Contract
Exhibit 10.49
000 XXX XXXX XXXXXXXX
XXXX FACILITY LEASE FOR MIDWEST BANK AND TRUST COMPANY
XXXX FACILITY LEASE FOR MIDWEST BANK AND TRUST COMPANY
000-000 Xxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx
(hereinafter referred to as the “Building”)
Xxxx Xxxxxx, Xxxxxxxx
(hereinafter referred to as the “Building”)
This Indenture is made as of this 27TH day of DECEMBER, 2007 between Xxxxxx Xxxxxx and
Xxxxxxx Xxxxxx, hereinafter referred to as “Landlord”, and Midwest Bank and Trust Company, 000 X.
Xxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000, an Illinois Chartered Banking Association (Attention:
Xx. Xxxxx Xxxxx, Executive Vice President) hereinafter referred to as “Tenant”.
The following Schedule is an integral part of this Lease.
Schedule
1. Description of Premises (“the space”): Approximately Two Thousand (2,000) square
feet of the Building and the adjoining Drive-Up window together with the Remote Unit,
consisting of an additional Two Hundred (200) square feet and designated as 000-000 Xxx
Xxxx. For purposes of this Lease, the “Building” includes an approximately 5,000 square
foot Retail Building structure and an adjoining Drive-Up Window and Remote Unit.
2. Tenant’s use of Premises: Operation of a branch Banking facility and related
activities and for no other use or purpose.
3. Total Base Rent (subject to adjustments set forth in the Additional Provisions section
below): $58,524.24.
4. Monthly installments of Base Rent (subject to adjustments): $4877.02.
5. Tenant’s proportionate share of Rental Adjustments attributable to the “building”: 42.3%.
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6. Commencement date of Lease term: January 1, 2008.
7. Termination date of Lease term: December 31, 2008.
8. Tenant’s address for notice before possession date:
Midwest Bank and Trust Company
Attention: Xx. Xxxxx Xxxxx, Executive Vice President
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
9. Security Deposit: $7,700.00
10. Landlord makes no estimate for annual electricity, common area expenses, or real estate taxes to be charged to Tenant.
11. Broker: NONE.
12. Premises: Landlord, for and in consideration of the rents herein reserved and of the
covenants and agreements herein contained on the part of the Tenant
to be performed, hereby
leases to Tenant, and Tenant hereby lets from Landlord, premises (“Premises”) consisting
of approximately 2,200 square feet of rentable area, including approximately 2,000 square
feet of air conditioned office space together with the Remote Area of approximately 200
square feet, all located at and commonly known as 000-000 Xxx Xxxx, Xxxx Xxxxxx Xxxxxxxx
00000. Tenant accepts the premises “as is” and Landlord is not responsible for any
improvements made to or to be made to tenant’s space leased hereunder.
13. Parking Areas: Tenant, its employees and invitees may use, on a reserved basis, five
(5) parking spaces in parking areas contiguous to Tenant’s space as designated by Landlord.
Except as otherwise reserved, Tenant shall have the right to use all other non-assigned
parking spaces on a non-exclusive basis. Landlord may grant other occupants or tenants of
the Building the right to use other parking spaces on a reserved basis. Landlord shall not
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be obligated to enforce parking limitations imposed on tenants, but shall cooperate with Tenant in
enforcing Tenant’s rights hereunder. Tenant shall use its best efforts to prevent its employees
from parking at spaces contiguous to other tenants’ premises, including the nearby “Cyclery”
building also owned by Landlord.
14. Prohibited Uses: Tenant shall not use or permit the Premises to be used in any
manner which would violate any certificate of occupancy affecting the Premises, cause
injury to the improvements, cause the value or usefulness of the Building or Real Estate or
any part thereof to diminish, constitute a public or private nuisance or waste, or render the
insurance on the Building void or the insurance risk more hazardous or create any defense
to payment, provided, however, that if Tenant’s use of the Premises does make the insurance
risk more hazardous then, without prejudice to any other remedy of Landlord for such
breach, Tenant shall pay to Landlord, on demand, the amount by which Landlord’s insurance
premiums are increased as a result of such use. Tenant shall not use or occupy the Premises
contrary to any statute, rule, order, ordinance, requirement or regulation applicable thereto.
Tenant shall not sell, promote the sale of, repair, service or in any other way deal with
bicycles or cycling equipment or any products related thereto. A violation of this paragraph
shall constitute a default under the Leasing Agreement.
15. Base Rent. Beginning with the Commencement Date, Tenant shall pay a total base
rent of Fifty Eight Thousand Five Hundred Twenty Four and 24/100 Dollars ($58,524.24)
(“Base Rent”) payable in equal monthly installments of Four Thousand Eight Hundred
Seventy Seven Dollars ($4,877.02), in advance on the Commencement Date and on the first
day of each calendar month thereafter of the Term.
Additional Provisions
15.1. Rent Escalation in Lieu of CPI Provision: On each anniversary of the Commencement
Date, if applicable and assuming Tenant exercises its option to extend the initial term of this
Lease, the Base Rent shall increase to an amount equal to One Hundred Three Percent (103%) of the
Base Rent which was payable for the year immediately preceding such anniversary and Tenant shall thereafter (until further increase) pay equal monthly
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installments of the Base Rent as adjusted. Tenant shall pay all monthly installments of Base Rent
to Landlord, in advance, on or before the first day of each and every month during the Term,
without demand and with out any set-off or deduction whatsoever.
15.2. Additional Rent: In addition to paying Base Rent, Tenant shall also pay as
additional rent the following amounts (“Additional Rent”) for each calendar year in which the Term
falls:
(a) Tenants Pro Rata Share (as hereinafter defined) of Taxes (as defined in
Section II.4 of the Leasing Agreement) in excess of zero dollars ($0) (“Base Taxes”), in
accordance with the Section II of the “Leasing Agreement”.
(b) Tenant’s Pro Rata Share of Expenses (as defined in Section 3 of Article II of
the “Leasing Agreement”).
As used in this Lease,
(i) The Expenses referred to in Section 3 of Article II of the Leasing
Agreement are solely attributable to the 5,000 square foot Building plus Drive-Up Window and
Remote Unit Facilities. Tenant’s share shall be Thirty-Eight and 4/10ths percent (38.40%) of all
such Expenses.
(ii) The term “Rentable Area of the Premises” shall mean usable area
in the Premises plus a share of mechanical space, loading docks and other common service areas
including the Two Hundred (200) Square feet allocated by Landlord to the Drive-up Window and
Remote Unit, utilized solely by Tenant, and, if the Premises are less than an entire floor, a
share of public areas (such as corridors, toilets, lobbies and electrical and telephone closets)
on the floor on which the Premises are located. Rentable Area of the Premises shall be deemed to
be Two Thousand Two Hundred (2,200) square feet.
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(iii) The term “Rentable Area of the Building” shall mean the sum of areas on all floors of
the Building (ground floor and above) plus mechanical space, loading docks and other common service
areas including the Two Hundred Square feet allocated by Landlord to the Drive-Up Window and Remote
Unit being built solely at the expense of Tenant. Rentable Area of the Building shall be deemed to
be 5,200 square feet.
15.3. Tenant Contingencies: None.
15.4 Special Provision: Tenant shall tender the first month’s rent and security deposit by Certified Check, Cashier’s Check, Money Order or Bank Wire Transfer.
15.5 Landlord Covenant: Landlord affirmatively covenants that Tenant shall have the right of quiet possession of the Premises so long as Tenant observes the term and provisions set forth in the Lease.
15.6 Tenant Documents: Tenant shall provide Landlord with corporate resolutions authorizing this transaction.
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Leasing Agreement
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises described in
the Schedule, located in the 000 Xxx Xxxx Xxxxxxxx at 000-000 Xxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx, for
the term set forth in the Schedule, unless sooner terminated as provided herein.
In consideration thereof, the parties covenant and agree as follows:
I. Rental.
Tenant shall pay to Landlord at the office of the Building, or at such other place as may be
designated from time to time by notice in writing to Tenant:
A. the total Base Rent set forth in the Schedule in equal monthly installments in the amounts set forth in the Schedule and the Additional Provisions thereof;
B. the Rental Adjustments as provided in Section II below;
C. all other sums payable by Tenant hereunder within ten (10) days after Landlord bills Tenant therefor; and
D. any interest due pursuant to the terms of this Lease at the rate of Five (5%)
percent over the prime commercial lending rate being offered by the Chase Bank of Chicago
from time to time from the due date of each payment until paid.
Each monthly installment will be payable in advance promptly on the first day of each
calendar month during the term of this Lease. If the term begins other than on the 1st day of a
calendar month or if the Term is terminated other than on the last day of a calendar month, a
prorated amount shall be paid for such fractional month. All of the aforesaid sums and interest
shall constitute rent hereunder. However, no interest or penalties will be charged to Tenant, if
Tenant’s obligations under this paragraph are paid within seven (7) days of the due date for any such payment.
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II. Rental Adjustments
The rent payable hereunder shall be increased as set forth in the schedule and the Additional
Provisions thereof, to reflect increases in the cost of operating the Building and in taxes in the
following manner:
A. Definitions.
For purposes of the Rental Adjustments, the following definitions shall apply:
1. “Base year” shall mean the last full calendar year before the commencement date of this Lease.
2. “Adjustment year” shall mean every calendar year being wholly or partly during the term of this Lease, commencing with the calendar year in which this Lease
commences. In the event that the first adjustment year or the last adjustment year is not a
full calendar year during the term of this Lease, then the Rental Adjustments with respect
to such partial year shall be pro-rated for the number of days in the term included within
such partial calendar year.
