EXHIBIT 10.09
FIRST AMENDMENT OF OFFICE LEASE
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THIS FIRST AMENDMENT OF OFFICE LEASE (this "First Amendment") is made as of
the __ day of November, 1995, by and between AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, not individually but as Trustee under Trust Agreement dated
June 1, 1978 and known as Trust no. 42978 ("Landlord"), and TSI INTERNATIONAL
SOFTWARE LTD., a Delaware corporation ("Tenant").
R E C I T A L S:
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A. Landlord and Tenant entered into that certain Office Building Lease
dated as of the 5th day of February, 1994 ("Office Lease") for the lease of
certain Premises consisting of 12,095 rentable square feet as depicted on
Exhibit A to the Office Lease and designated as Suite E-100 (the "Original
Premises"), located in that certain building commonly know as Bannockburn Lake
Office Plaza-Building B and having a common address of 0000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxx ("Building").
B. The Term of the Office Lease as set forth therein will expire on the
31st day of December, 1995, unless sooner terminated as provided in the Office
Lease, and the parties thereto desire to extend the Term of the Office Lease,
modify the Premises leased and provide for certain other matters as hereinafter
described.
NOW, THEREFORE, in consideration of the foregoing Recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. RECITALS; CAPITALIZED TERMS; CAPTIONS. The Recitals set forth
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hereinabove are incorporated herein as a substantive part of this First
Amendment. All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Office Lease. The Office Lease
as amended by this First Amendment is sometimes hereinafter referred to as the
"Lease." The Paragraph headings are for convenience of reference only, do not
define or construe the contents of such paragraphs and shall be ignored in any
construction thereof.
2. EXTENSION OF TERM. The Term of the Office Lease is hereby extended
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for a period of five (5) years from January 1, 1996 through December 31, 2000
(the "Extension Period"), unless sooner terminated as provided in the Lease,
upon all of the same terms, covenants and conditions as set forth in the Office
Lease, except as modified hereby.
3. MODIFICATION OF PREMISES. Effective as of January 1, 1996, (the
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"Effective Date") the Office Lease is hereby amended to modify the Premises from
the Original Premises to that portion of the Original Premises which the parties
agree consists of 10,552 rentable square feet as depicted on Exhibit A attached
hereto and made a part hereof (the "Modified Premises"). From and after January
1, 1996, the Modified Premises shall become
Premises for all purposes under the Lease as if the Modified Premises had been
the Premises originally leased under the Lease; and effective as of 12:00 AM on
December 31, 1995, except as provided in Paragraph 8 hereof, Tenant shall have
no further right, title or interest in or to or have any right to possession of
that portion of the Original Premises which is not contained in the Modified
Premises (which is agreed to contain 1,543 rentable square feet, and is
sometimes hereinafter referred to as the "Surrendered Space").
4. EXTENSION PERIOD BASE RENT. From and after the Effective Date, Tenant
shall pay Base Rent in monthly installments of Monthly Base Rent for the
Extension Period at the same times and in the same manner as provided for in the
Office Lease during the initial Term, but at the following amounts for the
stated periods:
Annual Monthly
Period Base Rent Base Rent
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January 1, 1996 -
December 31, 1996 137,175.96 $11,431.33
January 1, 1997 -
December 31, 1997 140,605.32 11,717.11
January 1, 1998 -
December 31, 1998 144,120.48 12,010.04
January 1, 1999 -
December 31, 1999 147,723.48 12,310.29
January 1, 2000 -
December 31, 2000 151,416.60 12,618.05
For and during the Extension Period, Tenant shall not pay Additional Rent on
account of increases in the Consumer Price Index. The stated increases in the
Base Rent are in lieu of Additional Rent on account of increases in the Consumer
Price Index pursuant to Section 4 of the Office Lease.
Tenant shall not be liable for the payment of either interest at the Default
Rate or any Late Charges pursuant to the seventh (7th) grammatical paragraph of
Section 4 of the Office Lease until the expiration of the tenth (10th) day
following the due date for any rent under the Lease.
5. MODIFICATION OF TENANT'S PROPORTION. In addition to Base Rent, from
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and after the Effective Date, Tenant shall pay Additional Rent for the Modified
Premises in the same manner and at the same times as was paid with respect to
the Original Premises, based upon a modification of Tenant's Proportion to be
nine and 9,811/10,000 percent (9.9811%).
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6. ALLOCATION OF ELECTRIC CHARGES. Notwithstanding anything contained
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herein or elsewhere in the Lease to the contrary, Landlord and Tenant
acknowledge that when the Premises are modified from the Original Premises to
the Modified Premises, the Surrendered Space will "share" an electric meter and
panel with the Premises, and Landlord or the tenant of the Surrendered Space and
Tenant will be required to share, on an equitable basis, the electric costs
associated with the Premises and the Surrendered Space. Initially such parties
shall share the cost on a square footage basis, that is, initially eighty-seven
and 24/100 percent (87.24%) to the Premises and twelve and 76/100 percent
(12.76%) to the Surrendered Space, as modified from time to time if the Premises
shall be expanded to include some or all of the Surrendered Space pursuant to
Paragraph 8 hereof or otherwise. The parties further agree, however, that Tenant
may utilize an electric load which may be substantially greater than the
electrical load utilized at the Surrendered Space, and, therefore, a pure "pro
rata" basis may not equitably apportion the amount to each space. In such event,
the parties shall, in good faith, determine a reasonable allocation based upon
the electrical loads each party utilizes.
7. CAP ON EXPENSES. Notwithstanding anything in the Lease to the
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contrary, for the purpose of computing Additional Rent under the Lease only, the
amount of Expenses for Adjustment Years 1996, 1997, 1998, 1999 and 2000 which
shall be payable by Tenant shall be subject to the following limitation:
Expenses payable by the Tenant for Adjustment Year 1996 (if any) shall not
exceed an amount equal to $5.40 per rentable square foot of the Premises.
