LEASE
THIS LEASE made May 14, 1997, Combined Capital Associates VII,
an Indiana Limited Partnership, Landlord, hereby leases unto 21st
Century Telesis, Inc., a Delaware Corporation, Tenant, and the
Tenant accepts the Premises, known as The Century Building located
at 000 Xxxxx Xx. Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx, for the term
of one hundred twenty (120) months commencing August 15, 1997 and
ending August 14, 2007 unless sooner terminated as provided
herein, to be occupied and used by the Tenant for communications
equipment and sales office. In consideration thereof, Tenant shall
pay to Landlord as rent, without any setoff or deductions
whatsoever, the sum of Five Hundred Eighteen Thousand Seven
Hundred Forty Three Dollars and Seventy Five Cents ($518,743.75)
payable in installments as outlined in exhibit B.
Unpaid rent shall bear interest at 8% per annum from the date due
until paid.
IT IS FURTHER AGREED THAT:
I. Services to be Provided by Landlord. Landlord shall provide
the following services to the Premises during reasonable business
hours:
A. Janitor services and customary cleaning in common areas
including restrooms;
B. Water from city mains, drawn through fixtures installed by
Landlord, for drinking, lavatory and toilet purposes,
including a reasonable amount of hot water;
C. Operatorless elevator service in common with other tenants
at all times.
Landlord does not warrant that any of the services above mentioned
will be free from interruptions caused by repairs, renewals,
improvements, alterations, strikes, lockouts, accidents, inability
of the Landlord to obtain fuel or supplies, or any other cause
beyond the reasonable control of the Landlord. Any such
interruption of service shall not constitute an eviction or
disturbance of the Tenant's use and possession of the Premises or
any part thereof, or render the Landlord liable to the Tenant for
damages, or relieve the Tenant from performance of the Tenant's
obligations under this lease. Landlord will use reasonable efforts
promptly to remedy any situation which has interrupted such
services.
2. Landlord's Title. The Landlord's title is and always shall be
paramount to the title of the Tenant, and nothing herein contained
shall empower the Tenant to do any act which may encumber the
title of the Landlord. This lease is subject and subordinate to
all ground and underlying leases, and to all mortgages which may
now or hereafter affect such ground and underlying leases or the
real property or building of which the Premises form a part, and
to all renewals, modifications, consolidations, replacements and
extensions thereof, and to all advances made or hereafter to be
made on the security of any such mortgages.
3. Assignment and Subletting. The Tenant shall not (a) assign or
convey this lease or any interest thereunder; (b) allow any
transfer of this lease or any lien upon the Tenant's interest by
operation of law; (c) sublet the Premises or any part thereof
without the prior written consent of the Landlord; or (d) permit
the use or occupancy of the Premises or any part thereof by anyone
other than the Tenant.
4. Untenantability. Should the Premises or the building be made
untenantable by fire or other cause, the Landlord may elect (a) to
terminate this lease as of the date of such casualty by notice to
the Tenant within thirty (30) days after that date, or (b) to
repair all damage to the Premises or the building so that the same
shall be restored to such condition as existed immediately prior
to such damage. If the Landlord elects to terminate this lease,
rent shall be abated on a per diem basis and be paid to the date
of the fire or casualty. If the Landlord elects to restore the
Premises and building, such restoration shall be completed with
reasonable promptness. If the Premises are unusable during such
restoration, or if Tenant is reasonably required to close its
operation while such repairs are made, the rent shall xxxxx during
such period of repair while such operations have ceased and the
Premises are completely closed. If Tenant shall continue to
operate on the Premises during such repairs, but shall be unable
to use a substantial portion thereof, then the rent shall be pro-
rated in the proportion which the area of unusable leased space
bears to the total leased space for the period that said space is
unusable. Landlord shall not be liable for business losses to
Tenant by reason of damage to the Premises. If such
untenantability is causes by the fault of the Tenant, there shall
be no apportionment or abatement of rent.
5. Signs. No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the outside or inside of the
Premises or building by the Tenant except on the glass of the
doors of the Premises and on the directory board, and then only of
such color size, style and material as shall be first specified by
the Landlord in writing. The Landlord reserves the right to remove
all other signs at the expense of the Tenant. At the expiration of
the lease term, Tenant shall remove its signs from such doors.