3. (a) “Cost of operating the Building” shall mean all normal and reasonable costs,
expenses and disbursements of every kind and nature paid or incurred by
Landlord in connection with the ownership, management, operation, maintenance and repair
of the Building, the underlying land and all related personal property, as determined by
standard accounting practices used by Landlord in its buildings in the Chicago metropolitan
area, and shall include by way of illustration and not limitation, heat, water, electricity (to
the extent not otherwise paid by tenants), labor, contracted labor, insurance, materials,
service and professional fees and charges, license, permit and inspection fees, and fees and
costs in connection with the obtaining of reductions in Taxes. It shall not include Taxes as
defined below. Repair and other costs, expenses and disbursements scheduled less often
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than annually may be prorated, at Landlord’s election, over the period to which the same are
applicable.
(b) “Cost of operating the building” should not include costs incurred by Landlord in
connection with the maintenance and repair of the structural portion of the Building, but shall
include costs and expenses incurred in connection with the operation of the parking areas, access
ways and other common areas. Costs of operating the Building should not include capital
improvements, depreciation or amounts attributable to overhead or administrative costs of
Landlord. Landlord should further covenant to operate and maintain the common areas in good order
and repair. If requested by Tenant, Landlord should furnish bills, receipts and other evidence of
the amount of costs of operating the Building prior to Tenant’s payment thereof.
4. “Base Taxes” shall mean all real property taxes in respect to the
Building and underlying land and all ad valorem taxes for Landlord’s personal property used
in connection therewith, payable in the base or adjustment year, as the case may be, and all
special taxes and special assessments, installments of which are required to be paid during
the base or adjustment year, as the case may be. Base Taxes as used herein shall not include
any penalties or interest due thereon, unless said penalties and interest are the result of
activity or responsibility of Tenant. If hereafter there shall be imposed any tax, assessment,
charge or fee payable by Landlord to the State of Illinois, County of Lake, Village of Lake
Zurich, or any other governmental subdivision either on the rents or other income collected
from the Building (not including a general income or franchise tax) or in the event that any
other tax, assessment, charge or fee may be imposed hereafter in lieu of or partially in lieu
of such real property taxes or personal property taxes, then such tax, assessment, charge or
fee shall be included with the term “Taxes” under the provisions of this Lease. Taxes shall
be as initially billed and payable in the base or adjustment year, as the case may be, even
though representing taxes levied for a prior year.
5. “Rental Adjustments” shall mean all the rent described in Section II of
this Lease.
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6. “Tenant’s proportionate share” shall be as set forth in the Schedule and Additional
Provisions thereto. That percentage represents the percentage obtained by dividing the agreed upon
rentable area of the Premises by the agreed upon rentable area of the Building. Tenant agrees to
said percentage and agrees not to dispute any of said areas.
B. Adjustment for Cost of Operating the Building
In the event that the costs of operating the Building for any adjustment year reflect an
increase over such costs for the base year, then Tenant shall pay to Landlord as additional rent
Tenant’s proportionate share of such increase.
C. Tax Adjustment
In the event that the Taxes payable in any adjustment year are more than the Taxes payable
during the base year (the Taxes for the base year on the Building shall be “0” for purposes of
this Leasing Agreement), then Tenant shall pay to Landlord as additional rent Tenant’s
proportionate share of such increase.
D. Estimated Rental Adjustment
Before January first of each adjustment year or as soon thereafter as Landlord is able to do
so, Landlord shall notify Tenant of the expected cost of operating the Building and Taxes for the
adjustment year, together with Landlord’s estimate of the increase in the cost of operating the
Building and Taxes for such adjustment year. Tenant thereafter shall pay as additional rent the
estimated and projected amounts of the Rental Adjustments for such adjustment year, in
installments calculated and payable in the following manner. Every month, at the same time and
place that installments of Base Rent are to be paid, Tenant shall pay an amount equal to
one-twelfth (1/12) of Tenant’s proportionate share of any estimated increase in the cost of
operating the Building and Taxes for such adjustment year over the base year and one-twelfth
(1/12) of the amount of the Rental Adjustment projected by the Landlord. Tenant shall have the
option of making semi-annual payment of
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the real estate tax assessment, if Landlord’s obligations to make real estate tax deposits under
its mortgage are semi-annual or greater. This payment provision shall xxxxx if Landlord’s real
estate tax deposit requirements are more frequent than semi-annual. If Tenant is notified of any
such estimate or projection after January 1st of any adjustment year or if, at anytime during any
adjustment year, Landlord notifies Tenant that it had determined that the cost of operating the
Building and Taxes for such adjustment year will be more or less than previously estimated or
projected, upon submission to Tenant of an adjusted estimate or projection or the determined
amount, the monthly installments of additional rent to be paid during such adjustment year for
increases in the cost of operating the Building and Taxes shall be adjusted upward or downward, as
the case may be, and such adjustment shall be made retroactive to the beginning of the then current
adjustment year. In this latter regard, Tenant shall pay to Landlord any amount necessary to
reflect any such increase for the current and past months, or Landlord shall pay to Tenant or
credit against the next monthly installment(s) of additional rent any amount necessary to reflect
such decrease for the current and past months. Whenever the term “Rental Adjustments” or a similar
term is used in this Lease, it shall include the estimated Rental Adjustments and additional rent
payments provided for in this Section.
E. Billing and Final Payment
Landlord will keep, or cause to be kept, books and records showing the costs of operating the
Building and Taxes for the base year and each adjustment year in accordance with the system of
accounts and accounting practices consistently begin maintained by Landlord for his other
buildings in Illinois. As soon as available after January 1st of each adjustment year, Landlord
shall submit to Tenant a computation of the additional rents, if any, due for Rental Adjustments
for the preceding adjustment year. Within thirty (30) days after the receipt of such statement,
Tenant shall pay to landlord the entire balance of all Rental Adjustments due for such adjustment
year due to increases in the costs of operating the Building and Taxes not paid, if any; and, if
Tenant had paid more than the actual amounts shown on said statement to be due for Rental
Adjustments for such adjustment year, Landlord shall pay to Tenant or credit against the next
installment of additional rent becoming due hereunder the amount of the overpayment. The
additional rent payable each
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month during the then current adjustment year shall be adjusted retroactively to reflect such
adjustments. In no event shall any of the adjustments herein result in a decrease in the Base
Rent. Tenant shall have the right to review all invoices, bills and receipts relating to rent
adjustments as described in this lease.
III. Security Deposit
As additional security for the full and timely payment of all rent and other sums and
performance of all other obligations required to be paid or performed by Tenant hereunder, Tenant
has paid a security deposit in the amount set forth in the Schedule. The Security Deposit may (but
need not) be applied by Landlord toward the curing of any default(s) of Tenant and shall not bear
interest. Tenant on demand shall replenish any portion of the security deposit applied by Landlord.
If Tenant is not in default hereunder, Landlord shall refund the unapplied balance of the security
deposit within thirty (30) day after expiration of the Lease term.
IV. Services
A. Heating
and Air-Conditioning. Landlord shall operate the Building’s heating
system serving the Premises daily from 8:00 a.m. to 5:30 p.m. (Saturdays to 3:00 p.m.), Sundays
and holidays excepted, as may be required, in Landlord’s judgment, to provide a temperature
condition for reasonably comfortable occupancy of the Premises by Tenant under normal business
operations and in the absence of use of heat generating machinery or equipment in the Premise.
Since Tenant is paying for the costs of all heating and air conditioning affecting its space,
Tenant shall have the right to adjust the hours of usage to meet its needs. Tenant shall pay the
cost of any heating and air its needs. Tenant shall pay the cost of any heating and air
conditioning systems specifically designed to service Tenant’s rentable space and computer needs.
Except for such units currently in the Premises, Tenant shall be responsible for the purchase,
installation, maintenance, and upkeep of the electrical and air conditioning systems for Tenant’s
rentable area of the Premises.
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B. Water. Landlord shall cause to be furnished cold water from Village of Lake
Zurich mains for drinking, lavatory and toilet purposes drawn through fixtures installed by
Landlord or by Tenant with Landlord’s prior written consent. Tenant shall pay for all water
furnished to or for the Premises, including water used for air-conditioning.
C. Janitor
Services; Cleanliness of Premises. Tenant, at its own expenses, shall
provide janitor and cleaning service in and about the Premises, so as to keep the Premises
in a clean, sightly, sanitary and safe condition. Tenant shall remove at reasonable times all
garbage and other waste material from the Premises, shall keep the Premises in good order
and repair, and shall prevent any unsanitary conditions from taking place on the Premises.
Tenant shall place and store such garbage and waste material in sealed, sanitary containers
within the Premises pending removal; and in no event shall Tenant place or store garbage
or waste material on the sidewalk or street outside the Building. Tenant shall enter into a
written contract with a reputable, professional, pest control contractor acceptable to
Landlord, providing for reasonable pest control services. Tenant shall keep all ducts, pipes
and traps free from accumulations of dirt and grease; and Tenant shall enter into written
maintenance contracts with reputable, professional contractors acceptable to Landlord for
such purposes, providing (among other things) for thorough duct
cleaning at least semi-annually. All contracts to be entered into under this paragraph shall be on terms and
conditions acceptable to Landlord for purposes of maintaining the highest standards of
cleanliness, sightliness and sanitation. Each contract shall require prior written notice to
Landlord before modification or termination; and a copy of each contract shall be delivered
to Landlord prior to Tenant’s taking possession of the Premises (and upon execution in the
case of any renewal or substitution). Landlord may inspect the Premises at reasonable
times, either by itself or by its agent or designee, for the purpose of enforcement and
compliance with the provisions of the Lease and this subparagraph. If in Landlord’s
judgment, any of the services or obligations required hereby are not being satisfactorily
provided or performed, Landlord, in addition to all other available remedies, may terminate
this Lease or Tenant’s right to possession hereunder if such default is not cured within ten
(10) days after notice to Tenant, and Landlord shall have the right to do whatever is
necessary to see to it that compliance is obtained and to charge Tenant for any and all
expenses incurred in so doing. Such charges shall be in the form of additional rent.
