1
Exhibit 10.8
LEASE AMENDMENT AGREEMENT
This Lease Amendment Agreement made of the 27th day of August, 1996, between
American National Bank and Trust Company of Chicago, not individually but as
Trustee under a Trust Agreement dated February 14, 1983 and known as Trust No.
56881 ("Landlord") and Mobius Management Systems, Inc., a New York corporation
("Tenant").
WHEREAS, Landlord and Tenant have entered into a lease ("Lease") dated December
20, 1993 for certain premises containing approximately 7,214 rentable square
feet (the "Premises") in the building commonly known as 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx (the "Building") for a Term ending January 31, 1999; and
WHEREAS, Landlord and Tenant desire to extend the Term of the Lease and also
increase the size of the Premises:
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties covenant and agree as follows:
1. Effective September 1, 1996, the Premises are increased by the addition of
5,179 rentable square feet on the third floor, said 5,179 rentable square being
leased on an "as is" basis. Effective September 1, 1996, the Premises, for all
purposes of the Lease shall comprise a total of 12,393 rentable square feet on
the third floor and is described in plan attached hereto as Exhibit A.
2. The Term of the Lease is hereby extended to the end of August 31, 2001 upon
the terms and conditions contained in the Lease as amended hereby.
3. Effective September 1, 1996, the Base Rent shall be as follows:
Annual Base
Lease Period Base Rent Monthly Rent
------------ --------- ------------
September 1, 1996 -
August 31, 1997 $155,678.04 $12,973.17
September 1, 1997 -
August 31, 1998 $158,791.60 $13,232.63
September 1, 1998 -
February 28, 1999 $161,967.43 $13,497.29
March 1, 1999 -
August 31, 1999 $154,168.92 $12,847.41
2
September 1, 1999
August 31, 2000 $157,275.73 $13,106.31
September 1, 2000 -
August 31, 2001 $160,421.24 $13,368.44
4. Effective September 1, 1996 Tenant's Proportionate share shall be 6.37%.
5. Effective September 1, 1996 Paragraphs R-6 and R-7 are no longer in
effect.
6. Each party warrants and represents that it has not dealt with any broker
in connection with this Lease Amendment Agreement. Each party agrees to defend,
save and hold harmless the other from any claims for fees and commissions and
against any liability (including reasonable attorneys' fees) by reason of its
breach of such representation and warranty.
7. Paragraphs R-5 of the Rider to the Lease entitled "Renewal Option" is
amended in the following respects:
a. The reference to "October 31, 1998" is deleted and replaced by
"January 31, 2001".
b. The reference to "February 1, 1999 to January 31, 2004" is deleted
and replaced by "September 1, 2001 to August 31, 2006".
c. The reference to "January 31, 2004" after "its option to extend the
Term of the Lease to" is deleted and replaced by "August 31, 2006".
d. The reference to "October 21, 2003" is deleted and replaced by
"January 31, 2006".
e. The reference to "February 1, 2004 to January 31, 2009" is deleted
and replaced by "September 1, 2006 to August 31, 2011".
f. The reference in both renewal options to "the then prevailing market
rate for comparable space" is deleted and replaced by "the then
prevailing market rate (the rate at which Landlord is offering space
to prospective tenants) for comparable space".
8. Except as modified herein, all of the provisions of the Lease remain in
full force and effect. In the event of any inconsistency or conflict between the
Lease and this Lease Amendment Agreement, this Lease Amendment Agreement shall
prevail and control.
9. This instrument is executed by the undersigned Landlord, not personally,
but solely as Trustee aforesaid, and it is expressly understood and agreed by
the parties hereto, anything herein to the contrary notwithstanding, that each
and all of the covenants, undertakings, representations
-2-
3
and agreements of the Trustee are not made individually, or for the purpose of
binding it personally, but this instrument is executed and delivered by Landlord
as Trustee, solely in the exercise of powers conferred upon it as such Trustee
under said Trust Agreement and no personal liability or personal responsibility
is assumed by, nor shall at any time be asserted or enforced against the
Landlord on account hereof, or on account of any covenant, undertaking,
representation or agreement herein contained, either expressed or implied, all
such personal liability, if any, being duly expressly waived and released by the
parties hereto, and by all persons claiming by or through or under said parties.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
Agreement as of the date first above written.
TENANT LANDLORD
Mobius Management Systems, Inc. American National Bank and
Trust Company of Chicago
as Trustee aforesaid
By: By:
----------------------------- ----------------------------
Its Authorized Officer
-3-
4
April 27, 1994
Xx. Xxxxx Xxxxxx
Mobius Management Systems, Inc.
Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxx, XX 00000
Dear Xxxxx:
Enclosed please find your fully executed Lease Agreement for space in The 600
Xxxxxx Building.
If you have any questions, please don't hesitate to call me.
Sincerely,
Xxxxxx Xxxxxx Xxxxxxx
President
dj
Enclosure
cc: Mr. Xxxxxxx Xxxxxx w/enclosures
Xx. Xxxxxxx Xxxxxxx
Xx. Xxxxxx Xxxxxxx
Xx. Xxx Xxxxxxx
Xx. Xxxxx Xxxxxx
5
LEASE
-----
BUILDING: 000 Xxxx Xxxxxx Xxxxxxxx
XXXXXXX: 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
LANDLORD
American National Bank and Trust Company of Chicago, not individually, but as
Trustee under a Trust Agreement dated February 14, 1983, and known as Trust No.
56881.
TENANT
------
Mobius Management Systems, Inc.
-------------------------------
a New York corporation
----------------------
DATE OF LEASE
December 20, 1993
-----------------
6
TABLE OF CONTENTS
Paragraph Page
1 BASE RENT 1
2 ADDITIONAL RENT 1
3 SERVICE 7
4 CONDITION OF PREMISES 8
5 FAILURE TO GIVE POSSESSION 9
6 USE OF PREMISES 10
7 CARE AND MAINTENANCE 13
8. ALTERATIONS 14
9 ACCESS TO PREMISES 16
10 UNTENANTABILITY 17
11 INSURANCE 18
12 SUBROGATION 19
13 EMINENT DOMAIN 20
14 ASSIGNMENT-SUBLETTING 20
15 WAIVER OF CLAIMS AND INDEMNITY 22
16 MORTGAGE-GROUND LEASE 24
17 CAPITAL EXPENDITURES 25
18 CERTAIN RIGHTS RESERVED TO THE LANDLORD 25
19 HOLDING OVER 00
0
00 XXXXXXXX'X XXXXXXXX 00
00 DEFAULT UNDER OTHER LEASE 31
22 SURRENDER OF POSSESSION 31
23 NOTICES 32
24 RELOCATION OF TENANT
25 SECURITY DEPOSIT
26
27 MISCELLANEOUS 34
28 LANDLORD'S LIABILITY 37
EXHIBIT A - PLAN OF PREMISES
EXHIBIT B - LEGAL DESCRIPTION
RIDER
- ii -
8
THIS LEASE, made as of this 20th day of December ___, 1993, between
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not individually but as
Trustee under a Trust Agreement dated February 14, 1983, and known as Trust No.
______ ("Landlord") and Mobius Management Systems, Inc., a New York corporation
("Tenant");
W I T N E S S E T H:
THAT Landlord hereby leases to Tenant, and Tenant accepts the premises
(the "Premises") being 7,214 rentable square feet at the southwest corner of the
third floor and described in the plan attached hereto as Exhibit A in the
building (the "Building"), situated on the premises legally described on Exhibit
B and commonly known as 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (the
"Property"), for a term of five (5) years, unless sooner terminated as provided
herein, commencing February 1, 1994, and ending January 31, 1999 (the "Term"),
to be occupied and used by the Tenant for general offices and no other purpose,
subject to the agreements herein contained.
IN CONSIDERATION THEREOF, THE PARTIES COVENANT AND AGREE AS FOLLOWS:
1. BASE RENT. The Tenant shall pay as Base Rent to Landlord or to such
other person or at such other place as Landlord may direct in writing, the sum
of $________ see Rider ____, in equal monthly installments of $ see Rider _____,
in advance without notice on or before the first day of each calendar month of
the term commencing February 1, 1994, without any set-off or deduction
whatsoever, except that Tenant shall pay the monthly installment for the first
full month of the Term for which rent is due upon the execution of this Lease.
