TRIPLE NET LEASE AGREEMENT
Exhibit 10.31
TRIPLE NET
LEASE AGREEMENT
LEASE AGREEMENT
THIS LEASE AGREEMENT (“Lease”) executed and effective as of the 1st day of July,
2008 at Mentor, Ohio by and between OSAIR, INC., having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter called “Landlord”), and ▇▇▇▇▇▇ NATURAL GAS COMPANY, having an
office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter called “Tenant”).
ARTICLE ONE
LEASE OF DEMISED PREMISES
Section 1.01 Demised Premises. Landlord, for an in consideration of the rent
hereinafter reserved, and for the covenants and agreements hereinafter set forth to be kept,
observed and performed by Tenant, has granted, demised and leased and by these presents does hereby
lease unto Tenant the following described premises, to-wit: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ containing approximately 2,997 square feet (the “Demised Premises”).
Section 1.02 Term. Tenant shall have and hold the Demised Premises for a term
commencing as of July 1, 2008 (the “Commencement Date”), and expiring on June 30, 2023.
ARTICLE TWO
USE OF DEMISED PREMISES
Section 2.01 Use of Demised Premises. Tenant covenants and agrees that the Demised
Premises during the term hereof shall be occupied and used in compliance with governmental
permitted uses only.
Section 2.02 Compliance. Tenant shall observe and comply with all conditions and
requirements imposed by all governmental authorities having jurisdiction over the Demised Premises
throughout the term of this Lease.
ARTICLE THREE
ANNUAL RENT
Section 3.01 Amounts. Tenant covenants and agrees to pay to Landlord, promptly when
due, without notice or demand and without deduction or setoff for any reason whatsoever, “Annual
Rent” for the Demised Premises during the term of this Lease in the amount of Twenty-Four Thousand
Dollars ($24,000) per year for each year of the term of this Lease, payable in monthly installments
of Two Thousand Dollars ($2,000) each; provided, however, that the
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Annual Rent shall be incurred each five (5) years following the Commencement Date (the “Rental
Adjustment Dates”) by the percentage increase in the United States Department Commerce Index: all
items for Cleveland, Ohio (“CPI”) which shall have occurred between the Commencement Date and each
Rental Adjustment Date.
Section 3.02 Payment of Rent. The Annual Rent shall be payable in equal monthly
installments, in advance, on the first day of each month of each year during the term of this
Lease. All installments of Annual Rent which Tenant is required to pay under Section 3.01 hereof,
as well as all other amounts payable by Tenant to Landlord under the terms of this Lease, shall be
paid at the office of Landlord as set forth above, or at such other place as Landlord shall from
time to time designate by written notice to Tenant, in lawful money of the United States of
America.
Section 3.03 Net Annual Rent. Tenant agrees that the Annual Rent provided for in
Section 3.01 hereof shall be an absolutely net return to Landlord throughout the term of this
Lease, free of any expense, charge or other deduction whatsoever, with respect to the Demised
Premises.
ARTICLE FOUR
ADDITIONAL RENTAL
Section 4.01 Other Amounts as Additional Rental. In addition to the Annual Rent
provided for in Article Three, Tenant shall also pay without notice of demand and without
abatement, reduction or setoff, as and toward “Additional Rental” hereunder, its percentage share
of all real estate taxes, insurance costs and common area maintenance charges attributable to the
real property where the Demised Premises is located, along with all other sums of money required to
be paid by Tenant under the terms of this Lease. In the event of any non-payment by Tenant of all
or any part thereof, when due, Landlord shall have all of the rights and remedies provided for in
this Lease, or by law, for the non-payment of rent or for the breach of this Lease.
Section 4.02 Prime Interest Rate Definition. The term “Prime Interest Rate” shall
mean the lowest interest rate from time to time charged by National City Bank (“NCB”) (or its
successor bank), Cleveland, Ohio, to its largest and most creditworthy customers on unsecured loans
and ninety (90) days or less and announced by NCB as its “prime interest rate”, and such Prime
Interest Rate shall be changed as of and effective on the same date that NCB (or its successor
bank) changes its announced prime interest rate as aforesaid.
Section 4.03 Interest. Any and all amounts which become due and payable to Landlord
under this Lease, whether deemed to be Annual Rentals, Additional Rent or otherwise hereunder,
shall bear interest at the rate of three percent (3%) per annum in excess of the Prime Interest
Rate, as that term is hereinabove defined, from the date or dates such amount shall become due and
payable until the date or dates of payment by Tenant.
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Section 4.04 Late Charges. If any monthly installment of Annual Rent is not paid
within ten (10) days of its due date, Tenant shall be assessed a late charge equal to five percent
(5%) of the overdue monthly installment of Annual Rent.