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D. Electricity. Tenant accepts the electric wiring system in the Premises for
standard lighting fixtures “as is”. If Tenant requires electrical usage that, in the
Landlord’s judgment, may affect electrical service to other portions of the Building or cause damage
or unusual wear or tear to the existing system and equipment, Tenant shall arrange for and
install such additional conduit, wiring and equipment in accordance with the other
provisions of this Lease as shall be necessary and proper, all at Tenant’s sole expense.
Landlord will furnish all electric energy consumed in the Premises, including that for
heating, air conditioning and ventilation, during the term of this Lease. If electrical usage in
the Premises is not separately metered, Tenant shall pay Landlord, as additional rent in equal
monthly installments of Base Rent, an annual amount as determined by Landlord from time to time as
the amount which Tenant would pay for such electric energy if the same were separately metered to
the Premises by the local electric utility company and billed to Tenant at such utility company’s
current rates. If the electrical usage in the Premises is separately metered, Tenant shall pay all
sums billed per the meter(s). Tenant also shall pay Landlord, as additional rent, an annual amount
as determined by Landlord from time to time as Tenant’s prorated share of the amount payable for
electric energy used in the public areas and parking lot on which the Premises are located.
E. Failure to Pay for Services. If Tenant fails to pay promptly any sum required
to be paid by Tenant under this Section IV, Landlord, upon not less than ten days’ prior
notice, may discontinue furnishing the relevant services; and no such discontinuance shall
be deemed an eviction or disturbance of Tenant’s possession or use of the Premises, or give
rise to any defense or set off, or render Landlord liable for damages, or relieve Tenant from
any obligation.
F. Interruption of Services. Except for conditions within Landlord’s control and
undisclosed defects in construction, Landlord does not warrant that any service will be free
from interruption caused in whole or in part by maintenance, repairs,
renewals, replacements, improvements, changes of service, alterations, strikes, lockouts,
labor controversies, material shortages, accidents, inability to obtain fuel or supplies, weather
conditions, or other cause beyond the reasonable control of Landlord, or that the quantity
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or quality of any service will not be diminished as a result in whole or in party of any such
cause. No such interruption or diminution shall be deemed an eviction or disturbance of Tenant’s
use or possession of the Premises, or give rise to any defense or set-off, or render Landlord
liable for damages, or relieve Tenant from any obligation. However, Landlord will maintain and
repair HVACs, electric and plumbing systems, except that Landlord shall have no responsibility for
any damage caused by the neglect or misuse by tenant. Tenant will waive claims against Landlord for
interruption or stoppage of utility services to the extent that such interruption or stoppage is
not caused by the neglect or misconduct of Landlord or Landlord’s agents or contractors.
G. Installation of Facilities. Landlord shall not be required to install any special
facilities for Tenant, Tenant has inspected the Premises, and Tenant accepts the Premises “as is”.
V. Use of Premises
A. Purpose. Tenant shall use and occupy the Premises only for its construction and
contracting business and for no other use. All fixtures, equipment, appliances, furniture,
furnishings, floor, ceiling, window and wall coverings, and other items installed or acquired by
Tenant shall be consistent with Tenant’s permitted use of the space.
Tenant may keep its business open during normal hours, Monday through Saturday. However, if
security becomes a problem at either Tenant’s regular space in the Building or in conjunction with
night time or weekend hours, Landlord may require Tenant to provide a security or guard service to
maintain the general security of Tenant’s business and rentable space. It is understood that guard
service and security arrangements, as may be necessary to protect customers using Tenant’s
facilities, and other individuals on Landlord’s property, is sole responsibility of Tenant and,
except for injuries and damage arising out of acts or omissions of Landlord, their agents,
contractors or employees, Tenant indemnifies and holds harmless Landlord for any and all personal
injuries and property damage that occur in conjunction with the operation of Tenant’s business.
Said indemnification and hold harmless shall include any attorneys’ fees, court costs, expenses,
and other costs incurred by Landlord with respect thereto.
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B. Removal of Property. Tenant shall deliver to Landlord a list of all furniture,
equipment and other articles before removing such articles, shall obtain a removal permit
from the Landlord. Landlord’s consent shall not be unreasonably withheld, but may be
exercised, for example, to prevent a day time move that may disrupt other tenants.
C. Doors to be Locked. Before leaving the Premises unattended, Tenant shall
close and securely lock all doors to the Premises and other areas used by Tenant and shall
shut off all utilities controlled from within the Premises. All damages resulting from
failure to do so shall be paid by Tenant.
D. Laws and Regulations. Tenant shall obtain and maintain in full force and
effect all necessary permits and licenses for the operation of its business on the Premises
and shall comply with all statutes, ordinances, orders, rules and regulations of any
governmental authority with respect to the Premises and the use or occupancy thereof.
E. Signs. Tenant shall not paint, display, inscribe or affix any sign, picture,
advertisement, notice, lettering or direction on any part of the outside or inside of the
Building, or which is visible from outside the Premises, except with the prior written
consent of Landlord, and then only of such color, size style character and material as first
is approved in writing by Landlord in its sole and absolute discretion. Landlord reserves
the right to remove any items not complying with the compensation to Tenant, and Tenant
shall reimburse Landlord for all expenses incurred in connection therewith. With respect
to signs permitted by the Village of Lake Zurich to be placed at or near Ela Road, Landlord
at Tenant’s sole expense, will attempt to obtain additional on said sign, subject to
Landlord’s prior approval of the content, design, construction and layout thereof. Landlord
and tenant agree to use Northshore Sign Company located at 0000 Xxxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000 for the preparation of all signs installed pursuant to the terms
hereof or with such other mutually agreed sign company. Landlord reserves the right to
charge separately for any signs placed at or near Ela Road on “The Cyclery” property.
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F. Advertising. Tenant shall not advertise the business, profession or activities
of Tenant in any manner which violates the letter or spirit of any code of ethics adopted by
any recognized association or organization pertaining thereto, or use the name of the
Building for any purpose other than as the business address of Tenant, or use any picture or
likeness of the Building or the name “Schwinn”, “GT”, “Trek”, “Xxxxx”, “Specialized”,
“XxXxxx”, “Bow Flex”, “Pearl Izumi”, “Xxxxxx Xxxxxx” or “Cyclery” or any combination
thereof in any letterhead, envelope, circular, notice, advertisement, container, or wrapping
material, without Landlord’s prior written consent.
G. Sale of Articles. Tenant shall not exhibit, sell, exchange, use, rent or offer for
sale, exchange, use or rent in the Premises or Building any article, thing or service except
those ordinarily embraced within the use of the Premises specified in the Schedule, without
the prior written consent of Landlord.
H. Unlawful Use. Tenant shall not make or permit any use of the Premises, or commit
or permit to be committed any act therein or elsewhere in the Building, which, directly or
indirectly, is forbidden by law, ordinance or governmental rule, regulation or order, or which may
be dangerous to person or property.
I. Hazardous Materials. Tenant shall not bring, use or permit to be brought or
used in the Premises or the Building any environmentally unsafe or toxic materials, flammable or
explosive material or any other article deemed in Landlord’s sole and absolute discretion to be
hazardous to person or property. Tenant shall not do or permit to be done any act or thing in or
upon the Premises or the Building, or bring, use or permit to be brought or used anything therein,
which may invalidate, be in conflict with or increase the rates for any fire or other insurance
policies covering the Building or its operations or the Premises, or any part of either, or which
does not comply with all rules, regulations, orders and requirements of the insurance carriers,
the fire Department, Board of Fire Underwriters and any similar organizations. If, by reason of
Tenant’s failure to comply with the provisions of this subsection, any insurance premium at any
time shall be increased above what it otherwise would be, Tenant shall reimburse Landlord for all
such increases.
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J. Various Prohibited Uses. Tenant shall not, without the prior written consent of
Landlord to be exercised in the sole and absolute discretion of Landlord (or other than in strict
accordance with such conditions as Landlord may impose):
1. install or operate any heating, or air-conditioning apparatus or carry on any mechanical operations; or
2. use the Premises for housing, lodging or sleeping purposes.
K. Sound Devices. Tenant shall not, except as otherwise stated in this Lease:
1. place any radio or television antenna on the roof or on or in any part of the inside or outside of the Building other than the inside of the premises.
2. operate or permit to be operated any musical or sound producing instrument or device which may be heard outside the Premises; or
3. operate any electrical device from which may emanate electrical waves
which may interfere with or impair radio or television broadcasting or reception from or in
the Building or elsewhere.
L. Nuisances. Tenant shall not, except as otherwise stated in this Lease or with the
express written consent of Landlord:
1. bring or permit to be brought into the Building any motorized vehicle
or bike or dog (except in the company of a blind or handicapped person requiring the
assistance of such an animal), other animal or bird;
2. make or permit any objectionable noise or odor to emanate from the Premises;
3. do or permit anything in the Premises or Building which may create or
maintain a nuisance or public disturbances; or
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4. disturb, solicit or canvass any occupant of the Building.
M. Cleanliness and Obstruction of Public Areas. Tenant shall not:
1. place anything or allow anything to be placed in the Premises which
may be unsightly from outside the Premises;
2. take or permit to betaken in or out of any other entrance of the Building
any item normally taken in or out through the shipping or loading dock or service doors; or
3. temporarily, accidentally, or otherwise, obstruct or place, store or allow
anything in any passage way, exit, stairway, elevator, shipping platform, or shipping or
loading dock. Tenant shall keep such areas free from all obstruction and in a clean and
lightly condition and shall move all supplies, furniture and equipment as soon as received
directly to the Premises and shall move all items and trash (other than trash customarily
removed by Building employees) being taken from the Premises directly to the trash refuse
area of the Premises at or about the time arranged for removal therefrom.
