EXHIBIT 10.29
XXXXXXX BOULEVARD
LINCOLNSHIRE CORPORATE CENTER
OFFICE LEASE
BETWEEN
LASALLE BANK NATIONAL ASSOCIATION,
AS SUCCESSOR TRUSTEE TO AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, as Trustee under
Trust Agreement dated January 1, 1991
and known as Trust No. 113370-03
LANDLORD
AND
BIOSANTE PHARMACEUTICALS, INC.
TENANT
FOR
XXXXX
000
DATED: December 19th, 2003
TABLE OF CONTENTS
SCHEDULE OF SIGNIFICANT TERMS...................................................... 1
1. BASE RENT..................................................................... 3
2. ADDITIONAL RENT............................................................... 3
3. USE OF PREMISES............................................................... 10
4. ALTERATIONS................................................................... 11
5. SERVICES...................................................................... 11
6. CONDITION AND CARE OF PREMISES................................................ 15
7. RETURN OF PREMISES............................................................ 16
8. HOLDING OVER.................................................................. 17
9. RULES AND REGULATIONS......................................................... 17
10. RIGHTS RESERVED TO LANDLORD................................................... 17
11. ASSIGNMENT AND SUBLETTING..................................................... 19
12. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT................................. 22
13. DAMAGE OR DESTRUCTION BY CASUALTY............................................. 23
14. EMINENT DOMAIN................................................................ 25
15. DEFAULT; LANDLORD'S RIGHTS AND REMEDIES....................................... 25
16. SUBORDINATION................................................................. 29
17. MORTGAGEE PROTECTION.......................................................... 30
18. DEFAULT UNDER OTHER LEASES.................................................... 31
19. SUBROGATION AND INSURANCE..................................................... 31
20. NONWAIVER..................................................................... 32
21. ESTOPPEL CERTIFICATE.......................................................... 33
22. TENANT AUTHORITY TO EXECUTE LEASE............................................. 33
23. REAL ESTATE BROKERS........................................................... 33
24. NOTICES....................................................................... 34
25. MISCELLANEOUS................................................................. 34
26. LANDLORD'S AUTHORITY AND QUIET ENJOYMENT...................................... 35
27. LANDLORD...................................................................... 36
28. TITLE AND COVENANT AGAINST LIENS.............................................. 36
29. RELOCATION OF TENANT.......................................................... 36
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30. PARKING....................................................................... 36
31. SECURITY DEPOSIT.............................................................. 37
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LEASE WITH BIOSANTE PHARMACEUTICALS, INC. ("TENANT")
on Premises at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx Corporate Center
Lincolnshire, Illinois
This Lease, made as of the Date of Lease set forth in the following
Schedule (the "Schedule"), by and between LASALLE BANK NATIONAL ASSOCIATION, as
successor trustee to AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as
Trustee under Trust Agreement dated January 1, 1991 and known as Trust No.
113370-03 ("Landlord"), and the Tenant identified immediately above.
SCHEDULE OF SIGNIFICANT TERMS
For purposes of this Lease, the terms set forth below shall have the
meanings or be assigned the amounts as follows:
Date of Lease: December 19th, 2003
Base Rent (annual amount): $52,442.00
Monthly Base Rent: $4,370.17
Commencement Date: January 1, 2004, subject to the provisions of
Section 5 of the Lease
Expiration Date: December 31, 2004, or such earlier date as
this Lease is terminated as provided herein.
Building The improvements commonly known as 000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx Corporate Center,
Lincolnshire, Illinois (containing
approximately 78,182 rentable square feet)
Premises: Those certain premises outlined on the floor
plan attached hereto as Exhibit A, on the 2
floor(s) of the Building, known as Suite 280
and containing 4,034 rentable square feet
Tenant's Proportionate Share: 5.16%
Expense Stop Amount: $0
Tax Stop Amount: $0
Security Deposit: $7,113.29
Exterior Parking Spaces (Maximum): 15
Broker: Van Vlissingen and Co.
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Tenant's Address for Notices: BioSante Pharmaceuticals, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxx X. Xxxxxxxxxx, Esq.
Ungaretti & Xxxxxx
00 X. Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Tenant's Authorized Representative: Xxxxxxx X. Xxxxx
Guarantor (if any): Not applicable
Attachments to Lease (check if applicable):
Guaranty
------------------
Workletter
------------------
Attachment(s) to Workletter
------------------
Rider A X (Rules and Regulations)
------------------
Rider B X (Cleaning Schedule)
------------------
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WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby accepts the
Premises, for a term (herein called the "Term") commencing on the Commencement
Date and ending on the Expiration Date, paying as rent therefor the sums
hereinafter provided, without any setoff, abatement, counterclaim, or deduction
whatsoever, except as herein expressly provided.
IN CONSIDERATION THEREOF, THE PARTIES HERETO COVENANT AND AGREE:
1. BASE RENT.
Subject to periodic adjustment as hereinafter provided, Tenant shall
pay an annual base rent (herein called "Base Rent") to Landlord for the Premises
in the amount stipulated in the Schedule, payable in monthly installments
(herein called "Monthly Base Rent") in the amount stipulated in the Schedule, in
advance on the first day of the first full calendar month and on the first day
of each calendar month thereafter of the Term, and at the same rate prorated for
fractions of a month if the Term shall begin on any date except the first day,
or shall end on any day except the last day of a calendar month. Base Rent,
Additional Rent (as hereinafter defined), Additional Rent Progress Payment (as
hereinafter defined) and all other amounts becoming due from Tenant to Landlord
herein (herein collectively called the "Rent") shall be paid in lawful money of
the United States to One Overlook Point at its office as designated in Section
26 hereof, or as otherwise designated from time to time by written notice from
Landlord to Tenant. The obligation to pay Rent hereunder is independent of each
and every other covenant and agreement contained in this Lease.
2. ADDITIONAL RENT.
In addition to paying the Base Rent specified in Section 1 hereof,
Tenant shall pay as additional rent the amounts determined in accordance with
the following provisions of this Section 2 (herein called "Additional Rent"):
(a) DEFINITIONS. As used in this Lease:
(i) "Adjustment Date" shall mean the first day
of the Term and each January 1 thereafter falling within the
Term.
(ii) "Adjustment Year" shall mean each calendar
year during which an Adjustment Date falls.
(iii) "Expenses" shall mean and include those
costs and expenses paid or incurred by Landlord in connection
with the ownership, operation, management, and maintenance of
the Building and the land on which the Building is situated in
a manner deemed reasonable by Landlord and appropriate and for
the best interests of the Building and the tenants in the
Building, including, but not limited to, the following:
(A) All costs and expenses directly
related to the Building for operating and cleaning
tenant, common and public areas, for utilities, for
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the payment of salaries and fringe benefits for
personnel of the grade of building manager and below,
for removing snow, ice, and debris, and costs of
property, liability, rent loss, and other insurance;
(B) All costs and expenses of replacing
paving, curbs, walkways, landscaping (including
replanting and replacing flowers and other
plantings), common and public parking and lighting
facilities in the Building and the areas immediately
adjacent thereto;
(C) Electricity for lighting the common
and public areas and for running the elevators and
other building equipment and systems, fuel and water
used in heating, ventilating, and air-conditioning of
the Building and water for drinking, lavatory and
toilet purposes;
(D) Maintenance of mechanical and
electrical equipment, including heating, ventilating
and air-conditioning equipment in the Building, but
excluding capital expenditures (except as set forth
in (H) below) which under generally accepted
accounting principles are required to be capitalized;
(E) Window cleaning and janitor and
cleaning service, including janitor and cleaning
equipment and supplies for tenant, common and public
areas;
(F) Maintenance of elevators, alarm,
and security systems, rest rooms, sprinklers, and
plumbing systems, lobbies, hallways, and other common
and public areas of the Building;
(G) A management fee for the managing
agent of the Building at actual cost not to exceed
four percent (4%) of Landlord's gross receipts from
operation of the Building;
(H) The cost of any capital improvement
made at any time, whether before or after the Date of
Lease, to the extent the same reduces some of the
costs included within Expenses or which is required
under any governmental laws, regulations, or
ordinances which were not applicable to the Building
at any time prior to the Commencement Date, amortized
on an annual basis to the extent of the annual
savings effected by such capital improvement or
equipment (as reasonably determined by Landlord); and
(I) Legal and other professional
expenses incurred in respect of the operation, use,
occupation, or maintenance of the Building and in
seeking or obtaining reductions in and refunds of
Taxes, but excluding legal costs in leasing space or
incurred in disputes with tenants.
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(J) Common area maintenance and other
costs allocable to the Building under the Declaration
of Protective Covenants for Lincolnshire Corporate
Center (Unit III) applicable to the Building.
(K) Expenses shall not include the
following: costs or other items included within the
meaning of the term "Taxes" (as hereinafter defined);
costs of capital improvements to the Building (except
as set forth in H above); depreciation; expenses
incurred in leasing or procuring tenants (including,
without limitation, lease commissions, advertising
expenses, and expenses of renovating space for
tenants); interest or amortization payments on any
mortgage or mortgages; rental under any ground or
underlying lease or leases; wages, salaries, or other
compensation paid to any executive employees above
the grade of building manager; wages, salaries, or
other compensation paid for clerks or attendants in
concessions or newsstands operated by the Landlord;
the cost of correcting defects (latent or otherwise)
which arise within one (1) year after initial
construction of the Building in the construction of
the Building, except that conditions (not occasioned
by construction defects) resulting from ordinary wear
and tear shall not be deemed defects; the cost of
installing, operating, and maintaining a specialty
improvement, including, without limitation, an
observatory, or broadcasting, cafeteria, or dining
facility, or athletic, luncheon, or recreational
club; any cost or expense representing an amount paid
to a related entity which is in excess of the amount
which would be paid in the absence of such
relationship; and any expenditures for which Landlord
has been reimbursed (other than pursuant to rent
adjustment, escalation, or additional rent provisions
in leases); expenses incurred by Landlord to prepare,
renovate, repaint, redecorate or perform any other
work in any space leased to an existing tenant of the
Building; expenses incurred by Landlord to resolve
disputes, enforce or negotiate lease terms with
prospective or existing tenants, or in connection
with any financing, sale or syndication of the
Building, the cost to correct any penalty or fine
incurred by Landlord due to Landlord's violation of
any federal, state, or local law or regulation and
any interest, or penalties due for late payment by
Landlord of any of the Taxes or Operating Expenses;
reserves; all legal and professional fees, costs and
expenses, judgments, lines, penalties and damages
incurred by, imposed upon or levied against
Landlord's as a result of Landlord's negligence or
willful misconduct; and the cost of any asbestos
removal or encapsulation in the Building.
Notwithstanding the foregoing provisions of this
Section 2(a)(iii), for any Adjustment Year in which
the aggregate usable office space of the Building has
not been ninety-five percent (95%) occupied during
the entire Adjustment Year, Expenses shall include
any expenses which Landlord shall reasonably
determine would have been incurred had the Building
been ninety-five percent (95%) occupied.
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(iv) "Taxes" shall mean all real estate taxes,
assessments (whether they be general or special), sewer rents,
rates and charges, transit taxes, taxes based upon the receipt
of rent, and any other federal, state or local governmental
charge, general, special, ordinary or extraordinary (but not
including income or franchise taxes (other than personal
property replacement income taxes) or any other taxes imposed
upon or measured by Landlord's income or profits, unless the
same shall be imposed in lieu of the real estate taxes or
other ad valorem taxes), which may now or hereafter be levied,
imposed or assessed against the Building or the land on which
the Building is located (the "Land"), or both. The Building
and the Land are herein collectively called the "Real
Property."
Notwithstanding the foregoing provisions of this Section
2(a)(iv):
(A) If at any time during the Term of
this Lease the method of taxation then prevailing
shall be altered so that any new tax, assessment,
levy, imposition or charge or any part thereof shall
be imposed upon Landlord in addition to, or in place
or partly in place of any such Taxes, or contemplated
increase therein, and shall be measured by or be
based in whole or in part upon the Real Property or
the rents or other income therefrom, then all such
new taxes, assessments, levies, impositions or
charges or part thereof, to the extent that they are
so measured or based, shall be included in Taxes
levied, imposed, or assessed against real property to
the extent that such items would be payable if the
Real Property were the only property of Landlord
subject thereto and the income received by Landlord
from the Real Property were the only income of
Landlord.
(B) Notwithstanding the year for which
any such taxes or assessments are levied, (i) in the
case of special taxes or special assessments which
may be payable in installments, the amount of each
installment, plus any interest payable thereon (but
not including penalty interest), paid during a
calendar year shall be included in Taxes for that
year and (ii) if any taxes or assessments payable
during any calendar year shall be computed with
respect to a period in excess of twelve calendar
months, but not to exceed thirteen calendar months,
then taxes or assessments applicable to the excess
period shall be included in Taxes for that year.
Except as provided in the preceding sentence, for
purposes of this Section 2, all references to Taxes
"for" a particular year shall be deemed to refer to
taxes levied, assessed or otherwise imposed for such
year without regard to when such taxes are payable.
(C) Taxes shall also include any
non-tenant personal property taxes (attributable to
the calendar year in which paid) imposed upon the
furniture, fixtures, machinery, equipment, apparatus,
systems and appurtenances used in connection with the
Real Property or the operation thereof and located at
the Building.
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(v) "Tenant's Proportionate Share" shall mean
the percentage stipulated in the Schedule which is the
percentage obtained by dividing the Rentable Area of the
Premises by the Rentable Area of the Building.
(vi) "Additional Rent" shall mean all amounts
determined pursuant to this Section 2, including any amounts
payable by Tenant to Landlord on account thereof.
