EXHIBIT 10.1
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LEASE AGREEMENT
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
The ▇▇▇▇ ▇▇▇▇▇▇ Family Trust ("Landlord")
Entrade, Inc. ("Tenant")
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made and entered into as of this 1st
day of January, 2000 between The ▇▇▇▇ ▇▇▇▇▇▇ Family Trust ("Landlord") and
Entrade, Inc.("Tenant"), a Pennsylvania corporation.
W I T N E S S E T H :
1. PREMISES AND TERM.
In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions, and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from Landlord, the approximately twelve thousand
seven hundred (12,700) square feet outlined on the plan attached hereto as
Exhibit 1A (the "Leased Premises") located in the building commonly known
as ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building"),
situated on the real property described in Exhibit 1B attached hereto (the
"Property") which is part of a development in Northfield, Illinois (the
"Development"). The leased premises shall be used for the following
purposes and no others: General office and storage.
TO HAVE AND TO HOLD the same for a term of sixty months ( 60)
commencing on January 1, 2000 and ending on December 31, 2004 unless
terminated or extended pursuant to any provision hereof. Tenant
acknowledges that no representations as to the repair of the leased
premises, nor promises to alter, remodel or improve the leased premises
have been made by Landlord, unless such are expressly set forth in this
Lease.
2. BASE RENT AND SECURITY DEPOSIT.
A. (1) The tenant shall pay to the landlord for the demised
premises during the term of this lease in lawful money of the United States
the sum of Two Hundred Seventy-Nine Thousand, Two Hundred- Forty-Six
Dollars ($279,246.00) for each lease year that this lease is in effect, as
and for a minimum annual rental, which said sum shall be payable in equal
monthly installments of Twenty-Three Thousand, Two Hundred-Seventy and
50/100 Dollars ($23,270.50) each, payable in advance and without notice
commencing on January 1, 2000, being the first day of the first lease year
of the term hereof.
(2) Commencing on January 1, 2001 and annually thereafter
during the term of the Lease the annual minimum rental for such period
shall be that annual minimum rental charged during the proceeding year
increased by the percentage increase in the Consumer Price Index "All
items" United States, popularly known as the Cost of Living Index
(presently published monthly by the Bureau of Labor Statistics of the U.S.
Department of Labor) using said Consumer Price Index (1967 base) for the
first six (6) months of the original term of this Lease as a denominator,
and said Consumer Price Index for the last six (6) months of the original
term of this Lease, as a numerator. This fraction shall be multiplied by
that annual minimum
rental charged during the last year of the original term of this
Lease and the resulting amount shall be the amount of the annual minimum
rental during said option period. The annual minimum rental shall be
increased during each additional option period following by the resulting
percentage derived from a fraction having as its denominator the Consumer
Price Index (1967 base) for the average first six (6) months of the
original term of this Lease, and as its numerator the Consumer Price Index
(1967 base) for the average last six (6) months of said prior option
period. In no event shall the annual minimum rental charged during any
extended term be less than that rental charged during the last year of the
original term of this Lease. If the base year selected by the U.S.
Department of Labor shall be changed, then the resultant Index shall be
readjusted, so as to reflect the base initially established under this
Lease. If the said Index shall no longer be published or cannot be
adjusted, then another Index generally recognized as authoritative shall be
substituted by agreement between the parties.
Rental payment for any fractional calendar month end of the lease term
shall be prorated.
B. Tenant has deposited with Landlord the sum of 0 Thousand and
no/100 Dollars ($0.00), which sum shall be held by Landlord, without
obligation for interest, as security for the full, timely and faithful
performance of Tenant's covenants and obligations under this Lease, it
being expressly understood and agreed that such deposit is not an advance
rental or a measure of Landlord's damages in case of Tenant's default.
Upon the occurrence of any event of default by Tenant, Landlord may, from
time to time, without prejudice to any other remedy provided herein or
provided by law, use such fund to the extent necessary to make good any
arrears of rent or other payments due Landlord hereunder, and any other
damage, injury, expense or liability caused by any event of Tenant's
default; and Tenant shall pay to such Trust on demand the amount so applied
in order to restore the security deposit to its original amount. Any
remaining balance of such deposit shall be returned by Landlord to Tenant
within thirty (30) days after termination of this Lease when Landlord shall
have determined that all Tenant's obligations under this Lease have been
fulfilled. Subject to the other terms and conditions contained in this
Lease, if the Building is conveyed by Landlord, said deposit may be turned
over to Landlord's grantee and if so, Tenant hereby releases Landlord from
any and all liability with respect to said deposit and its application or
return.
3. TAXES.
Landlord agrees to pay all general and special taxes, assessments,
and governmental charges of any kind and nature whatsoever (collectively
"taxes") lawfully levied against the Property.
4. ELECTRIC SERVICE
To the extent Tenant is not billed directly by a public utility,
Landlord shall pay for all electricity used by Tenant in the leased
premises for lighting, convenience outlets, and other direct uses in
reasonable amounts commensurate with the intended use of the premises.
Tenant shall furnish, at its own expense, all electric light bulbs, tubes
and ballasts. Tenant will not without the written consent of Landlord use
any apparatus or device in the leased premises which will in any way
increase its usage beyond the amount of electricity which Landlord
determines to be reasonable for use of the leased premises as general
office space, nor connect with electric current (except through existing or
new, at Tenant's sole expense, electrical outlets in the leased premises)
any apparatus or device for the purpose of using electric current. If
Tenant shall require electric current in excess of that which is reasonably
obtainable from existing electric outlets and normal for use of the leased
premises as general office space, then Tenant shall first procure the
consent of Landlord (which consent will not be unreasonably withheld).
Tenant shall pay all costs of installation of all facilities necessary to
furnishing such excess capacity and for such increased electricity usage.
Interruptions of any service shall not be deemed an eviction or
disturbance of Tenant's use and possession of the leased premises or any
part thereof, or render Landlord liable for damages by abatement of rent or
otherwise or relieve Tenant from performance of Tenant's obligations under
this Lease.
