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EXHIBIT 10.12
RESTAURANT LEASE AGREEMENT
Between
DULCET L.L.C., an Iowa limited liability company, ▇▇▇▇▇▇ ▇. ▇▇▇▇ &
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Landlord
and
▇▇▇▇▇▇▇▇▇ OLD CHICAGO, INC., as Tenant
THIS RESTAURANT LEASE AGREEMENT (the "Lease), made and entered into this
25th day of June, 1996, by and between Dulcet L.L.C., an Iowa limited liability
company, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (hereinafter collectively
referred to as "Landlord"), and, ▇▇▇▇▇▇▇▇▇ Old Chicago, Inc.., a Colorado
corporation, ( "Tenant"), upon the following terms and conditions:
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS
The following is intended as a summary of the fundamental terms of the
Lease. In the event of any conflict between this summary and the actual terms
of the Lease, the terms of the Lease shall control:
1.01 RESTAURANT'S NAME: ▇▇▇▇▇▇▇▇▇ Old Chicago, Inc., d/b/a/
Old Chicago
1.02 LEASED PREMISES:
-Address Lot 2, Signature Inns Addition to the City
of Bettendorf, Iowa, a/k/a
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
1.03 TENANT'S NAME AS IT
APPEARS ON LEASE,
ADDRESS AND PHONE: ▇▇▇▇▇▇▇▇▇ Old Chicago, Inc., a Colorado
corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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1.04 LANDLORD'S NAME
ADDRESS, PHONE & Dulcet, L.L.C
FAX ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ (c/o ▇▇▇▇▇▇ ▇▇▇▇)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ (c/o ▇▇▇▇▇▇ ▇▇▇▇)
1.05 AGENT/MANAGER
(Name, address, phone
and Fax) Dulcet, L.L.C
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1.06 SQUARE FOOTAGE
LEASED: Five thousand four hundred and sixty eight
(5,468) SF, as expanded.
1.07 DATE LEASE SIGNED: June 25, 1996
1.08 DATE LEASE COMMENCES: The date Landlord takes possession of the
Premises.
1.09 DATE RENT COMMENCES: Tenant's obligation to pay rent shall commence
upon the day Landlord closes on the purchase of
the Property.
1.10 INITIAL LEASE TERM: The fractional period for the first month of
possession plus One hundred eighty (180) MONTHS
1.11 INITIAL TERM ENDS: July 1, 2011
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1.12 BASE RENT:
Years 1-5 $ 75,000/yr. $ 6,250.00/mo
Years 6-10 $ 84,938/yr $ 7,078.17/mo
Years 10-15 $ 96,192/yr $ 8,016.00/mo
1.13 GROSS OR NNN LEASE: NNN lease
1.14 RENT INCREASE FORMULA: As described in Section 1.12, above.
1.15 (Intentionally Omitted)
1.16 UTILITIES: Paid by Landlord: None:
------------------------------------
Paid by Tenant: All
1.17 REPAIR & MAINTENANCE RESPONSIBILITIES: All maintenance and repairs
to be paid by Tenant.
1.18 INSURANCE COVERAGE REQUIRED: $ 2,000,000 Liability
$ As required by state law.
$ Full replacement value for
casualty/natural disaster.
1.19 RENEWAL OPTIONS: Four (4) TERMS OF Sixty
(60) MONTHS EACH.
1st 5-year option: $108,937/yr
2nd 5-year option: $123,371/yr
3rd 5-year option: $139,718/yr
4th 5-year option: $158,231/yr
1.20 CONSENT REQUIRED FOR:
-Assignment/Sublet: Yes
-Physical Changes to Structure: Yes
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ARTICLE II
GRANT, TERM AND OPTIONS TO EXTEND
2.1 LEASED PREMISES. Landlord demises and leases to Tenant, and Tenant
leases from Landlord: A. The building outlined in red on Exhibit A (as well as
the area of the building to be expanded by Tenant) and referred to as ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (the "Leased Premises" or the "Premises), which is
located on the real property legally described in Exhibit B attached hereto
(said real property and the buildings and improvements located thereon from time
to time herein called the "Property"). The Leased Premises consist of
approximately five thousand four hundred sixty eight (5,468) square feet. B.
The Property. Included in the items covered by this Lease are the furniture,
fixtures and equipment (referred to hereinafter as FF&E) presently located on
the Premises which have previously been conveyed to Landlord and which are
described in Exhibit C attached hereto and incorporated herein by this
reference. Landlord acknowledges that Tenant may treat said FF&E as its own in
that it may sell, destroy or use all or any portion of same.
2.02 USE OF COMMON AREAS. (Not applicable)
2.03 CLOSING AND POSSESSION DATE. Landlord shall deliver possession of the
Premises to Tenant in accordance with the Agreement Regarding Assignment of
Purchase Contract between the parties dated June 25, 1996. It is the intent
of the parties that possession of the Property be delivered simultaneously with
the closing by Landlord of the purchase of the Property, currently expected to
be June 27, 1996.
2.04 COMMENCEMENT OF RENTAL. Tenant's obligation to pay rent shall
commence the day the Tenant takes possession of the Premises.
2.05 LENGTH OF TERM. The term of this Lease shall be for a period of one
hundred eighty (180) months, commencing with the commencement date determined
in accordance with the terms of the Rider if said date shall occur on the first
day of a calendar month. If said commencement date is other than the first day
of the month, the first year of the lease term shall be deemed to be extended
to include such partial month and the following twelve months, so as to end on
the last day of the month.
2.06 OPTIONS TO RENEW. Provided Tenant shall not then be in material
default hereunder, Tenant shall have the option to extend the term of the Lease
for four (4) additional terms of sixty (60) months each upon the same terms and
conditions herein contained, except the fixed minimum monthly rental shall be
as specified in the Section 1.19, above. To exercise its option hereunder,
Tenant shall deliver notice of said election to Landlord at least Ninety (90)
days prior to the expiration of the then existing term hereof. If Tenant
elects not to exercise an option to extend hereunder, Tenant will deposit with
Landlord a sum equal to two (2) months' rent ninety (90) days prior to the
expiration of the current term. Said amount is intended as a security deposit
and shall be returned to Tenant no later than thirty (30) days
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from delivery of possession of the Premises to Landlord, less any amounts
lawfully retainable by Landlord as a result of damage to the Property.