ARTICLE FIVE
TAXES AND OTHER CHARGES
Section 5.01 Subject only to those other sections of this Lease which specifically limited
Tenant’s obligations, Tenant agrees that it will pay and discharge, or cause to be paid and
discharged, punctually as and when the same shall become due and payable without penalty, all
personal property taxes, privilege taxes, excise taxes, business and occupation taxes, gross sales
taxes, and occupation license taxes, and all other governmental impositions and charges of every
kind and nature whatsoever, whether or not now customary or within the contemplation of the parties
hereto and regardless of whether they unforeseen or foreseen, or similar or dissimilar to any of he
foregoing, (collectively “Tax or Taxes”) which are due and payable for any period of time during
the term of this Lease and which:
| (a) | Shall be levied, assessed or imposed upon or against the Demised Premises or any portion thereof, or any interest of Landlord or Tenant therein or under this Lease; | ||
| (b) | Shall be or become liens upon or against the Demised Premises or any portion thereof, or any such interest or Landlord or Tenant therein, or under this Lease; | ||
| (c) | Shall be levied, assessed or imposed upon by virtue of any present or future law, statute, ordinance, regulation or other requirement of any governmental authority whatsoever, whether federal, state, county, city , municipal, or otherwise, it being the intention of the parties hereto that, insofar as the same may lawfully be done, Landlord shall be free from all such expenses and all Taxes and charges of every kind and nature whatsoever, and that this Lease shall yield to Landlord not less than the Annual Rent reserved hereunder throughout the term of this Lease. |
Nothing contained in this Lease shall require Tenant to pay any franchise, estate, inheritance,
succession or transfer tax of Landlord, or any income, excess profits or revenue tax or any other
tax, assessment, charge or levy upon the amounts payable by Tenant under this Lease; provided,
however, that it at any time during the term of this Lease the methods of taxation prevailing at
the commencement of the term of this Leases hall be altered so that in lieu of any Tax under this
Section 5.01 there shall be levied, assessed and imposed, a tax, assessment, levy, imposition or
charge, wholly or partially as a capital levy or otherwise, on the rents received herefrom, or a
license fee measured by the rent payable by Tenant under this Lease, then in either of such events
all such taxes, assessments, levies, impositions or charges or the part thereof so measured or
based, shall be deemed to be included within the term “Tax” for the purposes hereof, to the extent
that such Tax would be payable if the Demised Premises were the only property of Landlord subject
to the Tax, and Tenant shall pay and discharge the same as herein provided in respect to the
payment of Taxes.
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Section 5.02 Taxes After Termination. Any Tax relating to a fiscal period of the
taxing authority, a party of which is within the term of this Lease and a part of which is
subsequent to the term of this Lease, shall, whether or not such Tax shall be assessed, levied,
imposed or become a lien upon the Demised Premises or upon the buildings and improvements
comprising the Demised Premises, or shall become payable during the term of this Lease, be
apportioned and adjusted and paid between Landlord and Tenant as of the sated date of expiration of
the term of this Lease, so that Landlord shall pay the proportion of such Tax which that part of
such fiscal period included in the period of time after the expiration of the term of this Lease
bears to such fiscal period, and Tenant shall pay the remainder thereof. With respect to any Tax
for public improvements or benefits which by law is payable, or at the option of the taxpayer may
be paid, in installments, Landlord shall pay the installments thereof which become due payable
subsequent to this expiration of the terms of this Lease, and Tenant shall pay all such
installments which become due and payable at any time during the term of this Lease, even if
payment is postponed beyond the end of the term of this Lease by Tenant.
Section 5.03 Percentage of Real Estate Taxes. Tenant shall pay to Landlord within ten
(10) days of billing, Tenant’s share of the Real Estate Taxes and/or public improvement assessments
due on the real property based upon Tenant’s percentage of the square footage occupied by Tenant
within the building where the Demised Premises is located. Tenant acknowledges that its percentage
share of all Real Estate Taxes and/or assessments is .055%.
Section 5.04 Right to Contest Taxes. Tenant shall not have the right to file a
complaint or otherwise contest the amount of Taxes due as determined by any governmental authority
having jurisdiction without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed.
Section 5.05 Non-Metered Utilities. Any utilities that are not separately metered as
to the Demised Premises shall be the sole obligation of the Landlord, and shall be paid by the Land
in consideration of the Rentals paid by Tenant under this Lease.
ARTICLE SIX
INSURANCE
Section 6.01 Percentage of Insurance Costs. Tenant shall pay to Landlord within ten
(10) days of billing, Tenant’s share of all of Landlord’s insurance costs for the Demised
Premises based upon Tenant’s percentage of the square footage occupied by Tenant within the
Demised Premises. Tenant acknowledges that its percentage of share of all insurance costs is
.055%.
Section 6.02 Liability Insurance. At all times during the term of this Lease at its
own cost and expense, Tenant shall provide and keep in force comprehensive general liability
insurance policies, in broad form, protecting Tenant, Landlord, and any mortgagees as additional
insureds, against any and all liability in the amount not less than a combines single limited of
One Million Dollars ($1,000,000). All such polices shall cover the entire Demised Premises.
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Section 6.03 Other Insurance. Tenant may obtain any other additional insurance which
Tenant may desire at its own costs and expense, including but not limited to business interruption
insurance and insurance coverage on its inventory and personal property.
Section 6.04 Landlord and Mortgagees Named as Insureds. All such insurance to be
provided by Tenant under this Article Six shall name Tenant and Landlord as insureds and, at the
option of Landlord, any other parties requested by Landlord as additional Insured, all as their
respective interests may appear.