5. ALTERATIONS.
All improvements to the leased premises shall be installed at the
cost and expense of Tenant (which cost shall be payable on demand by
Landlord as additional rent), but only in accordance with plans and
specifications which have been previously submitted to and approved in
writing by Landlord, and only by Landlord or by contractors and
subcontractors approved in writing by Landlord (which approval shall not be
unreasonably withheld). In connection with any request for an approval of
alterations by Tenant, Landlord may retain the services of an architect
and/or engineer and Tenant shall reimburse Landlord for the reasonable fees
of such architect and/or engineer. All alterations, additions,
improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the term of this Lease and Tenant shall, unless
Landlord elects at the time of approval or otherwise elects as hereinafter
provided, remove all alterations, improvements and partitions erected by
Tenant and restore the leased premises to its original condition by the
date of termination of this Lease or upon earlier vacating of the leased
premises; provided, however, that, if at such time Landlord so elects, such
alterations, additions, improvements and partitions shall become the
property of Landlord as of the date of termination of this Lease or upon
earlier vacating of the leased premises and title shall pass to Landlord
under this Lease as by a ▇▇▇▇ of sale. All such removals and restoration
shall be accomplished in a good workmanlike manner by contractors approved
in writing by Landlord so as not to damage the primary structure or
structural qualities of the Building. All alterations, additions or
improvements proposed by Tenant shall be constructed in accordance with all
governmental laws, ordinances, rules and regulations and Tenant shall,
prior to construction, provide such assurances to Landlord, including but
not limited to, waivers of lien and surety company performance bonds, as
Landlord shall require to assure payment of the costs thereof and to
protect Landlord against any loss from any mechanics', laborers',
materialmen's or other liens.
6. SERVICE
A. Landlord agrees to furnish Tenant, while occupying the leased
premises, water, hot and cold at those points of supply provided for
general use of Tenants; heat in season at such times as Landlord normally
furnishes these services to all tenants of the Building, and at such
temperatures and in such amounts as are in accordance with any applicable
statutes, rules or regulations and are considered by Landlord to be
standard, which shall include normal business hours on weekends, and
holidays and such window washing as may from time to time in the Landlord's
judgment be reasonably required; but failure to any extent to furnish or
any stoppage or interruption of these defined services, resulting from any
cause, shall not render Landlord liable in any respect for damages to any
person, property or business, nor be construed as an eviction of Tenant or
work an abatement of rent, nor relieve Tenant from fulfillment of any
covenant or agreement hereof. Should any equipment or machinery furnished
by Landlord cease to function properly, Landlord shall use reasonable
diligence to repair the same promptly, but Tenant shall have no claim for
rebate of rent or damages on account of any interruptions in service
occasioned thereby or resulting therefrom. Whenever heat generating
machines or equipment are used by Tenant in the leased premises which
affect the temperature otherwise maintained by the air conditioning
equipment, Landlord reserves the right to install supplementary air
conditioning units in the leased premises (or for the use of the leased
premises) and the expense of such purchase, installation, maintenance, and
repair shall be paid by Tenant upon demand as additional rent.
B. Landlord shall provide janitorial services five (5) nights a
week by a janitorial contractor or employees at all times satisfactory to
Landlord and the Tenant.
7. USE OF PREMISES.
A. Tenant will not occupy or use, nor permit any portion of leased
premises to be occupied or used, for any business or purpose other than
that described above or for any use or purpose which is unlawful in part or
in whole or deemed to be disreputable in any manner, or extra hazardous on
account of fire, nor permit anything to be done which will render void or
in any way increase the rate of fire insurance on the Building or its
contents, and Tenant shall upon notification immediately cease and desist
from such use, paying all costs and expenses resulting therefrom.
B. Tenant shall at its own cost and expense promptly obtain any
and all licenses and permits necessary for any permitted use. Tenant shall
comply with all governmental laws, ordinances and regulations applicable to
the use and its occupancy of the leased premises, and shall promptly comply
with all governmental orders and directives for the correction, prevention
and abatement of any violations or nuisances in or upon, or connected with,
the leased premises, all at Tenant's sole expense. If, as a result of any
change in the governmental laws, ordinances, and regulations, the leased
premises must be altered to lawfully accommodate Tenant's use and
occupancy, such alterations shall be made only with the consent of
Landlord, but the entire cost shall be borne by Tenant; provided, that, the
necessity of Landlord's consent shall in no way create any liability
against Landlord for failure of Tenant to comply with such laws, ordinances
and regulations. Tenant shall not be responsible for the cost of any
alteration to comply with the Americans with Disabilities Act and the
regulations issued thereunder.
C. Tenant will maintain the Leased Premises (including all
fixtures installed by Tenant, water heaters within the leased premises and
plate glass) in good repair, reasonable wear and tear excepted, and in a
clean and healthful condition, and comply with all laws, ordinances,
orders, rules, and regulations (state, federal, municipal, and other
agencies or bodies having any jurisdiction thereof) with reference to
condition, or occupancy of the leased premises. Any repairs or
replacements shall be with materials and workmanship of the same character,
kind and quality as the original. Tenant will not, without the prior
written consent of Landlord, such consent not to be unreasonably withheld,
paint, install lighting or decorations, or install any signs, window or
door lettering or advertising media of any type on or about the leased
premises.
D. Tenant will conduct its business and control its agents,
employees and invitees in such a manner as not to create any nuisance, nor
interfere with, annoy, or disturb other tenants or Landlord in the
management of the Building.
E. Tenant shall pay upon demand as additional rent the full cost
of repairing any damage to the leased premises, Building or related
facilities resulting from and/or caused in whole or in part by the
negligence or misconduct of Tenant, its agents, servants, employees,
patrons, customers, or any other person entering upon the Development as a
result of Tenant's business activities or resulting from Tenant's default
hereunder.
F. At termination of this Lease, upon its expiration or otherwise,
Tenant shall deliver the leased premises with all improvements located
thereon (except as herein provided) in good repair and condition,
reasonable wear and tear excepted, broom clean, and free from all debris.