2.07 LANDLORD CONTRIBUTION TO TENANT IMPROVEMENTS. (Not applicable.)
ARTICLE III
RENT
3.01 ANNUAL RENTAL. Annual rental hereunder shall be as set forth in
Section 1.12, above and is payable in equal monthly installments, also as set
forth in Section 1.12, above, in advance, on the first day of each and every
month throughout the lease term at the office of Agent/Manager as set forth in
paragraph 1.05 hereof, or at such other place designated by Landlord, without
prior demand. Base rental for any fractional month shall be prorated and
payable in advance. Monthly rental shall commence on the date of the closing
referenced in 2.03, above.
3.02 TAX AND INSURANCE ADJUSTMENT. Tenant shall, for each Lease Year, pay
to Landlord as additional rent real estate taxes and assessments and all
insurance for the Property. Landlord shall notify Tenant of the amount of such
assessment and Tenant shall pay Landlord such amounts within thirty (30) days
from the date of notice to it by Landlord. Additionally, with respect to
taxes:
(a) Right to Contest Assessments. Tenant may, at its expense, contest any
and all such real estate taxes in the name of and on behalf of the Landlord.
(b) Municipal, County, State or Federal Taxes. Tenant shall pay, before
delinquency, all municipal, county and state or federal taxes assessed against
any leasehold interest of Tenant or any fixtures, furnishings, equipment,
stock-in-trade or other personal property of any kind owned, installed or used
in or on the Property.
(c) Rental Taxes. Tenant shall not be responsible for any income,
inheritance or estate taxes imposed on Landlord or the income of Landlord.
ARTICLE IV
CONDITION OF PREMISES AT COMMENCEMENT OF LEASE
AND
CLEANING AND REPAIR OF LEASED PREMISES
4.01 LANDLORD'S AND TENANT'S WORK. The obligations of Landlord and Tenant
with respect to the construction and improvement of the Property shall be in
accordance with the provisions of Exhibit D. All work by Landlord and Tenant
shall comply with all applicable statutes, ordinances, regulations, and codes.
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4.02 ACCEPTANCE OF LEASED PREMISES. Landlord and Tenant warrant and
represent, each to the other, that they have each made certain investigations
concerning the condition of the Property including, without limitation, the
environmental condition of the Property, and that they have disclosed, each to
the other, all results of such investigations, as well as any other information
each may have which is relevant to the condition of the Property. Subject to
such representations, the occupancy by Tenant of the Property shall be deemed
to be an acceptance of same.
ARTICLE V
CONDUCT OF BUSINESS BY TENANT
5.01 USE OF PREMISES. Tenant shall use the Leased Premises for the purpose
of a sit down restaurant with full service bar and entertainment, and for any
other business or purpose permitted by law. The foregoing language
notwithstanding, Tenant will not conduct in the Premises a second hand store,
auction, distress or fire sale or bankruptcy or going-out-of-business sale,
topless bar or restaurant, adult movie or book store, or any business in
violation of the laws of the United States of America, the State of Iowa, or
the ordinances, regulations and lawful requirements of the City of Bettendorf,
Iowa, or other lawful authorities having jurisdiction over the Premises. In
any event, Tenant's initial use of the Premises shall be as an Old Chicago
restaurant. The foregoing notwithstanding, Tenant shall not use the Premises
for any operation primarily used as a storage warehouse operation, or any
assembling, manufacturing, refining, smelting, agricultural or mining
operation; for any dumping, disposing, incineration, or reduction of garbage
(exclusive of garbage compactors located near the rear of a building); for any
living quarter, sleeping apartments, or lodging rooms; for any veterinary
hospital or animal raising facilities (except that this prohibition shall not
prohibit pet shops); for any establishment selling or exhibiting pornographic
materials or drug- related paraphernalia; or for any flea market.
ARTICLE VI
COMMON USE FACILITIES
(Not Applicable)
ARTICLE VII
SIGNS, ALTERATIONS, ADDITIONS AND IMPROVEMENTS
7.01 ALTERATIONS, ADDITIONS AND IMPROVEMENTS. After the initial renovation
or remodeling of the Premises, which renovation shall be in substantial
accordance with the plans and specifications approved by Landlord and attached
hereto and incorporated
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herein by this reference as Exhibit D, Tenant shall not, without Landlord's
prior written consent, either make or cause to be made any alterations,
additions, or improvements to the Property or to any exterior signs, shades, or
awnings which in any one instance involve a cost in excess of $50,000.
Landlord's consent shall not be unreasonably withheld so long as such
alterations do not diminish the value of the Property, it being the
understanding and agreement of the parties that alterations or modifications
which are consistent with a commercial use of the Property or the Premises will
not be deemed to reduce the value of the Property. In the event Landlord's
consent is required under this paragraph 7.01, Tenant shall present to Landlord
plans and specifications for such work at the time approval is sought, and
prior to commencement of construction. Any plans and specifications not
expressly disapproved by Landlord, in writing, on or before the fifteenth
(15th) day after submission by Tenant shall be deemed approved.
As a further condition to Landlord's consent to alterations,
additions, or improvements, Tenant shall, as required or permitted by Iowa law,
advise all subcontractors, suppliers, materialmen, and laborers that they shall
not have the right to file a Mechanic's Lien against the Property owned by the
Landlord. The Tenant hereby agrees to hold the Landlord harmless from any and
all liabilities of every kind and description which may arise out of or be
connected in any way with said alterations, additions, or improvements. Before
commencing any work in connection with alterations, additions, or improvements,
the Tenant, if requested by Landlord, and only in those instances when
Landlord's consent is required hereunder, shall furnish the Landlord with
certificates of insurance from all contractors performing labor or furnishing
materials insuring the Landlord against liabilities which are customarily
covered by such insurance and which may arise out of or be connected in any way
with said additions, alterations, or improvements, except such liabilities as
may arise from the negligent act or failure to act of Landlord, its agents,
representatives, employees or servants.