N. Locks, Due to the nature of Tenant’s business, it is understood that Tenant must
keep the Tenant’s rentable space secure and Landlord will not have unlimited access. Therefore,
for emergency purposes, Tenant shall make available a person or persons that have twenty-four (24)
hour access to Tenant’s space. The names, addresses and phone numbers, of all such persons shall
be supplied to Landlord in writing on a timely basis and updated each March 31, June 30, September
31, and December 31 after the original designations thereof.
O. Weight Limits. Tenant shall not overload any floor or place any heavy equipment,
appliance, furniture or fixtures in the Premises contrary to any instruction from or requirements
of Landlord with respect to location for weight distribution purposes.
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P. Defacing Premises. Tenant shall not:
1. xxxx, cut or drill into or drive nails or screws into any part of the Premises or Building, outside or inside, without the prior written consent of Landlord; or
2. commit or allow any waste, defacing, damage or destruction to or of the Building or any part thereof.
Q. Alarm. If Tenant desires any signal, communications, alarm, computer or other
utility or service connections installed or changed in the Premises, the same shall be installed
or changed at the expense of Tenant, but only with the prior written approval and under the
direction of Landlord. Landlord waives any objection to the existing alarm system in the Premises.
R. Window and Door Coverings. Tenant, at its own expense, may install drapes, blinds
and other window and door coverings, provided that the same are in conformity with the other
provisions of this Lease, in harmony with the exterior and interior appearance of the Building and
pose no safety or fire hazard, as determined in the sole and absolute judgment of Landlord. All
such coverings shall be maintained by Tenant in good order, condition and repair.
VI. Alterations.
A. Tenant should have the right, without Landlord’s consent, to make non-structural
changes to the interior architectural treatments of the premises, provided that such
changes shall not diminish the value of the Building or create liens.
B. Tenant shall not make any installations, alterations, additions, or improvements, in
or to the Premises without first submitting detailed plans and specifications to Landlord
and securing Landlord’s prior written consent, which consent shall not be unreasonably withheld.
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VII. Rights Reserved to Landlord.
Landlord shall have the following rights, exercisable without notice or payment of further
consideration and without liability to Tenant for damages or injury to property, persona or
business (all claims for damage or injury being hereby waived and released), and without effecting
any eviction or disturbance of Tenant’s use or possession of the Premises or giving rise to any
defense or set-off:
A. To change the name or street address of the Building.
B. To install and maintain signs on the exterior and interior of the Building, subject to the terms of Section V, subparagraph E above.
C. To designate all sources furnishing sign painting and lettering, ice, mineral,
and drinking water, beverages, foods, towels, vending machines and toilet supplies used or
consumed on the Premises.
D. To grant to anyone the exclusive right to conduct any business or render any
service in the Building, provided such exclusive right shall not operate to exclude Tenant
from the use expressly permitted in the Schedule.
E. To decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy, if Tenant vacates or abandons the Premises, subject to Tenant’s obligation to
restore and repair as set forth in Section IX of this Lease.
F. To enter the Premises, upon reasonable prior notice to Tenant except in the
event of emergencies, for purposes of making inspections, repairs, replacements, alterations,
additions and improvements in or to the Premises or the Building, exhibiting the Premises
to prospective tenants, purchasers, mortgagees or others, and performing any acts related
to the maintenance, safety, protection, preservation, reletting, sale or improvement of the
Premises or the Building, in each case at all reasonable hours and at any time during an
emergency.
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G. To have access to all mail chutes, if any, according to the rules of the United States Post
Office.
H. To require all persons entering or leaving the Building during such hours as Landlord from
time to time reasonably may determine to identify themselves to a watchman by registration or
otherwise and establish their right to enter or leave, and to exclude or expel any peddler,
solicitor or beggar at any time from the Premises or the Building, and to regulate the delivery and
servicing of furniture, equipment, supplies and other items.
I. To close the Building at or before 10:00 p.m. on weekdays or before 6:00 p.m. on Saturdays
and on Sundays and legal holidays, subject, however, to Tenant’s rights to admittance under such
other reasonable rules and regulations as may be prescribed from time to time by Landlord. Said
provisions shall not apply to emergency medical care being provided by Tenant.
J. To approve the weight, size and location of safes and other heavy machinery, equipment,
appliances, and articles in and about the Premises and Building, and to require all such items to
be moved in, out of and about the Building and Premises only at such times and in such manner as
Landlord shall direct and in all events at Tenant’s sole risk and responsibility.
K. At any time, to decorate, perform maintenance, and make repairs, replacements,
alterations, additions and improvements—structural or otherwise—in or to the Premises, the
Building, or any part thereof; and during such operations, to take into and through the Premises
and Building all materials and equipment and close or temporarily suspend operation of entrances,
doors, corridors, elevators, and other facilities and services. Landlord may do any such work
during ordinary business hours; and if Landlord agrees to perform such work during other hours at
Tenant’s request, Tenant shall pay Landlord for all overtime and other additional expenses
incurred by Landlord as a result thereof.
L To do or permit to be done any other work in or about the Premises or the Building or any
adjacent or nearby building land, street or alley.
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VIII. Improvements, Condition and Repair of Premises.
A. Tenant’s acceptance of possession shall constitute Tenant’s agreement that
Tenant thoroughly has examined the Premises, that Tenant is satisfied in all respects with
the physical condition of the Premises, as well as the amount of space contained therein, and
that Tenant is taking the Premises is their then existing condition “as is”. No representation
or warranty has been made by Landlord or Landlord’s agent as to the operation, condition
or repair of the Premises; and there has been no agreement by Landlord to redecorate, alter,
repair or improve the Premises either before or after the execution of this Lease, other than
as set forth herein. Tenant has made an independent inspection of the space and has not
relied on any inspection or representations made by Landlord. Tenant has made his own the
computation of the interior square foot of the space approximated by Landlord as to the
amount of space contained in the Premises and is not relying on Landlord’s computation.
B. Tenant, at Tenant’s expense, shall provide, install and construct within the
Premises (in accordance with the other provisions of this Lease) the fixtures, special air
conditioning, other equipment, appliances, decorations and tenant improvements (“tenant
improvements”). Tenant shall provide Landlord on or before commencement of the Lease
term with proof that Tenant has purchased and owns all of said Tenant improvements, free
and clear of all security interests, liens and encumbrances, except those approved in writing
by Landlord. If, however, Tenant and Landlord agree that Landlord will purchase and install
any of the Tenant improvements referred to above, Landlord may require Tenant to pay for
the same in advance, based on Landlord’s good faith estimate of the cost and subject to
adjustment when actual costs are determined. Such costs shall include fifteen percent for
Landlord’s administrative and overhead expenses, if Landlord is required to supervise said
construction.
C. (1) Landlord will maintain the structural portions of the Premises, including
roofs, floors and exterior treatments, in good order, and will make necessary repairs and
replacements thereto. Repairs should be conducted in such a manner as will minimize
interference with Tenant’s business at the Premises.
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(2) Except as noted in subparagraph C. (1) above and during the term of this Lease, Tenant
shall maintain the Premises in excellent order, condition and repair, and in compliance with the
requirements of all insurers and governmental authorities having jurisdiction, including making
all necessary repairs, replacements and improvements and providing all necessary repairs,
replacements and improvements and providing all necessary maintenance, in and about the Premises,
at Tenant’s sole expense. If Tenant fails to do so, Landlord may, but need not, provide any
maintenance, repairs, replacements, and improvements; and Tenant shall pay Landlord on demand for
all costs incurred by Landlord in connection therewith, plus 15% for Landlord’s overhead and
administrative expenses. Tenant’s obligations hereunder extend to all exterior and corridor glass;
and Tenant shall enter into a written agreement with a reputable glass cleaning contractor to
clean all such glass on such a basis and in such manner as is acceptable to Landlord. Such
contractor shall have such insurance coverage as Landlord may require. Tenant’s obligations also
include maintaining all plants and vegetation in good shape and health and replacing them as
necessary.
D. As often as may be deemed necessary and at least once every seven years, Tenant shall
re-paint the Premises, install new floor, wall and window coverings, and generally remodel the
Premises so as to maintain the standards required of Tenant under this Lease.
IX. Surrender of Premises.
Upon termination of this Lease by lapse of time or otherwise or upon termination of Tenant’s
right to possession:
A. Tenant shall surrender all keys to the Premises to Landlord and shall make
known to Landlord the explanations of all combination and other locks remaining on the
Premises.
B. Tenant shall return the Premises and all property, equipment and fixtures of
Landlord in excellent order, condition and repair, subject to the provisions of subparagraph
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C of this Section IX and ordinary wear; and if Tenant fails to do so, Landlord may place the same
in such order, condition and repair and Tenant shall pay Landlord the cost thereof, plus 15% for
Landlord’s overhead and administrative expenses.
C. All decorations, furnishings, installations, additions, hardware, non-trade
fixtures and equipment, and improvements, temporary or permanent, located in or upon the
Premises, where placed there by Tenant or Landlord, shall be Landlord’s property and shall
remain upon the Premises, without compensation, allowance or credit to Tenant; provided,
however, that if prior to such termination or within ten (10) days thereafter Landlord so
directs, Tenant promptly shall remove the furnishings, decorations, installations, additions,
hardware, non-trade fixtures and equipment, and improvements which were placed in the
Premises by Tenant and are designated in the notice, and Tenant shall cap all utility outlets
and restore all surfaces to a smooth uniform condition, and otherwise remove, restore and
repair the Premises to its original condition. If Tenant fails to do so, Landlord may remove
and restore the same and Tenant shall pay Landlord the cost thereof.
