EXHIBIT 10.14
SHEFFIELD SQUARE PROFESSIONAL CENTRE
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
OFFICE LEASE
Between
Sheffield Square L.L.C., an Illinois limited liability company
("Landlord")
and
Extranet Solutions L.L.C., a Delaware Limited Liability Company
("Tenant")
Lease dated November 3, 1998
TABLE OF CONTENTS
SECTION
Base Rent ................................................................. 1
Use of Premises ........................................................... 2
Additional Rent ........................................................... 3
Estimated Expenses ........................................................ 4
Readjustments ............................................................. 5
Delivery of Possession .................................................... 6
Services .................................................................. 7
Condition and Care of Premises ............................................ 8
Surrender of Premises ..................................................... 9
Holding Over .............................................................. 10
Rules and Regulation ...................................................... 11
Rights Reserved to Landlord ............................................... 12
Alterations ............................................................... 13
Assignment and Subletting ................................................. 14
Waiver of Certain Client Claims; Indemnity by Tenant ...................... 15
Damage or Destruction by Casualty ......................................... 16
Eminent Domain ............................................................ 17
Default: Landlord's Rights and Remedies ................................... 18
Subordination ............................................................. 19
Mortgagee Protection ...................................................... 20
Insurance and Subrogation ................................................. 21
Nonwaiver ................................................................. 22
Estoppel Certificate ...................................................... 23
Tenant - Corporation or Partnership ....................................... 24
Real Estate Brokers ....................................................... 25
Notices ................................................................... 26
Miscellaneous ............................................................. 27
Prior Occupancy ........................................................... 28
Security Deposit .......................................................... 29
Right of Termination ...................................................... 30
Landlord .................................................................. 31
Title and Covenant Against Liens .......................................... 32
Default Under Other Leases ................................................ 33
Exculpatory Provisions .................................................... 34
Exhibit A - Premises
Exhibit B - Additional Terms
Exhibit C - Workletter
Exhibit D - Rules and Regulations
SHEFFIELD SQUARE PROFESSIONAL CENTRE
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
OFFICE LEASE
THIS LEASE, made as of the 3rd day of November, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.C., an Illinois limited liability company (herein
called "Landlord"), hereby leases to Extranet Solutions, L.L.C. a Delaware
Limited Liability Company (herein called "Tenant"), and Tenant hereby accepts
the premises commonly known as Suite 300 (herein called "Premises"), subject
to the terms of the Work Letter, attached hereto as EXHIBIT C as outlined on
the floor plan attached hereto as "Exhibit A" on the third floor of the
office building located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (herein
called "Building"), for a term (herein called "Term") of Five years
commencing on February 1st, 1999, (herein called "Commencement Date") and
ending on January 31st, 2004, (herein called "Expiration Date"), unless
sooner terminated as provided herein, paying as rent ("Rent") therefore the
sums hereinafter provided, without any setoff, abatement, counterclaim or
deduction whatsoever, except as otherwise provided herein.
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 of One Hundred Sixteen Thousand Three Hundred Forty Dollars
($116,340.00) payable in equal monthly installments (herein called "Monthly
Base Rent") of Nine Thousand Six Hundred Ninety Five and 00/100 Dollars
($9695.00) in advance on the first day of the Term and on the first day of
each calendar month thereafter of the Term. All rental payments should be
directed to the management office of the Building. Base Rent shall be subject
to an annual escalation as outlined in Exhibit "B". If the Term shall begin
on any date except the first day of a calendar month, or shall end on any day
except the last day of a calendar month, then Monthly Base Rent for any such
partial calendar month within the Term shall be prorated. Except as otherwise
provided herein, the payment of Rent hereunder is independent of each and
every other covenant and agreement contained in this Lease.
Upon signing this Lease Tenant shall pay to Landlord the first full month's
rent plus a security deposit equal to four months' Monthly Base Rent.
2. Use of Premises. Tenant shall use and occupy the Premises for general
office purposes and internet services and for no other use.
3. Additional Rent. In addition to paying the Base Rent specified in
Section 1 hereof, Tenant shall pay to Landlord as additional rent the amounts
(herein collectively called "Additional Rent") specified on "Exhibit B"
attached hereto and made a part hereof, in accordance with the definitions in
this Section 3 and as further provided in Sections 4 and 5 and Exhibit C and
all other monies due and owing under the Lease shall be considered Additional
Rent.
a. "Expenses" shall mean those costs and expenses paid or incurred by or on
behalf of Landlord for owning, managing, operating, maintaining and repairing
the Building, the land upon which the Building stands (herein called the "Land")
and the personal property used in conjunction therewith (said Building, Land and
personal property herein collectively called the "Project"), including without
limitation Taxes (defined herein), the cost of security and security devices and
systems, snow and ice and trash removal, cleaning and sweeping, planting and
replacing decorations, flowers and landscaping, maintenance, repair and
replacement of utility systems, elevators and escalators, electricity, water,
sewers, fuel, heating, lighting, air conditioning, window cleaning,
janitorial service, insurance (including but not limited to, fire, extended
coverage, all risk, liability, worker's compensation, elevator, or any other
insurance carried by the Landlord and applicable to the Project) painting,
uniforms, management fees, supplies, sundries, sales or use taxes on supplies
or services, cost of wages and salaries of all persons engaged in the
operation, management, maintenance and repair of the Project, and so-called
fringe benefits (social security taxes, unemployment insurance taxes, cost
for providing coverage for disability benefits, cost of any pensions,
hospitalization, welfare or retirement plans, or any other similar or like
expenses incurred under the provisions of any collective bargaining
agreement, or any other cost or expense which Landlord pays or incurs to
provide benefits for employees so engaged in the operation, management,
maintenance and repair of the Project), assessments of property owners'
association for property within which the Project is located, the charges of
any independent contractor who, under contract with the Landlord or its
representatives, does any of the work of operating, managing, maintaining or
repairing of the Project, legal and accounting expenses (including, but not
limited to, such expenses as relate to seeking or obtaining reductions in and
refunds of real estate taxes) or any other expense or charge, whether or not
herein before mentioned, which, in accordance with generally accepted
accounting and management principles, would be considered as an expense of
owning, managing, operating, maintaining or repairing the Project, except as
hereinafter provided. Expenses shall not include costs of alterations of the
premises of tenants of the Building, costs of capital improvements to the
Building, depreciation charges, interest and principal payments on mortgages,
ground rental payments, real estate brokerage and leasing commissions, any
expenditures for which Landlord is entitled to be reimbursed (other than
pursuant to rent escalation or tax and operating expense reimbursement
provisions in leases), except as hereinafter provided.
Notwithstanding anything contained in the above definition of Expenses to the
contrary, the cost of any capital improvements to the Building made after the
date of this Lease which reduce Expenses or which are required under any
governmental laws, regulations, or ordinances amortized over such period as
Landlord shall reasonably determine, together with interest on the
unamortized cost of any such improvements (at the prevailing construction
loan rate available to Landlord on the date the cost of such improvements was
incurred) shall be included in Expenses. Nothing contained herein to the
contrary, "Expenses" shall not include the following: (a) depreciation and
amortization; (b) expenses incurred by Landlord to prepare, renovate,
repaint, redecorate or perform any other work in any space leased to an
existing tenant or prospective tenant of the Building; (c) expenses incurred
by Landlord for repairs or other work occasioned by fire, windstorm, or other
insurable casualty or condemnation; (d) expenses incurred by Landlord to
lease space to new tenants or to retain existing tenants including leasing
commissions, advertising and promotional expenditures; (e) expenses incurred
by Landlord to resolve disputes, enforce or negotiate lease terms with
prospective or existing tenants or in connection with any financing, sales or
syndication of the Building or the Development; (f) interest, principal,
points and fees, amortization or other costs associated with any debt and
rent payable under any lease to which this Lease is subject and all costs and
expenses associated with any such debt or lease and any ground lease rent,
irrespective of whether this Lease is subject or subordinate thereto; (j)
expenses incurred for the repair, maintenance or operation of any pay parking
garage including, but not limited to, salaries and benefits of any
attendants, electricity, insurance and taxes; (k) except as provided herein,
the cost of alterations, capital improvements, equipment replacement and
other items which, under generally accepted accounting principles, are
properly classified as capital expenditures; (l) expenses for the replacement
of any item covered under warranty; (m) cost to correct any penalty or fine
incurred by Landlord due to Landlord's violation of any federal, state, or
local law, except as provided herein, or regulation and any interest, or
penalties due for late payment by Landlord of any of the Building Operating
Expenses; (n) cost
of repairs necessitated by Landlord's negligence or willful misconduct; (o)
expenses for any item or service which Tenant pays directly to a third party
or separately reimburses Landlord and expenses incurred by Landlord to the
extent the same are reimbursable or reimbursed from any other tenants or
occupants of the property, or third parties; (p) expenses for any item or
service not provided to Tenant, but exclusively to certain other tenants in
the Building or Development; (q) salaries of (i) employees above the grade of
building superintendent or building manager; and (ii) employees whose time is
not spent directly in the operation of the Building.
If any item of Expenses, though paid or incurred in one calendar year,
relates to more than one calendar year, such item shall be proportionately
allocated among such related calendar years.
b. The tax component of Expenses shall further be defined as real estate
taxes, assessments (whether they be general or special), sewer rents, rates
and charges, transit taxes, taxes based upon leases or the receipt of rent,
and any other federal, state or local governmental charges, general, special,
ordinary or extraordinary (but not including income or franchise taxes or any
other taxes imposed upon or measured by the Landlord's income or profits,
except as provided herein), which may now or hereafter be levied, assessed or
imposed against the Land or the Building. The Building and the Land are
herein collectively called the "Real Property." Taxes shall also include any
personal property taxes (attributable to the Adjustment Year in which paid)
imposed upon the furniture, fixtures, machinery, equipment, aperture, systems
or appurtenances used in connection with the Real Property or the operation
thereof.
Notwithstanding anything contained in the above definition of Taxes to the
contrary: If at any time the method of taxation then prevailing shall be
altered so that any new or additional tax, assessment, levy, imposition or
charge or any part thereof shall be imposed upon Landlord in place or partly
in place of any taxes or contemplated increase therein, or in addition to
Taxes, and shall be measured by or be based in whole or in part upon the Real
Property, the rents or other income therefrom or any leases of any part
thereof, 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, assessed or imposed against the 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.
Notwithstanding the year for which any such taxes or assessments are levied,
(1) in the case of special taxes or assessments which may be payable in
installments, the amount of each installment, plus any interest payable
thereon, paid during an Adjustment Year shall be included in Taxes for that
year and (2) if any taxes or assessments payable during any Adjustment Year
shall be computed with respect to a period in excess of twelve (12) 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. All references to Taxes "for" a particular Base or Adjustment Year
shall be deemed to refer to Taxes paid during such Base or Adjustment Year
without regard to when such Taxes are levied, assessed, or otherwise imposed.
c. The buildings located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇ are
operated by the same management. Many Expense items will be shared between
the buildings and Landlord will assign a reasonable percentage of each such
Expense item to each building.
4. Estimated Expenses. Prior to the beginning of each Adjustment Year,
Landlord shall deliver to Tenant a detailed statement of Estimated Expenses
(herein "Estimated Expenses") for that Adjustment Year. With the monthly Base
Rent, Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant's
Proportionate Share (as defined in Exhibit B) of the Estimated Expenses as
Additional Rent. If Landlord fails to provide the Statement of Estimated
Expenses, Tenant shall pay Additional Rent based upon 105% of the prior
year's Estimated Expenses (defined herein) if the latter is available.
Landlord reserves the right to adjust the Estimated Expenses at any time
during an Adjustment Year.
5. Readjustments. The following readjustments with regard to Additional
Rent shall be made by Landlord and Tenant:
(a) "Base Year" shall mean the year in which this lease commences.