Thereafter for Adjustment Years 1997, 1998, 1999 and 2000 (the "Capped Years"),
Tenant's expense Adjustment (hereinafter defined) with respect to Expenses (or
components of Expenses) which are not "Uncontrollable Expenses," shall not
increase by more than five percent (5%) over the prior Adjustment Year during
the Capped Years on a cumulative compounding basis. The capped amount of
Expenses for any Capped Year is herein referred to as the "Capped Expense
Amount." The portion of the Expense Adjustment attributable to Expenses (or
components of Expenses) which are Uncontrollable Expenses (as hereinafter
defined) shall not be capped. "Uncontrollable Expenses (including uncontrollable
components of Expenses)" shall mean: the cost of snow removal, the cost of road
salt, the cost of insurance premiums required to be carried by Landlord
hereunder, the cost of internal and external common area utilities, including
electricity, water and gas, supplies and union wages for both direct employees
and employees of contractors.
8. RIGHT OF FIRST OFFER. Landlord hereby grants to Tenant the continuing
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right of opportunity ("Right of Opportunity"), during the Extension Period of
the Lease to lease the Surrendered Space as depicted on and described in Exhibit
C attached hereto and made a part hereof (which is referred to hereinafter as
the "Opportunity Premises"), subject to the terms and conditions hereinafter set
forth.
Prior to entering into the negotiation of any lease with any tenant prospect
for any part or all of the Opportunity Premises (such portion which Landlord
intends to lease to any such tenant prospect at any time being the "Offered
Premises") during the Extension Period of the Lease, so long as Tenant shall not
be in Default under this Lease, Landlord shall notify Tenant in writing of the
business and economic terms (including, without limitation, the proposed term of
the tenancy) upon which Landlord would be willing to lease the Offered Premises
to such tenant
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prospect, and Tenant shall have the right for a period of ten (10) calendar days
from and after the giving of such notice within which to notify Landlord that it
will lease the Offered Premises on the terms and conditions as contained in
Landlord's notice and other terms and conditions of the Lease not in conflict
with the terms in the notice. Provided, however, during the period from January
1, 1996 through June 30, 1996, if Tenant shall exercise its Right of Opportunity
to lease the Offered Premises, the Base Rent shall be at the then applicable
rates for the applicable periods set forth in Paragraph 4 above per square foot
of rentable area of such Offered Premises, and the Landlord's contribution
toward the cost of tenant improvements in such Offered Premises will be an
amount equal to Eleven and 82/100 Dollars ($11.82) per rentable square foot of
Offered Premises for any Offered Premises leased in January 1996, and reduced by
$.1970 each month thereafter through June, 1996, so that for space leased during
February, 1996, the amount would be Eleven and 62/100 Dollars ($11.62), for
space leased in March, 1996, the amount would be Eleven and 43/100 Dollars
($11.43) and so forth. If Tenant shall timely elect to lease the Offered
Premises, then Landlord and Tenant shall proceed in good faith to finalize such
lease of the Offered Premises. If Tenant elects to lease the Offered Premises,
the Offered Premises shall be added to the Lease and become Premises by an
amendment to the Lease and shall be governed by the terms and conditions of this
Lease as modified or supplemented by the terms in the notice or the alternate
rent and construction contribution provision, if applicable, as aforesaid. If
Tenant fails to notify Landlord in writing that it will accept the Offered
Premises within the prescribed ten (10) calendar day period, Tenant's right to
lease such Offered Premises shall be terminated and Landlord may thereafter
lease such Offered Premises to such other tenant prospect free of the rights of
Tenant, except as provided in the next sentence. If Landlord elects to offer the
Offered Premises to such tenant prospect on terms economically less favorable
(from Landlord's perspective) by ten percent (10%), then Landlord shall again
offer the Offered Premises to Tenant on such less favorable (from Landlord's
perspective) economic terms in accordance with the provisions in this
grammatical paragraph.
Tenant may not elect to lease less than all of the Offered Premises described
in any notice from Landlord to Tenant concerning the Right of Opportunity. In
addition, Tenant's right to exercise the Right of Opportunity in any instance
and the commencement of the term for any Offered Premises shall be conditioned
upon satisfaction of the following terms and conditions: (a) at the time of the
exercise of the Right of Opportunity this Lease shall be in full force and
effect, and Tenant's right to possession of the Premises shall not have been
terminated, and Tenant shall not be in Default hereunder, and, at Landlord's
option, at the time the term of the lease for the related Offered Premises
commences, the Lease shall be in full force and effect and Tenant's right to
possession of the Premises shall not have been terminated, and Tenant shall not
be in Default hereunder; (b) at the time of the exercise of the Right of
Opportunity and, at Landlord's option, at the time the term of the lease for the
related Offered Premises commences, the original Tenant named herein or an
affiliate of Tenant as described in Section 42a of the Office Lease (a "Tenant
Affiliate") shall be occupying all of the Rentable Area of the Premises, and
such Tenant shall not have assigned the lease or sublet any portion of the
Premises other than to a Tenant Affiliate, it being agreed that the Right of
Opportunity granted hereby is personal to the named Tenant or a Tenant
Affiliate; (c) the term of the lease for the Offered Premises shall commence on
the date set forth in the opportunity notice given with respect to such Offered
Premises; (d) in the event Landlord shall be unable to tender possession of any
Offered Premises
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to Tenant upon the commencement of the term thereof, Landlord shall not be
subject to any liability on account thereof and the failure to do so shall not
affect the validity of the Lease or the obligations of Tenant under the Lease or
the lease of the Offered Premises by Tenant, or be construed to extend the term
as to such Offered Premises, or the Term of the remainder of the Premises, but
Rent shall not commence with respect to such Offered Premises until Landlord
tenders possession thereof to Tenant; and (e) Tenant shall accept possession
from Landlord of all Offered Premises in their "as is" condition as of the date
upon which the term of the lease for such Offered Premises commences unless
specifically provided to the contrary in the pertinent opportunity notice.
9. WORKLETTER APPLICABLE TO MODIFIED PREMISES. Tenant acknowledges and
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agrees that it is leasing the Modified Premises in "as is" condition except as
provided in the Modified Premises Workletter attached hereto as Exhibit B and
made a part hereof (the "Modified Premises Workletter"), and Landlord shall have
no obligation to provide or pay for or reimburse Tenant for any improvements to
the Modified Premises, except as provided in the Modified Premises Workletter.
The Modified Premises shall be improved pursuant to and in accordance with the
provisions of the Modified Premises Workletter.