(b) COMPUTATION OF ADDITIONAL RENT.
Tenant shall pay Additional Rent for each Adjustment Year determined as
hereinafter set forth. Additional Rent payable by Tenant with respect to each
Adjustment Year during which an Adjustment Date falls shall include the
following amounts:
(i) the amount by which Tenant's Proportionate
Share, multiplied by the Expenses for such Adjustment Year
exceeds the Expense Stop Amount stipulated in the Schedule
(said excess being called the "Expense Adjustment"); plus
(ii) the amount by which Tenant's Proportionate
Share, multiplied by the Taxes for such Adjustment Year
exceeds the Tax Stop Amount stipulated in the Schedule (said
excess being called the "Tax Adjustment").
(c) PAYMENTS OF ADDITIONAL RENT;
PROJECTIONS. Tenant shall pay Additional Rent to Landlord in the manner
hereinafter provided.
(i) EXPENSE ADJUSTMENT AND TAX ADJUSTMENT.
Tenant shall make payments on account of the Expense
Adjustment and Tax Adjustment (the aggregate of such payments
with respect to any Adjustment Year being called "Additional
Rent Progress Payment") effective as of the Adjustment Date
for each Adjustment Year as follows:
(A) Landlord may, prior to each
Adjustment Date or from time to time during the
Adjustment Year in which such Adjustment Date falls,
deliver to Tenant a written notice or notices
("Projection Notice") setting forth (1) Landlord's
reasonable estimates, forecasts or projections
(collectively, the "Projections") of Taxes and
Expenses for such Adjustment Year based on Landlord's
budgets of Expenses and estimate of Taxes, (which are
$2.60/square foot for Taxes, and $5.56/square foot
for Expenses), and (2) Tenant's Additional Rent
Progress Payment with respect to each component of
Additional Rent (other than CPI Adjustment) for such
Adjustment Year based upon the Projections.
Landlord's budgets of Expenses and the Projections
based thereon shall assume full occupancy and use of
the Building and may be revised by Landlord from time
to time based on changes in rates and other criteria
which are components of budget items.
(B) Until such time as Landlord
furnishes a Projection Notice for an Adjustment Year,
Tenant shall, at the time of each payment of
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Monthly Base Rent, pay to Landlord a monthly
installment of Additional Rent Progress Payment with
respect to each component of Additional Rent (other
than CPI Adjustment) equal to the greater of the
latest monthly installment of Additional Rent
Progress Payment or one-twelfth (1/12) of Tenant's
latest determined Expense Adjustment and Tax
Adjustment. On or before the first day of the next
calendar month following Landlord's service of a
Projection Notice, and on or before the first day of
each month thereafter, Tenant shall pay to Landlord
one-twelfth (1/12) of the Additional Rent Progress
Payments shown in the Projection Notice. Within
fifteen (15) days following Landlord's service of a
Projection Notice, Tenant shall also pay Landlord a
lump sum equal to the Additional Rent Progress
Payment shown in the Projection Notice less (1) any
previous payments on account of Additional Rent
Progress Payment made during such Adjustment Year and
(2) monthly installments on account of Additional
Rent Progress Payment due for the remainder of such
Adjustment Year.
(d) READJUSTMENTS. The following readjustments with
regard to the Tax Adjustment and Expense Adjustment shall be made by
Landlord and Tenant:
(i) Following the end of each Adjustment Year
and after Landlord shall have determined the amounts of
Expenses to be used in calculating the Expense Adjustment for
such Adjustment Year, Landlord shall notify Tenant in writing
("Landlord's Statement") of such Expenses for such Adjustment
Year. If the Expense Adjustment owed for such Adjustment Year
exceeds the Expense Adjustment component of the Additional
Rent Progress Payment paid by Tenant during such Adjustment
Year, then Tenant shall, within thirty (30) days after the
date of Landlord's Statement, pay to Landlord an amount equal
to the excess of the Expense Adjustment over the Expense
Adjustment component of the Additional Progress Payment paid
by Tenant during such Adjustment Year. If the Expense
Adjustment component of the Additional Rent Progress Payment
paid by Tenant during such Adjustment Year exceeds the Expense
Adjustment owed for such Adjustment Year, then Landlord shall
credit such excess to Rent payable after the date of
Landlord's Statement, or may, at its option, credit such
excess to any Rent then due and owing, until such excess has
been exhausted. If the Expiration Date shall occur prior to
full application of such excess, Landlord shall pay to Tenant
the balance thereof not theretofore applied against Rent and
not reasonably required for payment of Additional Rent for the
Adjustment Year in which the Expiration Date occurs.
(ii) Following the end of each Adjustment Year
and after Landlord shall have determined the actual amounts of
Taxes to be used in calculating the Tax Adjustment for such
Adjustment Year, Landlord shall notify Tenant in writing
("Landlord's Statement") of such Taxes for such Adjustment
Year. If the Tax Adjustment owed for such Adjustment Year
exceeds the Tax Adjustment component of the Additional Rent
Progress Payment paid by Tenant during such Adjustment Year,
then Tenant shall, within thirty (30) days after the date of
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Landlord's Statement, pay to Landlord an amount equal to the
excess of the Tax Adjustment over the Tax Adjustment component
of the Additional Rent Progress Payment paid by Tenant during
such Adjustment Year. If the Tax Adjustment component of the
Additional Rent Progress Payment paid by Tenant during such
Adjustment Year exceeds the Tax Adjustment owed for such
Adjustment Year, then Landlord shall credit such excess to
Rent payable after the date of Landlord's Statement, or may,
at its election, credit such excess to any Rent then due and
owing, until such excess has been exhausted. If the Expiration
Date shall occur prior to full application of such excess,
Landlord shall pay to Tenant the balance thereof not
theretofore applied against Rent and not reasonably required
for payment of Additional Rent for the Adjustment Year in
which the Expiration Date occurs.
(iii) No interest or penalties shall accrue on any
amounts which Landlord is obligated to credit or pay to Tenant
by reason of this Section 2(d).
(e) BOOKS AND RECORDS. Landlord shall maintain books and
records showing Expenses and Taxes in accordance with sound accounting
and management practices. Tenant or its employees and accountants shall
have the right to examine Landlord's books and records showing Expenses
and Taxes upon five (5) days prior written notice and during normal
business hours within forty-five (45) days following the furnishing by
the Landlord to the Tenant of Landlord's Statement provided for in
Section 2(d). The results of such examination shall be for the benefit
of Landlord and Tenant only, shall be maintained in confidence by
Tenant and Tenant's employees, accountants and attorneys and shall not
be disseminated or furnished to any other person or entity. No person
retained by Tenant to conduct such review shall be compensated on a
contingency basis. Unless the Tenant shall take written exception to
any item within sixty (60) days after the furnishing of the Landlord's
Statement containing said item, such Landlord's Statement shall be
considered as final and accepted by the Tenant. If Tenant takes
exception to any item in Landlord's Statement within the applicable
time period and if Landlord and Tenant arc unable to agree on the
correctness of said item, then either party may refer the decision of
said issue to a reputable firm of independent certified public
accountants designated by Landlord and the decision of said accountants
shall he conclusively binding on the parties. The party required to
make payment under such adjustment shall pay all fees and expenses
involved in such decision unless the payment represents five percent
(5%) or less of the annual Expense Adjustment shown on Landlord's
Statement, in which case Tenant shall bear all such fees and expenses.
(f) PRORATION AND SURVIVAL. With respect to any
Adjustment Year which does not fall entirely within the term, Tenant
shall be obligated to pay as Additional Rent for such adjustment year
only a pro rata share of Additional Rent as hereinabove determined,
based upon the number of days of the Term falling within the Adjustment
Year. Following expiration or termination of this Lease, Tenant shall
pay any Additional Rent due to the Landlord within fifteen (15) days
after the date of Landlord's Statement sent to Tenant. Without
limitation on other obligations of Tenant which shall survive the
expiration of the Term, the obligations of Tenant to pay Additional
Rent provided for in this Section 2 shall survive the expiration or
termination of this Lease.
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(g) No Decrease in Base Rent. In no event shall any
decrease in Additional Rent result in a decrease of the Base Rent
payable hereunder as set forth in Section 1 hereof.
(h) Additional Rent. All amounts payable by Tenant as or
on account of Additional Rent shall be deemed to be additional rent
becoming due under this Lease.
(i) INTENTIONALLY DELETED.
3. USE OF PREMISES.
(a) Tenant shall use and occupy the Premises for Tenant's
executive and general offices and for such related purposes as are
described in subsection (b) of this Section 3 and for no other purpose.
For the purposes of this Section 3, Tenant shall be deemed to include
Tenant's permitted subtenants, assigns, and occupants.
(b) Landlord agrees that, in connection with and
incidental to Tenant's use of the Premises for the office purposes set
forth in subsection (a) of this Section 3, provided Tenant, at Tenant's
sole cost and expense, obtains any special amendments to the
certificate of occupancy for the Premises and any other permits
required by any governmental authority having jurisdiction thereof, if
any, Tenant may use portions of the Premises for (i) the preparation
and service of food and beverages from a pantry kitchen or lounge all
for the exclusive use by officers, employees and business guests of
Tenant (hut not for use as a public restaurant or by other tenants of
the Building), (ii) the operation of vending machines for the exclusive
use of officers, employees and business guests of Tenant, provided that
each vending machine, where necessary, shall have a waterproof pan
thereunder and be connected to a drain, and (iii) the installation,
maintenance and operation of electronic data processing equipment,
computer processing facilities and business machines, provided that
such equipment is contained within the Premises and does not cause
vibrations, noise, electrical interference or other disturbance to
other tenants of the Building or the elevators or other equipment in
the Building
(c) With respect to any use permitted under this Section
3, any such use shall not violate any laws or requirements of public
authorities, constitute a public or private nuisance, interfere with or
cause physical discomfort to any of the other tenants or occupants of
the Building, interfere with the operation of the Building or the
maintenance of same as a first-class office building, or violate any of
Tenant's other obligations under this Lease.
(d) Tenant hereby represents, warrants, and agrees that
Tenant's business is not and shall not be photographic, multilith, or
multigraph reproductions or offset printing. Anything contained herein
to the contrary notwithstanding, Tenant shall not use the Premises or
any part thereof, or permit the Premises or any part thereof to be
used, (i) for the business of photographic, multilith, or multigraph
reproductions or offset printing, (ii) for a retail banking, trust
company, depository, guarantee, or safe deposit business open to the
general public, (iii) as a savings bank, a savings and loan
association, or as a loan company open to the general public, (iv) for
the sale to the
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general public of travelers checks, money orders, drafts, foreign
exchange or letters of credit or for the receipt of money for
transmission, (v) as a stock broker's or dealer's office or for the
underwriting or sale of securities open to the general public, (vi)
except as provided in subsection (b) of this Section 3, as a restaurant
or bar or for the sale of confectionery, soda, beverages, sandwiches,
ice cream, or baked goods or for the preparation, dispensing, or
consumption of food or beverages in any manner whatsoever, (vii) as a
news or cigar stand, (viii) as an employment agency, labor union
office, physician's or dentist's office, dance, or music studio, school
(except for the training of employees of Tenant), (ix) as a travel
agency, or (x) as a xxxxxx shop or beauty salon. Nothing in this
subsection (c) shall preclude Tenant from using any part of the
Premises for photographic, multilith, or multigraph reproductions in
connection with, either directly or indirectly, its own business or
activities.
4. ALTERATIONS.
Tenant shall not, without the prior written consent of Landlord in each
instance which shall not be unreasonably withheld, make any alterations,
improvements, or additions to the Premises. If Landlord consents to said
alterations, improvements, or additions, it may impose such reasonable and
customary conditions with respect thereto as Landlord deems appropriate,
including, without limitation, requiring Tenant to furnish Landlord with
security for the payment of all costs to be incurred in connection with such
work, insurance against liabilities which may arise out of such work, plans and
specifications and permits necessary for such work. The work necessary to make
any alterations, improvements, or additions to the Premises shall be done at
Tenant's expense by employees of, or contractors hired by, Landlord, except to
the extent Landlord gives its prior written consent to Tenant's hiring
contractors. Tenant shall promptly pay to Landlord or to Tenant's contractors,
as the case may be, when due, the cost of all such work and of all decorating
required by reason thereof. Tenant will also pay to Landlord an amount equal to
ten percent (10%) of all of the costs of such work to reimburse Landlord for its
overhead and construction management services allocable to such work. Upon
completion, Tenant shall deliver to Landlord, if payment is made directly to
contractors, evidence of payment, contractors' affidavits and full and final
waivers of all liens for labor, services or materials. Tenant shall defend and
hold Landlord and the holder of any legal or beneficial interest in the land or
Building harmless from all costs, damages, liens, and expenses related to such
work. All work done by Tenant or its contractors pursuant to Sections 6 or 11
hereof shall be done in a first-class workmanlike manner using only good grades
of materials and shall comply with all insurance requirements and all applicable
laws and ordinances and rules and regulations of governmental departments or
agencies and the rules and regulations adopted by the Landlord for the Building.
Within thirty (30) days after substantial completion of any such work by Tenant
or its contractors, Tenant shall furnish to Landlord "as built" drawings of such
work.
