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EXHIBIT 10.3
LEASE FOR UNIVERSITY PARK OFFICE BUILDING
XXXXXXXX ROAD AND CICERO AVENUE
UNIVERSITY PARK, ILLINOIS
TENANT: APPLIED SYSTEMS, INC.
PREMISES: 160,723 RENTABLE SQUARE FEET (ENTIRE BUILDING)
DATE: SEPTEMBER 1, 1998
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TABLE OF CONTENTS
1. Term 3
2. Possession 3
3. Base Rent 4
4. Use and Occupancy 4
5. Additional Rent 4
6. Condition of Premises 6
7. Landlord's Obligation to Provide Services 6
8. Interruption of Services 7
9. Maintenance and Repairs 8
10. Additions and Alterations 8
11. Completion of Premises and Delivery of Possession 9
12. Ownership of Improvements 9
13. Covenants against Liens 9
14. Insurance 10
15. Fire or Casualty 11
16. Waiver of Claims - Indemnifications 12
17. Nonwaiver 13
18. Eminent Domain 13
19. Assignment and Subletting 15
20. Right of First Refusal 16
21. Surrender of Possession 16
22. Holding Over 17
23. Estoppel Certificate 17
24. Landlord's Right to Subordinate Lease 17
25. Certain Rights Reserved by Landlord 18
26. Landlord's Remedies 19
27. Expense of Enforcement 20
28. Covenant of Quiet Enjoyment 21
29. Tenant Parking Spaces 21
30. Landlord's Representations and Warranties 21
31. Miscellaneous 22
32. Notices 24
Exhibit A - Site Plan
Exhibit B - Estoppel Certificate
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LEASE
XXXXXXXX ROAD AND CICERO AVENUE
UNIVERSITY PARK, ILLINOIS
AGREEMENT OF LEASE made as of this 1st day of September, 1998, (hereinafter
referred to as the "Lease") between APPLIED PROPERTIES, L.L.C., (hereinafter
referred to as "Landlord"), and APPLIED SYSTEMS, INC., an Illinois corporation
(hereinafter referred to as "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby accepts, the premises
(hereinafter referred to as the "Premises") commonly described as 160,723
rentable square feet, which is the entire building constructed, hereinafter
described, to be known as the 000 Xxxxxxx Xxxxxxx and 0000 Xxxxxxxxxx Xxxxxxx
office buildings (hereinafter referred to as the "Building") on land at Xxxxxxxx
Road and Cicero Avenue, University Park, Illinois (hereinafter referred to,
together with all present and future easements, additions, improvements and
other rights appurtenant thereto, as the "Land"), subject to the covenants,
terms, provisions and conditions of this Lease. The Building, the Land and the
Premises are sometimes collectively referred to as the "Property".
In consideration thereof, Landlord and Tenant covenant and agree as follows:
1. TERM:
The initial term of this Lease (hereinafter referred to as "Term") shall be for
twenty (20) Years, commencing on the 1st day of September, 1998 (hereinafter
referred to as the "Commencement Date"), and ending on the 31st day of August,
2018 (hereinafter referred to as the "Termination Date"), unless sooner
terminated as provided herein.
2. POSSESSION:
A. If possession of the Premises as required in the Lease is not
delivered to Tenant on or before September 1, 1998, or such extended date
thereafter that possession delivery is delayed by acts of God, material
shortages, strikes or other matters beyond Landlord's reasonable controls then
Tenant shall have the right thereafter to terminate the Lease upon thirty (30)
days advance written notice given to the Landlord by Tenant.
B. If Tenant takes possession of the Premises before the Commencement
Date, the obligation to pay rent shall commence on a prorated basis and the
terms and
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conditions of the Lease shall apply on the date of such possession. It is
agreed, however, that the Tenant shall be allowed access to the Premises
(without charge and without affecting the Commencement Date of the Lease) for
the limited purpose of installing furniture and other Tenant improvements. In no
event shall Tenant take possession of the Premises, or any portion thereof,
unless it has satisfied the insurance coverage requirements in Paragraph 14
below.
3. BASE RENT:
A. The Tenant shall pay to the Landlord during the first year of the
initial term of this lease the annual base rent of two million one hundred
thousand Dollars ($2,100,000.00) in monthly installments of one hundred seventy
five thousand Dollars ($175,000.00). During the second year of the initial term
of this lease, and for each subsequent year thereafter, the Tenant shall pay to
Landlord the prior year's annual base rent, increased by two percent (2%), in
equal monthly installments.
B. All rent payments shall be made at such location as may be
designated from time to time by Landlord, which until further notice shall be
the address set forth below.
4. USE AND OCCUPANCY:
Tenant may use and occupy the Premises during the Term for general office use
and for any other use not inconsistent with the character of the Building.
Tenant shall not do, permit, or suffer any act or thing to be done which is
injurious to the Property or the Premises, which is a nuisance, contrary to law
or in violation of the Certificate of Occupancy issued for the Building.
5. ADDITIONAL RENT:
A. In addition to paying the Base Rent during the Term specified in
Paragraph 3 hereof, Tenant shall pay as "Additional Rent" the amounts determined
as hereinafter set forth. The Base Rent and the Additional Rent are sometimes
herein collectively referred to as the "Rent". All amounts due under this
document as Additional Rent shall be payable for the same periods and in the
same manner, time and place as the Base Rent. Without limitation on other
obligations of Tenant which shall survive the expiration of the Term, the
obligations of Tenant to pay the Additional Rent provided for in this document
for periods prior to the termination of this Lease shall survive expiration of
the Term. For any partial Calendar Year, Tenant shall be obligated to pay only a
pro rata share of the
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Additional Rent, based on the number of days of the Term falling within such
Calendar Year.
B. Definitions: As used in this Paragraph, the terms:
(i) "Calendar Year" shall mean each calendar year in which any part of
the term falls, through and including the year in which the Term
expires;
(ii) "Tenant's Rentable Area" shall mean 160,723 square feet; as
defined by Landlord's architect;
(iii) "Taxes" shall mean all real estate taxes and assessments, special
or otherwise, levied or assessed upon or with respect to the Land
and/or-Building and ad valorem taxes for any personal property used in
connection therewith. Should the State of Illinois, or any County or
other political subdivision thereof, or any other governmental
authority having jurisdiction over the Land and/or the Building, (a)
impose a tax, assessment, charge or fee, or increase a then existing
tax, assessment charge or fee, which Landlord shall be required to pay
either by way of substitution for such real estate taxes and ad valorem
personal property taxes, or in addition to such real estate taxes and
ad valorem personal property taxes, or (b) impose an income or
franchise tax or a tax on rent in substitution for or as a supplement
of a tax levied against the Land and/or the Building and/or the
personal property used in connection with the Land or Building, all
such taxes, assessments, fees or charges (hereinafter defined as "in
lieu taxes") shall be deemed to constitute Taxes hereunder. Taxes shall
also include all reasonable fees and costs incurred by Landlord in
seeking to obtain a reduction of, or a limit on the increase in, any
Taxes, regardless of whether any reduction or limitation is obtained.
