1. LEASE SCHEDULE
1. Date of Lease: May 10, 1999
2. Landlord: Rolling Xxxxxxx Associates, L.L.C., an Illinois limited
liability company
3. Tenant: SunCom Telecommunications, Inc., a company incorporated under
the federal laws of Canada whose name is being changed to
XxxxxxxXxxxxxx.xxx.Xxx., a company incorporated under the federal laws of Canada
4. Property: 3005 and 0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx
5. Premises: 0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx
6. Purpose: General corporate offices only, provided same is in
compliance with all zoning and land use regulations and covenants and
restrictions of record.
7. Lease Term: Five (5) years and zero (0) months, beginning June 1,
1999 ("Commencement Date") and ending May 31, 2004.
8. Area of Premises in rentable square feet ("r.s.f."): Approximately
20,000
9. Jurisdiction in which the Property is located: City of Rolling Xxxxxxx,
County of Cook, State of Illinois
10. Tenant's Share:Sixty-One (61%) Percent
11. Annual Base Rent in U.S. Dollars:
1ST Year - $220,000.00 4TH Year - $250,000.00
2ND Year - $230,000.00 5TH Year - $260,000.00
3RD Year - $240,000.00
12. Monthly Base Rent in U.S. Dollars:
1ST Year - $18,333.33 4TH Year - $20,833.33
2ND Year - $19,166.67 5TH Year - $21,666.67
3RD Year - $20,000.00
13. Address for Purpose of Notice:
Landlord: Xxxxxxx Associates, L.L.C., 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxx
With a copy to: Xxxxxxxx X. Xxxxxxxx, Xxx, Anos, Xxxxxxxx & Xxxxx, L.L.C., 00
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Fax No: (000) 000-0000.
Tenant: c/o Xxxxxx Xxxxxxxx, President, SunCom Telecommunications,
Inc./XxxxxxxXxxxxxx.xxx.Xxx., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
14. Security Deposit: None
15. Brokers: Lancelot Equities, Inc. and Integrated Financial
Corp.
16. Special Provisions: The rent due for the first year of the Term shall
be paid by Tenant to Landlord in the form of the issuance of Three Million
(3,000,000) shares of common stock in Tenant, in the form of one or more stock
certificates to be attached hereto as Appendix "A" pursuant to a subscription
agreement to be executed by the parties as approved by counsel therefor prior to
commencement of the Lease Term. Said stock shall be deemed payment of Base
Rent, Taxes, and Property Operating Costs due from Tenant for the first year of
the Term only. Tenant shall be responsible for payment of all utilities
relating to the Premises and Premises Operating Costs during the entirety of the
Lease Term.
Commencing with the second year through the duration of the Lease Term, Tenant
will pay all Base Rent, Taxes, Premises Operating Costs and Property Operating
Costs and all other charges required to be paid by Tenant pursuant to the terms
of the Lease, including all utilities relating to the Premises.
17. Parking: Tenant is permitted the right to use on a non-exclusive basis
all parking at the Property with tenants of the building at 0000 Xxxxxxxx Xxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxxx.
LEASE
THIS LEASE MADE and entered into as of the date set forth on the Lease
Schedule as Date of Lease, which Lease Schedule is appended to this Lease and is
specifically incorporated by reference herein, by and between the Landlord and
Xxxxxx as set forth in the Lease Schedule.
W I T N E S S E T H:
Demise
X. Xxxxxxxx does hereby lease to Tenant and Tenant hereby lets from
Landlord, the Premises set forth in the Lease Schedule, which are comprised of
that certain building located as denoted as the Premises Address in the Lease
Schedule. The building and the real estate on which it is located comprising
the Premises, in addition to the sister building, having an address of 0000
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx and all common areas affecting both
buildings, are hereinafter referred to as the "Property". Landlord makes no
representations or warranties as to the useable or rentable square footage of
the Premises.
B. Such letting and hiring is upon and subject to the terms, covenants
and conditions herein set forth and Tenant and Landlord covenant as a material
part of the consideration for this Lease to keep and perform each and all of
said terms, covenants an conditions by them to be kept and performed and that
this Lease is made upon the condition of such performance.
1.
Purpose
The Premises are to be used for the Purpose set forth in the Lease Schedule
and for no other purpose without the prior written consent of the Landlord.
2.
Term
The Lease Term shall be as set forth in the Lease Schedule except as
otherwise expressly provided in this Lease.
3.
Possession
Tenant acknowledges that it accepts the Premises in its "as is" condition,
it being understood that Landlord will complete the installation of a men's and
women's handicapped bathroom within ninety (90) days of the Commencement Date.
4.
Definitions As Used in This Lease
A. The term "Commencement Date" is the date of the beginning of the
Lease as set forth in the Lease Schedule.
B. The term "Tenant's Share" shall mean that amount set forth as such
in the Lease Schedule being the ratio which the rentable area of the Premises
bears to the Property. The Tenant's Share allocated to the Premises as it
relates to the Property as a whole, is not meant, nor shall it be construed, as
a representation by Landlord as to the rentable or useable square footage of the
Premises. The parties recognize that this ratio as well as the area
measurements are reasonable approximations that may not be exactly precise, but
both Landlord and Tenant accept such ratio and measurements as final and binding
for all purposes of this Lease.
C. The Term "Taxes" means any and all taxes of every kind and nature
whatsoever which Landlord shall pay or become obligated to pay during a calendar
year (regardless of whether such taxes were assessed or became a lien during,
prior or subsequent to the calendar year of payment) because of or in connection
with the ownership, leasing and operation of the Premises including without
limitation, real estate taxes, personal property taxes, sewer rents, water
rents, special assessments, transit taxes, legal fees and court costs charged
for the protest or reduction of property taxes and/or assessments or an increase
therein in connection with the Property, any tax or excise on rent or any other
tax (however described) on account of rental received for use and occupancy of
any or all of the Property, whether any such taxes are imposed by the United
States, the state or other local governmental municipality, authority or agency
or any political subdivision of any thereof in the Jurisdiction in which the
Property is located. Taxes shall not include any net income, capital stock,
estate or inheritance taxes.
D. The term "Premises Operating Costs" means any and all expenses,
costs and disbursements of every kind and nature, usual and customary property
management fees, utilities, repairs, replacements, maintenance and decorating,
wages, salaries, sales or use taxes on supplies or services, legal and
accounting costs and expenses, janitorial expenses, structure, roof,
exterminating, HVAC system maintenance, which Tenant shall pay during the term
of the Lease or any other expense or charge whether or not hereinbefore
mentioned which in accordance with
generally accepted accounting or management principles respecting first class
buildings in the Jurisdiction in which the Property is located would be
considered as an expense of operating, maintaining or repairing the Premises.
E. The term "Property Operating Costs" means any and all expenses,
costs and disbursements of every kind and nature including but not limited to
landscaping, snow removal, parking lot repairs and replacements, and other
common area expenses for the Property which Tenant shall pay according to its
Tenant's Share commencing with the second year thorough the duration of the
Lease Term.
5.
Base Rent
A. Except as otherwise provided herein, commencing with the second year
through the duration of the Lease Term, Tenant shall pay as initial Base Rent to
Landlord the Annual Base Rent as set forth in the Lease Schedule in equal
monthly installments as set forth as the Monthly Base Rent in the Lease Schedule
in advance on the first day of the first full calendar month and on the first
day of each calendar month thereafter during the Term, and at the same rate for
fractions of a month if the Term shall begin on any day except the first day or
shall end on any day except the last day of a calendar month.
B. Any rent (whether Base Rent or additional rent) or other amount due
from Tenant to Landlord under this Lease not paid when due shall incur a late
fee equal to the greater of: (a) One Hundred ($100.00) per day until received
by Landlord; or (b) interest from the date due until the date paid at the annual
rate of Four (4%) Percent above the prime rate as set forth as the Base Rate on
Corporate Loans published by the Wall Street Journal from time to time, but the
payment of such interest shall not excuse or cure any default by Tenant under
this Lease. The covenants herein to pay rent (both Base Rent and additional
rent) shall be independent of any other covenant set forth in this Lease.
C. Base Rent and all of the rent provided herein shall be paid without
deduction or off-set in lawful money of the United States of America to Landlord
at the address for notice shown in the Lease Schedule.
6.