5. SERVICES.
(a) The Landlord, as long as the Tenant is not in default
under any of the covenants of this Lease, shall furnish:
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(i) Air-conditioning and heat when necessary to
provide a temperature condition required, in Landlord's
reasonable judgment, for comfortable occupancy of the Premises
under normal business operations, daily from 8:00 a.m. to 6:00
p.m. (Saturdays 8:00 a.m. to 1:00 p.m.), Sundays and holidays
(as hereinafter defined) excepted. The term "holidays" as used
herein shall mean New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day. Landlord's
agreements hereunder are subject to Presidential and
governmental restrictions on energy use;
(ii) Cold water in common with other tenants from
Village of Lincolnshire mains for drinking, lavatory, and
toilet purposes drawn through fixtures installed by the
Landlord, or by Tenant in the Premises with Landlord's written
consent, and hot water in common with other tenants for
lavatory purposes from regular Building supply. Tenant shall
pay Landlord as additional rent at rates fixed by Landlord for
water furnished for any other purpose. The Tenant shall not
waste or permit the waste of water;
(iii) Janitor service and customary cleaning
provided nightly in and about the Premises, Saturdays,
Sundays, and holidays excepted, in accordance with the
cleaning schedule attached hereto as Rider B. The Tenant shall
not provide any janitor services or cleaning without the
Landlord's written consent, and then only subject to
supervision of Landlord and at Tenant's sole responsibility
and cost (and without compensation to Tenant or reduction in
Rent) and by a janitor or cleaning contractor or employees at
all times satisfactory to Landlord;
(iv) Passenger elevator service in common with
Landlord and other tenants, daily from 8:00 am. to 8:00 p.m.
(Saturdays from 8:00 am. to 1:00 p.m.), Sundays and holidays
excepted, and freight elevator service in common with Landlord
and other tenants, daily from 7:00 a.m. to 3:30 p.m.,
Saturdays, Sundays, and holidays excepted. Such normal
elevator service, passenger or freight, if furnished at other
times shall be optional with Landlord and shall never be
deemed a continuing obligation. The Landlord, however, shall
provide limited passenger elevator service daily at all times
such normal passenger service is not furnished. Operatorless
automatic elevator service shall be deemed "elevator service"
within the meaning of this paragraph;
(v) Electricity shall not be furnished by
Landlord, but shall be furnished by an approved electric
utility company serving the Building. Landlord shall permit
the Tenant to receive such service direct from such utility
company at Tenant's cost, and shall permit Landlord's wire and
conduits, to the extent available, suitable, and safely
capable, to be used for such purposes. Tenant shall make all
necessary arrangements with the utility company for metering
and paying for electric current furnished by it to Tenant and
Tenant shall pay for all charges for electric current consumed
on the Premises during Tenant's occupancy thereof. The
electricity used during the performance of janitor service,
the making of alterations or repairs in the Premises, the
operation of the Buildings
12
HVAC System at times other than as provided in Section 7(a)(i)
or the operation of any special air conditioning systems which
may be required for data processing equipment or for other
special equipment or machinery installed by Tenant, shall be
paid for by Tenant. Tenant shall make no alterations or
additions to the electric equipment or appliances installed by
Tenant without the prior written consent of the Landlord in
each instance, which consent shall not be unreasonably
withheld. Tenant also agrees to purchase from the Landlord or
its agent at competitive prices all lamps, bulbs, ballasts,
and starters used in the Premises during the Term hereof The
electrical feeder or riser capacity serving the Premises on
the Commencement Date shall be adequate to provide Building
Standard electrical loads Any additional feeders or risers to
supply Tenant's additional electrical requirements, and all
other equipment proper and necessary in connection with such
feeders or risers, shall be installed by Landlord upon
Tenant's request, at the sole cost and expense of Tenant,
provided that, in Landlord's judgment, such additional feeders
or risers are necessary and are permissible under applicable
laws and insurance regulations and the installation of such
feeders or risers will not cause permanent damage or injury to
the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable
alterations or interfere with or disturb other tenants or
occupants or the Building and Tenant deposits with Landlord
funds or other security acceptable to Landlord in the
estimated amount of the cost of such installation, as
determined by Landlord. Tenant covenants and agrees that at
all times its use of electric current shall never exceed the
capacity of the feeders to the Building or the risers or
wiring installed thereon;
(vi) Landlord shall cause the Building and
adjacent walkways and parking areas to be maintained in
operating condition and reasonably free from debris, snow, and
ice consistent with the operation of a first-class office
building in the North Suburban Chicago area.
(vii) Landlord shall provide such extra or
additional services as it is reasonably possible for the
Landlord to provide, and as the Tenant may from time to time
request, within a reasonable period after the time such extra
or additional services are requested. Tenant shall, for such
extra or additional services, pay at Landlord's scheduled
rates therefor; such amount to be considered additional rent
hereunder. All charges for such extra or additional services
shall be due and payable at the same time as the installment
of Base Rent with which they are billed. Any such xxxxxxxx for
extra or additional services shall include an itemization of
the extra or additional services rendered, and the charge for
each such service. Landlord's applicable schedule of charge
rates for certain extra or additional services will be
published from time to time by Landlord and made available to
tenant at its request. Such schedule shall be subject to
change during the Term from time to time.
(b) INTENTIONALLY DELETED.
13
(c) Tenant agrees that Landlord and its beneficiaries and
their agents shall not be liable in damages, by abatement of Rent or
otherwise, for failure to furnish or delay in furnishing any service
when such failure or delay is occasioned, in whole or in part, by
repairs, renewals, or improvements, by any strike, lockout, or other
labor trouble, by inability to secure electricity, gas, water, or other
fuel at the Building after reasonable effort so to do, by any accident
or casualty whatsoever, by the act or default of Tenant or other
parties including without limitation Tenant's failure to maintain the
Premises in good condition and repair, or by any cause beyond the
reasonable control of Landlord; and such failures or delays shall never
be deemed to constitute an eviction or disturbance of the Tenant's use
and possession of the Premises or relieve the Tenant from paying Rent
or performing any of its obligations under this Lease. Tenant shall
notify Landlord if any service shall be stopped, whereupon Landlord
will proceed diligently to restore such service as soon as reasonably
possible. Notwithstanding anything to the contrary contained herein, if
Tenant is unable to use the Premises for ordinary conduct of Tenant's
business due materially to an interruption of the services described
above resulting from Landlord's negligence or willful misconduct, and
such condition continues for a period in excess of 72 consecutive hours
and (i) Tenant furnishes a notice to Landlord (the "Abatement Notice")
stating that Tenant's inability to use the Premises is due to such
condition, (ii) Tenant does not actually use all or a portion of the
Premises as a result of such interruption during such period and (iii)
such condition has not resulted from the negligence or misconduct of
Tenant or its sublessees, contractors, licensees, agents, servants,
employees, or invitees, then Base Rent and Additional Rent for the
Premises only shall be abated on a per diem basis for the period
commencing on the 1st Business Day after Tenant delivers the Abatement
Notice to Landlord and ending on the earlier of (x) the date Tenant is
able to again use all or that portion of the Premises from which Tenant
has been unable to use, and (y) the date on which such condition is
remedied.
(d) Tenant agrees to cooperate fully, at all times, with
Landlord in abiding by all reasonable regulations and requirements
which Landlord may prescribe for the proper functioning and protection
of all utilities and services reasonably necessary for the operation of
the Premises and the Building.
(e) Landlord, throughout the Term of this Lease, shall
have free access to any and all mechanical installations, and Tenant
agrees that there shall be no construction of partitions or other
obstructions which might interfere with the moving of the servicing
equipment of Landlord to or from the enclosures containing said
installations. Tenant further agrees that neither Tenant, nor its
servants, employees, agents, visitors, licensees, or contractors shall
at any time tamper with, adjust, or otherwise in any manner affect
Landlord's mechanical installations.
(f) Tenant shall make arrangements directly with the
telephone company servicing the Building for such telephone service in
the Premises as may be desired by Tenant. If Tenant desires
telegraphic, telephonic, burglar alarm, computer installations or
signal service (which service shall be installed and maintained at
Tenant's sole expense), Landlord shall, upon request, direct where and
how all connections and wiring for such service shall be introduced and
run. Landlord additionally shall have the right to approve or
disapprove all plans and specifications for such service prior to any
installation and to
14
refuse permission for such installation if Landlord determines same
could adversely affect an existing system. In the absence of such
directions, Tenant shall make no borings or cutting or install any
wires or cables in or about the Premises and/or the Building.
6. CONDITION AND CARE OF PREMISES.
(a) Tenant's taking possession of the Premises shall be
conclusive evidence against Tenant, and upon said taking of possession
Tenant shall execute an agreement with Landlord stating that the
Premises were then in good order and satisfactory condition. Except for
Landlord's agreement to clean the carpeting in the Premises, no
promises of the Landlord to alter, remodel, improve, repair, decorate,
or clean the Premises or any part thereof have been made, and no
representation respecting the condition of the Premises, the Building,
or the Land, has been made to Tenant by or on behalf of Landlord except
to the extent expressly set forth herein. TENANT ACKNOWLEDGES THAT IT
IS LEASING THE PREMISES IN ITS PRESENT AS-IS CONDITION; PROVIDED,
HOWEVER, LANDLORD AGREES TO CLEAN THE CARPETING PRIOR TO THE
COMMENCEMENT DATE, AT LANDLORD'S SOLE COST AND EXPENSE, AND ON A
WEEKEND MUTUALLY CONVENIENT TO THE PARTIES. This Lease does not grant
any rights to light or air over or about the property of Landlord.
(b) Except for any damage resulting from any wanton or
negligent act of Landlord or its employees and agents, and subject to
the provisions of Section 15 hereof, Tenant shall, at its own expense,
keep the Premises in good repair and condition and shall promptly and
adequately repair all damage to the Premises caused by Tenant or any of
its employees, agents, or invitees, including replacing or repairing
all damaged or broken glass, fixtures, and appurtenances resulting from
any such damage, under the supervision and with the approval of
Landlord and within any reasonable period of time specified by
Landlord. Tenant's obligation to maintain and repair the Premises,
shall include but is not limited to, all electrical, plumbing and
mechanical systems serving the Premises from the point said systems
connect to the base building systems on each floor. If Tenant does not
do so promptly and adequately, Landlord may, but need not, make such
repairs and replacements and Tenant shall pay Landlord the cost thereof
on demand. Tenant shall take special care to keep all areas of the
Premises which are visible by or accessible to the public, such as
elevator lobbies and corridors, in good order and appearance consistent
with the high standards and quality of a first-class office building.
(c) Whenever, in Landlord's reasonable opinion, Tenant's
use or occupation of the Premises, including lighting, personnel, heat
generating machines, or equipment, individually or cumulatively, causes
the design loads for the system providing heat and air-cooling to be
exceeded, to affect the temperature or humidity otherwise maintained by
the heating, ventilating, and air conditioning system in the Premises
or Building, Landlord may, but shall not be obligated to, temper such
excess loads by installing supplementary heating or air-conditioning
units in the Premises or elsewhere where necessary. In such event, the
cost of such units and the expense of installation, including, without
limitation, the cost of preparing working drawings and specifications,
shall be
15
paid by Tenant as additional rent within ten (10) days after Landlord's
demand therefor. Alternatively, Landlord may require Tenant to install
such supplementary heating or air-conditioning unit at Tenant's sole
expense. Landlord may operate and maintain any such supplementary
units, but shall have no continuing obligation to do so or liability in
connection therewith. The expense resulting from the operation and
maintenance of any such supplementary heating or air conditioning
units, including rent for space occupied by any supplementary heating
or air conditioning units installed outside the Premises, shall be paid
by Tenant to Landlord as additional rent at rates fixed by Landlord.
Alternatively, Landlord may require Tenant to operate and maintain any
such supplementary units, also at Tenant's sole expense.
7. RETURN OF PREMISES.
(a) At the termination of this Lease by lapse of time or
otherwise or upon termination of Tenant's right of possession without
terminating this Lease, Tenant shall surrender possession of the
Premises to Landlord and deliver all keys and access cards to the
Building, the premises and the Building garage to Landlord and make
known to the Landlord the combination of all locks of vaults then
remaining in the Premises, and shall (subject to the provisions of
Sections 9(b) and 9(c) below) return the Premises and all equipment and
fixtures of the Landlord therein to Landlord in as good condition as
when Tenant originally took possession, ordinary wear, loss or damage
by fire or other insured casualty, damage resulting from the wanton or
negligent act of Landlord or its employees and agents excepted, failing
which Landlord may restore the Premises and such equipment and fixtures
to such condition and Tenant shall pay the cost thereof to Landlord on
demand.
(b) All installations, additions, partitions, hardware,
light fixtures, supplementary heat or air--conditioning units,
non--trade fixtures and improvements, temporary or permanent, except
movable furniture, movable partitions and equipment belonging to
Tenant, in or upon the Premises, whether Placed there by Tenant or
Landlord, shall he Landlord's property and shall remain upon the
Premises, all without compensation, allowance or credit to Tenant;
provided, however, that if Landlord directs that Tenant remove any of
said items at the end of the Term, then Tenant, at Tenant's sole cost
and expense, shall promptly remove such of the installations,
additions, partitions, hardware, light fixtures, non-trade fixtures,
and improvements placed in the Premises by or on behalf of Tenant as
are so designated by Landlord and repair any damage to the Premises
caused by such removal, failing which Landlord may remove the same and
repair the Premises and Tenant shall pay the cost thereof to Landlord
on demand. Landlord acknowledges and agrees that there are currently no
installations, additions, partitions, hardware, light fixtures,
non-trade fixtures, or improvements in the Premises which need to be
removed by Tenant at the end of the term of this Lease.
(c) At the sole option of Landlord, Tenant shall leave in
place any floor covering without compensation to Tenant, or Tenant
shall remove any floor covering and all fastenings, paper, glue, bases,
or other vestiges and restore the floor surface to its previous
condition. Tenant shall remove Tenant's furniture, machinery, safes,
trade fixtures, and other items of movable personal property of every
kind and description from
16
the Premises prior to the expiration of the Term or ten (10) days
following termination of this Lease or Tenant's right of possession,
whichever might be earlier, failing which Landlord may do so and
thereupon the provisions of Section 17(f) shall apply.