Except as herein above provided with regard to in lieu taxes, Taxes
shall not include any inheritance, estate, succession, transfer, gift,
franchise, net income or capital stock tax; and
(iv) "Operating Expenses" shall mean all expenses, costs and
disbursements (other than Taxes) of every kind and nature for the
applicable Calendar Year on an accrual basis paid or incurred by
Landlord or Landlord's beneficiaries in connection with the ownership,
management, operation and repair of the Land and Building, except the
following:
(1) Interest or amortization payments of any mortgage or any other
debt for borrowed money;
(2) Any expense for which Landlord receives or is entitled to
receive reimbursement from a tenant or another third party
including, but not limited to a warranty or an insurance policy;
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(3) Penalties or interest for late payment on any of the costs
described in (a) or (b) above; and
(4) Any depreciation or amortization on the Property.
6. CONDITION OF PREMISES:
The Tenant's taking possession of any portion of the Building and Premises shall
be conclusive evidence that such portion of the Premises was in good order and
satisfactory condition when the Tenant took possession, except as to latent
defects, excluding items of damage caused by Tenant, or its agents, independent
contractors or suppliers. No promise of the Landlord to alter, remodel or
improve the Building and no representation by Landlord, or its agents,
respecting the condition of the Premises or the Building have been made to
Tenant or relied upon by Tenant other than as may be contained in the Lease or
in any written amendment hereto assigned by Landlord and Tenant.
7. LANDLORD'S OBLIGATION TO PROVIDE SERVICES:
A. List of Services.
Landlord shall provide the following services at Tenant's expense on all days
during the Term, unless otherwise stated:
(i) Heating and air conditioning as determined by Tenant when necessary
for normal comfort in the Premises;
(ii) Adequate wiring and facilities for standard building lighting fixtures
provided by Landlord and for Tenant's incidental uses. Tenant shall bear
the cost of replacement bulbs and ballasts for lighting fixtures within the
Premises. In respect to such incidental uses, adequate electrical wiring
and facilities will be furnished in the Premises by Landlord, provided that
(a) the connected electrical load of the incidental use equipment and
lights does not exceed an average of one (1) watt per square foot of the
Premises, (b) the electricity so furnished for incidental uses will be at a
nominal 120 volts and no electrical circuit for the use will have a current
capacity exceeding. 15 amperes; and (c) such electricity be used only for
equipment and accessories normal to office usage. If Tenant's requirements
for electricity for incidental uses are in excess of those set forth in the
preceding sentence, the Landlord reserves the right to require Tenant to
install the conduit, wiring and other equipment necessary to supply
electricity for such excess incidents use requirements at the Tenant's
expense by arrangement with Commonwealth Edison or another approved local
utility;
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(iii) Village water from the regular Building outlets for drinking,
lavatory and toilet purposes;
(iv) Janitor services Monday through Friday in and about the Premises; and
(v) Adequate operatorless passenger elevator service at all times.
B. Billing for Electricity.
(i) Separate Metering. Tenant shall pay for the use of all electrical
service to the Building and Premises. Provided that Landlord can make
arrangements satisfactory to Landlord and Tenant with the utility company
supplying electricity to the Premises, Tenant shall be billed directly by
such utility and Tenant agrees to pay each xxxx promptly in accordance with
its terms. In the event that for any reason Tenant cannot be billed
directly, Landlord shall forward each xxxx with respect to the Premises and
Tenant shall pay it promptly in accordance with its terms. It is understood
that Tenant will be separately metered for electrical usage of plugs and
lights within the Premises.
(ii) Lack of Separate Metering. If Tenant cannot be separately metered for
any reason, Tenant shall pay Landlord as Additional Rent, in monthly
installments at the time prescribed for monthly installments of Rent, an
annual amount as estimated by Landlord from time to time which Tenant would
pay for such electricity if the same were separately metered to the
Premises by the local electricity company and billed to Tenant at such
utility company's current rates.
8. INTERRUPTION OF SERVICES:
Tenant agrees that Landlord shall not be liable in damages, whether by abatement
of Rent or otherwise for failure to furnish or delay in furnishing any service,
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by repairs by Landlord
or caused to be undertaken by Landlord, by any strike, lockout or other labor
trouble, by inability to secure electricity, gas, water, or other fuel at the
Building after reasonable effort so to do, by any accident or casualty
whatsoever not caused by Landlord, by the act or default of Tenant or other
parties, or by any other cause beyond Landlord's reasonable control. Landlord
shall exercise due diligence in its efforts to cure such failure or diminution.
9. MAINTENANCE AND REPAIRS:
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A. Tenant shall keep, repair and maintain and not misuse the Premises
so that they may be returned to the Landlord in as good order and condition as
when delivered to Tenant, excepting ordinary wear and tear, structural repairs
and replacement, damage by fire, vandalism, the elements and any other insurable
casualty, and damage due to or occasioned by the negligence or acts of Landlord.
Notwithstanding anything contained in the Lease to the contrary, Tenant will not
be required to pay for any repairs to the Premises or the Building to the extent
Landlord is reimbursed therefor by insurance proceeds. Except as otherwise
provided in the Lease, during the term hereof, Tenant shall keep the Premises
and every part thereof in good repair and condition at its sole cost and
expense. At the expiration of the term (or the earlier termination of the
Lease), Tenant shall surrender the Premises in substantially the same condition
and repair as existed at the time Tenant took Possession, reasonable wear and
tear and damage by fire or other insurable casualty excepted.
B. In addition to any other obligations contained herein, Tenant shall,
at Tenant's expense, maintain, repair and replace as necessary the plumbing,
heating, ventilating and air conditioning equipment, lighting and other
electrical and mechanical equipment, sprinkler system and glass (unless broken
or damaged due to the negligence or acts of landlord or covered by insurance)
within the Property. Tenant shall also maintain and repair, at Tenant's expense,
driveways, sidewalks, parking areas, lighting (exterior and interior)
landscaping and fencing located on the Land and serving the Building. Tenant
shall, at Tenant's expense, repair and replace as necessary the exterior of the
Building, including exterior walls, drains, xxxxx, troughs, downspouts, gutters,
shall provide lateral support and make all structural repairs to the Building to
include replacement of the roof, replacement of sewer lines, utility lines and
resurfacing of parking areas.