Additional Rent
Taxes
A. It is further agreed between the parties hereto that in addition to
the rental provided for herein that Tenant will also pay commencing with the
second year through the duration of the Lease Term, as additional rent, an
amount equal to Xxxxxx's Share of the Taxes.
Operating Costs
B. It is further agreed between the parties hereto that in addition to
the rental provided for herein that Tenant will also pay during the term of this
Lease all Premises Operating Costs, as same are incurred, as well as an amount
equal to Xxxxxx's Share of the Property Operating Costs to Landlord commencing
with the second year through the duration of the Lease Term.
7.
Rent Adjustment Payment
A. Sixty (60) days prior to the commencement of the second year of the
Lease Term, Landlord shall deliver to Tenant a written statement setting forth
Landlord's good faith estimate of Xxxxxx's Share of Taxes and Property Operating
Costs ("Taxes and Property Operating Cost Statement") for the remainder of the
calendar year in which the second year of the Lease Term commences. Thereafter,
prior to January 1 of each subsequent calendar year, or from time to time during
each subsequent calendar year, Landlord shall deliver an estimated Taxes and
Property Operating Cost Statement pertaining to each such forthcoming calendar
year. Commencing on the first full calendar month of the second year of the
Lease Term and on the first day of each calendar month thereafter during the
Lease Term, Tenant shall pay one-twelfth (1/12TH) of Tenant's Share of Taxes and
Property Operating Costs as estimated by Landlord. On or before the first day
of June of each calendar year after the second year of the Lease Term, Landlord
shall furnish to Tenant a written statement showing in reasonable detail actual
Property Operating Costs and Taxes for the preceding year for which such
statement is furnished and showing the amount, if any, of rental adjustment due
for such year.
B. On the monthly rental payment date (the "adjustment date") next
following Tenant's receipt of each such annual statement, Tenant shall pay to
Landlord as additional rent an amount equal to the sum of the net aggregate
rental adjustment shown on each such annual statement less the amount, if any,
of the total estimated additional rent paid by Tenant during the preceding
calendar year.
C. In the event that any such settlement required above indicates that
the total additional rent paid by Tenant during the preceding calendar year
exceeds the aggregate rental payable by Tenant for such calendar year, Landlord
shall apply such excess on any amounts of additional rent next falling due under
this Lease as long as Tenant is not then in default of any of the terms and
provisions of this Lease.
D. The annual determination of Taxes and Property Operating Cost
Statement shall be prepared in accordance with generally acceptable cash basis
accounting principles. Tenant using either its own employee(s) or its certified
public accountant shall have the right to inspect at reasonable times and in a
reasonable manner, at the Landlord's office, such of the Landlord's books of
account and records as pertain to or contain information concerning the items
included in Property Operating Costs and Taxes for that year in order to verify
the amounts thereof. Any and all information obtained through the Tenant's
inspection with respect to financial matters (including, without limitation,
costs, expenses, income) and any and all other matters pertaining to the
Landlord and/or the Property as well as any compromise, settlement, or
adjustment reached between Landlord and Tenant relative to the results of any
such inspection shall be held in strict confidence by the Tenant and its
officers, agents, and employees; and Tenant shall cause its certified public
accountant and any of its officers, agents, and employees to be similarly bound.
If Tenant shall dispute any item or items included in the Property Operating
Costs or Taxes for such year, and such dispute is not resolved by the parties
within ninety (90) days after such statement is delivered to Tenant, then either
party may at its sole expense, within thirty (30) days thereafter, request that
a firm of independent certified public accountants mutually selected by Landlord
and Tenant ("Independent Review") render to the parties an opinion as to whether
or not the disputed item or items should have been included in the Property
Operating Costs and/or Taxes for such year, and the opinion of such firm on such
matter shall be conclusive and binding upon both parties, provided however, it
shall be a further condition of Tenant's right to conduct an Independent Review
that the firm conducting the Independent Review shall not be retained upon the
basis of all or a portion of its fees being contingent based upon the results of
the Independent Review. Landlord and Xxxxxx agree that the firm's opinion shall
be confidential and shall not be disclosed to any other party whatsoever. In
the event such Independent Review discloses that the amount due from Tenant was
overstated in excess of five (5%) percent on an annualized basis, Landlord shall
bear the reasonable cost of such Independent Review. In all other cases, Tenant
shall bear the cost of such Independent Review. Tenant employee(s) or certified
public accountants may examine the records of Landlord supporting the Taxes and
Property Operating Cost Statement at Landlord's or the management agent's office
during normal business hours within forty-five (45) days after the Taxes and
Property Operating Statement is furnished. Unless Tenant takes written
exception to any item within ninety (90) days after the furnishing of the Taxes
and Property Operating Statement (which shall be noted on the item as "paid
under protest"), such Statement shall be considered as final and accepted by
Xxxxxx. Tenant shall promptly tender payment for any undisputed items and shall
tender payment for any disputed items within ten (10) days after the resolution
of any such dispute.
E. In no event shall any rent adjustment result in a decrease of the
Base Rent as set forth in the Lease Schedule.
F. In the event of the termination of this Lease by expiration of the
stated term or for any other cause or reason whatsoever prior to the
determination of rental adjustment as hereinabove set forth, Tenant's agreement
to pay additional rental accrued up to the time of termination shall survive the
expiration or termination of the Lease.
8.
Holding Over
Should Tenant hold over after the termination of this Lease, by lapse of
time or otherwise, Tenant shall become a tenant from month to month only upon
each and all of the terms herein provided as may be applicable to such month to
month tenancy and any such holding over shall not constitute an extension of
this Lease; provided, however, during such holding over, Tenant shall pay Base
Rent and additional rent (as heretofore adjusted, or as estimated by Landlord)
at Two Hundred (200%) Percent of the rate payable for the month immediately
preceding said holding over, and in addition, Tenant shall pay Landlord all
damages, consequential as well as direct, sustained by reason of Xxxxxx's
holding over. Alternatively, at the election of Landlord expressed in a written
notice to the Tenant and not otherwise, such retention of possession shall
constitute a renewal of this Lease for one (1) year at double the rent paid in
the last year hereof. The provisions of this paragraph do not exclude the
Landlord's rights of re-entry or any other right hereunder. Any partial month
of any holdover period shall require rent to be paid for the entirety of any
such month.
9.
Building Services
A. Neither Landlord, nor any company, firm or individual, operating,
maintaining, managing or supervising the plant or facilities furnishing the
services included in Landlord's energy costs nor any of their respective agents,
beneficiaries, or employees, shall be liable to Tenant, or any of Tenant's
employees, agents, customers or invitees or anyone claiming through or under
Tenant, for any damages, injuries, losses, expenses, claims or causes of action,
because of any interruption or discontinuance at any time for any reason in the
furnishing of any of such services, or any other service to be furnished by
Landlord as set forth herein; nor shall any such interruption or discontinuance
relieve Tenant from full performance of Tenant's obligations under this lease.
B. Electricity shall not be furnished by Landlord, but except as
otherwise hereinafter provided, shall be furnished by the approved electric
utility company serving the area ("Electric Service Provider"). Landlord shall
permit the Tenant to receive such service direct from such public 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 local 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 there. The electricity used during the performance of
janitorial service, the making of alterations or repairs in the Premises, and
for the operation of the Premises' air conditioning system at times other
than as provided herein; 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 and/or
appliances without the prior written consent of the Landlord in each instance,
which consent shall not be unreasonably withheld. Tenant also agrees to
purchase form the Landlord or its agent all lamps, bulbs after the initial
installation thereof, ballasts and starters used in the Premises, provided
however that the availability, quality, and cost of any such items shall be
comparable to that available to Tenant from other suppliers. 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. Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises to connect to electric current (except
through existing electrical outlets in the Premises) or water pipes, any
apparatus or device for the purpose of using electric current or water. If
Tenant shall require water or electric current in excess of that which is
respectively obtainable from existing water pipes or electrical outlets and
normal for use of the Premises as general office space, Tenant shall first
procure the consent of Landlord, which Landlord may not unreasonably refuse. If
Landlord consents to such excess water or electric requirements, Tenant shall
pay all costs including but not limited to meter service and installation of
facilities necessary to furnishing such excess capacity.
C. (1) Landlord has advised Tenant that presently Electric Service
Provider is the utility company selected by Landlord to provide electricity
service for the Building. Notwithstanding the foregoing, to the extent
permitted by law, Landlord shall have the right at any time and from time to
time during the Term to either contract for service form a different company or
companies providing electricity service (each such company hereinafter described
as an "Alternate Service Provider") or continued to contract for service from
the Electric Service Provider.
