|
5. Fge. Neither Lessee nor City shall be required to pay an assignment or termination fee to Lessor; however, Lessee and
<br />City expressly agree that Lessor may retain the entirety of the Security Deposit under the Lease, without deduction (and which such Security
<br />Deposit shall not be applied to any security deposit to be provided by City pursuant to the New Lease) and that Lessor may forever keep the
<br />entirety of said Security Deposit without any claim or right thereto by Lessee or City. Furthermore, in the event that Lessee or City owes any
<br />monies to Lessor as a result of any defaults or breaches under the Lease or this Agreement, Lessor has no obligation to first apply the amount
<br />of the Security Deposit to such monies owned and Lessor shall have no obligation to return the Security Deposit, or any portion thereof, to Lessee
<br />or City, it being agreed that the retention and application (if any) of the Security Deposit as set forth above in this Section 5, shall be deemed to
<br />be part of the consideration for Lessor entering into this Agreement and the New Lease and is in lieu of any additional assignment or termination
<br />fee, and shall satisfy any obligation of lessor to return all or any pad of the Security Deposit to Lessee or City. Notwithstanding the foregoing,
<br />nothing in this Section 5 shall be deemed or construed in any manner whatsoever as an amendment or waiver of any rights or obligations of
<br />Lessee or City under this Agreement with respect to any Lien Claims, nor require Lessor to apply any portion of the Security Deposit to satisfy
<br />any Lien Claims or Continuing Obligations. Additionally, in the event that the New Lease is not executed, the Security Deposit shall not be
<br />returned to the City or IF.
<br />6. Lessees Representations and Wamanti , Lessee hereby represents and warrants to Lessor as follows
<br />(a) Lessee has not made any assignment, sublease, transfer, conveyance or other disposition of (i) the Lease, (11)
<br />its interest in the Lease or (ill) any claim, demand, obligation, liability; action, or cause of action arising under the terms of the Lease, to any
<br />person, firm, partnership, association, ar other entity;
<br />(b) Exceintfor the Hen Claims (1) the Promises are free and clear of all liens (including machanids and materialmen
<br />liens), encumbrances, claims, and rights of others arising from or resulting from work, contract, purchase, act, failure or omission to act, by or on
<br />behalf of, or with the knowledge or prior written consent of Lessee and (1i) no person has, or shall have with the passage of (line or file giving of
<br />notice or both, any rights against Lessor or City of Dyer 18 for payment as a result of any work, contract, purchase, act, failure or omission to act,
<br />by or on behalf of Lessee or with the knowledge or prior written consent of Lessee;
<br />(c) Lessee has full power and authority to sign and deliver this Agreement, and the execution and delivery of this
<br />Agreement will not violate and will not constitute a default under any agreements Lessee has with any third partial;
<br />(d) Lessee has not entered into any agreements (written or oral) that are currently in effect (and/or that contained
<br />surviving obligations) which affect the Premises other than the Lease, the Operating Agreement with the City and the documents giving rise to
<br />the Lien Claims; and
<br />(a) Lessee shall indemnify, defend (with counsel reasonably acceptable to Lessor) and hold Lessor harmless
<br />against all Claims and Liabilities based on, arising out of, or in connection with any breach of any of the representations a nd warranties set forth
<br />In this Section 6.
<br />7. Voluntary Agreement Each party represents and warrants and agrees that it is entering into this Agreement freely and
<br />without undue influence or coercion by the other, and that it has done so only after obtaining advice of legal counsel, or after having had the
<br />opportunity to obtain such advice.
<br />8. Fair consideration. The parties hereto acknowledge and agree that, among other things, Lessor's consent to the
<br />assignment of Lease, Lessor's agreement to enter into the Now Lease, and the validity and continuation of Lessee's and City s agreements to
<br />be obligated to pay all Lien Claims, and the other terms and conditions herein set forth, shall be sufficient consideration for relieving Lessee of
<br />its rental and other obligations under the Lease (in accordance with, and subject to the terms and conditions of, this Agreement) that would have
<br />accrued from and after the Effective Date had the Lease not been assigned or subsequently terminated pursuant to the terms hereof. The parties
<br />hereto also agree that such consideration given by Lessee and City, If received by Lessor as contemplated In this Agreement, consfitules fair
<br />consideration for the prospective relief to be given to Lessee and City as provided herein, is not Intended to be paid, and is not being paid, on
<br />account of an antecedent debt of Lessee or City to Lessor, but rather constitutes a contemporaneous exchange for new value given.
<br />9. Brokers. Each party represents and warrants to the other parties that it has not had dealings in any manner with any real
<br />estate broker, finder or other person with respect to the Premises and the negotiation and execution of this Agreement Each party shall indemnify,
<br />defend and hold harmless the others from all damage, loss, liability and expense (including attorneys' fees and related costs) arising out of or
<br />resulting from any claims for commissions or fees that may be or have been asserted against the indemnified parties by any broker, finder or
<br />other person with whom the indemnifying party has or purportedly has dealt In connection with the negotiation and execution of this Agreement.
<br />10. Miscellaneous. Each party acknowledges that it has read and understood the terms hereof and the consequences of
<br />executing this Agreement, and that, except for the representations and warranties expressly set forth in this Agreement, no representations or
<br />warranties have been made by any party to induce another party to execute this Agreement In no event shall any draft of thi s Agreement create
<br />any obligations or liabilifies, it being intended that only a fully executed copy of this Agreement delivered by the parties hereto will bind the parties
<br />to the tanns and conditions of this Agreement. Lessor shall not be bound by this Agreement unless and until Lessor has executed and delivered
<br />
|