(b) "Adjustment Year" shall mean each calendar year after the base
year that is a part of the Term. Following the end of each Adjustment Year
and after Landlord shall have determined the amount of Expenses for such
Adjustment Year, Landlord shall notify Tenant in writing (any such notice
herein called "Landlord's Statement") of such Expenses and Tenant's
Proportionate share of such adjustment (herein "Expense Adjustment") for such
Adjustment Year. 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 estimated Expenses paid by Tenant during such
Adjustment Year. If the estimated Expenses 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
theretofore due and owing, until such excess has been exhausted or if the
excess exceeds two months Rent, return to Tenant, within ten (10) days after
the issuance of the Landlord's Statement, all such excess. If this Lease
shall expire or be terminated 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 Rent for the
Adjustment Year in which the Lease expires, subject to Tenant's obligations
hereof, provided Tenant shall have vacated the Premises and otherwise
surrendered the Premises to Landlord in accordance with this Lease and Tenant
is not then in default under this Lease. No interest or penalties shall occur
on any amounts which Landlord is obligated to credit or pay to Tenant by
reason of this Section 5. The tax component of the Landlord's Statement may
be unavailable until late in the Adjustment Year. Landlord's best estimate of
Taxes shall be used for purposes of the Landlord's Statement and readjusted
when the actual tax component is determined.
(c) Intentionally
(d) Books and Records. Landlord shall maintain books and records
showing Expenses in accordance with sound accounting and management
practices. Tenant and its representative shall have the right to examine such
books and records showing Expenses upon reasonable prior notice and during
normal business hours at any time within thirty (30) days following service
of Landlord's Statement provided for in Section 5a. In the event that Tenant
so examines the books, Tenant shall have the right to retain a Certified
Public Accountant ("CPA"), reasonably acceptable to Landlord. In the event
that the CPA determines that Landlord's estimate of the Total Rent exceeds
the actual Total Rent by more than five percent (5%), Landlord shall, in
addition to returning any excess to Tenant as aforesaid, reimburse Tenant for
CPA's reasonable fees.
(e) 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 prorata share of
Additional Rent as herein above determined, equal to said Additional Rent
multiplied by a fraction, the numerator of which is the number of days of the
Term falling within the Adjustment Year, and whose denominator is 365.
Following expiration or termination of this Lease, Tenant shall pay any
Additional Rent due to Landlord within fifteen (15) business 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 Lease shall
survive the expiration or termination of this Lease.
(f) No Decrease In Base Rent. In no event shall any Additional Rent
result in a decrease of the Base Rent payable hereunder as set forth in
Section 1 hereof.
(g) Additional Rent. All amounts payable by Tenant as or on account
of Additional Rent shall be deemed to be Additional Rent due under this
Lease. In addition, Tenant's obligation to pay for any additional services
which Landlord may agree to provide, whether before or after the Commencement
Date of this Lease, shall also constitute Additional Rent if the Landlord so
designates.
6. Delivery of Possession. If Landlord shall be unable for any reason to
give possession of the Premises on the Commencement Date to Tenant, Landlord
shall not be subject to any liability for failure to give possession. Under
such circumstances the Rent reserved and
covenants to be paid herein shall not commence until possession of the
Premises is given to Tenant, but such failure to give possession on the
Commencement Date shall not affect the validity of this Lease or otherwise
affect the obligations of Tenant hereunder, nor shall the same be construed
to extend the Term. Notwithstanding anything contained herein to the
contrary, in the event that Landlord fails to give possession of the Premises
on the Commencement Date, and such failure continues for forty-five or more
days, Tenant may, at its option, terminate this Lease with written notice to
Landlord, and Landlord shall then have five (5) days to return any Security
Deposit or other sums paid hereunder to Tenant, and, at such time, neither
party shall have any further rights or obligations hereunder. The Premises
shall neither be deemed incomplete or unavailable for Tenant's possession or
occupancy if only minor or insubstantial details of construction, decoration
or mechanical adjustments remain to be completed in the Premises or any part
thereof, or if the delay in the availability of the Premises for occupancy
shall be due to special work, changes, alterations material amounts of:
special work; changes; alterations; or additions required or made by Tenant
in the Premises or any part thereof, or shall be caused by Tenant through the
delay of Tenant in submitting plans, supplying information, approving plans,
specifications or estimates, giving authorizations, or shall be caused in
whole or in part by delay or default on the part of Tenant or any other
reason set forth in an agreement of Landlord to perform work within the
Premises (herein called the "Work Letter"), if any, attached hereto. In the
event of any dispute as to whether possession of the Premises has been
tendered to Tenant or whether the Premises are ready for Tenant's occupancy,
the decision of Landlord's architect shall be final and binding on the
parties.
7. Services. Landlord, as long as Tenant is not in default under any of
the covenants of this Lease (subject to applicable cure periods), shall
furnish the following services:
(a) Air-cooling and heat when necessary to provide a temperature
condition required, in Landlord's judgment (such temperature shall not exceed
74 degrees Fahrenheit when outside temperatures are 95 degrees Fahrenheit or
less and not drop below 68 degrees Fahrenheit in the winter) for comfortable
occupancy of the Premises under normal business operations, daily from 8:00
a.m. to 6:00 p.m. (Saturdays from 8:00 a.m. to 1:00 p.m.), Sundays and
holidays excepted. Landlord's agreements hereunder are also subject to
voluntary or mandatory Presidential or other governmental restrictions, laws
or regulations on energy use, and the provisions of Section 8D hereof.
(b) Domestic water in common with other tenants from City of
Chicago mains for drinking, lavatory and toilet purposes drawn through
fixtures installed by 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 domestic water and hot water
furnished for any other purpose. Tenant shall not waste or permit the waste
of water.
(c) Passenger elevator service in common with Landlord and other
persons, daily from 8:00 a.m. to 6:00 p.m. (Saturdays from 8:00 a.m. to 1:00
p.m.), Sundays and holidays excepted, and freight elevator service in common
with Landlord and other persons, daily from 8:00 a.m. to 5:00 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. Landlord shall,
however, provide limited passenger elevator service daily at all times such
normal passenger service is not furnished.
(d) Electricity shall not be furnished by Landlord, but shall be
furnished by Commonwealth Edison Company or other approved electric utility
company serving the area. Landlord shall permit 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, or for the
making of alterations or repairs in the Premises, or for the operation of the
Building's heating, ventilating or air-conditioning systems at times other
than as provided in Section 7(a) hereof, or for the operation of any special
or supplementary heating, ventilating or air-conditioning systems
which may be required for computer or data processing equipment or for other
special equipment or machinery installed by or on behalf of Tenant, shall be
paid for proportionately by Tenant. Tenant shall make no alterations or
additions to the electric equipment or appliances in the Premises or the
Building without the prior written consent of Landlord in each instance.
Tenant also agrees to pay for all lamps, bulbs, ballasts and starters used in
the Premises during the Term hereof. 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. Landlord
hereby represents and warrants that the Premises and the current electrical
wiring, conduits, and the like located therein are equipped to handle the
demands of normal office equipment, including, but not limited to, computers,
copiers, facsimile machines, and other standard equipment.
(e) Landlord may, but shall have no obligation to, provide such
extra or additional services as it is reasonably possible for Landlord to
provide, and as Tenant may from time to time request in writing, within a
reasonable period after the time such extra or additional services are
requested. Tenant shall pay for such extra or additional services at
Landlord's scheduled rate therefor from time to time, or if there be no
scheduled rate, than at the rate of 120% of Landlord's cost in providing
them, such amount to be considered additional rent hereunder. All charges for
such extra or additional services shall be due and payable as Additional
Rent at the same time as the installment of Base Rent with which they are
billed, or if billed separately, shall be due and payable within THIRTY (30)
business days after Tenant receives Landlord's ▇▇▇▇ therefore. Any such
▇▇▇▇▇▇▇▇ for extra or additional services shall include an itemization of the
extra or additional services rendered and the charge for each such service.
(f) Charges for any services for which Tenant is required to pay
from time to time hereunder including but not limited to hoisting services or
after hours heating or air conditioning shall be due and payable as
Additional Rent at the same time as Monthly Base Rent with which they are
billed, or, if billed separately, shall be due and payable within ten (10)
business days after such billing. If Tenant shall fail to make payment for
any such services, Landlord may, with notice to Tenant, discontinue any or
all of such services and such discontinuance shall not be deemed to
constitute an eviction or disturbance of the Tenant's use and possession of
the Premises or relieve Tenant from paying Monthly Base Rent or performing
any of its other obligations under this Lease.
(g) INTENTIONALLY OMITTED.
(h) Daily janitorial service in common areas only (Landlord will
provide no janitorial services within the Premises). Tenant shall place all
refuse in area on floor of Premises designated by Landlord.
(i) Window cleaning, minimally twice yearly.
Landlord does not warrant that any of the services mentioned above will be
free from interruptions caused by war, insurrection, civil commotion, riots,
acts of God or the enemy or governmental action, repairs, renewals,
improvements, alterations, strikes, lockouts, picketing, whether legal or
illegal, accidents, inability of Landlord to obtain electricity, gas water or
any other causes beyond Landlord's reasonable control, provided that the
foregoing are not due, in whole or in part, to Landlord's negligence or
willful misconduct. Any such interruption of services shall never be deemed
an eviction (actual or constructive) or a disturbance of Tenant's use and
possession of the Premises or any part thereof and shall never render
Landlord liable to Tenant for damages or relieve Tenant from performance of
Tenant's obligations under this Lease. It is further agreed that Tenant's
obligation to pay rent under this Lease is independent from any obligation or
covenant of Landlord with regard to the repair or improvement of the Premises
or to provide any service to the Premises (such as utilities or supplies) and
from each and every
other covenant and agreement contained in this Lease, and Tenant agrees to
make timely payment of rent irrespective of any claims by the Tenant that
Landlord is obligated to make any repair or improvement to the Premises or
provide any service to the Premises. IF SUCH INTERRUPTION OF SERVICES RENDERS
THE PREMISES UNTENANTABLE FOR TWENTY (20) CONSECUTIVE DAYS, TENANT MAY
TERMINATE THIS LEASE BY PROVIDING LANDLORD WRITTEN NOTICE.
Tenant agrees to cooperate fully with Landlord at all times, in abiding by
all regulations and requirements which Landlord may reasonably prescribe for
the proper functioning and protection of all utilities and services
reasonably necessary for the operation of the Premises and the Building. With
reasonable prior written notice, except in the case of emergency, Landlord
and its contractors shall have free access to any and all mechanical
installations, and Tenant agrees that there shall be no construction or
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 employees,
agents, licensees, invitees or contractors shall at any time tamper with,
adjust or otherwise in any manner affect Landlord's mechanical installations.
8. Condition and Care of Premises.
(a) Prior to taking possession of the Premises the Tenant shall have the
opportunity to inspect and measure same upon reasonable notice to Landlord.
Tenant's taking possession of the Premises or any portion thereof shall be
conclusive evidence against Tenant that the portion of the Premises taken
possession of was then in good order and satisfactory condition and that the
Rentable Area as stated in Exhibit B is ACCEPTABLE. No promises of Landlord
to alter, remodel, improve, repair, or 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 or in any
Work Letter attached to this Lease.
(b) Tenant shall notify Landlord of any material damage to the Premises,
regardless of the cause of damage. Except for any damage resulting from any
wanton or negligent act of Landlord, or its respective employees or agents,
and subject to the provisions of Section 16 hereof, Tenant shall at its own
expense keep the Premises in good repair and tenantable condition. If Tenant
does not make repairs promptly and adequately when required to do so,
Landlord may, but need not, UPON FIVE DAYS NOTICE, make such repairs and
replacements and Tenant shall pay Landlord as Additional Rent, on written
demand within 30 days, the cost thereof, and in addition, Tenant shall pay to
Landlord as Additional Rent on TEN DAYS NOTICE, an amount equal to 20% of
such cost as an overhead and supervision fee.
(c) This Lease does not grant any rights to light or air over or about
the real property of Landlord. 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.