Section 6.05 Mutual Waiver of Subrogation. Notwithstanding anything set forth in this
Lease, to the contrary, Landlord and Tenant do hereby waive any and all right or recovery, claims,
action or cause of action against the other, their respective agents, officers and employees for
any loss or damage that may occur to the Demised Premises or any addition or improvements thereto,
by reason of fire, the elements or any other cause which could be insured against under the terms
of a standard fire and extended coverage insurance policy or policies, with vandalism, malicious
mischief and all-risk coverage and business interruption insurance or for which Landlord or Tenant
may be reimbursed as a result of insurance coverage affecting any loss suffered by either party
hereto, regardless of cause or origin, including the negligence of Landlord or Tenant or their
respective agents, officers and employees. In addition, all insurance policies carried by either
party covering the Demised Premises including, but not limited to, contents, fire and casualty
insurance, shall expressly waiver any right on the part of the insurer against the other party for
damage to or destruction of the Demised Premises resulting from the acts, omissions or negligence
of the other party.
ARTICLE SEVEN
APPLICABLE LAWS AND REGULATIONS
Section 7.01 Compliance with Laws. During the term of this Lease, Tenant shall, at
its own costs and expense, promptly observe and comply with all present and future laws,
ordinances, requirements, order, directives, rules and regulations of the federal, state, county
and municipal governments and of all other governmental authorities affecting the Demised Premises
or appurtenances thereto or any part thereof, whether the same are in force at the commencement of
the term of this Lease or may in the future be passed, enacted or directed, and Tenant shall pay
all costs, expenses, liabilities, losses, damages, fines, penalties, claims and demands, that may
in any manner arise out of or be imposed because of the failure of Tenant to comply with the
covenants of this Article Seven.
Section 7.02 Right of Contest. Subject to the rights of the lender under any mortgage
encumbering he Demised Premises, Tenant shall have the right to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of Tenant, or Landlord (if legally
required), or both (if legally required), without cost or expense to Landlord, the validity or
application of any law, ordinance, rule, regulation or requirement of the nature referred to in
Section 7.01 hereof and, if by the terms of any such law, ordinance, order, rule, regulation or
requirement, compliance therewith may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay compliance therewith until the final determination of such contest.
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Section 7.03 Compliance with Covenants. Tenant shall, at its sole cost and expense,
faithfully observe and comply with all covenants, conditions and restrictions to which the Demised
Premises are now or hereafter subject.
Section 7.04 Tenant’s Indemnity Regarding Hazardous Use. Tenant agrees to indemnify,
defend and hold harmless Landlord for all costs and expenses due to events relating to Tenant’s
use, shipment, storage, disposal or discharge of hazardous or toxic materials or wastes, hazardous
or toxic substances, solid wastes, waste water, or process water in, on or about the Demised
Premises that may result in any requirements, liability or claims to remedy and/or clean-up such
wastes, toxins or substances, whether based upon a statute, regulation, order of a governmental
agency, or a private claim. These requirements include, but are not limited to, those claims or
liabilities arising out of the Clean Air Act, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control
Act, the Safe Drinking Water Act, and the state counterparts of such statutes. This
indemnification applies to, but is not limited to, claims or liability regarding air pollution,
water pollution, land pollution, groundwater pollution, solid and hazardous waste management and
toxic or hazardous substances control. This indemnification will survive the termination of this
Lease.
ARTICLE EIGHT
REPAIRS, MAINTENANCE, AND LANDLORD REPAIR REIMBURSEMENTS
Section 8.01 Obligations. Tenant has examined and inspected the Demised Premises, is
satisfied with the physical condition of same and accepts same in its present “as is” physical
condition. Throughout the term of this Lease, Tenant covenants and agrees to keep and maintain all
portions of the Demised Premises which it occupies in good order, condition and repair and to
promptly make all repairs or replacements becoming necessary during the term of the Lease. Other
than those obligations of the Tenant, Landlord shall perform all other repairs and maintenance for
the Building in which the Demised Premises is located, including but not limited to the exterior,
structural, roof, parking lot, landscaping, and snow removal; provided, however, that Landlord’s
repair maintenance costs shall be charged to the Tenant. Tenant shall be charged its share based
upon the percentage of the square footage occupied by Tenant. Tenant acknowledges that its
percentage share of all Landlord reimbursements is .055%.
ARTICLE NINE
PUBLIC UTILITIES AND SERVICES
Tenant agrees to pay or cause to be paid all charges for separately metered and/or separately
billed by third party suppliers for all gas, water, sewer, electricity, light, heat, power, steam,
air-conditioning, telephone or other communication service or other utility or service used,
rendered or supplied to, upon or in connection with the Demised Premises or Tenant’s occupation and
use thereof throughout the term of this Lease, and to indemnity, defend and save harmless Landlord
from and against any liability, costs, expenses, claims or damages on such
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account. Tenant shall also, at its sole cost and expense, procure or cause to be procured any and
all necessary permits, licenses or other authorizations required fro the lawful and proper use,
occupation, operation and management of the Demised Premises.
ARTICLE TEN
ALTERATIONS
Tenant agrees that it will not (a) demolish or undertake any structural alterations of any of
the buildings or other improvements erected upon or otherwise comprising the Demised Premises,
without the prior written consent of Landlord or (b) make any other alterations which would change
the character of the buildings or other improvements comprising the Demised Premises or which would
weaken, impair or otherwise in any way affect the structural aspects of integrity of or lessen the
value of the Demised Premises and/or the buildings and other improvements comprising the Demised
Premises.