(d) All obligations of Tenant hereunder shall survive the
expiration of the Term or sooner termination of this Lease for a period
of one (1) year, provided, however, that if Landlord fails to notify
Tenant within 3 months after the Expiration Date that the Premises at
the time possession was surrendered was not in as good condition as
when Tenant originally took possession, normal wear and tear, and
damage by casualty or condemnation excepted, or fails to notify Tenant
of Landlord's designation of such of Tenant's new installations,
additions, partitions, hardware, light fixtures, non-trade fixtures,
and improvements that Landlord requires be removed, then Tenant shall
have no responsibility to remove same.
8. HOLDING OVER.
The Tenant shall pay Landlord for each month (or fraction thereof)
Tenant retains possession of the Premises or any part thereof after termination
of this Lease, by lapse of time or otherwise, an amount which is double the
amount of rent for each month based on the annual rate of Rent applicable under
Sections 1 and 2 to the period in which such possession occurs, and Tenant shall
also pay all damages, consequential as well as direct, sustained by Landlord by
reason of such retention. Nothing in this Section contained, however, shall be
construed or operate as a waiver of Landlord's right of re-entry or any other
right of Landlord.
9. RULES AND REGULATIONS.
Tenant agrees to observe the rights reserved to Landlord contained in
Section 12 hereof and agrees, for itself, its employees, agents, clients,
customers, invitees and guests, to comply with the rules and regulations set
forth in Rider A attached to this Lease and made a part hereof and such other
reasonable rules and regulations as shall be adopted by Landlord pursuant to
Section 12(1) of this Lease. Any violation by Tenant of any of the rules and
regulations contained in Rider A attached to this Lease or other Section of this
Lease, or as may hereafter be adopted by Landlord pursuant to Section 12(1) of
this Lease, may be restrained; but whether or not so restrained, Tenant
acknowledges and agrees that it shall be and remain liable for all damages,
loss, costs and expense resulting from any violation by the Tenant of any of
said rules and regulations. Nothing in this Lease contained shall he construed
to impose upon Landlord any duty or obligation to enforce said rules and
regulations, or the terms, covenants and conditions of any other lease against
any other tenant or any other persons, and Landlord and its beneficiary shall
not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, invitees, or by any other person. Landlord shall enforce all
such rules and regulations in a consistent and uniform manner among all tenants
of the Building.
10. RIGHTS RESERVED TO LANDLORD.
Landlord reserves the following rights, exercisable without notice and
without liability to Tenant for damage or injury to property, person or business
and without effecting an eviction or
17
disturbance of Tenant's use or possession or giving rise to any claim for setoff
or abatement of Rent or affecting any of Tenant's obligations under this Lease:
(a) To change the name or street address of the Building.
(b) To install and maintain signs on the exterior and
interior of the Building.
(c) To prescribe the location and style of the suite
number and identification sign or lettering for the Premises occupied
by the Tenant.
(d) To retain at all times, and to use in appropriate
instances, pass keys to the Premises.
(e) To grant to anyone the right to conduct any business
or render any service in the Building, whether or not it is the same as
or similar to the use expressly permitted to Tenant by Section 3.
(f) To exhibit the Premises during the last six (6)
months of the Term at reasonable hours, and to decorate, remodel,
repair, alter, or otherwise prepare the Premises for reoccupancy at any
time after Tenant vacates or abandons the Premises.
(g) To enter the Premises at reasonable hours for
reasonable purposes, including inspection and supplying janitor service
or other service to be provided to Tenant hereunder.
(h) To require all persons entering or leaving the
Building during such hours as Landlord may from time to time reasonably
determine to identify themselves to watchmen by registration or
otherwise, and to establish their right to enter or leave in accordance
with the provisions of applicable rules and regulations adopted by
Landlord. Landlord shall not be liable in damages for any error with
respect to admission to or eviction or exclusion from the Building of
any person. In case of fire, invasion, insurrection, mob, riot, civil
disorder, public excitement or other commotion, or threat thereof,
Landlord reserves the right to limit or prevent access to the Building
during the continuance of the same, shut down elevator service,
activate elevator emergency controls, or otherwise take such action or
preventive measures deemed necessary by Landlord for the safety of the
tenants or other occupants of the Building or the protection of the
Building and the property in the Building. Tenant agrees to cooperate
in any reasonable safety program developed by Landlord.
(i) To reasonably control and prevent access to common
areas and other non-general public areas pursuant to the provisions of
applicable reasonable rules and regulations adopted by Landlord.
(j) Provided that reasonable access to the Premises shall
be maintained and the business of Tenant shall not be interfered with
or disrupted unreasonably, Landlord reserves the right to relocate,
enlarge, reduce or change lobbies, exits or entrances in or to the
Building and to decorate and to make, at its own expense, repairs,
alterations, additions and improvements, structural or otherwise, in or
to the Building or any part
18
thereof, and any adjacent building, land, street or alley, including
for the purpose of connection with or entrance into or use of the
Building in conjunction with any adjoining or adjacent building or
buildings, now existing or hereafter constructed, and may for such
purposes erect scaffolding and other structures reasonably required by
the character of the work to be performed, and during such operations
may enter upon the Premises and take into and upon or through any part
of the Building, including the Premises, all materials that may be
required to make such repairs, alterations, improvements, or additions,
and in that connection Landlord may temporarily close public entry
ways, other public spaces, stairways or corridors and interrupt or
temporarily suspend any services or facilities agreed to be furnished
by Landlord, all without the same constituting an eviction of Tenant in
whole or in part and without abatement of Rent by reason of loss or
interruption of the business of Tenant or otherwise and without in any
manner rendering Landlord liable for damages or relieving Tenant from
performance of Tenant's obligations under this Lease. Landlord may at
its option make any repairs, alterations, improvements and additions in
and about the Building and the Premises during ordinary business hours
and, if Tenant desires to have such work done during other than
business hours, Tenant shall pay all overtime and additional expenses
resulting therefrom.
(k) From time to time to make and adopt such reasonable
rules and regulations, in addition to or other than or by way of
amendment or modification of the rules and regulations contained in
Rider A attached to this Lease or other Sections of this Lease, for the
protection and welfare of the Building and its tenants and occupants,
as the Landlord may reasonably determine.
11. ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise expressly provided herein, Tenant
shall not, without the prior written consent of Landlord in each
instance, (i) convey, mortgage, pledge, hypothecate, or encumber, or
subject to or permit to exist upon or be subjected to any lien or
charge, this Lease or any interest under it, (ii) allow to exist or
occur any transfer of or lien upon this Lease or the Tenant's interest
herein by operation of law, (iii) assign this Lease or any of Tenant's
rights hereunder, (iv) sublet the Premises or any part thereof, or (v)
permit the use or occupancy of the Premises or any part thereof for any
purpose not provided for under Section 3 of this Lease or by anyone
other than the Tenant and Tenant's employees. Landlord has the absolute
right to withhold its consent, without giving any reason whatsoever,
except as herein expressly provided to the contrary. The foregoing
prohibitions shall also apply to any assignee or subtenant of Tenant.
(b) Prior to the Commencement Date, Tenant shall not
assign this Lease or sublet all or any part of the Premises. If, after
the Commencement Date, Tenant has procured an assignee or sublessee,
Tenant shall, by written notice to Landlord, advise Landlord of its
intention from, on and after a stated date (which shall not be less
than fifteen (15) days after the date of Tenant's notice) to assign
this Lease to such proposed assignee or sublet any part or all of the
Premises to such proposed subtenant for the balance or any part of the
Term. Upon receipt of such notice, Landlord shall have the right, to be
exercised by giving written notice to Tenant within fifteen (15) days
after receipt of Tenant's notice, to cancel the lease in the case of a
proposed assignment of this
19
Lease or a proposed subleasing of all the Premises, or to cancel the
lease with respect to the portion to be so subleased by notice to
Tenant in which latter event the Rent and Tenant's Proportionate Share
as defined herein shall be adjusted on the basis of the number of
square feet of Rentable Area of the Premises retained by Tenant, and
this Lease as so amended shall continue thereafter in full force and
effect. If Landlord wishes to exercise such option to cancel[, Landlord
shall, within fifteen (15) days after Landlord's receipt of such notice
from Tenant, send to Tenant a notice so stating and in such notice
Landlord shall specify the date as of which such cancellation is
effective, which date shall be not less than the date on which the
proposed assignment or sublease was to commence and not more than
ninety (90) days after the date on which the date on which the proposed
assignment or sublease was to commence. Tenant's notice given pursuant
to this Section 13(b) shall state the name and address of the proposed
subtenant or assignee, and a true and complete copy of the proposed
sublease or assignment and sufficient information to permit Landlord to
determine the financial responsibility and character of the proposed
subtenant or assignee shall be delivered to Landlord with said notice.
(c) If Landlord, upon receiving Tenant's notice given
pursuant to Section 13(b), shall not exercise its right to cancel,
Landlord will not unreasonably withhold its consent to Tenant's
assignment of this Lease or subletting the space covered by its notice.
In each case, such subletting or assignment shall also be subject to
the following conditions:
(i) A Default is not then in existence;
(ii) Tenant has fully complied with the
provisions of this Section 13;
(iii) The assignee or subtenant is not a tenant of
the Lincolnshire Corporate Center or a government (or
subdivision or agency thereof);
(iv) Tenant has furnished Landlord with copies of
all documents relating to the sublease or assignment
arrangement between Tenant and the proposed subtenant or
assignee, including financial statements, if requested by
Landlord;
(v) The proposed sublease or proposed assignment
does not extend for a term beyond the initial Term of this
Lease, nor does the sublease or assignment contain any options
to extend or renew the term thereof beyond the initial Term of
this Lease;
(vi) The subtenant or assignee is of a character
or engaged in a business which is, and the subtenant's or
assignee's proposed use of the Premises, or portions thereof,
is consistent with the standards of Landlord for the Building
and the use permitted hereunder;
(vii) A subletting will not result in more than
two occupants of the Premises, including Tenant and all
subtenants;
20
(viii) The space to be subleased and the remaining
portion of the Premises are both legally leasable units and
suitable for normal renting;
(ix) The assignee or subtenant is sufficiently
financially responsible to perform its obligations under the
sublease or assignment; and
(x) The intended use by or business of the
proposed assignee or sublessee will not conflict with any
commitment by Landlord to any other tenant in the Lincolnshire
Corporate Center.
Landlord agrees to respond to Tenant's request for approval within
fifteen (15) days after submission of all documents.
(d) Notwithstanding the provisions of subparagraphs (a),
(b), and (c) above, Landlord agrees that (1) as to an assignment or
transfer by operation of law, Landlord shall have the right of consent
pursuant to subparagraph (c) above, but shall not have the option to
cancel the lease, provided such assignment or transfer is to a
corporation which acquires substantially all of the stock of the
Tenant; and (2) as to an assignment of the lease to a wholly-owned
subsidiary of Tenant, Landlord shall not have the option to cancel nor
shall Landlord have a right of consent.
(e) Consent by Landlord to any assignment, subletting,
use, or occupancy or transfer shall not operate to relieve the Tenant
from any covenant or obligation hereunder, and shall not he deemed to
be a consent to or relieve Tenant, or any subtenant or assignee, from
obtaining Landlord's consent to any subsequent assignment, transfer,
lien, charge, subletting, use, or occupancy. Tenant shall pay all of
Landlord's costs, charges and expenses, including attorneys' fees,
incurred in connection with any assignment, transfer, lien, charge,
subletting, use or occupancy made or requested by Tenant.
(f) If Tenant, having first obtained Landlord's consent
to any sublease or assignment, or if Tenant or a trustee in bankruptcy
for Tenant, pursuant to Section 365 of the Bankruptcy Code, shall
assign this Lease or sublet the Premises, or any part thereof, then in
addition to the Rent then payable hereunder, Tenant shall pay to
Landlord, as further additional rent on the first day of each month
during the term of any such assignment or sublease, fifty percent (50%)
of the amount, if any, by which (x) the Assigned Area Rent exceeds (y)
the product of the Current Monthly Rent multiplied by the Assigned
Area. As used herein:
(i) "Assigned Area" shall mean the number of
square feet of Rentable Area of the Premises (in the case of
an assignment or sublet of the entire Premises) or of the
Rentable Area of any space sublet by Tenant (in the ease of a
sublet of less than the entire Premises).
(ii) "Current Monthly Rent" shall mean the
aggregate of all Monthly Base Rent and Additional Rent
Progress Payments being paid by Tenant as of the effective
date of an assignment or sublet, divided by the number of
square feet of Rentable Area of the Premises.
21
(iii) "Assigned Area Rent" shall mean the current
monthly base rent and other amounts payable by the subtenant
or assignee for the Assigned Area.