10. REAL ESTATE BROKERS. The parties agree that Xxxxx & Company Investor
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Services, Inc. and Xxxxxx X. Xxxxxxx, Inc. are the only brokers with whom the
parties have dealt in connection with this First Amendment and the modification
of Premises and the extension of the Term of the Extension Period, and whose
commissions, if any, shall be paid by Landlord pursuant to separate agreement,
and each of the parties hereto agrees to indemnify and hold the other (and in
the case of Landlord, its beneficiaries), and their affiliates and the
respective partners, shareholders, directors, officers, agents and employees of
each of the foregoing harmless from all damages, liability and expense
(including reasonable attorneys' fees) arising from any claims or demands of any
other broker or brokers or finders for any commission alleged to be due any such
broker or brokers or finders in connection with participating with the
indemnifying party in effecting this First Amendment and the modification of
Premises and the extension of the Term for the Extension Period in violation of
the indemnifying party's representation above or otherwise claiming by, through
or under such indemnifying party.
11. SUBORDINATION TO MORTGAGES AND DEEDS OF TRUST. Section 25 of the Office
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Lease is hereby amended by adding the following paragraph at the end of the
Section:
Notwithstanding any of the foregoing, Tenant shall not be
obligated to subordinate its interest in the Lease pursuant to
any of the foregoing provisions to any new Mortgagee after the
date hereof, unless such new Mortgagee requesting such
subordination executes a non-disturbance agreement providing that
if there is a foreclosure of such Mortgage and no Default then
exists (a) such Mortgagee cannot make Tenant a party defendant to
such foreclosure or termination nor in any other way foreclose
Tenant from its rights, evict Tenant, disturb Tenant's possession
under the Lease or
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terminate or disturb Tenant's leasehold estate or rights under
the Lease, subject, however, to the terms of the Lease, and (b)
the Lease shall continue as a direct lease between Mortgagee and
Tenant (any such agreement or any agreement of similar import,
from any Mortgagee being hereinafter called a "Non-Disturbance
Agreement"), provided that such Non-Disturbance Agreement may
contain such other terms and conditions as are contained in the
customary form of non-disturbance agreement of any such Mortgagee
(provided that such other terms and conditions and such customary
form will not materially adversely change the rights and
obligations of Tenant under the Lease), and Tenant may be
required to execute such Non-Disturbance Agreement prior to its
execution by the Mortgagee.
12. ADDITIONAL AMENDMENTS OF OFFICE LEASE. The Office Lease is hereby
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amended in the following additional respects:
(a) The third (3rd) grammatical paragraph of the subparagraph
(I), Taxes, portion of the "Additional Rent Formula" appearing on
page 6 of the Office Lease is hereby deleted in its entirety from
the Lease, and is of no further force or effect.
(b) Section 13 appearing on page 13 of the Office Lease is hereby
modified by inserting the following after the word "Term"
appearing in the first (1st) line thereof:
(provided, however, that so long as Tenant is not in Default
under the terms of this Lease, including, without
limitation, in the payment of any Rent, Tenant's vacation of
the Premises shall not constitute an abandonment)
(c) The clause "and (ii) to refrain form publicly advertising a
rental rate less than that then-quoted by the Landlord for space
within the Building or complex" appearing in the last sentence of
Section 14 of the Office Lease is hereby deleted, and is of no
further force or effect.
(d) The words "and fee of 21%" appearing in the third (3rd)
sentence of Section 42(b) on page 28 of the Office Lease are
hereby deleted, and are of no further force or effect.
(e) Sections 42(c), 42(d) and 42(e) of the Office lease are
hereby deleted in their entirety and agreed to be of no further
force or effect.
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13. CANCELLATION OPTION. Tenant shall have the option (the
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"Cancellation Option") to terminate the Lease for all of the Premises under the
Lease effective as of December 31, 1998 (the "Tenant Termination Date"). Tenant
may elect the Cancellation Option by giving written notice to Landlord (the
"Termination Notice") given not later than December 31, 1997. In the event
Tenant does not give its notice exercising the Cancellation Option prior to
December 31, 1997, Tenant shall have no further right pursuant to the
Cancellation Option to terminate the Lease. Once elected as provided herein, and
subject to the other terms and conditions of this Paragraph and otherwise in the
Lease, an election hereunder by Tenant shall be irrevocable. Additionally, the
Cancellation Option is subject to he following terms, conditions and
limitations:
(a) (i) At the time of the exercise of the Cancellation Option the
Lease shall be in full force and effect and Tenant's right to
possession of the premises shall not have been terminated, and
Tenant shall not be in Default, and (ii) at the time of the Tenant
Termination Date the Lease shall be in full force and effect and
Tenant's right to possession of the Premises shall not have been
terminated, and Tenant shall not be in Default; provided, however,
Landlord may at its option waive any of the conditions set forth
in this subsection (a). Notwithstanding the foregoing, Tenant
shall in any event have the right to effect the completion of the
termination o the Lease by paying to Landlord all rent and other
sums (including, without limitation, the Cancellation Fee) due and
to become due (until the Tenant Termination Date) to Landlord and
complying with all other material obligations of Tenant under the
Lease through the later of the Tenant Termination Date and
Tenant's vacation of the Premises and curing any default under the
Lease.
(b) Contemporaneously with the notice timely electing the
Cancellation Option, Tenant shall pay a fee (the "Cancellation
fee") equal to the sum of (I) all brokerage commissions, agreed to
be in the amount of Froth-Nine Thousand Sixty-Six and 80/100
Dollars ($49,066.80), all tenant improvement allowances, agreed to
be in the amount of One Hundred Twenty-Four Thousand Seven Hundred
Thirty-Nine and 00/100 Dollars ($124,739.00) and all architectural
allowances agreed to be in the amount of Five Thousand Two Hundred
Seventy-Six and No/100 ($5,276.00), applicable to the Modified
Premises and the Surrendered Space, that remain unamortized
following the Tenant Termination Date were the same to be
amortized on a straight line basis at an interest rate of ten
percent (10%) per annum over the Extension Period, and (ii) an
amount equal to the sum of the monthly installments of the Base
Rent and Additional Rent as reasonably estimated by Landlord
payable for each of the months of January through June, inclusive,
1999.