10. ADDITIONS AND ALTERATIONS:
Tenant shall not, without the prior written consent of Landlord, make any
alterations, improvements or additions to the Premises. Landlord's refusal to
give said consent shall be conclusive, but shall not be unreasonable. If
Landlord consents to said alterations, improvements or additions, it may impose
such reasonable conditions with respect thereto as Landlord deems appropriate,
including without limitation, requiring Tenant to furnish Landlord with evidence
of payment of all costs to be incurred in connection with such work, insurance
against liabilities which may arise out of such work, and plans and
specifications plus permits necessary for such work. The work necessary to make
any alterations, improvements or additions to the Premises shall be done at
Tenant's expense. Tenant shall promptly pay to the Tenant's contractors, when
due, the cost of all such work and of all decorating required by reason thereof.
Upon completion of such work, Tenant shall deliver to Landlord, if payment is
made directly to contractors, evidence of payment, contractors' affidavits and
full and final waivers of all liens for labor, services or materials. Tenant
shall defend and hold Landlord and the Land and Building harmless from all
costs, damages, liens and expenses related to such work. All work done by
Tenant, or its contractors, shall be done in a first-class workmanlike manner,
using only good grades of
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materials and shall comply with all insurance requirements and all applicable
laws and ordinances and rules and regulations of governmental departments or
agencies.
11. COMPLETION OF PREMISES AND DELIVERY OF POSSESSION:
Possession of the Premises shall be deemed delivered to Tenant on the
date when Landlord has obtained a final Certificate of Occupancy (or equivalent
form of governmental approval) from the appropriate municipality or governmental
agency which will permit the Premises to be occupied for the use intended under
the Lease.
12. OWNERSHIP OF IMPROVEMENTS:
All trade fixtures, movable partitions, and similar installations, alterations,
additions, and improvements installed in the Premises by either Tenant or
Landlord on Tenant's behalf, the cost of which is or has been borne by Tenant,
shall be and remain the property of Tenant and may be removed by Tenant, at its
own option and expense. Upon removal of such trade fixtures and similar
installations, together with Tenant's office furniture and equipment, Tenant
shall immediately, and its own expense, repair and restore the Premises to the
condition existing prior to installation (subject to ordinary wear and tear and
damage by fire or other insurable casualty) and repair any damage to the
Premises or the Building due to such removal. All property that was permitted to
be removed by Tenant at the end of the Term, but which remains in the Premises
for sixty (60) days after Tenant vacates the Premises shall be deemed abandoned
and may, at the election of Landlord, either be retained as Landlord's property
or may be removed from the Premises by Landlord, provided, however, if Tenant is
delayed or hindered in the removal of the Property permitted under this
Paragraph for reasons beyond Tenant's control, then Tenant's removal of its
property shall be extended for the period of the delay.
13. COVENANT AGAINST LIENS:
A. Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to attach to or be placed upon Landlord's title or interest
in the Land, Building or Premises, and any and all liens and encumbrances
created by Tenant shall attach to Tenant's interest only. Tenant covenants and
agrees not to suffer or permit any lien of mechanics or materialmen or others to
be placed against the Land, Building or the Premises with respect to work or
services claimed to have been performed for or materials claimed to have been
furnished to Tenant or the Premises, and in case of any such lien attaching,
Tenant covenants and agrees to cause it to be immediately released and removed
of record or bonded in a manner satisfactory to Landlord.
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B. In the event that such lien is not immediately released and removed,
Landlord, at its sole option, may take all action necessary to release and
remove such lien, but must investigate the validity thereof, and Tenant shall
promptly upon notice reimburse Landlord for all sums, costs and expenses
(including reasonable attorneys' fees) incurred by Landlord in connection with
such lien.
14. INSURANCE:
A. Waiver of Subrogation. Landlord and Tenant each hereby waive any and
every claim for recovery from the other for any and all loss of or damage to the
Building or Premises or to the contents thereof, which loss or damage is covered
by valid and collectible fire and extended coverage insurance policies, to the
extent that such loss or damage is recoverable under said insurance policies.
Inasmuch as this mutual waiver will preclude the assignment of any such claim by
subrogation (or otherwise) to an insurance company (or any other person),
Landlord and Tenant each agree to give to each insurance company which has
issued, or in the future may issue, to it policies of fire and extended coverage
insurance, written notice of the terms of this mutual waiver, and to have said
insurance policies properly endorsed, if necessary, to prevent the invalidation
of said insurance coverage by reason of said waiver.
B. Coverage. Tenant shall pay for and maintain insurance during the
entire Term, insuring Tenant and Landlord as their interests may appear, with
terms, coverage and in companies satisfactory to Landlord, and with such
increases in limits as from time to time reasonably request, but initially
maintain the following coverage in the following amounts:
(i) In case of personal injury to or the death of any person or
persons, not less than $1,000,000.00 on death to a person and
$1,000,000.00 for each incident involving personal injury or death to
persons, and, in case of property damage, not less than $1,000,000.00
for any one occurrence; and
(ii) In case of fire, sprinkler leakage, malicious mischief, vandalism
and other extended coverage perils, for the full insurable replacement
value of all additions, improvements and alterations to the Premises
which are beyond the building standard Tenant improvements provided by
Landlord and of all office furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant's property on the Premises.
C. Tenant shall obtain and maintain during the Term of the Lease, All
Risk Property Insurance for the Building upon a full replacement cost basis,
with no co-insurance requirement; Comprehensive General Liability Insurance,
including Blanket Contractual Liability-coverage, with limits of not less than
TWO MILLION AND 00/100 DOLLARS ($2,000,000.00) Combined Single Limit for
Personal Injury and Property
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Damage; Comprehensive Automobile Liability Insurance covering all owned,
non-owned and hired vehicles with limits of not less than ONE MILLION AND 00/100
DOLLARS ($1,000,000.00) Combined Single Limit for Personal Injury and Property
Damage; and Statutory Worker's Compensation and Employer's Liability coverage
with limits of not less than TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($250,000.00).
D. Landlord and Tenant shall, prior to the commencement of the Term,
furnish the other party with certificates evidencing such coverage, which
certificates shall state that such insurance may not be changed or canceled
without at least ten (10) days prior written notice to Landlord or Tenant.
E. Avoid Action Increasing Rates. Tenant shall comply with all
applicable laws and ordinances, all Orders and decrees of court and all
requirements of other governmental authorities, and shall not, directly or
indirectly, make any use of the Premises which may thereby be prohibited or be
dangerous to any person or property or which may jeopardize any insurance
coverage or may increase the cost of insurance or require additional insurance
coverage. If by reason of the failure of Tenant to comply with this Paragraph,
any insurance coverage is jeopardized or insurance premiums are increased,
Landlord shall require Tenant to make immediate payment of the increased
insurance premium.
