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EXHIBIT 10.7
LEASE
THIS LEASE made and entered into this 2nd day of September, 1994, by
and between SANDAN, an Ohio partnership (the "Landlord"), and SMS GEOTRAC, INC.,
a Delaware corporation (the "Tenant").
1. LEASED PROPERTY.
1.1 The Landlord, for and in consideration of the rents to be paid
and of the covenants and agreements hereinafter contained to be kept and
performed by the Tenant, hereby leases and lets to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the real property commonly known as
0000 XXXXXX XXXX
XXXXXXX, XXXX 00000
Together with all buildings, structures and improvements
thereon, and all appurtenances thereto (hereinafter collectively referred to as
the "Leased Premises"), except 631 square feet of the Leased Premises which
shall be used by Xxxxxx Xxxxx for her tailoring business.
2. TERM.
2.1 The term of this Lease shall be a period of five (5) years,
commencing as of September 1, 1994 and terminating on August 31, 1999.
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3. RENT.
3.1 The Tenant hereby covenants and agrees to pay to the Landlord as
rent for the Leased Premises, during said term, the sum of Five Hundred
Twenty-Three Thousand Dollars ($523,000.00), payable in equal consecutive
monthly installments of Eight Thousand Seven Hundred Sixteen and 67/l00th
Dollars ($8,716.67), each in advance upon the first day of each and every
calendar month during said term. Rent for any period during the term of this
Lease which is less than one month shall be a pro-rata portion of the monthly
installment.
4. ADDITIONAL RENT.
4.1 The Tenant shall further pay, as additional rent, all utility
charges as required by Section 7 hereof, all premiums on insurance policies as
required by Section 8 hereof, all real estate taxes and assessments as required
by Section 9 hereof, all necessary repairs and replacements as required by
Section 6.2 hereof, and all other expenses and charges, which, during the term
hereof, shall arise, be levied, assessed, charged or imposed upon or with
respect to the Leased Premises. It is the purpose and intent of the Landlord and
the Tenant that the rent described in Section 3 above shall be absolutely net to
the Landlord, so that this Lease shall yield, net, to the Landlord the rent
specified in Section 3 above during the term hereof.
4.2 The Landlord covenants and agrees that if there shall be any
refunds or rebates of any utility charges, insurance premiums, real estate taxes
and assessments, and/or any other
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expenses and charges paid by the Tenant with respect to the Leased Premises
hereunder, such refunds or rebates shall belong to the Tenant. Any refund or
rebate received by Landlord shall be deemed trust funds received as the Tenant's
agent and on its behalf. Landlord will promptly notify Tenant of the existence
of such refunds and rebates and shall take all reasonable actions which may be
required to obtain such refunds or rebates. The Landlord will, upon the request
of the Tenant, sign any receipts which may be necessary to secure the payment of
any such refunds or rebates, and will immediately (and without charge) pay over
to the Tenant any such refunds or rebates as are received by the Landlord.
4.3 In the event that the Tenant fails to pay by their respective due
dates all expenses and charges to be paid by it pursuant to the terms hereof, or
fails to maintain and make any required repairs to the Leased Premises as
provided herein, or fails to carry insurance as provided herein, or fails to
fulfill any other obligation under this Lease, and if any of the foregoing
failures continue for a period of ten (10) days after Tenant receives written
notice from Landlord, then the Landlord, at its option, may do so and the amount
of such expenditure shall immediately become due and payable to the Landlord and
be considered additional rent hereunder, but no such payment or compliance by
Landlord shall constitute a waiver of any such failure by Tenant or affect any
right or remedy of Landlord with respect thereto.
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5. USE OF PREMISES.
5.1 The Tenant shall use and occupy the Leased Premises for general
business purposes including, without limiting the generality of the foregoing,
sales activities, general office and data processing.
5.2 The use by the Tenant of the Leased Premises shall be in a
careful, safe and proper manner, and the Tenant shall not permit the same to be
used for any unlawful purpose, nor commit nor suffer any waste; and the Tenant
will carefully preserve, protect, control and guard the same from damage.
6. MAINTENANCE AND REPAIR OF PREMISES.
6.1 Except as expressly provided herein, the Tenant agrees that it
is taking the Leased Premises in an "as is" condition and that the Landlord has
made no representations or warranties concerning the Leased Premises.