If the Lease is terminated pursuant to this paragraph 13, the Term shall
expire on the Tenant Termination Date as if such date had been set forth in the
Lease as the expiration date of
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the Term, and Tenant shall vacate the Premises on or before the Tenant
Termination Date in the manner and subject to all of the provisions and
obligations required by the Lease. All obligations of Tenant and Landlord which
accrue under the Lease on or before the later of the Tenant Termination Date and
the date upon which Tenant shall surrender possession of the Premises shall
survive such termination and neither the exercise of such right to terminate nor
such termination shall affect Landlord's or Tenant's remedies on account of any
default by Tenant or Landlord which may exist as of the date on which notice of
exercise of such right is given or as of the Tenant Termination Date and is not
cured (including, without limitation, any matter which, with the giving of
notice or the passage of time, or both, would constitute a Default by Tenant
under the Lease pursuant to Section 20 of the Office Lease).
14. CONFIRMATION OF LEASE. Except as expressly modified by this First
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Amendment, all of the terms and provisions of the Office Lease shall remain
unmodified, and the Lease is in full force and effect.
15. EXCULPATORY PROVISIONS. This instrument is executed by American
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National Bank and Trust Company of Chicago, not personally but solely as Trustee
under Trust No. 42978. All covenants and conditions to be performed hereunder by
American National Bank and Trust Company of Chicago are undertaken by it solely
as Trustee as aforesaid and not individually and no personal liability shall be
asserted or be enforceable against American National Bank and Trust Company of
Chicago, the beneficiaries thereof or their agents or representatives by reason
of any of the covenants, statements, representations or warranties contained in
this instrument. All of the further Exculpatory Provisions set forth in Section
44 of the Office Lease are incorporated by this reference into this Paragraph 15
as if fully set forth and are fully applicable to this First Amendment.
[THIS SPACE INTENTIONALLY LEFT BLANK;
SIGNATURES APPEAR ON PAGE 9.]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this First
Amendment to be executed as of the date and year first above written.
TENANT: LANDLORD:
TSI INTERNATIONAL SOFTWARE AMERICAN NATIONAL BANK AND
LTD., a Delaware corporation TRUST COMPANY OF CHICAGO, as
Trustee under Trust Agreement dated
June 20, 1978 and known as Trust No. 42978
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------- ------------------------------
Its: V.P. Finance Its:
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EXHIBIT A
MODIFIED PREMISES
10,552 rsf
[GRAPHICS OF SUCH SPACE]
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EXHIBIT B
MODIFIED PREMISES WORKLETTER
This is the modified Premises Workletter ("Workletter") referred to in
the foregoing First Amendment by and between American National Bank and Trust
Company of Chicago, as Trustee under Trust No. 42978 ("Landlord"), and TIS
International, ltd. ("Tenant"). Capitalized or defined terms used herein shall
have ht respective meanings assigned to them in the First Amendment or the
Office Lease (as defined in the First Amendment), except as otherwise provided
or defined herein.
Landlord and Tenant agree as follows:
1. WORK. At Tenant's sole cost and expense, except as provided
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hereinafter, Landlord shall provide the material, hardware, equipment and labor
used to demise and construct and install improvements to the Modified Premises
as describe don the Plans (as hereinafter defined), such items had labor being
herein referred to as the "Tenant Work". Landlord shall proceed diligently with
the Tenant Work, subject to the provisions of this Workletter and the Lease.
2. PLANS. Tenant agrees to cause an interior space planner acceptable
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to Landlord (the "Interior Space Planner") and a consulting engineer designated
by Landlord (the "Consulting Engineer") to deliver to Landlord architectural and
engineering working drawings including (1) furniture plans showing details of
space occupancy, (2) reflected ceiling plans, (3) partition and door location
plans, (4) telephone and electrical plans noting any special lighting and power
load requirements, (5) environmental design criteria and all security and
communications information, (6) detail plans, (7) mechanical, dire protection
and engineering plans, (8) finish plans and schedules and (9) plans and
specifications relative to the demise of the Modified Premises and complete
specifications for the Tenant Work to be performed in the Modified Premises
which are acceptable to Tenant (the working drawings and specifications for the
Tenant Work, as finally approved by Landlord as provided hereinafter, are
referred to as the ":Plans"). The working drawings and specifications shall be
submitted for Landlord's review and approval, and if Landlord does not approve
such working drawings and specifications as the Plans, Landlord shall promptly
advise Tenant generally of the changes required in such working drawings and
specification so that they will meet Landlord's approval as the Plans for the
Tenant Work. Tenant shall cause the Interior Space Planner and Consulting
Engineer to deliver to Landlord revised architectural and engineering working
drawings and specifications which are acceptable to Landlord as Plans and are in
form and condition suitable to be released and issued for construction. Landlord
shall not arbitrarily refuse to approve Tenant's Plans or arbitrarily request
modifications or revisions thereto, but Tenant acknowledges that, in addition to
other factors which might justify Landlord's request for modifications and
revisions, Landlord shall have the right to request modifications and revisions
in the event that Tenant's Plans adversely affect mechanical, electrical,
plumbing, HVAC or other system sin the Building, violate any applicable
governmental law, regulation or ordinance, impair the structural integrity,
exterior appearance or safety of the Building or the shell and core work, or are
not consistent with the first-class nature of the Building.
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3. APPROVAL OF COST ESTIMATE. Following Landlord's approval of the
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Plans, Landlord shall obtain and submit to Tenant estimates of the cost of the
Tenant Work from not less than three (3) qualified bidders. Tenant shall approve
or disapprove (in whole or in part) an estimate and give Landlord a notice to
proceed with the construction based upon the approved Plans and cost estimate.
If Tenant shall disapprove the cost estimate, Tenant shall have the right to
modify the Plans Subject tot landlord's approval as provided above) in order to
modify the cost of the Tenant Work. Following any modifications to the Plans,
Landlord shall submit to Tenant a revised cost estimate for Tenant's approval.
Landlord shall not commence performance of the Tenant Work until Tenant approves
an estimate of the cost thereof and gives Landlord a notice to proceed.
In the event that the cost of the Tenant Work contained in the approved
cost estimate exceeds Landlord's Contribution to Landlord, for deposit in
Landlord's trust account for payment for the Tenant Work as the Tenant Work
progresses, upon approval of the cost estimate. In the event the cost of the
Tenant Work thereafter exceeds or further exceeds Landlord's Contribution,
tenant shall pay the deficiency form time to time within five (5) days after
receipt of a statement therefor from Landlord. If Tenant shall fail to so pay
any such amount to Landlord, Landlord may defer commencement of construction or
suspend construction and all delay and cost arising from the same shall be
considered delay by Tenant and Tenant shall be responsible for all costs
thereof.