(g) If Tenant is a legal entity, the transfer (by one or
more transfers), directly or indirectly, by operation of law or
otherwise, of a majority of the stock or other beneficial ownership
interest in Tenant or of all or substantially all of the assets of
Tenant (collectively "Ownership Interests") shall be deemed a voluntary
assignment of this Lease; provided, however, that the provisions of
this Section ii shall not apply to the transfer of Ownership Interests
in Tenant if and so long as Tenant is publicly traded on a nationally
recognized stock exchange. For purposes of this Section 11(g) the term
"transfers" shall be deemed to include (x) the issuance of new
Ownership Interests which results in a majority of the Ownership
Interests in Tenant being held by a person or entity which does not
hold a majority of the Ownership Interests in Tenant on the Effective
Date and (y) except as provided below, the sale or transfer of all or
substantially all of the assets of Tenant in one or more transactions
and the merger or consolidation of Tenant in to or with another
business entity. The provisions of Section 11(g) shall not apply to
transactions with a business entity into or with which Tenant is merged
or consolidated or to which all or substantially all of Tenant's assets
or stock are transferred so long as (i) such transfer was made for a
legitimate independent business purpose and not abrogating or avoiding
Tenant's duties and obligations under this Lease, (ii) the successor to
Tenant has a net worth computed in accordance with generally accepted
accounting principles at least equal to the net worth of Tenant
immediately prior to such merger, consolidation or transfer, and (iii)
proof reasonably satisfactory to Landlord of such net worth is
delivered to Landlord at least 10 days prior to the effective date of
any such transaction, and, in the event that the transferee is a
publicly--traded company, Landlord shall keep such transfer
confidential until same is publicly announced by either Tenant or the
transferee. Tenant may also, upon prior notice to Landlord, permit any
business entity which controls, is controlled by, or is under common
control with the original Tenant (a "Related Entity") to sublet all or
part of the Premises for any Permitted Use, provided the Related Entity
is in Landlord's reasonable judgment of a character and engaged in a
business which is in keeping with the standards for the Building and
for so long as such entity remains a Related Entity. Such sublease
shall not be deemed to vest in any such Related Entity any right or
interest in this Lease nor shall it relieve, release, impair or
discharge any of Tenant's obligations hereunder. For the purposes
hereof, "control" shall be deemed to mean ownership of not less than
50% of all of the Ownership Interests of such corporation or other
business entity. Notwithstanding the foregoing, Tenant shall have no
right to assign this Lease or sublease all or any portion of the
Premises without Landlord's consent pursuant to this Section 11(g) if
Tenant is not the initial Tenant herein named or a person or entity who
acquired Tenant's interest in this Lease in a transaction approved by
Landlord.
12. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT.
(a) To the extent not expressly prohibited by law, Tenant
releases Landlord and its beneficiaries, and their agents, servants,
and employees, from and waives all claims for damages to person or
property sustained by the Tenant or by any occupant of the Premises or
the Building, or by any other person, resulting directly or indirectly
from
22
fire or other casualty, cause, or any existing or future condition,
defect, matter, or thing in or about the Premises, the Building or any
part of it, or from any equipment or appurtenance therein, or from any
accident in or about the Building, or from any act or neglect of any
tenant or other occupant of the Building or any part thereof or of any
other person. This Section 14(a) shall not operate as a release of
Landlord from liability for the negligent or intentionally wrongful
conduct of Landlord or its agent or employees. This Section 14 shall
apply especially, but not exclusively, to damage caused by water, snow,
frost, steam, excessive heat or cold, sewerage, gas, odors, or noise,
or the bursting or leaking of pipes or plumbing fixtures, broken glass,
sprinkling or air conditioning devices or equipment, or flooding of
basements, and to any damage to automobiles parked in the garage in the
Building or outside the Building and shall apply without distinction as
to the person whose act or neglect was responsible for the damage and
whether the damage was due to any of the acts specifically enumerated
above, or from any other thing or circumstance, whether of a like
nature or of a wholly different nature. If any damage to the Premises
or the building or any equipment or appurtenance therein, whether
belonging to Landlord or to other tenants or occupants of the Building
or otherwise, results from any negligent or wrongful acts of the
Tenant, its employees, agents, or invitees, Tenant shall be liable
therefor and Landlord may, at its option, repair such damage and Tenant
shall upon demand by Landlord reimburse Landlord for all reasonable
costs of such repairs and damages in excess of amounts, if any, paid to
Landlord under insurance covering such damages except as provided in
Section 19(a) below. All personal property belonging to the Tenant or
any occupant of the Premises that is in the Building or the Premises
shall be there at the risk of the Tenant or other person only and
Landlord shall not be liable for damage thereto or theft or
misappropriation thereof. All vehicles parked in the Building's garage
or in the parking lots shall be parked at the sole risk of the owner,
and Landlord assumes no responsibility for any damage to or loss of
vehicles.
(b) To the extent not expressly prohibited by law and
Section 19(a), Tenant agrees to hold Landlord and its beneficiaries,
and their agents, servants, and employees, harmless and to indemnify
each of them against claims and liabilities, including reasonable
attorneys' fees, for injuries to all persons and damage to or theft or
misappropriation or loss of property occurring in or about the Premises
arising from Tenant's negligence or wrongful acts or from any breach or
default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to the terms
of this Lease or due to any other act or omission of the Tenant, its
agents, or employees.
13. DAMAGE OR DESTRUCTION BY CASUALTY.
(a) If the Premises or any part of the Building shall be
damaged by fire or other casualty and if such damage does not render
all or a substantial portion of the Premises or the Building
untenantable, then Landlord shall proceed to repair and restore the
same to its prior existing condition with reasonable promptness,
subject to reasonable delays for insurance adjustments and delays
caused by matters beyond Landlord's control. If any such damage renders
all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, with reasonable promptness after the
occurrence
23
of such damage and in good faith, estimate the length of time that will
be required to substantially complete the repair and restoration of
such damage and shall by notice advise Tenant of such estimate. If it
is so estimated that the amount of time required to substantially
complete such repair and restoration will exceed ninety (90) days from
the date such damage occurred, then either Landlord or Tenant (but as
to Tenant only if all or a substantial portion of the Premises are
rendered untenantable and the estimated time to substantially complete
the repair or restoration of the Premises will exceed such ninety (90)
days from the date of the fire or other casualty) shall have the right
to terminate this Lease as of the date of such damage upon giving
notice to the other at any time within twenty (20) days after Landlord
gives Tenant the notice containing said estimate (it being understood
that Landlord may, if it elects to do so, also give such notice of
termination together with the notice containing said estimate). Unless
this Lease is terminated as provided in the preceding sentence,
Landlord shall proceed with reasonable promptness and all due diligence
to repair and restore the Premises, subject to reasonable delays for
insurance adjustments and delays caused by matters beyond Landlord's
control, and also subject to zoning laws and building codes then in
effect. Landlord shall have no liability to Tenant, and Tenant shall
not be entitled to terminate this Lease (except as hereinafter
provided) if such repairs and restoration are not in fact completed
within the time period estimated by Landlord, as aforesaid, or within
said ninety (90) days, so long as Landlord shall proceed with
reasonable promptness and due diligence. Notwithstanding anything to
the contrary herein set forth: (i) if any such damage rendering all or
a substantial portion of the Premises or Building untenantable shall
occur during the last three (3) years of the Term, then Landlord and
Tenant shall each have the option to terminate this Lease by written
notice to the other within thirty (30) days after the date such damage
occurred, and if such option is so exercised, this Lease shall
terminate as of the date of such damage; (ii) Landlord shall have no
duty pursuant to this Section 15 to repair or restore any portion of
alterations, additions or improvements made by or on behalf of Tenant
in the Premises or improvements which are not then building standard
improvements; (iii) Landlord shall not be obligated (but may, at its
option, so elect) to repair or restore the Premises or Building if any
mortgagee applies proceeds of insurance to reduce its loan balance and
the remaining proceeds, if any, available to Landlord are not
sufficient to pay for such repair or restoration; and (iv) Tenant shall
not have the right to terminate this Lease pursuant to this Section 15
if the damage or destruction was caused by the intentional or negligent
act of Tenant, its agents or employees.
(b) In the event any such fire or casualty damage not
caused by the intentional or negligent act of Tenant, its agents or
employees, renders the Premises substantially untenantable and Tenant
is not occupying the Premises and if this Lease shall not be terminated
pursuant to the foregoing provisions of Section 15 by reason of such
damage, then Rent shall xxxxx during the period beginning with the date
of such damage and ending with the date when Landlord substantially
completes its repair and restoration work. Such abatement shall be in
an amount bearing the same ratio to the total amount of Rent for such
period as the portion of the Premises being repaired and restored by
Landlord and not heretofore delivered to Tenant from time to time bears
to the entire Premises. In the event of termination of this Lease
pursuant to this Section 15, Rent shall be apportioned on a per diem
basis and be paid to the date of such fire or other casualty.
24
(c) In the event of any such fire or other casualty, and
if the lease is not terminated pursuant to the foregoing provisions of
this Lease, Tenant shall repair and restore any portion of alterations,
additions or improvements made by or on behalf of Tenant in the
Premises, and during any such period of Tenant's repair and restoration
following substantial completion of Landlord's repair and restoration
work, Rent shall be payable as if said fire or other casualty had not
occurred.
14. EMINENT DOMAIN.
If all or a substantial part of the Building, or any part thereof which
includes all or a substantial part of the Premises, shall be taken or condemned
by any competent authority for any public or quasi-public use or purpose, the
Term of this Lease shall end upon and not before the date when the possession of
the part so taken shall be required for such use or purpose, and without
apportionment of the award to or for the benefit of Tenant. If any condemnation
proceeding shall be instituted in which it is sought to take or damage any part
of the Building, the taking of which would, in Landlord's opinion, prevent the
economical operation of the Building, or if the grade of any street or alley
adjacent to the Building is changed by any competent authority, and such taking
or damage or change of grade makes it necessary or desirable to remodel the
Building to conform to the taking or damage, Landlord shall have the right to
terminate this Lease upon not less than ninety (90) days' notice prior to the
date of termination designated in the notice. In either of the events above
referred to, Rent shall be apportioned as of the date of the termination. No
money or other consideration shall be payable by the Landlord to the Tenant for
the right of termination, and the Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by such taking or the
change of grade; provided, however, that Tenant shall have the right to pursue
separately against the condemning authority any award available separately to
Tenant for Tenant's moving and relocation expenses.
15. DEFAULT; LANDLORD'S RIGHTS AND REMEDIES.
(a) The occurrence of any one or more of the following
matters constitutes a Default by Tenant under this Lease:
(i) Failure by Tenant to pay Rent or any
installment thereof when due;
(ii) Failure by Tenant to pay when due any other
moneys required to be paid by Tenant under this Lease;
(iii) Failure by Tenant to observe or perform any
of the covenants in respect of assignment and subletting set
forth in Section 13, and such failure continues for more than
five (5) days after notice to Tenant;
(iv) Failure by Tenant to cure forthwith,
immediately after receipt of notice from Landlord, any
hazardous condition which Tenant has created in violation of
law or of this Lease;
(v) Failure by Tenant to observe or perform any
other covenant, agreement, condition or provision of this
Lease, if such failure shall continue for
25
thirty (30) days after notice thereof from Landlord to Tenant,
provided, however, that Tenant shall not be in default with
respect to matters which cannot reasonably be cured within
thirty (30) days so long as within such thirty (30) day period
Tenant commences such cure and diligently proceeds to complete
the same at all times thereafter;
(vi) The levy upon or under execution or the
attachment by legal process of the leasehold interest of
Tenant, or the filing or creation of a lien in respect of such
leasehold interest, which lien shall not be released or
discharged within thirty (30) days from the date of such
filing;
(vii) Tenant vacates or abandons the Premises or
fails to take possession of the Premises when available for
occupancy (the transfer of a substantial part of the
operations, business and personnel of Tenant to some other
location being deemed, without limiting the meaning of the
term "vacates or abandons", to be a vacation or abandonment
within the meaning of this clause (vii)), and Tenant
thereafter fails to continue to pay Rent due under this Lease;
provided however, that in the event Tenant vacates or abandons
the Premises, Landlord shall have the right to make repairs,
alternations and additions in or to the Premises and
redecorate the same to the extent deemed by Landlord necessary
or desirable whether or not Tenant thereafter continues to pay
Rent due under this Lease;
(viii) Tenant becomes insolvent or bankrupt or
admits in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of creditors,
or applies for or consents to the appointment of a trustee or
receiver for Tenant or for the major part of his property;
(ix) A trustee or receiver is appointed for the
Tenant or for the major part of its property and is not
discharged within thirty (30) days after such appointment; and
(x) Bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings
for relief under any bankruptcy law, or similar law for the
relief of debtors, are instituted by or against Tenant, and,
if instituted against Tenant, are allowed against it or are
consented to by it or are not dismissed within sixty (60) days
after such institution.
(b) If a Default occurs which has not been cured or
remedied during the applicable grace period, Landlord shall have the
rights and remedies hereinafter set forth, which shall be distinct,
separate and cumulative and shall not operate to exclude or deprive
Landlord of any other right or remedy allowed it by law:
(i) Landlord may terminate this Lease by giving
to Tenant written notice of the Landlord's election to do so,
in which event the Term of this Lease shall end, and all
right, title and interest of the Tenant hereunder shall
expire, on the date stated in such notice;
26
(ii) Landlord may terminate the right of the
Tenant to possession of the Premises' without terminating this
Lease by giving written notice to Tenant that Tenant's right
of possession shall end on the date stated in such notice,
whereupon the right of the Tenant to possession of the
Premises or any part thereof shall cease on the date stated in
such notice; and
(iii) Landlord may enforce the provisions of this
Lease and may enforce and protect the rights of the Landlord
hereunder by a suit or suits in equity or at law for the
specific performance of any covenant or agreement contained
herein, or for the enforcement of any other appropriate legal
or equitable remedy, including recovery of all moneys due or
to become due from the Tenant under any of the provisions of
this Lease.
Any notice required to be given by Landlord pursuant to this Section
17(b) may be given concurrently with a notice of default pursuant to
Section 17(a).