With respect to any alterations permitted to be made by Tenant pursuant to this Article Ten,
Tenant shall (a) pay all costs, expenses and charges thereof, (b) make the same in accordance with
all applicable laws and building codes in a good and workmanlike manner, (c) cause the same to be
performed by qualified contractors who shall not create any labor or other disturbance at the
Demised Premises while performing same, (d) fully and completely indemnify and hold harmless
Landlord from and against any mechanic’s liens or other liens or claims in connection with the
making thereof and (e) by reason of such alterations, not thereby and (e) by reason of such
alterations, not thereby reduce the economic value of the Demised Premises.
All alterations, improvements and additions to the Demised Premises permitted to be made by
Tenant hereunder, shall be made in accordance with all applicable laws and plans and specifications
previously submitted to Landlord for Landlord’s approval, which approval shall not be unreasonably
withheld or delayed, and, except for removable trade fixtures, shall at once when made or installed
be deemed to have attached to the freehold and to have become the property of Landlord and shall
remain for the benefit of Landlord at the end of the term or other expiration of this Lease in as
good order and condition as they were when installed, reasonable wear and tear excepted.
In the event in the making of such alteration, improvements and additions as herein provided,
Tenant further agrees to indemnify and hold harmless Landlord from and against all costs, expenses,
liens, claims and damages arising out of, or resulting from the undertaking or making of such
alterations, improvements and additions.
ARTICLE ELEVEN
LIENS
Section 11.01 Inability to Establish Lien. Tenant shall have no power or right to do
any act or to make any contract which may create any voluntary lien, mortgage or other encumbrance
upon the Demised Premises, the estate of Tenant or of any interest of Tenant in the Demised
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Premises, the estate of Tenant or of any interest of Tenant in the Demised Premises or upon the
reversion or other estate of Landlord or of any interest of Landlord in the Demised Premises or
fixtures, machinery, buildings and other improvements therein contained.
ARTICLE TWELVE
INDEMNITY
Section 12.01 Tenant’s Indemnification. Tenant shall indemnify, defend and save
harmless Landlord from and against all liability, judgments, claims, demands, suits, actions,
losses, penalties, fines, damages, costs and expenses, including attorneys’ fees, of any kind or
nature whatsoever, due to or arising out of or from any breach, violation or non-performance of any
covenant, condition, provision or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed, and claims of every kind or nature, arising
out of the use and occupation of the Demised Premises by Tenant, including, without limitation, any
damage to property occasioned by or arising from the use and occupation thereof by Tenant or by any
sublessee, subtenant or assignee of Tenant, any injury to any person or person, including death
resulting at anytime therefrom, occurring in or about the Demised Premises or the sidewalks in
front of the same or adjacent thereto.
ARTICLE THIRTEEN
ACCESS FOR INSPECTION
Section 13.01 Access by Landlord. Landlord and any mortgagee and their respective
agents shall have the right to enter the Demised Premises at all reasonably hours for the purpose
of inspection thereof, or of making repairs, replacements and restorations that Tenant has
neglected or refused to make in accordance with the agreements, terms, covenants and conditions of
this Lease. In addition, Landlord and its agents shall have the right to enter the Demised Premises
at all reasonable hours for the purpose of showing the same to persons or entities wishing to
purchase or make a mortgage loan thereon or wishing to rent the whole of the Demised Premises.
ARTICLE FOURTEEN
CONDEMNATION
Section 14.01 Entitlement to Award. In the event the Demised Premises or any party
thereof shall be taken or condemned either permanently or temporarily for any public or quasi
public use or purpose by any competent authority in appropriation proceedings or by any right of
eminent domain, the entire use Award or other compensation award therefor, both leasehold and
reversion, shall belong to Landlord without any deduction therefrom for any present or future
estate of Tenant and Tenant hereby assigns to Landlord all its right, title and interest to any
such use Award.
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Section 14.02 Termination of Lease. If the entire Demised Premises shall be taken as
aforesaid, then this Lease shall terminate and shall become null and void from the time possession
thereof is required for public use and from that date on the parties hereto shall be released from
further obligation hereunder; but in the event a portion, only of the Demised Premises shall be so
taken or condemned, then Landlord, at its own expense, shall repair and restore, to the extent
reasonably possible, the portion not affected by the taking and thereafter the Annual Rent to be
paid by Tenant shall be equitably and proportionately adjusted.
Section 14.03 Not Deemed an Eviction. Any such appropriation or condemnation
proceedings shall not operate as or be deemed an eviction of Tenant or a breach of Landlord’s
covenant for quiet enjoyment.
ARTICLE FIFTEEN
ASSIGNMENT AND SUBLETTING
Section 15.01 Rights to Assign.
(a) Tenant covenants and agrees not to assign this Lease or Tenant’s leasehold
interest in this Lease, including, but not limited to a collateral assignment of
Tenant’s leasehold interest in this Lease, or to sublet the whole or any part of the
Demised Premises, or to permit any other persons to occupy the whole or any part of
the Demised Premises without the written consent of Landlord first had, references
elsewhere herein to assignees notwithstanding. No consent of Landlord to a
particular assignment or subletting shall be deemed a consent to further assignments
or subletting. Any assignment or subletting, even with the consent of Landlord,
shall not relieve Tenant from liability for payment of rent or other sums herein
provided or from the obligation to keep and be bound by the terms, conditions and
covenants of this Lease. The acceptance of rent from any other person shall not be
deemed to be a waiver of any of the provisions of this Lease and shall not
constitute consent to the assignment of this Lease or subletting of the Demised
Premises.