(2) Tenant shall cooperate with Landlord, the Electric Service
Provider, and any Alternate Service Provider at all times, and as reasonably
necessary, shall allow Landlord, Electric Service Provider and any alternate
Service Provider reasonable access to the Building's electric lines, feeders,
risers, writing, and any other machinery within the Premises.
10.
Condition of the Premises
A. By taking possession of the Premises, Tenant shall be deemed to have
agreed that the Premises were as of the date of taking possession, in good
order, repair and condition. No promises of the Landlord to alter, remodel,
decorate, clean or improve the Premises and no representation or warranty
expressed or implied, respecting the condition of the Premises has been made by
the Landlord to Tenant, unless the same is contained herein or made a part
hereof.
B. Tenant shall, at its own expense, keep the Premises in good repair
and tenantable condition, and shall promptly and adequately repair all damages
to the Premises under the supervision and with the approval of Landlord and
within a reasonable period of time as specified by Landlord, loss by ordinary
wear and tear, fire and other casualty excepted. If Tenant does not do so
promptly and adequately, Landlord may, but need not, make such repairs and
Tenant shall pay Landlord immediately upon request by Landlord.
C. The parties acknowledge that the Americans With Disabilities Act of
1990 (42 U.S.C. 12101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establish requirements under
Title III of the ADA ("Title III") pertaining to business operations,
accessibility and barrier removal, and that such requirements may be unclear and
may or may not apply to the Premises depending on, among other things: (1)
whether Tenant's business operations are deemed a "place of public
accommodation" or a "commercial facility," (2) whether compliance with such
requirements is "readily achievable" or "technically infeasible," and (3)
whether a given alteration affects a "primary function area" or triggers
so-called "path of travel" requirements. The parties acknowledge and agree that
Xxxxxx has been provided an opportunity to inspect the Premises sufficient to
determine whether or not the Premises in their condition current as of the date
hereof deviate in any manner from the ADA Accessibility Guidelines ("ADAAG") or
any other requirements under the ADA pertaining to the accessibility of the
Premises. Xxxxxx further acknowledges and agrees that except as may otherwise
be specifically provided herein, Xxxxxx accepts the Premises in "as-is"
condition and agrees that Landlord makes no representation or warranty as to
whether the Premises conform to the requirements of the ADAAG or any other
requirements under the ADA pertaining to the accessibility of the Premises.
Tenant has prepared or reviewed the plans and specifications for the Tenant's
Work and has independently determined that such plans and specifications are in
conformance with the ADAAG and any other requirements of the ADA. Tenant
further acknowledges and agrees that to the extent that Landlord prepared,
reviewed or approved any off those plans and specifications, such action shall
in no event be deemed any representation or warranty that the same comply with
any requirements of the ADA. Notwithstanding anything to the contrary in this
Lease, the parties hereby agree to allocate responsibility for Title III
compliance as follows: (a) Tenant shall be responsible for all Title III
compliance and costs in connection with the Premises, (including structural
work, if any, and including any leasehold improvements or other work to be
performed in the Premises under or in connection with this Lease, and (b)
Landlord shall perform, and Tenant shall be responsible for the cost of, any
so-called Title III "path of travel" requirements triggered by any construction
activities or alterations in the Premises. Except as set forth above with
respect to Landlord's Title III obligations, Tenant shall be solely responsible
for all other requirements under the ADA relating to the Tenant or any
affiliates or persons or entities related to the Tenant (collectively,
"Affiliates"), operations of the Tenant or Affiliates, or the Premises,
including, without limitation, requirements under Title I of the ADA pertaining
to Tenant's employees.
11.
Uses Prohibited
Tenant shall not use, or permit the Premises or any part thereof to be
used, for any purpose or purposes other than as specified the Lease Schedule.
No use shall be made or permitted to be made of the Premises, nor acts done,
which will increase the existing rate of insurance upon the Property, or cause a
cancellation of any insurance policy covering the Property, or any part thereof,
nor shall Tenant sell, or permit to be kept, used or sold, in or about the
Premises, any article which may be prohibited by Landlord's insurance policies.
Tenant shall not commit or suffer to be committed, any waste upon the Premises,
or any public or private nuisance or other act or thing which may disturb the
quiet enjoyment of any other Tenant in the Property, nor, without limiting the
generality of the foregoing, shall Tenant allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose. Tenant agrees at all
times to cause the Premises to be operated in compliance with all federal,
state, local or municipal laws, statutes, ordinances, and rules and regulations,
including but not limited to those relating to zoning, environmental protection,
health, and safety. Xxxxxx further agrees to promptly cure any such violation
at its own expense, and shall furthermore defend and indemnity Landlord,
mortgagees, and officers, agents, and employees thereof respectively, for any
and all liability, loss, costs (including attorneys' fees and expenses),
damages, responsibilities or obligations incurred as a result of any violation
of any of the foregoing. Tenant shall upon request of Landlord certify in
writing that it is in compliance with applicable local, state and federal
environmental rules, regulations, statutes and laws for the preceding year. At
the request of the Landlord, Tenant shall submit to the Landlord, or shall make
available for inspection and copying upon reasonable notice and at reasonable
times, any or all of the documents and materials prepared by or for Tenant
pursuant to any environmental law or regulation or submitted to any governmental
regulatory agency in conjunction therewith. Landlord shall have reasonable
access to the Premises to inspect the same to confirm that the Tenant is using
the Premises in accordance with local, state and federal environmental rules,
regulations, statutes and laws. Tenant shall, at the request of the Landlord
and at the Tenant's expense, conduct such testing and analysis as is necessary
to ascertain whether the Tenant is using the Premises in compliance with all
local, state and federal environmental rules, regulations, statutes and laws,
provided however, Landlord shall not request that Tenant conduct such tests
unless Landlord has a reasonable suspicion that Tenant may be in violation of
the foregoing rules, regulations, statues or laws. Said tests shall be
conducted by qualified independent experts chosen by the Tenant and subject to
Landlord's reasonable approval. Copies of reports of any such tests shall be
provided to the Landlord. The provisions within this paragraph shall survive
termination of this Lease and shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors and assigns, and
mortgagees thereof.
12.
Compliance With Law
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises. The judgment of any court of competent Jurisdiction or the
admission of Tenant in an action against Tenant whether Landlord be a party
thereto or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement shall be conclusive of that fact as
between Landlord and Tenant.
13.
Alterations and Repairs
A. Tenant shall keep the interior and exterior of the Premises in good
condition and repair ordinary wear and tear and loss by fire and other casualty
excepted, and shall not do any painting or decorating, or erect any partitions,
make any alterations in or additions, changes or repairs to the Premises without
the Landlord's prior written approval in each and every instance, such consent
not to be unreasonably withheld. It shall not be unreasonable for Landlord to
withhold approval of any alteration or addition which impacts structure or any
building system, or which would otherwise result in requiring additional
improvements to the Premises and/or the Property. In the event Landlord grants
the requested approval, Tenant shall be responsible for the cost of any such
alteration or additions, as well as the cost of any improvements to the Premises
and/or Property required as the result thereof. Unless otherwise agreed by
Xxxxxxxx and Xxxxxx in writing, all such work shall be performed either by or
under the direction of Landlord, but at the cost of Tenant. During the term of
this Lease, no work shall be performed by or under the direction of Tenant
without the express written consent of Landlord. Unless otherwise provided by
written agreement, all alterations, improvements, and changes shall remain upon
and be surrendered with the Premises, excepting however that at Landlord's
option, Tenant shall, at its expense, when surrendering the Premises, remove
from the Premises all such alterations, improvements, and changes and further
provided that Tenant shall, on the election of Landlord, remove any trade
fixtures provided the Premises are restored to a condition reasonably
satisfactory to Landlord. If Tenant does not remove said additions,
decorations, fixtures, hardware, non-trade fixtures and improvements after
request to do so by Landlord, Landlord may remove the same and Tenant shall pay
the cost of such removal to Landlord upon demand. Except to the extent of
Xxxxxxxx's negligent or willful act or omission, Tenant hereby agrees to hold
Landlord and its agents and employees harmless from any and all liabilities of
every kind and description which may arise out of or be connected in any way
with said alterations or additions. Any mechanic's lien filed against Premises,
or the Property, for work claimed to have been furnished to Tenant shall be
discharged of record by Tenant within ten (10) days thereafter, at Tenant's
expense, provided however Tenant shall have the right to contest any such lien
on the posting of reasonably sufficient security.