4. FEES/COST OF TENANT WORK. The fees of the Interior Space Planner and
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the Consulting Engineer in connection with the Plans and construction
administration, including the cost of any and all revisions to the Plans
required to complete the Tenant Work shall also include the direct costs
thereof, plus general conditions (including rubbish removal, hoisting, permits,
field supervision and the like), plus the contractor's charges for overhead and
fees, together with the sum of Twenty-Six Thousand Three Hundred Eighty and
No/100 dollars ($26,380) (which is equal to $2.50 multiplied by the Rentable
Area of the Modified Premises) to Xxxxx & Company or an affiliate thereof as
Landlord shall designate as a fee for its overhead and administrative expenses
in connection with the Tenant Work.
5. LANDLORD'S CONTRIBUTION. Landlord shall contribute up to the sum of
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One Hundred Thirty-One Thousand Seven Hundred Ninety-Four and 48/100 Dollars
($131,794.48), which is the product of Twelve and 49/100 Dollars ($12.49)
multiplied by the Rentable Area of the Modified Premises ("Landlord's
Contribution"). The Landlord's Contribution shall first be applied toward the
costs associated with demise of Modified Premises (the "cost of Demising). Upon
full payment of the Cost of Demising, the remaining Landlord's Contribution, to
the extent thereof, shall be applied toward the remaining cost of construction
of the Tenant Work, including all fees as described in Paragraph 4 hereinabove.
If the entire Landlord's Contribution shall not be required for completion of
the Tenant Work, Tenant shall be entitled to apply up to forty-two Thousand Two
Hundred Eight and No/100 Dollars ($42,208.00) (which is equal to Four and No/100
Dollars ($4.00) per rentable square foot of the Modified Premises) of any excess
Landlord's Contribution after payment of all costs of the Tenant Work
(including, without limitation, all Costs of Demising) and all fees as above
provided as a setoff against Base Rent next coming due under the Lease. Any
portion of the Landlord's Contribution which shall not be utilized for
construction of the Tenant Work which is in excess of $4.00 per rentable square
foot
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of the Modified premises shall not be applied against Base Rent as aforesaid or
in any other way be paid to or for the benefit of or be made available to
Tenant.
6. MISCELLANEOUS.
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(a) The Tenant Work shall be done by Landlord, or its designees,
contractors or subcontractors, in accordance with the terms, conditions and
provisions herein contained.
(b) Except as herein or in the Lease expressly set forth, Landlord has
no agreement with Tenant and has no obligation to do any other work with respect
to the Modified premises. Any additional work or alterations to the Modified
Premises desired by Tenant after the Effective Date of the Extension Period
shall be subject to the provisions of Section 11 of the Office Lease.
(c) Time is of the essence under this Workletter.
(d) Any person signing this Workletter on behalf of Landlord or Tenant
warrant s and represents he has authority to do so.
(e) This Workletter shall not be deemed applicable to any additional
office space added to the Modified Premises at any time or form time to time,
whether by any options or rights under the Lease or otherwise, or to any portion
of the Modified Premises or any additions thereto in the event of a further
renewal or extension of the Term of the Lease, whether by any options under the
Lease or otherwise, unless expressly so provided in the Lease or any amendment
or supplement thereto.
(f) With respect to any amounts owed by Tenant hereunder and not paid
when due to Tenant's failure to perform its obligations hereunder, Landlord
shall have all of the rights and remedies granted to Landlord under the Lease
for nonpayment by Tenant of any amounts owed thereunder or failure by Tenant to
perform its obligations thereunder.
(g) Neither Landlord nor Xxxxx & company or any affiliate thereof shall
have any responsibility for construction means, methods or techniques or safety
precautions in connection with the Tenant Work, or for the accuracy or
completeness of the Plans or any design error therein or any costs attributable
to any lack of adequacy of or nay design error in the Plans.
7. EXCULPATORY CLAUSE. This instrument is executed by American
------------------
National Bank and Trust Company of Chicago, not personally but solely as Trustee
under Trust No. 42978. All the convenants and conditions to be performed
hereunder by American National Bank and Trust Company of Chicago are undertaken
by it solely as Trustee, as aforesaid, and not individually, and no personal
liability shall be asserted or be enforceable against American National bank and
Trust Company of Chicago, the beneficiaries thereof nor any of their respective
partners, shareholders, directors, officers, agents or employees by reason of
any of the covenants, statements, representations or warranties contained in
this instrument. All of the further exculpatory provisions of Section 44 of the
Office Lease are incorporated herein as if fully set forth herein and are fully
applicable to this Workletter as if fully set forth.
17
IN WITNESS WHEREOF, the parties hereto have executed this Workletter as
of the date and year on which the lease was executed and was executed
contemporaneously therewith.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, not personally but as
Trustee as aforesaid
By: /S/ Xxx Xxxxxx
----------------------------------
Its: VP, Finance
------------------------------
TENANT:
TSI INTERNATIONAL SOFTWARE LTD. a(n)
________________ corporation
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Its:
------------------------------
ATTEST:
/s/ Xxx Xxxxx
-----------------------------
18
EXHIBIT C
SURRENDERED SPACE
1,543 rsf
[GRAPHICS OF SUCH SPACE]
19
--------------------------------------------------------------------------------
BANNOCKBURN LAKE OFFICE PLAZA
--------------------------------------------------------------------------------
OFFICE LEASE
TSI INTERNATIONAL SOFTWARE LTD.