6. Alterations. No alterations or additions shall be made and no
fixtures shall be affixed to the Premises without the prior
written consent of the Landlord. On the expiration of the lease
term all such additions and fixtures, except Tenant's trade
fixtures and business machines, shall remain and be the property
of the Landlord unless otherwise agreed in writing by Landlord.
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7. Use of Premises. The Tenant (a) shall occupy and use the
Premises during the term for the purpose above specified and none
other; (b) will not make or permit any use of the Premises which
directly or indirectly is forbidden by public law, ordinance or
governmental regulation, which may be dangerous to life, limb or
property, or which may invalidate or increase the premium cost of
any policy of insurance carried on the building or covering its
operations; (c) shall not obstruct, or use for storage, or for any
purpose other than ingress and egress, the sidewalks, entrances,
passages, courts, corridors, vestibules, halls, elevators and
stairways of the building; (d) shall not make or permit any noise
or odor that is objectionable to other occupants of the building
to emanate from the Premises, shall not create or maintain a
nuisance thereon, shall not disturb, solicit or canvass any
occupant of the building, and shall not do any act tending to
injure the reputation of the building; (e) shall not install any
piano, phonograph or other musical instrument, or radio or
television set in the building or any antennae, aerial wires or
other equipment inside or outside the building without, in each
and every instance, prior written approval by the Landlord, and if
so approved, such use shall be subject to control by the Landlord
so that other occupants of the building shall not be disturbed or
annoyed; (f) shall not place or permit to be placed any article of
any kind on the window ledges or on the exterior walls, and shall
not throw or permit to be thrown or dropped any article from any
window of the building; (g) shall not attach additional locks or
similar devices to any door or window, and upon termination of
this lease or of the Tenant's possession, shall surrender all keys
of the Premises and shall explain to Landlord all combination
locks on safes, cabinets and vaults; (h) shall be responsible for
locking the doors and closing the transoms and windows in and to
the Premises; (i)Shall not install any blinds, shades, awnings or
other form of inside or outside window covering, or window
ventilators or similar devices without the prior written consent
of Landlord; (j) shall not overload any floor, shall route and
locate safes and other heavy articles as Landlord may direct,
shall bring safes, furniture and all large articles through the
building and into the Premises at such times and in such manner as
the landlord shall direct and at the Tenant's sole risk and
responsibility, and shall list all furniture, equipment and
similar articles to be removed from the building for approval at
the office of the building before removal of such article; (k)
shall not install in the premises any equipment which uses a
substantial amount of electricity without the advance written
consent of the Landlord, shall ascertain from the Landlord the
maximum amount of electrical current which can safely be used in
the Premises, taking into account the capacity of the electric
wiring in the building and the Premises and the needs of other
tenants in the building, and notwithstanding Landlord's consent to
such installation, shall not use more electricity than such safe
capacity.