(d) LANDLORD REPRESENTS AND WARRANTS THAT THE CURRENT HVAC SYSTEM
SUPPORTS REGULAR OFFICE USE AND REQUIREMENTS. THIS SUBPARAGRAPH SHALL ONLY
APPLY IN THE EVENT THAT TENANT INSTALLS OR OTHERWISE USES MACHINES OR
EQUIPMENT WHICH REQUIRE ELECTRICITY THAT MATERIALLY EXCEEDS THE NORMAL
REQUIREMENTS OF A STANDARD OFFICE HVAC SYSTEM. Whenever, in Landlord and
Tenant's reasonable judgment, 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, or to affect adversely 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, plus 20% of such
cost as an overhead and supervision fee, shall be paid by Tenant as
additional rent within ten (10) business 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 heating or
air-conditioning units, but shall have no continuing obligation to do so or
liability in connection there with. 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. Notwithstanding the
above, Landlord warrants that the HVAC is adequate to handle up to seventy
employees working on personal computers.
(e) If sprinkler heads or any part of the sprinkler system shall be damaged
or is not in proper working order by reason of any act or omission of Tenant,
Tenant's agents, servants, employees, licensees, or visitors, Tenant shall
forthwith restore the same to good working condition at its own expense.
Landlord represents and warrants to Tenant that the sprinkler heads and the
sprinkler system are, and shall be as of the Effective Date, in good working
order and in accordance with all applicable laws.
9. Surrender 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 to the Premises to Landlord and make known to Landlord the
combination of all locks of vaults then remaining in the Premises, and shall,
subject to the following subparagraphs, return the Premises and all equipment
and fixtures of Landlord therein to Landlord in as good condition as when
Tenant originally took possession, ordinary wear and tear, loss or damage by
fire or other insured casualty, and damage resulting from the act of Landlord
or any of its respective employees and agents excepted, failing which
Landlord may restore the Premises and such equipment and fixtures to such
condition and Tenant shall pay the actual reasonable cost thereof to Landlord
on 10 DAYS demand.
(b) All installations, additions, partitions, hardware, light fixtures,
supplementary heating or air conditioning units, non-trade fixtures and
improvements, except movable furniture and equipment belonging to
Tenant, in or upon the Premises, whether placed there by Tenant or Landlord
(collectively "Additions"), shall be Landlord's property and shall remain
upon the Premises upon expiration of the Term or sooner termination of this
Lease or Tenant's possession hereunder, all without compensation, allowance
or credit to Tenant; provided, however, that if Landlord notifies Tenant in
writing prior to placing or approving the Additions, Tenant, at Tenant's sole
cost and expense, shall promptly remove such of the installations, additions,
partitions, hardware, light fixtures, supplementary heating or air
conditioning units, non-trade fixtures and improvements or any additions so
specified which are placed in the Premises by Tenant as are designated in
such notice 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 actual reasonable cost thereof to Landlord on 10 DAYS
written demand.
(c) Tenant shall leave in place any floor covering without compensation
to Tenant, or Tenant shall remove any NON-BUILDING STANDARD floor covering
and shall remove all fastenings, paper, glue, bases or other vestiges and
restore the floor surface to its previous condition, or shall pay to
Landlord upon demand the cost for restoring the floor surface to such
condition. Tenant shall also remove Tenant's furniture, machinery, safes,
trade fixtures and other items of movable personal property of every kind and
description from the Premises and restore any damage to the Premises caused
thereby, such removal and restoration to be performed prior to the expiration
of the Term or no later than ten (10) days following the earlier termination
of this Lease or Tenant's right of possession, whichever might be earlier
(and upon prior written notice to Landlord, in the event such removal occurs
after termination of this Lease or Tenant's right to possession), failing
which Landlord may do so and thereupon the provisions of Section 18 shall
apply. TENANT SHALL NOT BE REQUIRED TO REMOVE PHONE AND DATA LINES THAT ARE
INSTALLED IN CONDUIT OR PULLED THROUGH WALLS.
(d) All obligations of Tenant under this Section 9 shall survive the
expiration of the Term or sooner termination of this Lease.
10. Holding Over. Tenant shall pay Landlord, in order to compensate
Landlord for Tenant's wrongful withholding of possession for the time Tenant
remains in possession, for each day Tenant retains possession of the Premises
or any part thereof after the Expiration Date or sooner termination of this
Lease or Tenant's possession hereunder, an amount which is 175% of the amount
of Rent per day, based on the annual rate of Base Rent and Additional Rent
applicable under Section 1 and 2, for each day of the period in which such
retention of possession occurs, and Tenant shall also pay all direct damages
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 or remedy of Landlord.
11. Rules and Regulations. Tenant agrees to observe and not to
interfere with the rights reserved to Landlord contained in Section 12 hereof
and elsewhere in this Lease, and agrees, for itself, its employees, agents,
invitees, licensees and contractors, to comply with the rules and regulations
delivered to Tenant in this Lease, and such other reasonable rules and
regulations as shall be adopted by Landlord pursuant to Section 12 or any
other Section of this Lease.
Any material violation by Tenant, or by any of its employees, agents,
licensees, invitees or contractors, of any of the rules and regulations or
other Section of this Lease, or as may hereafter be adopted by Landlord
pursuant to Section 12 or any other Section of this Lease, may be restrained.
But whether or not so restrained, Tenant acknowledges and agrees that it
shall be and shall remain liable for all direct actual damages, losses, costs
and expenses resulting from any violation by Tenant, or by any of its
employees, agents, licensees, invitees or contractors, of any of said rules
and regulations. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to enforce said rules and regulations
or the terms, covenants or conditions of any other lease against any other
tenant or any other person, and Landlord and its beneficiaries shall not be
liable to Tenant for violation of the same by any other tenant, its
employees, agents, licensees, invitees or contractors, or by any other person.
All parking on Landlord controlled lots, for Tenants and visitors, is by
permit only. All violators will be towed at car owner's expense.
12. 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 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;
provided, however, that Landlord pays for the reasonable cost of the change
of Tenant's stationary.
(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.
(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 2.
(f) To exhibit the Premises at reasonable hours during the last
three (3) months of the Lease Term, after the Lease or Tenant's right to
possession is otherwise terminated.
(g) To have access for Landlord and other tenants or occupants of
the Building to any mail chutes according to the rules of the United States
Postal Service.
(h) To enter the Premises, with prior reasonable written notice,
except in the case of emergency, and at reasonable hours for reasonable
purposes, including without limitation for inspection, for supplying janitor
service or other service to be provided to Tenant hereunder.
(i) 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 security personnel by registration or otherwise in accordance
with Building security controls, and to establish their right to enter or
leave in accordance with the rules and regulations. 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, casualty,
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 or security 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 or security program developed by Landlord.
(j) To control and prevent access to common area and other
non-general public areas of the Building.
(k) Provided that reasonable access to the Premises shall be
maintained and the business of Tenant shall not be interfered with materially
or unreasonably, to rearrange, relocate, enlarge, reduce, close or change
corridors, exits, elevators, stairs, lavatories, doors, entrances in or to
the Building and to decorate and to make repairs, alterations, additions and
improvements, structural or otherwise, in or to the Building or any part
thereof, including the Premises, 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 and equipment that may be required to
make such repairs, alterations, improvements, or additions, and in that
connection Landlord may 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 liability to Landlord, except as
contained herein. Landlord may at its option make any repairs, alterations,
improvements and additions in and about the Building and Premises during
ordinary business hours and; provided that except in the event of an emergency,
the business of Tenant shall not be interfered with materially or unreasonably,
and if Tenant desires to have such work done during other than ordinary business
hours, Tenants shall pay all overtime and additional expenses resulting
therefrom. Notwithstanding anything contained herein to the contrary, in the
event that the business of Tenant is interfered with materially and
unreasonably due to Landlords additions for a period of five or more
consecutive business days, Tenant shall have the option to terminate this
Lease, at which time Landlord shall return to Tenant the Security Deposit, and
upon Tenant's surrender of the Premises, neither party shall have any further
rights or obligations hereunder. Tenant acknowledges that the Building is in
the process of being rehabilitated. As such, demolition and construction
activity may affect the Tenant's operations from time to time. Tenant
expressly waives any and all claims which it may have against Landlord for
any inconveniences which may arise during such rehabilitations and Landlord
shall at all times use its best efforts to minimize any inconvenience caused
by rehabilitation.
(l) 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 Exhibit B attached to
this Lease or other Sections of this Lease, or adopted pursuant to this or
other Sections of this Lease, for the protection or welfare of the Building
or its tenants or occupants, as Landlord may reasonably determine, and
Tenant agrees to abide by and comply with all such rules and regulations.
13. Alterations. Tenant shall not make alterations in or additions or
improvements to the Premises without Landlord's advance written consent in
each instance, and such consent shall not be unreasonably withheld or delayed.
All work of the nature herein contemplated shall be at
Tenant's expense and done by contractors employed by or on behalf of Landlord
or otherwise reasonably approved by Landlord, and shall comply with all
insurance requirements and with all ordinances and regulations of the
municipality in which the Building is located or any department or agency
thereof, and with the requirements of all statutes and regulations of the
State of Illinois or of any department or agency thereof. All required
working drawings and specifications shall be prepared by Landlord's
architect, space planner or engineers at Tenant's expense.
Subject to obtaining Landlord's prior written approval of its selection and
compliance with the further provisions of this paragraph, Tenant may elect to
use an architect, at Tenant's sole cost, for the preparation of floor plan
layout and other necessary information relating to the desired alterations in
or additions or improvements to the Premises. It may do so provided (1) the
resulting information shall be sufficiently detailed so that, after written
approval by Tenant and Landlord of such floor plan layout and information,
Landlord's architect can transfer such detailed information to the working
drawings and specifications, (2) Landlord's building standards are used in
all details, and (3) such floor plan layout and information shall be
furnished to Landlord in sufficient time to provide thirty (30) days for
Landlords' architect to prepare said working drawings and specifications.
Before proceeding with the work of the nature herein contemplated IF
APPLICABLE, Landlord shall (1) submit to Tenant the estimate of the
Landlord's contractor of the cost of such work based on said working drawings
and specifications, (2) Landlord shall obtain Tenant's approval to the
working drawings and specifications and (3) obtain Tenant's written request
that said work be done.
The costs of such work shall include all labor and materials; general
conditions (including demolition and the removal of rubbish from the property
and the transportation thereof to a dump, building permit fee, field
supervision, outside hoisting, if any, and the like); premium cost of
workmen's compensation, public liability and property damage insurance
carried by Landlord's contractors, overhead charges and fees of Landlord's
contractors; the charges of Landlord's architect or engineer (1) for
preparation and printing of working drawings and specifications and (2) for
supervision of construction; together with twenty percent of all of the costs
of such work for overhead and construction management services by Landlord;
and reimbursement of any other expenses incurred in connection with the work
performed for the Tenant.
IF LANDLORD IS TO DO THE ALTERATIONS, Landlord may, at its election, act as
general contractor and as one or more of the subcontractors. If Landlord or
its beneficiary shall elect to act as general contractor or a subcontractor,
the costs of the work performed by the Landlord or its beneficiary in such
capacity shall be determined in accordance with the paragraph immediately
above.
Landlord shall not be obligated to proceed with such work until the estimate
of the cost of such work is approved in writing by Tenant and the entire cost
of such work is paid by Tenant to Landlord. Any deficit shall be paid to
Landlord as Additional Rent after completion of the work and after Landlord
shall have assembled and submitted to Tenant the complete costs thereof.
All alterations and additions to the Premises, whether temporary or permanent
in character and whether made or paid for by Landlord or Tenant, shall
without compensation to Tenant become Landlord's property upon installation
on the Premises and shall, unless Landlord requests their removal in writing,
upon granting it approval of such alterations and additions, be relinquished
to Landlord in good condition, ordinary wear excepted, at the termination or
this Lease by lapse of time or otherwise.
14. Assignment and Subletting.
(a) Tenant shall not, without the prior written consent of
Landlord, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED, in each
instance, either prior or subsequent to the Commencement Date, (1) assign,
transfer, 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, (2) allow to exist or occur any transfer of or lien upon
this Lease or the Tenant's interest herein by operation of law, (3) sublet
the Premises or any part thereof, or (4) permit the use or occupancy of the
Premises or any part thereof for any purpose not provided for under Section 2
of this Lease or by anyone other than the Tenant and Tenant's employees. In
no event shall this Lease be assigned or assignable by voluntary or
involuntary bankruptcy proceedings or otherwise, and in no event shall this
Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency or reorganization proceedings, except as provided by
law.