------------
OFFICE BUILDING LEASE
------------
BUILDING B
0000 XXXXXXXX XXXX
XXXXXXXXXXX, XXXXXXXX 00000
------------
5
OFFICE BUILDING LEASE
TABLE OF CONTENTS
--------------------------------------------------------------------------------
SECTION
NUMBER SECTION CAPTION PAGE
6
SUMMARY OF
BASIC LEASE PROVISIONS
ITEM
A. BUILDING AND ADDRESS
Building B
Bannockburn Lake Office Plaza
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
B. LANDLORD AND CURRENT ADDRESS
Landlord:
American National Bank and Trust Company of Chicago,
not individually but solely as Trustee under
Trust No. 42978
In Care of Landlord's Beneficiary:
Bannockburn Lake Office Plaza
Limited Partnership II
0000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
C. TENANT AND CURRENT ADDRESS:
TSI International Software Ltd.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
D. DATE OF LEASE February 5, 1994
E. LEASE TERM Twenty (20) months
F. COMMENCEMENT OF DATE OF TERM: May 1, 1994
G. EXPIRATION DATE OF TERM December 31, 1995
H.1 INITIAL BASE RENT (Triple-Net):
(i) Annualized: One Hundred Forty-Five Thousand
One Hundred Forty and
00/100 Dollars ($145,140.00)
(ii) Monthly Twelve Thousand Ninety-Five
and no/100 Dollars ($12,095.00)
7
H.2 INITIAL OPERATING EXPENSES
AND TAXES:
(As Estimated for the calendar year 1994 only
at $7.00 RSF and $1.23 RSF, respectively,
and subject to adjustment pursuant to the
provisions of Section 6 hereinafter):
(i) Annualized: Ninety-Nine Thousand Five Hundred Forty-One
and 92/100 Dollars ($99,541.92)
(ii) Monthly Eight Thousand Two Hundred Ninety-Five
and 16/100 Dollars ($8,295.16)
ITEM
I. RENTABLE AREA OF THE PREMISES: 12,095 Square Feet
J. RENTABLE AREA OF THE BUILDING 105,720 Square Feet
K. TENANT'S PROPORTION OF THE BUILDING Eleven and 4,406/10,000 Percent
(11.4406%)
L. AMOUNT OF SECURITY DEPOSIT: Security deposit waived by Landlord
M. FLOOR, WING AND SUITE: First Floor, East Wing, Known as
Suite # E-100
N. NAME(s) OF BROKER(s): For Tenant:
None
For Landlord:
Park Brokerage Group Limited
8
Bannockburn Lake Office Plaza
OFFICE LEASE
TSI INTERNATIONAL SOFTWARE LTD.
OFFICE BUILDING LEASE
BUILDING B
0000 XXXXXXXX XXXX
XXXXXXXXXXX, XXXXXXXX 00000
9
Bannockburn Xxxx Xxxxxx Xxxxx
XXXXXX XXXXXXXX XXXXX
XXXXXXXX X
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
THIS OFFICE BUILDING LEASE is entered into, upon or as of the day and
year set forth on preceding page iii, Item D, by and between AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, a national banking association, not
individually but solely as Trustee under Trust Agreement dated June 1, 1978 and
known as Trust No. 42978 ("Landlord") and the tenant the name of which is set
forth as Item C on preceding page iii ("Tenant").
WITNESSETH:
THE DEMISE:
Landlord does hereby to Tenant and Tenant hereby leases from Landlord
those certain premises (the "Premises"), said Premises containing approximately
the number of rentable square feet set forth in Item I and as designated in Item
M as depicted on the Plan of Premises attached hereto as Exhibit A and made a
part hereof, which Premises are situated in that certain building, Building B
(the "Building"), commonly known as 0000 Xxxxxxxx Xxxx, Xxxxxxx xx Xxxxxxxxxxx,
Xxxxxxxx, and located on the property (the "Property") which is legally
described on Exhibit B attached and made a part hereof.
Such lease is upon and subject to the terms, covenant sand conditions
herein asset fort and Tenant covenants as material part of the consideration of
this Lease to keep and perform each and all of said terms, covenants and
conditions by it to be kept and performed and that this Lease is made upon the
condition of such performance. Notwithstanding the date set forth of the
commencement of the Term, the provisions of this Lease shall apply from the date
hereof.
1. PURPOSE.
The Premises are to be used for general office purpose and uses
incidental thereto and for no other purpose without the prior written consent of
Landlord.
2. TERM.
The term of this Lease shall be for the period set forth as Item E,
commencing and expiring on the dates set forth as Items F and G, respectively
(the "Term"), or unless sooner terminated as provided in this Lease.
10
3. INTENTIONALLY DELETED.
4. BASE RENT.
The Initial Base Rent for the Premises during such portion of the Term
as false within calendar year 1994 shall be at the annualized "triple-net" rate
set forth as Item H.1(i) payable in monthly installments of the amount set forth
in Item H.1(ii) and shall be paid in advance on or before the first day of the
first full calendar month of 1994 and a like sum on or before the first day of
each and every successive calendar month thereafter during 1994, and such Base
Rent shall be payable together with Additional Rent, other rent, and all other
amounts provided herein due to Landlord from time to time, upon or prior to such
dates.
The Base Rent for the Premises during the calendar yea 1995 shall be
annualized "triple-net" rate of $12.30 RSF, amounting to One Hundred Forty-Eight
Thousand Seven Hundred Sixty-Eighty and 56/100 Dollars ($148,768.56) annually
and Twelve Thousand Three Hundred Ninety-Seven and 38/100 Dollars ($12,397.38)
monthly. In addition, Operating Expenses and Taxes, and all other charges due
and payable under the Lease, shall be paid be paid by Tenant to Landlord in
accordance with the terms of the Lease. Such Operating Expenses and Taxes for
1995 will be estimated on or before March 1, 1995.
In the event that Tenant shall validly exercise its option to extend
the Term by Option A (as that Option A set forth in Section 42 (c) hereinbelow),
the "triple-net" Base Rent during such extended term of eighteen (18) months
shall be the following annual rates and annual and monthly amounts:
Term Rate Annual Amount Monthly Amount
---- ---- ------------- --------------
January 1, 1996 - December 31, 1996 $12.60 RSF $152,397.00 $12,699.75
January 1, 1997 - June 30, 1997 $12.90 RSF $165,025.56 $13,002.13
During the Term, or if extended by the exercise of Option A pursuant to
Section 2 (c), no increase in the Consumer Price Index shall affect or increase
Base Rent.
In the event that Tenant shall validly exercise its option to extend
the Term by Option B (as that Option B is set forth in Section 42 (d)
hereinbelow), the "triple-net" Base Rent during such term of five (5) years
shall beat the rate computed by application of the formula set forth in said
Section 42 (d) and increases in the Consumer price Index will have an annual
affect upon Base Rent commencing with January 1, 1997 and January 1st of the
Subsequent years to the calendar year 1997.