B. Tenant shall, at the termination of this Lease, surrender the
Premises to Landlord in as good condition and repair as reasonable and proper
use thereof will permit, loss by ordinary wear and tear, fire or other casualty
excepted.
14.
Abandonment
During the term, if Tenant shall abandon, vacate or surrender (whether at
the end of the stated term or otherwise) the Premises, or be dispossessed by
process of law, or otherwise, any personal property belonging to Xxxxxx and left
on the Premises shall be deemed abandoned, at the option of the Landlord.
15.
Assignment and Subletting
A. Tenant shall not assign this Lease, or any interest therein and
shall not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person to occupy or use the Premises,
or any portion thereof, without the written consent of Landlord first had and
obtained, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Xxxxxxxx's consent shall not be required for
assignments or subleases to affiliates or subsidiaries of Tenant, so long as:
(I) the use of the Premises does not change; (ii) Landlord is given prior notice
thereof; and (iii) Tenant is not relieved of any of its liabilities or
responsibilities or any liabilities hereunder. Tenant agrees all advertising by
tenant or on Xxxxxx's behalf in any general circulation newspaper with respect
to the leasing or subletting of the Premises or any part thereof or assignment
of this Lease, must offer the space for lease at a rental not less than that for
which comparable space in the Property is then being offered by Landlord for
rent or not advertise the rental rate for such space.
B. Except for assignments and subleases to affiliates or subsidiaries
as provided in the immediately preceding paragraph, Tenant shall, by notice in
writing, advise Landlord of its intention from on and after a stated date (which
shall not be less than sixty (60) days after the date of Tenant's notice) to
assign or to sublet any such part of all of the Premises for the balance or any
part of the Term, and, in such event Landlord shall have the right, to be
exercised by giving written notice to Tenant thirty (30) days after receipt of
Xxxxxx's notice, to recapture the space described in Xxxxxx's notice and such
recapture notice shall, if given, cancel and terminate this Lease with respect
to the space therein described as of the date stated in Xxxxxx's notice.
Xxxxxx's said notice shall state the name and address of the proposed subtenant
or assignee, the proposed subtenant's or assignee's intended use of the
Premises, and shall include the potential subtenant's or assignee's most current
certified financial statement, and a true and complete copy of the proposed
assignment or sublease or form of assignment shall be delivered to Landlord with
said notice. If Xxxxxx's notice shall cover all of the space hereby demised and
if Landlord shall give the aforesaid recapture notice with respect thereto, the
Term of this Lease shall expire and end on the date stated in Xxxxxx's notice as
fully and completely as if that date had been herein definitely fixed for the
expiration of the Term. If, however, this Lease be canceled pursuant to the
foregoing with respect to less than the entire Premises, the rental and the
escalation percentages herein reserved shall be adjusted on the basis of the
number of square feet retained by Tenant in proportion to the rent and
escalation percentages reserved in this Lease, and this Lease as so amended
shall continue thereafter in full force and effect. If Landlord, upon receiving
Xxxxxx's said notice with respect to any such space, shall not exercise its
right to cancel as aforesaid, Landlord will not unreasonably withhold its
consent to Tenant's assigning or subletting the space covered by its notice,
provided; (I) at the time thereof Tenant is not in default under this Lease,
(ii) Landlord, in its sole discretion reasonably exercised, determines that the
reputation, business, proposed use of the Premises and financial responsibility
of the proposed sublessee or occupant, as the case may be, of the Premises are
satisfactory to Landlord, (iii)any assignee or subtenant shall expressly assume
all the obligations of this Lease on Tenant's part to be performed; (iv) such
consent if given shall not release Tenant of any of its obligations (including,
without limitation, its obligation to pay rent) under this Lease, (v) Tenant
agrees specifically to pay over to Landlord, as additional rent, all sums
received by Tenant under the terms and conditions to such assignment or
sublease, which are in excess of the amounts otherwise required to be paid
pursuant to the Lease; (vi) a consent to one assignment, subletting occupation
or use shall be limited to such particular assignment, sublease or occupation
and shall not be deemed to constitute Landlord's consent to an assignment or
sublease to or occupation by another person. Any such assignment or subletting
without such consent shall be void and shall, at the option of Landlord,
constitute a default under this Lease. Tenant will pay all of Landlord's costs
associated with any such assignment or subletting including but not limited to
reasonable legal fees; and (vii) the person or entity to whom Tenant wishes to
assign or sublet is not (nor, immediately prior to such assignment or sublease,
was) a tenant or occupant in the Property; or any other building owned or
operated by Landlord or any affiliate thereof, in the same complex as the
Property.
16.
Signs
Tenant shall not place or affix any exterior or interior signs visible from
the outside of the Premises or on the Property without the prior written consent
of the Landlord. For purposes of this Lease, "signs" shall include all signs,
designs, monuments, logos, banners, projected images, pennants, decals,
advertisements, pictures, notices, lettering, numerals, graphics, or
decorations.
17.
Damage to Property - Injury to Persons
X. Xxxxxx, as a material part of the consideration to be rendered to
Landlord under this Lease, to the extent permitted by law, hereby waives all
claims except claims caused by or resulting from the non-performance of the
Landlord, willful or negligent act or omission of Landlord, its agents, servants
or employees which Tenant or Xxxxxx's successor or assigns may have against
Landlord, its agents, servants, or employees for loss, theft or damage to the
property and for injuries to persons in, upon or about the Premises or the
Property from any cause whatsoever. Tenant will hold Landlord, its agents,
servants, and employees exempt and harmless from and on account of any damage or
injury to any person, or to the goods, wares, and merchandise of any person,
arising from the uses of the Premises by Tenant or arising from the failure of
Tenant to keep the Premises in good condition ads herein provided if
non-performance by the Landlord or negligence of the Landlords, its agents,
servants or employees does not contribute hereto. Neither Landlord nor its
agents, servants, employees shall be liable to Tenant for any damage by or from
any act or negligence of any co-tenant or other occupant of the Property, or by
any owner or occupant of adjoining or contiguous property, provided however,
that the provisions of this paragraph shall not apply to negligent or willful
act or omission of Landlord or misconduct of any such individuals or entities.
Xxxxxx agrees to pay for all damage to the Property or the Premises, as well as
all damage to tenants or occupants thereof caused by Xxxxxx's misuse or neglect
of the Premises, its apparatus or appurtenances or caused by any licensee,
contractor, agent or employees of Tenant.
B. Particularly, but not in limitation of the foregoing paragraph, all
property belonging to Tenant or any occupant of the Premises that is in the
Premises shall be there at the risk of Tenant or other person only, and Landlord
or its agent, servants, or employees (except in case of non-performance by the
Landlord or negligent or willful act or omission of Landlord or its agents,
servants, employees) shall not be liable for damage to or theft of or
misappropriation of such property; nor for any damage to property entrusted to
Landlord, its agents, servants, or employees, if any; nor for the loss of or
damage to any property by theft or otherwise, by any means whatsoever, nor for
any injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, snow, water or rain which may leak
from any part of the Premises or from the pipes, appliances or plumbing works
therein or from the roof, street or subsurface or from any other place or
resulting from dampness or any other cause whatsoever; nor for interference with
the light or other incorporeal hereditaments, nor for any latent defect in the
Premises. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or of defects therein or in the fixtures or equipment.
C. In case any action or proceeding be brought against Landlord by
reason of any obligation on Tenant's part to be performed under the term of this
Lease, or arising from any act or negligence of the Tenant, or of its agents or
employees, Tenant, upon notice from Landlord shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord.