15. FIRE OR CASUALTY:
A. Paragraph 9 hereof notwithstanding, if the Premises or the Building
(including machinery or equipment used in its operation) shall be damaged by
fire or other casualty, and if such damage does not render all or a substantial
portion of the Premises or Building untenantable, and such damage is a casualty
covered under Tenant's insurance pursuant to Paragraph 14 above, then Tenant
shall repair and restore the same with reasonable promptness, subject to
reasonable delays for insurance adjustments and delays caused by matters beyond
Tenant's reasonable control. If any such damage renders all or a substantial
portion of the Premises or Building untenantable, either Tenant or Landlord
shall have the right to terminate this Lease as of the date of such damage (with
appropriate prorations of Rent being made for Tenant's possession subsequent to
the date of such damage of those tenantable portions of the Premises) upon
giving written notice to the other at any time within sixty (60) days after the
date of such damage. Unless this Lease is terminated as provided in the two (2)
proceeding sentences and such damage is a casualty covered under Tenant's
insurance pursuant to Paragraph 14C above, Tenant shall proceed with reasonable
promptness to repair and restore the Premises subject to reasonable delays for
insurance adjustments and delays caused by matters beyond Tenant's reasonable
control.
B. In the event the Building is damaged by fire or other casualty
resulting from Tenant's fault or neglect and the Building is to be repaired and
restored because such damage does not render all or a substantial portion of the
Premises or Building
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untenantable, Tenant shall not be released from any of its obligations to pay
Rent hereunder.
C. Notwithstanding anything to the contrary herein set forth, Landlord
shall have no duty pursuant to this Paragraph to repair or restore any portion
of the alterations, additions, improvements and decorations made by Tenant to
the Premises, except to the extent that such alterations, additions,
improvements and decorations were provided by Landlord, at Landlord's cost, at
the beginning of the Term. If Tenant wants any other or additional repairs or
restorations, and if Landlord consents thereto, the same shall be done at
Tenant's expense.
16. WAIVER OF CLAIMS - INDEMNIFICATIONS:
To the extent not prohibited by law, Landlord, and its officers, agents,
servants and employees, shall not be liable for any damage either to person or
Property or resulting from the loss of use thereof sustained by Tenant or by
other xxxxxxx due to the Building or any part thereof or any appurtenances
thereof becoming out of repair, or due to the happening of any accident or event
in or about the Building, or due to any act or neglect of any tenant or occupant
of the Building or of any other person, except to the extent due to the
negligence of the Landlord, its agents, officers, servants or employees. This
provision shall apply particularly (but not exclusively) to damage caused by
gas, electricity, snow, frost, rain, steam, sewage, sewer gas or odors, fire,
water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing
fixtures, and windows, and shall apply without distinction as to the person
whose act or neglect was responsible for the damage, whether the damage was due
to any of the causes specifically enumerated above or to some other cause of an
entirely different kind unless due to the negligence of the Landlord. Tenant
further agrees that all personal property upon the Premises, or upon loading
docks, receiving and holding areas, or freight elevators of the Building, shall
be at the risk of Tenant only, and that Landlord sha11 not be liable for any
loss or damage thereto or theft thereof except to the extent of Landlord's
negligence. Without limitation of any other provisions hereof, Tenant and
Landlord agree to defend, protect, indemnify and save harmless each other from
and against all liability to third parties arising out of the acts of Tenant or
Landlord, and its servants, agents, employees, contractors, suppliers, workmen
and invitees except to the extent that such liability arises out of the
negligence of such indemnified party.
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17. NONWAIVER:
No waiver or any provision of this Lease shall be implied by any failure
of either party to enforce any remedy on account of the violation of such
provision, even if such violation be continued or repeated subsequently, and no
express waiver shall affect any provision other than the one specified in such
waiver and that one only for the time and in the manner specifically stated. No
receipt of monies by either party from the other after the termination of this
Lease shall in any way alter the length of the Term or of the Tenant's right to
possession hereunder or after the giving of any notice shall reinstate, continue
or extend the Term or affect any notice given Tenant prior to the receipt of
such monies, it being agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any Rent due, and the payment of said Rent
shall not waive or affect said notice, suit or judgment.
18. EMINENT DOMAIN:
A. Total Taking. If the whole of the Premises is taken by any public
authority under the power of eminent domain, then the Lease shall terminate on
the date possession of the Premises is delivered to such public authority. Base
Rent and Additional Rent shall be paid to that date and prorated accordingly.
B. Responsibility to Repair. If part of the Premises is taken by any public
authority under the power of eminent domain, then, on the date possession is
required by such public authority, the Lease shall terminate as to the portion
taken and the Rent due hereunder shall be reduced in proportion to the amount
taken. Except as otherwise provided in this Paragraph, Landlord shall
immediately commence and diligently pursue the restoration of the remaining
Premises to the extent necessary to permit the continued use of the Premises,
and shall use Landlord's Condemnation Award as described in this Paragraph
therefor. During the period of making such repairs, Rent shall xxxxx as to that
portion of the remaining Premises which is untenantable, provided, however, that
if Tenant uses any part of such untenantable portion for storage during the
period of repair, Landlord may assess a reasonable charge therefor against
Tenant.
C. Landlord shall, if reasonably possible, restore the Premises to
substantially the same condition as before the taking. In no event shall
Landlord be required to repair or replace: (i) Tenant's personal property such
as wall coverings, carpeting, and window treatments (except to the extent: (a)
such personal property was originally provided by Landlord at Landlord's cost
under the terms of the Lease; or (b) Landlord's Condemnation Award contains an
amount allocated for reimbursement for such personal property); or (ii) Tenant's
furnishings, operating equipment, trade fixtures, or merchandise.
D. Taking of Other Portions of Property. If part of the Land other than
the Premises is taken by any public authority under the power of eminent domain,
Landlord
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shall immediately commence and diligently pursue the restoration of the
remaining Land to the extent necessary to permit the continued use of the
Premises, Land and Building and to the extent Landlord has received an Award
sufficient to cover the cost of restoration required.
E. Landlord's Option to Terminate. Notwithstanding anything to the
contrary contained in the Lease, if part of the Land is taken by any public
authority under the power of eminent domain, Landlord shall have the right to
terminate the Lease upon written notice to Tenant if: (i) more than fifty
percent (50%) of the Building is taken; or (ii) the taking (i.e., the date
possession is required by the public authority) occurs within the last six (6)
months of the initial Term of the Lease or any extension of such Term; provided,
however, that the Lease may not be terminated under this Paragraph if Tenant's
option, if any, to further extend the Term of the Lease is exercised within
thirty (30) days after Tenant receives such written notice from Landlord. Such
written notice shall be given to Tenant not later than sixty (60) days after
commencement of condemnation proceedings against the Land and/or Building or, if
such proceedings are not commenced, not later than fourteen (14) days before
Landlord delivers possession of the part so taken by such public authority.
F. Termination of the Lease pursuant to this Paragraph shall be effective
as of the later of the date possession is required by the public authority or
sixty (60) days after Tenant receives the termination notice described above.
