HIGHLAND LOFTS OFFICE LEASE
1. BASIC LEASE PROVISIONS
(a) BUILDING:
HIGHLAND LOFTS 000 Xxxx Xxxxxxxx Xxx. Elgin, Illinois 60120
(b) LANDLORD AND ADDRESS:
MARKUR DEVELOPMENT CORP., Agent
P.O. Box 671
Elgin, Illinois 60121
(c) TENANT AND CURRENT ADDRESS:
Prior to Commencement of Lease: After Commencement of Lease:
Synaptx Impulse, Inc. Synaptx Impulse, Inc.
(f/k/a Xxxxxxx Partners, Inc.) (f/k/a Xxxxxxx Partners,
Inc.)
000 Xxxxxxx Xxxx, Xxxxx X 000 X. Xxxxxxxx Xxx., Xxxxx
000
Xxxxx, XX 00000 Xxxxx, XX 00000
(d) DATE OF LEASE:. August 1, 1997.
(e) LEASE TERM: 7 years
(f) COMMENCEMENT OF TERM: January 1, 1998.
(g) EXPIRATION DATE OF TERM: December 3 1, 2004.
(h) BASE RENT, subject to adjustment as provided herein:
The Base Rent for the purpose of this Lease shall be
determined as follows:
Months Lease Year Total Per Month
1-12 1 $10,597.00
13-24 2 $10,975.53
25-36 3 $11,370.93
37-48 4 $11,766.13
49-60 5 $12,177.80
61-72 6 $12,603.13
73-84 7 $13,041.22
Xxxxxx agrees that the Base Rent for the first month of the
Lease Tenn shall be abated. However, in the event that this Lease
is terminated before expiration of the full term by a default of
the Tenant, then the rent hereby abated shall be deemed
reinstituted and immediately due and payable.
(i) MEASURABLE AREA OF THE PREMISES: 91,672 Measurable Square
Feet
(j) RENTABLE AREA OF THE BUILDING: 67, 865 Rentable Square Feet
(k) RENTABLE AREA OF THE DEMISED PREMISES: 19,760 Rentable Square
Feet
(l) GOOD FAITH DEPOSIT:
Twenty One Thousand One Hundred Ninety Four ($21,194.00)
Dollars of which $17,000.00 has been paid and balance is due
by September 1, 1997. The failure to make any such payment
shall be deemed an event of default hereunder. All of said
funds shall be held as the Security Deposit until the
termination of this Lease, whether by expiration of its term
or otherwise.
(m) -------------------------------------
(n) SECURITY FOR IMPROVEMENTS
Simultaneously with the execution of this Tenant will deliver
a bank irrevocable demand letter of credit ("LC") in favor of
Landlord as beneficiary thereunder in the original amount of Fifty
Thousand ($50,000.00) Dollars. The issuer, form and substance of
the LC shall be subject to Landlord's reasonable approval
consistent with the terms and conditions stated herein. The LC,
including any extensions or renewals shall be released if and when
the Tenant occupies the demised premises on or before January 31,
1998, and the Demised Premises are completed for occupancy on or
before January 31, 1998.
Any demand under the LC shall be accompanied by a certification
signed by an officer of MARKUR DEVELOPMENT CORP. as agent for the
Landlord that:
the Tenant has not occupied the premises by January 31, 1998 and
that all or a portion of said amount remains unpaid.
All funds received by Landlord shall be deemed to apply to the
Tenant's obligations under this Lease.
2. PREMISES. Landlord hereby leases to Tenant, and Xxxxxx
accepts the demised premises (hereinafter known as "demised
premises' or "premises'), being the entire third (3rd) floor of the
building having the common address of 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxx, XX (Building" or "Complete, as applicable) and described in
the plan attached hereto as Exhibit "N' in the Building described
in Subsection l(a) for the term and upon the conditions provided in
the Lease, to be occupied and used by the Tenant for general
offices and any other lawful purpose and no other purpose, subject
to the agreements herein contained. Landlord agrees that unless
Tenant shall consent thereto in writing in advance of the creation
of such other tenancy, during the Term of this Landlord will not
rent any portion of the remainder of the Building for any of the
following
uses:
massage parlors; pediatric ob/gyn doctors; music or dance
instruction; betting and gambling facilities; Laundromat or dry
cleaner with plant on premises; day care facilities; business
employing hazardous chemicals; taverns / bars which derive 65% of
income from the sale of alcoholic beverages,
3. TERM, The term of this Lease shall commence on the date
specified in Subsection l(f) (the "Commencement Date") and shall
expire on the date specified in Subsection I (g) (the "Expiration
Date!') unless sooner terminated as otherwise provided in this
Lease.
4. RENT. The Tenant shall pay Base Rent and as specified in
Subsection 1(h) to Landlord as identified or to such other person
or at such other place as Landlord may direct in writing, monthly
in advance on or before the first day of each month of the term
except that the Tenant shall pay the second such monthly
installment on the execution hereof as part of the Good Faith
deposit in Subsection 10). If the term commences other than on the
first day of a month or ends other than on the last day of the
month, the Base Rent for the third month shall be prorated, and
this prorated rent for the portion of the third month in which the
term commences shall be paid on the first day of the third month of
this lease term. All such base rent shall be paid without any set-
off or deduction whatsoever. Unpaid base rent shall bear interest
at the rate set forth in Subsection 27(f), from the date due until
paid. Time is of the essence of this Lease.
5. SERVICES. The Landlord, as long as the Tenant is not in
default under any of the covenants of this Lease, shall furnish:
(a) Heating, Ventilating and Air Conditioning ("HVAC")
Equipment when necessary to provide a temperature condition
required for comfortable occupancy of the demised premises
under normal business operations, daily from 7:00 A.M. to 8:00
P.M. and on Saturdays from 8:00 A.M. to 1:00 P.M., Sundays and
holidays excepted. Tenant at its own cost and discretion will
have control of certain HVAC Equipment including Library area
and will not be subject to "set basic' environmental controls.