X. Xxxxxx shall maintain in full force and effect during the term of
this Lease (including any period prior to the beginning of the term during which
Tenant has taken possession and including also any period of extension of the
Term in which Tenant obtains possession), in responsible companies approved by
Landlord (I) special causes of loss coverage insurance covering all Tenant's
property in, on or about the Premises, with full waiver of subrogation rights
against Landlord in an amount equal to the full replacement cost of such
property, and (ii) commercial general liability insurance including products and
completed operations insuring Tenant against all claims, demands or action for
bodily injury and property damage with limits of not less than TWO MILLION
($2,000,000.00) DOLLARS or THREE MILLION ($3,000,000.00) DOLLARS each occurrence
and in the aggregate. A separate limit of TWO MILLION ($2,000,000.00) DOLLARS
or THREE MILLION ($3,000,000.00) DOLLARS each occurrence and in the aggregate
shall be provided for products and completed operations or such other amounts as
Landlord may reasonably require from time to time and (iii) rental insurance
equal to one year's rent insurance naming Landlord as loss payee. All liability
policies shall cover the entire demised premises. Landlord shall maintain in
full force and effect during the term of this Lease special causes of loss
coverage insurance for the full replacement cost of the Premises, the premium
for which shall be included in the Property Operating Costs.
E. All such policies shall name Xxxxxxxx, any mortgagees of Landlord,
and all other parties designated by Landlord as additional parties insured. All
insurance policies shall indicate that at least thirty (30) days prior written
notice shall be delivered to all additional parties insured by the insurer prior
to modification, termination, or cancellation of such insurance and Tenant shall
provide Certificates of Insurance, not less than ten (10) days prior to the
Commencement Date, evidencing the aforesaid coverage to all insured parties.
Failure of Tenant to provide the insurance coverage set forth in subparagraphs
(ii) and (iii) in the immediately preceding paragraph shall entitle Landlord to
either (a) treat said failure as a default and/or (b) obtain such insurance and
charge Tenant the premiums therefor plus interest thereon as additional rent.
Tenant shall not violate or permit a violation of any of the conditions or terms
of any such insurance policies and shall perform and satisfy all reasonable
requirements of the insurance company issuing such policies. With respect to
any insurance policy procured to comply with any financial assurance requirement
imposed by any state or federal law or regulation, or to any other casualty,
property, or environmental impairment insurance purchased by Tenant, such policy
or policies shall name Landlord and any mortgagees of Landlord as additional
parties insured.
18.
Damage or Destruction
In the event the Premises is damaged by fire or other insured casualty and
the insurance proceeds have been made available therefor by the holder or
holders of any mortgages or deeds of trust covering the Premises, the damage
shall be repaired by and at the expense of Landlord to the extent of such
insurance proceeds available therefor, provided such repairs can, in landlord's
reasonable opinion, be made within two hundred seventy (270) days after the
occurrence of such damage without the payment of overtime or other premiums.
Until such repairs
are completed, the rent shall continue to be paid by Xxxxxx's rental insurance
and shall otherwise be abated to the extent the Premises are rendered
untenantable. If repairs cannot, in Landlord's reasonable opinion be made
within two hundred seventy (270) days, Landlord shall notify Tenant within
thirty (30) days the occurrence of such damage of its determination, in which
event, or in the event such repairs are commenced but are not substantially
completed within two hundred seventy (270) days of the date of such occurrence,
either party may, by written notice to the other, cancel this Lease as of the
date of the occurrence of such damage. Except as provided in this Section,
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Xxxxxx's business or property arising from
any such fire or other casualty or from the making or not making of any repairs,
alterations or improvements in or to any portion of the Premises or in or to
fixtures, appurtenances and equipment therein. Tenant understands that Landlord
will not carry insurance of any kind on Tenant's furniture or furnishings or on
any fixtures or equipment removable by Tenant under the provisions of this Lease
and that Landlord shall not be obliged to repair any damage thereto or replace
the same. Landlord shall not be required to repair any injury or damage caused
by fire or other cause, or to make any repairs or replacements to or of
improvements installed in the Premises by or for Tenant.
19.
Entry by Landlord
Landlord and its agents shall have the right to enter the Premises at all
reasonable times (upon reasonable notice except in cases of emergency) for the
purpose of examining or inspecting the same, to supply janitorial services and
any other service to be provided by Landlord to Tenant hereunder or any other
tenants, to show the same to prospective purchasers or tenants of the Premises,
and make such alterations, repairs, improvements, or additions, whether
structural or otherwise, to the Premises as Landlord may deem necessary or
desirable. Landlord may enter by means of a master key without liability to
Tenant except for any failure to exercise due care for Tenant's property and
without affecting this Lease. Landlord shall use reasonable efforts on any such
entry not to unreasonably interrupt or interfere with Xxxxxx's use and occupancy
of the Premises.
20.
Insolvency or Bankruptcy
A. In the event that Tenant shall become a debtor under Chapter 7, 11
or 13 of the Bankruptcy Code ("Debtor") and the trustee ("Trustee") or Tenant
shall elect to assume this Lease for the purpose of assigning the same or
otherwise, such election and assignment may only be made if all of the terms and
conditions of Sections 20.B and 20.D hereof are satisfied. The Tenant
acknowledges that it is essential to the ability of the Landlord to continue
servicing the mortgage on the Premises that a decision on whether to assume or
reject this Lease be made promptly. Under these circumstances, Xxxxxx agrees
that should Tenant, as debtor-in-possession ("Debtor-in-Possession") or any
Trustee appointed for Tenant, fail to elect to assume this Lease within sixty
(60) days after the filing of the petition under the Bankruptcy Code ("Tenant's
Petition"), this Lease shall be deemed to have been rejected. Tenant further
knowingly and voluntarily waives any right to seek additional time to affirm or
reject the Lease and acknowledges that there is no cause to seek such extension.
If Tenant, as Debtor-in-Possession, or the Trustee abandons the Premises, the
same shall be deemed a rejection of the Lease. Landlord shall be entitled to at
least thirty (30) days prior written notice from Tenant, as
Debtor-in-Possession, or its Trustee of any intention to abandon the Premises.
Landlord shall thereupon be immediately entitled to possession of the Premises
without further obligation to Tenant or the Trustee, and this Lease shall be
canceled, but Xxxxxxxx's right to be compensated for damages in such liquidation
proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this
Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the
following conditions, which Landlord and Tenant acknowledge are commercially
reasonable in the context of a bankruptcy proceeding of Tenant, have been
satisfied, and Xxxxxxxx has so acknowledged in writing:
(1) The Trustee or the Debtor-in-Possession has cured, or has provided
Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption the Trustee will
cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption the Trustee
will cure all non-monetary defaults under this Lease.
(2) The Trustee or the Debtor-in-Possession has compensated, or has provided
to Landlord adequate assurance that within ten (10) days from the date of
assumption Landlord will be compensated, for any pecuniary loss incurred by
Landlord arising from the default of Tenant, the Trustee, or the
Debtor-in-Possession as recited in Landlord's written statement of pecuniary
loss sent to the Trustee or Debtor-in-Possession.
(3) The Trustee or the Debtor-in-Possession has provided Landlord with
adequate assurance of the future performance (as defined below) of each of
Tenant's the Trustee's or Debtor-in-Possession's obligations under this Lease,
provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit with Landlord, as
security for the timely payment of rent, an amount equal to three (3) months
Base Rent (as adjusted pursuant to Section 20.B(3)(c) below) and other monetary
charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease, the Trustee or
Debtor-in-Possession shall also pay in advance one-twelfth (1/12TH) of Tenant's
annual obligations under this Lease for Property Operating Costs, Taxes,
insurance and similar charges.
(c) From and after the date of the assumption of this Lease, the Trustee or
Debtor-in-Possession shall pay as minimum rent an amount equal to the sum of the
minimum rent otherwise payable hereunder, within the five (5) year period prior
to the date of Tenant's Petition, which amount shall be payable in advance in
equal monthly installments.
(d) The obligations imposed upon the Trustee or Debtor-in-Possession shall
continue with respect to Tenant or any assignee of this Lease after the
completion of bankruptcy proceedings.
(4) The assumption of the Lease will not breach any provision in any other
lease, mortgage, financing agreement or other agreement by which Landlord is
bound relating to the Property.
(5) The Tenant as Debtor-in-Possession or its Trustee shall provide the
Landlord at least forty-five (45) days' prior written notice of any proceeding
concerning the assumption of this Lease.
(6) For purposes of this Section 20.B, Landlord and Tenant acknowledge that,
in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate
assurance" shall mean:
(1) The Trustee or the Debtor-in-Possession has and will continue to have
sufficient unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the Trustee or
Debtor-in-Possession will have sufficient funds to fulfill the obligations of
Tenant under this Lease.