D. All of Tenant’s trade fixtures, equipment and personal property not removed
from the Premises prior to such termination shall be conclusively presumed to have been
abandoned by Tenant, and title thereto shall pass to Landlord under this Lease as a Xxxx of
Sale therefor.
X. Assignment and Subletting; Sale of Business
A. Tenant shall not assign, mortgage or otherwise transfer or encumber this Lease or any
interest hereunder, or sublet all or any part of the Premises, or permit all or any part of the
Premises to be used by others, without the prior written consent of Landlord to be exercised in
its sole and absolute discretion in each instance. No assignment, subletting or other transfer
shall relieve Tenant of any obligation or liability hereunder, unless otherwise agreed in writing
by Landlord. If Tenant requests an assignment or subleasing other than to a wholly-owned
subsidiary of Tenant or to a company into which Tenant may be merged or consolidated, Landlord
shall have the right, to be exercised in its sole and exclusive discretion, to cancel this Lease
for the Premises or the portion thereof to be assigned or
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sublet, without thereby relieving Tenant from its obligations or liabilities accruing prior
thereto. If without Landlord’s prior written consent this Lease is assigned or the Premises are
sublet or occupied by anyone other than Tenant, Landlord may accept and retain the rent from such
assignee, subtenant or occupant, without being deemed to have accepted or consented to such
purported assignment, subletting or occupancy; and no such assignment, subletting, occupancy or
acceptance of rent shall be deemed a waiver of this covenant. Consent by Landlord to an assignment
or subletting shall not relieve Tenant from the obligation to obtain Landlord’s written consent to
any further assignment or subletting. Consent by Landlord to an assignment or subletting shall not
constitute consent to the continuance, assignment or transfer of any right of first offer, right of
first refusal, option to renew or extend, option to lease other space, or any other similar right
or option; and any such rights and options shall be personal to Tenant, shall terminate upon any
assignment or subletting and shall not be assignable or transferable, unless and except as
otherwise expressly provided in Landlord’s written consent to each respective assignment or
subletting. Any rent or other consideration payable to or received by Tenant in the form of money
or otherwise as a result of an assignment or sublease which is in excess of the rent payable under
the provisions of Sections I and II of this Lease shall be due and payable to landlord as
additional rent hereunder, except as Landlord otherwise may specifically agree in writing.
B. Regardless of the language of subparagraph X(A) above, Tenant shall, without Landlord’s
consent, have the right to transfer the Lease to a subsidiary or other affiliate or to sell its
assets or capital stock; provided that no such transfer shall be deemed to release Tenant from its
obligations under the Lease, and Tenant shall remain primarily liable thereunder following any
such transfer.
XI. Waiver of Certain Claims; Insurance.
A. To the fullest extent allowed by law, Tenant waives and releases and agrees to indemnify,
defend and hold harmless Landlord, its directors, officers, agents and employees, against and from
all claims, actions, judgments, liabilities, cost, expenses and fees which might be asserted
against or incurred by Landlord, its directors officers,
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employees, or agents, for or in connection with any injuries to or deaths of any persons and any
losses of and damages to property sustained by Tenant, its visitors, customers, agents and
employees, any other tenant or occupant of the Premises or the Building, or any other person,
occurring in or about the Building or the Premises, resulting directly or indirectly from:
1. any existing or future condition, defect, matter or thing in or about the Premises,
the Building or any part thereof resulting from or in connection with Tenant’s operation;
2. the Building, the Premises or any part thereof becoming out of repair, malfunctioning, breaking, bursting, erupting or exploding;
3. any accident or occurrence within the Premises;
4. the sale or service of alcoholic beverages at or from the Premises; or
5. any act or omission of Tenant, its agents, employees, customers or invitees.
B. To the fullest extent allowed by law, Landlord waives and releases and agrees to
indemnify, defend and hold harmless Tenant, its directors, officers, agents and employees, against
and from all claims, actions, judgments, liabilities, cost, expenses and fees which might be
asserted against or incurred by Landlord, its directors, officers, employees or agents, for or in
connection with any injuries to or deaths of any persons and any losses of and damages to property
sustained by Tenant, its visitors, customers, agents and employees, any other tenant or occupant
of the Premises or the Building, or any other person, occurring in or about the Building or the
Premises, resulting directly or indirectly from:
1. any existing or future condition, defect matter or thing in or about the Premises, the
Building or any part thereof resulting from or in connection with Landlord’s operation;
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2. the Building, the Premises or any part thereof becoming out of repair, malfunctioning, breaking, bursting, erupting or exploding;
3. any accident or occurrence within the Landlord’s “cyclery”; or
4. any act or omission of Landlord, its agents, employees, customers or invitees.
C. Tenant at all times shall maintain fire and extended coverage insurance insuring its
interest in all furniture, fixtures, equipment, supplies and other personal property located in
the Premises or elsewhere in the Building and all tenant improvements to the Premises, for the
full insurable replacement cost thereof, plus business interruption insurance. Without limiting
any other agreement or obligation of Tenant hereunder, Tenant shall waive and release all claims,
rights and causes of action against Landlord, its directors, officers, employees and insurance
maintained or required to be maintained by Tenant; and all proceeds payable under such policies
for damage to the property or tenant improvement of Tenant shall be paid in trust jointly to
Landlord and Tenant and be used to repair or replace the damaged property and improvements, unless
this Lease is terminated as provided elsewhere hereunder. Tenant also at all times shall maintain
comprehensive general liability and property damage insurance through financially responsible
insurance companies satisfactory to Landlord, insuring Landlord and Tenant with respect to the
Premises and all adjacent ways, containing a contractual liability endorsement, in amounts of less
than Five Million Dollars ($5,000,000) in the event of injury or death of any person, and One
Million Dollars ($1,000,000) in the event of property damage. Tenant may have self insurance with
respect to plate glass insurance. All such insurance policies shall require at least twenty (20)
days prior written notice to Landlord before termination or modification; and current certificates
of such insurance showing Landlord as named insured shall be maintained and delivered to Landlord.
If any damage to the Premises, the Building or the tenants thereof is caused by any act or
omission of Tenant, its agents, employees, customers or invitees, Landlord, at Landlord’s option,
may repair or otherwise remedy such damage; and Tenant shall reimburse
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Landlord for all costs thereof in excess of the amounts, if any, paid to Landlord under insurance
policies covering such damages. Pending final settlement of any insurance claims covering such
damages, Tenant shall reimburse Landlord in full for such costs; and Tenant shall be refunded the
amount of any insurance proceeds paid for such damages when received by Landlord. All property in
the Building or in the Premises belonging to Tenant, its agents, employees, customers, or invitees,
or belonging to any other occupant of the Premises, shall be there at the sole risk of Tenant or
such other person; and Landlord shall not be liable for any damage thereto or any theft,
misappropriation or loss thereof.
XII. Fire and Casualty.
If the Building or the Premises is damaged and made substantially untenantable by fire or
other casualty, and Landlord shall determine not to restore the same or not to require Tenant to
restore the Premises if Tenant causes the fire or other casualty, Landlord may, by notice to
Tenant given within one hundred twenty (120) days after such damage, terminate this Lease. Such
termination shall become effective as of the date of such damage if the Premises are so damaged,
otherwise as of the date one hundred twenty (120) days following the service of such notice of
termination. Unless the Lease is terminated as herein above provided, if the Premises are damaged
by fire or other casualty, not caused in whole or in part by Tenant, Landlord shall restore the
same substantially to their prior condition, or to a similar condition of substantially equal or
better utility, at Landlord’s expense, with reasonable promptness. Unless the Lease is terminated
as hereinabove provided, if 50% or more of the Premises are made untenantable, (other than as a
result of fire or casualty caused in whole or in part by Tenant) and if Landlord fails, within one
hundred twenty (120) days after Landlord is enabled to take possession of the Premises, to
substantially restore the Premises Tenant may terminate this Lease as of the end of said one
hundred twenty (120) day period by giving written notice to Landlord not later than thirty (30)
days after the expiration of said one hundred twenty (120) day period. During any such period,
Landlord will permit Tenant, at no cost to Landlord, to maintain temporary banking quarters about
the Premises during any period of rebuilding. Said temporary quarters shall in no way interfere
with any construction and repair work and shall not interfere with the operation of the “Cyclery”
east of the Tenant’s space.
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If the Premises are damaged or destroyed by fire or other casualty caused in whole or in part
by Tenant, and if Landlord does not elect to terminate this Lease as aforesaid, this Lease shall
remain in full force and effect and Tenant’s obligations to pay rent and all other sums hereunder
shall continue unabated. In such event, Tenant promptly and diligently shall restore the Premises
(in accordance with the other provisions of this Lease, including, but not limited to, the Section
on “Alterations”); or, at Landlord’s election, Landlord may restore the Premises, and Tenant shall
pay all costs incurred in connection therewith, including fifteen percent (15%) of the total
restoration cost for Landlord’s administrative expense.
In the event of termination of this Lease pursuant to this Section XII, rent shall be
prorated on a per diem basis and shall be paid to the date of the fire or other casualty, unless a
portion of the Premises shall be tenantable and reasonably accessible, in which case rent shall be
prorated on a per diem basis and shall be payable to the date of termination. If this Lease is not
terminated in the event of a fire or other casualty but the Premises are rendered wholly
untenantable or are not reasonably accessible, rent shall xxxxx on a per diem basis from the date
of the fire or other casualty until the Premises are ready for occupancy and reasonably accessible
to Tenant. If part of the Premises are rendered untenantable, rent shall be prorated on a square
footage basis in accordance with the part of the Premises which is usable by Tenant (as measured
by Landlord) until termination or the damaged part is ready for Tenant’s occupancy as the case may
be. In all cases, due allowance shall be made for delays caused by adjustment of the insurance
claim, strikes, labor difficulties, material shortages, weather conditions, and any other causes
beyond Landlord’s reasonable control; and in no case shall Landlord be liable to Tenant, shall
Tenant be entitled to terminate this Lease or shall Tenant be relieved of any obligation (other
than as expressly provided above) by virtue of any delay in completing repairs and restoration.