(b) Without thereby limiting the generality of the foregoing
provisions of this Section 14, Tenant expressly covenants and agrees not to
enter into any lease, sublease, license, concession or other agreement for
use, occupancy or utilization of the Premises which provides for rental or
other payment for such use, occupancy or utilization based in whole or in
part on the net income or profits derived by any person from the property
leased, used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales), and that any such purported
lease, sublease, license, concession or other agreement shall be absolutely
void and ineffective as a conveyance of any right or interest in the
possession, use, occupancy or utilization of any part of the Premises.
(c) Consent by Landlord to any assignment, subletting, use,
occupancy, transfer or encumbrance shall not operate to relieve Tenant from
any covenant or obligation hereunder except to the extent, if any, expressly
provided for in such consent, nor shall such consent be deemed to be a
consent to, or relieve Tenant from, obtaining Landlord's consent to any
subsequent assignment, subletting, use, occupancy, transfer or encumbrance by
Tenant or anyone claiming by, through or under Tenant. Tenant shall payall
of Landlord's costs, charges and expenses, including without limitation,
reasonable attorney's fees, incurred in connection with any assignment,
subletting, use, occupancy, transfer or encumbrance made or requested by
Tenant.
(d) Tenant shall, by notice in writing, advise Landlord of its
intention from, on and after a stated date (which shall not be less than
THIRTY (30) days after the date of the giving of Tenant's notice to Landlord)
to assign this Lease or sublet any part or 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 within thirty (30)
days after receipt of Tenant's notice, to terminate this Lease with
respect to the space described in Tenant's notice as of the date stated in
subparagraph e. Tenant's notice shall include the name and address of the
proposed assignee or sub-tenant, and sufficient information as Landlord deems
necessary to permit Landlord to determine the financial responsibility,
experience and character of the proposed assignee or sub-tenant. If Tenant's
notice covers all of the Premises and if Landlord exercises its right to
terminate this Lease as to such space, then the Term of this Lease shall
expire and end on the date stated in Tenant's notice for the commencement of
the proposed assignment or sublease as fully and completely as if that date
had been the Expiration Date. If, however, Tenant's notice covers less than
all of the Premises, and if Landlord exercises its right to terminate this
Lease with respect to such space described in Tenant's notice, then as of the
date stated in Tenant's notice for the commencement of the proposed sublease,
the Base Rent and the Tenant's Proportionate Share as defined herein shall be
adjusted on the basis of the number of rentable square feet retained by
Tenant, and this Lease as so amended, shall continue thereafter in full force
and effect.
(e) If Landlord, upon receiving Tenant's said notice with
respect to any such space, does not exercise its right to terminate as
aforesaid, Landlord will not unreasonably withhold its consent to Tenant's
assignment of this Lease or subletting the space covered by its notice.
Tenant acknowledges and agrees that Landlord has a vital interest in the
nature, variety and location of tenants in the Building as a whole and that
Landlord's right to withhold its consent to any proposed assignment or
subletting for reasonable business concerns and purposes is a material
consideration for the rental rate and terms contained in this Lease.
Landlord shall not be deemed to have unreasonably withheld its consent to a
proposed assignment of this Lease or to a proposed sublease of part or all of
the Premises if its consent is withheld because: (1) Tenant is then in
default hereunder; (2) any notice of termination of this Lease or termination
of Tenant's possession shall have been given under Section 18 hereof; (3)
either the portion of the Premises which Tenant proposes to sublease, or the
remaining portion of the Premises, or the means of ingress or egress to
either the portion of the Premises which Tenant proposes to sublease or the
remaining portion of the Premises, or the proposed use of the Premises or any
portion thereof by the proposed assignee or sub-tenant will violate any
village, city, state or federal law, ordnance or regulation, including, without
limitation, any applicable building code or zoning ordinances; (4) the proposed
use of the Premises by the proposed assignee or sub-tenant does not conform
with the use set forth in Section 2 hereof; (5) in the reasonable judgment of
Landlord the proposed assignee or sub-tenant is of a character or is engaged
in a business which would be deleterious to the reputation of the Building or
Landlord, or the Proposed assignee or sub-tenant is not sufficiently financially
responsible or experienced to perform its obligations under the proposed
assignment or sublease; or (6) the proposed assignee or sub-tenant is an
occupant of the Building; Tenant agrees that all advertising by Tenant or on
Tenant's behalf with respect to the assignment of this Lease or subletting of
any part of the Premises must be REASONABLY approved in writing by Landlord
prior to publication.
(f) If Tenant, having first obtained Landlord's consent to any
assignment or sublease, or if Tenant, as debtor or debtor in possession, or a
trustee in bankruptcy for Tenant pursuant to the Bankruptcy Code, 11 U.S.C. 101
et seq., as amended from time to time (the "Bankruptcy Code"), shall assign
this Lease or sublet the Premises, or any part thereof, at a rental in excess
of the Rent for prorata portion thereof due and payable by Tenant under this
Lease, then Tenant shall pay to Landlord as additional rent fifty percent (50%)
of the net (less commissions, advertising fees, and reasonable attorney's fees)
of such excess rent within ten (10) days after Tenant's receipt of same under
any such assignment or, in the case of a sub-lease, within five (5) days after
the first day of each month during the term of any sublease, the excess of all
rent and other consideration due from the sub-tenant for such month over the
Rent then payable to Landlord pursuant to the provisions of this Lease for said
month (or if only a portion of the Premises is being sublet, the excess of all
rent and other consideration due from the sub-tenant for such month over the
portion of the Rent then payable to Landlord pursuant to the provisions of this
Lease for said month which is allocated on a rentable square footage basis to
the space sublet). Notwithstanding the foregoing, Landlord shall not be
responsible for any deficiency if Tenant shall assign or sublet the Premises or
any part thereof at a rental less than Rent provided for herein.
(g) If Tenant shall assign this Lease as permitted herein, the
assignee shall expressly assume all of the obligations of Tenant hereunder in
such assignment, the form of which shall be reasonably satisfactory to
Landlord, and which must be furnished to Landlord not later than fifteen (15)
days prior to the effective date of the assignment. If Tenant shall sublease
the Premises as permitted herein, Tenant shall obtain and furnish to Landlord,
not later than fifteen (15) days prior to the effective date of such sublease
and in form satisfactory to Landlord, the written agreement of such sub-tenant
to the effect that the sub-tenant will attorn to Landlord, at Landlord's option
and written request, in the event this Lease terminates before the expiration
of the sublease.
(h) If Tenant is a corporation (other than a corporation whose stock
is traded through a national or regional exchange or over-the-counter), any
transaction or series of transactions (including without limitation any
dissolution, merger, consolidation or other reorganization of Tenant, or any
issuance, sale, gift, transfer or redemption of any capital stock of Tenant,
whether voluntary, involuntary or by operation of law, or any combination of
any of the foregoing transactions) resulting in the transfer of control of
Tenant, other than by reason of death, shall be deemed to be transfer of
Tenant's interest under this Lease for the purpose of Section 14a and 14c. The
term "control" as used in this Section 14h means the power to directly or
indirectly direct or cause the direction of the management or policies of
Tenant. If Tenant is a corporation, a change or series of changes in ownership
of stock which would result in direct or indirect change in ownership by the
stockholders or an affiliated group of stockholders of less than fifty percent
(50%) of the outstanding stock as of the date of the execution and delivery of
this Lease shall not be considered a change of control. In addition, if Tenant
is an individual, for the purpose of Section 14a and 14c, any incorporation of
the business which Tenant conducts at the Premises shall be deemed a transfer
of Tenant's interest under this Lease.
15. Waiver of Certain Claims; Indemnity by Tenant.
(a) To the extent permitted by law at the time that any subsequent
claim is brought, Tenant releases Landlord, its beneficiaries, the managing
agent of the Real Property,
and their respective officers, directors, agents, partners and employees, from
and waives all claims for damages to person or property sustained by Tenant or
by any occupant of the Premises or the Building, or by any other person,
resulting directly or indirectly from fire or other casualty, or any cause or
any existing or future condition, defect, matter or thing in or about the
Premises, the Building or any part thereof, 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, provided that the foregoing is not due, in whole
or in part, to Landlord's negligence or willful misconduct. Said release and
waiver shall apply especially, but not exclusively, to damage caused by water,
snow, frost, steam, excessive heat or cold, sewerage, gas, odor or noise, or the
bursting or leaking of any pipes or plumbing fixtures, broken glass, sprinkling
or air conditioning devises or equipment, or the flooding of basements, 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
occurrences 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,
results directly from any intentional act or neglect of Tenant, subject to the
waiver of subrogation provisions set forth in paragraph 21 hereof, its
employees, agents, licensees, invitees or contractors, Tenant shall be liable
therefor and Landlord may at its option repair such damage and Tenant shall upon
demand by Landlord reimburse Landlord, such reimbursement being paid as
Additional Rent, for all reasonable direct and actual costs of such repairs and
damages in excess of amounts, if any, paid to Landlord under insurance covering
such damages. All personal property belonging to Tenant or any occupant of the
Premises that is in the Building or the Premises shall be there at the risk of
Tenant or other person only, and Landlord shall not be liable for damage thereto
or theft or misappropriation thereof.
(b) Tenant agrees to indemnify and hold Landlord, its beneficiary,
the managing agent of the Real Property, and their respective officers,
directors, agents, partners and employees harmless against all ACTUAL AND
DIRECT loss, damages, liabilities, claims, liens, cost and expenses, including
without limitation reasonable attorney's fees, in connection with injuries to
any persons or damage to or theft or misappropriation or loss of property
occurring in or about the Premises arising from Tenant's occupancy of the
Premises, or the conduct of its business or from any activity, work, or thing
done, permitted or suffered by Tenant in or about the Premises, including but
not limited to any repairs, installations, alterations or additions undertaken,
for any reason, by Landlord or Tenant, 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 Tenant, or any of its employees, agents, licensees,
invitees or contractors, provided none of the foregoing are due, in whole or in
part, to Landlord's negligence or willful misconduct.
16. Damage or Destruction by Casualty.
(a) If the Premises or 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 with
reasonable promptness to repair and restore the Premises or the Building so as
to render the Premises tenantable, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord's reasonable control,
and also subject to zoning laws and building codes then in effect. If any such
damage renders all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, except during the last year of the Term hereof,
within thirty (30) days after the occurrence of such damage, estimate the
length of time that will be required to substantially complete the repair and
restoration of the Premises or the Building, as the case may be, necessitated
by 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 150 days days from the date such damage
occurred, then either Landlord or Tenant (but as to Tenant, only if all or more
than ten percent (10%) of the Premises are rendered untenantable and the
estimated time required to substantially complete such repair or restoration of
the Premises will exceed such 150 day period) shall have the right to
terminate this Lease as of the date of such damage by 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). If the
Premises are made partially untenantable as aforesaid during the last year of
the Term hereof, Landlord OR TENANT may terminate this Lease as of the date
of the fire or other casualty by giving written notice thereof to THE OTHER
PARTY within thirty (30) days after the date of the fire or other casualty,
in which event the Monthly Base Rent and any Additional Rent shall be
apportioned on a per diem basis to the date of such fire or other casualty.
Unless this Lease is terminated as provided above in the preceding sentence,
Landlord shall proceed with reasonable promptness to repair and restore the
Building or the Premises so as to render the Premises tenantable, subject to
reasonable delays for insurance adjustments and delays caused by matters
beyond the Landlord's reasonable 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 150 days. However, if the Premises are not substantially repaired
or restored within 180 days after the date of such fire or other casualty,
then either party may terminate this Lease, effective as of the date of such
fire or other casualty, by giving written notice to the other party not later
than thirty (30) days after the expiration of said 180 day period, but prior
to substantial completion of repair or restoration. Notwithstanding anything
to the contrary herein set forth: (1) Landlord shall have no duty pursuant to
this Section 16 to repair or restore any portion of improvements, additions
or alterations made by or on behalf of Tenant in the Premises or improvements
which are not building standard improvements performed by Landlord pursuant
to the Work Letter, if any; (2) Landlord shall not be obligated (but may, at
its option, so elect) to repair or restore the Premises or improvements if
the damage is due to an uninsurable casualty or if insurance proceeds are
insufficient to pay for such repair or restoration, or if any Mortgagee
(defined in Section 18) 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 (3) In the event the
Premises or the Building are damaged by fire or the casualty resulting from
Tenant's neglect or intentional act, Landlord shall have no obligation to
rebuild or restore the Building or the Premises or any part thereof and
Tenant shall not have the right to terminate the Lease pursuant to this
Section, nor shall Tenant be released from any of its obligations hereunder
(including, without limitation, its duty to repair the Premises, its
liability to Landlord or damages caused by such fire or other casualty or its
obligation to pay rent).