7.02 TENANT SHALL DISCHARGE ALL LIENS. Tenant shall promptly pay its
contractors and materialmen for all work done and performed for Tenant, so as
to prevent the assertion or imposition of liens upon or against the Property,
and should any such lien be asserted or filed, Tenant shall bond against or
discharge the same within thirty ((30) business days after written request by
Landlord.
7.03 SIGNS, AWNINGS, CANOPIES, BILLIARD TABLES AND SATELLITE DISHES.
Tenant will not, without Landlord's prior written consent, place or suffer to
be placed or maintained on any exterior door or wall of the Leased Premises,
any sign, awning, or canopy, or advertising matter or other thing of any kind.
All signs, awnings, canopies, decorations, lettering, advertising matter, or
other thing so installed by Tenant shall at all times be maintained by Tenant,
at its expense, in good condition and repair. Tenant shall present to Landlord
plans and specifications for any of the above signs, awnings and canopies at
the time approval is sought, and prior to installation. Any plans and
specifications not expressly disapproved by Landlord, in writing, on or before
the fifteenth (15th) day after submission by Tenant shall be deemed approved.
In addition, Landlord has no objection to the use of billiard tables in the
Leased Premises or to the placement of satellite receptions dishes on the roof
of the Leased Premises. It is the understanding of the parties that it is
essential to Tenant that it utilize its customary trade dress on the Premises,
which trade dress has been reviewed and
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approved by Landlord. In any event, Landlord will not object to any signs or
advertising matter which are permissible under the rule of the local authority
having jurisdiction over such matters.
ARTICLE VIII
REPAIR AND MAINTENANCE OF LEASED PREMISES,
SURRENDER AND RULES
8.01 MAINTENANCE, REPAIR, AND REPLACEMENT BY TENANT. Tenant shall be
responsible for all maintenance and repair with respect to the Property,
including, without limitation (a) the roof, walls, foundation, and all
structural parts; (b) the interior of the Property, together with exterior
entrances, all glass, and all window moldings, (c) all fixtures, partitions,
interior ceilings, floor coverings, and utility lines within the Leased
Premises; (d) all doors, door openers, trade equipment and machinery,
appliances, signs, and appurtenances thereof; and, (e) landscaping, outside
lighting, and parking lot; in conformity with governmental regulations in good
order, condition, and repair, with Tenant failing to do so constituting a
default hereunder. If Tenant refuses or neglects to commence or complete
repairs, maintenance or replacements promptly and adequately, Landlord may make
or complete said repairs, maintenance or replacements and Tenant shall pay the
cost hereof to Landlord upon demand.
8.02 SURRENDER OF PREMISES. At the expiration of the tenancy hereby
created, Tenant shall peaceably surrender the Property, including all
alterations, additions, improvements, and repairs made thereto (but excluding
all trade fixtures, decorations, hoods, furniture, equipment, signs, and other
personal property installed by Tenant), broom clean and in good condition and
repair, reasonable wear and tear and damage by casualty excepted. Tenant shall
remove all its trade fixtures and any of its other property not required to be
surrendered to Landlord before surrendering the Property as aforesaid, and
shall repair any damage to the Property caused by such removal. Any personal
property remaining in the premises after the expiration of the lease period and
Tenant's vacation of the Property shall be deemed abandoned by Tenant and
Landlord may claim the same and shall in no circumstances have any liability to
Tenant therefor.
ARTICLE IX
INSURANCE AND INDEMNITY
9.01 LIABILITY INSURANCE. Tenant shall, at its cost and expense, at
all times during the term of this Lease maintain bodily injury and property
damage liability insurance covering the Property from acts or omissions which
are customarily insurable of Tenant, its employees, agents, representatives,
assigns, guests, invitees, persons in privity with Tenant, or licensees. Such
insurance policy shall be written for not less than $2,000,000 single limit of
liability for risks normally covered by comprehensive general liability
insurance for bodily injury and property damage combined with an annual
aggregate limit of not less than $2,000,000, and shall include Landlord as an
additional
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insured. Tenant shall deliver to Landlord a certificate of such insurance
which shall also contain a 30-day prior written notice of cancellation
provision. The limits on such insurance shall be re-indexed no more
frequently than once every 5 years so as to conform to the industry standard
and to the limits carried by other Old Chicago restaurants. Such insurance
shall be provided by a company or companies with an A.M. Best rating of not
less than A X, and authorized to do business in the state of Iowa.
Tenant shall also maintain liquor liability or "dram shop" insurance
as required by law.
9.02 WAIVER OF SUBROGATION. Each of the parties hereto does hereby release
the other party hereto from all liability for damage due to any act or neglect
of the other party (except as hereinafter provided) occasioned to property
owned by said parties which is or might be incident to or the result of a fire
or any other casualty against loss from which either of the parties is now
carrying or hereafter may carry insurance; provided, however, that the releases
herein contained shall not apply to any loss or damage occasioned by the
willful acts of either of the parties hereto. The parties further covenant
that any insurance obtained on their respective properties shall contain an
appropriate provision whereby the insurance company or companies consent(s) to
the mutual waiver of subrogation contained in this paragraph.
9.03 CASUALTY INSURANCE PREMIUMS. Tenant is responsible for the
maintenance of casualty insurance on the Property and Leased Premises for full
replacement value of the improvements thereon, excluding from such coverage the
cost of footings and foundations..
9.04 INDEMNIFICATION OF LANDLORD. Tenant will indemnify and save harmless
Landlord, its agents and servants, from and against any and all claims,
actions, damages, suits, judgments, decrees, orders, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or about the Property, or in the
occupancy or use by Tenant of the Property or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees, servants, subtenants, guests, invitees, persons in privity with
Tenant, or concessionaires, unless the same be caused by the willful or
negligent act or failure to act of Landlord its agents, servants, employees, or
persons or firms in privity with Landlord.