Notwithstanding anything to the contrary herein set forth, there shall be no rent abatement or
proration if the loss or damage is due to the fault, neglect or violation of any provision of this
Lease by Tenant or its employees, agents, contractors, customers or invitees; and in no event
shall Landlord be required to repair or restore any decorating, installations, alterations,
additions or improvements in or to the Premises which were not provided initially by Landlord at
its cost.
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Landlord covenants to maintain adequate casualty insurance covering the Building, with
replacement cost endorsement. Tenant should have the right to self-insure with respect to plate
glass replacement.
XIII. Rights and Remedies of Landlord.
A. If Tenant is adjudged bankrupt or is declared to be insolvent in any court
proceeding, if a receiver or trustee is appointed for Tenant or its property, if proceedings
are commenced to wind up or liquidate Tenant’s business or affairs, if a petition is filed by
or against Tenant seeking relief under any chapter of the bankruptcy laws (and in the case
of a petition against Tenant, if such petition is not dismissed within thirty (30) days after
filing), or if Tenant makes an assignment for the benefit of creditors, then in any such event,
Landlord, if Landlord so elects, may terminate this Lease without notice, entry or any other
action; and upon such termination, Landlord shall be entitled to recover damages as herein
and by law provided.
B. If Tenant defaults in the prompt payment of rent and such default continues
for five or more days after the payment first becomes due, if Tenant defaults in the prompt
and full performance of any other obligation or the prompt and full observance of any other
provision of this Lease and such other default continues for ten or more days after notice
thereof is given to Tenant, if the Leasehold interest of Tenant is subjected to levy, execution
or attachment, or if Tenant abandons the Premises, then in any such event, Landlord, if
Landlord so elects, and with or without notice or demand, may terminate Tenant’s right to
possession, without terminating this Lease; and in any such event of default, whether or not
there is a termination, Landlord shall be entitled to recover all sums and damages recoverable hereunder or by law.
C. Upon termination of this Lease, by lapse of time or otherwise, or upon termination of Tenant’s right
to possession, Tenant shall vacate the Premises immediately and shall deliver possession to Landlord; and in such event Tenant hereby grants to Landlord
full and free license to enter and repossess the Premises, with or without process of law, and
to expel and exclude from possession Tenant and all other occupants of the Premises and to
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remove any or all property therefrom, using such force as may be necessary, without being guilty of
conversion of property, trespass, eviction or forcible entry or detainer. Tenant hereby waives
service of any notice or demand of any kind, including every notice and demand prescribed by law,
and agrees that the simple breach of any provision of this Lease by Tenant alone shall constitute a
forcible detainer by Tenant within the meaning of the statutes of the State of Illinois, without
the need for any notice or demand of any kind.
D. If Landlord elects to terminate Tenant’s right to possession, without terminating the Lease, no action of Landlord taken pursuant to such election shall terminate
this Lease or release Tenant from Tenant’s obligation to pay rent for the full term.
E. Upon and after regaining possession of the Premises with or without
termination of the Lease, Landlord shall use reasonable efforts to relet the Premises or part
thereof for the account of Tenant for such rent, for such time and upon such terms as
Landlord shall determine; provided, however, that if there is any other vacant space in the
Building, Landlord may elect to put any proposed tenant in such other space before reletting
the Premises. Landlord shall not be required to accept any tenant who does not meet
Landlord’s qualifications for tenancy of the Premises, or to observe any instructions given
by Tenant about reletting. In any such case, Landlord may make repairs, alterations,
additions and improvements and may redecorate and remodel the Premises to the extent
deemed desirable by Landlord; and Tenant shall pay Landlord on demand all cost thereof,
together with Landlord’s other expenses of reletting, such as advertising, commissions, and
legal fees. If the consideration collected from the new tenant by Landlord upon and after
reletting is not sufficient to pay the full amounts of all rents due or becoming due under
this Lease from time to time, Tenant shall pay to Landlord the amount of each deficiency on demand.
F. Tenant hereby agrees, in any suit brought against Tenant for the enforcement
of any right hereunder by Landlord, to waive trial by jury and to, with respect to any
judgments rendered in favor of Landlord and against Tenant for any money due hereunder
or under any extension or renewal of this Lease, pay for all of Landlord’s expenses and costs
of suit together with reasonable attorney’s fees and to release all errors in such
proceedings,
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including the issuance of execution upon any such judgment, and to stipulate that no appeal shall
be prosecuted from any such judgment or that no proceedings in chancery or otherwise shall be
filed or prosecuted to interfere in any way with the operation of such judgment or of any
execution issued thereon or with any supplemental proceedings taken by Landlord to collect the
amount of any such judgment and to consent that execution on any judgment or decree may issue
forthwith.
G. All property removed from the Premises by Landlord pursuant to the authority of this Lease
or of law, to which Tenant may be entitled, shall be handled, removed or stored by Landlord at the
sole risk, cost and expense of Tenant; and Landlord in no event shall be liable for conversion or
be responsible for the value, preservation or safe keeping thereof. Tenant shall pay to Landlord
on demand all expenses incurred by Landlord in such handling, removal and storage.
H. Tenant shall pay all of Landlord’s costs and expenses, including the fees of counsel,
agents and others retained by Landlord, incurred in enforcing Landlord’s rights or remedies
hereunder or incurred in enforcing Landlord’s rights or remedies hereunder or incurred by Landlord
in any litigation, negotiation or transaction in which Tenant causes Landlord, without Landlord’s
fault, to become involved or concerned.
I. If this Lease or Tenant’s right to possession is terminated prior to the Lease
expiration date set forth in the Schedule, Tenant shall be liable for and shall pay to Landlord
the unamortized amount of all rent abated, credited or forgiven for Tenant and the unamortized
costs of all decorations, installations, additions, alterations and improvements made in respect
to the Premises and paid for or credited to Tenant by Landlord; and the entire amount thereof
shall be due and payable immediately upon termination.
J. If Tenant fails to perform any of its obligations hereunder or violates any of the
provisions of this Lease, Landlord may (but need not) cure such default in whole or in part, in
which event Tenant shall pay Landlord on demand as additional rent the amount of all costs,
expenses and fees insured by Landlord in connection therewith.
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K. To the fullest extent allowed by law, Tenant waives its right to a jury trial in any
action under or with respect to this Lease or the Premises.
L. In addition to any interest payable thereon, Tenant shall pay Landlord on demand a late
charge equal to Twenty-Five and 00/100 Dollars ($25.00) per day for each day the rent remains
delinquent and unpaid and all delinquent rent shall, at Landlord’s request, be paid by certified
funds. Any other sums due under this Lease and remaining unpaid for more than thirty (30) days,
after notice to Tenant that said sums are due and payable, shall be paid thereafter together, from
the date of such Notice, with interest at the rate set forth in Paragraph I. D. of this Leasing
Agreement.
M. All rights and remedies of Landlord provided herein and available at law and in equity
shall be separate and cumulative; and any of them may be exercised singly, concurrently,
alternatively and in any order without prejudice to any other of them.
N. Whenever Landlord’s consent is required under the term of this Lease, said consent shall
not be unreasonably withheld.
XIV. Bankruptcy or Insolvency.
If Landlord’s right to terminate this Lease pursuant to Section XIII(A) above is not elected,
upheld or enforced, the following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
A. If Tenant files a petition under Chapters 7, 11 or 13 of the Bankruptcy Code, or if an
order for relief is entered against Tenant under Chapter 7, or if a proceeding filed by or against
Tenant under any other chapter of the Bankruptcy Code is converted to a chapter 11 or 13
proceeding, and if the Trustee in Bankruptcy (hereinafter referred to as “Trustee”) appointed by
the Bankruptcy Court as referred to in this Section XIV of this Leasing Agreement or Tenant as
Debtor-in-Possession fails to assume this Lease within sixty (60) days after appointment of the
Trustee in a Chapter 7 proceeding or the date of the filing of such petition or conversion in such
other chapter proceeding, then the Trustee or the
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Debtor-in-Possession shall be deemed to have rejected this Lease, and Landlord shall be entitled
immediately to possession of the Premises without further obligation to Tenant or the Trustee and
this Lease shall be terminated. Landlord shall be entitled to recover all past due rent and
damages in the bankruptcy proceeding, and such right shall survive termination of the Lease.
Landlord’s damages shall include the unamortized amount of all rent abated, credited or forgiven
for Tenant and the unamortized costs of all decorations, installations, alterations, additions and
improvements made in respect to the Premises and paid for or credited to Tenant by Landlord
determined as of the commencement of the bankruptcy proceeding. To be effective, any election to
assume this Lease must be given in writing to Landlord, and, in Landlord’s sole business judgment,
all of the following conditions, which Landlord and Tenant acknowledge to be commercially
reasonable, must have been satisfied:
1. The Trustee or the Debtor-in-Possession must have cured or must have
provided to Landlord adequate assurance that the Trustee or the Debtor-in-Possession will
cure all monetary defaults within ten (10) days and all nonmonetary defaults within thirty
(30) days after the date of assumption and that within ten (10) days from the date of
assumption or such other time periods as may be imposed by the Bankruptcy Court or the
any applicable Bankruptcy (Insolvency) Code, Act or Laws, Landlord will be compensated for
all pecuniary damages it has incurred arising from the defaults of Tenant, the Trustee, or the
Debtor-in-Possession, as recited in Landlord’s written statement of pecuniary loss sent to
the Trustee or Debtor-in-Possession.