(2) The Bankruptcy Court shall have entered an order segregating sufficient
cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have
granted a valid and perfected first lien and security interest and/or mortgage
in property of Tenant, the Trustee or Debtor-in-Possession, acceptable as to
value and kind to Landlord, to secure to Landlord the obligation of the Trustee
or Debtor-in-Possession, to cure the monetary and/or non-monetary defaults under
this Lease within the time periods set forth above.
C. In the event that this Lease is assumed by a Trustee appointed for
Tenant or by Tenant as Debtor-in-Possession, under the provisions of Section
20.B hereof, and thereafter Tenant is liquidated or files a subsequent Tenant's
Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the
Bankruptcy Code, then, and in either of such events, Landlord may, at its
option, terminate this Lease and all rights of Tenant hereunder, by giving
Tenant written notice of its election to so terminate, within thirty (30) days
after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease
pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose of
assigning (or elects to assign) Tenant's interest under this Lease or the estate
created thereby, to any other person, such interest or estate may be so assigned
only if Landlord shall acknowledge in writing that the intended assignee has
provided adequate assurance as defined in this Section 20.D of future
performance of all of the terms, covenants and conditions of this Lease to be
performed by Xxxxxx.
For the purposes of this Section 20.D, Landlord and Tenant acknowledge
that, in the contest of a bankruptcy proceeding of Tenant, at a minimum
"adequate assurance of future performance" shall mean that each of the following
conditions have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a
certified public accountant which shows a net worth and working capital in
amounts determined to be sufficient by Landlord to assure the future performance
by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have obtained guarantees
in form and substance satisfactory to Landlord from one or more persons who
satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any third party
required under any lease, mortgage, financing arrangement or other agreement by
which Landlord is bound to permit Landlord to consent to such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or
Debtor-in-Possession shall be obligated to pay reasonable use and occupancy
charges for the use of the Premises or any portion thereof, such charges shall
not be less than the minimum rent as defined in this Lease and other monetary
obligations of Tenant for the payment of Operating Costs, Taxes, insurance and
similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest of
Tenant herein, nor any estate of Tenant hereby created, shall pass to any
trustee, receiver, assignee for the benefit of creditors, or any other person or
entity, or otherwise by operation of law, unless Landlord shall consent to such
transfer in writing. No acceptance by Landlord of rent or any other payments
from any such trustee, receiver, assignee, person or other entity shall be
deemed to have waived, nor shall it waive the need to obtain Landlord's consent,
or Landlord's right to terminate this Lease for any transfer of Tenant's
interest under this Lease without such consent.
G. In the event the estate of Tenant created hereby shall be taken in
execution or by the process of law, or if Tenant or any guarantor of Tenant's
obligations shall be adjudicated insolvent pursuant to the provisions of any
present or future insolvency law under state law, or if any proceedings are
filed by or against such guarantor under the Bankruptcy Code, or any similar
provisions of any future federal bankruptcy law, or if a custodian receiver or
Trustee of the property of Tenant or such guarantor shall be appointed under
state law by reason of Tenant's or such guarantor's insolvency or inability to
pay its debts as they become due or otherwise, or if any assignment shall be
made of Tenant's or such guarantor's property for the benefit of creditors under
state law; then and in any such event Landlord may, at its option, terminate
this Lease and all rights of Tenant hereunder by giving Tenant written notice of
the election to so terminate within thirty (30) days after the occurrence of
such event.
21.
Default
A. If any of the following events of default shall occur, to wit:
(i) Tenant defaults for more than five (5) days after notice of default
after the due date therefor in the payment of rent (whether Base Rent or
additional rent) or any other sum required to be paid hereunder, or any part
thereof, or
(ii) Tenant defaults in the prompt and full performance of any other (i.e.
other than payment of rent or any other sum) covenant, agreement or condition of
this Lease and such default shall continue for a period of twenty (20) days
after written notice thereof from Landlord to Tenant (unless such other default
involves a hazardous condition, in which event it shall be cured forthwith),
provided however in the event such default cannot be cured within a period of
twenty (20) days and Tenant is diligently attempting to cure such default, the
time period to cure same shall be reasonably extended but in no event for a
period of more than ninety (90) days, or
(iii) The leasehold interest of Tenant be levied upon under execution or be
attached by process of law, or if Tenant abandons the Premises, or
(iv) Bankruptcy or insolvency of Tenant, then in any such event, Landlord,
besides other rights or remedies, it may have, shall have the immediate right of
re-entry and may remove all persons and property from the Premises; such
Property may be removed and stored in any other place in the Building in which
the Premises are situated, or in any other place, for the account of and at the
expense and at the risk of Tenant.
B. Tenant hereby waives all claims for damages which may be caused by
the re-entry of Landlord and taking possession of the Premises or removing or
storing the furniture and property as herein provided, and will save Landlord
harmless from any loss, costs, or damages occasioned Landlord thereby, and no
such re-entry shall be considered or construed to be a forcible entry.
C. Should Landlord elect to re-enter, as herein provided, or should it
take possession pursuant to legal proceedings or pursuant to any notice provided
for by law; it may either terminate this Lease or it may from time to time,
without terminating this Lease, re-let the Premises or any part thereof for such
terms and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises.
D. Landlord may elect to apply rentals received by it(I) to the payment
of any indebtedness, other than rent, due hereunder from Tenant to Landlord;
(ii) to the payment of any cost of such re-letting including but not limited to
any broker's commissions or fees in connection therewith; (iii) to the payment
of the cost of any alterations and repairs to the Premises; (iv) to the payment
of rent due and unpaid hereunder, and the residue, if any, shall be held by
Xxxxxxxx and applied in payment of future rent as the same may become due and
payable hereunder. Should such rentals received from such re-letting after
application by Landlord to the payments described in foregoing clauses (I)
through (iv) during any month be less than that agreed to be paid during that
month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly on demand by Landlord.
E. In lieu of electing to receive and apply rentals as provided in the
immediately preceding paragraph, Landlord may elect to receive from Tenant as
and for Landlord's liquidated damages for Tenant's default, an amount equal to
the present value of the entire amount of Base Rent provided for in this Lease
for the
remainder of the Term, which amount shall be forthwith due and payable by Tenant
upon its being advised of such election by Landlord.
F. No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of same is given to Tenant or unless the termination thereof by
decreed by a court of competent Jurisdiction. Notwithstanding any such
re-letting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach.
G. Nothing herein contained shall limit or prejudice the right of
Landlord to provide for and obtain as damages by reason of any such termination
of this Lease or of possession an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when such termination takes place,
whether or not such amount be greater, equal to or less than the amounts of
damages which Landlord may elect to receive as set forth above. Notwithstanding
anything to the contrary herein contained or any other rights exercised by
Landlord hereunder, upon the occurrence of an event of a monetary or material
default by Tenant under the terms of this Lease, rent which otherwise would be
due or would have been due except for any abatement provided for in this Lease
shall be immediately due and payable.
22.
Non Real Estate Taxes
During the term hereof, Tenant shall pay prior to delinquency all taxes
assessed against and levied upon fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises, and Tenant shall cause
said fixtures, furnishing, equipment and other personal property to be assessed
and billed separately from the real property of Landlord. In the event any or
all of the Tenant's fixtures, furnishings, equipment and other personal property
shall be assessed and taxed with the Landlord's real property, the Tenant shall
pay to Landlord its share of such taxes within ten (10) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of such
taxes applicable to the Tenant's property.
23.
Personal Property
Tenant hereby conveys to the Landlord all the personal property situated on
the Premises as security for the payment of all rentals due or to become due
hereunder. Said property shall not be removed therefrom without the consent of
the Landlord, until all rent due or to become due hereunder shall have first
been paid and discharged. It is intended by the parties hereto that this Lease
constitutes a security agreement creating a security interest in and to such
property, and Landlord, upon default of Tenant in the payment of rent, shall
have all the rights of a secured party as provided in the Uniform Commercial
Code, as from time to time in effect. Xxxxxx further agrees to execute any
financing statements required to perfect Landlord's interest in such property.
24.
