithstanding anything to the contrary contained in this
Article 11, Lessor shall not have the right to exercise its
remedies as provided in this Lease, as amended, if Lessee
either (i) cures the default prior to the effective date of
the termination of the Lease (provided that Lessee shall not
be entitled to so reinstate the Lease following failure to
timely cure a default and receipt of notice of termination of
the Lease more than once during any five year period) or (ii)
contests the existence of the default prior to the effective
date of the termination of the Lease in a court of competent
jurisdiction and complies with the final, non-appealable
order.
5. Except as herein otherwise expressly stated and
provided in this modification, the parties hereby affirm and ratify all of the
terms and conditions of the Lease and the First Amendment to the Lease.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the day and year first hereinabove written.
XXXXXX ASSOCIATES,
A California limited Partnership
By /s/ Xxxx Xxxxxx
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General Partner
DEPOSITION SCIENCES, INC.
By /S/ XXXXX XXXXXXX
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The undersigned hereby agrees to guarantee the obligations of
the Lessee hereunder.
ADVANCED LIGHTING AND TECHNOLOGIES
An Ohio Corporation
By /s/ Xxxxxx X. Xxxxx, Treasurer
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(Title)
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