9.05 INDEMNIFICATION OF TENANT. Landlord agrees to hold harmless and
indemnify Tenant from and against any and all claims, demands, damages,
actions, suits, judgments, decrees, orders, and expenses arising out of or on
account of any damage or injuries sustained or claimed to have been sustained
to any person or property in or upon any of the common facilities of the
Property by any person whatsoever, unless the same shall be due to the willful
or negligent act or failure to act of Tenant, its agents, servants, employees,
or persons or firms in privity with Tenant.
9.06 PLATE GLASS. Tenant shall replace at its own expense any and all
plate and other glass in and about the Leased Premises damaged or broken from
any cause whatsoever.
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9.07 ADDITIONAL RENT. If Tenant shall not comply with its covenants made
in this Article 9, Landlord may cause insurance as aforesaid to be issued, in
such event Tenant agrees to pay as additional rent, the premium for such
insurance upon Landlord's demand.
ARTICLE X
UTILITIES
10.01 UTILITY CHARGES. Tenant shall be solely responsible for and promptly
pay all charges for heat, water, gas, sewer, electricity, or any other utility
or service used on or attributable to the Property.
ARTICLE XI
ASSIGNMENT AND SUBLETTING
11.01 CONSENT NOT REQUIRED. Tenant may voluntarily, or by operation of law,
assign this Lease in whole or in part, and may sublet all or any part of the
Leased Premises without the prior written consent of Landlord so long as the
Guarantor remains liable under the terms of the Lease and the Guaranty.
11.02 TRANSFERS PERMITTED. In the event that Landlord's consent is
required, Tenant shall forthwith notify Landlord in writing of Tenant's desire
to sublet or assign this Lease, including a summary of the proposed terms, or a
copy of any offer, as the case may be. Landlord shall have fifteen (15) days
to accept or reject said assignment or sublease. Any proposed sublease or
assignment not specifically disapproved by Landlord, in writing and specifying
all reasons for such disapproval and delivered to Tenant within said fifteen
(15) days, shall be deemed approved.
Tenant is a corporation, and any sale, transfer or other disposition of 51% or
more of the corporate stock shall be deemed to be an assignment.
Notwithstanding the foregoing restrictions, Tenant may sublet all or any
portion of the Leased Premises or assign this Lease to any corporation which is
a subsidiary or affiliate of, or more than seventy percent (70%) of whose
shares are owned by, Tenant or by any Guarantor of this Lease, without the
consent of Landlord. In the event of such a transfer, Tenant will notify
Landlord of the name, address and phone number of the sublessee or assignee.
In addition, in the event of such a transfer, Tenant shall remain liable under
the terms of this Lease.
Landlord acknowledges that Tenant is a wholly-owned subsidiary of Rock Bottom
Restaurants, Inc., the shares of which are publicly-traded. Sales of
stock via public trading shall not be deemed a "sale, transfer or other
disposition" within the meaning of this Article XI. Further, Tenant may
sublet all or any portion of the Leased Premises, or assign this Lease, to any
corporation or other entity which is a subsidiary of, or more than fifty
percent (50%) of whose shares are owned by and which is controlled by, Tenant
or Rock Bottom Restaurants, Inc., without the consent of Landlord. In the
event of such a transfer, Tenant will notify Landlord of the name, address and
phone number of the
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sublessee or assignee. In addition, in the event of such a transfer, Tenant
shall remain liable to Landlord under the terms of this Lease for the
performance by the sublessee or assignee. Any assignment, subletting,
mortgaging or hypothecation permitted hereunder or to which the Landlord has
consented shall be by written instrument under which the assignee, or sublessee
shall agree for the benefit of Landlord to be bound by and to perform this
Lease.
11.04 TRANSFERS BY LANDLORD. Landlord shall have the right to sell, convey,
transfer or assign all or any part of its interest in the real property and the
buildings of which the Property are a part or its interest in this Lease. All
covenants and obligations of Landlord under this Lease, except those already in
existence on the date of conveyance, shall cease upon the execution of such
conveyance, transfer or assignment, but such covenants and obligations shall
run with the land and shall be binding upon the subsequent owner or owners
thereof or of this Lease. All obligations incurred or in existence prior to
the date of transfer shall survive said transfer and remain the obligation of
Landlord.
11.05 NO RELEASE OF GUARANTOR. Any wording or implication herein to the
contrary notwithstanding, any assignment or subletting under this Article XI
shall not operate to release or waive the obligations of Tenant or any
Guarantor under this Lease.
ARTICLE XII
WASTE, GOVERNMENTAL REGULATIONS
12.01 WASTE OR NUISANCE. Tenant shall not commit or suffer to be committed
any waste upon the Property.
12.02 GOVERNMENTAL REGULATIONS. Tenant shall, at its sole cost and expense,
comply with all of the requirements pertaining to the operation of its business
as imposed by county, municipal, state, federal and other applicable
governmental authorities, now in force or which may hereafter be in force;
provided, however, requirements imposed on the Property in general or the
Leased Premises in general, and not required because of the nature of Tenant's
business, shall be complied with at the cost of Landlord. The foregoing
language notwithstanding, Tenant agrees that any requirements of the Americans
with Disabilities Act shall be met at Tenant's expense; likewise, a requirement
imposed on the Property in general or the Leased Premises in general, and not
imposed because of the nature of Tenant's business, but compliance with which
is triggered by a request by Tenant to remodel or otherwise change the
Property, and such request requires a building permit, shall be met at the
expense of Tenant.
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ARTICLE XIII
DESTRUCTION OF LEASED PREMISES
13.01 TOTAL OR PARTIAL DESTRUCTION. If the Leased Premises shall be
partially or totally destroyed by fire or other casualty insurable under full
standard fire and extended risk insurance, so as to become partially or totally
untenantable, the same (unless Landlord shall elect not to rebuild as
hereinafter provided) shall be repaired and restored by and at the cost of
Landlord, and a just and proportionate part of the rent, as provided for
hereinafter and as is reasonably acceptable to Tenant, shall be abated until
the Leased Premises are so restored.