(b) Each of the following events shall be deemed an assignment of this Lease by
Tenant within the meaning of this Section 15.01:
(i) a transfer by operation of law or otherwise, of Tenant’s interest in this
Lease; or,
(ii) a transfer by operation of law or otherwise of a majority of the issued
and outstanding shares of capital stock of or other percentage interest in Tenant in
a single transaction or a related series of transactions; or a transfer by operation
of law or otherwise of a majority of the issued and outstanding shares of capital
stock of or other percentage interest in Tenant in a single transaction or a related
series of transactions; or
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ARTICLE SIXTEEN
DEFAULTS
Section 16.01 Defaults. In the event any one or more of the following events shall
occur:
(a) Tenant shall default in making payment to Landlord of Annual Rent,
Additional Rental or of any money advanced by Landlord and collectible as Additional
Rental, as and when the same shall become due and payable, and such default in
payment shall continue for a period of ten (10).days; or
(b) Tenant shall fail, neglect or refuse to keep and perform and of the other
covenants, conditions, stipulations or agreements herein contained, covenanted and
agreed to be kept and performed by Tenant, and in the event any such default shall
continue for a period of thirty (30) days after notice thereof given in writing to
Tenant by Landlord or Landlord’s agents; provided, however, that if Tenant cannot
reasonably cure such default within such thirty (30) day period, Tenant shall have
such additional period of time as Tenant reasonably requires so long as Tenant
proceeds with due diligence to cure such default and so long as Landlord shall not
be materially prejudiced thereby; or
(c) Any voluntary or involuntary petition or similar pleading under any section
or sections of any bankruptcy act shall be filed by or against Tenant, or any
voluntary or involuntary proceeding in any court or tribunal shall be instituted to
declare Tenant insolvent or unable to pay Tenant’s debts, and the same shall not be
dismissed or discharged within thirty (30) days after receipt by Tenant of notice of
such proceeding; or.
(d) Tenant makes any assignment of its property for the benefit of creditors or
should the Demised Premises be taken under a levy of execution or attachment in any
action against Tenant and such levy, attachment or assignment is not dismissed or
discharged within thirty (30) days after such assignment or, in the case of a levy
or attachment, within thirty (30) days after receipt by Tenant of notice thereof;
(e) In any such event of default hereinabove described, Landlord may make such
alterations, repairs, replacements and/or decorations in the Demised Premises as
Landlord considers necessary or desirable for the purpose of reletting the Demised
Premises and the making of same shall not release Tenant from liability hereunder,
nor shall Landlord’s failure or refusal to re-let or failure to collect rent due
under any re-letting affect Tenant’s liability for damages.
(f) In the event this Lease is terminated pursuant to Section 16.01 hereof, all
of the right, title and estate and interest of Tenant in and to the Demised
Premises, all rents, issues and profits derived from the Demised
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Premises whether then accrued or to accrue, all insurance policies and all
insurance proceeds paid or payable to Tenant or to Landlord pursuant to this Lease,
and the then entire undisbursed balance of. any use Award (as defined in Article 28)
described in this Lease, shall automatically pass to, vest in and belong to
Landlord, without further action on the part of either party and without cost or
charge to Landlord, free of any claim thereto by Tenant.
In any such event of default hereinabove described, the Annual Rents and the Additional Rental
due under this Lease shall immediately become due and payable and Landlord shall have the options
of:
(i) Collecting by suit or otherwise each installment of Annual Rent or
Additional Rent or other sums as they become due hereunder, or to enforce by. suit
or otherwise any other term or provision hereof on the part of Tenant required to be
kept or performed;
(ii) To re-enter and take possession of the Demised Premises at any time after
written notice to that effect Tenant; and Tenant shall immediately vacate the
Premises and deliver possession thereof to Landlord, but nevertheless, Tenant shall
remain liable for the unpaid Annual Rentals and Additional Rentals, and all other
sums payable by Tenant hereunder, as said sums shall or would have become due; but
there shall be credited against such unpaid amounts, the net proceeds realizable
from the leasing of the Demised Premises to a third party, after first deducting
from such proceeds all costs and expenses incurred in connection with such leasing,
attorneys’ fees, brokerage and expenses of keeping the Demised Premises in good
order or preparing the same for lease;
(iii) To terminate this Lease, in which event Tenant agrees immediately to
surrender possession of the Demised Premises and to pay to Landlord the amount of
damage sustained by Landlord by reason of Tenant’s breach of this Lease;
(iv) Landlord may, in lieu of the sums due Landlord pursuant to the preceding
paragraphs (but in addition to the sums payable for Landlord’s expenses for keeping
the Premises in good order and for preparing the same for re-letting), elect to
recover from Tenant and Tenant agrees to pay as liquidated damages, an amount equal
to the difference between the Annual Rentals and Additional Rentals reserved for the
unexpired portion of the term of this Lease, and the then fair rental value of the
Demised Premises for the same period, discounted to the date of termination at the
rate of four percent (4%). The rent reserved upon any reletting of the Demised
Premises shall be deemed prima facie to be the fair rental value for the term of
such re-letting; or
(v) Landlord shall further have the option of locking out the Tenant from the
Demised Premises, changing all locks and securing the Demised Premises in such a
manner as may be solely determined by the Landlord
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ARTICLE SEVENTEEN
ADDITIONAL REMEDIES OF LESSOR
Section 17.01 Right of Landlord to Remedy. If Tenant shall default in the performance
of any covenants contained herein to be performed on Tenant’s part, Landlord may, after the
applicable notice to Tenant therefor as set forth in Section 19.01 hereof, or without notice if in
Landlord’s reasonable opinion an emergency exists, perform the same for the account and at the
expense of Tenant. If Landlord shall incur any expense, and reasonable attorneys’ fees for
instituting, prosecuting, or defending any action or proceeding instituted by reason of Tenant’s
default, then Tenant shall reimburse Landlord for the amount of such expense on demand, together
with interest as provided in Section 4.03 of this Lease, should Tenant, pursuant to this Lease,
become obligated to reimburse or otherwise pay Landlord one or more sums of money in addition to
the Annual Rent set forth herein, the amount thereof shall be deemed to be Additional Rental
hereunder and shall be due and payable by Tenant on demand by Landlord, or at the election of
Landlord, shall be due hereunder, in which event Landlord shall have the additional remedies for
default in the payment thereof provided by this Article Seventeen and by Articles Sixteen of this
Lease. The provisions of this Section 17.01 shall survive the termination of this Lease.
