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EXHIBIT 10.9
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease amends and supplements that certain
Agreement of Lease (the "Lease") dated as of October 1, 1993, by and between
D.I.Y. OHIO REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a Michigan Limited
Partnership (the "Landlord") and D.I.Y. HOME WAREHOUSE, INC., an Ohio
Corporation (the "Tenant").
RECITALS
I. V & V Limited, an Ohio Limited Liability company ("Purchaser")
effective as of October 22, 1998 will purchase all of
Landlord's interest in and to the Leased Premises (as that
term is defined in the Lease), specifically, Landlord's fee
simple title therein.
II. Effective as of October 23, 1998, Purchaser and Tenant
amended the Lease pursuant to an Amendment of Lease.
III. Effective as of October 23, 1998, Purchaser and Tenant desire
to further amend the Lease as hereinafter provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, Tenant and Purchaser (as Landlord of
the Leased Premises) hereby agree as follows:
Paragraph 11(a) of the Lease is hereby deleted in it entirety and
the following Paragraph 11 shall be inserted in lieu thereof:
(a) As part of the consideration for the execution and delivery of
this lease and as additional rental, the Tenant covenants and agrees
during the term of this lease to pay to the officers of public or
private utilities charges with the collection thereof, as the same may
become due and payable and before any fine, penalty, interest or other
charge may be added thereto for nonpayment thereof, all taxes, license
and permit fees, charged for gas, water or electric charged by public
or private utilities of every kind, and obligations for any and all
governmental or non-governmental charges, general and special,
ordinary and extraordinary, unforeseen as well as foreseen, of any
kind and nature whatsoever, including, but not limited to, assessments
for sidewalks, streets, sewers, water and other public improvements
and any other improvements or benefits which shall during the term
hereof be made, assessed, levied or imposed upon, or become due and
payable in connection with, or a lien upon, the Leased Premises or
upon this lease. In the event there shall be imposed a tax, fee,
charge or assessment of any kind or nature upon, against or with
respect to the Leased Premises or the rents payable by the Tenant
hereunder or with respect to the Landlord's ownership interest in the
Leased Premises, which is assessed or imposed by way of substitution
for all or any part of the ad valorem real estate taxes or other taxes
and assessments
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referenced above, or is used to the fund the governmental function
previously funded by such ad valorem real estate taxes or other taxes
and assessments referenced above, then the Tenant shall pay to the
Landlord its proportionate share of the Landlord's tax obligation
arising out of the Leased Premises or the rents payable by the Tenant
hereunder or with respect to the Landlord's ownership interest in the
Leased Premises. Real estate taxes and assessments whether general or
special and other charges required to be paid by Tenant under the
provision of this paragraph 11(a), which are a lien against the
Leased Premises, or any part thereof, but not yet due and payable for
the last year of the Initial Term hereof, or the last year of the
First Renewal Period, Second Renewal Period, or Third Renewal Period
(if the options for such renewal period(s) are exercised in
accordance with Paragraph 2(b), (c) and (d) of this Lease) shall be
prorated between the Landlord and the Tenant based upon the last
available tax rate and duplicate as shown on the records of the
Mahoning County Auditor. Consequently, upon the expiration of the
Lease, the Tenant will pay to Landlord the amount necessary to
compensate the Landlord for all taxes and assessments whether general
or special and other charges required to be paid by Tenant under the
provisions of this Paragraph 11(a), which accrue or are accrued and
which are a lien against the Leased Premises or become a lien against
the Leased Premises at any time during the term of the lease but were
not yet due and payable as of the expiration of the Lease, including
expiration of the First Renewal Period, Second Renewal Period, or
Third Renewal Period, if some or all of the options discussed in
Paragraph 2(b), (c) and (d) hereof are exercised as prorated in
accordance with the previous sentence of this Paragraph 11(a). Upon
request therefor by the Landlord, the Tenant covenants to furnish to
the Landlord, within thirty (30) days after the dates upon which such
taxes, assessments, utilities and other charges are payable, official
receipts of the proper taxing or other authority or other proof
satisfactory to the Landlord, evidencing the full payment thereof.
The Landlord agrees to send to the Tenant promptly copies of any
notices for any such taxes, assessments, utilities or other charges
if such notices are received by the Landlord.
Signed and Acknowledged V & V 224, LIMITED
in the Presence of:
Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Fond, Sr.
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Xxxx X. Learn Xxxxxxx Fond, Sr., Member
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And: /s/ Xxxxxxx Fond, Jr.
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Xxxxxxx Fond, Jr., Member
D.I.Y. HOME WAREHOUSE, INC.
???? By: ???
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Xxxxx X. Xxxxx Its: President
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