6.2 Throughout the term of this Lease, the Tenant shall, at its sole
cost and expense, take good care of and make all necessary repairs and
replacements to the Leased Premises and appurtenances thereto, except those
repairs and replacements which are specifically set forth in Subsection 6.3
hereof as being obligations of Landlord, and at the expiration of the term of
this Lease, return the Leased Premises to the Landlord in the same condition as
the Leased Premises were in as of the date hereof, except for (i) those repairs
and replacements which are Landlord's obligations as set forth in Subsection 6.3
hereof, (ii) normal wear and tear and (iii) damage to the Leased Premises
attributable to
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any fire or other casualty covered under Section 12, below. Notwithstanding part
(iii) above, however, subject to Section 8.4, below, the Tenant shall be
required to make any repairs to the Leased Premises to the extent that (a) the
fire or other casualty is attributable to the willful misconduct of the Tenant
or (b) insurance proceeds to make such repairs would have been available but for
the Tenant's failure to maintain the types) of insurance which the Tenant is
required to maintain pursuant to Section 8.2, below. The Tenant shall, at its
own cost and expense, keep the Leased Premises, abutting sidewalks and parking
areas, if any, free and clear from all rubbish, dirt, ice, snow, goods or other
obstacles; further, the Tenant shall be responsible for all costs associated
with landscaping, both indoor and outdoor, including the replacement and
replanting of flowers, grass and bushes, and the maintenance (other than any
repairs and/or replacements which Landlord is required to make under Section
6.3, below) thereof, janitorial, painting, window cleaning, removal of rubbish
and general cleaning services, security services and all other services related
to the operation and maintenance (other than any repairs and/or replacements
which Landlord is required to make under Section 6.3, below) of the buildings on
the Leased Premises, both interior and exterior, including materials, supplies
and the rental costs of equipment and tools related to any of the foregoing, or
contracts with independent third parties to provide such services or supplies.
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6.3 Except for repairs and replacements necessitated as a result of the
negligence of Tenant or the failure of Tenant to perform its obligations under
Section 6.2, above of Tenant, its employees, agents, licensees or invitees, the
Landlord shall, throughout the term of this Lease, at the Landlord's sole cost
and expense, keep in good condition and repair the foundations, exterior walls,
structural condition of all load bearing walls and the roof of the building (the
"Building") in which the Leased Premises are located. In addition, Landlord
shall, at Landlord's sole cost and expense, make any major repairs to all of the
Building's systems (including, without limitation, the plumbing, electrical,
lighting, heating, ventilation and air conditioning and fire detection
(including sprinkler) systems) which may be required during the term of this
Lease and/or replace such systems; provided that Landlord shall not be required
to make any repairs to any of the Building's which are necessitated by the
Tenant's failure to make repairs under Section 6.2, above. In the event that the
Landlord fails to so take good care of and make all necessary repairs and
replacements to said components of the building(s) on the Leased Premises, then
the Tenant, at its option, may do so upon ten (10) days written notice to the
Landlord; provided, however, that in the event that the Leased Premises are
rendered unusable as a result of such a failure by Landlord, Tenant may make
such repairs upon twenty-four (24) hours' prior written notice delivered to the
Landlord by facsimile. The Landlord shall either pay or reimburse the Tenant for
the cost and expense of so taking good
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care of and repairing or replacing said components of the building(s) on the
Leased Premises within five (5) days of receipt by the Landlord of the xxxx for
such cost and expense.
6.4 CONDITION OF THE LEASED PREMISES.
The Landlord hereby represents and warrants that as of the date of
this Lease: (a) all of the Building's systems (including, without limitation,
the plumbing, electrical, lighting, heating, ventilation and air conditioning
and fire detection (including sprinkler) systems) shall be in good operating
condition and repair; (b) the foundations, exterior walls, structural condition
of all load bearing walls and the roof of the Building shall be in good
operating condition and repair; and (c) the Building is in compliance with all
building, life/safety, disability and other laws, codes and regulations of any
governmental or quasi-governmental authority, including, without limitation, the
Americans With Disabilities Act of 1990 and all restrictions of record, which
may apply to the Building.
7. UTILITIES.
7.1 Throughout the term of this Lease, the Tenant shall, at its sole
cost and expense, and on its own account, furnish all utilities of every type
and nature required by it in the use of the Building and any portions of the
Leased Premises located outside of the Building, and shall pay or cause to be
paid, when due, all bills for water, sewage, heat, gas and electricity used on,
in connection with, or chargeable against the Building and any portions of the
Leased Premises located outside of the Building.
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8. INSURANCE.
8.1 Public Liability Insurance. Tenant agrees to carry at its own
expense, throughout the term of this Lease, public liability insurance covering
the Premises and Tenant's use thereof, with minimums of One Million Dollars
($1,000,000.00) on account of bodily injuries to or death of one person and One
Million Dollars ($1,000,000.00) on account of bodily injuries to or death of
more than one person as a result of any occurrence. Said policy or policies of
insurance shall name Landlord and Tenant as insureds.