(c) If Landlord exercises either the remedies provided
for in subparagraphs (i) or (ii) of the foregoing Section 17(b), Tenant
shall surrender possession and vacate the Premises immediately and
deliver possession thereof to the Landlord, and Landlord may then or at
any time thereafter re-enter and take complete and peaceful possession
of the Premises, with or without process of law, full and complete
license to do so being hereby granted to the Landlord, and Landlord may
remove all occupants and property therefrom, using such force as may be
necessary, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without relinquishing
Landlord's right to rent or any other right given to Landlord hereunder
or by operation of law.
(d) If Landlord, pursuant to the provisions of Section
17(b)(ii) hereof, terminates the right of the Tenant to possession of
the Premises without terminating this Lease, such termination of
possession shall not release Tenant, in whole or in part, from Tenant's
obligation to pay the Rent hereunder for the full Term, and Landlord
shall have the right to immediate recovery of all amounts then due
hereunder. In addition, Landlord shall have the right, from time to
time, to recover from the Tenant, and the Tenant shall remain liable
for, all Rent and any other sums thereafter accruing as they become due
under this Lease during the period from the date of such notice of
termination of possession to the stated end of the Term. In any such
ease, the Landlord may, but shall be under no obligation to (except to
the extent required by law), relet the Premises or any part thereof for
the account of the Tenant for such rent, for such time (which may be
for a term extending beyond the Term of this Lease) and upon such terms
as the Landlord in the Landlord's sole discretion shall determine, and
the Landlord shall not be required to accept any tenant offered by the
Tenant or to observe any instructions given by the Tenant relative to
such reletting. Landlord shall, however, cooperate with Tenant in order
to relet the Premises and minimize Tenant's damages, but this
obligation shall not require Landlord to divert any prospective tenants
from any other portion of the Building. Also in any such case the
Landlord may make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent deemed by the Landlord
necessary or desirable and in connection therewith change the locks to
the Premises, and the Tenant shall upon demand pay the cost thereof
together with the Landlord's expenses of
27
reletting. Landlord may collect the rents from any such reletting and
apply the same first to the payment of the expenses of reentry,
redecoration, repair and alterations and the expenses of reletting and
second to the payment of Rent herein provided to be paid by the Tenant,
and any excess or residue shall operate only as an offsetting credit
against the amount of Rent as the same thereafter becomes due and
payable hereunder, but the use of such offsetting credit to reduce the
amount of Rent due Landlord, if any, shall not be deemed to give Tenant
any right, title or interest in or to such excess or residue and any
such excess or residue shall belong to Landlord solely; provided that
in no event shall Tenant be entitled to a credit on its indebtedness to
Landlord in excess of the aggregate sum (including Base Rent and
Additional Rent) which would have been paid by Tenant for the period
for which the credit to Tenant is being determined, had no Default
occurred. No such re-entry or repossession, repairs, alterations and
additions, or reletting shall be construed as an eviction or ouster of
the Tenant or as an election on Landlord's part to terminate this Lease
unless a written notice of such intention be given to Tenant or shall
operate to release the Tenant in whole or in part from any of the
Tenant's obligations hereunder, and the Landlord may, at any time and
from time to time, xxx and recover judgment for any deficiencies from
time to time remaining after the application from time to time of the
proceeds of any such reletting.
(e) In the event of the termination of this Lease by
Landlord as provided for by subparagraph (i) of Section 17(b), Landlord
shall be entitled to recover from Tenant all the fixed dollar amounts
of Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by the
Tenant, or for which Tenant is liable or in respect of which Tenant has
agreed to indemnify Landlord under any of the provisions of this Lease
which maybe then owing and unpaid, and all costs and expenses,
including court costs and attorneys' fees incurred by Landlord in the
enforcement of' its rights and remedies hereunder, and in addition
Landlord shall be entitled to recover as damages for loss of the
bargain and not as a penalty (x) the unamortized cost to the Landlord,
computed and determined in accordance with generally accepted
accounting principles, of the tenant improvements and alterations, if
any, paid for and installed by Landlord pursuant to this Lease, and (y)
the aggregate sum which at the time of such termination represents the
excess, if any, of the present value of the aggregate rents at the same
annual rate for the remainder of the Term as then in effect pursuant to
the applicable provisions of Sections 1 and 2 of this Lease, over the
then present value of the then aggregate fair rental value of the
Premises for the balance of the Term, such present worth to be computed
in each case on the basis of a per annum discount at one-half (l/2) of
the corporate base rate of interest then in effect at Bank One from the
respective dates upon which such rentals would have been payable
hereunder had this Lease not been terminated, and (z) any damages in
addition thereto, including reasonable attorneys' fees and court costs,
which Landlord shall have sustained by reason of the breach of any of
the covenants of this Lease other than for the payment of rent.
(f) All property removed from the Premises by Landlord
pursuant to any provision of this Lease or of law may be handled,
removed or stored by Landlord at the cost and expense of the Tenant,
and the Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof Tenant shall pay Landlord for all
expenses incurred by Landlord in such removal and storage charges
against such property so long
28
as the same shall be in Landlord's possession or under Landlord's
control. All property not removed from the Premises or not retaken from
storage by Tenant within thirty (30) days after the end of the Term,
however terminated, shall be conclusively deemed to have been conveyed
by Tenant to Landlord as by xxxx of sale without further payment or
credit by Landlord to Tenant.
(g) If any action for breach of or to enforce any
provision of this Lease is commenced, the court in such action shall
award to the party in whose favor judgment is entered, a reasonable sum
as attorneys' fees, which attorneys' fees shall be paid by the losing
party in such action. Tenant shall pay all of Landlord's costs,
charges, and expenses, including court costs and reasonable attorneys'
fees, incurred by Landlord in any litigation in which Tenant causes the
Landlord, without Landlord's fault, to become involved or concerned.
(h) In the event that Tenant shall file for protection
under any Chapter of the Bankruptcy Code now or hereafter in effect,
Landlord and Tenant agree, to the extent permitted by law, to request
that the debtor-in-possession or trustee-in-bankruptcy, if one is
appointed, assume or reject this Lease within sixty (60) days
thereafter.
(i) Except as otherwise expressly provided in this Lease,
Tenant hereby expressly waives the service of any notice of intention
to terminate this Lease or to re-enter the Premises and waives the
service of any demand for payment of Rent or for possession and waives
the service of any other notice or demand prescribed by any statute or
other law.
16. SUBORDINATION.
(a) Landlord may have heretofore or may hereafter
encumber with a mortgage or trust deed the Building, the Land, the Real
Property or any interest therein, and may have heretofore and may
hereafter sell and lease back the Land, or any part of the Real
Property, and may have heretofore or may hereafter encumber the
leasehold estate under such lease with a mortgage or trust deed (any
such mortgage or trust deed is herein called a "Mortgage" and the
holder of any such mortgage or the beneficiary under any such trust
deed is herein called a "Mortgagee". Any such lease of the underlying
land is herein called a "Ground Lease", and the lessor under any such
lease is herein called a "Ground Lessor". Any Mortgage which is a first
lien against the Building, the Land, the Real Property, the leasehold
estate under a Ground Lease or any interest therein is herein called a
"First Mortgage" and the holder or beneficiary of any First Mortgage is
herein called a "First Mortgagee"). If requested by the Mortgagee or
Ground Lessor, Tenant will either (a) subordinate its interest in this
Lease to said Mortgage, and to any and all advances thereunder and to
the interest thereon, and all renewals, replacements, amendments,
modifications, and extensions thereof, or to said Ground Lease, or to
both; provided, however, Landlord shall first provide Tenant with a
commercially reasonable non-disturbance agreement, or (b) make Tenant's
interest in this Lease or certain of Tenant's rights hereunder superior
thereto; and Tenant will promptly execute and deliver such agreement or
agreements as may be reasonably required by the Mortgagee or by any
such Ground Lessor; provided that Tenant covenants it will not
subordinate this Lease to
29
any Mortgage other than a First Mortgage without the prior written
consent of the First Mortgagee.
(b) It is further agreed that (a) if any Mortgage shall
be foreclosed, or if any ground or underlying lease be terminated, (i)
the liability of the mortgagee or trustee hereunder or purchaser at
such foreclosure sale or the liability of a subsequent owner designated
as Landlord under this Lease shall exist only so long as such trustee,
mortgagee, purchaser, or owner is the owner of an interest in the
Building or Land and such liability shall not continue or survive after
further transfer of ownership; and (ii) upon request of the mortgagee
or trustee, if any Mortgage shall be foreclosed, Tenant will attorn, as
Tenant under this Lease, to the purchaser at any foreclosure sale under
any Mortgage, or upon request of the Ground Lessor, if any Ground Lease
shall be terminated, Tenant will attorn as Tenant under this Lease to
the Ground Lessor, and Tenant will execute such instruments as may be
necessary or appropriate to evidence such attornment; and (b) this
Lease may not be modified or amended so as to reduce the rent or
shorten the term provided hereunder, or so as to adversely affect in
any other respect to any material extent the rights of the Landlord,
nor shall this Lease be canceled or surrendered, without the prior
written consent, in each instance, of the First Mortgagee and of any
Ground Lessor.
(c) Should any prospective First Mortgagee or Ground
Lessor require a modification or modifications of this Lease, which
modification or modifications will not cause an increase in the Rent
stipulated hereunder or in any other way materially and adversely
change the rights and obligations of Tenant hereunder, then and in such
event, Tenant agrees that this Lease may be so modified and agrees to
execute whatever documents are required therefor and deliver the same
to Landlord within ten (10) days following the request therefor. Should
any Landlord or prospective Mortgagee or Ground Lessor require
execution of a short form of lease for recording (containing the names
of the parties, a description of the Premises, and the term of this
Lease) or a certification from the Tenant concerning the lease in such
form as may be required by a prospective mortgagee or ground lessor,
Tenant agrees to execute such short form of lease or certificate and
deliver the same to Landlord within ten (10) days following the request
therefor.
17. MORTGAGEE PROTECTION.
Tenant agrees to give the First Mortgagee, by registered or certified
mail, a copy of any notice of default served upon the Landlord by Tenant,
provided that, prior to such notice, Tenant has been notified in writing (by way
of service on Tenant of a copy of assignment of rents and leases, or otherwise)
of the address of such First Mortgagee. Tenant further agrees that if Landlord
shall have failed to cure such default within twenty (20) days after such notice
to Landlord (or if such default cannot be cured or corrected within that time,
then such additional time as may he necessary if Landlord has commenced within
such twenty (20) days and is diligently pursuing the remedies or steps necessary
to cure or correct such default), then the First Mortgagee shall have an
additional thirty (30) days within which to cure or correct such default (or if
such default cannot be cured or corrected within that time, then such additional
time as may be necessary if the First Mortgagee has commenced within such thirty
(30) days and is diligently
30
pursuing the remedies or steps necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the First Mortgagee to cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
18. DEFAULT UNDER OTHER LEASES.
If the term of any lease, other than this Lease, heretofore or
hereafter made by Tenant for any space in the Building shall be terminated or
terminable after the making of this Lease because of any default by Tenant under
such other lease, such fact shall empower Landlord, at Landlord's sole option,
to terminate this Lease by notice to Tenant or to exercise any of the rights or
remedies set forth in Section 17.
19. SUBROGATION AND INSURANCE.
(a) Landlord and Tenant agree to have all physical damage
or material damage insurance which may be carried by either of them,
and Tenant agrees to have all business interruption insurance which it
carries, endorsed to provide that any release from liability of, or
waiver of claim for, recovery from the other party entered into in
writing by the insured thereunder prior to any loss or damage shall not
affect the validity of said policy or the right of the insured to
recover thereunder and providing further that the insurer waives all
rights of subrogation which such insurer might have against the other
party. Without limiting any release or waiver of liability or recovery
contained in any other section of this Lease, but rather in
confirmation and furtherance thereof, each of the parties hereto waives
all claims for recovery from the other party for any loss or damage to
any of its property covered by insurance with respect to such loss,
cost, damage or expense or damages as a result of business interruption
to the extent of any amount recovered by reason of such insurance (or
which could have been recovered had such insurance been carried as so
required). Notwithstanding the foregoing or anything contained in this
Lease to the contrary, any release and any waiver of claims shall not
be operative, nor shall the foregoing endorsements be required, in any
case where the effect of such release and waiver is to invalidate
insurance coverage or increase the cost thereof (provided that, in the
case of increased cost, the other party shall have the right, within
ten (10) days following written notice, to pay such increased cost
keeping such release and waiver in full force and effect).
(b) Tenant shall carry insurance during the entire Term
hereof insuring Tenant and Landlord and Landlord's agents and
beneficiaries and mortgagees with terms, coverages, and in companies
reasonably satisfactory to Landlord and with such commercially
reasonable increases in limits as Landlord may from time to time
request, hut initially Tenant shall maintain the following coverages in
the following amounts:
(i) Comprehensive general liability insurance,
including contractual liability insuring the indemnification
provisions contained in this Lease, in an amount not less than
$2,000,000.00 combined single limit per occurrence;
(ii) "Special Forms Causes of Loss" physical
damage insurance, including sprinkler leakage, for the full
replacement cost of all additions,
31
improvements, and alterations to the Premises and of all
office furniture, trade fixtures, office equipment,
merchandise, and all other items of Tenant's property on the
Premises; and
The foregoing insurance may be provided by a company-wide blanket
insurance policy or policies maintained by or on behalf of Tenant,
provided that the same is reasonably satisfactory to Landlord.
(c) Tenant shall, prior to the commencement of the Term
and thereafter during the Term, furnish to Landlord policies or
certificates issued by the respective carriers evidencing such coverage
or replacements and renewals thereof, which policies or certificates
shall state that such insurance coverage may not be changed or
cancelled without at least thirty (30) days' prior written notice to
Landlord and Tenant.