Unpaid rent shall bear interest at the rate set forth in Section 27(f), from the
date due until paid. Tenant agrees to do and perform each and every
9
covenant, agreement and obligation to be performed by Tenant hereunder. If the
Term commences on other than the first day of a month or ends on other than the
last day of a month, then the rent for such month shall be prorated for such
fractional period and paid promptly by Landlord.
2. ADDITIONAL RENT. In additional to paying the Base Rent specified in
Paragraph 1, Tenant shall pay as "Additional Rent" the amounts determined as
hereinafter set forth. The Base Rent and the Additional Rent are sometimes
hereinafter collectively referred to as the "Rent."
(a) Definitions. As used in this Paragraph 2, the terms:
(i) "Calendar Year" shall mean the twelve month period
January through December for any year in which this Lease is
in effect;
(ii) "Tenant's Proportionate Share" shall be 3.71%, a
percentage determined by dividing 194,581 square feet, the
rentable area contained in the Building, into 7,214 square
feet, the rentable area of the third floor contained in the
Premises;
(iii) "Taxes" shall mean all real estate taxes and
assessments, special or otherwise, levied or assessed upon or
with respect to the Property and/or Building, and ad valorem
taxes for Landlord's personal property used in connection
therewith. Should the State of Illinois or the City of
Chicago, or any political subdivision of either, or any other
governmental authority having jurisdiction over the Property
or the Building, impose a tax, assessment, charge or fee, or
increase a then existing tax assessment, charge or fee, which
Landlord shall be required to pay, either by way of
substitution for such real estate taxes and ad valorem
personal property taxes, or assessed against the Property or
Building, or in addition to such real estate taxes and ad
valorem personal property taxes, or impose an income or
franchise tax or a tax on rents which may be in addition to or
in substitution for a tax levied against the Property and/or
the Building and/or Landlord's personal property used in
connection with the Property and Building, such taxes,
assessments, fees or charges shall be deemed to constitute
Taxes hereunder. In the event the Property and Building are
not fully assessed for real estate tax purposes for any
Calendar Year, the Taxes for that year shall be adjusted by
Landlord to reflect the Taxes as though the Property and
Building were fully assessed. "Taxes" shall include all
special taxes and assessments, installments of which are
required to be paid and all fees and costs incurred by
Landlord in seeking
-2-
10
to obtain reduction of, or a limit on the increase in any
Taxes, regardless of whether any reduction or limitation is
obtained.
(iv) "Operating Expenses" for any Calendar Year shall
mean all expenses, costs and disbursements of every kind and
nature (other than Taxes) incurred by Landlord in connection
with the ownership, maintenance, operation and repair of the
Building, including, but not limited to, salaries and wages of
employees of the Building (including social security taxes,
unemployment insurance costs, cost of disability benefits,
pension, hospitalization or retirement plans), insurance
premiums, management fees, utilities (except to the extent
separately metered and payable by tenants in the Building),
scavenger and snow removal services and other expenses similar
or dissimilar. Operating Expenses shall not include:
a. costs of capital improvements, except for any
capital improvements made or installed for the purpose
of saving labor or otherwise reducing Operating
Expenses;
b. depreciation (except on miscellaneous equipment
used in the maintenance of the Property), interest and
principal payments on mortgages, and other debt costs,
if any; and
c. real estate broker's leasing commissions or
compensation.
Any services provided by Landlord shall be at rates that are
competitive with rates of third parties who would be providing
similar services. In the event the Building is not fully
occupied during any Calendar Year, the Operating Expenses for
that year shall be adjusted by Landlord to reflect the
Operating Expenses as though the Building were fully occupied.
(v) "Base Tax Amount" shall equal $2.65 per rentable
square foot;
(vi) "Operating Expense Base Amount" shall equal $ See
Rider;
(vii) "Rentable Area" shall be computed by measuring the
inside finish of exterior glass panels and shall include,
without limitation, all areas within such glass panels and
shall also include:
a. with respect to each single tenancy floor,
toilets, air conditioning rooms, fan rooms, janitors
closet, telephone closets, electrical closets and
elevator lobbies within and serving only such floor, or
-3-
11
b. with respect to each multiple tenancy floor,
the Tenant's Proportionate Share of the areas described
in the preceding subsection.
Rentable areas shall exclude the lobby, the loading dock
receiving room, the basement, elevator shafts, flues, stacks
and vertical ducts with their enclosing walls;
(viii) "Lease Year" shall be a twelve month period of
the Lease commencing on the calendar day on which the Lease
Term first begins.
(b) Tax and Operating Expense Escalation. Tenant shall pay to
Landlord as Rent, in addition to the Base Rent required by Paragraph 1,
(i) an amount ("Tax Escalation Amount") equal to Tenant's Proportionate
Share of the amount by which the Taxes assessed with respect to each
Calendar Year exceed the Base Tax Amount and (ii) an amount ("Operating
Expenses Escalation Amount") equal to Tenant's Proportionate Share of the
amount by which the Operating Expenses incurred by Landlord with respect
to each Calendar Year exceeds the Operating Expense Base Amount with
respect to each Calendar Year, in monthly installments for each month in
which this Lease is in effect, at the same time and place as Base Rent
under Paragraph 1 is to be paid, in amounts reasonably estimated based on
prior year increases from time to time by Landlord by a written notice to
Tenant. Landlord agrees to keep books and records showing Operating
Expenses and Taxes in accordance with a system of accounts and accounting
practices consistently maintained on a year-to-year basis. Landlord shall
deliver to Tenant within ninety (90) days after the close of each Calendar
Year (including the Calendar Year in which this Lease terminates), a
report certified by an officer or agent of Landlord. The report shall
contain the following:
(i) The officer's or agent's statement that the books and
records covering the operation of the Building have been maintained
in accordance with the requirements of this paragraph;
(ii) The amount by which the Taxes for such Calendar Year
exceed the Base Tax Amount; and
(iii) The amount by which the Operating Expenses for such
Calendar Year exceed the Operating Expense Base Amount.
After receipt of such report, Landlord shall cause the Tax Escalation
Amount and the Operating Expense Escalation Amount for such Calendar Year
to be computed based on such report and shall deliver to Tenant a
statement of the Tax Escalation Amount and the Operating Expense
Escalation Amount. Tenant shall pay any deficiency with respect to the Tax
Escalation Amount and/or the Operating Expense Escalation Amount to
Landlord as shown by such statement within fifteen (15) days after demand
therefor. If the total amount paid by Tenant during any Calendar Year with
respect to the Tax Escalation Amount exceeds
-4-
12
the Tax Escalation Amount for such Calendar Year or if the total amount
paid by Tenant during any Calendar Year with respect to the Operating
Expense Escalation Amount exceeds the Operating Expense Escalation Amount
for such Calendar Year, such excess shall be credited against payments
next due under this Paragraph 2(b). If no such payments are next due, such
excess shall be refunded by Landlord. The amount of any refund of Taxes
received by Landlord shall be credited against Taxes for the year in which
such refund is received. In determining the amount of Taxes for the year,
the amount of special assessments to be included shall be limited to the
amount of the installment (plus any interest payable thereon) of such
special assessment which would have been required to have been paid during
such year if the Landlord had elected to have such special assessment paid
over the maximum period of time permitted by law. Except as provided in
the preceding two sentences, all references to Taxes for a particular year
shall be deemed to refer to Taxes levied, assessed or otherwise imposed
for such year without regard to when such Taxes are payable. If the Term
commences on other than the first day of a Calendar Year, or ends on other
than the last day of the Calendar Year, then the Additional Rent due under
this Paragraph 2(b) for such Calendar Year shall be prorated for such
fractional Calendar Year.
(c) Miscellaneous. All amounts due under this Paragraph 2 as
Additional Rent shall be payable in the manner and at such place as Base
Rent provided for in Paragraph 1. Without limitation on other obligations
of Tenant which shall survive the expiration of the Term, the obligations
of Tenant to pay the Additional Rent provided for in this Paragraph 2
shall survive the expiration of the Term.