2. The Trustee or the Debtor-in-Possession must have provided Landlord with
adequate assurance of the timely future performance of each of Tenant’s obligations under
this Lease; provide also that:
a. The Trustee or Debtor-in-Possession must, if the Bankruptcy Court
permits or orders, also deposit with Landlord as security for the timely payment of rent, an
amount equal to three months’ rent and other periodic sums accruing under this Lease; and
b. The obligations imposed upon the Trustee or the Debtor-in-Possession must continue and be binding upon Tenant after the completion of bankruptcy proceedings,
unless the Bankruptcy Court enters an order imposing different obligations.
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3. For purposes of Subsection A(1), “adequate assurance” means that:
a. Landlord shall have determined that the Trustee or the Debtor-in-Possession has, and will continue to have, sufficient unencumbered assets, after the payment
of all secured obligations and administrative expenses, to assure Landlord that the Trustee
or the Debtor-in-Possession will have sufficient funds timely to fulfill Tenant’s obligation
under this Lease and to keep the Premises properly staffed with sufficient employees to
conduct a fully operational, actively promoted business in the Premises; and
b. An order shall have been entered segregating sufficient cash payable
to Landlord and/or a valid and perfected first lien and security interest shall have been
granted in property of Tenant, Trustee, or Debtor-in-Possession which is acceptable in value
and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-
Possession to cure all monetary and nonmonetary defaults under this Lease within the time
periods set forth above.
B. If the Trustee or the Debtor-in-Possession has assumed this Lease and assigns or elects to
assign Tenant’s interest under this Lease or the estate created by that interest to any other
person, such interest or estate may be assigned only if:
1. The assignee shall have submitted a current financial statement, audited
by a certified public accountant, which shows a net worth and working capital in amounts
determined by Landlord to be sufficient to assure the future performance by the assignee of
the Tenant’s obligations under this Lease;
2. If requested by Landlord, the assignee shall have obtained guarantees,
in form and substance satisfactory to Landlord, from one or more persons who satisfy
Landlord’s standards of credit worthiness; and
3. Landlord shall have obtained consents or waivers from any third parties
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which may be required under any Lease, the Bankruptcy Court, if required, mortgage, financing
arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such
assignment.
C. When, pursuant to the applicable Bankruptcy Code or Act or Insolvency Laws, the Trustee or
the Debtor-in-Possession is obligated to pay reasonable use and occupancy charges for the use of
all or part of the Premises, such charges shall not be less than the Base Rent, Rental Adjustments
and other sums payable by Tenant hereunder.
XV. Default by Landlord.
The Landlord agrees that if it fails to pay any installment of taxes prior to sale of said
taxes or assessments or any interest, principal, costs of other charges upon any mortgage or
mortgages, or other liens and encumbrances affecting the leased Premises, and to which this Lease
may be subordinate when any of the same become due, or if the Landlord fails to make any repairs or
do any work required of the Landlord by the provisions of this Lease, or in any other respect fails
to perform any covenant and agreement in the Lease contained on the part of the Landlord to be
performed, then, and in any such event or events, the Tenant, after the continuance of any such
failure of default for thirty (30) days after notice in writing thereof is given by the Tenant to
the Landlord, may at its option pay said taxes, assessments, interest, principal, costs, and other
charges and cure such defaults all on behalf of and at the expense of the Landlord, and do all
necessary work and make all necessary payments in connection therewith including but not limiting
the same to the payment of any fees, costs and reasonable charges of or in connection with any
legal action which may have been brought; and the Landlord agrees to pay to the Tenant forthwith
the amount so paid by the Tenant, together with interest at the rate often percent (10% ) per annum
and agrees that the Tenant may withhold any and all rental payments thereafter becoming due to the
Landlord pursuant to the provisions of this Lease or any extension thereof and may apply the same
to the payment of such indebtedness of the Landlord to the Tenant until such indebtedness is fully
paid with interest as herein provided. Nothing herein contained shall preclude the Tenant from
proceeding to collect the amount so paid by it as aforesaid without waiting for rental off-sets to
accrue or from exercising any other right or remedy available to Tenant at
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law or in equity. Landlord agrees to indemnify and save Tenant harmless from all fines, claims,
demands, actions, proceedings, judgments, and damages (including court costs and reasonable
attorney fees) of any kind or nature by anyone whomsoever arising or growing out of any breach or
nonperformance by Landlord of the covenants in this Lease.
XVI. Eminent Domain.
If the whole or any part of the Premises shall be taken for public or quasi-public use by a
governmental authority acting under the power of eminent domain or shall be conveyed to a
governmental authority in lieu of such taking, and if such taking or conveyance shall cause the
remaining part of the Premises (if any) to be untenantable and inadequate for use by Tenant for
the purposes for which they were Lease, then Tenant, at its option, may terminate this Lease as of
the date Tenant is required to surrender possession of the Premises. If a part of the Premises
shall be so taken or conveyed but the remaining part is tenantable and adequate for Tenant’s use,
then this Lease shall be terminated as to the part taken or conveyed as of the date Tenant
surrenders possession; Landlord shall make such repairs, alterations and improvements as may be
necessary to render the part not taken or conveyed tenantable; and the rent shall be reduced in
proportion to the part of the Premises so taken or conveyed (as measured by Landlord). All
compensation awarded for such taking or conveyance shall be the property of Landlord without any
deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to
Landlord all its rights, title and interest in and to any such award. However, Tenant shall have
the right to recover from the governmental authority, but not from Landlord, such compensation as
may be awarded to Tenant on account of the interruption of Tenant’s business, moving and relocation
expenses and depreciation to and removal of Tenant’s trade fixtures and personal property.
XVII. Landlord’s Mortgage.
From time to time either before or after the execution of this Lease, Landlord may execute a
mortgage or trust deed in the nature of a mortgage of Landlord’s interest in the Building and/or
underlying land. In such event:
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A. If and as requested by the mortgagee or trustee, Tenant will subordinate or
agree to the superiority of its interest in this Lease to said mortgage or trust deed and will
execute such subordination or superiority agreement or agreements as reasonably may be
required by said mortgagee or trustee. Tenant’s obligation to subordinate to Landlord’s
mortgagee is conditioned upon execution by such mortgagee of an agreement, in form
reasonably satisfactory to Tenant, providing that Tenant’s right of quiet possession and
occupancy of the Premises should not be disturbed in the even to foreclosure by such
mortgagee or default under the mortgage.
B. Should such mortgage or trust deed be foreclosed, the liability of the
mortgagee, trustee or purchaser at such foreclosure sale or the liability of a subsequent
owner designated as Landlord under this Lease shall exist only so long as such trustee,
mortgagee, purchaser or owner is the owner of the subject real estate, and such liability
shall not continue or survive after further transfer of ownership.
C. Tenant agrees that, in the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or total eviction,
Tenant shall not exercise any such right:
1. Until it has notified in writing the holder of any mortgage or trust deed
which at the time shall be a lien on the Building or underlying land of such act or omission
(if the name and address of such holder shall previously have been furnished by written
notice to Tenant); and
2. Until a reasonable period, not exceeding thirty (30) days, for commencing
the remedying of such act or omission shall have lapsed following the giving of such notice; and
3. Unless such holder, with reasonable diligence, shall not have
commenced and continued to remedy such act or omission or to cause the same to be
remedied.
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D. If such mortgage or trust deed be foreclosed, upon request of the mortgagee or trustee,
Tenant will attorn to the purchaser at any foreclosure sale and will execute such instruments as
may be necessary or appropriate to evidence such attornment. Likewise, Tenant will attorn to the
leasehold mortgagee (if any) in the event said leasehold mortgagee should ever become the owner of
the leasehold estate covered by its mortgage or should become the owner of any new lease in
replacement or substitution of such leasehold estate.
XVIII. Estoppel Certificate.
When requested by Landlord, Tenant shall deliver to Landlord or to its present or prospective
mortgages, purchasers, auditors or another persons designated by Landlord, a certificate stating
that: this Lease is in full force and effect; Landlord is not in default (or stating specifically
any exceptions thereto); the date of acceptance of the Premises; the date of commencement of rent;
the date of commencement of the term of this Lease; the expiration date of this Lease; the amount
of rent currently payable; the date to which rent has been paid; whether or not Landlord has
completed any improvements required to be made to the Premises; whether or not Tenant has any
options or rights of first refusal; and such other matters as may be reasonably required. Failure
to give such a certificate within ten (10) days after written request shall constitute a default
by Tenant and also shall be conclusive evidence that this Lease is in full force and effect and
that Landlord is not in default, and Tenant shall be estopped from asserting any defaults know to
Tenant at that time.
XIX. Holding Over.
If Tenant retains possession of the Premises or any part thereof after termination of this
Lease, by lapse of time or otherwise, or after termination of Tenant’s right to possession of the
Premises, Tenant shall pay Landlord for the time Tenant remains in possession rent at double the
rental rate payable for the last period prior to the date of such termination, which rate shall
include Base Rentals and Rental Adjustments as provided in Sections I and
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II of this Landlord. Tenant also shall pay all damages sustained by Landlord by reason of such
retention. Unless otherwise provided in writing by Landlord, any such retention shall give rise to
a month to month holdover. If Landlord so elects by giving written notice thereof to Tenant, such
holding over shall constitute renewal of this Landlord for one year at a rental rate equal to One
Hundred Fifty percent (150%) of the rent provided for thereunder on the stated termination date of
this Lease; plus all rent that may be pursuant to the terms hereof, as specified in Landlord’s
notice. Acceptance by Landlord of rent after any such termination shall not constitute a renewal.