8. INSPECTIONS.
Landlord shall have the right to enter the leased premises at any
reasonable time, with prior notice except in the event of an emergency, for
the following purposes: (i) to ascertain the condition of the leased
premises; (ii) to determine whether Tenant is diligently fulfilling
Tenant's responsibilities under this Lease; (iii) to clean and to make such
repairs as may be required or permitted to be made by Landlord under the
terms of this Lease; or (iv) to do any other act or thing which Landlord
deems reasonable to preserve the leased premises and the Building. During
the six (6) months prior to the end of the term hereof and at any time
Tenant is in default hereunder, Landlord shall have the right to enter the
leased premises with prior notice during business hours for the purpose of
showing the premises. Tenant shall give written notice to Landlord at
least thirty (30) days prior to vacating and shall arrange to meet with
Landlord for a joint inspection of the leased premises. In the event of
Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the leased premises
shall be conclusively deemed correct for purposes of determining Tenant's
responsibility for repairs and restoration.
9. ASSIGNMENT AND SUBLETTING
A. Tenant shall not have the right to assign or pledge this Lease
or to sublet the whole or any part of the leased premises, whether
voluntarily or by operation of law, or permit the use or occupancy of the
leased premises by anyone other than Tenant, without the prior written
consent of Landlord, such consent not to be unreasonably withheld, and such
restrictions shall be binding upon any assignee or subtenant to which
Landlord has consented. In the event Tenant desires to sublet the leased
premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord within a reasonable time prior to the
proposed commencement date of such subletting or assignment, which notice
shall set forth the name of the proposed subtenant or assignee, the
relevant terms of any sublease and copies of financial reports and other
relevant financial information of the proposed subtenant or assignee. In
no event may Tenant sublet, nor will Landlord consent to any sublease of,
all or any portion of the leased premises if the rent is determined in
whole or in part based upon the income or profits derived by the sublessee
(other than a rent based on a fixed percentage or percentages of receipts
or sales). Notwithstanding any permitted assignment or subletting, Tenant
shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent herein specified and for compliance with
all of its other obligations under the terms, provisions and covenants of
his Lease. Upon the occurrence of an "event of default" (as hereinafter
defined), if the leased premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided or
provided by law, may, at its option, collect directly from such assignee or
subtenant all rents due and becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due to Landlord from Tenant
hereunder, and no such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Tenant's
obligations hereunder. Tenant shall pay to Landlord, on demand, a
reasonable service charge for the processing of the application for the
consent and for the preparation of the consent. Such service charge shall
be collectible by Landlord only where consent is granted by Landlord.
B. In addition to, but not in limitation of, Landlord's right to
approve of any subtenant or assignee, Landlord shall have the option, in
its sole discretion, in the event of any proposed subletting or assignment,
to terminate this Lease, or in the case of a proposed subletting of less
than the entire leased premises, to recapture the portion of the leased
premises to be sublet, as of the date the subletting or assignment is to be
effective. The option shall be exercised, if at all, by Landlord giving
Tenant written notice thereof within sixty (60) days following Landlord's
receipt of Tenant's written notice as required above. If this Lease shall
be terminated with respect to the entire leased premises pursuant to this
paragraph, the term of this Lease shall end on the date stated in Tenant's
notice as the effective date of the sublease or assignment as if that date
had been originally fixed in this Lease for the expiration of the term
hereof. If Landlord recaptures under this paragraph only a portion of the
leased premises, the rent during the unexpired term shall ▇▇▇▇▇
proportionately based on the rent contained in this Lease as of the date
immediately prior to such recapture. Tenant shall, at Tenant's own cost and
expense, discharge in full any commission obligation which may be due and
owing as a result of any assignment or subletting, whether or not the
leased premises are recaptured pursuant hereto and rented by Landlord to
the proposed tenant or any other tenant. In the event of the recapture of
a portion of the leased premises by Landlord pursuant to the terms of this
paragraph, Tenant shall pay all costs associated with the separation of the
recaptured premises from the portion not recaptured, including, but without
limitation, the cost of all demising partitions, changes in lighting and
HVAC distribution systems and all reasonable architectural and/or
engineering fees.
C. Any assignment or subletting by Tenant pursuant to subparagraph
9A of all or any portion of the leased premises, or termination of the
Lease for a portion of the leased premises pursuant to subparagraph 9B,
shall automatically operate to terminate each and every right, option, or
election, if any exist, belonging to Tenant, including by way of
illustration, but not limitation, any option to expand its premises or to
extend or renew the term of Tenant's Lease for all or any portion of the
leased premises - i.e., such rights and options shall cease as to both
space sublet or assigned and as to any portion of the original leased
premises retained by Tenant.
D. Notwithstanding the terms of 9A-C above, Tenant shall have the
right to sublet all or any portion of the Premises to any wholly owned
subsidiary or affiliate of Tenant.
10. FIRE AND CASUALTY DAMAGE.
A. If the Building, Improvements, or leased premises are rendered
partially or wholly untenantable by fire or other casualty, and if such
damage cannot, in Landlord's reasonable estimation, be materially restored
within ninety (90) days of such damage, then Landlord or Tenant may, at its
sole option, terminate this Lease as of the date of such fire or casualty.
Landlord or Tenant shall exercise its option provided herein by written
notice within sixty (60) days of such fire or other casualty. For purposes
hereof, the Building or leased premises shall be deemed "materially
restored" if they are in such condition as would not prevent or materially
interfere with Tenant's use of the leased premises for the purpose for
which it was then being used.
B. If this Lease is not terminated pursuant to Paragraph 10A, then
Landlord shall proceed with all due diligence to repair and restore the
Building, improvements or leased premises, as the case may be (except that
Landlord may elect not to rebuild if such damage occurs during the last
year of the term exclusive of any option which is unexercised at the date
of such damage).