3. SERVICE. The Landlord shall furnish:
(a) Heat and air-cooling when necessary, in the Landlord's judgment,
to provide for the comfortable occupation and use of the Premises, daily
from 7:00 A.M. to 6:00 P.M. (Saturdays 8:00 A.M. to 1:00 P.M.); Sundays
and holidays excepted. When Tenant desires heat and air-cooling at hours
other than those stated in the preceding sentence, the cost of such
service shall be paid by Tenant to Landlord as additional rent at rates
fixed by Landlord. Wherever heat generating machines or equipment are used
by Tenant in the Premises, which affect the temperature otherwise
maintained by the air-cooling system, Landlord reserves the right to
install supplementary air-conditioning units in the Premises and the
expense of installation shall be paid by Tenant. The expense resulting
from the operation and maintenance of the supplementary air conditioning
system shall be paid by the Tenant to the Landlord as additional rent at
rates fixed by Landlord.
(b) Cold water in common with other tenants for drinking, lavatory
and toilet purposes drawn through fixtures installed by the Landlord, or
by Tenant in the Premises with Landlord's written consent, and hot water
in common with other tenants for lavatory purposes from regular Building
supply. Tenant shall pay Landlord as additional rent at rates fixed by
Landlord for water furnished for any other purposes.
-5-
13
(c) Automatic passenger elevator service. Freight elevator service
shall be subject to scheduling by Landlord.
(d) Landlord shall permit Tenant to receive direct service from
public utility companies at Tenant's sole cost and expense. Tenant shall
make all necessary arrangements for metering and paying for such service
furnished to Tenant and Tenant shall pay for all charges for such service
on the Premises during Tenant's occupancy thereof.
The Landlord will maintain the building and provide a level of service
consistent with first class renovated office buildings in the Chicago area.
However, the Landlord does not warrant that any of the services above mentioned
will be free from interruptions caused by war, insurrection, civil commotion,
riots, acts of God or the enemy, governmental action, repairs, renewals,
improvements, alterations, strikes, lockouts, picketing, whether legal or
illegal, accidents, inability of the Landlord to obtain fuel or supplies or any
other cause or causes beyond the reasonable control of the Landlord. Any such
interruption of service shall never be deemed an eviction or disturbance of the
Tenant's use and possession of the Premises or any part thereof, or render the
Landlord liable to the Tenant for damages, or relieve the Tenant from
performance of the Tenant's obligations under the Lease.
4. CONDITION OF PREMISES. The Tenant's taking possession shall be
conclusive evidence as against the Tenant that the Premises were in good order
and satisfactory condition when the Tenant took possession (it being understood
that the Premises are being leased in an as is condition and that Tenant has
been in possession of the Premises prior to the date hereof). No promise of the
Landlord to alter, remodel, decorate, clean or improve the Premises or the
Building and no representation respecting the condition of the Premises or the
Building have been made by the Landlord to the Tenant, unless the same is
contained herein, or made a part hereof, or in a written document signed by
Landlord or its Agent. This Lease does not grant any air rights over the
Property.
-6-
14
5. USE OF PREMISES. The Tenant shall occupy and use the Premises during
the Term for the purpose specified at the beginning of this Lease and none
other. In this connection, Tenant covenants that Tenant shall:
(a) Not make or permit to be made any use of Premises which,
directly or indirectly is forbidden by public law, ordinance or
governmental regulation or which may be dangerous to persons or property,
or which may invalidate or increase the premium cost of any policy of
insurance carried on the Building or covering its operations; nor shall
Tenant do, or permit to be done, any act or thing upon the Premises which
will be in conflict with fire insurance policies covering the Building.
The Tenant, at its sole expense, shall comply with all rules, regulations
or requirements of the local Inspection and Rating Bureau, or any other
similar body, and shall not do, or permit anything to be done upon the
Premises, or bring or keep anything thereon in violation of such rules,
regulations, or requirements, and then only in such quantity and manner of
storage as not to increase the rate of fire insurance applicable to the
Building.
(b) Not install any sign in the Premises other than signs installed
by Landlord at Tenant's expense and in such manner, character and style as
Landlord may approve in writing, such approval not to be unreasonably
withheld.
(c) Not advertise the business, profession or activities of the
Tenant conducted in the Building in any manner which violates the letter
or spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and
shall not use the name of the Building for any purpose other than that of
business address of the Tenant, and shall never use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence without the Landlord's express prior written consent;
(d) Not obstruct, or use for storage, or for any purpose other than
ingress and egress, the sidewalks, entrances, passages, courts, corridors,
vestibules, halls, elevators and stairways of the Building;
(e) Not permit a bicycle or other vehicle or dog or other animal or
bird to be brought into the Building or any part thereof;
(f) Not make or permit any noise or odor that is objectionable to
other occupants of the Building to emanate from the Premises, and shall
not create or maintain a nuisance thereon, and shall not disturb, solicit
or canvass any occupant of the Building, and shall not do any act tending
to injure the reputation of the Building;
-7-
15
(g) Not install any musical instrument or equipment in the Building
or any antennas, aerial wires or other equipment inside or outside the
Building, without, in each and every instance, prior written consent of
the Landlord. The use thereof, if permitted, shall be subject to control
by the Landlord to the end that others shall not be disturbed or annoyed;
(h) Not waste water by tying, wedging or otherwise fastening open,
any faucet;
(i) Not attach any additional locks or similar devices to any door.
No keys for any door other than those provided by the Landlord shall be
made. If more than two keys for one lock are desired by the Tenant, the
Landlord may provide the same upon payment therefor by the Tenant. Upon
termination of this Lease or of the Tenant's possession, the Tenant shall
surrender all keys for the Premises and shall advise the Landlord of all
combinations for locks on safes, cabinets and vaults;
(j) Be responsible for the locking of doors in and to the Premises.
Any damage resulting therefrom shall be paid for by the Tenant;
(k) Not bore, cut or install wires or cables for telegraphic,
telephonic, burglar alarm or signal service, without the prior written
approval of the Landlord which shall not be unreasonably withheld. The
Landlord will direct where and how connections and all wiring for such
service shall be introduced and run;
(l) Not install shades, draperies or other forms of inside window
covering without prior approval of the Landlord which shall not be
unreasonably withheld as to shape, color and material;
(m) Not overload any floor. Safes, furniture and all large articles
shall be brought through the Building and into the Premises at such times
and in such manner as the Landlord shall direct and at the Tenant's sole
risk and responsibility. The Tenant shall list all furniture, equipment
and similar articles to be removed from the Building, and the list must be
approved at the Office of the Building or by a designated person before
building employees will permit any article to be removed;
(n) Not install or operate any steam or internal combustion engine,
boiler, machinery, refrigerating except small kitchen refrigerator or
heating device except coffee machines or air-conditioning apparatus in or
about the Premises, or carry on any mechanical business therein, or use
the Premises for housing accommodations or lodging or sleeping purposes,
or do any cooking therein or install or permit the installation of any
vending machines, or use any illumination other than electric light, or
use or permit to be brought into the Building any inflammable oils or
fluids such as gasoline, kerosene, naphtha and benzene, or any explosive
or other articles hazardous to persons or property, without the prior
written consent of Landlord in each and every instance;
-8-
16
(o) Not place or allow anything to be against or near the glass of
partitions, doors or windows of the Premises which may diminish the light
in, or be unsightly from the exterior of the Building, public halls or
corridors;
(p) Not install in the Premises any equipment which uses a
substantial amount of electricity without the advance written consent of
the Landlord. The Tenant shall ascertain from the Landlord the maximum
amount of electrical current which can safely be used in the Premises,
taking into account the capacity of the electric wiring in the Building
and the Premises and the needs of other tenants in the Building, and shall
not use more than such safe capacity. The Landlord's consent to the
installation of electric equipment shall not be construed to permit the
Tenant to use more electricity than such safe capacity;
(q) Unless installed by Landlord, install, maintain and not remove
carpet padding and carpet in the entire Premises, or such other floor
covering as approved in writing in advance by Landlord;
(r) Provide janitorial service for the Premises at its own expense
on a daily basis, each business day. Landlord shall furnish Tenant with a
list of acceptable name(s) of janitorial services for Tenant's use. If the
Tenant and substantially all other Tenants are not satisfied with the
janitorial service, Landlord shall provide Tenant with a list of other
janitorial services which may be used by Tenant;
(s) Pay for all utility services used in the Premises, except for
those utilities which Landlord is specifically providing in this Lease and
then only to the extent payment by Landlord is specifically provided in
this Lease.