Section 17.02 Injunctive Relief. In the event of a default or threatened default by
Tenant of any of the agreements, terms, covenants or conditions hereof, Landlord shall have the
right of an injunction to restrain the same and the right to invoke any remedy allowed by law or in
equity, as if the specific remedies, indemnity or reimbursement were herein provided.
Section 17.03 Re-entry of Possession. In the event of any termination of this Lease,
whether by expiration, forfeiture, cancellation, surrender, operation of law, issuance of a final
court order or otherwise, Landlord may re-enter the Demised Premises, to remove therefrom Tenant,
its agents, employees, licensees and any sublessee, person, firm or corporation and all of their
respective property, using such force for that purpose as may be necessary without being liable for
prosecution or damages therefor, and thereupon Landlord shall be entitled to retain possession of
the Demised Premises Tenant’s fixtures and appurtenances thereto, free from any estate or interest
of Tenant therein. Tenant does hereby expressly waive service of any notice of intention to
re-enter or enter except as provided in this Lease.
Section 17.04 Waiver of Right of Redemption. Tenant, for itself and for any and all
persons claiming through or under Tenant, upon the termination of this Lease and/or of the term of
this Lease in accordance with the terms hereof, or in the event of entry of judgment for the
recovery of the possession of the Demised Premises in any action or proceeding, or if Landlord
shall enter the Demised Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or hereafter in force, and
does hereby waive, surrender and give up all rights or privileges which it may or might have, under
and by reason of any present or future law or decision, to redeem the Demised Premises or for a
continuation of this Lease for the remainder of the term of this Lease after having been
dispossessed or ejected therefrom by process of law Or otherwise. The waiver of the right of
redemption shall be of no, force and effect if, in any such event and during the period Within
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which the right of redemption may be exercised, either Landlord, or a receiver appointed by
the Court, shall be in possession of the Demised Premises and collecting the rent, income and
profit thereof and managing such property. Tenant further waives all right to trial by jury in any
summary or other judicial proceedings hereafter instituted by Landlord against Tenant in respect to
the Demised Premises.
Section 17.05 Receipt of Money. No receipt of moneys by Landlord from Tenant after
the termination hereof in any lawful manner shall reinstate, continue or extend the term of this
Lease, or affect any notice theretofore given to Tenant, or operate as a waiver of the right of
Landlord to enforce the payment of any Annual Rent and Additional Rental then due or thereafter
falling due, or operate as a waiver of the right of Landlord to recover possession of the Demised
Premises by proper suit, action, proceedings or other remedy; it being agreed that after the
service of notice of termination as herein provided and the expiration of the time therein
specified, and after the commencement of any suit, action, proceedings or other remedy, and after a
final order or judgment for possession of the Demised Premises, Landlord may demand, receive and
collect any moneys due, or thereafter falling due, without in any manner affecting such notice,
suit, action, proceedings, order or judgment; and any and all such moneys so collected shall be
deemed to be payments on account of the use and occupation of the Demised Premises, or, at the
election of Landlord, on account of Tenant’s liability hereunder.
Section 17.06 Cumulative Remedies. The rights and remedies given to Landlord in this
Lease are distinct, separate and cumulative, and no one of them, whether or not exercised by
Landlord, shall be deemed to be in exclusion of any of the others herein, or by law or in equity
provided. Nothing herein contained shall, however, limit or prejudice the right of Landlord to
prove and obtain as damages by reason of such termination an amount equal to the maximum allowed by
any other statute or rule of law in effect at the time when, and governing the proceedings in
which, such damages are to be proved, whether or not such amount be greater, equal to or less than
the amount of the difference referred to above.
Section 17.07 Holding Over. If Tenant shall remain in possession of all or any part
of the Demised Premises after the expiration of the term of this Lease or any renewal thereof,
without the consent of Landlord, then Tenant shall be deemed a tenant of the Demised Premises from
month-to-month at one and one-half (1-1/2) times the most recent rentals payable by Tenant
hereunder and subject to all of the terms and provisions hereof, except only .as to the term of
this Lease.