(d) Tenant shall comply with all applicable laws and
ordinances, all orders and decrees of court and all requirements of
other governmental authority and all requirements of Landlord's
insurance companies, and shall not directly or indirectly make any use
of the Premises which may thereby be prohibited or be dangerous to
person or property or which may jeopardize any insurance coverage, or
may increase the cost of insurance or require additional insurance
coverage. In the event of such increase in the cost of insurance or
such requirement for additional insurance coverage, Tenant shall
reimburse Landlord for the cost thereof.
(e) Prior to performing any alterations, additions,
improvements or services in the Premises, or prior to engaging any
contractors to provide services at or in the Premises, Tenant, at its
expense, shall furnish to Landlord duplicate original policies or
certificates of worker's compensation (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors) in
connection with such work or services and commercial general liability
(including property damage coverage) insurance all in such form, with
such companies, for such periods and in such amounts as Landlord may
reasonably require, naming Landlord, Landlord's agent, any Ground
Lessor, and any Mortgagee as additional insureds. Prior to the entry of
the Premises by any and all contractors of the Tenant, the Tenant shall
deliver to the Landlord a certificate of insurance for the respective
contractor.
20. NONWAIVER.
No waiver of any condition expressed in this Lease shall be implied by
any neglect of either party to enforce any remedy on account of the violation of
such condition whether or not such violation be continued or repeated
subsequently, and no express waiver shall affect any condition other than the
one specified in such waiver and that one only for the time and in the manner
specifically stated. Without limiting the provisions of Section 10, it is agreed
that no receipt of moneys by Landlord from Tenant after the termination in any
way of the Term or of Tenant's right of possession hereunder or after the giving
of any notice shall reinstate, continue or extend the Term or affect any notice
given to Tenant prior to the receipt of such moneys. It is also agreed that
after the service of notice or the commencement of a suit or after final
judgment
32
for possession of the Premises, Landlord may receive and collect any moneys due,
and the payment of said moneys shall not waive or affect said notice, suit or
judgment.
21. ESTOPPEL CERTIFICATE.
The Tenant agrees that from time to time upon not less than ten (10)
business days' prior request by Landlord, or the holder of any Mortgage or any
ground lessor, the Tenant (or any permitted assignee, subtenant, licensee,
concessionaire, or other occupant of the Premises claiming by, through, or under
Tenant) will deliver to Landlord or to the holder of any Mortgage or ground
lessor, a statement in writing signed by Tenant certifying, to the extent true,
(a) that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the lease as modified is in full force and effect and
identifying the modifications); (b) the date upon which Tenant began paying Rent
and the dates to which the Rent and other charges have been paid, (c) that the
Landlord is not in default under any provision of this Lease, or, if in default,
the nature thereof in detail; (d) that the Premises have been completed in
accordance with the terms hereof and Tenant is in occupancy and paying Rent on a
current basis with no rental offsets or claims; (e) that there has been no
prepayment of Rent other than that provided for in the Lease; (f) that there are
no actions, whether voluntary or otherwise, pending against Tenant under the
bankruptcy laws of the United States or any State thereof, and (g) such other
matters as may be reasonably requested by Landlord, the holder of any Mortgage
or ground lessor.
22. TENANT AUTHORITY TO EXECUTE LEASE.
In case Tenant is a corporation, Tenant (a) represents and warrants
that this Lease has been duly authorized, executed, and delivered by and on
behalf of the Tenant and constitutes the valid and binding agreement of the
Tenant in accordance with the terms hereof, and (b) until Landlord is notified
in writing of a substitute therefor, Tenant's Authorized Representative set
forth in the Schedule shall have full power and authority to take action on
behalf of and to bind Tenant with respect to all matters relating to this Lease
and the Premises. In case Tenant is a partnership, Tenant represents and
warrants that all of the persons who are general or managing partners in said
partnership have executed this Lease on behalf of Tenant, or that this Lease has
been executed and delivered pursuant to and in conformity with a valid and
effective authorization therefor by all of the general or managing partners of
such partnership, and is and constitutes the valid and binding agreement of the
partnership and each and every partner therein in accordance with its terms. It
is agreed that each and every present and future partner in Tenant shall be and
remain at all times jointly and severally liable hereunder and that the death,
resignation, or withdrawal of any partner shall not release the liability of
such partner under the terms of this Lease unless and until the Landlord shall
have consented in writing to such release.
23. REAL ESTATE BROKERS.
Tenant represents that Tenant has directly dealt with and only with the
real estate broker or brokers disclosed in the Schedule (whose commission shall
be paid by Landlord pursuant to a separate agreement with each such broker), as
broker, in connection with this Lease and agrees to indemnify and hold Landlord
harmless from all damages, liability, and expense (including reasonable
attorneys' fees) arising from any claims or demands of any other broker or
brokers or
33
finders for any commission alleged to be due such broker or brokers or finders
in connection with its participating in the negotiation with Tenant of this
Lease.
24. NOTICES.
In every instance where it shall be necessary or desirable for Landlord
to serve any notice or demand upon Tenant, it shall be sufficient to send a
written or printed copy of such notice or demand by nationally recognized
overnight courier, or by personal delivery, addressed to Tenant at the address
set forth in the Schedule, with a copy to Xxxx X. Xxxxxxxxxx, Esq., Ungaretti &
Xxxxxx, 00 X. Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, in which event the notice
or demand shall be deemed to have been served at the time the same was either
received or refused by Tenant. Any such notice or demand to be given by Tenant
to Landlord shall, until further notice, be served personally or sent by
nationally recognized overnight courier, or by personal delivery, to One
Overlook Point, Suite 100, Lincolnshire Corporate Center, Lincolnshire, Illinois
in which event the notice or demand shall be deemed to have been served at the
time the same was either received or refused by Landlord. Mailed communications
to Landlord shall be deemed to have been served at the time the same were posted
plus two (2) business days. Notwithstanding the foregoing, notices served with
respect to emergency matters may be served personally or by telephone
communication. Tenant is advised and acknowledges that until further notice to
Tenant, Van Vlissingen and Co, the present agent of Landlord, has authority to
execute and deliver notices hereunder to Tenant on behalf of Landlord.
25. MISCELLANEOUS.
(a) Each provision of this Lease shall extend to and
shall bind and inure to the benefit not only of Landlord and Tenant,
but also their respective heirs, legal representatives, successors, and
assigns, but this provision shall not operate to permit any transfer,
assignment, mortgage, encumbrance, lien, charge, or subletting contrary
to the provisions of Section 13.
(b) No modification, waiver, or amendment of this Lease
or of any of its conditions or provisions shall be binding upon
Landlord or Tenant unless in writing and signed by Landlord and Tenant.
(c) Submission of this instrument for examination shall
not constitute a reservation of or option for the Premises or in any
manner bind Landlord and no lease or obligation on Landlord shall arise
until this instrument is signed and delivered by Landlord and Tenant;
provided, however, the execution and delivery by Tenant of this Lease
to Landlord or the agent of Landlord's beneficiary shall constitute an
irrevocable offer by Tenant to lease the Premises on the terms and
conditions herein contained, which offer may not he revoked for thirty
(30) days after such delivery.
(d) The word "Tenant" whenever used herein shall be
construed to mean Tenants or any one or more of them in all eases where
there is more than one Tenant; and the necessary grammatical changes
required to make the provisions hereof apply either to corporations or
other organizations, partnerships, or other entities, or individuals,
shall in
34
all eases be assumed as though in each case fully expressed. In all
cases where there is more than one Tenant, the liability of each shall
be joint and several.
(e) Clauses, plats, and riders, if any, signed by
Landlord and Tenant and endorsed on or affixed to this Lease are part
hereof and in the event of variation or discrepancy the duplicate
original hereof, including such clauses, plats, and riders, if any,
held by Landlord shall control.
(f) The headings of Sections are for convenience only and
do not limit, expand, or construe the contents of the Sections.
(g) Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer, or
any association between Landlord and Tenant, it being expressly
understood and agreed that neither the method of computation of Rent
nor any other provisions contained in this Lease nor any act of the
parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant.
(h) Time is of the essence of this Lease and each and all
provisions thereof.
(i) All amounts (including, without limitation, Base Rent
and Additional Rent) owed by Tenant to Landlord pursuant to any
provision of this Lease shall bear interest at the annual rate of the
greater of (i) fifteen percent (15%) and (ii) four percent (4%) in
excess of corporate base rate of interest then in effect at the Bank
One from the date of the expiration of the applicable required notice
period until paid, unless a lesser rate shall then be the maximum rate
permissible by law with respect thereto, in which event said lesser
rate shall be charged.
(j) The legal invalidity of any provision of this Lease
shall not impair or affect in any manner the validity, enforceability,
or effect of the rest of this Lease.
(k) All understandings and agreements, oral or written,
heretofore made between the parties hereto are merged in this Lease,
which alone fully and completely expresses the agreement between
Landlord (and its beneficiary and their agents) and Tenant.
26. LANDLORD'S AUTHORITY AND QUIET ENJOYMENT.
Landlord covenants and represents that it has full and complete
authority to enter into this Lease under all of the terms, conditions, and
provisions set forth herein, and, subject to the terms, provisions, and
conditions hereof, so long as Tenant keeps and substantially performs each and
every term, provision, and condition herein contained on the part of Tenant to
be kept and performed and so long as Tenant is not in default hereunder, Tenant
shall, during the Term hereof, peacefully and quietly enjoy the Premises without
hinderance or molestation by Landlord.
35
27. LANDLORD.
The term "Landlord" as used in this Lease means only the owner or
owners at the time being of the Building so that in the event of any assignment,
conveyance, or sale, once or successively, of the Building, or any assignment of
this Lease by Landlord, said Landlord making such sale, conveyance, or
assignment shall be and hereby is entirely freed and relieved of all covenants
and obligations of Landlord hereunder accruing after such sale, conveyance, or
assignment, and Tenant agrees to look solely to such purchaser, grantee, or
assignee with respect thereto. This Lease shall not be affected by any such
assignment, conveyance, or sale, and Tenant agrees to attorn to the purchaser,
grantee, or assignee.
28. TITLE AND COVENANT AGAINST LIENS.
The Landlord's title is and always shall be paramount to the title of
the Tenant and nothing in this Lease contained shall empower the Tenant to do
any act which can, shall, or may encumber the title of the Landlord. Tenant
covenants and agrees not to suffer or permit any lien of mechanics or
materialmen to he placed upon or against the Real Property, the Land, the
Building, or the Premises or against the Tenant's leasehold interest in the
Premises and, in case of any such lien attaching, to immediately pay and remove
same. Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law, or otherwise, to attach to or be placed upon the Real Property, Land,
Building, or Premises, and any and all liens and encumbrances created by Tenant
shall attach only to Tenant's interest in the Premises. If any such liens so
attach and Tenant fails to pay and remove, bond over, or insure over (using a
nationally recognized title company) same within thirty (30) days, Landlord, at
its election, may pay and satisfy the same and in such event the sums so paid by
Landlord, with interest from the date of payment at the rate set forth in
Section 27(i) hereof for amounts owed Landlord by Tenant. Such sums shall be
deemed to be additional rent due and payable by Tenant at once without notice or
demand.
29. RELOCATION OF TENANT. INTENTIONALLY DELETED.
30. PARKING.
Tenant shall not use or permit its servants, employees, customers,
invitees and guests to use more than the number of parking spaces set forth in
the Schedule of Significant Terms. Tenant, its servants, employees, customers,
invitees, and guests shall, when using the parking facilities in and around the
Building, observe and obey all signs regarding fire lanes, no parking zones,
driving speed zones and designated reserved, visitor and handicapped spaces, and
when parking, always park between the designated lines. If required by Landlord,
Tenant shall cause its servants, employees, customers, invitees and guests who
utilize the Tenant's allotted parking spaces, to display stickers or decals
provided by Landlord in their vehicles. Landlord reserves the right to tow away,
at the expense of the owner, any vehicle which is improperly parked or parked in
a no parking zone, or designated visitor, reserved or handicapped area, or any
vehicle that does not display a sticker or decal if required by Landlord. If
Tenant uses parking in excess of that provided for herein, and if Tenant fails,
after written notice from Landlord to reduce its excess use of the parking
areas, then such excess use shall constitute a default under this lease.
36
All vehicles shall he parked at the sole risk of the owner and Landlord assumes
no responsibility for any damage to or loss of vehicles.
31. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon execution of this Lease the
Security Deposit stipulated in the Schedule (the "Deposit") as security for
performance of Tenant's duties and obligations hereunder. The Deposit may be
applied, in whole or in part, by Landlord to cure any Default of Tenant
hereunder or to pay any amounts payable by Tenant hereunder, without limiting,
impairing, or being in lieu of any other remedy or remedies Landlord may have on
account of any default by Tenant hereunder. Upon any such application, Tenant
shall immediately, upon demand by Landlord, pay to Landlord the amount so
applied in order that Landlord shall have the full amount of the Deposit on hand
at all times during the Term after the same is deposited. The Deposit shall in
no event he deemed an advance payment of rental or a limitation upon the damages
recoverable by Landlord on account of any default by Tenant hereunder. Provided
that Tenant shall not be in Default in the performance of any of its obligations
under this Lease, any balance of the Deposit remaining unapplied at the
termination or expiration of this Lease shall be repaid to Tenant not later than
30 days after such termination or expiration amid Tenant's vacation of the
Premises, without interest except to the extent required by statute or
ordinance. If the Building is conveyed or leased (whether or not subject to this
Lease) by Landlord, Landlord shall be released from all liability for repayment
of the Deposit, and tenant shall look to Landlord's successor in interest or
lessee, as the case may be, for repayment thereof. The preceding sentence shall
apply to each subsequent conveyance or lease of the Building. The Deposit shall
not be assigned or encumbered by Tenant, and any purported such assignment or
encumbrance shall be void.