The Tenant shall be liable to the Landlord for all damages resulting from the
breach of any covenant contained in this Paragraph 6, including the right to
enjoin Tenant from continuing the breach of any such covenants. Nothing in this
Lease shall be construed to impose any duty or obligation upon Landlord to
enforce any of the provisions of this Paragraph 6, or the terms, covenants or
conditions of any other lease against any other Tenant, and the Landlord shall
not be liable to the Tenant for violation of the same by any other tenant, its
servants, employees, agents, invitees or licensees.
6. CARE AND MAINTENANCE. Subject to the provisions of Paragraph 10, the
Tenant shall, at Tenant's own expense, keep the Premises in good condition and
shall pay for the repair of any damage caused by Tenant, its employees, agents,
invitees, or Licensees during the
-9-
17
Term. The Tenant shall pay the Landlord for
overtime and for any other expense incurred in the event repairs, alterations,
decorating or other work in the Premises cannot be made during ordinary business
hours.
7. ALTERATIONS. The Tenant shall not do any painting or decorating, or
erect any partitions, make any alterations in or additions to the Premises or do
any mailing, boring or screwing into the ceilings, walls or floors, in
accordance with the rules of Landlord for doing so. Unless otherwise agreed by
Landlord and Tenant in writing, all such work shall be performed either by or
under the direction of Landlord, but at the expense of Tenant. The Landlord's
decision to refuse such consent shall be conclusive which shall not be
unreasonably withheld. If the Landlord consents to such alterations or
additions, before commencement of the work or delivery of any materials onto the
Premises or into the Building, the Tenant shall furnish the Landlord for
approval:
(a) Plans and specifications;
(b) Names and addresses of contractors;
(c) Copies of contracts;
(d) Necessary permits;
(e) Indemnification in form and amount satisfactory to Landlord and
certificates of insurance from all contractors performing labor or
furnishing materials, insuring against any and all claims, costs, damages,
liabilities and expenses which may arise in connection with the
alterations or additions.
Whether the Tenant furnishes the Landlord the foregoing or not, the Tenant
hereby agrees to hold the Landlord, its beneficiaries, and their respective
agents and employees harmless from any and all liabilities of every kind and
description which may arise out of or be connected in any way with said
alterations or additions. Any mechanic's lien filed against the Premises, or the
Building
-10-
18
of which the same form a part, for work claimed to have been furnished
to the Tenant shall be discharged of record by the Tenant within ten (10) days
thereafter, at the Tenant's expense. Provided that such discharge shall not be
required if Tenant provides Landlord security adequate in Landlord's reasonable
judgment, to protect Landlord from any loss, cost, damage and expense in
connection with any such lien. Upon completing any alterations or additions, the
Tenant shall furnish the Landlord with contractors' affidavits and full and
final waivers of lien and receipted bills covering all labor and materials
expended and used. All alterations and additions shall comply with all insurance
requirements and with all ordinances and regulations of any pertinent
governmental authority. All alterations and additions shall be constructed in a
good and workmanlike manner and good grades of materials shall be used.
All additions, decorations, fixtures, hardware, non-trade fixtures and all
improvements, temporary or permanent, in or upon the Premises, whether placed
there by the Tenant or by the Landlord, shall, unless the Landlord requests
their removal, become the Landlord's property and shall remain upon the Premises
at the termination of this Lease by lapse of time or otherwise without
compensation or allowance or credit to the Tenant. If, upon the Landlord's
request, the Tenant does not remove said additions, decorations, fixtures,
hardware, non-trade fixtures and improvements, the Landlord may remove the same
and the Tenant shall pay the cost of such removal to the Landlord upon demand.
Notwithstanding the foregoing, it is understood that the foregoing items which
are present in the Premises as of the date of this Lease shall remain and shall
not be subject to Landlord's request for their removal.
8. ACCESS TO PREMISES. The Tenant shall permit the Landlord to erect, use
and maintain pipes, ducts, wiring and conduits in and through the Premises. The
Landlord or Landlord's
-11-
19
agents shall have the right to enter upon the Premises, to inspect the same, and
to make such decorations, repairs, alterations, improvements or additions to the
Premises or the Building as the Landlord may deem necessary or desirable, and
the Landlord shall be allowed to take all material into and upon said Premises
that may be required therefor without the same constituting an eviction of the
Tenant in whole or in part and the rent reserved shall not xxxxx (except as
provided in Paragraph 10) while said decorations, repairs, alterations or
improvements are being made, by reason of loss or interruption of business of
the Tenant, or otherwise. If the Tenant shall not be personally present to
permit an entry into said Premises, when for any reason an entry therein shall
be necessary or desirable, the Landlord or Landlord's agents may enter the same
by a master key, or may forcibly enter the same, without rendering the Landlord
or such agents liable therefor (if during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property), and without in any
manner affecting the obligations and covenants of this Lease. Nothing herein
contained, however, shall be deemed or construed to impose upon the Landlord any
obligations, responsibility or liability whatsoever, for the care, supervision
or repair of the Building or any part thereof, other than as herein provided.
The Landlord shall also have the right at any time without the same constituting
an actual or constructive eviction and without incurring any liability to the
Tenant therefor, to change the arrangement and/or location of entrances or
passageways, doors and doorways and corridors, elevators, stairs, toilets or
public parts of the Building, and to close entrances, doors, corridors,
elevators or other facilities. The Landlord shall not be liable to the Tenant
for any expense, injury, loss or damage resulting from work done in or upon, or
the use of, any adjacent or nearby building, land, street or alley.
-12-
20
9. UNTENANTABILITY. If the Premises or the Building are made untenantable
by fire or other casualty, Landlord may elect:
(a) To terminate this Lease as of the date of the fire or casualty
by notice to the Tenant within sixty (60) days after that date, or
(b) To proceed with due diligence to repair, restore or rehabilitate
the Building or the Premises at Landlord's expense, in which latter event
this Lease shall not terminate. If said repair, restoration or
rehabilitation is not substantially completed within six (6) months after
the date of such fire or other casualty, Tenant may elect to terminate
this Lease as of the date of such fire or other casualty by written notice
to Landlord within ten (10) days after the expiration of said six (6)
month period.
In the event the Lease is not terminated pursuant to this Paragraph, rent shall
xxxxx on a per diem basis during the period of untenantability of the Premises.
In the event of the termination of this Lease pursuant to this Paragraph, rent
shall be apportioned on a per diem basis and paid to the date of the fire or
other casualty. In the event that the Premises are partially damaged by fire or
other casualty but are not made wholly untenantable, then Landlord shall, except
during the last year of the Term, proceed with due diligence to repair and
restore the Premises and the rent shall xxxxx in proportion to the nonusability
of the Premises during the period of untenantability. If a portion of the
Premises are made untenantable as aforesaid during the last year of the Term,
Landlord shall have the right to terminate this Lease as of the date of the fire
or other casualty by giving written notice thereof to Tenant within thirty (30)
days after the date of fire or other casualty, in which event the rent shall be
apportioned on a per diem basis and paid to the date of such fire or other
casualty.
10. INSURANCE. Tenant agrees that it will at all times during the Term,
and any extensions, keep in full force and effect:
-13-
21
(a) comprehensive general public liability insurance with respect to
the Premises and the business operated by Tenant or any other occupant of
the Premises, such insurance to afford protection to the limit of not less
than $1,000,000 in respect to each person and to the limit of not less
than $2,000,000 in respect to any one occurrence, and to the limit of not
less than $500,000 in respect to property damage; and
(b) insurance against fire, sprinkler, leakage, vandalism, and the
extended coverage perils for the full insurable value of all additions,
improvements and alterations to the Premises (except to the extent the
same are included within the definition of "Work," but not "Additional
Work" as set forth in Exhibit C), and all office furniture, trade
fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises.