If more than one-third (1/3) of the building in which the Leased Premises are
located shall be destroyed or damaged by fire or other casualty, and if the
unexpired portion of the term of this Lease shall be two (2) years or less at
the date of the damage, then Landlord may elect not to repair or rebuild by
giving written notice within thirty (30) days after such occurrence of its
election to terminate this Lease; otherwise, Landlord shall commence and pursue
diligently such reconstruction.
In the event that Landlord shall exercise the right given heretofore to
terminate, then this Lease and the terms hereof shall cease as of the date of
such damage or destruction, and all rent or other charges payable by Tenant
shall be prorated to the date of such damage or destruction. In the event that
this Lease is not canceled, then the rent shall be abated or reduced
proportionately during any period in which the Leased Premises are rendered
wholly or partially untenantable to the extent such damage or destruction shall
interfere with the operation of Tenant's business in the Leased Premises, as
determined in Tenant's reasonable business judgment. Such abatement or
reduction shall continue for the period commencing with such destruction or
damage and ending with Tenant's substantial completion of the work or repair or
restoration as Tenant is obligated or elects to do, as the case may be, and as
in this Article provided. In such event, Tenant shall commence the work with
due diligence and shall prosecute the same vigorously to completion.
13.02 PARTIAL DESTRUCTION OF PROPERTY. In the event that sixty percent (60)
or more of the gross leasable area in the Property shall be damaged or
destroyed by fire or other cause, notwithstanding that the Leased Premises may
be unaffected by such fire or other cause, Landlord shall have the right, to be
exercised by notice in writing delivered to the Tenant within thirty (30) days
after said occurrence, to cancel and terminate this Lease. Upon the giving of
such notice to Tenant, the term of this Lease shall expire as of the date of
the damage, and Tenant shall vacate the Leased Premises and surrender the same
to Landlord pursuant to the terms of the lease, allowing a reasonable period of
time for the closing of Tenant's business and the removal of Tenant's property
from the Premises.
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ARTICLE XIV
EMINENT DOMAIN
14.01 TOTAL CONDEMNATION. If the whole of the Leased Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, or be conveyed in lieu of any such taking, or if a part of the Leased
Premises shall be so acquired or condemned, and if such partial taking or
acquisition renders the Leased Premises unsuitable for the business of Tenant,
in Tenant's reasonable business judgment, then the term of this Lease shall
cease and terminate as of the date of the taking, and all rentals shall be paid
up to that date.
14.02 TOTAL PARKING AREA. If the whole of the common parking areas in the
Property shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, or be conveyed in lieu of any such taking, then
the term of this Lease shall cease and terminate as of the date of taking, and
all rentals shall be paid up to that date.
14.03 PARTIAL PARKING AREA. If such portion of the common parking areas in
the Property shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, or be conveyed in lieu of any such taking, so as
to render the Leased Premises unsuitable for the continuation of Tenant's
business, in Tenant's reasonable business judgment, then the term of this Lease
shall cease and terminate as of the date of taking, and all rentals shall be
paid up to that date. Tenant agrees that the condemnation of 17 or fewer
parking spaces shall not be deemed to render the Leased Premises unsuitable for
continuation of Tenant's business, and would not entitle Tenant to terminate
this Lease; provided, however, Tenant would be entitled to a reduction in rent
to compensate for said lost parking.
14.04 PARTIAL CONDEMNATION. In the event of a partial taking, or conveyance
of the Leased Premises in lieu thereof, which is not extensive enough to render
the Leased Premises unsuitable for the business of Tenant, in Tenant's
reasonable business judgment, the Landlord, to the extent possible, shall
promptly restore the Leased Premises to a condition comparable to its condition
immediately prior to such taking (less the portion lost in the taking), and
this Lease shall continue in full force and effect. In such case, all rents
due hereunder shall, from the date of said taking or conveyance, be abated on a
fair and equitable basis to the extent of any reduction, if any, in the area of
the Leased Premises resulting from such taking and not restored, and also
taking into account the impact, if any, of the loss of parking on the Property.
14.05 DAMAGES. In the event of any condemnation, taking, or conveyance in
lieu thereof, as hereinbefore provided, whether whole or partial, Tenant shall
not be entitled to any part of the award or price, as damages or otherwise,
awarded to Landlord for such condemnation, taking, or conveyance, except to the
extent provided in Section 14.05. Tenant hereby expressly waives any right or
claim to any part thereof and assigns to Landlord its interest therein;
provided, however, that where the taking is such as results in a termination of
the Lease pursuant to other provisions of this Article, that, notwithstanding
anything herein to the contrary, Landlord shall not be entitled to that
portion, if any, of an award made to or for the
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benefit of Tenant for loss of Tenant's business or depreciation to and cost of
removal of its stock, trade fixtures and equipment which it is entitled to
remove. Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
14.06 TENANT'S DAMAGES. The foregoing language of Section 14.05
notwithstanding, Tenant shall have the right to claim and recover from the
condemning authority (but not from Landlord) such compensation as may be
separately awarded to Tenant in Tenant's own name and right on account of all
damages suffered by Tenant of any nature whatsoever, including, without
limitation, court costs and attorney's fees, by reason of the condemnation and
including any cost which Tenant may incur in removing its property from the
Leased Premises or restoring all or any portion of the Leased Premises to their
former condition.
ARTICLE XV
DEFAULT OF TENANT
15.01 DEFAULT. The following shall constitute an "Event of Default" under
this Lease:
(a) failure of Tenant to pay any rental or obligation due
hereunder within ten (10) days after the date due hereunder; or ,
(b) Tenant's failure to perform any other of the terms,
conditions or covenants of this Lease to be observed or performed by Tenant for
more than thirty (30) days after written notice thereof;,
(c) if Tenant or Guarantor shall become bankrupt or insolvent,
file or have filed against it any bankruptcy proceedings, or take or have taken
against it in any court pursuant to any statute, either of the United States or
of any state, a petition of bankruptcy or insolvency, or for reorganization or
for the appointment of a receiver or trustee of all or a portion of Tenant's or
Guarantor's Property, or if Tenant or Guarantor makes an assignment for the
benefit of creditors, or petitions for or enters into an arrangement; and shall
not withdraw, or have withdrawn, said filing or petition within sixty (60) days
of the date of filing; or ,
(d) If Tenant shall abandon the Leased Premises and shall fail to
pay sums due hereunder in a timely manner, or suffer this Lease to be taken
under any writ of execution.