8.2 Fire and Extended Coverage Insurance. Tenant hereby agrees to
obtain and carry during the term of this Lease and any renewal thereof a policy
or policies of insurance insuring the building and any improvements made thereto
by Tenant during the term of this Lease and any renewal thereof against loss or
damage by fire and such other risks as are from time to time included in
standard extended coverage endorsements, in an amount equal to the replacement
cost of such building and such improvements. Landlord and Tenant shall be the
named insureds under such policy or policies.
(1) Any and all proceeds of such policy or policies shall be
applied to Tenant's and/or Landlord's obligations under Paragraphs 6
and 12 hereof, to the extent of said obligations.
(2) Any and all excess proceeds paid pursuant to said policy
or policies shall be and become the property of Tenant.
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8.3 Personal Property Insurance. Tenant agrees to carry, at its
expense, insurance against fire and such other risks as are from time to time
included in standard extended coverage endorsements insuring Tenant's items of
personal property located on or within the Premises, in an amount deemed
sufficient by Tenant.
8.4 Waiver of Subrogation. Landlord and Tenant hereby waive all
causes of action and rights of recovery each may have against the other and on
behalf of any person or entity claiming through or under either Landlord or
Tenant by way of subrogation or otherwise for all loss or damage to property to
person by reason of fire or any peril insured against any standard or extended
coverage insurance regardless of the cause or origin of such damage including
any act of negligence by either party hereto or any party acting for and on
behalf of either party thereto but, the within waiver, contained herein shall be
limited only to the recovery made by either party hereto under any policy of
insurance then in effect and only if such waiver shall not invalidate or impair
the coverage afforded by the policy of insurance then in effect. Landlord and
Tenant agree that any policies of insurance providing for insurance against the
perils described herein shall provide for the waiver contained in this Paragraph
of the Lease so long as such waiver is available without the payment of
additional premium or charge. If any additional premium or charge is required to
obtain such waiver, then the cost thereof shall be paid by the party benefitted
thereby.
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8.5 The Tenant shall use its best efforts to have inserted in each
policy of insurance obtained pursuant to the provisions hereof an agreement by
the insurer that Landlord will be promptly notified of any overdue premium
payment, and a provision that such policy shall not be canceled without prior
written notice to the Landlord and its mortgagee(s) to whom a loss thereunder
may be payable. The Tenant shall cause certificates of insurance required
hereunder to be provided to the Landlord, and, at the Landlord's request, proof
of premium payments.
9. TAXES.
9.1 Tenant shall pay all real estate taxes and assessments, both
general and special, water rents and sewer charges, heretofore or hereafter
levied, assessed or charged by any governmental taxing authority against the
Premises and all buildings and other improvements which are a part thereof which
became due and payable during the term of this Lease or any renewal thereof.
Tenant shall pay all taxes heretofore or hereafter levied or assessed by any
governmental authority against any leasehold interest or any fixtures,
furnishings, equipment or other personal property of any kind owned, installed
or used by Tenant in or on the Premises, which become due and payable during the
term of this Lease or any renewal thereof.
9.2 The Tenant shall, upon notice to the Landlord, have the right to
contest, at the Tenant's sole cost and expense, any real estate taxes and
assessments in the name and on behalf of the Landlord, and the Landlord shall,
at the request of Tenant,
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cooperate in such contest by the Tenant, providing the Landlord does not have to
pay for any expenses or costs incurred thereby.
10. CHANGES AND ALTERATIONS.
10.1 The Tenant shall have the right to make at any time and from
time to time during the term of this Lease, at its sole cost and expense,
changes and alterations to the Leased Premises (but not structural alterations),
subject, however, in all cases, to the following provisions of this Section.
10.2 No change or alteration shall be made to the Leased Premises
without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed; provided, however, that the Tenant shall be
entitled, without the Landlord's prior written consent, to make any
non-structural alterations to the Leased Premises which cost less than Twenty
Thousand Dollars ($20,000.00), individually, or Sixty Thousand Dollars
($60,000.00) in the aggregate throughout the Term of this Lease.
10.3 No change or alteration shall be undertaken until the Tenant
shall have procured and paid for all required permits and authorizations of all
municipal departments and governmental subdivisions having jurisdiction. The
Landlord shall join in application for such permits or authorizations whenever
such action is necessary. Before any alteration, addition or improvement or any
other change is commenced or any materials are delivered to the Leased Premises,
Tenant shall provide Landlord with plans, specifications, names of contractors,
copies of contracts and necessary permits.
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10.4 Any change or alteration shall be made promptly (unavoidable
delays excepted) in a good and workmanlike manner and free and clear of all
mechanic's liens and in compliance with all applicable permits and
authorizations and building and zoning laws and all other laws, ordinances,
orders, rules, regulations and requirements of all federal, state, county and
municipal governments, and all departments, commissions, boards and officers
thereof.