Such policies shall name Tenant and Landlord, and any other person, firm or
corporation involved with the Building and reasonably designated by Landlord as
insureds and shall contain a clause that the insurer will not cancel or change
the insurance without first giving Landlord at least ten (10) days prior written
notice thereof. The insurance shall be in form (including the amount of any
so-called "deductible"), and written by insurance companies reasonably
acceptable to Landlord, and a certificate of insurance shall be delivered to
Landlord prior to commencement of the Term and not less than ten (10) days prior
to the expiration of the term of such insurance, whether expiration is due to
lapse of time or cancellation or for any other reason. In the event Tenant shall
fail to provide said insurance, Landlord may, but shall be under no obligation
to, procure such insurance in which event Tenant agrees to pay to Landlord, as
Additional Rent, the amount of premium therefor on the first day following the
month in which Landlord notifies Tenant of the amount of premium due hereunder.
11. SUBROGATION. The parties hereto agree to have any and all fire,
extended coverage or any and all material damage insurance which may be carried
endorsed with the following subrogation clause: "This insurance shall not be
invalidated should the insured waive prior to a loss any or all right of
recovery against any party for loss occurring to the property
-14-
22
described herein." Each party hereto hereby waives all claims for recovery from
the other party for any loss or damage to any of its property insured under
valid and collectible insurance policies to the extent of any recovery
collectible under such insurance.
12. EMINENT DOMAIN. If the Building, or a substantial part of the
Premises, shall be lawfully taken or condemned for any public or quasi-public
use or purpose, or conveyed under threat of such condemnation, the Term of this
Lease shall end upon, and not before, the date of the taking of possession by
the condemning authority, and without apportionment of the award. Tenant hereby
assigns to the Landlord Tenant's interest in such award, if any. Current Rent
shall be apportioned as of the date of such termination. If any part of the
Building, other than the Premises or any part of the Building not constituting a
substantial part of the Premises, shall be so taken or condemned, or if the
grade of any street or alley adjacent to the Building is changed by any
competent authority and such taking or change of grade makes it necessary or
desirable to substantially remodel or restore the Building, the Landlord shall
have the right to cancel this Lease upon not less than ninety (0) days prior
written notice to the Tenant specifying the date of cancellation. No money or
other consideration shall be payable by the Landlord to the Tenant for the right
of cancellation, and the Tenant shall have no right to share in the condemnation
award or in any judgment for damages caused by the change of grade.
13. ASSIGNMENT-SUBLETTING. Tenant shall not, without Landlord's prior
written consent which shall not be unreasonably withheld:
(a) Assign, hypothecate, mortgage, encumber, or convey this Lease or
any interest under it;
-15-
23
(b) Allow any transfer thereof or any lien upon Tenant's interest by
operation of law;
(c) Sublet the demised Premises in whole or in part.
The following provisions apply to subletting:
(d) Prior to making any sublease, Tenant shall first notify Landlord
in writing of its election to sublease all or a portion of the Premises,
such notice to include a copy of the proposed sublease. At any time within
thirty (30) days after service of said notice, Landlord shall notify
Tenant that:
(i) it consents to the sublease, or
(ii) it refuses to consent to the sublease, or
(iii) with respect to the proposed sublease of the entire
Premises, it cancels the Lease effective as of the beginning of the
sublease term, or
(iv) with respect to the proposed sublease of part of the
Premises, effective as of the beginning of the sublease term it
amends the Lease to reduce the Premises by the portion of the
Premises proposed to be sublet and further appropriately amends the
Lease because of the reduction of the Premises.
(e) The use for which the Premises may be sublet shall be only for
lawful office use in keeping with the general character of the Building.
(f) If Tenant shall sublet the Premises at a rental in excess of the
Rent, said excess rental shall be shared equally between Landlord and
Tenant and shall be paid to Landlord promptly when due under any such
subletting as additional rent hereunder.
Any assignment or subletting shall not release Tenant of liability under
this Lease or permit any subsequent prohibited act, unless specifically provided
in such consent.
14. WAIVER OF CLAIMS AND INDEMNITY. Except for the negligence of the
Landlord, its beneficiaries and their respective agents and employees (but not
to the extent that Tenant does not have insurance coverage with respect
thereto), to the extent permitted by law, the Tenant releases the Landlord, its
beneficiaries, and their respective agents and servants from, and
-16-
24
waives all claims for, damage to person or property sustained by the Tenant or
any occupant of the Building or Premises resulting from the Building or Premises
or any part of either or any equipment or appurtenance becoming out of repair,
or resulting from any accident in or about the Building, or resulting directly
or indirectly from any act or neglect of any tenant or occupant of the Building
or of any other person, other than Landlord's agents and servants as provided
above. Without limiting the generality of the foregoing, this Paragraph 14 shall
apply to the flooding of basements or other subsurface areas, and to damage
caused by refrigerators, sprinkling devices, air-conditioning apparatus, water,
snow, frost, steam, excessive heat or cold, falling plaster, broken glass,
sewage, gas, odors or noise, or the bursting or leaking of pipes or plumbing
fixtures, and shall apply equally whether any such damage results from the act
or neglect of other tenants, occupants or servants in the Building or of any
other person (other than Landlord's agents and servants as provided above), and
whether such damage be caused or result from any thing or circumstances above
mentioned or referred to, or any other thing or circumstance whether of a like
nature or of a wholly different nature. If any such damage, whether to the
Premises or to the Building or any part thereof, or whether to the Landlord or
other tenants in the Building, results from any act or neglect of the Tenant,
its employees, agents, invitees and customers, the Tenant shall be liable
therefor and the Landlord may, at the Landlord's option, repair such damage and
the Tenant shall, upon demand by Landlord, reimburse the Landlord forthwith for
the total cost of such repairs. The Tenant shall not be liable for any damage
caused by its act or neglect if the Landlord or a tenant has recovered the full
amount of the damage from insurance and the insurance company has waived its
right of subrogation against the Tenant. All property belonging to the Tenant or
any occupant of the Premises that is in the building or the Premises shall be
there at the risk of the Tenant or other person only, and the Landlord shall not
be liable for damage thereto or theft or misappropriation thereof.
-17-
25
Except for the negligence of the Landlord, its beneficiaries and their
respective agents and employees, Tenant agrees to indemnify and save the
Landlord, its beneficiaries, and their respective agents and employees harmless
against any and all claims, demands, costs and expenses, including reasonable
attorney's fees for the defense thereof, arising from Tenant's occupation of the
Premises 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 from any act or negligence of Tenant, its agents,
servants, employees or invitees, in or about the Premises. In case of any action
or proceeding brought against Landlord, its beneficiaries, or their respective
agents or employees by reason of any such claim, upon notice from Landlord,
Tenant covenants to defend such action or proceeding by retaining counsel
reasonably satisfactory to Landlord.
15. MORTGAGE-GROUND LEASE. Landlord may execute and deliver a mortgage or
trust deed in the nature of a mortgage (both hereinafter referred to as a
"Mortgage") against the Property or any interest therein, and may sell and lease
back the underlying land on which the Building is situated. This Lease and the
rights of Tenant hereunder shall be and are hereby made expressly subject and
subordinate at all times to any such Mortgage and/or ground lease, now or
hereafter existing and all amendments, modifications and renewals thereof and
extensions, consolidations or replacements thereof, and to all advances made or
hereafter to be made upon the security thereof. Tenant agrees to execute and
deliver such further instruments subordinating this Lease to said Mortgage or
ground lease as may be requested in writing by Landlord from time to time.
-18-
26
Should any Mortgage affecting the Building or the Property be foreclosed
or if any ground lease be terminated:
(a) The liability of the mortgagee, trustee or purchaser at such
foreclosure sale or the liability of a subsequent owner designated as
Landlord under this Lease shall exist only so long as such trustee,
mortgagee, purchaser or owner is the owner of the Property and such
liability shall continue or survive after further transfer of ownership;
(b) Upon request of the mortgagee or trustee, Tenant will attorn, as
tenant under this Lease, to the purchaser at any foreclosure sale
thereunder or if any ground lease be terminated for any reason, Tenant
will attorn as tenant under this Lease to the ground Lessor under the
ground lease and will execute such instruments as may be necessary or
appropriate to evidence such attornment. The aforesaid subordination of
this Lease is subject to Tenant's right to continue in possession of the
Premises so long as Tenant is not in default hereunder and is attorning as
required herein.