For the purpose of this Lease the following shall be deemed to
be adequate for comfortable occupancy:
Summer 76' Fahrenheit with maximum 50% humidity
Winter 70' Fahrenheit with minimum 25% humidity
Wherever heat generating machines or equipment are used by
Tenant in the demised premises which affect the temperature,
otherwise maintained by the HVAC system, Landlord reserves the
right to install supplementary air-conditioning units in the
demised premises and the expense of installation shall be paid
by Xxxxxx. 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
reasonable rates fixed by Landlord. The Landlord agrees to
furnish heat to the demised premises, as required by law, on
business days from 7:00 AM. to 8:00 P.M., Saturdays from 8:00
A.M. to 1:00 P.M., Sundays and holidays excepted. If Tenant
requests Landlord to supply heat or air conditioning at times
other than such hours, then upon at least 24 hours advance
notice to Landlord, Landlord will supply the necessary heat or
air conditioning at rates set 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 demised 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 and based upon Landlord's reasonable computation of
any additional consumption based upon Tenant's activities for
water furnished for any other purpose. The Tenant shall not
waste or permit the waste of water. If the Tenant fails to
pay within ten (10) days the Landlord's proper charges for
water, the Landlord, upon not less than ten (10) days' notice,
may, in addition to any other remedy provided in this Lease,
discontinue furnishing that service and no such discontinuance
shall be deemed an eviction or disturbance of Tenant's use of
the demised premises or render Landlord liable for damages or
relieve
Xxxxxx's use of the demised premises or render Landlord
liable for damages or relieve Tenant from any obligation;
(c) Janitor service and customary cleaning in and about the
Building is allowed daily, Saturdays, Sundays and holidays
excepted. The Tenant shall provide any janitor services or
cleaning for the demised premises but subject to the
Landlord's written consent and then only subject to
supervision of Landlord and at Tenant's sole responsibility
and by janitor or cleaning contractor or employees at all
times satisfactory to Landlord. The Landlord will designate
the location for depositing of Tenant's refuse. The Tenant
will provide for the removal of any wastes reasonably deemed
by Landlord to be in excess of normal and customary for such
business purpose. Tenant will separate recyclable or other
wastes if required by local ordinance.
(d) Landlord will provide Tenant with after hours security
passes for use of the elevators. Passenger elevator service
in common with Landlord and other tenants, daily from 7:00
A.M. to 8:00 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 tenants, daily from 8:00 A.M.
to 5:00 P.M., Saturdays, Sundays and holiday excepted. Such
normal elevator service, passenger or freight, if furnished at
other times shall be optional with Landlord, which approval
shall not be withheld and shall never be deemed a continuing
obligation. The Landlord, however, shall provide limited
passenger elevator service daily at all times such normal
passenger service is not furnished. Operatorless automatic
elevator service shall be deemed "elevator service" within the
meaning of this paragraph. The passenger elevator shall be
used for passenger only and freight elevator for all other
purposes.
(e) Window washing of all windows on the exterior walls of
the Building located in the demised premises, both inside and
out, at such times as shall be required in the Landlord's sole
judgment; but such washing shall not be required more than
once every six months.
(f) It is understood that the parking areas are not
maintained or under the control of the Landlord. Tenant shall
be granted the right to use seventeen (17) of the fifty (50)
covered spaces in the adjacent parking lot which is owned by
the City of Elgin. Tenant recognizes and acknowledges that
such use has been made available for approximately three (3)
years from the time of Lease Commencement. All such parking
privileges may be subject to reasonable regulations of the
City or Landlord. Tenant acknowledges that Landlord has no
control over such parking privileges which are under the
authority of the City.
(g) All electricity used in the premises shall be separately
metered and the Tenant shall pay electric bills directly to
the local electric utility company. Maintenance of fighting
fixtures and replacement of lamps shall be furnished by
Landlord at Tenant's expense, but not less than once per
month, upon request of Tenant.
(h) 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,
alternations, 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 this Lease, except that Landlord
will forfeit base rent and any additional rent during such
period where occupancy is disrupted for more than three (3)
days.
(i) Tenant is granted the right to install signage in the
building lobby and listing signage on the face of the
building. Xxxxxxxx will assist Xxxxxx in gaining necessary
approval from the City. All of such signage shall be subject
to Landlord's written approval which shall not be unreasonably
denied or delayed.
6. CONDITION OF PREMISES. The Tenant's taking possession shall
be conclusive evidence as against the Tenant that the demised
premises were in good order and satisfactory condition when the
Tenant took possession. No promise of the Landlord to alter,
remodel, decorate, clean or improve the demised premises, the
Building or the Complex and no representation respecting the
condition of the demised premises, the Building or the Complex 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
rights to air over property.
7. FAILURE TO GIVE POSSESSION. If the Landlord shall be unable
to give possession of the demised premises on the date of the
commencement of the term hereof by reason of any of the following:
(i) the Landlord has not completed its preparation of the demised
premises, (ii) the Landlord is unable to give possession of the
demised premises by reason of the holding over or retention of
possession of any tenant, tenants or occupants, or (ii) for any
other reason, Landlord shall not be subject to any liability for
the failure to give possession on said date. In the event that the
Landlord is unable to deliver the demised premises for either of
the reasons listed as (i) or (ii) in the preceding sentence beyond
December 31, 1997, then Landlord shall pay Tenant the latter's
actual damages therefore, but only if attributable to an act or
omission of the Landlord. Under such circumstances the rent
reserved and covenanted to be paid herein shall not commence until
the demised premises are available for occupancy by Tenant, and no
such failure to give possession on the date of commencement of the
term hereof shall affect the validity of this Lease or the
obligations of the Tenant hereunder, nor shall the same be
construed to extend the term of this Lease. If the demised
premises are ready for occupancy prior to the date of the
commencement of the term hereof and Tenant occupies the premises
prior to said date, Tenant shall pay rental including amounts
stated in Section 5 for the period of occupancy prior to the date
of the commencement of the term hereof at the proportionate rental
to the rent reserved herein. The said demised premises shall not
be deemed to be unready for Tenant's occupancy or incomplete if
only minor or insubstantial details of construction, decoration or
mechanical adjustments remain to be done in the demised premises or
any part thereof, or if special work, changes, alterations or
additions required or made by Tenant in the layout or finish of the
demised premises or any part thereof or shall be caused in whole or
in part by Tenant through the delay of Tenant in submitting plans,
supplying information, approving plans, specifications or
estimates, giving authorizations or otherwise or shall be caused in
whole or in part by delay and/or default on the part of Tenant
and/or its subtenant or subtenants. In the event of any dispute as
to whether the premises are ready for Tenant's occupancy, the
decision of Xxxxxxxx's architect shall be final and binding on the
parties.
8. USE OF PREMISES. The Tenant shall occupy and use the demised
premises during the term for the purpose above specified in Section
2 and none other;
(a) The Tenant will not make or permit to be made any use of
the demised premises which conflicts with exclusive rights
granted to any other tenant or 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;
the Tenant shall not do, or pen-nit to be done, any act or
thing upon the demised premises which will be in conflict with
fire insurance policies covering the Building of which the
demised premises form a part. Landlord will notify Tenant of
any such exclusive rights, use of premise when granted to
other tenants within ten (10) days after such leases are
executed. 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 said premises, or bring
or keep anything thereon in violation of rules, regulations or
requirements of the Fire Department, local Inspection and
Rating Bureau, Fire Insurance Rating Organization or other
authority having jurisdiction and then only in such quantity
and manner of storage as not to increase the rate of fire
insurance application to the Building,
(b) any sign installed in the demised premises shall be
installed by Landlord at Tenant's cost and in such manner,
character and style as Landlord may approve in writing, which
approval shall not unreasonably be withheld.