7. Use of Premises. The Tenant (a) shall occupy and use the
Premises during the term for the purpose above specified and none
other; (b) will not make or permit any use of the Premises which
directly or indirectly is forbidden by public law, ordinance or
governmental regulation, which may be dangerous to life, limb or
property, or which may invalidate or increase the premium cost of
any policy of insurance carried on the building or covering its
operations; (c) shall not obstruct, or use for storage, or for any
purpose other than ingress and egress, the sidewalks, entrances,
passages, courts, corridors, vestibules, halls, elevators and
stairways of the building; (d) shall not make or permit any noise
or odor that is objectionable to other occupants of the building
to emanate from the Premises, shall not create or maintain a
nuisance thereon, shall not disturb, solicit or canvass any
occupant of the building, and shall not do any act tending to
injure the reputation of the building; (e) shall not install any
piano, phonograph or other musical instrument, or radio or
television set in the building or any antennae, aerial wires or
other equipment inside or outside the building without, in each
and every instance, prior written approval by the Landlord, and if
so approved, such use shall be subject to control by the Landlord
so that other occupants of the building shall not be disturbed or
annoyed; (f) shall not place or permit to be placed any article of
any kind on the window ledges or on the exterior walls, and shall
not throw or permit to be thrown or dropped any article from any
window of the building; (g) shall not attach additional locks or
similar devices to any door or window, and upon termination of
this lease or of the Tenant's possession, shall surrender all keys
of the Premises and shall explain to Landlord all combination
locks on safes, cabinets and vaults; (h) shall be responsible for
locking the doors and closing the transoms and windows in and to
the Premises; (i)Shall not install any blinds, shades, awnings or
other form of inside or outside window covering, or window
ventilators or similar devices without the prior written consent
of Landlord; (j) shall not overload any floor, shall route and
locate safes and other heavy articles as Landlord may direct,
shall bring safes, furniture and all large articles through the
building and into the Premises at such times and in such manner as
the landlord shall direct and at the Tenant's sole risk and
responsibility, and shall list all furniture, equipment and
similar articles to be removed from the building for approval at
the office of the building before removal of such article; (k)
shall not install in the premises any equipment which uses a
substantial amount of electricity without the advance written
consent of the Landlord, shall ascertain from the Landlord the
maximum amount of electrical current which can safely be used in
the Premises, taking into account the capacity of the electric
wiring in the building and the Premises and the needs of other
tenants in the building, and notwithstanding Landlord's consent to
such installation, shall not use more electricity than such safe
capacity.
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All persons entering or leaving the building between the
hours of 6 P.M. and 8 A.M., Monday through Friday, or at any time
on Saturdays, Sundays or holidays may be required to identify
themselves to a watchman by registration or otherwise and to
establish their rights to enter or leave the building. The
Landlord may exclude or repel, any peddler, solicitor or beggar.
In addition to all other liabilities for breach of any covenant of
this Article 7, the Tenant shall pay to the Landlord all damages
caused by such breach and shall also pay to Landlord as additional
rent hereunder an amount equal to any increase in insurance
premiums caused by such breach. The violation of any covenant of
this Article 7 may be restrained by injunction.
8. Repairs. Tenant shall take good care of the Premises and the
fixtures therein, and shall keep the premises in good order,
condition and repair at Tenant's expense during the term of this
lease, including the replacement of all interior broken glass and
exterior glass broken by Tenant, with glass of the same size and
quality. If the Tenant does not make such repairs promptly and
adequately, the Landlord may, but need not, make such repairs and
Tenant shall promptly pay Landlord for the costs thereof as
additional rent. On expiration or early termination or
cancellation of this lease, Tenant shall surrender the Premises
and Landlord's fixtures in as good condition as of the time of
delivery subject to reasonable wear and tear. All injury to the
building or fixtures caused by moving of the Tenant in and out of
the building, and any and all breakage or any other injury
whatsoever to the building, fixtures, or to the property of other
tenants of the building caused by Tenant, and any damage done by
water, steam, electricity, fire or other substance to the building
or fixtures or to the property of other tenants of the building
due to the negligence of the Tenant, may be repaired by Landlord
at the expense of the Tenant and shall become due and payable by
the Tenant as additional rent upon delivery of a statement of such
costs by Landlord to Tenant or mailing the same postage prepaid,
to the Tenant at its last known address.
9. Indemnity and Liability Insurance Obligations. Tenant agrees
to indemnify and save and hold Landlord harmless from any and all
claims, demands, judgments, losses, fines, penalties, costs,
expenses and attorneys' fees for damages to persons or property,
or for loss of life arising from this lease or Tenant's use of the
Premises; relating to or arising from the default or omission of
Tenant or from the violation by Tenant of any law, ordinance or
statute; resulting or arising out of any accident or other
occurrence due directly or indirectly to the use and occupancy of
the Premises by Tenant, its agents, employees, tenants, guests,
invitees and assigns, or by any other person or person to the
extent Landlord's liability and cost of defense is not fully
covered by insurance.