C. If this Lease shall be terminated pursuant to this Paragraph
10, the term of this Lease shall end on the date of such damage as if that
date had been originally fixed in this Lease for the expiration of the term
hereof. If this Lease shall not be terminated by Landlord pursuant to this
Paragraph 10 and if the leased premises is untenantable in whole or in part
following such damage, the rent payable during the period in which the
leased premises is untenantable shall be reduced to such extent, if any, as
may be fair and reasonable under all of the circumstances. In the event
that Landlord should fail to complete such repairs and material restoration
within one hundred fifty (150) days after the date of such damage, Tenant
may at its option and as its sole remedy terminate this Lease by delivering
written notice to Landlord, whereupon the Lease shall end on the date of
such notice as if the date of such notice were the date originally fixed in
this Lease for the expiration of the term hereof; provided, however, that
if construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, acts of
God, war, material or labor shortages, governmental regulation or control
or other causes beyond the reasonable control of Landlord, the period for
restoration, repair or rebuilding shall be extended for the amount of time
Landlord is so delayed.
In no event shall Landlord be required to rebuild, repair or replace
any part of the partitions, fixtures, additions and other improvements
which may have been placed in or about the leased premises by Tenant.
Except as otherwise provided by Paragraph 11, any insurance which may be
carried by Landlord or Tenant against loss or damage to the Building or
leased premises shall be for the sole benefit of the party carrying such
insurance and under its sole control.
D. Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust
covering the leased premises, Building or Property requires that any
insurance proceeds be applied to such indebtedness, then Landlord shall
have the right to terminate this Lease by delivering written notice of
termination to Tenant within fifteen (15) days after such requirement is
made by any such holder, whereupon the Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the term hereof.
E. Each of Landlord and Tenant hereby releases the other from any
and all liability or responsibility to the other or anyone claiming through
or under them by way of subrogation or otherwise for any loss or damage to
property caused by fire, extended coverage perils, vandalism or malicious
mischief, sprinkler leakage or any other perils insured in policies of
insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible, including any other tenants or
occupants of the remainder of the Building in which the leased premises is
located; provided, however, that this release shall be applicable and in
force and effect only to the extent that such release shall be lawful at
that time and in any event only with respect to loss or damage occurring
during such times as the releasor's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely affect
or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable
under such policies. Each Landlord and Tenant agrees that it will request
its insurance carriers to include in its policies such a clause or
endorsement. If extra cost shall be charged therefor, each party shall
advise the other thereof and of the amount of the extra cost, and the other
party, at its election, may pay the same, but shall not be obligated to do
so. If such other party fails to pay such extra cost, the release
provisions of this paragraph shall be inoperative against such other party
to the extent necessary to avoid invalidation of such releasor's insurance.
F. In the event of any damage or destruction to the Building or
the leased premises by any peril covered by the provisions of this
Paragraph 10, Tenant shall, upon notice from Landlord, remove forthwith, at
its sole cost and expense, such portion or all of the property belonging to
Tenant or his licensees from such portion or all of the Building or the
leased premises as Landlord shall request and Tenant hereby indemnifies and
holds Landlord harmless from any loss, liability, costs, and expenses,
including attorney's fees, arising out of any claim of damage or injury as
a result of any alleged failure to properly secure the leased premises
prior to such removal and/or such removal.
11. LIABILITY.
Landlord shall not be liable for and Tenant will indemnify and hold
Landlord harmless from any loss, liability, costs and expenses, including
attorney's fees, arising out of any claim of injury or damage on or about
the leased premises caused by the negligence or misconduct or breach of
this Lease by Tenant, its employees, subtenants, invitees or by any other
person entering the leased premises or the Building or Development under
express or implied invitation of Tenant or arising out of Tenant's use of
the leased premises. Landlord shall not be liable to Tenant or Tenant's
agents, employees, invitees or any person entering upon the Development in
whole or in part because of Tenant's use of the leased premises for any
damage to persons or property due to condition, design, or defect in the
Building or its mechanical systems which may exist or occur, except as a
result of Landlord's willful acts or negligence, and Tenant assumes all
other risks of damage to such persons or property. Landlord shall not be
liable or responsible for any loss or damage to any property or person
occasioned by theft, fire, act of God, public enemy, injunction, riot,
strike, insurrection, war, court order, requisition or order of
governmental body or authority, or other matter beyond control of Landlord,
or for any injury or damage or inconvenience, which may arise through
repair or alteration of any part of the Building, or failure to make
repairs, or from any cause whatever except Landlord's willful acts or
negligence. Tenant shall procure and maintain throughout the term of this
Lease a policy of insurance, in form and substance satisfactory to
Landlord, at Tenant's sole cost and expense, insuring both Landlord and
Tenant against all claims, demands or actions arising out of or in
connection with: (i) the leased premises; (ii) the condition of the leased
premises; (iii) Tenant's operations in and maintenance and use of the
leased premises; and (iv) Tenant's liability assumed under this Lease; the
limits of such policy to be in the amount of not less than $1,000,000 per
occurrence in respect of injury to persons (including death) and in the
amount of not less than $500,000 per occurrence in respect of property
damage or destruction, including loss of use thereof. Such policy shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. A certified copy of such policy, together with receipt
evidencing payment of the premium, shall be delivered to Landlord prior to
the commencement of this Lease. Not less than thirty (30) days prior to
the expiration date of such policy, a certified copy of a renewal thereof
(bearing notations evidencing the payment of the renewal premium) shall be
delivered to Landlord. Such policy shall further provide that not less
than thirty (30) days written notice shall be given to Landlord before such
policy may be canceled or changed to reduce the insurance coverage provided
thereby.
12. CONDEMNATION.
A. If any substantial part of the Building, improvements, or
leased premises should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain,
or by private purchase in lieu thereof and the taking would prevent or
materially interfere with the use of the Building or leased premises for
the purpose for which it is then being used, this Lease shall terminate
effective when the physical undertaking shall occur in the same manner as
if the date of such taking were the date originally fixed in this Lease for
the expiration of the term hereof.
B. If part of the Building, improvements, or leased premises shall
be taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain, or by private
purchase in lieu thereof, and this Lease is not terminated as provided in
the subparagraph above, this Lease shall not terminate but the rent payable
hereunder during the unexpired portion of this Lease shall be reduced to
such extent, if any, as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the Building,
improvements, and leased premises to a condition suitable for Tenant's use,
as near to the condition thereof immediately prior to such taking as is
reasonably feasible under all the circumstances.