(b) In the event any such fire or casualty damage renders the
Premises untenantable and if this Lease shall not be terminated pursuant to
the foregoing provisions of this Section 16 by reason of such damage, then
Rent shall ▇▇▇▇▇ during the period beginning with the date of such damage and
ending with the date when Landlord substantially completes its repair or
restoration required hereunder. Provided that Tenant occupies restored or
undamaged portions of the Premises, 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
theretofore delivered to Tenant from time to time bears to the entire
Premises. In the event of termination of this Lease pursuant to this Section
16, Rent shall be apportioned on a per diem basis prior to the date of the
fire or casualty.
(c) In the event of any such fire or casualty, and if the Lease is
not terminated pursuant to the foregoing provisions of this Lease, Tenant
shall AT TENANT'S SOLE OPTION, repair and restore any portion of alterations,
additions or improvements made by or on behalf of Tenant in the Premises
which Landlord is not required to restore pursuant to Section 16a and 16b
hereof.
17. Eminent Domain. If the entire Building or a substantial part
thereof, or any part thereof which includes all or a substantial part of the
Premises, or which is necessary to the economical operation of the Building,
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 earlier of the date when the possession of the part so taken shall
be required for such use or purpose or the effective date of the taking, 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 Real Property, 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 or any
such street or alley is closed by any competent
authority, and such taking, damage, change of grade or closing makes it
necessary or desirable to remodel the Building to conform to the taking,
damage, changed grade or closing, Landlord shall have the right to terminate
this Lease upon not less than ninety (90) days' written notice to Tenant
prior to the date of termination designated in the notice. In either of the
events referred to above, Rent at the then current rate shall be apportioned
on a per diem basis and be payable prior to the date of the termination. No
money or other considerations shall be payable by Landlord to Tenant for the
right of termination. Tenant shall have no right to claim or share in any
condemnation award, whether for a total or partial taking, for loss of
Tenant's leasehold or improvements or other loss or expenses, or in any
judgment for damages caused by any change of grade or street or alley closing.
18. 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 any Rent within five (5) days
after written notice to Tenant of such failure to pay the same on the due
date;
(ii) Failure by Tenant to pay, within five (5) days after
written notice thereof to Tenant, 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, subletting or other transfer of Tenant's
interest under this Lease set forth in Section 14;
(iv) Failure by Tenant to cure forthwith, immediately after
receipt of notice from Landlord, any hazardous condition which Tenant has
created or permitted 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 thirty (30) days after written notice thereof from
Landlord to Tenant;
(vi) The levy upon execution or the attachment by legal
process of the Lease hold interest of Tenant, or the filing or creation of a
lien in respect of such leasehold interest, which lien shall not be released,
discharged, bonded over or insured over by the Chicago Title Insurance
Company, within ten (10) days from the date of such filing;
(vii) Intentionally Omitted.
(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 its property;
(ix) A trustee or receiver is appointed for Tenant or for the
major part of its property and is not discharged within thirty (30) days after
such appointment; or
(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 (a) by Tenant or
(b) against Tenant and are allowed against it or are consented to by it or are
not dismissed within sixty (60) days after such institution.
(xi) any matter described elsewhere in this Lease as a Default.
(b) If a Default occurs, 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 at law or in equity or elsewhere in this Lease:
(i) Landlord may terminate this Lease by giving to Tenant written
notice of Landlord's election to do so, in which event the Term of this Lease
shall end, and all right, title and interest of Tenant hereunder shall
expire, on the date stated in such notice;
(ii) Landlord may terminate the right of 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 Tenant to possession of the Premises or any
part thereof shall cease on the date stated in such notice. An election by
Landlord to terminate Tenant's right to possession of the Premises without
terminating the Lease shall not preclude a subsequent election by Landlord to
terminate the Lease; and
(iii) Landlord may enforce the provisions of this Lease and
may enforce and protect the rights of Landlord hereunder by a suit or suits
in equity or at law for the specific performance of any covenant or agreement
contained herein, and for the enforcement of any other appropriate legal or
equitable remedy, including without limitation injunctive relief, and for
recovery of all moneys due to become due from Tenant under any of the
provisions of this Lease. An election by Landlord to enforce its rights
hereunder in a suit or suits in equity or at law shall not preclude a
subsequent election by Landlord to terminate this Lease or terminate Tenant's
right of possession by written notice, as provided above;
(iv) If the Monthly Base Rent is not paid within ten (10) days
after it becomes due, Tenant shall pay, as Additional Rent, an amount equal
to ten (10) percent of all rent due to reimburse Landlord for the loss Tenant
agrees Landlord will incur by reason of Tenant's failure to pay such amount
in a timely manner.
(c) If Landlord exercises any of the remedies provided for in
subparagraphs 1 and 2 of the foregoing Section 18b, Tenant shall surrender
possession of and vacate the Premises and immediately deliver possession
thereof to Landlord, and Landlord may re-enter and take complete and peaceful
possession of the Premises, with or without process of law, full and complete
license so to do being hereby granted to 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 law or in equity.
(d) If Landlord terminates the right of Tenant to possession of the
Premises without terminating this Lease, such termination of possession shall
not release Tenant, in whole or in apart, from Tenant's obligation to pay the
Rent hereunder for the full term, and the aggregate amount of the rent (based
on the latest applicable rate of Base Rent and the rate of the latest
determined additional rent) for the period from the date stated in the notice
terminating possession to the end of the Term shall be immediately due and
payable by the Tenant to the Landlord, together with any other money's due
hereunder, and the Landlord shall have the right, from time to time, to
recover from Tenant, and Tenant shall remain liable for, all Rent not thereto
accelerated and paid pursuant to the foregoing sentence 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 case, Landlord will use its best efforts to relet the
Premises or any part thereof for the account of 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 Landlord in Landlord's sole discretion shall determine and
Landlord may reasonably reject any tenant offered by Tenant and shall not be
required to observe any instructions given by Tenant relative to such
reletting. Also, in any such case, Landlord may make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent deemed
by Landlord necessary or desirable, and in connection therewith Landlord may
change the locks to the Premises, and Tenant shall upon written demand pay
the cost thereof together with Landlord's reasonable actual expenses of
reletting. Landlord may collect the rents from any such reletting and apply
the same first to the payment of the reasonable expenses of reentry,
redecoration, repair and alterations and the reasonable expenses of reletting
and second to the payment of Rent herein provided to be paid by Tenant, and
any excess or residue shall operate only as an offsetting credit against the
amount of Rent due and owing or paid as a result of acceleration or
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, repossession, repairs, alterations, additions or reletting
shall be construed as an eviction or ouster of Tenant or as an election on
Landlord's part to terminate this Lease, unless a written notice of such
intention is given to Tenant, or shall operate to release Tenant in whole or
in part from any of Tenant's obligations hereunder. Landlord may, at any time
and from time to time, ▇▇▇ 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 1 of section 18B, 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 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 may be then owing and unpaid, and all costs
and expenses, including without limitation court costs and reasonable
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 (1) the unamortized cost
of leasehold improvements, addition, alterations, if any, paid for by
Landlord pursuant to this Lease and any Workletter attached hereto, (2) the
aggregate sum which at the time of such termination represents the excess,
if any, of the present value on the aggregate rents at the same annual rate
for the remainder of the Term as then in effect pursuant to the applicable
provisions 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
value to be computed in each case on the basis of a 3% per annum discount
from the respective dates upon which such rentals would have been payable
hereunder had this Lease not been terminated, and (3) 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 provisions of this Lease or by law may be handled, removed or stored by
Landlord at the cost and reasonable actual expense of Tenant, and 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 for storage charges for such property so long as the same
shall be in Landlord's possession or under Landlord's control. All such
property not removed from the Premises or retaken from storage by Tenant
within thirty (30) days after the end of the Term, however terminated, or
after the termination of Tenant's right of possession, shall, at Landlord's
option, be conclusively deemed to have been conveyed by Tenant to Landlord as
by ▇▇▇▇ of sale, without further payment or credit by Landlord to Tenant.
(g) In the event of any default by Tenant as provided in Section
18a, Landlord may, but shall not be obligated to, and without waiving or
releasing Tenant from any obligation under this Lease, make such payment or
perform such other act to the extent Landlord may deem desirable. Tenant
shall pay all such expenses incurred by Landlord, as provided in Section 18h
below.
(h) Tenant or Landlord, as the case may be shall pay all of other
party's reasonable costs, charges and expenses, including without limitation
court costs and reasonable attorney's fees, incurred in enforcing the other
party's obligations under this Lease.
19. 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 Lease hold 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"). Either the Landlord, or any Mortgagee
may require Tenant to, complete, execute and deliver to Landlord or
Landlord's designee or to any first Mortgagee or Ground Lessor, a written
estoppel certificate pursuant to the terms and conditions of Section 23
hereof.
(b) If requested by a Mortgagee or Ground Lessor, Tenant will
either (i) subordinate its interest in this Lease to said Mortgage or Ground
Lease, and to any and all advances made thereunder and to the interest
thereon, and to all renewals, replacements, supplements, amendments,
modifications and extensions thereof, or (ii) make certain of Tenant's rights
and interest in this Lease superior thereto; and Tenant will promptly execute
and deliver such agreement or agreements as may be reasonably required by
such Mortgagee or Ground Lessor; provided however, Tenant covenants it will
not subordinate this Lease to any Mortgage other than a First Mortgage
without the prior written consent of the First Mortgagee and provided that
such Mortgagee or Ground Lessor simultaneously covenants with Tenant that it
will not disturb Tenant's use and Occupancy of the Premises.
(c) It is further agreed that if any Mortgage shall be foreclosed,
of if any Ground Lease be terminated, (i) the liability of the Mortgagee 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
Mortgagee, purchaser or owner is the owner of the Building, Land or Real
Property, and such liability shall not continue or survive after further
transfer of ownership; and (ii) upon written notice of election to Tenant
from the Mortgagee, if the mortgage shall be foreclosed, or form the Ground
Lessor, if the Ground Lease shall be terminated, Tenant agrees to attorn to
the purchaser at any foreclosure sale or to the Ground Lessor, and to
recognize such purchaser or Ground Lessor as the then Landlord under this
Lease to the extent and effect as the original Landlord hereunder. While this
provision shall be self-executing and shall not require any further writing
to be effective, Tenant agrees to execute and deliver, at any time and from
time to time, upon the request of Landlord or any such Mortgagee or Ground
Lessor, any instrument which, in the reasonable judgment of the Landlord, may
be necessary or appropriate in any such events to evidence such attornment.
(d) Should any prospective First Mortgagee or Ground Lessor require
a modification or modifications of this Lease, which modification or
modifications will not cause an increased cost or expense to Tenant or in any
other way materially and adversely change the rights and obligations of
Tenant hereunder, in the reasonable judgment of Tenant, then and in such
event, Tenant agrees that this Lease may be so modified and agrees to execute
whatever documents are reasonably required therefor and deliver the same to
Landlord within ten (10) business days following the request therefor. Should
any prospective Mortgagee or Ground Lessor require execution of a short form
of lease for recording (containing, among other customary provisions, the
names of the parties, a description of the Premises and the Term of this
Lease), Tenant agrees to execute such short form of lease and deliver the
same to Landlord within ten (10) business days following the request therefor.