If any Event of Default occurs, the Landlord, besides all such other rights or
remedies it may have at law or equity, shall, upon proper observance of all
requirements of law, have the right to enter the Property and take possession
thereof and of all permanent improvements thereon and may remove all persons
and property from the Property by force, summary action, or otherwise, and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Tenant, all upon proper service of notice or
observance of all legal process. Tenant agrees to quit and deliver up the
possession of the Property, including permanent improvements to the Property,
when this Lease terminates.
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15.02 REMEDIES. If an Event of Default occurs, the Landlord may elect to
re-enter, as herein provided, or take possession pursuant to legal proceedings
or pursuant to any notice provided for herein, and it may either terminate this
lease, or it may from time to time without terminating this Lease make such
alterations and repairs as may be reasonably and commercially necessary in
order to relet the premises and relet said premises or any part thereof for
such term or terms (which may be for a term extending beyond the term of this
Lease) and at such rental or rentals and upon such other terms and conditions
as Landlord in its reasonable business judgment and discretion may deem
advisable. Upon each such reletting all rentals received by Landlord from such
reletting shall be applied first to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord; second to the payment of any costs
and expenses of such reletting, including brokerage fees and reasonable
attorneys' fees, and of costs of such alterations and repairs; third to the
payment of rent due and unpaid hereunder; and the residue, if any, shall be
held by Landlord and applied in payment of future rent as the same may become
due and payable hereunder from Tenant. If such rentals received from such
reletting during any month be less than that to be paid during that month by
Tenant hereunder, Tenant shall be liable for the payment of such deficiency to
Landlord. Such deficiency shall be calculated and become payable monthly. No
such re-entry or the taking of possession of the Property by Landlord shall be
construed as an election on its part to terminate this Lease or to accept a
surrender thereof unless a written notice of such intention be given to Tenant.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any Event of Default, in addition
to any other remedies it may have, it may recover from Tenant all damages it
may incur by reason of such breach, including the cost of recovering the
Property. Any reletting shall be done in such reasonable and commercially
prudent manner as Landlord may reasonably deem proper.
15.03 LEGAL EXPENSES. If suit shall be brought for recovery of possession
of Property, and/or the recovery of rent or any other amount due under
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of the Tenant to be kept or performed, and the breach
shall be established, Tenant shall pay to Landlord, in addition to all other
sums and relief available to Landlord, all expenses incurred therefor,
including reasonable attorneys' fees to the maximum extent permitted by law.
If suit shall be brought for the breach of any covenant herein contained on the
part of the Landlord to be kept or performed, and the breach shall be
established, Landlord shall pay to Tenant, in addition to all other sums and
relief available to Tenant, all expenses incurred therefor, including
reasonable attorneys' fees to the maximum extent permitted by law.
15.04 FAILURE TO PAY; INTEREST. If either party at any time shall fail to
pay any taxes, assessments, or liens, or to make any payment or perform any act
required by this lease to be made or performed by it, the party not required to
make the payment or perform the act, without waiving or releasing the
non-performing party from any obligation or default under this Lease, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of the non-performing
party. All sums so paid and all costs and expenses so incurred shall accrue
interest at a rate equal to the then
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"prime rate" as quoted in the Wall Street Journal for the month in which the
default occurs, plus three percent (3%) per month from the date of payment or
incurring thereof by the party making the payment or performing the obligation
of the non-performing party and shall be paid to the performing party upon
demand.
ARTICLE XVI
ACCESS BY LANDLORD
16.01 RIGHT OF ENTRY. Upon forty-eight (48) hours' prior written notice,
Landlord or Landlord's agents shall have the right to enter the Property at all
reasonable times to examine the same and to make such repairs, alterations,
improvements or additions as Landlord may reasonably deem necessary or
desirable, and Landlord shall be allowed to take all material into and upon said
Property that may be required therefor without the same constituting an eviction
of Tenant in whole or in part. During the six (6) months prior to the
expiration of the term of this Lease or any renewal term, Landlord may exhibit
the Property to prospective tenants. Nothing herein contained, however, shall
be deemed or construed to impose upon Landlord any obligation, responsibility or
liability whatsoever for the care, maintenance or repair of the Property or any
part hereof, except as otherwise herein specifically provided. Any other
language herein to the contrary notwithstanding, Landlord shall take no action
under the terms of the within Article which shall interfere with the conduct of
Tenant's business, cause inconvenience to Tenant's customers, or change or
interfere with the ingress/egress provided to and from the Leased Premises,
without Tenant's prior written consent, which consent shall be given or withheld
in Tenant's reasonable business judgment. Except in the case of emergency
repairs necessary to prevent or mitigate damage to the Premises, Landlord shall
not exercise any rights under this paragraph during Tenant's usual "busy" times,
being the lunch and dinner periods of the day. The foregoing language
notwithstanding, Landlord may enter the Property at any time and without prior
notice to make emergency repairs necessary to prevent or mitigate damage to the
Property.
ARTICLE XVII
TENANT'S PROPERTY
17.01 TAXES ON LEASEHOLD. Tenant shall be responsible for and shall pay
before delinquency all municipal, county, or state taxes assessed during the
term of this Lease against any leasehold interest or personal property of any
kind owned by or placed in, upon, or about the Property by Tenant.
17.02 LOSS AND DAMAGE. Landlord shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or snow, or leaks from any part of the
Leased Premises, or from the pipes, appliances or plumbing works, or from the
roof, street or subsurface, or from any other place, or by dampness or by any
other cause of whatsoever nature, and whether originating in the Leased
Premises or elsewhere, unless the same be caused by the negligence or negligent
failure to act
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of Landlord, or Landlord's agents, representatives, employees, or others in
privity with Landlord. The terms of this paragraph notwithstanding, Landlord
shall not be liable by way of subrogation if the claim is barred or waived
under the waiver of subrogation provisions of this Lease. All property of
Tenant kept or stored on the Property shall be so kept or stored at the risk of
the Tenant only, and Tenant hereby holds Landlord harmless from any claims
arising out of damage to the same, including subrogation claims by Tenant's
insurance carrier, a waiver of which shall be obtained in advance by Tenant.