C. In the event of any such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to receive and retain
such separate awards and/or portion of lump sum awards as may be allocated
to their respective interests in any condemnation proceedings; provided
that Tenant shall not be entitled to receive any award for Tenant's loss of
its leasehold interest, the right to such award being hereby assigned by
Tenant to Landlord.
13. HOLDING OVER.
Tenant, will at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the leased premises or any part thereof after such
termination, then Landlord may, at its option, serve written notice upon
Tenant that such holding over constitutes any one of (i) renewal of this
Lease for one year, and from year to year thereafter, or (ii) creation of a
month to month tenancy, upon the terms and conditions set forth in this
Lease, or (iii) creation of a tenancy at sufferance, in any case upon the
terms and conditions set forth in this Lease; provided however, that the
monthly rental (or daily rental under (iii)) shall, in addition to all
other sums which are to paid by Tenant hereunder, whether or not as
additional rent, be equal to double the rental being paid monthly to
Landlord under this Lease immediately prior to such termination (prorated
in the case of (iii) on the basis of a 365 day year for each day Tenant
remains in possession). If no such notice is served, then a tenancy at
sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant, including the
loss of any proposed subsequent tenant for any portion of the leased
premises. The provisions of this paragraph shall not constitute a waiver
by Landlord of any right of re-entry as herein set forth; nor shall receipt
of any rent or any other act in apparent affirmance of the tenancy operate
as a waiver of the right to terminate this Lease for a breach of any of the
terms covenants, or obligations herein on Tenant's part to be performed.
14. QUIET ENJOYMENT.
Landlord represents that it has full right and authority to enter
into this Lease and that Tenant, while paying the rental and performing its
other covenants and agreements herein set forth, shall peaceably and
quietly have, hold and enjoy the leased premises for the term hereof
without hindrance or molestation from Landlord subject to the terms and
provisions of this Lease. Landlord shall not be liable for any
interference or disturbance by other tenants or third persons, nor shall
Tenant be released from any of the obligations of this Lease because of
such interference or disturbance.
15. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, whether such sum be any
installment of the rent herein reserved, any other amount treated as
additional rent hereunder, or any other payment or reimbursement to
Landlord required herein, whether or not treated as additional rent
hereunder, and such failure shall continue for a period of five ( 5) days
from the date such payment was due; or
(b) Tenant shall fail to comply with any term, provision or
covenant of this Lease other than by failing to pay when or before due any
sum of money becoming due to be paid to Landlord hereunder, and shall not
cure such failure within thirty (30) days (forthwith, if the default
involves a hazardous condition) after written notice thereof to Tenant, or
if such cure cannot be effected within such thirty (30) day period, if
Tenant shall fail to commence such cure within such thirty (30) day period
and diligently prosecute such cure to completion; or
(c) Tenant shall fail to vacate the leased premises immediately
upon termination of this Lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only; or
(d) The leasehold interest of Tenant shall be levied upon under
execution or be attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give sufficient
security to Landlord to insure payment thereof or shall fail to satisfy any
judgment rendered thereon and have the same released, and such default
shall continue for ten (10) days after written notice thereof to Tenant; or
(e) Tenant shall file a petition in bankruptcy, a petition to take
advantage of any insolvency statute, make an assignment for the benefit of
creditors, make a transfer in fraud of creditors, apply for or consent to
the appointment of a receiver of itself or of the whole or any substantial
part of its property, or file a petition or answer seeking reorganization
or arrangement under the federal bankruptcy laws, as now in effect or
hereafter amended, or any other applicable law or statute of the United
States or any state thereof; or
(f) A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant a bankrupt, or appointing a receiver
of Tenant, or of the whole or any substantial part of its property, without
the consent of the Tenant, or approving a petition filed against Tenant
seeking reorganization or arrangement of Tenant under the bankruptcy laws
of the United States, as now in effect hereafter amended, or any state
thereof, and such order, judgment or decree shall not be vacated or set
aside or stayed within thirty (30) days from the date of entry thereof, or
(g) Tenant shall abandon or vacate any substantial portion of the
leased premises
16. REMEDIES.
Upon the occurrence of any such events of default described in
Paragraph 15 hereof or elsewhere in this Lease, Landlord shall have the
option to pursue any one or more of the following remedies with notice:
(a) Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease;
(b) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
leased premises immediately, and deliver possession thereof to Landlord,
and Tenant hereby grants to Landlord license to enter into and upon the
leased premises in such event with or without process of law and to
repossess Landlord of the leased premises as Landlord's estate and to expel
or remove Tenant and any others who may be occupying or within the leased
premises and or remove any and all property therefrom, without being deemed
in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom,
Tenant hereby waiving any right to claim damage for such reentry and
expulsion, and without relinquishing Landlord's rights to rent or any other
right given to Landlord hereunder or by operation of law;
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent hereunder, and other sums
due and payable by Tenant on the date of termination, plus the sum of (i)
an amount equal to the then present value of the rent, including any
amounts treated as additional rent hereunder, and other sums provided
herein to be paid by Tenant for the residue of the stated term hereof, less
the fair rental value of the leased premises for such residue (taking into
account the time and expense necessary to obtain a replacement tenant or
tenants, including expenses hereinafter described in subparagraph (d)
relating to recovery of the leased premises, preparation for reletting and
for reletting itself), and (ii) the cost of performing any other covenants
which would have otherwise been performed by Tenant;
(d) (i) Upon any termination of Tenant's right to possession only
without termination of the Lease, Landlord may, at Landlord's option, enter
into the leased premises, remove Tenant's signs and other evidences of
tenancy, and take and hold possession thereof as provided in subparagraph
(b) above, without such entry and possession terminating the Lease or
releasing Tenant, in whole or in part, from any obligation, including
Tenant's obligation to pay the rent, including any amounts treated as
additional rent, hereunder for the full term. In any such case, Tenant
shall pay forthwith to Landlord, if Landlord so elects, a sum equal to the
entire amount of the rent, including any amounts treated as additional rent