G. Tenant's Option to Terminate. Notwithstanding anything to the contrary
contained in the Lease, if more than a minor part of the Land is taken by any
public authority under the power of eminent domain, Tenant shall have the right
to terminate the Lease, but only upon the occurrence of any of the following and
upon written notice given to Landlord not later than sixty (60) days after
commencement of condemnation proceedings against the Land and/or Building (or,
if such proceedings are not commenced, not later than thirty (30) days after
possession of the part taken is required by the public authority):
(i) If the taking of part of the Premises significantly and adversely
affects Tenant's use of the Premises; or
(ii) If the taking of part of the Building or Land significantly and
adversely affects Tenant's use of the Premises, whether or not
part of the Premises are taken; or
(iii) If restoration of the remainder of the Premises and/or the
Building or Land cannot in Tenant's opinion be completed within
one hundred eighty (180) days after the date
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possession is required by the public authority and either item
numbers (i) or (ii) above apply;
(iv) If the taking (i.e., the date possession is required by the
Public authority occurs within the last twelve (12) months of
the initial Term of the Lease or any extension of such Term,
termination of the Lease pursuant to this Paragraph shall be
effective as of the later of the date possession is required by
the public authority or sixty (60) days after Landlord receives
the termination notice described above.
H. Rights to Condemnation Award. Except as otherwise provided in this
Paragraph, all damages awarded for such taking shall belong to and be the
property of the Landlord. The amount received by Landlord which is allocable to
the Premises shall be "Landlord's Condemnation Award". However, Tenant shall be
entitled to any award for diminution in value to the leasehold (so long as this
Lease is not terminated), removal and relocation expenses, Tenant's loss of
business, and fixtures paid for by Tenant. Landlord and Tenant shall each seek
their own award and pay their own expenses in connection therewith.
19. ASSIGNMENT AND SUBLETTING:
A. Tenant may not without the prior written consent of Landlord (which
consent shall not be unreasonably withheld, conditioned or delayed), (i) assign,
convey, or mortgage this Lease or any interest hereunder; (ii) suffer to occur
or permit to exist any assignment of this Lease, or any lien upon Tenant's
interest, involuntarily or by operation of law; (iii) sublet the Premises or any
part hereof, and (iv) permit the use of the Premises by any parties other than
Tenant and its employees. Landlord's consent to any assignment, subletting or
transfer or Landlord's election to accept any assignee, subtenant or transferee
as the tenant hereunder and to collect rent from such assignee, subtenant or
transferee shall not release the original Tenant from any covenant or obligation
under this Lease. Landlord's consent, to any assignment, subletting or transfer
shall not constitute a waiver of Landlord's right to withhold its consent to any
future assignment, subletting or transfer.
B. Except as provided below in this Paragraph, Landlord shall have the
right to terminate this Lease as to that portion of the Premises which Tenant
seeks to assign or sublet, whether by requesting Landlord's consent thereof or
otherwise. Landlord may exercise such right to terminate by giving written
consent to such assignment or sublease. In the event that Landlord exercises
such right to terminate, Landlord shall be entitled to recover possession of
such part of the Premises on the latter of: (i) the proposed date for possession
by such assignee or subtenant; or (ii) ninety (90) days after the date of
Landlord's notice of termination to Tenant. Landlord hereby acknowledges and
agrees that the foregoing right to terminate is not applicable in the event of
an assignment permitted without Landlord's consent as set forth in subparagraph
A above.
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C. In the event that Landlord fails to exercise its termination right as
set forth in the preceding paragraph, and in the event that Landlord consents to
any assignment or sublease of any portion of the premises, as a condition of
Landlord's consent, if Landlord so elects to consent, Tenant shall pay to
Landlord one-half the profit derived by Tenant from such assignment or sublease.
Tenant shall furnish Landlord with a sworn statement, certified by an
independent certified public accountant, setting forth in detail the computation
of profit (which computation shall be based upon generally accepted accounting
principles), and Landlord, or its representatives, shall have access to the
books, records, and papers of Tenant in relation thereto, and to make copies
thereof. Any rent in excess of that paid by Tenant hereunder realized by reason
of such assignment, shall be deemed an item of such profit. If a part of the
consideration for such assignment shall be payable other than in cash, the
payment to Landlord shall be payable in accordance with the foregoing percentage
of the cash and other noncash considerations in such form as is satisfactory to
Landlord. Such percentage of Tenant's profit shall be paid to Landlord promptly
by Tenant upon Tenant's receipt from time to time or periodic payments from such
assignee or subtenant or at such other time as Tenant shall realize its profits
from such assignment or sublease.
20. RIGHT OF FIRST REFUSAL:
In consideration of the execution of this lease, Landlord grants to Tenant the
right of first refusal to purchase the Building. If during the term of this
lease and any renewals thereof, Landlord should receive an offer to purchase the
said Building, in writing, which Landlord desires to accept, Landlord shall
first deliver copy of such offer to Tenant, who shall have thirty (30) days
thereafter within which to notify Landlord, in writing, that it elects to
purchase the said Building on the same terms and conditions as specified in the
offer. In the event Tenant does not elect to purchase said Building with the
time provided, Landlord shall be free to accept the offer and consummate the
sale in accordance with the specific terms and conditions. In the event the
Landlord does not accept the offer and consummate the sale, Landlord shall be
required to submit and different offers and all future offers to Tenant pursuant
to its right of first refusal.
21. SURRENDER OF POSSESSION:
Upon the expiration of the Term or upon the termination of Tenant's right of
possession, whether by lapse of time or at the option of Landlord as herein
provided, Tenant shall forthwith surrender the Premises to Landlord in good
order, repair and condition, ordinary wear and loss or damage by fire or
insurable casualty excepted. At the termination of the Term or of Tenant's right
of possession, Tenant agrees to remove the following items of Tenant's property:
office furniture, trade fixtures, office equipment and all other items of
Tenant's property on Premises. At Tenant's option, Tenant shall repair any loss
or damage by fire or insurable casualty damages to Landlord's satisfaction, or
Tenant shall pay to Landlord upon demand, the cost of repairing any damage to
the Premises and to
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the Building caused by any such removal. If Tenant shall fail or refuse to
remove any such property from the Premises, pursuant to the terms of Paragraph
12 hereof, Tenant shall be conclusively presumed to have abandoned the same, and
title thereto shall thereupon pass to Landlord without any cost either by
set-off, credit, allowance or otherwise, and Landlord-may, at its option, accept
the title to such property or at Tenant's expense may: (i) remove the same or
any part in any manner that Landlord shall choose, repairing any damage to the
Premises caused by such removal; and (ii) store, destroy or otherwise dispose of
the same without incurring liability to Tenant or any other person.