(c) the Tenant shall 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 or complex for any
purpose other than that of business address of the Tenant, and
shall never use any picture or likeness of the Building or
Complex in any circulars, notices, advertisements or
correspondence without the Landlord's express consent in
writing nor in any way do anything to defame, demean or call
the Building, its managers, Landlords or tenants into
disrepute, bad taste or vulgarity;
(d) the Tenant or the Landlord shall 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) no bicycle or other vehicle, no dog or other animal or
bird shall be brought or permitted to be in the Building or
any part thereof,
(f) the Tenant or the Landlord shall not make or permit any
noise or odor that is objectionable to other occupants of the
Building to emanate from the demised premises, and shall not
create or maintain a nuisance thereon, and shall not disturb,
solicit or canvass any occupant of the Building or Complex,
and shall not do any act tending to injure the reputation of
the Building or Complex. Tenant shall not prepare or cook any
food upon the demised premises without Landlord's written
approval;
(g) the Tenant shall 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 approval in writing by 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) the Tenant shall not waste water by tying, wedging or
otherwise fastening open any faucet;
(i) no additional locks or similar devices shall be attached
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 by the Tenant. Upon termination of this
Lease or of the Tenant's possession, the Tenant shall
surrender all keys to the demised premises and shall make
known to the Landlord the explanation of all combination locks
of safes, cabinets and vaults of any such items remaining in
the demised premises as well as any security codes needed for
emergency access;
(j) the Tenant shall be responsible for the locking of doors
in and to the demised premises. Any damage resulting from
neglect of this clause shall be paid for by Xxxxxx;
(k) the Landlord shall at the Tenant's expense, install and
maintain all conduit and cable between (i) the Ameritech
Demarcation Board in the Building and (ii) an agreed point of
entry in the demised premises. Alternatively, Landlord may
authorize a third party contractor to provide this service on
an exclusive basis for the Building, in which case the Tenant
shall pay such contractor directly for such installation and
maintenance. The Tenant acknowledges that making building
cabling the responsibility of a single party is reasonable and
necessary to achieve security, efficiency, coordination and
accountability. Whether building cabling is undertaken by the
Landlord or an exclusive contractor, the Tenant agrees that
neither the Landlord nor the contractor shall be liable for
any loss, cost or damage suffered by the Tenant as a result of
cabling installation and maintenance except to the extent
caused by the negligence or willful misconduct of the party
doing such work and that any such claim shall be limited to
bodily injury, death or physical damage to property, the
Tenant hereby waiving and releasing any claim for
consequential damages resulting from an interruption of
service, except that Landlord will make building access
available on a 24 hours a day basis in case of disruption of
service.
(1) shades, draperies or other forms of inside window
covering must be of such shape, color and material as approved
and installed by the Landlord and shall remain in space at the
termination of the lease;
(m) the Tenant shall not overload any floor. Safes,
furniture and all large articles shall be brought through the
Building and into the demised 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 by the Landlord
before building employees will permit any article to be
removed;
(n) unless the Landlord gives advance written consent in each
and every instance, the Tenant shall not install or operate
any steam or internal combustion engine, boiler, machinery,
refrigerating or heating device or air-conditioning apparatus
in or about the demised premises, or carry on any mechanical
business therein, or use the demised premises for housing
accommodations or lodging or sleeping purposes, or do any
cooking therein or install or permit the installation of any
vending machines, (except for a refrigerator of less than 15
cu ft, a vending machine and a microwave oven in the employee
break room) 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 including firearms or other weapons;
(o) the Tenant shall not place or allow anything to be
against or near the glass or partitions, doors or windows of
the demised premises which may diminish the light in, or be
unsightly from the exterior of the Building, public halls or
corridors;
(p) the Tenant shall not install in the demised premises any
equipment which uses an unusual amount of electricity without
the advance written consent of the Landlord. "Unusual amount
of electricity" shall mean any one or all of the following:
(1) use of a lighting system which requires more electricity
than the standard lighting fixtures provided in the Building
by the Landlord; (2) the electrical load of electrical
equipment (other than lighting) used in the premises exceeding
an average of two xxxxx per square foot of the premises; (3)
electricity which is not at a nominal 120 volts; (4)
electrical circuits with a capacity exceeding 20 amperes; (5)
electricity used for equipment and/or accessories not normal
for ordinary office use. If Landlord consents to such use of
an unusual amount of electricity, the Tenant shall ascertain
from the Landlord the maximum amount of electrical current
which can safely be used in the demised premises, taking into
account the capacity of the electric wiring in the Building
and the demised premises and the needs of the 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 relieve the Tenant from the obligation not
to use more electricity than such safe capacity;
(q) in addition to all other liabilities for breach of any
covenant of this Section 8, the Tenant shall pay to the
Landlord all damages caused by such breach and shall also pay
to the Landlord as additional rent an amount equal to any
increase in insurance premium or premiums caused by such
breach. Any violation of this Section 8 may be restrained by
injunction. The Tenant shall be liable to the Landlord for
all damages resulting from violation of any of the provisions
of this Section 8. The Landlord shall have the right to make
such reasonable rules and regulations as the Landlord or its
agent may from time to time adopt on such reasonable notice to
be given as the Landlord may elect. Nothing in this Lease
shall be construed to impose upon the Landlord any duty or
obligation to enforce provisions of this Section 8 or any
rules and regulations hereafter adopted, or the terms,
covenants or conditions of any other lease as 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, visitors or licensees.
9. CARE AND MAINTENANCE. Subject to the provisions of Section
13, the Tenant shall, at the Tenant's own expense, keep the demised
premises in good order, condition and repair during the term. If
the Tenant does not make repairs promptly and adequately, the
Landlord may, but need not, make repairs, and the Tenant shall
promptly pay the cost thereof 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 demised premises are
not made during ordinary business hours at the Tenant's request.
10. ALTERATIONS. There shall be no painting or decorating, carpet
installation, or erection of any partitions, any alterations in or
additions to the demised premises or any nailing, boring or
screwing into the ceilings, walls or floors, without the Landlord's
prior written consent in each and every instance which shall not be
unreasonably withheld. All such work shall be performed by or
under the direction of Landlord, but at the cost of Tenant. The
Landlord's decision to refuse such consent shall be conclusive.