(e) If Tenant fails within ten (10) business days after written
demand therefor to execute and deliver any instruments as may be reasonably
necessary or proper to effectuate any of the covenants of Tenant set forth
above in this Section 19, Tenant shall be in default hereunder.
20. Mortgagee Protection. Tenant agrees to give any First Mortgagee,
by registered or certified mail, a copy of any notice or claim 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 an
assignment of Landlord's interests in leases, or otherwise) of the address of
such First Mortgagee. Tenant further agrees that if Landlord shall have
failed 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 reasonably necessary if such First Mortgagee has commenced
within such thirty (30) days and is diligently pursuing the remedies or steps
necessary to cure or correct such default, before Tenant may exercise any
right or remedy which it may have on account of any such default of Landlord.
21. Insurance and Subrogation.
(a) Tenant, at its sole cost and expense, shall carry insurance
during the entire Term hereof insuring Tenant, and insuring Landlord, the
managing agent for the Real Property and their respective officers,
directors, agents, partners and employees, as their interests may appear,
with terms, coverage and in companies reasonably satisfactory to Landlord,
and with such increases in limits as Landlord may from time to time request,
but initially Tenant shall maintain the following coverages in the following
amounts:
(i) Public liability insurance with the broad form
comprehensive general liability endorsement, including contractual liability
insurance covering Tenant's indemnity obligations hereunder, in an amount not
less than $1,000,000.00 combined single limit per occurrence.
(ii) "All risk" physical damage insurance including fire,
sprinkler leakage, vandalism and extended coverage for the full replacement
cost of all additions, improvements and alterations to the Premises (except
to the extent the same are part of building standard work performed by
Landlord pursuant to the Work Letter, if any, attached hereto) and of all
office furniture, trade fixtures, office equipment, merchandise and all other
items of Tenant's property on the Premises.
(iii) Business interruption or extra expense insurance with
limits not less than those carried by a prudent tenant. Tenant shall, prior
to the commencement of the Term and from time to time during the Term, or at
any time upon written request from Landlord, furnish to Landlord policies or
certificates evidencing the foregoing insurance coverage. Tenant's policies
shall state that such insurance coverage may not be reduced, canceled or not
renewed without at least thirty (30) days' prior written notice to Landlord
and Tenant (unless such cancellation is due to non-payment of premium, and in
that case only ten (10) day's prior written notice shall be sufficient).
(b) Tenant shall comply with all applicable laws and ordinances,
all orders and decrees of court and all requirements of other governmental
authority, 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.
(c) Each of Landlord and Tenant hereby waives any and every claim,
including insurer's subrogation claims, for recovery from the other for any
and all loss or damage to the Building or Premises or to the contents
thereof, and including claims for deductible and self-insurance retention
amounts, whether such loss or damage is due to the negligence of Landlord or
Tenant or its respective officers, directors, agents, employees or invitees
of any of them. Furthermore, Landlord and Tenant agree that as respects any
rights or claims between them, they shall each look solely to their
respective insurance carriers in the event of any physical loss or damage.
22. Nonwaiver. No waiver of any condition expressed in this Lease
shall be implied by any neglect of Landlord or Tenant, as the case may be, 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 Landlord's or Tenant's rights under the provision of Section 10, as
the case may be, it is agreed that no receipt of monies by Landlord from
Tenant or attempt to cure the Lease by Landlord 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 or Landlord prior to the receipt of such monies or
such attempt to cure. It is also agreed that after the service or notice or
the commencement of a suit or after final judgment for possession of the
Premises, Landlord may receive and collect any monies due, and the payment of
said monies shall not waive or affect any said notice, suit or judgment.
23. Estoppel Certificate. Tenant agrees that from time to time upon not
less than ten (10) days prior request by Landlord, or any existing or
prospective First Mortgagee or Ground Lessor, Tenant will, and Tenant will
cause any sub-tenant, licensee, concessionaire or other occupant of the
Premises claiming by, through or certificate certifying (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
Code or the bankruptcy laws of any state, and (g) such other matters as may be
required by the Landlord, First Mortgagee, or Ground Lessor, including, without
limitation, any other information concerning the status of this Lease or the
parties' performance hereunder reasonably requested by the party to whom such
estoppel certificate is to be addressed. Tenants' failure to complete, execute
and deliver any such estoppel certificate within the aforesaid ten (10) day
period shall be deemed to be a Default under Section 18 of this Lease.
24. Tenant - Corporation or Partnership. In case Tenant is a corporation,
Tenant (1) represents and warrants that this Lease has been duly authorized,
executed and delivered by and on behalf of Tenant and constitutes the valid and
binding agreement of Tenant in accordance with the terms hereof and (2) if
Landlord so requests, Tenant shall deliver to Landlord, concurrently with the
delivery of this Lease executed by Tenant, certified resolutions of the board
of directors (and shareholders, if required) authorizing Tenant's execution and
delivery of this Lease and the performance of Tenant's obligations hereunder.
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, to
the extent permitted by law. If Tenant is a partnership or corporation whose
stock is not publicly traded, then at the time this Lease is executed and from
time to time thereafter, at Landlord's request, Tenant shall furnish landlord
with a list of Tenant's partners or shareholders, as the case may be.
25. Real Estate Brokers. Tenant AND LANDLORD represent and warrant that
BOTH PARTIES HAVE dealt with and only with Corporate Real Estate Solutions and
▇▇▇▇▇▇▇ Realty Group as broker in connection with this Lease and agrees to
indemnify and hold THE OTHER PARTY harmless from all losses, damages and
liabilities, claims, liens, costs and expenses including without limitation
reasonable attorneys' fees, arising from any claims or demands of any other
broker or brokers or finders for any commission alleged to be due such other
broker or brokers or finders claiming to have dealt with Tenant OR LANDLORD in
connection with this Lease.
26. Notices. All notices to or demands upon Landlord or Tenant desired
or required to be given under any of the provisions hereof shall be in
writing. Any notices or demands from Landlord to Tenant shall be deemed to
have been given if a copy thereof has been personally delivered to Tenant or
Tenant's agent (including without limitation delivery by messenger or
courier) or two (2) days after such notice is mailed by United States
registered or certified mail addressed to Tenant at the Premises. If Tenant
is a corporation and is not in occupancy of the Premises, any notices or
demands from Landlord to Tenant shall also be deemed to have been given if a
copy thereof is mailed by registered or certified mail to Tenant's registered
agent in Illinois. Any notices or demands from Landlord to Tenant may be
signed by Landlord, its beneficiary, the managing agent for the Real Property
or any agent of any of them. Any notices
or demands from Tenant to Landlord shall be deemed to have been given if a copy
thereof has been personally delivered to Landlord (including without limitation
delivery by messenger or courier, with evidence of receipt) at Landlord's
address for payment of Rent or mailed by registered or certified mail return
receipt requested with a copy to Building Manager, c/▇ ▇▇▇▇▇▇▇ Realty Group,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Either party may, upon notice to
the other, change its address for receipt of notices or demands. All notices to
or demands upon Landlord or Tenant mailed by registered or certified mail shall
be deemed served at the time the same were posted.
27. 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 assignment, subletting, mortgage, lien, charge, or
other transfer or encumbrance contrary to the provisions of this Lease, and
this Lease shall not inure to the benefit of any assignee, heir,
administrators, devisees, legal representative, transferee or successor of
Tenant except upon the prior written consent or election of Landlord.
(b) no modification, waiver or amendment of this Lease or of any of
its conditions or provisions shall be binding upon Landlord unless in writing
signed by Landlord.
(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 of 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 managing
agent or leasing agent of the Real Property shall constitute an irrevocable
offer by Tenant to lease the Premises on the terms and condition herein
contained, which offer may not be revoked for fifteen (15) 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 cases 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 all cases be assumed
as though in each case fully expressed. In all cases where there is more than
one person or entity comprising Tenant, the liability of each shall be joint
and several.
(e) Clauses, plats, exhibits and riders, if any, affixed to this
Lease are made an integral part hereof. In the event of variation or
discrepancy the duplicate original hereof, including such clauses, plats,
exhibits and riders, attached hereto shall control.
(f) The headings of Sections are for convenience only and shall not
be used to limit, expand or construe the contents of the Sections.
(g) Time is of the essence of this Lease and of each and all
provisions thereof.
(h) 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 from the day due until paid at the annual rate equal
to three percentage points in excess of the rate of interest announced from
time to time by the First National Bank of Chicago or any successor thereto, as
its corporate base rate, unless a lesser rate shall then by the maximum rate
permissible by law with respect thereto, in which event said lesser rate shall
be charged. NOTWITHSTANDING THE ABOVE, INTEREST WILL BE WAIVED FOR UP TO FIVE
DAYS FOR THE FIRST FIVE TIMES DURING THE TERM OF THIS LEASE THAT BASE RENT AND
ADDITIONAL RENT IS NOT RECEIVED WHEN DUE.
(i) the invalidity or unenforceability of any provision of this
Lease shall not impair or affect in any manner the validity, enforceability or
effect of any other provisions of this Lease.
(j) All negotiations, considerations, representations,
understandings and agreements, oral or written, heretofore made between the
parties hereby and any of their agents are merged in this Lease, which alone
fully and completely express the agreement between Landlord and Tenant.
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 venture 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 not any
acts of the parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant. The
laws of the State of Illinois shall govern the validity, performance and
enforcement of this Lease.
(k) Without limiting the provisions of Section 7 or any other
provisions of this Lease, if Landlord fails to perform timely any of the
terms, covenants and conditions of this Lease on Landlord's part to be
performed and such failure is due in whole or in part to any strike,
lockout, labor trouble, civil disorder, inability to procure materials, failure
of power, restrictive governmental laws and regulations, riots,
insurrections, war, fuel shortages, accidents, casualties, acts of God, acts
caused directly or indirectly by Tenant (or any other cause beyond the
reasonable control of Landlord), then Landlord shall not be deemed in default
under this Lease as result of such failure, unless such failure is due, in
whole or in part, to Landlord's negligence or willful misconduct.
(l) Any rights, reserved or granted to Landlord hereunder may be
exercised by Landlord, its beneficiaries or the managing agents for the Real
property or their respective agents, employees, contractors or designees.
(m) Any payment received from Tenant may be applied by Landlord at
any time against any obligation due and owing by Tenant under this Lease,
notwithstanding any statement appearing on or referred to in any remittance
from Tenant or any prior application of such payment. If a petition under the
Bankruptcy Code is initiated within ninety (90) days after receipt by
Landlord of any such payment, the payment shall be deemed applicable to any
unpaid obligations then due in the inverse order of their maturity.
(n) At any time hereafter, Landlord may (upon ninety (90) days
prior notice) substitute for the Premises other premises in the Building
(herein referred to as the "New Premises") provided that the New Premises
shall be useable for Tenant's purpose, and of similar quality, view, and
containing similar improvements; and if Tenant is already in occupancy of the
Premises, then in addition Landlord shall pay the expenses of Tenant's moving
from the Premises to the New Premises and for improving the New Premises so
that they are substantially similar to the Premises, including the reasonable
cost of Tenant's stationary. Such move shall be made during evenings,
weekends, or otherwise so as to incur the least inconvenience to Tenant.
(o) Tenant acknowledges that the Premises are located in a heavy
timber building with open ceilings, except as shown herein, and exposed
brick walls. As such, Landlord cannot be responsible for Tenant equipment or
Tenant space use that has special sensitivity to dust exposure such as
computer equipment or other types of activities.
(p) The underlining of any words, numbers or sentences in this
Lease shall not alter their meaning in any manner.
28. Prior Occupancy. Landlord may, but only by giving prior written
consent, authorize Tenant to take possession of all or any part of the
Premises prior to the Commencement Date. If Tenant does take possession
pursuant to authority so given, all of the covenants and conditions of this
Lease shall apply to and shall control such pre-Term occupancy. Rent for such
pre-Term occupancy shall be paid upon occupancy on the first day of each
calendar month thereafter at the rate set forth in Section 1 and Section 3
hereof. If the Premises are occupied for a fractional month, Rent shall be
prorated on a per diem basis for such fractional month. No such early
possession shall be deemed to accelerate the stated Expiration Date of this
Lease.