17.03 NOTICE BY TENANT. Tenant shall give reasonable notice to Landlord in
case of fire or accidents, or of defects in the Leased Premises or in the
Property of which the Leased Premises are a part.
ARTICLE XVIII
HOLDING OVER; SUCCESSORS
18.01 HOLDING OVER. In the event Tenant remains in possession of the
Property after the expiration of the tenancy created hereunder, and without the
execution of a new lease, Tenant, at the option of Landlord, shall be deemed to
be occupying the Property as a tenant from month to month, at the rate of one
hundred fifty percent (150%) of the Annual Rent for the last Lease Year of the
term, subject to all the other conditions, provisions and obligations of this
Lease insofar as the same are applicable to month-to-month tenancy.
18.02 SUCCESSORS AND ASSIGNS. Except as otherwise herein provided, this
Lease and all the covenants, terms, provisions and conditions herein contained
shall inure to the benefit of and be binding upon the heirs, representatives,
successors and assigns of each party hereto, and all covenants herein contained
shall run with the land and bind any and all successors in title to Landlord.
ARTICLE XIX
QUIET ENJOYMENT
19.1 LANDLORD'S COVENANT. Upon payment by Tenant of the rents herein
provided, and upon the observance and performance of all the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Property for the term hereby demised
without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through, or under Landlord.
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ARTICLE XX
MISCELLANEOUS
20.01 WAIVER. The waiver by Landlord or Tenant of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or condition
herein contained. No covenant, term or condition of this Lease shall be deemed
to have been waived by Landlord or Tenant, as the case may be, unless such
waiver shall be in writing.
20.02 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent installments herein stipulated shall
be deemed to be other than on account of the earliest stipulated rent.
20.03 NO PARTNERSHIP OR OTHER ASSOCIATION. Landlord does not, in any way or
for any purpose, become a partner of Tenant in the conduct of its business or
otherwise, or joint venturer or a member of a joint enterprise with Tenant.
20.04 FORCE MAJEURE. In the event that either party hereto shall be delayed
or hindered in or prevented from the performance of any act required hereunder
by reason of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war, or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this
Lease, then the time allowed for performance of such act shall be extended by a
period equivalent to the period of such delay. The provisions of this Section
20.04 shall not operate to excuse Tenant from the prompt payment of rent or any
other payments required by the terms of this Lease.
20.05 LANDLORD'S AND TENANT'S LIABILITY. (Intentionally Omitted.)
20.06 NOTICES AND PAYMENTS. Any notice by Tenant to Landlord must be served
either by certified mail, postage prepaid, addressed to Landlord at the place
designated for the payment of rent, or at such other address as Landlord may
designate from time to time by written notice, or by facsimile transmission to
the facsimile number provided to Tenant in writing. Any notice by Landlord to
Tenant must be served either by certified mail, postage prepaid, addressed to
Tenant at its home office, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
ATTN.: Vice-President-Real Estate, and to Tenant's General Manager at the
Leased Premises, or at such other address or addresses as Tenant may designate
from time to time by written notice to Landlord, or by facsimile transmission
to the facsimile number provided to Landlord in writing. Until otherwise
notified in writing, Tenant shall pay all rent reserved herein and all other
sums required under this Lease by check payable to the order of Landlord, and
shall forward the same to Landlord at:
Dulcet, L.L.C.
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If notice is provided by facsimile transmission before 12:00 noon, local time,
it shall be deemed delivered on the date transmitted. If transmission is after
12:00 noon local time, it shall be deemed delivered on the next business day.
Landlord acknowledges and agrees that notice as indicated above is deemed to be
notice to all persons and/or entities defined as "Landlord" pursuant to the
terms of this Lease, and that Tenant is not required to give notice to each of
the persons and/or entities so defined.
20.07 CAPTIONS AND SECTION NUMBERS. The captions, section numbers, article
numbers, and headings appearing in this Lease are inserted only as a matter of
convenience, and in no way define, limit, construe, or describe the scope or
intent of such sections or articles of this Lease.
20.8 DEFINITIONS. The word "Tenant" shall mean ▇▇▇▇▇▇▇▇▇ Old Chicago,
Inc., the corporation mentioned as a Tenant herein.
20.9 PARTIAL INVALIDITY. If any term, covenant, or condition of this
Lease, or the application thereof to any person or circumstance, shall to any
extent be invalid or unenforceable, the remainder of this Lease or the
application of such term, covenant, or condition of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
20.10 RECORDING. A certificate or memorandum thereof prepared by Landlord,
may at the option and expense of Landlord be recorded. Tenant shall execute
any such certificate or memorandum which accurately reflects the terms of this
Lease upon request by Landlord.
20.11 ENTIRE AGREEMENT. The Lease, the exhibits and Rider set forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Property and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than as herein set forth. All prior communications, negotiations,
arrangements, representations, agreements and understandings, whether oral,
written or both, between the parties hereto, and their representatives, are
merged herein and extinguished, this Lease superseding and canceling the same.
Except as herein otherwise provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant
unless reduced to writing and executed by the party against which such
subsequent alteration, amendment, change or modification is to be enforced. If
any provision contained in any Rider hereto is inconsistent with any printed
provisions of this Lease the provision contained in such Rider shall supersede
said printed provision.
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20.12 APPLICABLE LAW. This Lease and the rights and obligations of the
parties arising hereunder shall be construed in accordance with the laws of the
State of Iowa.