hereunder, for the residue of the stated term hereof plus any other sums
provided herein to be paid by Tenant for the remainder of the Lease term;
(ii) Landlord may, but need not, relet the leased
premises or any part thereof for such rent and upon such terms as Landlord
in its sole discretion, shall determine (including the right to relet the
premises for a greater or lesser term than that remaining under this Lease,
the right to relet the leased premises as a part of a larger area, and the
right to change the character or use made of the leased premises). If
Landlord decides to relet the leased premises or a duty to relet is imposed
upon Landlord by law, Landlord and Tenant agree that Landlord shall only be
required to use the same efforts Landlord then uses to lease other
properties Landlord owns or manages (or if the leased premises is then
managed for Landlord, then Landlord will instruct such manager to use the
same efforts such manager then uses to lease other space or properties
which it owns or manages); provided however, that Landlord (or its manager)
shall not be required to give any preference or priority to the showing or
leasing of the leased premises over any other space that Landlord (or its
manager) may be leasing or have available and may place a suitable
prospective tenant in any such available space regardless of when such
alternative space becomes available; provided further, that Landlord shall
not be required to observe any instruction given by Tenant about such
reletting or accept any tenant offered by Tenant unless such offered
tenant has a creditworthiness acceptable to Landlord, leases the entire
leased premises, agrees to use the leased premises in a manner consistent
with the Lease and leases the leased premises at the same rent and on the
same terms and conditions as in this Lease without the expenditure of the
Landlord for tenant improvements or broker's commissions. In any such
case, Landlord may, but shall not be required to make repairs, alterations
and additions in or to the leased premises and redecorate the same to the
extent Landlord deems necessary or desirable, and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses of
reletting, including without limitation, any broker's commission incurred
by Landlord. If the consideration collected by Landlord upon any such
reletting plus any sums previously collected from Tenant are not sufficient
to pay the full amount of all rent, including any amounts treated as
additional rent hereunder and other sums reserved in this Lease for the
remaining term hereof, together with the cost of repairs, alterations,
additions, redecorating, and Landlord's expenses of reletting and the
collection of the rent accruing therefrom (including attorney's fee and
broker's commission), Tenant shall pay to Landlord the amount of such
deficiency upon demand and Tenant agrees that Landlord may file suit to
recover sums falling due under this section from time to time;
(e) Landlord may, at Landlord's option, enter into and upon the
leased premises, with or without process of law, if Landlord determines in
its sole discretion that Tenant is not acting within a commercially
reasonable time to maintain, repair or replace anything for which Tenant is
responsible hereunder and correct the same, without being deemed in any
manner guilty of trespass, eviction of forcible entry and detainer and
without incurring any liability for any damage resulting therefrom and
Tenant agrees to reimburse Landlord, on demand, as additional rent, for any
expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease;
(f) Any and all property which may be removed from the leased
premises by Landlord pursuant to the authority of the Lease or of law, to
which Tenant is or may be entitled, may be handled, removed and stored, as
the case may be, by or at the discretion of Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay to Landlord,
upon demand, any and all expenses incurred in such removal and all storage
charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not
retaken by Tenant from storage within thirty (30) days after removal from
the leased premises shall, at Landlord's option, be deemed conveyed by
Tenant to Landlord under this Lease as by a ▇▇▇▇ of sale without further
payment or credit by Landlord to Tenant.
In the event Tenant fails to pay any installment of rent, including
any amount treated as additional rent hereunder, or other sums hereunder as
and when such installment or other charge is due, Tenant shall pay to
Landlord on demand a late charge in an amount equal to five percent (5%) of
such installment or other charge overdue in any month to help defray the
additional cost to Landlord for processing such late payments, and such
late charge shall be additional rent hereunder and the failure to pay such
charge within ten (10) days after demand therefor shall be an additional
event of default hereunder. Late charges shall not accumulate monthly for
any single default. The provision of such late charge shall be in addition
to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's
remedies in any matter.
Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies herein provided or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions, covenants herein contained. No
act or thing done by Landlord or its agents during the term hereby granted
shall be deemed a termination of this Lease or an acceptance of the
surrender of the leased premises, and no agreement to terminate this Lease
or accept a surrender of said premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of
any of the terms, provisions and covenants herein contained shall be deemed
or construed to constitute a waiver of any other violation or breach of any
of the terms, provisions and covenants herein contained. Landlord's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as a waiver of
such default, unless Landlord so notifies Tenant in writing. Forbearance
by Landlord in enforcing one or more of the remedies herein provided upon
an event of default shall not be deemed or construed to constitute a waiver
of such default of Landlord's right to enforce any such remedies with
respect to such default or any subsequent default. If, on account of any
breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for
Landlord to employ or consult with an attorney concerning or to enforce or
defend any of Landlord's rights or remedies hereunder, Tenant agrees to pay
any attorney's fees so incurred.
17. LANDLORD'S LIENS.
In addition to any statutory lien for rent in Landlord's favor,
Landlord shall have and Tenant hereby grants to Landlord a continuing
security interest for all rentals and other sums of money becoming due
hereunder from tenant, upon all goods, wares, equipment, fixtures,
furniture, and other tangible personal property of Tenant situated on the
leased premises, and such property shall not be removed therefrom without
the consent of Landlord until all arrearages in rent as well as any and all
other sums of money then due to Landlord hereunder shall first have been
paid and discharged. In the event of a default under this Lease, Landlord
SHALL HAVE, IN ADDITION TO ANY OTHER REMEDIES PROVIDED HEREIN OR BY LAW,
ALL RIGHTS AND REMEDIES UNDER THE UNIFORM COMMERCIAL CODE, INCLUDING
WITHOUT LIMITATION THE RIGHT TO SELL THE PROPERTY DESCRIBED IN THIS
PARAGRAPH 17 AT PUBLIC OR PRIVATE SALE UPON FIVE (5) DAYS' NOTICE TO
TENANT. Tenant hereby agrees to execute such financing statements and
other instruments necessary or desirable in Landlord's discretion to
percent the security interest hereby created. Any statutory lien for rent
is not hereby waived, the express contractual lien herein granted being in
addition and supplementary thereto.