All additions, decorations, fixtures, hardware, non-trade fixtures
and all improvements, temporary or permanent, in or upon the
demised premises, whether placed there by the Tenant or by the
Landlord, shall, unless the Landlord requests their removal, become
the Landlord's property (Tenant will supply Landlord with a
Schedule of such items to be included, within 60 days after
occupancy by Tenant) and shall remain upon the demised 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 for removal, 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.
11. ACCESS TO PREMISE:. The Tenant shall permit the Landlord to
erect, use and maintain pipes, ducts, wiring and conduits in an
through the demised premises. The Landlord and Landlord's
agents shall have the right to enter upon the premises, to inspect
the same, to perform janitorial and
cleaning services and to make such decorations, repairs,
alterations, improvements or additions to the common areas of the
premises, the Building or the Complex as the Landlord may deem
necessary or desirable, and the Landlord shall be allowed to take
all material into and upon said demised 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 in no way
xxxxx (except as provided in Section 12) while said decorations,
repairs, alterations, improvements, or additions are being made, by
reason of loss or interruption of business of the Tenant, or
otherwise, except that to the extent feasible, work that is
disruptive to tenant's business due to noise, dirt, dust, fumes and
the like shall be scheduled and performed during non-business
hours. If the Tenant shall not be personally present to open and
permit an entry into said demised premises, at any time, when for
any reason an entry therein shall be necessary or permissible, the
Landlord or Landlord's agent may enter the same by a master key, or
may forcibly enter the same, without rendering the Landlord or such
agents liable therefore (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, the Complex 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. UNTENANTABILITY. If 50% of the demised premises or 25% or
more of the Rentable
Area of the Building is made untenantable by fire water damage 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) proceed with all due diligence to repair, restore or
rehabilitate the Building or the
demised premises, in which event this Lease shall not
terminate.
In the event the Lease is not terminated pursuant to this
provision, rent shall xxxxx on a per them basis during the period
of untenantability. In the event of the termination of this Lease
pursuant to this section, rent shall be apportioned on a per them
basis and paid to the date of the fire or other casualty. In the
event that the demised 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 hereof, proceed with
all due diligence to repair and restore the demised premises in a
good and workmanlike manner and the rent shall xxxxx in proportion
to the nonusability of the demised premises during the period of
untenantability which repairs shall be subject to Tenant's
reasonable approval. If a portion of the demised premises are made
untenantable as aforesaid during the last year of the term hereof,
Landlord or Tenant shall have the right to terminate this Lease as
of the date of the fire or other casualty by giving written notice
thereof to the other within thirty (3 0) days after the date of
fire or other casualty, in which event, the rent shall be
apportioned on a per them basis and paid to the date of such fire
or other casualty.
In the event the premises or the Building is damaged by fire
or other casualty resulting from the act or neglect of Tenant, its
agents, contractors, employees or invitees, Tenant shall not be
released from any of its obligations hereunder including, without
limitation, its duty to repair the premises and its liability to
Landlord for damages caused by such fire or other casualty and its
duty to pay rent, which rent shall not be abated. Tenant
acknowledges that Landlord shall be entitled to the full proceeds
of any insurance coverage, whether carried by Landlord or Tenant,
for damage to alterations, additions, improvements or decorations
provided by Landlord at Landlord's expense either directly or
through an allowance to Tenant (whether by rent abatement or
otherwise).
Notwithstanding anything to the contrary herein set forth,
Landlord shall have no duty pursuant to this Section 12 to repair
or restore any portion of the alterations, additions or
improvements in the premises or the decorations thereto except to
the extent that such alterations, additions, improvements and
decorations were provided by Landlord, at Landlord's cost, at the
beginning of the term or during the term of this lease if the
aggregate cost thereof exceeded $1,000.00.
13. INSURANCE.
(a) The Landlord shall maintain insurance covering the
Complex (including
Landlord's Work in the Premises) against loss, damage or
destruction by fire and the
perils specified in the standard extended coverage
endorsement.
(b) Tenant, at Tenant's expense, shall purchase and maintain
insurance during the entire term of the Lease for the benefit
of Tenant and Landlord (as their interest may appear) with
terms, coverage and in companies satisfactory to Landlord.
Tenant agrees to adjust the amounts or type of coverage set
forth herein if the customs or standards in the office leasing
community change during the term of this Lease, but initially
Tenant shall maintain the following coverage in the following
amounts: (i) Commercial General Liability Insurance on an
occurrence basis with a minimum limit of liability in an
amount of $1,000,000 for bodily injury, personal injury, or
death to any one person and $1,000,000 for bodily injury,
personal injury or death to more than one person, and
$1,000,000 with respect to damage to property including water
and sprinkler damage for each occurrence; (ii) insurance
against fire, with extended coverage and vandalism and
malicious mischief endorsements, in an amount adequate to
cover the full replacement value of all leasehold
improvements, Tenant's personal property, machinery,
equipment, moveable partitions, office furniture, trade
fixtures, and wall and floor coverings in the premises. Such
insurance shall be written on an "all risks" of physical loss
or damage basis, for the full replacement cost value of the
covered items and in amounts that meet any coinsurance clauses
of the policies of insurance; and (iii) Workmen's Compensation
insurance in not less than the statutory amounts outlined by
the State of Illinois.
(c) The policy referred to in Subsection 13(b) (i) shall name
Landlord, the beneficiaries of Landlord and their respective
agents and employees as additional insureds and shall not
provide for deductible amounts in excess of $1,000.00. Each
policy referred to in Subsection 14 (b) shall be issued by one
or more responsible insurance companies reasonably
satisfactory to Landlord and shall contain the endorsement
that such insurance may not be canceled or amended without
thirty (30) days' prior written notice to Landlord and its
beneficiaries.
(d) Tenant shall deliver to Landlord certificates of
insurance of all policies and renewals thereof to be
maintained by Tenant hereunder, not less than ten (10) days
prior to the commencement of the term and not less than ten
(10) days prior to the expiration date of each policy.
14. SUBROGATION. The parties hereto agree to use good faith
efforts to have any and all fire, extended coverage or any and all
material damage insurance which may be carried endorsed with a
subrogation clause providing substantially as follows: "This
insurance shall not be invalidated should the insured waive in
writing prior to a loss any or all fight to recovery against any
party for loss occurring to the property described herein"- and
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 such to the limitation
that this waiver shall apply only when it is either permitted or,
by the use of such good faith efforts could have been so permitted
by the applicable policy of insurance.