16. CERTAIN RIGHTS RESERVED TO THE LANDLORD. The Landlord reserves and may
exercise the following rights in a reasonable manner without affecting Tenant's
obligations hereunder:
(a) To change the name or street address of the Building;
(b) To install and maintain a sign or signs on the interior or
exterior of the Building;
(c) To have access for the Landlord and the other tenants of the
Building to any mail chutes located on the Premises according to the rules
of the United States Post Office;
(d) To designate all sources furnishing sign painting and lettering,
ice, towels, coffee cart service and toilet supplies, lamps and bulbs used
on the Premises;
(e) To decorate, remodel, repair alter or otherwise prepare the
Premises for reoccupancy if Tenant vacates the Premises prior to the
expiration of the Term;
(f) To retain at all times pass keys to the Premises;
(g) To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building;
-19-
27
(h) To exhibit the Premises to others and to display "For Rent"
signs on the Premises;
(i) To close the Building after regular working hours and on the
legal holidays subject, however, to Tenant's right to admittance, under
such reasonable regulations as Landlord may prescribe from time to time,
which may include, without limiting the generality of the foregoing, that
persons entering or leaving the Building identify themselves to a watchman
by registration or otherwise and that said persons establish their right
to enter or leave the Building;
(j) To approve the weight, size and location of safes or other heavy
equipment or articles, which articles may be moved in, about, or out of
the Building or Premises only at such times and in such manner as Landlord
shall direct and in all events, however, at Tenant's sole risk and
responsibility;
(k) To take any and all measures, including inspections, repairs,
alterations, decoration, additions and improvements, to the Premises or to
the Building, as may be necessary or desirable for the safety, protection
or preservation of the Premises or the Building or the Landlord's
interests, or as may be necessary or desirable in the operation of the
Building.
The Landlord may enter upon the Premises and may exercise any or all of
the foregoing rights hereby reserved without being deemed guilty of an eviction
or disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant and without abatement of rent or affecting any of the
Tenant's obligations hereunder.
17. HOLDING OVER. If the Tenant retains possession of the Premises or any
part thereof after termination of the Term or any extension thereof, by lapse of
time or otherwise, the Tenant shall pay the Landlord the monthly Rent, at 150%
of the rate payable for the month immediately preceding said holding over
(including increases for Expenses and Taxes which Landlord may reasonably
estimate), computed on a per-month basis, for each month or part thereof
(without reduction for any such partial month) that the Tenant thus remains in
possession, and in addition thereto, if such retention of possession by Tenant
is for a period in excess of fifteen (15)
-20-
28
business days after Landlord gives Tenant written notice to vacate (which notice
may be given prior to the termination of the Term), but not sooner than January
10, 1999, Tenant shall pay the Landlord all damages, consequential as well as
direct, sustained by reason of the Tenant's retention of possession. The
provisions of this paragraph do not exclude the Landlord's rights of re-entry or
any other rights hereunder.
18. LANDLORD'S REMEDIES. All rights and remedies of the Landlord herein
enumerated shall be cumulative and none shall exclude any other right or remedy
allowed by law.
(a) If the Tenant defaults in the payment of Rent, and the Tenant
does not cure the default within five (5) days after demand for payment of
such Rent or if the Tenant defaults in the prompt and full performance of
any other provisions of this Lease, and the Tenant does not cure the
default within twenty (20) days after written demand by the Landlord that
the default be cured (unless the default involves a hazardous condition,
which shall be cured forthwith) or if the leasehold interest of the Tenant
be levied upon under execution or be attached by process of law, or if the
Tenant makes an assignment for the benefit of creditors or admits its
inability to pay its debts generally, or if a receiver be appointed for
any property of the Tenant, or if the Tenant abandons the Premises, then,
and in any such event, the Landlord may, if the Landlord so elects but not
otherwise, and with or without notice of such election, and with or
without any demand whatsoever, either forthwith terminate this Lease and
the Tenant's right to possession of the Premises or, without terminating
this Lease, forthwith terminate the Tenant's right to possession of the
Premises.
(b) Upon termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of the Tenant's right to possession
without termination of the Lease, the Tenant shall surrender possession
and vacate the Premises immediately, and deliver possession thereof to the
Landlord, and hereby grants to the Landlord full and free license to enter
into and upon the Premises in such event with process of law and to
repossess the Landlord of the Premises as of the Landlord's former estate
and to expel or remove the Tenant and any others who may be occupying or
be within the Premises and to remove any and all property therefrom, using
such force as may be necessary, without being deemed in any manner guilty
of trespass, eviction or forcible entry or detainer, and without
relinquishing the Landlord's rights to Rent or any other right given to
the Landlord hereunder or by operation of law.
(c) If the Landlord elects to terminate the Tenant's right to
possession only, without terminating the Lease, the Landlord may, at the
Landlord's option, enter into the
-21-
29
Premises, remove the Tenant's sign and other evidences of tenancy, and
take and hold possession thereof as in subparagraph (b) of this Paragraph,
without such entry and possession terminating the Lease or releasing the
Tenant, in whole or in part, from the Tenant's obligation to pay the Rent
hereunder for the full Term, and in any such case the Tenant shall pay
forthwith to the Landlord, if the Landlord so elects, a sum equal to the
entire amount of the Rent for the remainder of the Term plus any other
sums then due hereunder. Upon and after entry into possession without
termination of the Lease, the Landlord may, but need not, relet the
Premises or any part thereof for the account of the Tenant to any person,
firm or corporation other than the Tenant for such rent, for such time and
upon such terms as the Landlord in the Landlord's sole discretion shall
determine, and the Landlord shall not be required to accept any tenant
offered by the Tenant or to observe any instructions given by the Tenant
about such reletting. In any such case, the Landlord may make repairs,
alterations additions in or to the Premises and redecorate the same to the
extent deemed by the Landlord necessary or desirable, and the Tenant
shall, upon demand, pay the cost thereof, together with the Landlord's
expenses of the reletting. If the consideration collected by the Landlord
upon any such reletting for the Tenant's account is not sufficient to pay
monthly the full amount of the Rent reserved in this Lease, together with
the cost of repairs, alterations, additions, redecorating and the
Landlord's expenses, the Tenant shall pay to the Landlord the amount of
each monthly deficiency upon demand.
(d) If any involuntary action or proceeding under any section or
sections of any bankruptcy act in any court or tribunal shall adjudge or
declare Tenant insolvent or unable to pay Tenant's debts, or if any
voluntary petition or similar proceeding under any section or sections of
any bankruptcy act shall be filed by Tenant in any court or tribunal to
declare Tenant insolvent or unable to pay Tenant's debts, then and in any
such event Landlord may, if Landlord so elects but not otherwise, and with
or without notice of such election, and with or without entry or other
action by Landlord, forthwith terminate this Lease, and notwithstanding
any other provision of this Lease, Landlord shall forthwith upon such
termination be entitled to recover damages in an amount equal to the then
present value of the Rent for the remainder of the Term, less the fair
rental value of the Premises for the remainder of the Term.
(e) Any and all property which may be removed from the Premises by
the Landlord pursuant to the authority of the Lease or of law, to which
the Tenant is or may be entitled, may be handled, removed or stored by the
Landlord at the risk, cost and expense of the Tenant, and the Landlord
shall in no event be responsible for the value, preservation or
safekeeping thereof. The Tenant shall pay to the Landlord, upon demand,
any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be to the Landlord's
possession or under the Landlord's control. Any such property of the
Tenant not retaken from storage by the Tenant within thirty (30) days
after the end of the Term, however terminated, shall be conclusively
presumed to have been conveyed by the Tenant to the Landlord under this
Lease as a xxxx of sale without further payment or credit by the Landlord
to the Tenant.
-22-
30
(f) Tenant hereby grants to Landlord a first lien upon the interest
of Tenant under this Lease to secure the payment of moneys due under this
Lease, which lien may be enforced in equity, and Landlord shall be
entitled as a matter of right to have a receiver appointed to take
possession of the Premises and relet the same under order of court.
(g) The Tenant shall pay upon demand all the Landlord's reasonable
costs, charges and expenses, including the fees of counsel, agents and
others retained by the Landlord, incurred in enforcing the Tenant's
obligations hereunder or incurred by the Landlord in any litigation,
negotiation or transaction in which the Tenant causes the Landlord,
without the Landlord's fault, to become involved or concerned.