ARTICLE EIGHTEEN
NO WAIVER
Waiver by either party hereto of any breach by the other Party hereto of any covenant or
condition herein contained, or failure by Landlord to exercise any right or remedy in respect of
any such breach, shall not constitute a waiver or for the future of such covenant or condition
relinquishment any or of any subsequent breach of any such covenant or condition, or bar any right
or remedy of Landlord or Tenant in respect of any such subsequent breach. The receipt of any rent
or portion thereof (regardless of any endorsement on any check or any statement in any letter
accompanying any payment of rent) by Landlord, whether the same be that reserved and
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provided for herein as Annual Rent or Additional Rental under any of the covenants or provisions
herein contained, shall not operate as an accord and satisfaction or be a waiver of the right of
Landlord to enforce the payment of rents of any kind previously due or as a bar to the termination
of this Lease and to recovery of the Demised Premises because of default in the payment of said
rents previously due, by any appropriate remedy Landlord may select.
ARTICLE NINETEEN
NOTICES
Section 19.01 Method of Notice. Whenever it is provided herein that notice, demand,
request or other communication shall or may be given to, or served upon, either of the parties by
the other, and/or whenever either of the parties shall desire to give or serve upon the other any
notice, demand, request or other communication with respect hereto or with respect to the Demised
Premises, each such notice, demand, request or other communication shall be in writing and, any law
or statute to the contrary notwithstanding, shall not be effective for any purpose unless the same
shall be given or served as follows:
(a) If given or served by Landlord, by mailing the same to Tenant by registered
or certified mail, postage prepaid, return receipt requested, addressed to Tenant,
or by personal delivery to Tenant, at the address first hereinabove mentioned, or at
such other address as Tenant may from time to time designate by notice given to
Landlord personally, or by registered or certified mail, with a copy thereof by
registered or certified mail, postage prepaid, return receipt requested, addressed
to any lender who may be entitled to notice.
(b) If given or served by Tenant, by mailing the same to Landlord by registered
or certified mail, postage prepaid, return receipt requested, addressed to Landlord,
or by personal delivery to Landlord, at the address first hereinabove set forth, or
at such other address or addresses and to such other person or firm as Landlord may
from time to time designate by notice given to Tenant as herein provided.
Section 19.02 Time of Notice. Every such notice, demand, request or other
communication hereunder shall be deemed to have been given or served for all purposes hereunder
when delivered personally or, if mailed, forty-eight (48) hours after the time that the same shall
be deposited in the United States mails, postage prepaid, in the manner provided in Section 21.01
hereof.
ARTICLE TWENTY
QUIET ENJOYMENT
Section 20.01 Quiet Environment. Landlord covenants that Tenant, on paying the rent
reserved and on performing all the terms, covenants and conditions hereof on the part of Tenant to
be performed, and not being in default under any of the terms of this Lease, shall at all times
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during the term of this Lease peacefully and quietly have, hold and enjoy the Demised Premises
without any manner of hindrance from Landlord or any persons lawfully claiming under or through
Landlord, except as to any portion of the Demised Premises that may be taken by eminent domain.
ARTICLE TWENTY-ONE
COVENANT TO YIELD POSSESSION
Except as herein otherwise provided, Tenant shall on the last day of the term, or upon the
sooner termination of the term of this Lease, peaceably and quietly surrender and deliver up to
Landlord the Demised Premises broom-clean, including all building alterations, rebuildings,
replacements, changes, additions and improvements constructed, erected, added or placed by Tenant
on the Demised Premises, together with all fixtures forming a part of, located in, or used in
connection with the operation of the Demised Premises in good
ARTICLE TWENTY-TWO
ESTOPPEL CERTIFICATES
Section 22.01 Tenant’s Certificates. Tenant shall, without charge, at any time and
from time to time, within ten (10) days after request by Landlord, deliver a written instrument to
Landlord or any other person, firm or corporation specified by Landlord, duly executed and
acknowledged, certifying:
(a) that the Lease is unmodified and in full force and effect, or if there has
been any modification, that the same is in full force and effect as so modified, and
identifying any such modification;
(b) whether or not, to the knowledge of Tenant, there are then existing any
setoffs or defenses in favor of Tenant against the enforcement of any of the terms,
covenants and conditions of this Lease by Landlord, and if so, specifying the same,
and also whether or not Landlord has observed and performed all of the terms,
covenants and conditions on the part of Landlord to be observed and performed, and
if not, specifying same;
(c) the dates .to which Annual Rental and all other charges hereunder have been
paid; and
(d) any other information or item reasonably requested.
Section 22.02 Landlord’s Certificates. Landlord shall, without charge, and at any
time and from time to time within ten (I0) days after request by Tenant, but no more often than
once in any twelve (12) month period, deliver a written instrument to Tenant or any other person,
firm or corporation specified by Tenant, duly executed and acknowledged, certifying
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(a) as to the same facts as set forth in Section 22.01(a) and (c) hereof; and
(b) whether or not, to the knowledge of Landlord, there are then any existing
set-offs or defenses in favor of Landlord against the enforcement of any of the
terms, covenants and conditions of this Lease by Tenant, and if so, specifying the
same, and also whether or not Tenant ‘has observed and performed all of the terms,
covenants and conditions on the part of Tenant to be observed and performed, and if
not, specifying same.