20.13 HAZARDOUS MATERIALS. Neither Landlord nor Tenant will store, use, or
dispose of any hazardous, toxic, corrosive, explosive, reactive or radioactive
matter in, on, or about the Property. Landlord and Tenant will comply with all
applicable environmental laws and permitting requirements impacting the
operations on the Property, and Landlord shall indemnify and hold harmless the
Tenant from any claims or actions, including, without limitation, costs,
reasonable attorneys' fees and costs of remediation, arising out of the
existence, or of Landlords use, storage or disposal of toxic or hazardous
materials at the Property or on or in the Leased Premises. In that regard,
each party acknowledges that the other party has disclosed all information
known to the disclosing party concerning the Property, including, without
limitation, the information set forth in the Phase I and Phase II environmental
assessments prepared by Preston Engineering, Inc. Tenant shall have no right
of termination arising out of any environmental condition on the Property
disclosed in Phase I and II Assessments prepared by Preston Engineering, Inc.,
at the request of Tenant and provided to Landlord.
ARTICLE XXI
SUBORDINATION
21.01 SUBORDINATION. Tenant agrees that this Lease and the estate of Tenant
hereby created may be made subject and subordinate to the lien of any mortgage
or mortgages hereafter placed upon the Property. Notwithstanding anything set
out in this Lease to the contrary, in the event the holder of any mortgage or
deed of trust elects to have this Lease superior to its mortgage or deed of
trust, then, upon Tenant being notified to that effect by such encumbrance
holder, this Lease shall be deemed prior to the lien of said mortgage or deed
of trust, whether this Lease is adopted prior to or subsequent to the date of
said mortgage or deed of trust; provided, however, neither the holder of the
encumbrance nor any person or entity claiming by or through said holder may
disrupt, terminate or otherwise interfere with Tenant's quiet possession of the
Property so long as Tenant keeps and performs the covenants of Tenant
hereunder. The agreements herein shall be self-operative and no further
instrument of subordination shall be required. However, upon demand by the
holder of any mortgage covering all or any part of the Property, Tenant shall
forthwith execute, acknowledge and deliver an agreement in favor of and in the
form customarily used by such encumbrance holder. The foregoing language
notwithstanding, Tenant shall not be required to sign, nor presumed to have
signed or agreed to, any document hereunder which does not contain in form
reasonably satisfactory to Tenant language which provides that notwithstanding
the subordination of the Lease to the
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encumbrance in question, neither the holder of the encumbrance nor any person
or entity claiming by or through said holder may disrupt, terminate or
otherwise interfere with Tenant's quiet possession of the Property so long as
Tenant keeps and performs the covenants of Tenant hereunder. Further, Landlord
shall obtain from all current holders of encumbrances against the Property a
statement that notwithstanding the subordination of the Lease to the
encumbrance in question, neither the holder of the encumbrance nor any person
or entity claiming by or through said holder may disrupt, terminate or
otherwise interfere with Tenant's quiet possession of the Property so long as
Tenant keeps and performs the covenants of Tenant hereunder. Landlord will
provide to Tenant Landlord's lender's form of subordination, non- disturbance
and attornment agreement, and the Tenant shall execute the same in conformance
with the terms of this paragraph.
Landlord reserves the right, without notice to or consent of Tenant, to
assign this Lease and/or any and all rents hereunder as security for the
payment of any mortgage loan, deed of trust loan, or other method of financing
or refinancing.
21.02 NOTICE TO LANDLORD OF DEFAULT. In the event of any act or omission by
Landlord which would give Tenant the right to terminate this Lease, or make any
claim against Landlord for the payment of money, Tenant will not make such
claim or exercise such right until it has given written notice of such act or
omission to the Landlord, and after fifteen (15) days shall have elapsed
following the giving of such notice, during which Landlord has not commenced
diligently to remedy such act or omission or to cause the same to be remedied.
21.03 ESTOPPEL CERTIFICATE. Tenant agrees, no more frequently than
annually, upon not less than ten (10) business days' prior notice by Landlord,
to execute, acknowledge and deliver to Landlord, a statement in writing
addressed to Landlord or other party designated by Landlord certifying that
this Lease is in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), stating the actual commencement and expiration dates of the
lease, stating the dates to which rent, and other charges, if any, have been
paid, that the Property have been completed on or before the date of such
certificate and that all conditions precedent to the lease taking effect have
been carried out, that Tenant has accepted possession, that the lease term has
commenced, Tenant is occupying the Property and is open for business, and
stating whether or not to the best of Tenant's knowledge and belief there
exists any default by either party in the performance of any covenant,
agreement, term, provision or condition contained in this Lease, and, if so,
specifying each such default of which the Tenant may have knowledge and the
claims or offsets, if any, claimed by the Tenant, it being intended that any
such statement delivered pursuant hereto may be relied upon by Landlord or a
purchaser of Landlord's interest and by any mortgagee or prospective mortgagee
of any mortgage affecting the Leased Premises or the Property. If an estoppel
certificate is requested more frequently than annually, any expenses associated
therewith shall be borne by Landlord.
21.04 ATTORNMENT. Tenant agrees that no foreclosure of a mortgage affecting
the Leased Premises, nor the institution of any suit, action, summary or other
proceeding against the Landlord herein, or any successor Landlord, or any
foreclosure proceeding brought by the holder of any such mortgage to recover
possession of such property, shall by operation of law or otherwise result in
cancellation or termination of this Lease or the obligations of the Tenant
hereunder, and upon the request of the holder of any such mortgage, Tenant
covenants and agrees to execute an instrument in writing satisfactory to such
party or parties or to the
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purchaser of the mortgaged premises in foreclosure whereby Tenant attorns to
such successor in interest. The foregoing language notwithstanding, Tenant
shall not be required to sign, nor presumed to have signed or agreed to, any
document hereunder which does not contain in form reasonably satisfactory to
Tenant language which provides that notwithstanding the attornment document,
neither the holder of the document nor any person or entity claiming by or
thorough said holder may disrupt, terminate or otherwise interfere with
Tenant's quiet possession of the Property so long as Tenant keeps and performs
the covenants of Tenant hereunder.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, consisting of
23 pages, Exhibits A, B, C, and D, as of the day and year first above written.
LANDLORD: TENANT:
DULCET, L.L.C, an Iowa limited ▇▇▇▇▇▇▇▇▇ OLD CHICAGO, INC.
liability company
BY: BY:
-------------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Member/Manager
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
her agent and attorney in fact.
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
his agent and attorney in fact.
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