22. HOLDING OVER:
A. Tenant shall pay to Landlord an amount as Rent equal to one hundred
fifty percent (150%) of the Rent herein provided during each month or portion
thereof for which Tenant shall retain possession of the Premises or any part
thereof, after the termination of the Term or of Tenant's right of possession,
whether by lapse of time or otherwise and also shall pay all damages sustained
by Landlord, whether direct or consequential, on account thereof. The provisions
of this Paragraph shall not be deemed to limit or constitute a waiver of any
other rights or remedies of Landlord provided herein or at law.
B. Tenant shall be deemed to have retained possession of the Premises if
it fails to remove its property from the Premises as required in Paragraph 21
such that Landlord is prevented from delivering possession of all or any part of
the Premises to a subsequent tenant.
23. ESTOPPEL CERTIFICATE:
Tenant agrees that, from time to time, upon not less than fourteen (14) days
prior request by Landlord, Tenant, or Tenant's duly-authorized representative
having knowledge of this Lease, shall deliver to Landlord an executed and
completed estoppel certificate in the form attached hereto as Exhibit "B" and
made a part hereof, it being intended that any such certificate may be relied
upon by any prospective mortgagees thereof, or any prospective assignee of any
mortgagee thereof. Tenant shall execute and deliver to Landlord said executed
and completed certificate within fourteen (14) days following a request and
delivery of such estoppel certificate from Landlord. In the event Tenant fails
so to do within said fourteen (14) days, Tenant shall be considered in default
under this Lease.
24. LANDLORD'S RIGHT TO SUBORDINATE LEASE:
A. Landlord may subject and subordinate the Lease, at all times, to
the lien of any mortgage or mortgages now or hereafter placed upon the Property
on which the Premises are located, provided that, if and when any such mortgage
is placed, Landlord shall, have the mortgagee agree for itself and for every
subsequent holder or owner of the mortgage in the event of foreclosure. Tenant's
quiet possession of the Premises will not be disturbed on account of said
mortgage or by reason of anything done thereunder so long
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as Tenant pays the Rent and keeps the other covenants as its part to be
performed. In such event, Landlord shall use reasonable efforts to provide
tenant with a Subordination, Non-Disturbance and Attornment Agreement executed
by Landlord, the mortgagee, and any other persons claiming benefits under such
Agreement, which shall provide: (i) that the lease is subordinate to the lien of
any mortgage or mortgages upon the Property; (ii) that the Tenant's right of
possession will not be disturbed by the mortgagee in connection with any
mortgage foreclosure proceedings so long as Tenant performs its obligations set
forth in the Lease; and (iii) that the Tenant shall attorn to the foreclosing
mortgagee or purchaser at the foreclosure sale. Tenant agrees to execute such
Subordinate, Non-Disturbance and Attornment Agreement.
B. Landlord agrees that, in the event a mortgage is placed on the Property
and a Collateral Assignment of Rents or Leases is given as security for the
loan, Tenant will be furnished with a copy of such Collateral Assignment.
25. CERTAIN RIGHTS RESERVED BY LANDLORD:
Landlord shall have the following rights, each of which Landlord may
exercise upon ten (10) days advance written notice to Tenant, except as provided
below and without liability to Tenant for damage or injury to Property, person
or business on account of the exercise thereof, and the reasonable exercise of
any such rights shall not be deemed to constitute an eviction or disturbance of
Tenant's use or possession of the Premises and shall not give rise to any claim
for set-off or abatement of Rent and any other claim.
A. To change the Building's name or street address.
B. To install, affix and maintain any and all signs on the exterior and in
the interior of the Building.
C. To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building, or any
part thereof, and for such purposes to enter upon the Premises, and, during the
continuance of any said work, to temporarily close doors, entryway, public space
and corridors in and about the Building and to interrupt or temporarily suspend
services or use of facilities, all without affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible and usable.
D. To furnish door keys for doors in the Premises at the commencement of
the Lease. To retain, at all times, and to use in appropriate instance, keys to
all doors within and into the Premises. Tenant agrees to purchase only from
Landlord additional duplicate keys as required, to change no locks, and not to
affix locks on doors without the prior written consent of Landlord.
Notwithstanding the provisions for Landlord's access to Premises, Tenant
relieves and releases the Landlord of all responsibility arising out of theft,
robbery and pilferage, except if caused by the negligence of Landlord. Upon the
expiration of the Term or of Tenant's right to possession, Tenant shall return
all keys to
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Landlord and shall disclose to Landlord the combination of any safes, cabinets
or vaults left in the Premises.
E. To designate that window treatments shall be building standard venetian
blinds or curtains and to designate and approve, prior to installation, all
types of additional window shades, blinds or draperies.
F. To approve the weight, size and location of safes, vaults and other
heavy equipment and articles in aid about the Premises and the Building (so as
not to exceed the legal live load per square foot designated by the structural
engineers for the Building) and to require all such items and furniture and
similar items to be moved into or out of the Building and the Premises only at
such times and in such manner as Landlord shall direct in writing. Tenant shall
not install or operate machinery or any mechanical devices of a nature not
directly related to Tenant's ordinary use of the Premises without the prior
written consent of the Landlord. Movements of Tenant's property into or out of
the Building and within the Building are entirely at the risk and responsibility
of Tenant.
G. To show the Premises to prospective tenants at reasonable hours during
the last twelve (12) months of the Term, and if vacated or abandoned, to show
the Premises at any time and to prepare the Premises for re-occupancy.
H. To erect, use and maintain pipes, ducts, wiring and conduits, and
appurtenances thereto, in and through the Premises at reasonable locations.
I. To enter the Premises during Tenant's normal business hours on
reasonable notice to inspect the Premises.
26. LANDLORD'S REMEDIES:
If default shall be made in payment of the Rent or any installment thereof or in
the payment of any other sum required to be paid by Tenant under this Lease or
under the terms of any other agreement between Landlord and Tenant and such
default shall continue for ten (10) days after written notice to Tenant, or if
default shall be made in the observance or performance of any other covenants or
conditions in this Lease which Tenant is required to observe and such default
shall continue for thirty (30) days after written notice to Tenant, provided
that if such default cannot reasonably be cured within thirty (30) days the
period of grace shall be extended for so long as Tenant in good faith is
diligently prosecuting a cure, but in no event shall such cure period extend
beyond ninety (90) days or if a default involves a hazardous condition and is
not cured or action commenced to cure by Tenant immediately upon written notice
to Tenant, or if the interest of Tenant in this Lease shall be levied upon or
under execution or other legal process, or if any voluntary petition in
bankruptcy or for corporate reorganization or any similar relief shall be filed
by Tenant, or if any involuntary petition in bankruptcy shall be filed against
Tenant under any federal or state bankruptcy or insolvency act and shall not
have been dismissed within thirty (30) days from the filing thereof, or if a
receiver shall be
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appointed for Tenant or any of the property of Tenant by any court and such
receiver shall not have been dismissed within thirty (30) days from the date of
his appointment, or if Tenant shall make an assignment for the benefit of
creditors, or if Tenant shall admit in writing Tenant's inability to meet
Tenant's debts as they mature, or if Tenant shall abandon and cease paying rent
for the Premises during the Term, then Landlord may treat the occurrence of any
one or more of the foregoing events as a breach of this Lease, and thereupon, at
its option may, with notice to Tenant or demand of any kind to Tenant or any
other person, have any one or more of the following described remedies in
addition to all other rights and remedies provided at law or in equity or
elsewhere herein:
A. Landlord may terminate this Lease and the Term created hereby, in which
event Landlord may forthwith repossess the Premises and be entitled to recover
forthwith, any other sums or damages for which Tenant may be liable to Landlord
and may also collect expenses of said period. Should the fair market value of
the Premises, after deduction of all for reletting for the balance of the Term,
exceed the value of the Rent provided to be paid by Tenant for the balance of
the Term, Landlord shall have no obligation to pay to Tenant the excess or any
part thereof against any other sums or damages for which Tenant may be liable to
Landlord.