ARTICLE TWENTY-THREE
NON-MERGER
There shall be no merger of this Lease, or of the leasehold estate created by this Lease, with
the fee estate in the Demised Premises by reason of the fact that this Lease, the leasehold estate
created by this Lease, or any interest in this Lease or in any such leasehold estate, may be held,
directly or indirectly, by or for the account of any person who shall own the fee estate in the
Demised Premises or any interest in such fee estate, and no such merger shall occur unless and
until all persons at the time having an interest in the fee estate in the Demised Premises and all
persons having an interest in this Lease, or in the leasehold estate created by this Lease, shall
join in a written instrument effecting such merger and shall duly record the same.
ARTICLE TWENTY-FOUR
SUBORDINATION AND ATTORNMENT
This Lease is and shall at all times, unless Landlord shall otherwise elect, be subject and
subordinate to all covenants, restrictions, easements and encumbrances now or hereafter affecting
the fee title of the Premises and to all ground and underlying leases and mortgages or financing or
refinancings in any amounts, and to any and all advances thereunder, which may now or hereafter be
placed against or affect any or all of the land or any or all of the buildings and improvements now
or at any time hereafter constituting a part of or adjoining the Premises, and to all renewals,
modifications, consolidations, participations, replacements and extensions thereof. The term
“mortgages” as used herein shall be deemed to include trust indentures and deeds of trust. The
aforesaid provisions shall be self-operative and no further instrument of subordination shall be
necessary unless required by any such ground or underlying lessor or mortgagee; provided however
that Tenant’s subordination to any future mortgages or ground leases shall be conditioned upon such
future mortgagee’s or ground lessor’s non-disturbance of Tenant so long as Tenant is not in default
hereunder. Should Landlord or any ground or underlying lessor or mortgagee desire confirmation
of such subordination, Tenant, within ten (10) days following Landlord’s written request therefor,
agrees to execute and deliver, without charge, any and all documents (in form acceptable to such
ground or underlying lessor or mortgagee) subordinating this Lease and Tenant’s rights hereunder.
If Tenant fails to execute
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and deliver such documents within ten (I0) days following Landlord’s written request therefor,
Landlord is hereby authorized to execute and deliver same as attorney-in-fact for Tenant.
ARTICLE TWENTY-FIVE
LAW OF STATE
This Agreement shall be governed by and construed in accordance with the laws of the State of
Ohio.
ARTICLE TWENTY-SIX
CAPTIONS
The captions and headings of Articles and Sections in this Lease are inserted only as a matter
of convenience and for reference, and the same in no way define, limit or describe the scope of
this Lease or the intent of any provision thereof.
ARTICLE TWENTY-SEVEN
COUNTERPARTS AND RECORDING
Section 27.01 Counterparts. The parties hereto have simultaneously executed,
acknowledged and delivered this Lease in multiple copies. Each such executed and acknowledged copy
is in all respects the same and shall be deemed complete in itself and any executed and
acknowledged copy may be introduced in evidence or used for any purpose without the introduction of
the original Lease.
Section 27.02 Recording. The parties hereto agree that a short form memorandum of
lease may be recorded and the cost of the recording shall be paid by Tenant.
ARTICLE TWENTY-EIGHT
PARTIAL INVALIDITY
If any term or provision of this Lease, or the application thereof to any person or
circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
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ARTICLE TWENTY-NINE
SUCCESSORS AND ASSIGNS
All of the terms, covenants and conditions herein contained shall inure to the benefit of and
be binding upon Landlord, its successors and assigns, and any person who at any time shall be the
owner of the Demised Premises, and upon Tenant, its successors and assigns and any person who at
any time shall be the owner of the leasehold estate hereby created.
ARTICLE THIRTY
NO PARTNERSHIP
The relationship established pursuant to the terms of this Lease shall be only that of a landlord
and tenant and nothing contained in this Lease will create a partnership, joint venture or
co-ownership between Landlord and Tenant with respect to the Demised Premises and the use thereof.
ARTICLE THIRTY-ONE
Security Deposit. As further security for the prompt and faithful performance of
Tenant of all its obligations under this Lease, Tenant does hereby deliver to Landlord a security
deposit in the amount of $ -0- (zero) to be held by Landlord in a non-interest bearing account as
security for the faithful performance by Tenant of all obligations to be performed by Tenant under
this Lease.
ARTICLE THIRTY-TWO
MEMORANDUM OF LEASE
Landlord and Tenant agree that a memorandum of this Lease may be recorded in the county where
the Demised Premises is located and both Landlord and Tenant agree to execute any such Memorandum
of Lease for recording purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the day and year
first above written, but effective as of the Commencement Date.
| LANDLORD: OSAIR, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President | ||||
| TENANT: ▇▇▇▇▇▇ NATURAL GAS COMPANY |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President | ||||
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STATE OF OHIO
|
) | |||
| ) | ||||
COUNTY OF LAKE
|
) |
BEFORE ME, a Notary Public in and for said county, personally appeared the above named OSAIR,
INC., by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President, who acknowledged that he did sign the foregoing
instrument and that the same is the free act and deed of said Company and his free act and deed
personally.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at ,
Ohio, this ___day of , 2008.
Notary Public
STATE OF OHIO
|
) ) |
|||
COUNTY OF LAKE
|
) |
BEFORE ME, a Notary Public in and for said county, personally appeared the above named ▇▇▇▇▇▇
NATURAL GAS COMPANY, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, its President, who acknowledged that he did sign the
foregoing instrument and that the same is the free act and deed of said Company and his free act
and deed personally.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at ,
Ohio, this ___day of , 2008.
Notary Public
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