The Base Rent, Additional Rent, other rent and all other amounts
provided herein as may be due to Landlord from time to time shall be paid to
Landlord's Beneficiary, without deduction or offset, in lawful money of the
United States of America a the designated office of Landlord in the Building or,
if none, then to Bannockburn Lake Office Plaza Limited Partnership II, Suite
X-
00
250, 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, or at such the agent or at
such other place as Landlord may from time to time designate in writing.
Any rent (whether Base Rent, Additional Rent or other rent or other
amount provided herein as may be due to Landlord [collectively sometimes
referred to as "rent"]) or other amount due from Tenant to Landlord under this
Lease which is not paid promptly when due shall, at Landlord's mortgagee's
option, either (i) bear interest from the date due until the date paid at the
Default Rate as specified in Landlord's mortgagee's Substitute (Mortgage) Not
dated September 1, 1983 or (ii) be subject to a five percent (5%) late charge
("Late Charge") upon the total of Base Rent and Additional Rent due also as
specified in the aforesaid Substitute (Mortgage) Note. Partial payment of
monthly rent shall be construed to be first applied on account of Operating
Express and Taxes and, thereafter, toward Base Rent and other Additional Rent.
The Late Charge shall apply if Tenant has failed to pay such rent or other
amount in a timely manner for any two (2) months within a calendar year during
the term hereof and if Landlord's mortgagee does, in fact, impose the full five
percent (5%) Late Charge or a lesser sum for such month in which Tenant shall
not have paid rent on or before the first day of the month. In such event, then
all of Tenant's late payments shall likewise be subject to a Late Charge in a
like percentage or proportionate sharing less any interest as shall have been
paid by Tenant pursuant to (I) above for such months. The payment, however, of
such interest or Late Charge shall not excuse or cure any default by Tenant
under this Lease. The covenants herein to pay rent (whether Base Rent,
Additional Rent or other rent) and other amounts which may become due hereunder
shall be independent of any other covenant set forth in this Lease.
5. ADDITIONAL RENT ADJUSTMENT FORMULA (AND DEFINITIONS).
To the amount of Base Rent as is set forth in Section 4 above shall be
added such additional amounts as are hereinafter set forth in its Section 5 and
in Section 6.
For the purpose of Section 5 and 6, the following words and phrases
shall have the following meanings:
DEFINITIONS
"Adjustment Date" shall mean January 1 following the commencement date
of the Term and each January 1 thereafter falling within the Term.
"Base Year" shall mean January 1 following the commencement date of the
Term and each January 1 thereafter falling within the Term.
"Consumer Price Index" shall mean the Consumer Price Index for All
Urban Consumers, City of Chicago, Illinois area (Base Year 1967 = 100) published
by the United States Department of Labor, Bureau of Labor Statistics. If the
manner in which such Consumer Price Index as determined by the Bureau of Labor
Statistics shall be substantially revised an adjustment shall be made in such
revised index which would produce results equivalent, as nearly as possible, to
those which would have been obtained if the Consumer Price Index had not been so
revised. If the 1982-84 average shall no longer be used as an index of 100, such
change shall constitute a
12
substantial revision. If the Consumer Price Index shall become unavailable to
the public because publication thereof is discontinued or is otherwise
unavailable, Landlord shall substitute therefor a comparable index based upon
changes in the cost of living or purchasing power of the consumer dollar
published by any other governmental agency or, if no such index shall be
available, then a comparable index published by a major bank or other financial
institution or by a university or a recognized financial publication or
authority.
"Operating Expenses" shall mean all costs, expenses and disbursements
of every kind and nature whatsoever which Landlord shall pay or become obligated
to pay in connection with the management, operation, maintenance, replacement
and repair of the Building, the Property and of the personal property, fixtures,
machinery, equipment, systems and apparatus located in or used in connection
with the Building or the Property (all of such elements hereinafter referred to
as the "Project"), including, but not limited to, utility expenses (excluding
Tenant's outlet usage and Tenant's Premises lighting contracted for or meter and
to be paid for directly by Tenant); telephone; water; fuel; heating; air
conditioning, window cleaning; janitorial service; security; traffic control;
insurance (including but not limited to, fire, extended coverage, liability,
workmen's compensation, elevator, or any other insurance reasonably required and
carried in good faith by the Landlord and applicable to the Project); painting;
uniforms; management fees (but not in excess of four and one-half percent (4.5%)
of gross revenues of the Building); supplies; sundries; sales or use taxes on
suppliers or services; cost of wages and salaries of all persons engaged in the
operations, maintenance and repair of the Project, so-called fringe benefits,
including social security taxes, unemployment insurance taxes, cost for
providing coverage for disability benefits, cost of any pensions,
hospitalization, welfare or retirement plans, or any other similar or like
expenses incurred under the provisions of any collective bargaining agreement,
and any other cost or expense which the Landlord pays or incurs to provide
benefits for employees so engaged in the operation, maintenance and repair of
the Project; the charges of any independent contractor who, under contract with
the Landlord or its representatives, does any of the work of operating,
maintaining or repairing of the Project; legal, accounting and data processing
expenses, including, but not limited to, such expenses as relate to seeking or
obtaining reductions in and refunds of real estate taxes, or any other expense
or charge, whether or not hereinbefore mentioned, which, in accordance with
generally accepted accounting principles, would be considered as an expense of
maintaining, operating or repairing the Project; and current amortization of
such capital improvements and service warranty extensions as are reasonably
necessary for the operation and maintenance of the project. Operating Expenses
shall exclude, without limitation, all the following: (i) the cost of any
structural repairs or modifications or of any capital expenditures or capital
improvements (with the exception of the reasonable amortization, amortized
without interest over the estimated useful life of such improvement, of the cost
of any capital improvement to the Building, to the extent that such improvement
may reasonably be expected to reduce or limit increases in, or substitute for,
Operating Expenses incurred during the Lease Term, in an amortized amount during
any year not to exceed one and one-half the actual cost savings or actual
reduction in Operating Expenses during any such year); (ii) expenses for repairs
arising from any latent defect in the Building or Building equipment or expenses
for repairs for damage caused by any insurable casualty, which expenses are
reimbursed by insurance carried by Landlord, or would be reimbursed by insurance
required to be carried by Landlord pursuant to this Lease; provided, however,
deductible sums as shall be
13
required to be paid I the event of a loss shall be considered operating Expenses
if and when paid or incurred by Landlord; (iii) expenses to renovate space for
new tenants or space vacated by any tenant, such as for painting, renovating,
redecorating, or similar expenses; (iv) expenses incurred in leasing or
procuring new tenants, including, without limitation, lease commissions paid to
agents of Landlord or other brokers, or advertising expenses; (v) interest or
principal payments on any mortgages; lease payments for any prime, underlying,
or ground lease; or depreciation of the Building; (vi) legal fees or expenses or
arbitration costs incurred in enforcing the terms of any lease or resolving
disputes between Landlord and any tenant of the Building as to the
interpretation or administration of any lease; provided, however, this provision
shall not be construed to limit the Tenant's liability therefor pursuant to
Section 32 or as may be specifically provided elsewhere in this Lease; (vii)
wages, salaries or other compensation paid to any employees above the grade of
"building manager", or "property manager" (i.e., the person who is the highest
level managerial employee who has the responsibility of the day-to-day
management decisions for the Building); provided, however, this provision shall
not be construed to preclude management fees as are provided for hereinabove;
(viii) costs of utilities or services payable by or charged to any tenant; (ix)
any cost or expense incurred by Landlord for performing work or services for any
other tenant under a lease with such tenant which Landlord does not perform to
any degree for Tenant under this Lease; and (x) any cost or expense of any
nature whatsoever which Landlord incurs in connection with the operation of the
Building which is specifically reimbursed to the Landlord from any source,
charged directly to the tenant on whose behalf it is incurred (whether or not
the same is finally paid), or for which Landlord is otherwise compensated, or
recoups, by way of setoff, reduction of recovery allowed, or otherwise.