B. Landlord may terminate Tenant's right of possession and may repossess
the Premises by taking peaceful possession or otherwise, in which event Landlord
shall take reasonable efforts to relet the same for the account of Tenant, for
such rent and upon such terms as shall be satisfactory to Landlord. For the
purpose of such reletting, Landlord is authorized to decorate, repair, remodel
or alter the Premises. If the Premises are relet and a sufficient sum shall not
be realized from such reletting after paying all of the reasonable costs and
expenses of all decoration, repairs, remodeling, alterations and additions, and
the expenses of such reletting and of the collection of the Rent accruing
therefrom to satisfy the Rent provided for in this Lease, Tenant shall satisfy
and pay the same upon demand therefor from time to time.
C. Tenant agrees that Landlord may file suit to recover any sums falling
due under the terms of this Paragraph from time to time, and that no suit or
recovery of any portion due Landlord hereunder shall be any defense to any
subsequent action brought for any amount not theretofore reduced to judgement in
favor of Landlord.
27. EXPENSE OF ENFORCEMENT:
In the event that either party shall bring action against the other party to
enforce any of the terms, covenant or conditions contained in this Lease, the
non-prevailing party in such action shall pay upon demand all of the prevailing
parties reasonable costs, charges and expenses, including the fees and
out-of-pocket expenses of counsel, agents and others retained by the prevailing
party in connection with such action. In the event that Landlord is involved in
any litigation, negotiation or transaction in which the Tenant causes the
Landlord, without the Landlord's fault, to become involved or concerned, the
Tenant shall
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pay upon demand all Landlord's reasonable costs, charges and expenses, including
the fees and out-of-pocket expense of counsel, agents and others retained by
Landlord in connection with such matter. In the event that the Tenant is
involved in any litigation, negotiation or transaction in which the Landlord
causes the Tenant, without the Tenant's fault, to become involved or concerned,
the Landlord shall pay upon demand all Tenant's reasonable costs, charges and
expenses, including the fees and out-of-pocket expense of counsel, agents and
others retained by Tenant in connection with such matter.
28. COVENANT OF QUIET ENJOYMENT:
The Landlord covenants that the Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
other terms, covenants, conditions, provisions and agreements herein contained
on the part of the Tenant to be kept, observed and performed, shall during the
Term, peaceably and quietly have, hold and enjoy the Premises subject to the
terms, covenants, conditions, provisions, and agreements hereof.
29. TENANT PARKING SPACES:
Tenant shall be entitled to the use of all of the available parking spaces
within the parking lot (see the Exhibit "A" Site Plan) on the Land serving the
Building.
30. LANDLORD'S REPRESENTATIONS AND WARRANTIES:
A. Landlord represents and warrants that, both on the date the Lease is
executed and on the Commencement Date: (i) the Premises may be used for the
purposes for which it is leased; (ii) to the best of Landlord's knowledge the
Property is in compliance and will remain in compliance with all applicable
federal, state and local environmental laws, regulations, and ordinances; (iii)
the Premises are free and clear from all tenancies, occupancies, claims, or
rights to possession of persons other than the rights of Landlord and Tenant
under the Lease; (iv) the Property is subject to no orders, notices, violations,
and materialmen's and mechanic's liens, filed or entered by any public or
quasi-public authority; and (v) the Property is free from complaints or reports
of violations, noted or existing in or filed with any federal, state, county, or
local authority.
B. Landlord represents and warrants that it shall maintain the Property in
accordance with: (i) all Landlord's representations and warranties herein; and
(ii) all laws, regulations, rules, and ordinances, including those pertaining to
the environment, now in existence or subsequently enacted or promulgated during
the Term. Landlord further represents and warrants that any and all costs for
such maintenance of the Property shall, unless otherwise provided for in the
Lease, be borne solely by Tenant.
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C. Landlord represents and warrants that it will indemnify and hold Tenant
harmless from and against any damage, liability, fines, penalties, costs, or
losses (hereinafter collectively "Claims") to which Tenant may be subjected as a
result of Landlord's breach of any of its representations or warranties.
D. Landlord agrees to manage and operate the Property in accordance with
generally accepted standards for managing and operating-similar properties in
the vicinity.
31. MISCELLANEOUS:
A. Rights Cumulative. All rights and remedies of Landlord and
Tenant under this Lease shall be cumulative and none shall exclude any other
rights and remedies allowed by law.
B. Late Payment Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which is difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, attorneys'
fees and late charges which will be imposed upon Landlord by the terms of the
mortgage covering the Premises. Accordingly, if any sum due from Tenant for Rent
shall not be received by Landlord, or Landlord's designee, on or before the
first day of each month that said Rent is due as provided for herein, then, and
in that event, Tenant shall pay to Landlord a late charge equal to five percent
(5%) of such overdue amount for each month, or part thereof, that said payment
is overdue. Said late charge amount shall be due notwithstanding any cure
periods Tenant may have under Paragraph 26 above. The parties hereby agree that
such late charges represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of the late payment by Tenant. Acceptance of such
late charges by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
C. Terms. The necessary grammatical changes required to make the
provisions hereof or partnerships or individuals, men or women, as the case may
require, shall in all cases be assumed as though in each case fully expressed.
Further, Landlord and Tenant acknowledge and agree that when the word "Term" is
used herein, it shall also mean and refer to any additional renewed terms that
Tenant shall exercise.
D. Binding Effect. Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of the
Landlord and of Tenant, but also of their respective successors or assigns,
provided this Paragraph shall not permit any assignment by Tenant contrary to
the provisions of this Paragraph hereof.
E. Lease Contains All Terms. All of the representations and obligations
of Landlord and Tenant are contained herein and in the Exhibits attached hereto,
and no
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modification, waiver or amendment of this Lease or of its conditions or
provisions shall be binding the Landlord unless in writing signed by Landlord or
by a duly authorized agent of the Landlord empowered by a written authority
signed by Landlord.