11. TENANT'S CHANGES. FIXTURES AND EQUIPMENT.
11.1 Except as otherwise provided herein all equipment,
furnishings, signs and other items of personal property installed in the
Premises by Tenant and paid for by Tenant shall remain the property of Tenant
and may be removed by Tenant upon the expiration of the term of this Lease or
any renewal thereof or its earlier termination, provided that any of such items
as are affixed to the Premises and require severance may be removed only if
Tenant shall repair any damage caused by such removal and provided further that
Tenant shall have fully performed all of the covenants and agreements to be
performed by it under the provisions of this Lease. If Tenant fails to remove
such items from the Premises within thirty (30) days after the termination of
this Lease or the expiration of the term of this Lease, or any renewal thereof,
all such equipment, furnishings, signs and items of personal property shall
become the property of Landlord.
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12. DESTRUCTION OF PREMISES AND CONDEMNATION.
12.1 If the Premises shall be destroyed or so injured by any cause
as to be unfit, in whole or in part, for use and such destruction or injury
could reasonably be repaired within ninety (90) days from the happening of such
destruction or injury, then Tenant shall not be entitled to surrender possession
of the Premises. In the case of any such destruction or injury, Landlord shall
repair the same with all reasonable speed and shall complete such repairs within
ninety (90) days from the happening of such injury, provided that the cost of
such repairs is fully covered by the proceeds of the fire and extended coverage
insurance policy or policies provided in Section 8 hereof. If the Premises shall
be destroyed or so injured by any cause as to be unfit, in whole or in part, for
use and such destruction or injury could not be reasonably repaired within
ninety (90) days from the happening of such destruction or injury, and if the
cost of such repairs is not fully covered by said insurance proceeds, Landlord
may elect to terminate this Lease provided Landlord shall notify Tenant of such
intention within thirty (30) days after the happening of such destruction or
injury, and in the event of such termination all unearned rent and other charges
paid in advance by Tenant shall be refunded. If after any damage or destruction
of the Leased Premises, Tenant shall be unable to use all or any portion of the
Premises, rent shall xxxxx during the period of repair or reconstruction in the
same proportion to the total rent as the portion of the Leased Premises rendered
unusable bears to the
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entire Leased Premises. If the Landlord undertakes the repair, restoration
and/or reconstruction of the Building under this Section 12.1 and fails to
complete such repair, restoration and/or reconstruction within one hundred
twenty (120) days after the date of the occurrence of the casualty or if
Landlord fails to give notice to Tenant of Landlord's election to repair the
Building within thirty (30) days after the occurrence of such casualty, then the
Tenant may immediately cancel this Lease by giving written notice of its
election to cancel to the Landlord.
12.2 If such destruction or injury cannot reasonably be repaired within
ninety (90) days after the happening thereof, then either party may, by written
notice to the other party within thirty (30) days after the occurrence of such
casualty, terminate this Lease. If neither party so terminates this Lease,
Landlord shall restore the Premises to their former condition with due
diligence, and rent shall xxxxx during the period of repair or reconstruction in
the same proportion to the total rent as the portion of the Leased Premises
rendered unusable bears to the entire Leased Premises. If the Landlord
undertakes the repair, restoration and/or reconstruction of the Building under
this Section 12.2 and fails to complete such repair, restoration and/or
reconstruction within one hundred eighty (180) days after the date of the
occurrence of the casualty, then the Tenant may immediately cancel this Lease by
giving written notice of its election to cancel to the Landlord.
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12.3 For purposes of Sections 12.1 and 12.2, above, any determination
regarding whether the Building can be repaired within a specific period of time
shall be made by a reputable architect or contractor selected by Landlord and
reasonably acceptable to Tenant.
12.4 Eminent Domain. In the event the Premises or any part 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 compensation award
therefor, including, but not limited to, all damages as compensation for
diminution in value of the leasehold, reversion and fee, shall belong to the
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 award. Although all damages in the event of any condemnation are to
belong to the Landlord, whether such damages are awarded as compensation for
diminution in value of the leasehold, reversion or to the fee of the Premises,
Tenant shall have the right to claim and recover from the condemning authority,
but not from Landlord, such compensation as may be separately awarded or
recoverable by Tenant in Tenant's own right on account of any and all damage to
Tenant's business by reason of the condemnation and for or on account of any
cost or loss which Tenant might incur in removing Tenant's furnishings,
fixtures, leasehold improvements and equipment.