Eminent Domain
If the Premises, or a substantial part thereof or a substantial part of the
Property, shall be lawfully taken or condemned or conveyed in lieu thereof, (or
conveyed under threat of such taking or condemnation), for any public or
quasi-public use or purpose, the term of this Lease shall end upon and not
before the date of the taking of possession by the condemning authority and
without apportionment of the award. Tenant hereby assigns to Landlord Xxxxxx's
interest, if any, in such award and specifically agrees that any such award
shall be the entire property of Landlord in which Tenant shall not be entitled
to share. Tenant further waives any right to challenge the right of the
condemning authority to proceed with such taking. Current rent shall be
apportioned as of the date of such termination. If any part of the Property
other than the Premises or not constituting a substantial part of the Premises,
shall be so taken or condemned (or conveyed under threat of such taking or
condemnation), or if the grade of any street adjacent to the Premises is changed
by any competent authority and such taking or change of grade makes it necessary
or desirable to substantially remodel or restore the Premises, Landlord shall
have the right to cancel this Lease upon not less than ninety (90) days notice
prior to the date of cancellation designated in the notice. No money or other
consideration shall be payable by Landlord to Tenant for the right of
cancellation, and Tenant shall have no right to share in any condemnation award
or in any judgment for damages or in any proceeds of any sale made under any
threat of condemnation or taking. Tenant shall have the right to separately
pursue its own award for relocation expenses in the event of such condemnation
proceedings.
25.
Subordination
X. Xxxxxxxx has heretofore and may hereafter from time to time execute
and deliver mortgages or trust deeds in the nature of a mortgage, both referred
to herein as "Mortgages" against the Property, or any interest therein. If
requested by the mortgagee or trustee under any Mortgage, Tenant will either (a)
subordinate its interest in this Lease to said Mortgages, and to any and all
advances made thereunder and to the interest thereon, and to all renewals,
replacements, modifications and extensions thereof, or (b) make Tenant's
interest in this Lease inferior thereto; and Tenant will promptly execute and
deliver such agreement or agreements as may be reasonably required by such
mortgage or trustee under any Mortgage, provided however that any such
subordination shall provide that so long as Tenant is not in default hereunder,
its tenancy shall not be disturbed. Failure by Tenant to execute same
within ten (10) days after request by Landlord shall cause Tenant to pay a One
Thousand ($1,000) Dollar non-compliance fee which will be deemed additional rent
pursuant to the terms of the Lease.
B. It is further agreed that (I) if any Mortgage shall be foreclosed
(a) the liability of the mortgagee or trustee thereunder 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 the Premises and such liability shall not continue or
survive after further transfer of ownership; and (b) upon request of the
mortgagee or trustee, Tenant will attorn, as Tenant under this Lease, to the
purchaser at any foreclosure sale under any Mortgage, and Tenant will execute
such instruments as may be necessary or appropriate to evidence such attornment;
and (ii) 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 mortgagee or trustee under any Mortgage. It is understood that Xxxxxx''
tenancy shall not be disturbed so long as Tenant is not in default under this
Lease.
C. No mortgage and no person acquiring title to the premises by reason
of foreclosure of any Mortgage or by conveyance in lieu of foreclosure shall
have any obligation or liability to Tenant on account of any security deposit
unless such mortgagee or title holder shall receive such security deposit in
cash.
26.
Waiver
The waiver of Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant, or
condition herein contained. The acceptance of rent hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant or
condition of this Lease. It is understood and agreed that the remedies herein
given to Landlord shall be cumulative, and the exercise of any one remedy by
Landlord shall not be to the exclusion of any other remedy. It is also agreed
that after the service of notice or the commencement of a suit or judgment for
possession of the Premises, Landlord may collect and receive any monies due, and
the payment of said monies shall not waive or affect said notice, suit or
judgment.
27.
Inability to Perform
This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall not be affected, impaired or excused, nor shall Landlord at any
time be deemed to be in default hereunder because Landlord is unable to fulfill
any of its obligations under this Lease or to supply or is delayed in supplying
any service expressly or by implication to be supplied or is unable to make, or
is delayed in making any Tenant improvement, repair, additions, alterations, or
decorations or is unable to supply or is delayed in supplying and equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of strike
or labor troubles or any outside cause whatsoever beyond the reasonable control
of Landlord, including but not limited to riots and civil disturbances or energy
shortages or governmental preemption in connection with a national emergency or
by reason of any rule, order, or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
28.
Subrogation
The parties hereto agree to use good faith efforts to have any and all
fire, extended coverage or any and all material damage insurance which may be
carried endorsed with a subrogation clause substantially as follows: "This
insurance shall not be invalidated should the insured waive in writing prior to
a loss any or all right of recovery against any party for loss occurring to the
property described herein"; and each party hereto waives all claims for recovery
from the other party for any loss or damage (whether or not such loss or damage
is caused by negligence of the other party and notwithstanding any provision or
provisions contained in this Lease to the contrary) to any of its property
insured under valid and collectible insurance policies to the extent of any
recovery collectible under such insurance, subject to the limitation that this
waiver shall apply only when it is permitted by the applicable policy of
insurance.
29.
Sale by Landlord
In the event of a sale or conveyance by Landlord of the Premises, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Xxxxxx, and in such event Xxxxxx agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. If any security
deposit has been made by Tenant hereunder, Landlord shall transfer such security
deposit to such successor in interest of Landlord and thereupon Landlord shall
be released from any further obligations hereunder. This Lease shall not be
affected by any such sale, and the Tenant agrees to attorn to the purchaser or
assignee.
30.
Rights of Landlord to Perform
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum
of money, other than rent, required to be paid it hereunder, or shall fail to
perform any other act on its part to be performed hereunder, and such failure
shall continue for ten (10) days after notice thereof by Landlord, Landlord may,
but shall not be obligated so to do, and without waiving or release Tenant from
any obligations of Tenant, make any such payment or perform any such other act
on Tenant's part to be made or performed as in this Lease provided. All sums so
paid by Xxxxxxxx and all necessary incidental costs together with interest
thereon at the rate heretofore set forth with respect to late payments of rent,
computed form the date of such payment by Landlord shall be payable to Landlord
on demand and the Landlord shall have (in addition to any other right or remedy
of Landlord) the same rights and remedies in the event of the non-payment
thereof by Tenant as in the case of default by Tenant in the payment of rent.
31.
Attorneys' Fees
In the event of any litigation between Tenant and Landlord to enforce any
provision of this Lease, or any right of either party hereto, the unsuccessful
party of such litigation, shall pay to the prevailing party all costs and
expenses, including reasonable attorneys' fees, incurred therein. Moreover, if
either party, without fault is made a party to any litigation instituted by or
against the other party, the other party shall indemnify such party without
fault against and save it harmless from all costs and expenses, including
reasonable attorneys' fees incurred by it in connection therewith.
32.
Estoppel Certificate
Either party shall at any time and from time to time upon not less than ten
(10) days' prior written notice from the other execute, acknowledge and deliver
to the requesting party a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if modified, stating the nature of
the modification and certifying that this Lease, as so modified, is in full
force and effect) and the dates to which the rental and other charges are paid
and acknowledging that there are not, to such certifying party's knowledge, any
uncured defaults on the part of the other party hereunder or specifying such
defaults if any are claimed, as well as any other reasonable information
requested by Landlord. In the case of a statement made by Xxxxxx, it is
expressly understood and agreed that any such statement may be relied upon by
any prospective purchaser or encumbrances of all or any portion of the real
property of which the Premises are a part. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that this Lease is in
full force and effect, without modification except as may be represented by
Landlord, that there are no uncured defaults in Landlord's performance and that
not more than two (2) months' rental has been paid in advance. Failure by
Tenant to execute same within ten (10) days after request by Landlord shall
cause Tenant to pay a One Thousand ($1,000) Dollar non-compliance fee which will
be deemed additional rent pursuant to the terms of the Lease.
33.
Preparation
Notwithstanding anything to the contrary herein contained, except as set
forth in the Lease Schedule, it is understood that the Premises are being let on
an "as is" basis with no promise to alter, remodel, decorate, clean, or improve
the Premises and to representation or warranty expressed or implied, the
condition of the Premises having been made. It is further understood that to
the extent that any repairs, replacements or corrections are required to be made
to the Premises of any kind whatsoever, to cause same to comply with any
applicable law, rule or regulation, whether federal, state or local, that the
cost thereof shall be fully the responsibility of Tenant.
34.