15. EMINENT DOMAIN: if the Building, or a substantial part
of the demised 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. Tenant has the right to assert any claim(s) available
under applicable law. Current rent shall be apportioned as of the
date of such termination. If any part of the Building, other than
the demised premises or any part of the Building not constituting
a substantial part of the demised premises, shall so be 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 (90) days notice
prior to the date of cancellation designated in the notice. 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.
16. ASSIGNMENT-SUBLETTING. (a) Tenant shall not assign,
hypothecate, mortgage, encumber, or convey this Lease or any
interest under it; allow any transfer thereof or any lien upon
Tenant's interest by operation of law or otherwise; sublet the
whole or any part of the demised premises; or permit the use of the
demised premises by anyone other than Tenant and its employees,
independent freelance contractors, Tenant's parent company
employees or employees of any of its subsidiaries, so long as under
Xxxxxx's supervision utilized for a similar use.
If Tenant is a corporation, any dissolution, merger,
consolidation or reorganization of Tenants, parent company or the
sale or transfer of a controlling percentage of the capital stock
of Tenant, whether by a single transaction or event or by
cumulative transactions or events shall be deemed an assignment of
this Lease, and shall be subject to the restrictions set forth
above. If Tenant is a partnership, a withdrawal or change,
voluntary, involuntary or by operation of law, of any partner or
partners owning 5 1% or more of the partnership interest, whether
by a single transaction or event or by cumulative transactions or
events, or the dissolution of the partnership shall be deemed an
assignment of the Lease and shall be subject to the restrictions
set forth above.
(b) Tenant shall not sublet the whole or any part of the
premises without Xxxxxxxx's prior written consent. In the event
Tenant intends to sublease all or any portion of the premises,
Tenant shall take the following actions:
(i) Tenant shall first notify Landlord in writing of its
intention to sublet prior to any advertising of same,
hiring of brokers or contacting of potential subtenants.
Such notice shall identify the space proposed to be
sublet, which space must be a legally leasable unit in
compliance with all applicable ordinances and codes, and
shall state the date on which Tenant requests that the
sublet commence, which date shall be no less than one
hundred eighty (180) days from the date of Tenant's
notice.
(ii) Landlord shall have thirty (30) days following the
receipt of such notice to notify Tenant whether it elects
to recapture the space Tenant has proposed to sublet.
Xxxxxxxx's failure to send such notice within such thirty
(30) day period shall be deemed to mean Landlord has not
elected to recapture the space.
(iii) In the event the Landlord elects to recapture
the space, it shall notify Tenant of its intent by
service of a written notice of cancellation terminating
that portion of the Lease covering the space Landlord has
chosen to recapture, which may include all or any lesser
portion of the space Tenant has proposed to sublet. In
such event Xxxxxxxx agrees that the space not recaptured
by Landlord shall be a legally leasable unit. Landlord
and Tenant shall pay 50% of all costs of any construction
necessary to accomplish the division of the space. The
termination of the Lease as to the recaptured space shall
be effective on the date specified by the Tenant in its
notice pursuant to Subsection 16 (i) and (ii).
(iv) In the event that Landlord elects to recapture any
proposed sublet space under these provisions, the Base
Rent, Rentable Area of the Premises and Measurable Area
of the Premises as provided in Section I above shall be
adjusted as of the termination date designated in the
cancellation notice, referred to in the first sentence of
the preceding sub-paragraph (iii) above and this Lease as
so amended shall continue thereafter in full force and
effect.
(v) In the event that the Landlord elects not to
recapture part or all of the proposed sublet space,
Landlord shall so notify Tenant as set forth in (ii)
above. Provided Tenant is not in default under the Lease
and has fully complied with the terms of this Section 16,
Tenant may then proceed to contact potential subtenants
and shall have the option to sublet the non-recaptured
space in accordance with the following provisions:
(A) Tenant shall bear all costs and expenses associated
with the subletting including, without limitation, any
and all costs and expenses incurred by Landlord (if any).
(B) Upon locating a suitable potential subtenant, Tenant
shall notify Landlord in writing. Such notice shall
state the name and address of the proposed subtenant and
shall include a true and complete copy of the proposed
sublease. Tenant shall also deliver to Landlord copies
of all financial statements, credit reports and other
such information in its possessions relating to the
prospective subtenant. At Landlord's request, Tenant
shall promptly secure and deliver any additional
information Landlord deems necessary in order to evaluate
the potential subtenant.
(C) Landlord shall have fifteen (15) days from the date
of its receipt of the last information provided by Xxxxxx
on the proposed subtenant during which to evaluate such
subtenant and decide whether to consent to the sublease.
Landlord shall notify Tenant of its decision in writing,
and, in the event that Landlord does not consent to the
sublease, its notice thereof to Tenant shall include an
explanation of its reasons for denying consent. In the
event that Landlord consents to the sublease, Xxxxxx may
execute the sublease and collect all rents due thereunder
subject to the provisions of subparagraph (D) below and
subject to the subtenant's agreement to comply with all
the terms of this Lease as they apply to the sublet
space.
(D) Following the execution of any sublease to which
Landlord has consented and throughout the term thereof,
Tenant shall pay Landlord fifty percent (50%) of all
amounts received by Tenant in connection with subletting
in excess of the rent for the sublet space Tenant is
obligated to pay Landlord hereunder, but only after
Xxxxxx has recaptured its incremental costs and expenses
associated with affecting the sublease including any
construction costs.
(E) The use for which the premises or any part thereof
may be sublet shall be only for lawful office use which
is in keeping with the general character of the Building
and Complex, which is not extra-hazardous on account of
fire and which does not conflict with exclusive rights
granted to any other tenant.
(F) The granting consent by Landlord to Tenant for
subletting of the premises or any part thereof shall not
release Tenant from direct and primary liability under
this Lease for the performance of all of the covenants,
duties and obligations of Tenant hereunder, and Landlord
shall retain its rights to enforce the provisions of this
Lease against Tenant or any subtenant without demand upon
or proceeding in any way against any other person.
Consent to a particular sublease shall not be deemed a
consent to any other or subsequent transaction.
17. XXXXXX OF CLAIMS AND INDEMNITY. To the extent permitted by
law, the Tenant releases the Landlord, its beneficiaries, and their
respective agents and servants from, and waives all claims for,
damage to person or property sustained by the Tenant or any
occupant of the Building, Complex or premises resulting from the
Building, Complex 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 Complex, or resulting
directly or indirectly from any act or neglect of any tenant or
occupant of the Building or Complex or of any other person,
including Landlord's agents and servants excluding willful acts or
gross negligence of Landlord, its servants or agents. This Section
17 shall apply especially, but not exclusively, 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 the
Landlord or of other tenants, occupants or servants in the Building
or Complex or of any other person, and whether such damage be
caused or result from any thing or circumstance above mentioned or
referred to, or any other thing or circumstance whether of a like
nature or of a wholly different nature excluding willful acts or
gross negligence of Landlord, its servants or agents. If any such
damage, whether to the demised premises or to the Building or
Complex or any part thereof, or whether to the Landlord or to other
tenants in the Building or Complex, results from any willful or
gross negligence 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, the Complex 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.