18. MORTGAGES.
Tenant accepts this Lease subject and subordinate to any mortgage(s)
and deeds of trust now or at any time hereafter constituting a first lien
or charge upon the Property, or the improvements situated thereon,
provided, however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this Lease
superior to any such instrument, then by notice to Tenant from such
mortgagee, trustee, or trust deed holder, this Lease shall be deemed
superior to such lien whether this Lease was executed before or after said
mortgage or deed of trust so long as such mortgagee, trust deed holder or
trustee enters into a non-disturbance agreement with Tenant in form and
substance satisfactory to Tenant pursuant to which such mortgagee, trust
deed holder or trustee agrees, not to disturb Tenant's possession of the
Premises so long as Tenant is not in default hereunder (after any
applicable notice and/or cure periods). Tenant shall at any time hereafter
on demand execute any instruments, releases or other documents which may be
reasonably required by any such mortgagee for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage, as may be the
case, but for no other purpose whatsoever (and Tenant expressly disclaims
any obligation to modify the terms of this Lease, to give the mortgagee,
trust deed holder or trustee copies of any notices delivered to Landlord,
or to waive any claims which Tenant may then have or which may arise
thereafter against Landlord or such mortgagee, trust deed holder or
trustee), and provided that such mortgagee, trust deed holder or trustee
enters into a non-disturbance agreement with Tenant as required pursuant to
the preceding sentence.
At the request of either Tenant or Landlord, a short-form or
memorandum of this Lease shall be signed by each party and filed with the
▇▇▇▇ County Recorder of Deeds.
19. INTENTIONALLY DELETED.
20. MECHANIC'S AND OTHER LIENS.
Tenant shall have no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord in the leased premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform
labor for any construction or repairs, and each such claim shall affect and
each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this Lease. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally due and payable by it on account
of any labor performed or materials furnished in connection with any work
performed on the leased premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the leased premises or
the improvements thereon and that it will save and hold Landlord harmless
from any and all loss, liability, cost or expense based on or arising out
of asserted claims or liens against the leasehold estate or against the
right, title and interest of the Landlord in the leased premises or under
the terms of this Lease. Tenant will not permit any mechanic's lien or
liens or any other liens which may be imposed by law affecting Landlord's
or its mortgagees' interest in the leased premises or the Building to be
placed upon the leased premises or the Building arising out of any action
or claimed action by Tenant, and in case of the filing of such lien Tenant
will promptly pay same. If any such lien shall remain in force and effect
for twenty (20) days after written notice thereof from Landlord to Tenant,
Landlord shall have the right and privilege of paying and discharging the
same or any portion thereof without inquiry as to the validity thereof, and
amounts so paid, including expenses and interest, shall be so much
additional rent hereunder due from Tenant to Landlord and shall be paid to
Landlord immediately on rendition of ▇▇▇▇ therefor. Notwithstanding the
foregoing, Tenant shall have the right to contest any such lien in good
faith and with all due diligence so long as any such contest, or action and
any such mortgagee are, by the expiration of said twenty (20) day period,
the Tenant has furnished such protection, and indemnification against any
loss, liability, cost or expense related to any such lien and the contest
thereof as are satisfactory to Landlord and any such mortgagee.
21. NOTICES
Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to the
sending, mailing or delivery of any notice or the making of any payment
shall be deemed to be complied with when and if the following steps are
taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to The ▇▇▇▇ ▇▇▇▇▇▇ Family Trust, or to
such other entity at such other address as Landlord may specify from time
to time by written notice delivered in accordance herewith.
(b) Any notice or other document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when: (i) delivered by personal service; (ii) transmitted
by confirmed facsimile; or (iii) deposited in the continental United States
Mail, postage prepaid, certified or registered mail, addressed to the
parties hereto at the respective addresses set out below, or at such other
addresses as they have theretofore specified by written notice delivered in
accordance herewith;
LANDLORD: The ▇▇▇▇ ▇▇▇▇▇▇ Family Trust
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT: Entrade, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All parties included within the terms "Landlord" and "Tenant,"
respectively, shall be bound by notices given in accordance with the
provisions of this paragraph to the same effect as if each had received
such notice.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon,
the parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise expressly provided
herein. Landlord shall have the right to assign any of its rights and
obligations under this Lease and Landlord's grantee and Landlord's
successor shall upon such assignment become "Landlord" hereunder; thereby
freeing and relieving the grantor and assignor of all covenants and
obligations of "Landlord" hereunder, provided however, that no successor
Landlord shall be responsible for the return of any security deposit
provided for pursuant to Paragraph 2B unless such successor receives the
deposit. Tenant agrees to furnish promptly on demand, a corporate
resolution, proof of due authorization by partners, or other appropriate
documentation evidencing the due authorization of Tenant to enter into this
Lease. Nothing herein contained shall give any other tenant in the
Building of which the leased premises is a part any enforceable rights
either against Landlord or Tenant as a result of the covenants and
obligations of either party set forth herein.
C. The captions inserted in this Lease are for convenience only
and in no way define, limit or otherwise describe the scope or intent of
this Lease, or any provision hereof.
D. Tenant shall at any time and from time to time within ten (10)
days after written request from Landlord execute and deliver to Landlord or
any prospective Landlord or mortgagee or prospective mortgagee a sworn and
acknowledged estoppel certificate, in form reasonably satisfactory to
Landlord and/or Landlord's mortgagee or prospective mortgagee certifying
and stating as follows: (i) this Lease has not been modified or amended
(or if modified or amended, setting forth such modifications or
amendments); (ii) this Lease (as so modified or amended) is in full force
and effect (or if not in full force and effect, the reasons therefor);
(iii) the Tenant has no offsets or defenses to its performance of the
terms and provisions of this Lease, including the payment of rent (or if
there are any such defenses or offsets, specifying the same); (iv) Tenant
is in possession of the leased premises, if such be the case; (v) if an
assignment of rents or leases has been served upon Tenant by a mortgagee or
a prospective mortgagee, Tenant has received such assignment and agrees to
be bound by the provisions thereof; and (vi) any other accurate statements
reasonably required by Landlord or its mortgagee or prospective mortgagee.