19. DEFAULT UNDER OTHER LEASE. If the term of any lease, other than this
Lease, made by the Tenant for any premises in the Building shall be terminated
or terminable after the making of this Lease because of any default by the
Tenant under such other lease, such fact shall empower the Landlord, at the
Landlord's sole discretion, to terminate this Lease by notice to the Tenant.
20. SURRENDER OF POSSESSION. Upon the expiration or other termination of
the terms of this Lease, Tenant shall quit and surrender to Landlord the
Premises, broom clean, in good order and condition, ordinary wear expected, and
Tenant shall remove all of its property except as otherwise provided in
Paragraph 8.
If the Tenant does not remove its property of every kind and description
from the Premises prior to the end of the Term, however ended, and Landlord
shall not have requested the removal of same by Tenant pursuant to Paragraph 8,
the Tenant shall be conclusively presumed to have conveyed the same to the
Landlord under this Lease as a xxxx of sale without further payment or credit by
the Landlord to the Tenant and the Landlord may remove the same and the Tenant
shall pay the cost of such removal to the Landlord upon demand.
-23-
31
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Term of this Lease.
21. NOTICES. Notices shall be in writing. The time of mailing shall be the
time of the notice.
(a) Notices shall be effectively served by Landlord upon Tenant by
forwarding through Certified or Registered Mail, postage prepaid, to
Tenant at: Mobius Management Systems, Inc., 0 Xxxxxx Xxxxx, Xxx Xxxxxxxx,
XX 00000.
(b) Notice shall be effectively served by Tenant upon Landlord when
addressed to Landlord and served by forwarding through Certified or
Registered Mail, postage prepaid, to Landlord c/x Xxxxxxx Real Estate,
Inc. at the Building or if notified of another address by Landlord, in
writing, at such other address.
22. SECURITY DEPOSIT. Tenant agrees to deposit with Landlord, upon the
execution of this Lease, the sum of $6,913.42 as security for the full and
faithful performance by Tenant of each and every term, provision, covenant and
condition of this Lease. If Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this Lease including, but not limited
to, payment of the Base Rent and Additional Rent, Landlord may use, apply, or
retain the whole or any part of the security so deposited for the payment of any
such rent in default, or for any other sum which the Landlord may expend or be
required to expend by reason of Tenant's default including, without limitation,
any damages or deficiency in the reletting of the Premises, whether such damages
or deficiency shall have accrued before or after any re-entry by Landlord. If
any of the security shall be so used, applied or retained by Landlord at any
time or from time to time, Tenant shall promptly, in each such instance, on
written demand therefor by Landlord, pay to Landlord such additional sum as may
be necessary to restore the security to the original amount set forth in the
first sentence of this paragraph. If Tenant shall fully and faithfully comply
with all the terms, provisions, covenants,
-24-
32
and conditions of this Lease, the security, or any balance thereof, shall be
returned to Tenant upon the last to occur of the following events:
(a) The time fixed as the expiration of the Term;
(b) The removal of Tenant from the Premises;
(c) The surrender of the Premises by Tenant to Landlord in
accordance with this Lease;
(d) The time required for the Additional Rent to have been computed
by Landlord and paid by Tenant.
Except as otherwise required by law, Tenant shall not be entitled to any
interest on the security deposit. In the absence of evidence satisfactory to
Landlord to an assignment of the right to receive the security deposit or the
remaining balance thereof, Landlord may return the security deposit to the
original Tenant, regardless whether this Lease has been subsequently assigned by
Tenant. If Landlord transfers ownership of the Building during the Term,
Landlord shall also transfer Tenant's security deposit to the new owner and
Landlord shall thereafter be relieved of any liability for returning the
security deposit to Tenant.
23. COVENANT AGAINST LIENS. 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 Landlord's
title or interest in the Property, Building or Premises, and any and all liens
encumbrances created by Tenant shall attach to Tenant's interest only. Tenant
covenants and agrees no to suffer or permit any lien of mechanics or materialmen
or others to be placed against the Property, Building or the Premises with
respect to work or services claimed to have been performed for or materials
claimed to have been furnished
-25-
33
to Tenant or the Premises, and in case any such lien attaches, Tenant covenants
and agrees immediately to cause it to be released and removed.
24. MISCELLANEOUS
(a) No receipt of money by the Landlord from the Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the
Premises shall reinstate, continue or extend the Term or affect any such
notice, demand or suit.
(b) No waiver of any default of the Tenant hereunder shall be
implied from any omission by the Landlord to take any action on account of
such default if such default persists or is repeated, and no express
waiver shall affect any default other than the default specified in the
express waiver and then only for the time and to the extent therein
stated.
(c) The words "Landlord" and "Tenant" wherever used in the Lease
shall be construed to mean plural where necessary, and the necessary
grammatical changes required to make the provision hereof apply either to
corporations or individuals, masculine or feminine, shall in all cases be
assumed, as though in each case fully expressed.
(d) Each provision hereof shall extend to and shall, as the case may
require, bind and inure to the benefit of the Landlord and the Tenant and
their respective heirs, legal representatives, successors and assigns in
the event this Lease has been assigned with the express written consent of
the Landlord.
(e) Submission of this instrument for examination does not
constitute a reservation of or option for the Premises. The instrument
does not become effective as a lease or otherwise until executed and
delivered by both Landlord and Tenant.
(f) Unless otherwise provided in this Lease, all amounts owed by the
Tenant to the Landlord shall be paid within ten (10) days from the date
the Landlord renders statements of account therefor. All such amounts
(including Base Rent and Additional Rent) shall bear interest from the
date due until the date paid at the rate of 2% above the announced prime
rate of interest of the First National Bank of Chicago in effect on the
date of payment.
(g) All riders attached to this Lease and initialed by the Landlord
and the Tenant are hereby made a part of this Lease as though inserted in
this Lease.
(h) The paragraph headings are for convenience only and do not limit
or construe the contents of the paragraphs.
-26-
34
(i) If the Tenant shall occupy the Premises prior to the beginning
of the Term with the Landlord's consent, all the provisions of this Lease
shall be in full force and effect as soon as the Tenant occupies the
Premises.
(j) Should any Mortgage require a modification of this Lease, which
modification will not bring about any increased cost or expense to Tenant
or in any other way substantially change the rights and obligations of
Tenant, then and in such event, Tenant agrees that this Lease may be so
modified.
(k) The Tenant represents that the Tenant has not dealt with any
real estate broker in connection with this Lease, except for Xxxxxx &
Associates, whose fee shall be paid by Landlord, and that insofar as the
Tenant knows, no other broker negotiated this Lease or is entitled to any
commission in connection therewith. Tenant indemnifies and holds Landlord,
its beneficiaries and their respective agents and employees harmless from
all claims of any other broker or brokers in connection with this Lease.
(l) The Tenant agrees that from time to time upon not less than ten
(10) days prior request by the Landlord, the Tenant will deliver to the
Landlord a statement in writing certifying (i) that this Lease is
unmodified and in full force and effect (or if there have been
modifications that the same is in full force and effect as modified and
identifying the modifications), (ii) the dates to which the Rent and other
charges have been paid, and (iii) that so far as the person making the
certificate knows, the Landlord is not in default under any provision of
this Lease.
(m) The Tenant agrees that from time to time upon not less than ten
(10) days' prior request by the Landlord, the Tenant will deliver to
Landlord if requested of Landlord by a prospective lender or a prospective
purchaser of the Building, a letter of limited financial information,
including references.
(n) The Landlord's title is and always shall be paramount to the
title of the Tenant, and nothing herein contained shall empower the Tenant
to do any act which can, shall or may encumber such title.
(o) The laws of the State of Illinois shall govern the validity,
performance and enforcement of this Lease.
(p) If any term, covenant or condition of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application
of such term, covenant or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this lease shall
be valid and be enforced to the fullest extent permitted by law.
(q) Landlord shall have the right to adopt reasonable rules and
regulations pertaining to the Building which will be binding on the
Tenant.
-27-
35
(r) Tine is of the essence of this Lease, and all provisions herein
shall be strictly construed.