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
Xxxxxx's occupancy of the demised 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 demised
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 counsel
reasonably satisfactory to Landlord.
Landlord agrees to indemnify and save the Tenant, 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
Landlord's ownership of the demised premises or from any breach or
default on the part of Landlord in the performance of any covenant
or agreement on the part of Landlord to be performed pursuant to
the terms of this Lease, or from any act or negligence of Landlord,
its agents, servants, employees or invitees, in or about the
demised premises. In case of any action or proceeding brought
against Tenant, its beneficiaries, or their respective agents or
employees by reason of any such claim, upon notice from Tenant,
Landlord covenants to defend such action or proceeding by counsel
reasonably satisfactory to Tenant.
18. MORTGAGE-GROUND LEASE. Landlord may execute and deliver a
mortgage or trust deed in the nature of a mortgage, both sometimes
hereinafter referred to as "Mortgage" against the Building, the
Complex or any interest thereon, and may sell and lease back the
underlying land on which the Building is situated, or which forms
a part of the Complex. This Lease and the rights of Tenants
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. Xxxxxx 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. So long as Tenant's rights to continued use of demised
premises pursuant to this Lease, are not adversely affected.
Should any Mortgage affecting the Building or Complex be foreclosed
or if any ground or underlying lease be terminated:
(a) The liability of the mortgagee, trustee or purchaser at
such foreclosure sale or the liability of a subsequent
Landlord designated as Landlord under this Lease shall exist
only so long as trustee, mortgagee, purchaser or Landlord is
the owner of the Building or Complex and such liability shall
not 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 or underlying
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 atonement.
Tenant covenants and agrees to give any mortgagee and/or trust
deed holder, by Certified or Registered Mail, a copy of any notice
of default served upon the Landlord, provided that prior to such
notice Tenant has been notified in writing, (by way of notice of
assignment of rents and leases, or otherwise) of the address of
such mortgagee and/or trust deed holder with specific reference
made to this Section 18 of this lease which shall be repeated in
such letter. Tenant further covenants and agrees that if Landlord
shall have failed to cure any default within thirty (30) days after
Tenant gives notice of the default, the mortgagee and/or trust deed
holder shall have an additional thirty (30) days within which to
cure such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within such
thirty (30) days, any mortgagee and/or trust deed holder has
commenced and is diligently pursuing the remedies to cure such
default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event the
Lease shall not be terminated while such remedies are being so
diligently pursued.
19. CERTAIN RIGHTS RESERVED BY THE LANDLORD. The Landlord
reserves and may exercise the following rights without affecting
Tenant's obligations hereunder:
(a) to change the name or street address of the Building or
Complex;
(b) to install and maintain a sign or signs on the interior
or exterior of the Building or Complex;
(c) to have access for the Landlord and other tenants of the
Building to any mail chutes located on the demised premises
according to the rules of the United States Post Office;
(d) to designate all sources furnishing sign painting and
lettering, unless Landlord maintains all toilets within Base
Rent, lamps and bulbs used on the demised premises,
(e) to decorate, remodel, repair, alter or otherwise prepare
the demised premises for reoccupancy if Tenant vacates the
demised premises prior to the expiration of the term;
(f) to retain at all time pass keys to the demised premises;
(g) to grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building or Complex
with the exception of Paragraph 2;
(h) to exhibit the demised premises to others upon
commercially reasonable allowance notice;
(i) to close the Building after regular working hours and on
the legal holidays subject, however, to Xxxxxx's right to
admittance, under such reasonable regulations as Landlord may
prescribe from time to time, which may include by way of
example but not of limitation, 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;
0) 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, decorations, additions and improvements
to the premises, the Building or to the Complex, as may be
necessary or desirable for the safety, protection or
preservation of the demised premises, the Building or the
Complex or the Landlord's interest, or as may be necessary or
desirable in the operation of the Building or Complex.
The Landlord may enter upon the demised 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, subject to Landlord's reasonable
notice thereof
20. HOLDING OVER. If the Tenant retains possession of the demised
premises or any part thereof after the termination of the term or
any extension thereof, by lapse of time or otherwise, the Tenant
shall pay the Landlord the monthly rent, at double the rate payable
for the month immediately preceding said holding over (including
amounts for Taxes and Expenses, as applicable), 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, Tenant shall pay the Landlord all damages
in excess of said rent, taxes and expenses as included in this
Section, consequential as well as direct, sustained by reason of
the Tenant's retention of possession. Alternatively, at the
election of Landlord expressed in a written notice to the Tenant
and not otherwise, such retention of possession shall constitute a
renewal of this Lease for one (1) year, on the same terms and
conditions, except that the rent shall be the greater of market or
125% of the latest rent plus all adjustments applicable for such
year in accordance with Section 5 hereof The provisions of this
paragraph do not exclude Landlord's rights or re-entry or any other
right hereunder.
21. 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 any involuntary action or proceeding under any
section or section 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 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 Base Rent specified in Section I of this
Lease, as adjusted, pursuant to Section 5, for the residue of
the stated term thereof, less the present value of the fair
rental value of the premises for the residue of the stated
term.
(b) 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 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,
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.
(c) Upon any 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 or without
process of law and to repossess the premises 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 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
right to rent or any other right given to the Landlord
hereunder or by operation of law.