32. ESTOPPEL. Notwithstanding anything contained herein to the
contrary, Landlord acknowledges and agrees that: (a) Tenant is currently a
subtenant of the Premises, (b) Tenant is not in default under the current lease
for the Premises (nor would it be in default under this Lease if same were to be
deemed enforceable at this time); and (c) there exists no default by Tenant, but
for the passage of time, or the giving of notice to Tenant, or both.
37
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
on the date first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO AS TRUSTEE UNDER
TRUST NO. 113370-03
by Van Vlissingen and Co., its
authorized agent
ATTEST: By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Its President
------------------------------------
Its: -------------------------------
TENANT:
ATTEST: BIOSANTE PHARMACEUTICALS, INC.
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------------ -------------------------------
Its: CFO Its President and CEO
38
RIDER A
RULES AND REGULATIONS
(1) The sidewalks, walks, entries, corridors, concourses, ramps,
staircases, escalators, and elevators (other than Tenant's freight elevator)
shall not be obstructed or used by Tenant, or the employees, agents, servants,
visitors, or licensees of Tenant for any purpose other than ingress and egress
to and from the Premises. No bicycle or motorcycle shall be brought into the
Building or kept on the Premises without the consent of Landlord.
(2) No freight, furniture, or bulky matter of any description will
be received into the Building or carried into the elevators (other than Tenant's
freight elevator) except in such a manner, during such hours, and using such
elevators and passageways as may be approved by Landlord, and then only upon
having been scheduled in advance. Any hand trucks, carryalls, or similar
appliances used for the delivery or receipt of merchandise or equipment shall be
equipped with rubber tires, side guards, and such other safeguards as Landlord
shall require.
(3) Tenant, or the employees, agents, servants, visitors, or
licensees of Tenant shall not at any time place, leave, or discard any rubbish,
paper, articles, or objects of any kind whatsoever outside the doors of the
Premises or in the corridors or passageways of the Building. No animals or birds
shall be brought or kept in or about the Building.
(4) Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability for offices, and, upon written notice from
Landlord, Tenant will refrain from or discontinue such advertising. In no event
shall Tenant, without the prior written consent of Landlord, use the name of the
Building or use pictures or illustrations of the Building.
(5) Tenant shall not place, or cause or allow to be placed, any
sign or lettering whatsoever in the windows of the Premises. Unless Tenant
leases an entire floor, Tenant shall not place any sign or lettering in or about
the Premises except in and at such places as may be designated by Landlord and
consented to by Landlord in writing. All lettering and graphics on corridor
doors must be approved in writing by Landlord, such approval not to be
unreasonably withheld.
(6) Canvassing, soliciting, or peddling in the Building is
prohibited and Tenant shall cooperate to prevent same.
(7) Any person in the Building will be subject to identification
by employees and agents of Landlord. All persons in or entering Building shall
be required to comply with the security policies of the Building. Tenant shall
keep doors to unattended areas locked and shall otherwise exercise reasonable
precautions to protect property from theft, loss, or damage.
(8) Except as otherwise explicitly permitted in its lease, Tenant
shall not do any cooking or conduct any restaurant, luncheonette, automat, or
cafeteria for the sale of or permit the delivery of any food or beverage
intended for resale to the Premises, except by such persons delivering the same
as shall be approved by Landlord and only under regulations fixed by Landlord.
Tenant may, however, operate a coffee bar by and for its employees.
R-1
(9) Tenant shall not, without Landlord's prior written approval,
bring or permit to be brought or kept in or on the premises any inflammable,
combustible, corrosive, caustic, poisonous, or explosive substance, or cause or
permit any odors to permeate in or emanate from the Premises.
(10) Tenant shall not xxxx, paint, drill into, or in any way deface
any part of the Building or Premises. No boring, driving of nails or screws,
cutting, or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. Tenant shall not install any
resilient tile or similar floor covering in the Premises except with the prior
approval of Landlord.
(11) No additional locks, bolts or other security devices of any
kind shall be placed on any door in the Building or the Premises and no lock on
any door therein shall be changed or altered in any respect without the consent
of Landlord. Landlord shall furnish two keys for each lock on exterior doors to
the Premises and shall, on Tenant's request and at Tenant's expense, provide
additional duplicate keys. All keys and access cards shall be returned to
Landlord upon termination of this Lease. Landlord may at all times keep a pass
key to the Premises. All entrance doors to the Premises shall be left closed at
all times, and left locked when the Premises are not in use. Tenant shall
promptly advise Landlord of any lost keys or access cards and of any keys or
access cards retained by former employees of Tenant.
(12) Tenant shall give immediate notice to Landlord in ease of
theft, unauthorized solicitation, or accident in the Premises or in the Building
or of defects therein or in any fixtures or equipment, or of any known emergency
in the Building.
(13) Tenant shall not advertise for laborers giving the Premises as
an address, nor pay such laborers at a location in the Premises.
(14) The requirements of Tenant will be attended to only upon
application at the office of Landlord in the Building. Employees of Landlord
shall not perform any work or do anything outside of their regular duties,
unless under special instructions from the office of Landlord.
(15) No awnings, draperies, shutters, or other interior or exterior
window coverings that are visible from the exterior of the Building or from the
exterior of the Premises within the Building may be installed by Tenant except
as otherwise provided for therein.
(16) No portion of the Premises or any other part of the Building
shall at any time be used or occupied as sleeping or lodging quarters.
(17) Tenant shall at all times keep the Premises neat and orderly.
(18) Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors, any of
which maybe offensive to the other tenants and occupants of the Building, or
that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Building or elsewhere
and shall not place or install any projections, antennas, aerials, or similar
devices inside or outside of the Premises or on the Building without Landlord's
prior written approval.
R-2
(19) The water and wash closets, drinking fountains, and other
plumbing fixtures shall not be used for any purpose other than those for which
they were constructed, and no sweepings, rubbish, rags, coffee grounds, or other
substances shall be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the Tenant who, or whose servants, employees, agents,
visitors, or licensees, shall have caused the same. No person shall waste water
by interfering or tampering with the faucets or otherwise.
(20) Tenant shall not serve, nor permit the serving of alcoholic
beverages in the Premises unless Tenant shall have procured Host Liquor
Liability Insurance, issued by companies and in amounts reasonably satisfactory
to Landlord, naming Landlord, or its agents and mortgagees, as an additional
party insureds.
R-3
RIDER B
CLEANING SPECIFICATIONS
Landlord agrees to perform the following services:
I. GENERAL AND EXECUTIVE OFFICES, LOBBY, LOUNGE, PUBLIC AREAS, ETC.
A. Nightly Schedule (Daily, Monday through Friday except holidays
when building is normally in operation.
1. Empty, clean and replace waste containers.
2. Empty and damp clean ash trays. Wash as required.
3. Dust all furniture, including desks, chairs, tables.
4. Dust all exposed filing cabinets, bookcases, shelves
and counter tops.
5. Dust all telephones.
6. Clean and sanitize drinking fountains.
7. Spot clean desk tops.
8. Spot clean reception lobby glass, including entrance
door.
9. Client papers on desks, tables, filing cabinets,
etc., are not to be disturbed.
10. Clean and service sand urns. Sand and screens to be
furnished by client.
11. Spot clean and remove hand prints, ink marks and
coffee rings from all desks.
12. Damp clean blackboards, if required.
13. Spot clean interior partitions, if needed.
14. Remove fingermarks and smudges from surfaces such as
doors, walls, light switches, etc.
15. Spot clean interior glass in partitions and doors.
Cleaning agent is not to remain on partitions and the
like.
16. Dust base of all chairs, stands, coat racks, etc
B. Weekly Schedule
1. Clean and sanitize telephones.
2. Low dust all horizontal surfaces to hand height,
including xxxxx, ledges, moldings, shelves, picture
frames, ducts, radiators.
3. Clean entire desk tops.
4. Clean and polish bright metal to hand heights.
5. Remove dust and cobwebs from ceiling areas and
corners.
C. Monthly Schedule
1. High dust above hand height all horizontal surfaces,
including shelves, moldings, ledges, pipes, ducts,
heating outlets, venetian blinds, etc.
2. Wash all wastebaskets if needed.
3. Wash desk tops.
4. Wash all interior partitions; both sides of glass.
R-4
5. Wash and sanitize metal partitions.
6. Wash chair mats.
7. Vacuum diffuser outlets.
D. Quarterly Schedule
1. Clean and polish furniture including desks, chairs,
cabinets.
E. Semi-Annual Schedule
1. Oil all wood paneling.
II. WASHROOMS
A. Nightly Schedule
1. Clean, sanitize and polish all vitreous fixtures,
including toilet bowls, urinals, and hand basins.
2. Clean and sanitize all flush rings, drain and
overflow outlets.
3. Clean and polish all chrome fittings.
4. Clean and sanitize toilet seats.
5. Clean and polish all glass and mirrors.
6. Empty all containers and disposals; insert liners as
required.
7. Wash and sanitize exterior of all containers.
8. Empty and sanitize interior of sanitary containers.
9. Wipe toilet stall partitions. Wash as required.
10. Remove spots, stains, splashes from wall area
adjacent to hand basins and towel holders.
11. Refill all dispensers to maximum limits -- napkin,
soap, tissue, towel, liners, seat holders, cups.
Refill with supplies.
12. Remove fingermarks and smudges from surfaces such as
doors, walls, light switches, etc.
13. Sweep and wet mop all floors with disinfectant.
14. Dust and spot clean all chairs, tables and lamps.
B. Weekly Schedule
1. Spot clean metal partitions and remove all writing.
2. Low dust all horizontal surfaces to hand height,
including xxxxx, moldings, ledges, shelves, frames,
ducts, heating outlets.
C. Monthly Schedule
1. Sanitize metal partitions.
2. High dust above hand height all horizontal surfaces,
including shelves, ledges, moldings, pipes, ducts,
heating outlets.
3. Machine scrub tile floors.
R-5
4. Flush floor drains with disinfectant.
D. Quarterly Schedule
1. Flush soap dispensers.
III. FLOORS - RESILIENT AND HARD
A. Nightly Schedule
1. Dry dust with treated yarn mop and wet mop where
necessary.
B. Weekly Schedule
1. Wet mop and machine spray buff open areas, including
kneehole or desks.
2. Scrub to remove scuff and heel marks.
C. Monthly Schedule
1. Refinish to maintain adequate protective coating;
removing black heel marks.
D. Annual Schedule
1. Strip, clean, seal and refinish, plus machine polish.
2. Clean, refinish and polish baseboards.
IV. CARPET
A. Nightly Schedule
1. Vacuum open areas.
2. Spot vacuum non-traffic aisles.
B. Weekly Schedule
1. Thoroughly vacuum all areas.
C. As Required
1. Inspect for spots and stains. Remove if possible.
2. Inspect for rub marks on cove base moldings and
remove same.
V. LUNCHROOM
A. Nightly Schedule
1. Wash and sanitize table tops, damp clean seats and
backs of chairs.
2. Clean, polish and refill napkin holders (napkins
supplied by tenant).
R-6
3. Empty and damp clean ash trays. Wash as required.
4. Empty all containers and disposals. Sanitize
interior.
5. Wash and sanitize exterior of all containers.
6. Clean and sanitize drinking fountain.
7. Dust mop tile floors, making sure that no paper or
dust is under any table base.
8. Clean table bases as needed.
9. Damp mop all tile floors with a disinfectant.
10. Vacuum carpets.
B. Weekly Schedule
1. Wash and sanitize pedestals and legs.
2. Remove fingerprints from doors, frames, light
switches, kick and push plates, and handles.
3. Low dust all horizontal surfaces to hand height,
including xxxxx, moldings, ledges, shelves, frames,
duets, and heating outlets.
4. Spot clean the outside glass on showcases.
5. Wash and sanitize chairs.
C. Monthly Schedule
1. High dust above hand height all horizontal surfaces,
including shelves, ledges, moldings, pipes, duets,
heating out lets.
D. As Required
1. Clean all plaques, pictures, etc., as needed, so
there are no fingermarks or dust build-up.
VI. STAIRCASES
A. Nightly Schedule
1. Dust and/or wash hand rails.
2. Sweep stairs completely, making sure all corners are
clean. Wet mop when necessary.
VII. ELEVATORS
A. Nightly Schedule
1. Keep wall around signal button clean.
2. Dust and rub down elevator doors; inside and outside.
3. Dust and rub down walls, metal work in elevator cabs;
polishing metal surfaces.
4. Vacuum all elevator door tracks and keep surfaces
clean.
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5. Properly maintain floors of all elevator cabs.
VIII. TRASH
A. Nightly Schedule.
1. Remove all waste and transport to designated area.
IX. GARAGE AREA, ELEVATOR LOBBY
A. Nightly Schedule
1. Thoroughly vacuum carpet.
2. Spot clean partition glass.
B. Monthly Schedule
1. Thoroughly clean partition glass.
X. DOCK AREA
A. Nightly Schedule
1. Police dock xxxxx and floor.
B. Weekly Schedule
1. Sweep dock xxxxx and floor.
XI. WINDOW CLEANING
A. All windows inside and outside shall be cleaned as follows:
1. Exterior - All outside perimeter and vestibule
windows, inside and out, at least three (3) times
yearly.
2. Interior - All interior windows (including lobby
glass inside and outside) three (3) times yearly.
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EXHIBIT A
XXXXX 000
000 XXXXXXX XXXXXXXXX - XXXXXXXXXXXX CORPORATE CENTER
4,034 RENTABLE SQUARE FEET
[DIAGRAM]