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If the whole of the Premises shall be taken by any public authority
under the power of eminent domain or any portion of the Leased Premises are
taken by eminent domain which renders the remaining portions of the Leased
Premises unusable for Tenant's intended purposes, this Lease shall terminate as
of the day possession shall be taken by such public authority, and Tenant shall
pay rent up to that date with an appropriate refund by Landlord of such rent as
shall have been paid in advance for a period subsequent to the date of the
taking. If less than ten percent (10%) of the gross leasable area of the
Premises shall be so taken, said Lease shall terminate only with respect to the
parts so taken as of the day possession shall be taken by such public authority,
and Tenant shall pay rent up to that day for the parts so taken with an
appropriate refund by Landlord of such rent as may have been paid in advance for
a period subsequent to the date of the taking and, thereafter, the rent shall be
equitably adjusted, and Landlord shall at its expense make all necessary repairs
or alterations to the basic building and exterior work so as to constitute the
remainder of the Premises a complete, finished architectural unit. If ten
percent (10%) or more of the gross leasable area of the Premises shall be so
taken, then this Lease shall terminate with respect to the part so taken from
the date possession shall be taken by such public authority, and Tenant shall
pay rent up to that date with an appropriate refund by Landlord of such rent as
may have been paid in advance for a period subsequent to the date of the taking,
and either party shall have
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the right to terminate this Lease upon notice in writing within thirty (30) days
after such taking of possession; in the event that Tenant remains in possession,
and if Landlord does not so terminate, all of the terms herein provided shall
continue in effect except that the rent shall be equitably abated, and Landlord
shall make all necessary repairs or alterations to the basic building and
exterior work so as to constitute the remaining premises a complete, finished
architectural unit. If more than fifty percent (50%) of the gross leasable area
of the building in which the Premises are located shall be taken under the power
of eminent domain, either party may, by written notice to the other party,
delivered on or before the day of surrendering possession to the public
authority, terminate this Lease, and rent shall be paid or refunded as of the
date of termination.
13. ASSIGNMENT AND SUBLETTING.
13.1 The Tenant may not assign this Lease and/or sublet or underlet
the Leased Premises or any part thereof without the Landlord's prior written
consent.
13.2 Notwithstanding Section 13.1, the Tenant shall not require
the Landlord's consent in order to assign this Lease, or to sublease all or any
portion of the Leased Premises, (a) to any entity which, directly or indirectly,
controls, is controlled by, or is under common control with the Tenant, (b) any
entity resulting from the merger or consolidation of control of the Tenant, or
(c) any person or entity which acquires the Tenant or
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substantially all of the assets of the Tenant's business that is then being
conducted on the Leased Premises.
14. ENTRY BY LANDLORD.
14.1 The Landlord and its duly authorized representatives shall
have the right to enter the Leased Premises at all reasonable times for the
purposes of (a) inspecting the condition of same and making such repairs,
alterations, additions or improvements thereto as may be necessary or desirable,
and (b) exhibiting the same to persons who may wish to purchase or lease the
same, and, during the last six (6) months of the term of this Lease, placing a
notice of reasonable size on the Leased Premises offering the same or any part
thereof for sale or rent.
15. COVENANTS AGAINST LIENS.
15.1 Liens of Tenant. If because of any act or omission of Tenant,
any mechanic's lien or other lien, charge or order for the payment of money
shall be filed against any portion of the Leased Premises, Tenant shall, at its
own cost and expense, cause the same to be discharged of record or bonded within
ninety (90) days after written notice from Landlord to Tenant of the filing
thereof unless Tenant shall contest the validity of such liens by appropriate
proceedings in good faith and with due diligence.
15.2 Removal of Liens. If Tenant shall fail to cause such liens to
be discharged of record or bonded within the aforesaid ninety (90) day period
(unless Tenant shall contest the validity of such lien as aforesaid, or satisfy
such liens within sixty (60) days after judgment in favor of any such lien
holders
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from which no further appeal might be taken) Landlord shall have the right to
cause the same to be discharged. All amounts paid by Landlord to cause such
liens to be discharged shall constitute additional rent payable by Tenant to
Landlord.
16. ENJOYMENT WITHOUT MOLESTATION.
16.1 If the Tenant pays the rent it is obligated hereunder to pay,
and observes all other terms, covenants and conditions hereof, it shall occupy
and enjoy the use of the property hereby leased during the term of this Lease
without any hindrance, molestation or ejection by the Landlord, its successors
or assigns.
17. OPTION TO RENEW.
17.1 Tenant is hereby granted an option to renew this Lease for an
additional five (5) year term upon the same terms and conditions as are provided
herein except that the rent during such renewal term shall be adjusted as set
forth in this Paragraph. Said option to renew shall be exercised by the Tenant
giving notice by certified mail to the Landlord, return receipt requested, at
least six (6) months prior to the expiration of the initial term. It shall be a
condition of the exercise of the foregoing option that at the time of the
exercise of said option the Tenant shall not be in default beyond any grace
period herein provided in the performance of any of the terms or provisions
contained in this Lease.