Notice
Any notice from Landlord to Tenant or from Tenant to Landlord may be served
personally, by mail, by overnight delivery, by affixing a copy on any door
leading into the Premises or by facsimile transmission. If served by mail,
notice shall be deemed served on the second day after mailing by registered or
certified mail, addressed to Tenant at the Premises or to Landlord at the place
from time to time established for the payment of rent and a copy thereof shall
until further notice, be served personally or by registered or certified mail to
Landlord at the address shown for service of notice in the Lease Schedule. In
the event of a release or threatened release of pollutants or contaminants to
the environment resulting from Xxxxxx's activities at the site or in the event
any claim, demand, action or notice is made against the Tenant regarding
Xxxxxx's failure or alleged failure to comply with any local, state and federal
environmental rules, regulations, statutes and laws, the Tenant shall
immediately notify the Landlord in writing and shall give to Landlord copies of
any written claims, demands or actions, or notices so made.
35.
Rights Reserved
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, constructive or actual or disturbance of
Tenant's use of possession or giving rise to any claim for set-off or abatement
of rent:
(a) To change the Premises' name or street address;
(b) To install, affix and maintain any and all signs on the interior or
exterior of the Premises;
(c) To designate and approve, prior to installation, all types of window
shades, blinds, drapes, awnings, window ventilators and other similar equipment,
and to control all interior or exterior lighting of the Building;
(d) To retain at all times, and to use in appropriate instances, keys and/or
keycards, to all doors within and into the Premises. No locks or bolts shall be
altered, changed or added without the prior written consent of Landlord;
(e) To decorate or to make repairs, alterations, additions or improvements,
whether structural or otherwise, in and about the Premises, or any part thereof,
and for such purpose to enter upon the Premises;
(f) To enter the Premises at reasonable hours for reasonable purposes upon
reasonable notice except in cases of emergency, including inspection and
supplying any service to be provided to Tenant hereunder;
(g) To have and retain a paramount title to the Premises free and clear of
any act of Tenant;
(h) To grant to anyone the exclusive right to conduct any business or render
any services on the Property, which do not interfere with Xxxxxx's use of the
Premises;
(i) To approve the weight, size and location of safes and other heavy
equipment and articles in and about the Premises. Movements of Tenant's
property into or out of the Premises and within the Premises are entirely at the
risk and responsibility of Tenant.
36.
Real Estate Broker
Tenant represents that Xxxxxx has dealt directly with and only with the
brokers set forth in the Lease Schedule as brokers in connection with this Lease
and agrees to indemnify and hold Landlord harmless from all claims or demands of
any other broker or brokers for any commission alleged to be due such broker or
brokers in connection with its participating in the negotiation with Tenant of
this Lease.
37.
Miscellaneous Provisions
A. Time is of the essence of this Lease and each and all of its
provisions.
B. Submission of this instrument for examination or signature by Tenant does
not constitute a reservation or offer or option for lease, and it is not
effective as a lease or otherwise so as to incur the lease inconvenience to
Tenant. Tenant acknowledges and agrees with Landlord that, except as may be
specifically set forth elsewhere in this Lease, neither Landlord, nor any
employee of Landlord, nor other party claiming to act on Xxxxxxxx's behalf, has
made any representations, warranties, estimations, or promises of any kind or
nature whatsoever relating to the physical condition of the Premises, or the
Property, including by way of example only, the fitness of the Premises for
Tenant's intended use or the actual dimensions of the Premises; and
C. The invalidity or unenforceability of any provision hereof shall not
affect or impair any other provisions.
D. This Lease shall be governed by and construed pursuant to the laws of the
Jurisdiction on which the property is located.
E. Should any mortgage require a modification of this Lease, which
modifications will not bring about any increased cost or expense to Tenant or in
any other way substantially change the rights and obligations of Tenant
hereunder, then and in such event, Xxxxxx agrees not to unreasonably withhold or
delay its consent to such modification.
X. Xxxxxx agrees to provide to Landlord, upon request, a current financial
statement of Tenant certified by an authorized representative of Tenant to be
true and correct, and further agrees to provide any other financial information
reasonably requested by Landlord.
G. All legal proceedings for the enforcement of any rights or remedies,
including distress for rent, forcible detainer, and any other legal or equitable
proceedings, may be commenced and prosecuted to final judgment and execution by
Xxxxxxxx in its own name individually or in its name or by its agent. Tenant
conclusively agrees that Xxxxxxxx has full power and authority to execute this
Lease and to make and perform the agreements herein contained and Tenant
expressly stipulates that any rights or remedies available to Landlord either by
the provision of this Lease or otherwise may be enforced by Landlord in its own
name individually or in its name by agent or principal.
H. All of the covenants and conditions of this Lease shall survive
termination of the Lease.
I. The marginal headings and titles to the paragraphs of this Lease are not
a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
J. Subject to complying with all of the provisions with respect to
assignments and subleases, if Tenant is a corporation and if at any time during
the Lease Term the person or persons who owns a majority of its voting shares at
the time of the execution of this Lease cease to own a majority of such shares
(except as a result of transfers by gift, bequest or inheritance) Tenant shall
so notify Landlord and Landlord may terminate this Lease by notice to Tenant
given within ninety (90) days thereafter. This Section shall not apply whenever
Tenant is a corporation, the outstanding voting stock of which is listed on a
recognized security exchange or if at least ninety (90%) percent of its voting
stock is owned by another corporation, the voting stock of which is so listed.
K. Any and all Exhibits or Appendices attached hereto, if any, are expressly
made a part of this Lease.
L. Upon termination of the Lease or upon Tenant's abandonment of the
leasehold, the Tenant shall, at its sole expense, remove any equipment which may
cause contamination of the property, and shall clean up any existing
contamination in compliance with all applicable local, state and federal
environmental rules, regulations, statutes and laws or in accordance with orders
of any governmental regulatory authority.
M. This is a commercial lease and has been entered into by both parties in
reliance upon the economic and legal bargains contained herein, and both parties
agree and represent each to the other that they have had the opportunity to
obtain counsel of their own choice to represent them in the negotiation and
execution of this Lease, whether or not either or both have elected to avail
themselves of such opportunity. This Lease shall be interpreted and construed
in a fair and impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the parties or the
domicile of any party.
X. XXXXXX OF RIGHT TO TRIAL BY JURY. Landlord and Tenant hereby waive any
right to a trial by jury in any action or proceeding based upon, or related to,
the subject matter of this Lease. This waiver is knowingly, intentionally, and
voluntarily made by each of parties hereto and each party acknowledges to the
other that neither the other party nor any person acting on its respective
behalf has made any representations to induce this waiver of trial by jury or in
any way to modify or nullify its effect. The parties acknowledge that they have
read and understand the meaning and ramifications of this waiver provision and
have elected same of their own free will.
O. Landlord hereby covenants that so long as Tenant is not in default under
the terms and provisions of this Lease, Tenant shall be entitled to quiet
enjoyment of the Premises.
P. This Lease does not grant any rights to light or air over or about the
real property of Landlord. Except to the extent specifically otherwise herein
provided, Landlord specifically excepts and reserves to itself the use of any
roofs, the exterior portions of the Premises, all rights to and the land and
improvements below the improved floor level of the Premises, to the improvements
and air rights above the Premises and to the improvements and air rights located
outside the demising walls of the Premises and to such areas within the Premises
required for installation of utility lines and other installations required to
serve any occupants of the Building and to maintain and repair same, and no
rights with respect thereto are conferred upon Tenant, unless otherwise
specifically provided herein.
Q. Tenant shall be entitled to non-exclusive use of all parking located on
the Property, except those areas reserved by Landlord for exclusive use of the
other tenants thereof.
38.
Authority
Tenant 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.
39.
Successors and Assigns
The covenants and conditions herein contained shall apply to and bind the
respective heirs, successors, Executors, administrators, and assigns of the
parties hereto. The terms "Landlord" and "Tenant" shall include the successors
and assigns of either such party, whether immediate or remote.
IN WITNESS WHEREOF, the Landlord and Xxxxxx have executed this Lease the
day and year first above written.
Landlord:
ROLLING XXXXXXX ASSOCIATES, L.L.C.,
an Illinois liability company,
BY: XxXxxxxx, Xxxxxxxx & Company, Manager
BY: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
Tenant:
SUNCOM TELECOMMUNICATIONS, INC.,
a company incorporated under the federal laws of Canada,
whose name is to be changed to XxxxxxxXxxxxxx.xxx., Inc.,
a company incorporated under the federal laws of Canada
BY: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx,
President and Chief Executive Officer