(d) If the Tenant abandons the premises or otherwise entitles
the Landlord so to elect, and 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 premises, remove the Tenant's sign and other evidences' of
Tenant and take and hold possession thereof as in Subsection
(c) of this Section 21 provided, 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 the Base Rent specified in Section I of
this Lease as adjusted in accordance with Section 5, for the
residue of the stated term plus any other sums then due
hereunder less the present value of the fair rental value of
the demised premises for such period. In the alternative,
upon and after entry into possession without termination of
the Lease, the Landlord shall use its best efforts to relet
the premises or any part thereof for the account of the Tenant
to any person, firm or corporation 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 observe any instruction given by the Tenant about
such reletting. In any such case, the Landlord may make
repairs, alterations and additions in or to the premises, and
redecorate the same to the extent deemed by the Landlord
necessary or desirable, and 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 costs 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. If the Landlord, in
attempting to mitigate the damages caused by Xxxxxx's removal
from the premises, leases to another entity ("New Lease") for
longer than the remainder of the term of this Lease, the
rental for the remainder of the term of this Lease for
purposes of this Section shall be deemed to be the average
rental payments under the New Lease for the remainder of the
term of this Lease. "Average rental payments under the New
Lease" shall be deemed to mean rental payments (net of
abatements and rent credits) under the New Lease, after
deducting the costs of leasing the demised premises,
including, but not limited to, expenses incurred in repairing,
altering or redecorating the premises, broker's costs, and
attorney's fees in connection with the New Lease, divided by
the number of months in the New Lease. All rentals and other
costs under the New Lease shall be discounted to the due dates
of payments due under this Lease, at the prime rate then in
existence at The First National Bank of Chicago or bank of
similar size if The First National Bank of Chicago is no
longer in existence at the time this provision becomes
operational. Notwithstanding anything in this subsection to
the contrary, in no event shall Landlord be required to pay
Tenant any excess of the rent it receives under the New Lease
over the rent hereunder.
(e) The Tenant hereby constitutes and irrevocably appoints
any attorney of any court to be the true and lawful attorney
of the Tenant, and, in the name, place and stead of the
Tenant, to appear for and on behalf of the Tenant in any court
of record at any time, and from time to time, after default
hereunder in any suit or suits brought against the Tenant for
the enforcement of any rights hereunder by the Landlord, to
waive the issuance and service of process and trial by jury,
and, from time to time, to confess judgment or judgments in
favor of the Landlord and against the Tenant for any rent and
interest thereon due hereunder by the Tenant to the Landlord,
for costs of suit and for a reasonable attorney's fee in favor
of the Landlord to be fixed by the court, and to release all
errors that may occur or intervene in such proceedings,
including the issuance of execution upon any such judgment,
and to stipulate that no appeal shall be prosecuted from such
judgment or judgments, or that no proceedings in chancery or
otherwise shall be filed or prosecuted to interfere in any way
with the operation of such judgment or judgments or of any
execution issued thereon or with any supplemental proceedings
taken by the Landlord to collect the amount of any such
judgment or judgments, and to consent that execution on any
judgment or decree in favor of the Landlord against the Tenant
may issue forthwith.
(f) 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 in 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 bill of sale without further payment or credit by
the Landlord to the Tenant.
(g) 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 demised
premises and relet the same under order of court. In addition
to any statutory lien for rent in Landlord's favor, Landlord
shall have and Tenant hereby grants to Landlord a continuing
security interest for all rentals and other sums of money
becoming due hereunder from Tenant upon all goods, wares,
equipment, fixtures, furniture, inventory, accounts, contracts
rights, chattel paper and other personal property of Tenant
situated on the Premises, and such property shall not be
removed therefrom without the consent of Landlord until all
arrearages in rent as well as any and all other sums of money
then due to Landlord hereunder shall first have been paid and
discharged. In the event of a default under this Lease,
Landlord shall have, in addition to any other remedies
provided herein or by law including without limitation the
right to sell the property described in this Article at public
or private sale upon five (5) days' notice to Tenant. Tenant
hereby agrees to execute such financing statements and other
documents necessary or desirable in Landlord's discretion to
perfect the security interest hereby created. Any statutory
lien for rent is not hereby waived, the express contractual
lien herein granted being in addition and supplementary
thereto.
(h) The Tenant shall pay upon demand all the Landlord's
costs, charges and expenses, including the fees of counsel,
agents and others retained 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 specifically including, without limitation, any
litigation required by Landlord to enforce its rights or
remedies pursuant to this Lease.
22. DEFAULT UNDER OTHER LEASE. If the term of any lease, other
than this Lease, made by the Tenant for any demised premises in the
Building or Complex 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 option, to terminate this Lease by notice to the
Tenant.
23. SURRENDER OF POSSESSION. Upon the expiration or other
termination of the term of this Lease, Tenant shall quit and
surrender to Landlord the premises, broom clean, in good order and
condition, ordinary wear excepted, and Tenant shall remove all of
its property. Landlord shall remove all telephone and other
communication cable from the plenum areas, wall cavities and rises
at Tenant's expense.
If the Tenant does not remove its property of every kind and
description from the demised premises prior to the end of the term,
however ended, the Tenant shall be conclusively presumed to have
conveyed the same to the Landlord under this Lease as a bill 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.
Not later than sixty (60) days before this Lease terminates or
Tenant vacates the premises, Tenant shall give Landlord written
notice of its intended departure and shall schedule a joint
inspection with Landlord -of the premises in preparation for
Tenant's vacating of the premises. At such joint inspection,
Landlord shall prepare a list of the following items for Tenant to
resolve before vacating the premises:
1) repairs and restorations that will need to be made to the
premises before vacating, if any;
2) equipment and/or fixtures that may be removed, and a
procedure that must be followed in order to remove such items
from the Building, which may include a "check out" procedure
with an employee of Landlord at the Building;
3) equipment and/or fixtures that may not be removed from
the premises because they rightfully belong to Landlord.
Tenant shall have ten (10) days after receipt of said list
from Landlord to notify Landlord of any discrepancies it notes on
said Est. If Tenant does not so notify Landlord, said list shall
be binding on Tenant, and shall be binding upon Landlord except to
the extent that, because of hidden problems, Landlord could not
reasonably ascertain whether certain repairs and/or restoration
would be needed until vacating of the premises. In any event, if
Xxxxxx fails to arrange such joint inspection, any list of needed
restoration or repairs prepared by Landlord as a result of
Landlord's inspection at or after Xxxxxx's vacating the premises
shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of the term of this
Lease.
24. NOTICES. Notices shall be in writing.
(a) Notices shall be effectively served by Landlord upon
Tenant if addressed to Xxxxxx's
President, General Manager, or Chief Financial Officer in any
one of the following manners:
(i) By delivery to Tenant, or a representative of Tenant; or
(ii) By forwarding through Certified or Registered Mail,
postage prepaid, to Tenant at the address shown in Subsection
l(c), in which case the time of mailing shall be the time of
notice.
(b) Notices shall be effectively served by Tenant upon
Landlord when addressed to
Landlord and served either:
(i) Upon an officer of Landlord; or
(ii) -----------------
(iii) By forwarding through Certified or Registered Mail,
postage prepaid, to Landlord at the address shown in
Subsection l(b).
The addresses for notices shall be those addresses shown in
Section I or if notified in writing of another address by either
party, at such latter address. light, (subject to Tenant's
reasonable approval) upon thirty (30) days written notice, to
relocate Tenant to another location in the Complex at no cost or
expense to Tenant and upon the condition that the new premises
designated by Landlord shall be substantially as desirable as the
demised premises with respect to layout and location and shall not
be smaller in area than the demised premises.