29. Security Deposit. Concurrently with the execution of this Lease,
Tenant has deposited with Landlord or its beneficiaries the sums as provided
in Section 1 as security for the
full and faithful performance of every provision of this Lease to be
performed by Tenant, such sums to be held by Landlord without any obligation
on Landlord's part to pay or credit any interest thereon. If Tenant defaults
with respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of Rent, and improper removal of property
from the Premises upon termination of either the Lease or Tenant's right to
possession, Landlord, at Landlord's option, may use, apply or retain any
part of said security deposit for the payment of any Rent and any other sum
in default, or for the payment of any other amount which Landlord may spend
or become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer reason or
Tenant's default. If any portion of said security deposit is so used or
applied, Tenant shall within TEN (10) days after written demand therefor
deposit cash with Landlord or its beneficiaries or other designee or Landlord
in an amount sufficient to restore the security deposit to the amount
required by the lease, and Tenant's failure to do so shall be a material
breach of this Lease. The use, application or retention of the security
deposit, or any portion thereof, by Landlord shall not prevent Landlord from
exercising any other right or remedy provided by this Lease or by law or at
equity (it being intended that Landlord shall not first be required to
proceed against the security deposit) and shall not operate as a limitation on
any recovery to which Landlord may otherwise be entitled. Except to the
extend required by law, Landlord and its beneficiaries shall not be
required to keep said security deposit separate from their general funds and
Tenant shall not be entitled to interest on any security deposit. In no
event shall the security deposit held hereunder be used or credited to the
final months' Rent hereunder. If Tenant shall fully and faithfully perform
every provision of this Lease to be performed by it, said security deposit or
any balance thereof shall be returned to Tenant within thirty (30) days after
the expiration of the Lease Term and Tenant's vacation of the Premises. In
Absence of evidence satisfactory to the Landlord of permitted assignments of
the right to receive the security deposit, or of the remaining balance
thereof, Landlord may return the same to the original Tenant, regardless of
one or more assignments of Tenant's interest in this Lease or the security
deposit. In the event, upon the return of the security deposit, or the
remaining balance thereof, to the original Tenant, Landlord shall be
completely relieved of liability with respect to the security deposit.
Landlord may deliver the security deposit funds deposited hereunder by Tenant
to the purchaser of Landlord's interest in Building, in the event that such
interest is sold, and thereupon Landlord and its beneficiaries shall be
discharged from any further liability with respect to said security deposit,
although such purchaser shall be liable to Tenant hereunder. Notwithstanding
anything to the contrary contained herein, so long as Tenant has not been in
default in the payment of any monies due under this Lease the thirty seventh
month Base Rent and the forty ninth month Base Rent can be satisfied by
reducing the security deposit accordingly.
30. Right of Termination. This Section Intentionally Omitted.
31. Landlord. The term "Landlord" as used in this Lease means only the
owner of Landlord's interest in the Premises from time to time. In the event
of any assignment, conveyance or sale, once or successively, of Landlord's
interest in the Premises 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. A Mortgagee (or assignee under an assignment in connection with a
Mortgage) shall not be deemed such a purchaser, grantee or assignee under this
Section 31, unless and until the foreclosure of any Mortgage or the
conveyance or transfer of Landlord's interest under this Lease in lieu of
foreclosure, and then subject to the provisions of Section 19. This Lease
shall not be affected by any such assignment, conveyance or sale, the Tenant
agrees to attorn the purchaser, grantee or assignee, and such purchaser,
grantee or assignee shall be subject to the terms and conditions hereof.
32. Title and Covenant Against Liens. Landlord's title is and always
shall be paramount to the title of Tenant, and nothing in this Lease
contained shall empower Tenant to do any act which can, shall or may encumber
the title of Landlord. Tenant covenants and agrees not to suffer or permit
any lien of mechanics or materialmen to be placed upon or against the
Premises, the Building the Land, or against the Tenant's leasehold interest
in the Premises and, in case of any such lien attaching, to immediately pay
and remove, bond over, or induce Chicago Title Insurance Company to insure
over 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
Premises, the Building or the Land, 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 the same within
ten (10) days after written demand by Landlord, Landlord, at its elective,
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
hereof for amounts owned Landlord by Tenant, shall be deemed to be additional
rent due and payable by Tenant immediately upon written notice from Landlord.
33. Default Under Other Leases. If the term of any lease or Tenant's
possession under any lease heretofore or hereafter made by Tenant for any
space in the Building, other than this Lease, shall be terminated or
terminable after the making of this Lease because of any default by Tenant
under such other lease, such fact shall be default hereunder and shall
empower Landlord to terminate this Lease upon notice to Tenant or to exercise
any of the rights or remedies set forth in Section 18.
34. Exculpatory Provisions. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertaking
and agreements herein made on the part of any Landlord while in form
purporting to the representations, warranties, covenants, undertakings and
agreements of such Landlord are nevertheless each and every one of them made
and intended, not as personal representations, warranties, covenants,
undertakings and agreements by such Landlord, or for the purpose or with the
intention of binding such Landlord personally, but are made and intended for
the purpose only of subjecting such Landlord's interest in the Premises and
the Real Property to the terms of this Lease and for no other purpose
whatsoever, and in case of default hereunder by such Landlord (or default
through, under or by any of the agents or representatives), Tenant shall look
solely to the interest of such Landlord in the Premises and the Real Property
and Landlord shall not have any personal liability to pay any indebtedness
accruing hereunder or to perform any covenant, either express or implied,
herein contained; that no personal liability or personal responsibility of
any sort is assumed by, nor shall at any time be asserted or enforceable
against, Landlord, individually or personally, on account of this Lease or on
account of any representation, warranty, covenant, undertaking or agreement
of Landlord in this Lease contained, either express or implies, all such
personal liability, if any, being expressly waived and released by Tenant and
by all persons claiming, through or under Tenant.
35. Liability. In the absence of fraud, no person, firm or corporation
executing this Lease as agent, trustee or in any other representative capacity
or the heirs, administrators, executors, legal representatives, successors,
assigns, officers, directors or employees of any such person, firm or
corporation, shall ever be deemed or held individually liable hereunder for any
reason whatsoever.
36. Hazardous Materials. Tenant, its agents, employees or contractors,
shall not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically or chemically active or other
hazardous substance or materials on or about the Premises. Tenant shall not
allow the generating, storage or use of such substances or materials on or
about the Premises in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Premises any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Without limitations, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. 9601 et seq., any applicable state or local laws and the
regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge, without inquiry, regarding the
presence of hazardous substances or materials on the Premises. In all events,
Tenant shall indemnify Landlord in the manner elsewhere provided in
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon
demand as additional charges in such requirement applies to the Premises. In
addition, Tenant shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Tenant's best knowledge,
without inquiry, regarding the presence of hazardous substances or materials
on the Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous materials on
the Premises caused by Tenant or persons acting under Tenant. Tenant shall,
at Tenant's cost and expense, take all investigatory and/or remedial action
required or ordered by any governmental authority, statute or ordinance for
the cleanup and removal of any contamination involving such hazardous
substances created or caused directly or indirectly by Tenant during Term.
Such remediation shall include the corrective work and restoring of the
Premises to the functional condition prior to the required actions for
cleanup and removal of any contamination involving such hazardous substances.
Tenant's liability under this Section shall survive the expiration of the
Lease. Landlord represents and warrants that the Premises are in compliance,
and will be in compliance as of the Effective Date, with all applicable laws,
rules, requirements, and the like.
IN WITNESS WHEREOF, the parties have caused this Lease to be
executed as of the date first above written.
LANDLORD:
Sheffield Square L.L.C., and Illinois limited liability company
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- -------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ITS: Manager
TENANT:
Extranet Solutions, L.L.C., a Delaware Limited Liability Company
ATTEST: BY: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------- --------------------
ITS: MANAGING MEMBER
-------------------------
EXHIBIT B
ADDITIONAL LEASE PROVISIONS
"Rentable Area of the Premises" shall be deemed to be 6250 GROSS square feet,
"Rentable Area of the Building" shall be deemed to be 19,163 square feet.
1. Tenant's Proportionate Share.
For those expense item(s) attributable to tenants generally of the Building,
including Taxes and Expenses, "Tenant's Proportionate Share" shall be
determined by dividing the Rentable Area of the Premises by the Rentable Area
of the Building. This percentage shall be deemed to be 32.6 percent. For
those expense item(s) not attributable to tenants generally in the Building,
Tenant's Proportionate Share will be determined by dividing the Rentable Area
of the Premises by the Rentable Area of the Building reduced by rentable
square feet in the Building that does not utilize that particular expense
item(s). The Landlord's Statement shall list Tenant's Proportionate Share
for each expense item(s).
2. Tenant's Expenses. Intentionally Omitted
3. Pass Throughs.
In the event the Building Expenses during any Adjustment year shall exceed
the Expenses paid during the Base year, Tenant shall pay, as Additional Rent,
Tenant's proportionate share of such increases.
4. Base Rent Escalation.
In addition, on each of the annual anniversary dates of the Commencement Date
of the Lease, the Base Rent shall increase as follows:
YEAR ANNUAL MONTHLY
RENT BASE RENT
1 $116,340 $ 9,695
2 $121,224 $10,102
3 $126,326 $10,527
4 $131,658 $10,972
5 $137,231 $11,436
5. Intentionally Omitted.
6. Parking.
Landlord will provide three (3) unassigned staff parking spaces for Tenant's
use and one (1) client parking spaces with a maximum of five (5) in and outs
per day in lots controlled by the Landlord which are within one block of the
Building, or, if parked by valet service, street parking within one block of
the Building, during normal business hours, which shall be defined as 8:00
A.M. to 6:00 P.M. weekdays and 9:00 A.M. to 1:00 P.M. Saturdays. The use of
these spaces shall be subject to those terms and conditions listed below:
Landlord shall make this parking available except when presented with
circumstances beyond its control.
Tenant acknowledges that the Landlord is not responsible for damage or loss
caused by any and all events, including but not limited to storm, theft,
accident, vandalism, or any loss of personal property within the vehicle and
shall indemnify and save Landlord harmless from any liability for loss
arising out of such circumstances.
IF ANY GOVERNMENTAL AUTHORITY CANCELS OR RESTRICTS LANDLORDS PARKING RIGHTS
OR IF THE CTA CANCELS IT LEASE WITH LANDLORD, Landlord retains the right to
cancel this parking agreement at any time providing the Tenant with one
month's written prior notice. Should Tenant be in default under the terms of
this Lease, Landlord may cancel this parking agreement without notice.
Landlord retains the right to cancel guest parking at any time and change
from a monthly fee to a daily cash basis fee.
Tenant agrees to abide by all rules and regulations as may be established
from time to time by Landlord, and shall display a parking permit in the
vehicle when using the parking lot.
In the event Landlord cancels or terminates any of the parking space to be
made available to Tenant under this paragraph, the Monthly Base Rent due from
Tenant shall be reduced by the amount of $80.00 per month per parking space
from the time of such cancellation or termination.
7. AS AN INCENTIVE TO LANDLORD TO EXECUTE THIS LEASE, TENANT HAS STATED THAT
IT HOPES TO RECEIVE $500,000 FROM INVESTORS BY MARCH 1, 1999. IN THE EVENT
THAT TENANT HAS NOT RECEIVED ONE HALF OF THIS SUM BY FEBRUARY 5, 1999 AND THE
ENTIRE SUM BY MARCH 1, 1999, LANDLORD, AT LANDLORD'S SOLE OPTION, MAY CANCEL
THIS LEASE BY PROVIDING WRITTEN NOTICE TO TENANT BY MARCH 15, 1999. IN THE
EVENT THAT THIS LEASE IS CANCELLED, TENANT WILL BE RESPONSIBLE FOR REPAYING
LANDLORD FOR ALL COSTS OF EXHIBIT C AND ANY OTHER WORK DONE IN THE PREMISES
FOR TENANT.
EXHIBIT C
WORK LETTER
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
This Work Letter is attached to the foregoing Lease (the "Lease")
wherein Tenant is leasing certain office space (the "Premises") in ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇. Capitalized terms used herein, unless
otherwise defined in the Work Letter, shall have the respective meanings
assigned to them in the Lease.