25. LANDLORD's LIABILITY. This Lease is executed by the undersigned
Landlord, not personally, but solely as Trustee as aforesaid, and it is
expressly understood and agreed by the parties hereto, anything herein to the
contrary notwithstanding, that each and all of the covenants, undertakings,
representations and agreements of the Trustee are not made individually, or for
the purpose of binding it personally, but this instrument is executed and
delivered by the Landlord as Trustee, solely in the exercise of the powers
conferred upon it as such Trustee under said trust agreement and no personal
liability or personal responsibility is assumed by, nor shall at any time be
asserted or enforced against the Landlord on account hereof, or on account of
any covenant, undertaking, representation or agreement herein contained, either
expressed or implied, all such personal liability, if any, being hereby
expressly waived and released by the parties hereto, and by all persons claiming
by or through or under said parties.
-28-
36
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date first above written.
LANDLORD
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, NOT PERSONALLY BUT AS TRUSTEE UNDER
TRUST AGREEMENT DATED FEBRUARY 14, 1983, AND
KNOWN AS TRUST NO. 56881.
By
-------------------------
Its -------------------------
ATTEST:
By -------------------------
Its -------------------------
TENANT
MOBIUS MANAGEMENT SYSTEMS, INC.
By -------------------------
Its -------------------------
ATTEST:
By -------------------------
Its -------------------------
-29-
37
EXHIBIT A
PLAN OF PREMISES
38
EXHIBIT B
LEGAL DESCRIPTION
Lots 18 to 22 both inclusive, in Block 11 in Canal Trustees' Subdivision of lots
and blocks in the South West 1/4 of Section 9, Township 39 North, Range 14 East
of the Third Principal Meridian, according to the Plat thereof recorded August
31, 1848 in Book 29 of Maps Page 52 (New Volume Page 24 and re-recorded
September 24, 1877 in Book 13 of Plats, Page 22) said Subdivision being also
known as part of original Town of Chicago Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00
Xxxx of the Third Principal Meridian, in Xxxx County, Illinois.
39
RIDER ATTACHED TO AND MADE A PART OF THAT CERTAIN LEASE DATED DECEMBER 20, 1993,
FOR A PORTION OF THE PROPERTY COMMONLY KNOWN AS 000 XXXX XXXXXX XXXXXX, XXXXXXX,
XXXXXXXX BY AND BETWEEN AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, NOT
INDIVIDUALLY, BUT AS TRUSTEE UNDER A TRUST AGREEMENT DATED FEBRUARY 14, 1983,
AND KNOWN AS TRUST AGREEMENT, LANDLORD AND MOBIUS MANAGEMENT SYSTEMS, INC., A
NEW YORK CORPORATION, TENANT.
R-1 USE OF TERMS; INCONSISTENCIES. All of the descriptive terms contained
in this Rider shall have the same meanings as those that are in the Lease. In
the event of any inconsistency between the provisions of this Rider and the
Lease, the provisions of this Rider shall prevail.
R-2 BASE RENT. Effective February 1, 1994, the Base Rent for the Premises,
shall be as follows:
Annual Base
Lease Period Base Rent Monthly Rent
------------ --------- ------------
February 1, 1994 -
January 31, 1995 $82,961.04 $6,913.42
February 1, 1995 -
January 31, 1996 $84,620.28 $7,051.69
February 1, 1996 -
January 31, 1997 $86,312.64 $7,192.72
February 1, 1997 -
January 31, 1998 $88,038.84 $7,336.57
February 1, 1998 -
January 31, 1999 $89,799.60 $7,483.30
R-3 OPERATING EXPENSE BASE AMOUNT. Effective February 1, 1994, the
Operating Expense Base Amount shall equal $4.30 per rentable square foot
(irrespective of whether the 1994 actual Operating Expenses are more or less
than $34.30 per rentable square foot). The Operating Expense Escalation Amount
(being the Tenant's Proportionate Share of the amount by which the actual
Operating Expenses incurred by Landlord for each Calendar Year exceeds the
Operating Expense Base Amount) for the period of February 1, 1994 thru December
31, 1994, shall be computed on the excess of the actual Operating Expenses for
1994 over the Operating Expense Base Amount, prorated for the period of February
1, 1994 thru December 31, 1994. Thereafter, the Operating Expense Escalation
Amount shall not exceed 106% on an annual cumulative basis of the 1994 actual
Operating Expenses.
R-4 RIGHT OF FIRST OPPORTUNITY If Tenant shall duly and faithfully perform
all of the terms, covenants and conditions of the Lease and so long as Tenant
has not notified
40
Landlord of its desire to assign the Lease or sublet all or any portion of the
Premises, Tenant shall have the right of first opportunity to lease space on the
third floor of the Building which is contiguous to the Premises if and when such
space becomes available for occupancy by other than the then existing occupant
of such space upon the basic terms set forth in Landlord's notice described in
the next sentence. Said right of first opportunity shall be exercisable by
written notice to Landlord within three days following Tenant's being notified
by Landlord that such space will be available, which notice shall set forth the
basic terms upon which Landlord is prepared to offer such space to a third
party, except that Tenants' right with respect to such space on the third floor
shall be subject to the leasing rights of Xxxxxxxx Consulting and the Fraternal
Order of Police with respect thereto, for a term expiring on January 31, 1999
or, if Tenant has exercised its option to extend pursuant to paragraph R-5
below, January 31, 2004 or January 31, 2009, as the case may be. If Tenant duly
exercises its right of first opportunity but Tenant does not sign and deliver to
Landlord an amendment to this Lease prepared by Landlord for said space within
three days after being furnished with same, then Tenant's right of first
opportunity shall be null and void.
R-5 RENEWAL OPTION. If Tenant shall duly and faithfully perform all of the
terms, covenants and conditions of this Lease and so long as Tenant has not
notified Landlord of its desire to assign the Lease or sublet all or any portion
of the Premises, Tenant shall have the right exercisable by giving written
notice to Landlord not later than October 31, 1998, to extent the Term of this
Lease for the five year period of February 1, 1999, to January 31, 2004, upon
the same terms and conditions as contained in the Lease, except that the Base
Rent for the Premises shall be at 95% of the then prevailing market rate for
comparable space in the Building as determined by the Landlord, the Additional
Rent shall be the same as then being offered by the Landlord for comparable
space in the Building (without any limitation on the Operating Expense
Escalation Amount). If Tenant shall duly and faithfully perform all of the
terms, covenants and conditions of this Lease and has exercised its option to
extend the Term of the Lease to January 31, 2004, and so long as Tenant has not
notified the Landlord of its desire to assign the Lease or sublet all or any
portion of the Premises, Tenant shall have the right exercisable by giving
written notice to Landlord not later than October 31, 2003, to extend the Term
of the Lease for the five year period of February 1, 2004 to January 31, 2009,
upon the same terms and conditions contained in the Lease, except that the Base
Rent for the Premises shall be at 95% of the then prevailing market rate for
comparable space in the Building as determined by Landlord, the Additional Rent
shall be the same as then being offered by Landlord for comparable space in the
Building (without any limitation on the Operating Expense Escalation Amount).
R-6 CANCELLATION OPTION. Provided that Tenant has fully performed all the
Terms and conditions of this Lease and Tenant has not leased any additional
space pursuant to paragraph R-4 above, Tenant shall have the option to terminate
the Lease effective as of January 31, 1997, exercisable by written notice to
Landlord no later than six months prior to the effective date of termination and
the payment by Tenant to Landlord with such notice of the sum of $20,000.00.
R-7 Landlord shall be responsible for the cost to prepare floor for
re-carpeting, recarpet and repaint the Premises.
-2-
41
Whenever reference is made in this Lease to the Term of Lease, the same shall
include the extension of the Term resulting from the exercise of the option
conferred upon Tenant hereunder unless the context requires otherwise. The
options of Tenant to extend set forth in this Paragraph R-5 shall include the
Premises and any additional space leased by Tenant pursuant to Paragraph R-4
above.
LANDLORD TENANT
AMERICAN NATIONAL BANK AND MOBIUS MANAGEMENT SYSTEMS,
TRUST COMPANY OF CHICAGO,
NOT PERSONALLY BUT AS TRUSTEE INC.
UNDER TRUST AGREEMENT DATED
FEBRUARY 14, 1983, AND KNOWN
AS TRUST NO. 56881.
By By
------------------------- -------------------------
Its Its
------------------------- -------------------------
-3-