This section does not waive Landlord’s right of re-entry or any other right or remedy available to
Landlord upon holding over.
XX. Miscellaneous.
A. Default Under Other Lease. If the term of any lease, other than this Lease,
made by Tenant for the Premises or any part thereof or for any other space in the Building
shall be terminated or terminable after the making of this Landlord, because of any default
by Tenant under such other lease, such fact shall empower Landlord, at Landlord’s sole
option, to terminate this Landlord or to exercise any of the remedies set forth in
Section XIII.
B. Acts Subsequent to Default. No receipt of money by Landlord from Tenant
after any default, the termination of this Landlord or Tenant’s right to possession, the
service of any notice or demand, the commencement of any suit or the entry of any judgment
shall operate to cure or waive such default, reinstate, continue or extend the term of this
Lease or Tenant’s right to possession, or affect any such notice, demand, suit or judgment.
C. Waiver of Default. No waiver of any default of Tenant shall be implied an no
express waiver of any such default shall affect, any default other than the default specified
in such waiver, and then only for the time and to the extent therein stated. No waiver of or
failure to enforce any provision under any other tenant’s lease or any provision of the
Building’s rules and regulations, and no consent or permission given to any other tenant or
person, shall operate to waive, diminish, or impair any similar provision relating to Tenant
or give rise to or require any similar consent or permission in the case of Tenant. The
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invalidity or unenforceability of any provision of this Lease, per se or as applied, shall not
affect or impair any other provision of this Lease, the remainder of which shall remain in full
force and effect, or any other application of the provision in question.
D. Plats and Riders. Clauses, plats and riders, if any, signed by Landlord and
Tenant and endorsed on or attached to this Lease are a part hereof; and in the event of
variation or discrepancy, the duplicate original hereof, including such clauses, plats and
riders, if any, held by Landlord shall control.
E. Meaning of Tenant. The word “Tenant” wherever used in this Landlord shall
be construed to mean Tenants in all cases where there is more than one tenant, and the
necessary grammatical changes required to make the provisions hereof apply either to
corporations or individuals, men or women, shall in all cases be assumed as though in each
case fully expressed. The word “term” as used herein includes the initial Lease term and all
extensions and renewals.
F. Representative Capacity. No person executing this Lease in a representative
capacity for Landlord or Tenant shall be held individually liable hereunder in the absence
of fraud, provided that such person acted with due authority and the intended principals are
bound.
G. Brokers. Tenant certifies that it has not dealt with any real estate broker other
than the broker identified on the Schedule and that no other broker initiated or participated
in the negotiation of this Lease, submitted or showed the Premises to Tenant or is entitled
to any commission in connection with this Landlord. Tenant agrees to indemnify and hold
Landlord harmless from all claims from and liabilities to any other real estate broker for
commissions or fees in connection with this Lease and space.
H. Force Majeure. Time is of the essence. However, provision or performance by
Landlord of any maintenance, repair, restoration, improvement, facility or service shall be
subject to delays due to strikes, labor problems, material shortages, Acts of God, weather
conditions, war and other cause beyond the reasonable control of Landlord.
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I. Successors and Assigns. Each provision hereof shall extend to and shall bind
and inure to the benefit of Landlord and Tenant and their respective heirs, legal representatives,
successors and assigns, provided, however, that this Lease shall not inure to the benefit of any
heir, legal representative, transferee, successor or assign of Tenant except upon the express
written consent or election of Landlord to be exercised in Landlord’s sole and absolute
discretion.
J. Rules and Regulations. Tenant agrees to comply with all reasonable rules and regulations Landlord may adopt from time to time for the operation, management, protection and
welfare of the Building and its tenants and occupants.
K. Notices. No notice or demand related to this Lease shall be effective unless in
writing and either delivered personally to the party to whom it is directed or sent by United
States certified mail, return receipt requested, postage prepaid, in a sealed envelope addressed:
if to Tenant, to Tenant at the Premises, with a copy to Xx. Xxxxxxx Xxxxxxx, Regency Medical
Center, P.C., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, or, if Tenant is not in possession
thereof, then to Tenant’s address last known to Landlord; and, if to Landlord, to Landlord at 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, with a copy to Xxxxxxx X. Xxxxx at Kelly, Olson,
Xxxxxx & XxXxxx & Xxxxxxx, L.L.C., 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000; provided
that either party, by notice to the other, from time to time may designate another address in the
United States of America to which notices mailed more than ten (10) days thereafter shall be
addressed. Notices mailed as aforesaid shall be effectively given as of the date of mailing.
L. Marginal Notations. The marginal notations of this Lease are for conveniences only
and in no way limit or enlarge scope or meaning.
M. Examination of Lease. Submission of this instrument for examination or signature
by Tenant does not constitute a reservation of or option for lease and this instrument is not
effective as a Lease or otherwise until execution and delivery by both Landlord and Tenant.
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N. This Lease is subject to the renewal
option granted to Tenant as set forth in Rider attached hereto and made a part hereof.
| Landlord: | Tenant: | |||||||||||||||||
| Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx | MIDWEST BANK AND TRUST COMPANY | |||||||||||||||||
| By: |  |
By: |  |
|||||||||||||||
| XXXXXX X. XXXXXX | XXXXX X. XXXXX | |||||||||||||||||
| Its: Executive Vice-President | ||||||||||||||||||
| By: |  |
Attest: | ||||||||||||||||
| XXXXXXX X. XXXXXX | ||||||||||||||||||
| By: |  |
|||||||||||||||||
| XXXXXX X. XXXXXXX | ||||||||||||||||||
| Its: Executive Vice-President | ||||||||||||||||||
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RIDER TO LEASE DATED AS OF DECEMBER 27, 2007, BETWEEN XXXXXX XXXXXX AND XXXXXXX XXXXXX,
LANDLORD, AND MIDWEST BANK AND TRUST COMPANY, TENANT, AT 000-000 XXX XXXX, XX XXXX XXXXXX,
XXXXXXXX.
Option to Extend Term.
It is expressly agreed that provided this Lease has not been theretofore canceled or terminated by
operation of law or otherwise, and that the Tenant is not in default under this Lease on the date
(i) that Tenant exercises the option to extend the Term, or (ii) the extended Term hereof
commences, then Tenant is granted the option to extend the Term of this Lease for a further term of
Five (5) years commencing on the anniversary of the Commencement Date, and ending five years
thereafter, subject to the same terms and conditions as in this Lease contained, except that:
(a) Unless otherwise agreed to in writing by Landlord, Tenant shall have no further option for any further renewal or extension;
(b) The Base Rent and Monthly Base Rent, subject to adjustments, during the extended term shall be as follows:
| Period: | Sixty (60) months | ||||||
| Base Rent: for 2009 | $ | 60,279.96 | |||||
| 2009 Monthly Base Rent: | $ | 5,023.33 | |||||
(c) Tenant shall deposit the additional Security Deposit set forth below upon the date Tenant exercises its Option to Renew hereunder;
Date of Required Additional Security Deposit: Upon exercise of option to extend term.
| Amount of Additional Security Deposit: | $ | 292.62 | |||||
| Total Security Deposit: | $ | 10,046.66 |
The Tenant, in order to exercise such Option to Extend, must serve notice of its election to
extend the terms of the Leasing Agreement upon Landlord, or its successor or assigns, by serving
no later than 5:00 p.m. on a date which is One Hundred Eighty (180) days prior to the date of
expiration of this Leasing Agreement. The notice once given shall be and is irrevocable. The
aforesaid Option to Extend the Term is given to and may be enforced by the original Tenant only,
and on condition that it shall not be assigned, mortgaged or encumbered by such Tenant, nor shall
it be exercisable by Tenant if all or a portion of the Premises may have been sublet by the Tenant
with or without the consent of Landlord or, pass by any devolution, assignment or transfer of this
Lease, which may be permitted by such transfer or disposition of such option to extend or attempt
to accomplish such transfer or disposition, this option to extend shall become null and void.
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(d) The Extended Term Base Rent as described herein shall increase annually to an amount
equal to One Hundred Three (103%) percent of the Base Rent which was payable for the year
immediately preceding the first anniversary date of the extended Term and Tenant shall thereafter
(until further increase) pay equal monthly installments of the Base Rent as adjusted. Tenant shall
pay all monthly installments of Base Rent to Landlord, in advance, on or before the first day of
each and every month during the Term, without demand and without any set-off or deduction
whatsoever, except that Tenant shall pay an amount equal to one full monthly installment of Base
Rent at the time of execution of this Lease, which amount shall be credited to the first full
monthly installment of Base Rent payable hereunder.
This rider is hereby accepted and acknowledged by both the Landlord and the Tenant as of the date
of the Leasing Agreement as noted herein above:
| Landlord: | Tenant: | |||||||||||||||||
| MIDWEST BANK AND TRUST COMPANY | ||||||||||||||||||
| By: | |
By: | |
|||||||||||||||
| XXXXXX X. XXXXXX | XXXXX X. XXXXX | |||||||||||||||||
| Its: Executive Vice-President | ||||||||||||||||||
| By: | |
|||||||||||||||||
| XXXXXXX X. XXXXXX | ||||||||||||||||||
| By: | |
|||||||||||||||||
| XXXXXX X. XXXXXXX | ||||||||||||||||||
| Its: Executive Vice-President | ||||||||||||||||||
This Lease was prepared by Xxxxxxx X. Xxxxx, Kelly, Olson, Xxxxxx XxXxxx &
Xxxxxxx, L.L.C., 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 (Phone: 000-000-0000; Fax 000-000-0000; and
email: xxxxxx@xxxxx.xxx).
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