17.2 In the event the Tenant exercises its option to renew this
Lease for an additional five (5) year period, the annual
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rent during said renewal term shall be adjusted as follows:
(i) The Consumer Price Index for All Urban Consumers
(1987=100) "All Items" for the City nearest the location of
the Building issued by the Bureau of Labor of the Department
of Labor for the month of June in the calendar year during
which the initial term of this Lease expires (hereinafter
referred to as "Comparison Index") shall be compared to the
Consumer Price Index for the month of June in the calendar
year during which this Lease commences (hereinafter referred
to as the "Base Index"). If said Comparison Index exceeds the
Base Index, the annual rent for the renewal term shall be
adjusted by multiplying the annual rent being paid prior to
the expiration of the initial term, by a fraction, the
numerator of which is the Comparison Index and the denominator
of which is the Base Index.
(ii) The comparisons and adjustments, if any provided
for herein shall be made as soon as the Comparison Index has
been made available by the Department of Labor. The Landlord
shall, after making the necessary computation, notify the
Tenant, in writing, of the adjusted annual rent to be charged
during the renewal term if the option to renew is exercised.
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(iii) If during the term of this Lease the Bureau of Labor
shall substitute a new base for the 1987=100 base hereinbefore
stipulated as of the Index base, Landlord and Tenant agree that
such substituted base, adjusted and equated to the 1987=100 base
in the manner recommended by said Bureau of Labor, shall then
become and be the Index for all purposes of this Paragraph. In the
event the Index shall cease to be published, then, for the
purposes of this Paragraph, there shall be substituted for the
Index such other index as Landlord and Tenant shall agree upon.
18. INDEMNITY.
18.1 The Tenant shall, at all times, indemnify the Landlord for,
defend the Landlord against, and save the Landlord harmless from any liability,
loss, cost, injury, damage or other expense, including mechanic's liens or other
liens, that may occur or be claimed by or with respect to any person or property
on or about the Leased Premises to the extent that such matters result from the
use of the Leased Premises by the Tenant or from the Tenant's failure to observe
or perform its obligations under this Lease, other than any such liability,
loss, cost, injury, damage or other expense resulting from the Landlord's
failure to observe and perform any provision, covenant or condition required
under this Lease to be observed and performed by the Landlord.
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18.2 The Landlord shall, at all times, indemnify the Tenant for, defend
the Tenant against, and save the Tenant harmless from any liability, loss, cost,
injury, damage or other expense that may occur or be claimed by or with respect
to any person or property on or about the Building to the extent that such
matters result from the use of the Building by the Landlord or from the
Landlord's failure to observe or perform its obligations under this Lease, other
than any such liability, loss, cost, injury, damage or other expense resulting
from the Tenant's failure to observe and perform any provision, covenant or
condition required under this Lease to be performed by the Tenant.
19. DEFAULT.
19.1 The occurrence of any one or more of the following events
shall constitute an event of default (an "Event of Default"):
(a) The Tenant shall fail to pay any installment of
rent or make any payment of additional rent within ten (10)
days after the Tenant receives written notice that such amount
is overdue;
(b) The Tenant fails to deliver to Landlord a certificate of
insurance as required under Section 8.5, above and such failure
continues for a period of ten (10) days after Tenant receives
written notice of such failure from Landlord or the Tenant fails
to obtain replacement insurance for any type of insurance required
hereunder for which a notice of cancellation has been received and
such failure continues for a period of ten (10) days after Tenant
receives written notice of such failure from Landlord;
(c) The Tenant shall fail to observe and perform any other
provision, covenant or condition of this Lease required under this
Lease to be observed and performed by the Tenant within thirty
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(30) days after the Landlord shall have given written notice
to the Tenant of the failure of the Tenant to observe and perform
the same, or if such default shall be of such a nature that it
cannot be cured completely within said thirty (30) day period, if
Tenant shall not have promptly commenced curing such default
within such thirty (30) day period, or shall not thereafter
proceed with diligence and in good faith to remedy such default;
(d) The Tenant shall make an assignment for the benefit of
its creditors;
(e) Proceedings in bankruptcy or for reorganization of the
Tenant or for adjustments of debts under the Federal Bankruptcy
Code, as amended, or any parts thereof, or under any other act or
law, whether parts thereof, or under any other act or law, whether
state or federal, for the relief of debtors, shall be commenced by
or against the Tenant and shall not be discharged within sixty
(60) days of their commencement;
(f) A receiver or trustee shall be appointed for the tenant
or for any substantial part of its assets and such receiver or
trustee shall not be discharged within sixty (60) days of his
appointment; and
(g) Any proceedings shall be instituted for the involuntary
dissolution or the full or partial liquidation of the Tenant and
such proceedings shall not be dismissed or discharged within sixty
(60) days of their commencement.