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Tenant agrees, that at all times during the Term, Tenant will
cany a policy of comprehensive general liability insurance with a
company or companies satisfactory to Landlord covering the
Premises, insuring against public liability in an amount not less
than One Million Dollars ($1,000,000.00) for each occurrence for
bodily injury liability and personal injury liability and One
Million Dollars ($1,000,000.00) annual aggregate and property
damage liability of Five Hundred Thousand Dollars ($500,000.00)
for each occurrence and annual aggregate. Tenant agrees that
Landlord shall be named as an additional insured on those
liability insurance policies during the Term and that the same
will be evidenced by a certificate setting forth the above
required insurance coverage issued by the insurance company or its
agent to Landlord and agreeing that the policy may not be modified
or canceled without at least ten (10) days prior written notice to
Landlord.
10. Environmental Matters. At Tenant's expense, Tenant shall
comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and
municipal authorities pertaining to Tenant's use of the Premises,
including, without limitation, all applicable federal, state and
local laws, regulations or ordinances pertaining to air and water
quality, hazardous materials, waste disposal, air emissions and
other environmental matters, all zoning and land use matters and
with any direction of any pubic officer or officers pursuant to
law which shall impose any duty upon Landlord or Tenant with
respect to the use or occupation of the Premises. Tenant shall not
cause or permit any hazardous material to be brought upon, kept or
used in the Premises by Tenant, its agents, employees, contractors
or invitee without the prior written consent of Landlord, which
consent shall not be unreasonably withheld as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such
hazardous material is necessary or useful to Tenant's business and
will be used, kept and stored in a manner that complies with all
laws regulating any such hazardous materials so brought upon or
used or kept in or about the Premises. As used herein, the term
"Hazardous Material" means any hazardous or toxic substance,
material or waste, including, but not limited to those substances,
materials and wastes listed in these United States Department of
Transportation Hazardous Material Tables (49 CFR 172.101) or by
the Environmental Protection Agency as hazardous substances or
such substances, materials and wastes that are or become regulated
under any applicable local, state or federal law. Tenant agrees to
indemnify and hold Landlord harmless against any claim, expense
damages or expense (including but not limited to attorney fees)
arising from Tenant's breach of this provision.
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11. Condition of Leased Premises. Tenant agrees that Tenant
has examined the Premises prior to signing this Lease and is
familiar with the condition of the Premises, and that the same are
accepted "as is" with no repairs or modifications. Tenant agrees
that no representations of warranties as to the condition of the
Premises have been made by or on behalf of Landlord.
12. Compliance with ADA Requirements. Landlord and Tenant
acknowledge that the Americans With Disability Act ("ADA") is
applicable to the Building and that each of them have
responsibilities under that Act. Landlord agrees that it shall
comply with the requirement of ADA in all public areas of the
Building. Tenant agrees that it will make any architectural
modifications in the Premises required by the ADA and in
compliance with the policies which may be applicable to the
Premises at the expense of Tenant and that Tenant is responsible
for and agrees to indemnify and hold Landlord harmless against any
claims made by any third party on the grounds that the Premises do
not comply with the ADA or any regulations applying the same.
Landlord agrees to indemnify and hold Tenant harmless against any
claim that the common areas of the building in which the Premises
is located do not comply with ADA and all regulations which are
applicable. Landlord agrees that Tenant may modify the Premises to
comply with ADA, providing Landlord approves the plans and
specifications for such changes in advance of the commencement of
construction.
13. Eminent Domain. If the building, or any portion thereof
which includes a substantial part of the Premises or which
prevents the operation of the building, shall be taken or
condemned by any competent authority for any public use or
purpose, the term of this lease shall end upon, and not before,
the date when the possession of the part so taken shall be
required for such use or purpose. The Tenant shall have no right
to share in the condemnation award.
14. Rights Reserved to Landlord. The Landlord reserves the
right (a) to change the name or street address of the building
without notice or liability;(b) to install and maintain signs on
the exterior of the building; (c) to designate all sources
furnishing sign painting and lettering, ice, drinking water,
towels, and toilet supplies used on the Premises; (d) if during or
prior to the termination of this Lease Tenant vacates the
Premises, to decorate, remodel, repair, alter or otherwise prepare
the Premises for reoccupancy; (e) to have pass keys to the
Premises; (f) to exhibit the Premises to others and to display
"For Rent" signs on the Premises during the last ninety (90) days
of the lease term; (g) to take any and all measures, including
inspection, repairs, alterations, additions and improvements to
the Premises or to the building as may be necessary or desirable
for the safety, protection or preservation of the Premises or the
building or the Landlord's interest therein , or as may be
necessary or desirable in the operation of the building
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(h) to approve all movers employed by Tenant to move Tenant's
furnishings, fixtures, and equipment in or out of the Premises.