It is intended that any such statement delivered pursuant to this
subsection may be relied upon by any prospective purchaser or mortgagee and
their respective successors and assigns and Tenant shall be liable for all
loss, cost or expense resulting from the failure of any sale or funding of
any loan caused by any material misstatement contained in such estoppel
certificate.
E. This Lease may not be altered, changed or amended except by a
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the term of this Lease shall
survive the expiration or earlier termination of the term hereof, including
without limitation, all payment obligations with respect to taxes, and all
obligations concerning the condition of the premises. Upon the expiration
or earlier termination of the term hereof, Tenant shall pay to Landlord the
amount, as estimated by Landlord, necessary: (i) to repair and restore the
leased premises as provided herein; and (ii) to discharge the Tenant's
obligation for unpaid real estate taxes and other amounts due Landlord.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after
all such obligations have been determined and satisfied. Any security
deposit held by Landlord shall be credited against the amount payable by
Tenant under this subparagraph 22f.
G. If any clause, phrase, provision or portion of this Lease or
the application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not effect, impair or
render invalid or unenforceable the remainder of this Lease nor any other
clause, phrase, provision or portion hereof, nor shall it affect the
application of any clause, phrase, provision or portion hereof to other
persons or circumstances, and it is also the intention of the parties to
this Lease that in lieu of each such clause, phrase provision or portion of
this Lease that is invalid or unenforceable, there be added as a part of
this Lease contract a clause, phrase, provision or portions as similar in
terms to such invalid or unenforceable clause, phrase, provision or portion
as may be possible and be valid and enforceable.
H. Whenever a period of time is herein prescribed for action to be
taken by Landlord, the Landlord shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time,
any delays due to causes of any kind whatsoever which are beyond the
control of the Landlord.
I. Intentionally Omitted
J. Each of the parties (i) represents and warrants to the other
that it has not dealt with any broker or finder in connection with this
Lease and (ii) indemnifies and holds the other harmless from any and all
losses, liability, costs or expenses (including attorney's fees) incurred
as a result of an alleged breach of the foregoing warranty.
23. CERTAIN RIGHTS RESERVED TO THE LANDLORD.
The Landlord reserves and may exercise the following rights without
affecting Tenant's obligations hereunder:
(a) to change the name or street address of the Building;
(b) to install and maintain a sign or signs on the exterior of the
Building;
(c) to have access for the Landlord and the other tenants of the
Building to any mail chutes located on the leased premises according to the
rules of the United States Post Office;
(d) to reasonably approve all sources furnishing sign painting and
lettering, ice, drinking water, towels, coffee cart service and toilet
supplies, lamps and bulbs used on the leased premises;
(e) to retain at all times pass keys to the leased premises;
(f) to grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building;
(g) to close the Building after regular working hours and on the
legal holidays subject, however, to Tenant's right to admittance, under
such reasonable regulations as Landlord may prescribe from time to time,
which may include by way of example but not of limitation, that persons
entering or leaving the Building identify themselves to a watchman by
registration or otherwise and that said persons establish their right to
enter or leave the Building;
(h) to take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the leased premises
or to the Building, as may be necessary or desirable for the safety,
protection or preservation of the leased premises or the Building or the
Landlord's interests, or as may be necessary or desirable in the operation
of the Building; and
(i) to add, remove or modify buildings, roadways, walkways,
landscaping, lakes, grading and other improvements in or to the
Development.
The Landlord may enter upon the leased 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 and without abatement of rent or
affecting any of the Tenant's obligations hereunder.
24. TRUSTEE'S EXCULPATION.
It is expressly understood and agreed that nothing in this Lease
contained shall be construed as creating any liability whatsoever against
the Landlord, or its successors and assigns, personally, and in particular
without limiting the generality of the foregoing, there shall be no
personal liability to pay any indebtedness accruing hereunder or to perform
any covenant, either express or implied, herein contained, and that all
personal liability of Landlord, or its successors and assigns, of every
sort, if any, is hereby expressly waived by Tenant, and every person now or
hereafter claiming any right or security hereunder, and that so far as said
Trustee or its beneficiary, or their successors or assigns, is concerned
the owner of any indebtedness or liability accruing hereunder shall look
solely to the premises hereby leased for the payment thereof.
EXECUTED as of the 30th day of December 1999.
TENANT:
ATTEST/WITNESS: ENTRADE, INC.:
By: _________________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: _________________________ Title: President
--------------------------
LANDLORD:
ATTEST/WITNESS: The ▇▇▇▇ ▇▇▇▇▇▇ Family Trust
By: _______________________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title:______________________________ Title: Trustee
--------------------------
EXHIBIT 1B
LEGAL DESCRIPTION
LOT "A" IN K. AND E. RESUBDIVISION OF LOTS 1 TO 9, BOTH INCLUSIVE, AND
LOTS 20, 21 AND 22 IN BLOCK 7 OF UNITED REALTY CO'S FIRST ADDITION TO
WILLOWCREST A SUBDIVISION OF THOSE PARTS OF THE NORTHEAST 1/4 OF THE
NORTHEAST 1/4 OF SECTION 24,, TOWNSHIP 42 NORTH, RANGE 12 EAST OF THE THIRD
PRINCIPAL MERIDIAN, AND THE NORTH 1/2 OF THE SOUTHEAST 1/4 OF THE NORTHEAST
1/4 OF SAID SECTION 24 LYING EAST OF THE RIGHT OF WAY OF PUBLIC SERVICE
COMPANY OF NORTHERN ILLINOIS ALSO SAID OF THE VACATED ALLEY LYING WEST OF
AND ADJOINING LOTS I TO 6, BOTH INCLUSIVE, AND EAST OF THE ADJOINING ▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ALL ACCORDING TO THE PLAT THEREOF RECORDED
JANUARY 17, 1961 AS DOCUMENT NUMBER 18064007, IN ▇▇▇▇ COUNTY, ILLINOIS
EXHIBIT 1A
FLOOR PLAN