19.2 Upon the occurrence of an Event of Default, the Landlord
shall mail or otherwise deliver to the Tenant written notice of the Event of
Default and its intention to invoke the remedies set forth herein. After a ten
(10) day period beginning on the date such notice is mailed or otherwise
delivered, the Landlord may, at its election, terminate the Lease and re-enter
and take possession of the Leased Premises, or re-enter and take possession of
the Leased Premises without thereby terminating this
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Lease. In either event, Landlord shall have the right (a) to declare the
remaining unpaid amount of rent due during the term of this Lease to be
immediately due and payable (in such event, if the Landlord relets the Leased
Premises or any part thereof during what would have been the balance of the term
of this Lease, then the Landlord shall promptly pay to the Tenant (up to the
amount received by the Landlord from such acceleration) the amounts as they are
received from such reletting, less the Landlord's Expenses (as hereafter
defined); or (b) to relet the Leased Premises, or any part thereof, for such
term or terms and on such conditions as the Landlord determines for and on
behalf of the Tenant for the highest rental reasonably obtainable in the
judgment of the Landlord, and recover from the Tenant any deficiency between the
amount of rent, in fact, received through such reletting and the amount of rent,
additional rent and all other charges payable under this Lease, plus any
expenses incurred by the Landlord in connection with such reletting, including,
without limitation, the expense of any repairs or alterations the Landlord
reasonably deems necessary or appropriate to make in connection with such
reletting and sums expended for brokerage commissions (herein referred to as the
"Landlord's Expenses").
20. NON-WAIVER.
20.1 Neither a failure by the Landlord to exercise any of its
options hereunder, nor failure to enforce its rights or seek its remedies upon
any default, nor the acceptance by the Landlord of any rent accruing before or
after any default, shall effect or
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constitute a waiver of the Landlord's right to exercise such option, to enforce
such right, or to seek such remedy with respect to that default or to any prior
or subsequent default. The remedies provided in this Lease shall be cumulative
and shall not in any way abridge, modify or preclude any other rights or
remedies to which the Landlord is entitled either at law or in equity.
21. SURRENDER OF PREMISES.
21.1 Upon termination of this Lease, whether by lapse of time or
otherwise, or upon the exercise by the Landlord of the power to re-enter and
repossess the Leased Premises without terminating this Lease, as hereinbefore
provided, the Tenant shall at once surrender the possession of the same to the
Landlord in as good order and repair as they were in as of the date hereof,
except for (i) those repairs and replacements which are Landlord's obligations
as set forth in Subsection 6.3 hereof, (ii) normal wear and tear, and at once
remove all of the Tenant's property therefrom and (iii) damage to the Leased
Premises attributable to any fire or other casualty covered under Section 12,
above. Notwithstanding part (iii) above, however, subject to Section 8.4, above,
the Tenant shall be required to make any repairs to the Leased Premises to the
extent that (a) the fire or other casualty is attributable to the willful
misconduct of the Tenant or (b) insurance proceeds to make such repairs would
have been available but for the Tenant's failure to maintain the type(s) of
insurance which the Tenant is required to maintain pursuant to Section 8.2,
above. If, upon such an event, the Tenant does not at once surrender possession
of the
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same and remove all its property therefrom, the Landlord may forthwith re-enter
and repossess the same and remove all of the Tenant's property therefrom and
store the same without being guilty of trespass or of forcible entry or detainer
and thereafter the Landlord may recover from the Tenant all costs and expenses
incurred by the Landlord in removing the Tenant's property and storing the same,
together with interest as aforesaid.
22. HOLDING OVER BY TENANT.
22.1 If the Tenant remains in possession of all or any part of the
Leased Premises after the expiration of the term hereof, then the Tenant shall
be deemed a Tenant of the Leased Premises from month-to-month with the rental
for each month of the holding-over period being ten percent (10%) greater than
the rental due hereunder for the immediately preceding month, and subject to all
of the other terms and provisions hereof, except only as to the term of this
Lease.
23. SECURITY DEPOSIT.
23.1 Within forty-five (45) days from the date hereof, the Tenant
shall deposit with the Landlord as a security deposit an amount equal to one
month's rent hereunder. The Landlord shall repay to the Tenant in cash the
principal amount of the security deposit immediately upon termination of this
Lease, provided that the Tenant has fully complied with its obligations
hereunder. Notwithstanding the previous sentence, the Landlord shall have the
right to apply any part of the security deposit to cure any failure of the
Tenant to fulfill its obligations hereunder.