The Landlord may enter upon the Premises and may exercise any or
all of the foregoing rights hereby reserved without being deemed
guilty of an eviction or disturbance of the Tenant's use or
possession and without being liable in any manner to the Tenant.
15. Holding Over. If the Tenant retains possession of the
Premises or any part thereof after the termination of this lease
by a lapse of time or otherwise, the Tenant shall pay the Landlord
rent at double the rate of rental specified in this lease for the
time the Tenant thus remains in possession. If the Tenant remains
in possession of the Premises, or any part thereof, after the
termination of the term by lapse of time or otherwise, at the
election of the Landlord expressed in a written notice to the
Tenant and not otherwise, such holding over shall constitute a
renewal of this lease for one year. The provisions of this Article
do not waive Landlord's right of re-entry or any other right under
this lease.
16. Notices. Any notice which the landlord may desire or be
required to give the Tenant shall be deemed sufficiently given or
rendered if delivered in writing to the Tenant personally or sent
by certified or registered mail, addressed to the Tenant at the
Premises, return receipt requested. Any notice which Tenant may
desire or be required to give to the Landlord shall be deemed
sufficiently given or rendered if delivered in writing to Landlord
personally or sent by certified or registered mail, addressed to
Landlord at Combined Management Services, Inc., 000 Xxxxx Xx.
Xxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxx Xxxx, Xxxxxxx 00000, or such
other place as Landlord may from time to tome designate in
writing.
17. Default By Tenant. In the event of a default by Tenant
under this lease, Landlord shall have the following remedies: (a)
If any voluntary or involuntary petition or similar pleading under
any section of any bankruptcy act shall be filed by or against the
Tenant or any voluntary or involuntary proceedings in any court or
tribunal shall be instituted to declare the Tenant insolvent or
unable to pay its debts, and in the case of an involuntary
petition or proceeding, it is not dismissed within thirty (30)
days from the date it is filed, then Landlord at its election and
without further notice or demand, and either with or without entry
upon the premises, may forthwith cancel this lease and be
thereafter entitled to recover damages in an amount equal to the
present value of the rental obligation herein stated, including
increases in rent as provided in Articles 18 and 19 below, less
the fair rental value for the Premises which it can obtain for the
residue of the stated lease term; and/or (b) if default be made by
Tenant.
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(i) at any time in the payment of any rent upon the day when the
same shall become due; or,
(ii) in the performance of any of the other terms, conditions
or covenants of this lease by Tenant to be performed, then the
Landlord may enter into and upon the Premises or any part thereof
and repossess the same, with or without terminating this lease and
without prejudice to any of its remedies for rent or breach of
covenant, and may, at it's option, terminate this lease by giving
written notice of it's election so to do, or may, at it's option,
lease the Premises or any part thereof as the agent of the Tenant
or otherwise. The Tenant shall, without demand or further process
of law, pay to Landlord at the end of each month during the full
term of this lease the difference between the rent due Landlord
from the Tenant under this lease, including the increases in rent
due under Articles 18 and 19 below, and the net receipts, if any,
being received by the Landlord from the Premises (such net
receipts to be calculated by deducting from the gross receipts,
the expense of each and every kind incurred by Landlord in
connection with the re-letting of the Premises and performing
Tenant's obligations hereunder). In the event the rent for re-
letting the Premises is higher than the monthly rent under the
term of this lease, then such excess rent shall belong to the
Landlord and the Tenant shall have no claim thereto; and (c) the
foregoing rights and remedies given to the Landlord are and shall
be deemed to be cumulative, and the exercise of any of them shall
not be deemed to be an election excluding the exercise by the
Landlord at any other time of a different or inconsistent remedy.
Such rights and remedies shall be deemed to be given to said
Landlord in addition to any other and further rights granted to
Landlord by the terms hereof, or by the laws of the State of
Indiana, and the failure of the Landlord at any time to exercise
any right or remedy herein granted established by law shall not be
deemed to operate as a waiver of it's right to exercise such right
or remedy at any other time.