26. GOOD FAITH DEPOSIT. Xxxxxx agrees to deposit with Xxxxxxxx,
upon the execution of this Lease, the sum set forth in Subsection
I (I) above as security for the full and faithful performance by
Tenant of each and every term, provision, covenant, and condition
of this Lease. Landlord shall have no obligation to segregate the
amount so deposited from its other funds. 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
Adjusted Monthly Base 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 demised premises, whether such damages or
deficiency shall have accrued before or after any re-entry by
Landlord. If any of the deposit 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 deposit to the original amount set forth in
Subsection 1(m). If Tenant shall fully and faithfully comply with
all the terms, provisions, covenants, and conditions of this Lease,
the deposit, or any balance thereof, shall be returned to Tenant
after the following:
(a) the time fixed as the expiration of the term of this
Lease;
(b) the removal of Tenant from the demised premises;
(c) the surrender of the demised premises by Tenant to
Landlord in accordance with this Lease; and
(d) the time required for any other charges due pursuant to
the Lease to have been computed by Xxxxxxxx and paid by
Xxxxxx.
Except as otherwise required by law, Tenant shall not be
entitled to any interest on the aforesaid deposit. If the absence
of evidence satisfactory to Landlord of an assignment of the right
to receive the deposit or the remaining balance thereof, Landlord
may return the deposit to the original Tenant, regardless of one or
more assignments of this Lease. If Xxxxxx receives notice of sale
of the Building or Complex and a notice to atorn to the new
Landlord, it shall look solely to the new Landlord for return of
the deposit.
27. 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 demised premises shall
reinstate, continue or extend the term of this Lease 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 be
repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only
for the time and to the extent therein stated.
(c) The words "Landlord" and "Tenant", wherever used in this
Lease shall be construed to mean plural where necessary, and
the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals,
men or women, 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
representative, 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 Xxxxxx.
(f) All amounts (unless otherwise provided herein, and other
than the Adjusted Monthly Base Rent, which shall be due as
hereinbefore provided) owed by the Tenant to the Landlord
hereunder shall be deemed additional rent and be paid within
ten (10) days from the date the Landlord renders statements of
account therefor. All such amounts (including Adjusted
Monthly Base Rent and additional rent) shall bear interest
from the date due until the date paid at the rate of 2% above
the prime rate of interest of The First National Bank of
Chicago in effect on the date of payment, or at the maximum
legal rate of interest, allowed by law, if such maximum legal
rate is applicable and lower.
(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 headings of sections are for convenience only and do
not limit or construe the contents of the sections.
(i) If the Tenant shall occupy the premises prior to the
beginning of the term of this Lease 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, leasehold or otherwise, require a
modification or modifications of this Lease, which
modification or modifications will not bring about any
increased cost or expense to Tenant or in any other way
substantially change the rights and obligations of Tenant
hereunder, then and in such event, Xxxxxx agrees that this
Lease may be so modified.
(k) The Tenant represents that the Tenant has dealt directly
with and only with NONE as broker in connection with this
Lease, 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 who
claim to have dealt with Tenant in connection with Lease.
(1) 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
(a) 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), (b) the dates to which the rent and other
charges have been paid, and (c) that so far as the person
making the certificate knows, the Landlord is not in default
under any provisions of this Lease.
(m) 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.
(n) The laws of the State in which the demised premises are
located shall govern the validity, performance and enforcement
of this Lease.
(o) 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 enforced to the fullest extent permitted by law.
(p) Xxxxxxxx and Xxxxxx agree that to the extent permitted by
law, each shall and hereby does waive trial by jury in any
action, proceeding or counterclaim brought by either against
the other on any matter whatsoever arising out of or in any
way connected with this Lease.
(q) There are no oral agreements between Landlord and Tenant
affecting this Lease, and this Lease supersedes and cancels
any and all previous negotiations, arrangements, brochures,
agreements and understandings, if any, between Landlord and
Tenant or displayed by Landlord to Tenant with respect to the
subject matter of this Lease.
(r) In the event the original Landlord hereunder, or any
successor Landlord of the Complex, shall sell or convey the
Complex, all liabilities and obligations on the part of the
original Landlord, or such successor Landlord, under this
Lease accruing thereafter shall be terminated, and thereupon
all such liabilities and obligations shall be binding upon the
new Landlord. Xxxxxx agrees to atorn to each such new
Landlord.
(s) The term "Landlord", as used in this Lease, means
DEVELOPMENT, CORP., agent and the legal entity which owns the
beneficial interest in Xxxxxx Bank & Trust Company of
Barrington Trust No. 11-521 1, which holds legal title to the
Complex, and any liability or obligation of Landlord under
this Lease shall be limited to its assets held in such trust
and no Landlord of the beneficial interest in such trust shall
be individually or personally liable for any claim arising out
of this Lease.
Only upon execution of this Lease shall the Lease of May 29,
1997, be rendered null and void.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease the date first above written.
LANDLORD
MARKUR DEVELOPMENT, CORP., as Agent
for the owners of the beneficial
interest in Xxxxxx Bank Bar
By:
Its:
President
ATTEST
By:
Its:
Executive Vice President
TENANT
By
Its
President
ATTEST
By
Its
Chief Financial Officer
EXHIBIT A
BUILD OUT FOR SYNAPTX IMPULSE
1) Build out private office denoted on the Rienke Office Interior
Plan dated 1/7/97. Included are office shown as "Board Room",
War Room #1, War Room #2, and War Room #3.
2) Build out room denoted as library on 1/7/97 ROI Plan including
individually controlled HVAC system.
3) A partition wall will be built from approximate point J-7 to
F-7 with one man door to be located by tenant. The area from
line 7 to line 8, 9, & 10 shall be unfinished space with
minimal code required lighting and heating equipment only.
Floors, walls, and ceiling to be painted in a single color.
4) Supply and install six (6) power poles to service a maximum
of 25 to 30 office cubes. Each pole will contain three (3)
electrical circuits and a one-inch data conduit.
5) All hardwood maple flooring will be ground, sanded, and sealed
with a varnish. It is understood with the age of the flooring
distressed marks may still be evident upon completion.
6) Recondition and reinstall in existing locations 75 of the
large round light fixtures, painted in a single color to be
chosen by tenant and landlord.
7) Repaint existing tin ceiling in a single flat latex enamel
color to be chosen by tenant and landlord.
8) All brick walls and wood timbers to be sandblasted and
cleaned.
9) Bathroom will be built out as per the plan by Direct Design
dated 4/17/97.