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24. NOTICES.
24.1 Any notice, election, communication, request or other document
or demand required or desired to be given to the Landlord or the Tenant shall be
in writing and shall be deemed given if either served personally or sent by
registered or certified mail, postage prepaid:
If to Landlord:
Sandan
c/o Xxx Xxxxx
Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxx Xxxxxx, Esq.
Hermann, Cahn & Xxxxxxxxx
000 Xxxxxxxx Xxxxx
0000 X. 0xx, Xxxxx 000
Xxxxxxxxx, XX 00000
If to Tenant:
SMS Geotrac, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
With a copy to:
Strategic Mortgage Services, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx, Real Estate Department
24.2 Either party may, from time to time, change the address at
which such written notices, exercises of elections, communications, requests or
other documents or demands are to be mailed, by giving the other party written
notice of such changed address.
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25. SHORT FORM OF LEASE.
25.1 The parties hereto agree to execute a short form of this Lease
for recording upon request of either party hereto.
26. BROKERS.
26.1 The Landlord and the Tenant represent and warrant to each other
that no real estate broker or intermediary offered the Leased Premises to the
Tenant on behalf of the Landlord for lease. The Tenant and the Landlord agree to
defend, indemnify and hold each other harmless against any claims for brokerage
commission arising out of any conversations or negotiations had by the Tenant or
the Landlord, as the case may be, with any real estate broker or intermediary
regarding the lease of the Leased Premises from the Landlord to the Tenant.
27. ENTIRE AGREEMENT.
27.1 All understandings and agreements heretofore had between the
parties hereto are merged into this Lease, which alone fully and completely
expresses their understanding, and the same is being entered into after full
investigation, neither party relying upon any statement or representation made
by the other which is not embodied in this Lease.
28. MODIFICATIONS.
28.1 This Lease shall not be modified or amended except by a
written instrument duly executed by the parties hereto.
29. PARTIAL INVALIDITY.
29.1 If any provision of this Lease or the application thereof to
any part or circumstances shall, to any extent, be
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invalid or unenforceable, the remainder of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
30. SUCCESSORS AND ASSIGNS.
30.1 This Lease shall be binding upon and shall inure to the
benefit of the parties hereto, their successors and assigns.
31. SECTION HEADINGS.
31.1 The section headings contained in this Lease are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Lease.
32. GOVERNING LAW.
32.1 The laws of the State of Ohio shall govern the validity,
construction, interpretation and enforcement of this Lease.
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this
instrument as of the day and year first above written.
WITNESSES: SANDAN (LANDLORD)
By: /s/ Xxxxxx X. Xxxxx
-------------------------------- -----------------------------------------
Its Partner
-------------------------------- -----------------------------------------
SMS GEOTRAC, INC. (TENANT)
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- -----------------------------------------
Xxxxxx X. Xxxxxx
Its Secretary
-------------------------------- -----------------------------------------
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CERTIFICATE OF ACKNOWLEDGEMENT
State of California On Sept. 9, 1994 before me, Xxxxxxxx X.
-------------- --------------------------
SS. (date) (name and title of Officer)
County of Orange Kramp, a notary public personally appeared
------------ ---------------------------------,
Xxxxxx X. Xxxxxx
-----------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx X. Xxxxx
---------------------------------------------
Notary's Signature
FLORIDA Xxxxxxxx X. Xxxxx
STATE Comm. #999651
SEAL NOTARY PUBLIC CALIFORNIA
ORANGE COUNTY
Comm. Express July 14, 1997
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for the State and County aforesaid,
personally appeared SANDAN, and Ohio partnership, by Xxx Xxxxx, its partner,
who acknowledged before me that he/she did execute the foregoing instrument and
that the same is the free act and deed of said partnership and is his/her free
act and deed personally and as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at Cleveland,
Ohio, this 2nd day of September, 1994.
/s/ Xxxxx X. Xxxxx
-----------------------------------
Notary Public
XXXXX X. XXXXX
NOTARY PUBLIC, STATE OF OHIO
Recorded In Cuyahoga County
My Comm. Expires May 5, 1999
STATE OF )
--------------)
COUNTY OF ) SS:
-------------)
BEFORE ME, a Notary Public in and for the State of County aforesaid,
personally appeared____________. a Delaware corporation, by____________________,
its ___________________, who acknowledged before me that he/she did execute the
foregoing instrument and that the same is the free act and deed of said
corporation and is his/her free act and deed personally and as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at
__________________, ________________, this ______ day of ________________, 1994.
---------------------------------
Notary Public
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