18. Rent Increase due to Increased Taxes. (a) The rent payable by
Tenant for each year during the term of this lease shall be
increased in accordance with the provisions of this Article, the
following definitions shall apply:
(1) The term "base year" shall mean the first calendar year 1997.
(2) The term "the proportionate share" shall mean 12.37%
(5,845 of 47,258).
(3) The term "real estate taxes" shall mean all taxes and
assessments levied, assessed or imposed at any time by any
municipal, county, or state or Federal government or any
government authority upon or against the land and/or building of
which the Premises form a part, and also any tax or assessment
levied, assessed or imposed at any time by any governmental
authority in connection with the receipt of income or rents from
said land and/or building to the extent that the same shall be in
lieu of all or a portion of any of the aforesaid taxes or
assessments upon or against said land and/or building.
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(b) In the event that the real estate taxes levied, assessed or
imposed for any calendar year following the base year shall exceed
the amount of such real estate taxes levied, assessed or imposed
during the base year, Tenant shall pay to Landlord as additional
rent an amount equal to its proportionate share of the excess.
Such amount shall be payable from Tenant to Landlord within ten
(10) days from the date that the Tenant has received written
notice requiring such payment together with paid tax bills or
photostatic copies thereof for such calendar year and for the base
year. (c) The amount of real estate taxes actually payable or paid
by Landlord for the base year shall be used in the computation of
the amount of additional rental payable under this Article 15
until the amount of real estate taxes payable for the base year
shall be reduced by final determination of legal proceedings,
settlement or otherwise. In the event of such reduction, the
reduced amount of such taxes shall thereafter determine the amount
of additional rent payable by Tenant pursuant to this Article and
the additional rent theretofore paid or payable hereunder shall be
re-computed on the basis of such reduction, and Tenant shall pay
to landlord as additional rent within ten (10) days after being
billed therefor, any difference between the amount of such
additional rent as theretofore computed and the amount thereof due
as the result of such recomputations. If, after Tenant shall have
made a payment of additional rent under this Article, Landlord
shall receive a refund of any portion of the real estate taxes
payable for any calendar year after the base year on which such
payment of additional rent shall have been based, as a result of a
reduction of such real estate taxes by final determination of
legal proceedings, settlement or otherwise, Landlord shall, within
ten (10) days after receiving the refund pay to Tenant the
Tenant's proportionate share of the refund less the expenses
(including attorneys; tax consultants', and appraisers' fees)
incurred by Landlord in connection with any such application or
proceeding.
20. Pro-Rating. On the date of any expiration or termination of
this lease, whether by lapse of time or otherwise, the entire
additional rent for the preceding calendar year as required by
Articles 18 and 19 above, and a proportionate share of the
additional rent for the calendar year during which such expiration
or termination occurs as required by said Articles 18 and 19,
shall immediately become due and payable by Tenant to the
Landlord. The said proportionate share shall be based upon the
length of time this lease shall have been in existence during such
latter calendar year. Promptly after said expiration or
termination, Landlord shall compute the additional rent due from
Tenant as aforesaid, which computation shall be an estimate based
upon the most recent annual statement furnished to Tenant under
Article 18 above, and the most recent tax xxxx furnished to tenant
under Article 19 above. Within ten (10) days after such statements
and such tax bills are furnished to Tenant, Landlord and Tenant
shall make appropriate adjustments for said estimated payments.
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21. Liens. (a) Tenant shall not do any act which shall in any way
encumber the title of Landlord in and to the Premises and the
building, nor shall the interest or estate of Landlord in said
Premises and building be in any way subject to any claim by way of
lien or encumbrance whether by operation of law or by virtue of
any express or implied contract by Tenant. Tenant will not permit
the Premises and building to become subject to any mechanics',
laborers' or materialmen's lien on account of labor or material
furnished or claimed to have been furnished to Tenant for or on
the Premises and building. At its election, Landlord may (but
shall not be required so to do) remove or discharge such lien or
claim for lien (with the right, in its discretion to settle or
compromise the same) and any amounts advanced by Landlord for such
purposes shall be so much additional rent due from Tenant to
Landlord at the next rent day after any such payment, with
interest at the rate of eight percent (8%) per annum from the date
of payment thereof.