F. Delivery for Examination. Submission of the form of the Lease for
examination shall not bind Landlord or Tenant in any manner, and no Lease or
obligations of the Landlord or Tenant shall rise until this instrument is signed
by both Landlord and Tenant and delivery is made to each.
G. No Air Rights. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
H. Modifications of Lease. If any lender requires, as a condition to its
lending funds, the repayment of which is to be secured by a mortgage or trust
deed on the Land and Building or either, that certain modifications be made,
which modification will not require Tenant to pay any additional amounts or
otherwise change materially the rights or obligations of Tenant hereunder,
Tenant shall, upon Landlord's request, execute appropriate instruments effecting
such modification(s).
I. Transfer of Landlord's Interest. Tenant acknowledges that Landlord has
the right to transfer its interest in the Land and Building and in this Lease,
and Tenant agrees that in the event of any such transfer and the assumption in
writing by the transferee of Landlord's obligations hereunder, Landlord shall
thereupon be released from all liabilities under this Lease without the
requirement of any notice to or acknowledgment or consent by Tenant, and Tenant
agrees to look solely to such transferee for the performance of Landlord's
obligations hereunder. Tenant further acknowledges that Landlord may assign its
interest in this Lease to a mortgage lender as additional security and agrees
that such an assignment shall not release Landlord from its obligations
hereunder and that Tenant shall continue to look to the Landlord for the
performance of its obligations hereunder.
J. Landlord's Title. Landlord's title to the Land is and always shall be
paramount to the interest of Tenant under this Lease. Nothing herein contained
shall empower Tenant to do any act which can, shall or may encumber the title of
Landlord.
K. Prohibition Against Recording. Neither this Lease nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by the Tenant
or by any one acting through, under or on behalf of the Tenant, and the
recording thereof in violation of this provision shall make this Lease null and
void at Landlord's election.
L. Caption. The captions of Paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect or alter the
meaning of such Sections or subsections.
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M. Covenants and Conditions. All of the covenants of Tenant and Landlord
hereunder shall be deemed and construed to be "conditions" as well as
"covenants" as though the words specifically expressing or importing covenants
and conditions were used in each separate instance.
N. Only Landlord/Tenant Relationships. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint venture or
any association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of Landlord and Tenant.
O. Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord in its sole discretion may elect.
P. Definition of "Landlord". All indemnities, covenants and agreements of
Tenant contained herein which inure to the benefit of Landlord shall be
construed to also inure to the benefit of the Landlord's beneficiaries and all
partners therein.
32. NOTICES:
All notices, demands or requests to be given under this Lease shall be in
writing and delivered either: (i) personally; or (ii) deposited in the United
States mail, certified or registered mail with return receipt requested, postage
prepaid; or (iii) by nationally recognized overnight delivery service; addressed
as follows:
A. IF TO LANDLORD: Xx. Xxxxxx X. Xxxxxxx
Applied Properties, L.L.C.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
B. IF TO TENANT: Xx. Xxxxx X. Xxxxxxx
Applied Systems, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxxxx 00000
or to such other person or such other address which any party entitled to
receive notice hereunder designates to the other in writing. Notice shall be
deemed given when received in the case of personal delivery or overnight
delivery service as aforesaid and notices sent
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by mail shall be deemed to have been delivered when deposited in the United
States mail as aforesaid.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this Lease as of
the day and year first above written.
TENANT: LANDLORD:
APPLIED SYSTEMS, INC., APPLIED PROPERTIES, L.L.C.,
an Illinois corporation an Illinois limited liability company
By:
--------------------------- -------------------------------------
CEO/President Member
Attest:
-----------------------------
Secretary
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EXHIBIT "A"
TO
LEASE FOR XXXXXXXX ROAD & XXXXXX XXXXXX XXXXXX XXXXXXXX
XXXXXXXXXX XXXX, XXXXXXXX
APPLIED PROPERTIES, L.L.C. AS LANDLORD, AND
APPLIED SYSTEMS, INC., AS TENANT,
DATED SEPTEMBER 1, 1998
SITE PLAN
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EXHIBIT "B"
TO
LEASE FOR XXXXXXXX ROAD & XXXXXX XXXXXX XXXXXX XXXXXXXX
XXXXXXXXXX XXXX, XXXXXXXX
APPLIED PROPERTIES, L.L.C., AS LANDLORD, AND
APPLIED SYSTEMS, INC., AS TENANT,
DATED SEPTEMBER 1, 1998
ESTOPPEL CERTIFICATE
Re: Lease Dated: September 1, 1998
Landlord: Applied Properties, L.L.C.
Tenant: Applied Systems, Inc.
Premises: Xxxxxxxx Xxxx xxx Xxxxxx Xxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxx 00000 160,723 Rentable Square Feet
The undersigned, as Tenant under the Lease aforesaid, hereby acknowledges for
the benefit of _______________________________which has or is about to make a
loan to the Landlord aforesaid, part of the security for which will by a
mortgage covering the Premises aforesaid and an assignment of Landlord's
interest in said Lease, the truth and accuracy of the following statements
pertaining to said Lease.
1. Tenant has accepted and is in full possession of the Premises.
2. The term of the Lease commenced on ___________________ and the
Lease is in full force and effect.
3. Landlord has satisfactorily complied with all of the requirements
and conditions precedent to the commencement of the term of the Lease as
specified in the Lease.
4. All improvements, additions and alterations required to be made
by the Landlord with respect to the Premises have been fully completed by
Landlord and are acceptable to Tenant, except for______________________________
________________________________________________________________________.
5. Tenant is paying the full Rent stipulated in the Lease and there
are no known offsets, defenses or claims on the part of Tenant with respect
thereto.
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6. The fixed annual Rent under the Lease is $___________ and no
monies have been paid to Landlord in advance of the due date set forth in the
Lease, except ________________________________________________________________.
A true and complete copy of the Lease (together with all amendments if any
aforementioned) is attached hereto and hereby made a part hereof.
7. Tenant acknowledges that ____________________________assumed no
liability for its security deposits, if any, or for sums escrowed with the
Landlord for taxes in the event that ___________________________________acquires
the building in which the Premises are located by foreclosure or by transfer of
title in lieu of foreclosure.
8. Tenant acknowledges that there are no known defaults of any terms
of the lease by the Landlord, except ___________________________________________
________________________________________________________________________________
___________________________________________________________________________.
9. The amount of security deposit currently held by Landlord is
$__________________, and Tenant knows of no claims against such security
deposits, except _______________________________________________________________
________________________________________________________________________________
_________________________________________________________________________.
Dated:
------------------
TENANT:
APPLIED SYSTEMS, INC.,
an Illinois corporation
By:
----------------------
(Title)
Address to which notices are to be sent if other than the Premises:
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