Landlord and Tenant named in the Lease hereby agree as follows:
Premises will be delivered in "as is" conDITION EXCEPT AS FOLLOWS:
PREMISES WILL BE RECARPETED, PATCHED WHERE NECESSARY AND REPAINTED
DAMAGED OR STAINED CEILING TILES WILL BE REPLACED.
KITCHEN BASE CABINETS AND SINK WILL BE INSTALLED IN KITCHEN.
ALL DOORS WILL BE INSTALLED AND FUNCTIONAL.
ALL LIGHTING, EXISTING ELECTRICAL AND HVAC WILL BE IN GOOD WORKING ORDER.
The first floor elevator entry will be tiled and finished in a manner similar
to the first floor stair entrance.
ALL OTHER PROVISIONS OF EXHIBIT C HAVE BEEN INTENTIONALLY OMITTED.
EXHIBIT D
RULES AND REGULATIONS
1. Access to Building: On Saturdays (except from 8:00 A.M. to 1:00
P.M.), Sundays and holidays, and on other days between the hours of 6:00
P.M. and 8:00 A.M. the following day, access to the Building may be
restricted and access shall be gained only by exhibiting an appropriate
security pass or by otherwise complying with the established Building
security regulations. Landlord may from time to time establish security
controls and regulations for the purpose of regulating or restricting access
to the Building. Landlord may restrict access to washrooms by key
combination or other security device. Tenant shall abide by all such
security controls and regulations so established.
2. Protecting Premises: Before leaving the premises unattended,
Tenant shall close and securely lock all doors or other means of entry to the
Premises and shut off all utilities, lights and machines in the Premises.
Tenant shall be responsible for protecting the Premises and all property and
persons in the Premises from theft, robbery, pilferage and other crimes and
keeping the Premises secure.
3. Building Directory: The directory of the Building shall display
Tenant's name and will be provided at the expense of Landlord. Any
additional names other than Tenant's name requested by Tenant to be displayed
in the directory must be approved by Landlord in writing, and, if so
approved, will be provided at the sole expense of the Tenant.
4. Large Articles: Furniture, freight and other large or heavy
articles may be brought into the building only at times and in the manner
(including use of freight elevators and the loading area) designated by
Landlord, and always at Tenant's sole responsibility. All damage done to the
Building by moving or maintaining such furniture, freight or articles shall
be repaired at the expense of Tenant. Removal of all furniture, equipment,
cartons and similar articles from the Premises or the Building shall be
arranged with the Management Office prior to the move.
5. Signs: Tenant shall not paint, display, inscribe, maintain or
affix any sign, placard, picture, advertisement, name, notice, lettering or
direction on any part of the outside or inside of the Building, or on any
part of the outside of the Premises, or any part of the inside of the
Premises which can be seen from the outside of the Premises, without the
prior written consent of Landlord, and then only such name or names or
content and in such a color, size, style, character, material and manner of
affixing as may be first reasonably approved by Landlord in writing.
Landlord reserves the right to remove at Tenant's expense all sign matter
not consented to or approved by Landlord.
6. Advertising: Tenant shall not in any manner use the name of the
Building for any purpose or use any picture or likeness of the Building in
any letterheads, envelopes, circulars, notices, advertisements, containers or
wrapping material.
7. Compliance with Laws: Tenant shall comply with all applicable
laws, ordinances, governmental orders and regulations and applicable orders
and directions from any public office or body having jurisdiction, with
respect to the Premises or the Building and the use or occupancy thereof.
Tenant shall not make or permit any use of the Premises or the Building which
directly or indirectly is forbidden by law, ordinance, governmental
regulation or order or direction of applicable public authority, or which may
be dangerous to person or property.
8. Hazardous Materials: Tenant shall not use (or permit to be brought
into the Premises or the Building) any flammable oils or fluids, or any
explosive or other articles deemed hazardous to persons or property, or do or
permit to be done anything in or upon the Premises or bring or keep anything
therein, which shall not comply with all rules, orders, regulations or
requirements of any organization, bureau, department or body having
jurisdiction with respect thereto (and Tenant shall at all times comply with
all such rules, orders, regulations or
requirements), or which shall invalidate or increase the rate of insurance on
the Building, its appurtenances, contents or operation.
9. Defacing and Altering Premises and Overloading: Tenant shall not
place anything or allow anything to be placed in the Premises near the glass
of any door, partition, wall or window which may be unsightly from outside
the Premises, and Tenant shall not place or permit to be placed any article
of any kind on any window ledge or on the outside of the exterior walls of
the Premises or the Building. Blinds, shades, awnings or other forms of
outside window ventilators or similar devices, shall not be placed in or
about the outside windows in the Premises. No blinds, shades, draperies or
other forms of inside window covering other than those provided by Landlord
or approved in writing by the Landlord may be installed in the Premises.
Excepting therefrom the following, the cost of which to Tenant is less than
Five Thousand and No/100 Dollars ($5,000.00), Tenant shall not do any
painting or decorating in the Premises or install any floor coverings in the
Premises or make, paint, cut or drill into, drive nails, screws or other
fasteners into or in any way deface any part of the Premises or Building
without in each instance obtaining the prior written consent of Landlord,
which shall not be unreasonably withheld. Tenant shall not overload any floor
or part therof in the premises in excess of the live load therefor, or any
facility in the Building or any public corridors or elevators therein while
bringing in or removing any large or heavy articles. Landlord may direct and
control the location of safes and all other heavy articles and, if considered
necessary by Landlord, require supplementary supports at the expense of
Tenant of such material and dimensions as Landlord may deem necessary to
properly distribute the weight.
10. Obstruction of Public Areas: Tenant shall not take or permit to be
taken in or out of other entrances of the Building, or take or permit on
other elevators, any item normally or required by Landlord to be taken in or
out through service doors or in or on freight elevators; and Tenant shall
not, whether temporarily, accidentally or otherwise, allow anything to remain
in, place or store anything, in or obstruct in any way, any sidewalk, court,
passageway, entrance, exit, loading or shipping area or hall, corridor,
elevator or stairway. Tenant shall lend its full cooperation to keep such
areas free from all obstruction and in a clean and sightly condition, and
move all supplies, furniture and equipment as soon as received directly to
the Premises, and shall move all such items and waste (other than waste
customarily removed by Building emloyees) that are at any time being taken
from the Premises directly to the areas designated for disposal. All courts,
passageways, entrances, exits, loading or shipping areas, elevators,
stairways, corridors, halls and roofs are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence in the judgment of
Landlord shall be prejudicial to the safety or security of the Building or
its occupants. No tenant and no employee, agent, licensee, invitee or
contractor of Tenant shall enter into areas reserved for the exclusive use of
Landlord or its agents, employees, licensees or invitees.
11. Keys and Additional Locks: Tenant shall not attach or permit to be
attached additional locks or similar devices to any door or window, change
existing locks or the mechanisms thereof, or make or permit to be made any
keys or any door other than those provided by Landlord. If more than two keys
for one lock are desired, Landlord will provide them to Tenant upon payment
therefor by Tenant. Upon termination of this lease or of Tenant's possession,
Tenant shall surrender all keys to the Premises and all keys for offices,
rooms or toilet rooms which have been furnished to Tenant or which Tenant
shall have made, and in the event of loss of any keys so furnished, Tenant
shall pay Landlord therefor.
12. Communications or Utility Connections: If Tenant desires signal,
communication, alarm or other utility or similar service connections
installed or changed. Tenant shall not install or change the same without the
prior written approval of Landlord, and then only under direction of Landlord
and at Tenant's expense. Tenant shall not install in the Premises any
equipment which requires a substantial amount of electrical current,
including without limitation computer or data processing equipment, without
the advance written consent of Landlord, and Tenant shall ascertain from
Landlord the maximum amount of load or demand for or use of electrical
current which can safely be permitted in the Premises, taking into account
the capacity of the electric wiring in the Building and the Premises and the
needs of other tenants of the Building, and shall not in any event connect a
greater load than such safe capacity.
13. Management Office: Service requirements of Tenant will be attended to
only upon application at the management office for the Building. Employees of
Landlord, its beneficiaries or the managing agent of the Real Property shall
not perform any work or do anything outside of their duties unless under
special instructions from Landlord.
14. Outside Services: No tenant shall obtain for use upon the Premises
ice, drinking water, towel or other similar services on the Premises, except
from persons authorized by Landlord and at the hours and under regulations
fixed by Landlord.
15. Toilet Rooms: The toilet rooms, urinals, wash bowls and the other
bathroom apparatus shall not be used for any purpose other than for which
they were constructed, and no foreign substance of any kind whatsoever shall be
thrown therein, and the expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by the tenant who, or whose
employees, agents, licensees, invitees or contractors, shall have caused it.
16. Intoxication: Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or other drugs, or who shall in any manner do any act
in violation of any of the rules of the Building.
17. Vending Machines: No vending machines of any description shall be
installed, maintained or operated in the Premises without the prior written
consent of Landlord.
18. Nuisances and Certain Other Prohibited Uses: Tenant shall not (i)
conduct itself or permit its employees, agents, licensees, invitees or
contractors to conduct themselves in a manner inconsistent with the comfort or
convenience of other tenants or the first-class character of the Buliding; (ii)
install or operate any internal combustion engine, boiler, machinery,
refrigerating, heating or air-conditioning apparatus or space heater in or
about the Premises; (iii) carry on any business in or about the Premises or
the Building or sell any article, thing or service except those ordinarily
embraced within the permitted use of the Premises specified in Section 3; (iv)
use the Premises for housing, lodging or sleeping purposes; (v) this section
intentionally omitted; (vi) place any radio or television antennae on the roof
or on or in any part of the inside or outside of the Building other than the
inside of the Premises; (vii) operate or permit to be operated any radio,
television, record player, stereo, tape player, musical instrument or other
sound producing instrument or device inside or outside the Premises which may be
heard outside the Premises; (viii) use any illumination or power for the
operation of any equipment or device other than electricity; (ix) operate any
electrical device from which may emanate electrical waves which may interfere
with or impair radio or television broadcasting or reception from or in the
Building or elsewhere; (x) bring or permit to be in the Building any bicycle or
other vehicle, or dog (except in the company of a blind or deaf person) or
other animal or bird; (xi) make or permit any objectionable noise or odor to
emanate from the Premises; (xii) disturb, solicit or canvass any occupant of the
Building; (xiii) do anything in or about the Premises tending to create or
maintain a nuisance or do any act tending to injure the reputation of the
Building; or (xiv) throw or drop or permit to be thrown or dropped any article
from any terrace, window or other opening in the Building.
19. Room-to-Room Canvass: Tenant shall not make any room-to-room canvass
to solicit business from other tenants or occupants of the Building or for
any other purpose and shall not exhibit, sell or offer to sell, use, rent or
exchange any products or services in or from the Premises unless ordinarily
embraced within the permitted use of the Premises specified in Section 3.
20. Waste: Tenant shall not waste electricity, water, heat or
air-conditioning and agrees to cooperate fully with Landlord to assure the most
effective and energy efficient operation of the Building heating and
air-conditioning, and shall not allow the adjustment (except by Landlord's
authorized building personnel) of any electricity, water, heat or
air-conditioning controls. Tenant shall keep corridor doors closed and shall not
open any windows, except that if the air circulation shall not be in operation,
windows which are operable may be opened with Landlord's prior written consent.
Tenant shall lower and adjust any venetian blinds,
shades or draperies on the windows in the Premises if such lowering and
adjustment reduces the sunlight and additional heat load created thereby in
the Premises.
21. All desk chairs must have plastic carpet pads beneath them to avoid
damage to carpet and subfloor.
22. All movement of garbage out of the Premises shall be done at hours
designated by the Landlord.
23. This Section Intentionally Omitted.
24. Unless specifically provided for in this Lease, Tenant shall not use
Landlord-controlled parking lots, and shall instruct its agents, employees
and invitees not to do so. Landlord shall have the right to tow all
unauthorized vehicles and assess daily parking rates to repeated offenders.