22. Offset Statements. Tenant agrees at any time and from time to
time, upon not less than 20 days prior written request by
Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing certifying that this lease is unmodified and
in full force and effect (or if there have been modifications,
stating the modifications and that the lease as so modified is in
full force and effect), the commencement and termination dates of
this lease, that Tenant has accepted the Premises, and the date to
which rental and other charges have been paid in advance, if any,
and that the Tenant has no claims against Landlord or offsets
against rentals. It is intended that such statement may be relied
upon by prospective purchasers of Landlord's interest in the land
and building, or by a mortgage or assignee of any mortgage upon
Landlord's interest in said land and building.
23. Indemnity, Loss and Damages. (a) Tenant will pay and
discharge, and will indemnify and save harmless the Landlord
against and from all losses, liabilities, costs, damages, and
expenses, including reasonable architects' and attorneys' fees,
which may be incurred by or asserted against Landlord by reason of
or in respect to any of the following occurring during the term of
this lease: (I) any work or thing done by Tenant in, on or about
the Premises or any part thereof, (2) any use, non-use,
possession, occupation, condition, operation, maintenance or
management by Tenant of the Premises, or any part thereof; (3) any
negligence on the part of Tenant occurring in or about the
building structure, (b) In case any action or proceeding is
brought against the Landlord by reason of any losses, liabilities,
costs, damages, or expenses incurred by or asserted against the
Landlord, by reason of or in respect to any of the matters or
things set forth in subarticle (a) of this Article 23, Tenant,
upon written notice from the Landlord, will at Tenant's expense
resistor defend such action or proceedings.
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Tenant and Landlord agree to give each other prompt written notice
of any claim, action or proceedings brought or threatened against
Landlord and/or Tenant and/or against the Premises, of which
either party has notice. (c) To the extent permitted by law, the
Landlord shall not be liable for any damage either to person or
property (except damage willfully or wantonly caused by the
Landlord) sustained by the Tenant or by other persons due to the
building or any part thereof or any appurtenance thereof becoming
out of repair, or due to the happening of any accident in or about
said building, or due to any act or neglect of any tenant or
occupant of said building, or of any other person. This limitation
as to liability shall apply only to the Landlord.
24. Miscellaneous. (a) The invalidity of any provision, clause or
phrase herein contained shall not serve to render the balance of
this lease ineffective or void. (b) In the event that Landlord or
Tenant institute legal proceedings against the other for the
breach of any of the covenants or conditions herein contained,
then the successful party shall recover reasonable attorneys' fees
and expenses from the other. (c) This agreement shall be binding
upon and inure to the benefit of the respective parties hereto,
their heirs, executors, administrators, devisees, successors and
assigns. Any reference to the Tenant or Landlord herein shall, for
the purpose of determining liability for property damage, personal
injury and the like, be deemed to include the Tenant, Landlord,
his or its respective agents, employees, servants, partners,
independent contractors, licenses, invites, guests or visitors.
(d) This agreement supersedes and cancels all prior negotiations
and agreements whatsoever and these presents shall be amended only
upon the joint written undertaking of the parties hereto. (f)
Except as elsewhere herein expressly provided, all amounts owed by
the Tenant to the Landlord hereunder shall be deemed to be
additional rent and shall be deemed payable within ten (10) days
from the date the Landlord renders statement of account therefor
to the Tenant, and shall bear interest at the rate of 8% per annum
thereafter until paid. (g) The tenant shall abide by all
reasonable rules and regulations adopted by Landlord pertaining to
the operation and management of the building. If any rules and
regulations adopted by Landlord are contrary to the terms of this
lease, the terms of this lease shall govern.
IN WITNESS WHEREOF, the parties hereunto set their hands and
seal the day and year first above written.
LANDLORD: TENANT:
Combined Capital Associates VII, 21st Century Telesis, Inc.
an Indiana Limited Partnership a Delaware Corporation
BY: Xxxxxx X. Xxxxxxxx BY: Xxxxxx X. Xxxxxxx
ITS: Managing General Partner ITS: Executive Vice President
& Secretary
EXHIBIT B
ADDENDUM TO A LEASE
THE CENTURY BUILDING
215 SOUTH ST. XXXXXX STREET
SOUTH BEND, INDIANA
1. PARTIES: (LANDLORD) Combined Capital Associates VII
X.X. Xxx 0000
Xxxxx Xxxx, Xxxxxxx 00000
(TENANT) 21st Century Telesis, Inc.
000 Xxxxx Xx. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxx 00000
2. AREA: (A) Approximately 5,845 square feet as outlined on
exhibit A. (B) Use of outside space, if necessary, at rear (west)
of building for placement of FIVAC and/or standby generator
(subject to local codes). (C) Rooftop placement of small
communications antenna.
3. TERM: Ten (10) years.
4. RENT: Years I through 5 at $8.50 per square foot per year.
Years 6 through 10 at $9.25 per square foot per year.
5. ESCALATIONS: Tenant pays to Owner real estate tax escalations
for incremental increases over and above 1997 base year on a pro
rata and semi-annual basis.
6. TERM COMMENCEMENT: August 15, 1997
7. TERM EXPIRATION: August 14, 2007
8. OCCUPANCY: May 1, 1997
9. BUILD-OUT: Tenant to perform their own demolition and build
out including new HVAC equipment for Tenant's space and at
Tenant's expense.
10. UTTLITIES: Tenant to pay electric charges from Tenant
installed electric meter.
Electric meter to measure all electrical usage in Tenant's space
and Tenant's HVAC
Equipment. Owner responsible for all other utilities, except
telephone, and at Owner's
expense.
11. HVAC: Tenant to install and maintain their own HVAC system
for Tenant's space and outside area as outlined in paragraph 2
above, if necessary, and at Tenant's expense.
12. JANITORIAL SERVICES: Tenant to provide within Tenant's space
and at Tenant's expense. Owner to provide for common areas and
restrooms and at Owner's expense.
13. MAINTENANCE: Tenant will maintain within Tenant's space
including but not limited to light bulbs and at Tenant's expense.
Tenant will also be responsible for first floor HYAC unit and
backup generator, if necessary, and at Tenant's expense. Owner
responsible for all other major building components including
exterior and at Owners expense.
14. USE: Communications equipment and office and sales office
subject to zoning approval.
15. ACCESS: Tenant to have access 24 hours per day, 7 days per
week to building. Tenant shall have free access to first and third
floor hallways.
16. VENTTLATION: Tenant allowed to install ventilation and
cables, if necessary, through rear exterior wall and at Tenant's
expense.
17. PAYMENT OF RENT: Tenant shall pay to Owner first years rent
upon execution of Lease Agreement in the amount of $49,682.50. All
other rent Tenant pays to Owner shall be payable monthly in
advance.
18. OPTION TO RENEW: Extension # I for years II through 15 at
$10.00 per square foot per year. Extension #2 for years 16 through
20 at $10.50 per square foot per year.
20. SIGNAGE: Tenant shall, at Tenant's discretion, install
exterior signage at street level on South East corner on the East
side of building by Tenant at Tenant's expense as shown on exhibit
C.
21. COMMISSIONS: A six (6) percent leasing commission of the
initial term often (10) years will be paid by Owner to Century 21
Realty Plus Commercial in the amount of $31,124.63 upon delivery
of the signed Lease Agreement. No leasing commission will be paid
to Century 21 Realty Plus Commercial on any option to renew
exercised by Tenant. Century 21 Realty Plus Commercial has
disclosed that no commissions are being paid by Tenant, either
directly or indirectly, to Century 21 Realty Plus Commercial.
AGREED TO AND ACCEPTED THIS 14th DAY OF MAY, 1997.
OWNER
COMBINED CAPITAL ASSETS VII
By: Xxxxxx X. Xxxxxxxx, Managing General Partner
AGREED TO AND ACCEPTED THIS 14th DAY OF MAY, 1997.
TENANT
21st CENTURY TELESIS, INC.
BY: Xxxxxx X. Xxxxxxx
ITS: Executive Vice President & Secretary