"Per Square Foot Operating Expenses" shall mean the amount of Operating
Expenses for any calendar year divided by 105,720 square feet (the Rentable Area
of the Building).
"Per Square Foot Taxes" shall mean the accrued amount of Taxes for
which payment will be due for any calendar year divided by 105,720 square feet
(the Rentable Area of the Building), whether or not such payment shall actually
be paid during such year.
"Taxes" shall mean any and all federal, state, county, local
municipality, or other political subdivision, authority, agency or taxing body
taxes, assessments and charges of every kind or nature whatsoever, whether
general, special, ordinary or extraordinary, which Landlord shall pay or become
obligated to pay during a calendar year because of or in connection with the
ownership, leasing, management, control or operation of the Building and the
Property and of the personal property, fixtures, machinery, equipment, systems
and apparatus located therein or used in connection therewith including, without
limitation, real estate taxes, personal property taxes, sewer rents, water
rents, special assessments, transit or transit district taxes or assessments,
any tax or excise on rent or any other tax, however described, on account of
rental received for use and occupancy of any or all of the Building and the
Property, and including any rental or similar taxes levied in lieu of, or in
addition to, general real and/or personal property taxes. If a change occurs in
the method of taxation during the Term which change shall result in whole or in
part in the substitution of any such taxes, or any other assessment, for any
Taxes, above defined, such substituted taxes or assessments shall be included in
the Taxes. For purposes hereof, if taxes are accessed or become a lien during
one year, but are due for payment or paid in a subsequent year,
14
such taxes shall constitute Taxes hereunder only during the year in which they
were assessed or became a lien; provided however, that to the extent that a
then-current year's reserve or escrow has under or over-estimated the
then-current year's taxes, the net adjustment, either additional or credit, may
constitute Taxes or a credit to Taxes, respectively, in the year following the
then-current year. It is understood the real estate tax is escrowed each month
in an amount equal to one-twelfth of the estimated tax for the then-current
calendar year so that, by December 31st of each year, an amount is reserved
approximately equal to the total tax for the then-current year, although not
payable until the calendar year subsequent to the then-current year. The sum of
all such monthly reserved amounts shall be considered as a part of Taxes for
each then-current calendar year. There shall be included in Taxes for any year
the amount of all fees, costs and expenses, including attorneys' fees, paid by
the Landlord during, or relative to, such year as pertain to seeking or
obtaining reductions in or refunds of real estate taxes. Taxes in any year shall
be reduced by the net amount of any related tax refund received by Landlord
during such year. If a special assessment which is payable in assessment and any
interest payable or paid during such year. "Taxes" shall exclude, without
limitation, all the following: (i) any income, franchise, payroll, excise,
corporate, estate, inheritance, capital stock or transfer tax levied on Landlord
(to the extent that it is not a substitute in whole or in part for real estate
taxes); (ii) any water charges, sewer rents, or similar charges in the nature of
payments for utilities, however denominated, to the extent, and if, the same are
included in Operating Expenses; (iii) any special assessments for public
improvements not generally applicable throughout a material portion of the
complex in which the Building is located; and (iv) any late payment penalties or
late payment interest charges.
"Rentable Area of the Premises" shall refer to the Tenant's Premises
and shall mean the number of square feet set forth in Item I and as a percentage
of the Rentable Area of the Building shall be equal to Item K, Tenant's
Proportion of the Building.
"Rentable Area of the Building" shall mean the sum of the aggregate
Rentable Area of the Premises of all tenants within the Building, which is
105,720 square feet.
"Subsequent Year" shall mean any calendar year during the Term of this
Lease after the calendar year during which the commencement date of the Term of
this Lease occurs.
ADDITIONAL RENT FORMULA
(i) Taxes.
The Tenant shall pay to the Landlord, as Additional Rent, the amount of
Taxes as defined in this Section ("Taxes") equal to that proportion as the
Rentable Area of the Premises bears to the Rentable Area of the Building (such
proportion hereinafter being called "Tenant's Proportion") for the Base Year and
each Subsequent Year. The amount of Taxes, attributable to the Base Year and to
Subsequent years, shall be the amount accrued during any such year, even though
the payment date for such taxes may be in a different year or years. Such sum
shall be paid in such monthly installments as shall be reasonably estimated by
Landlord.
15
If the tax year for real estate taxes shall be changed by the
applicable governmental authority and shall result in the payment by the
Landlord in one calendar year of taxes which relate to more than one calendar
year, then, notwithstanding anything to the contrary contained in this Lease,
for purposes of determining the Taxes for such calendar year, such amount of
Taxes paid shall be adjusted to an amount which is equivalent to a one-year
payment of Taxes.
In the event that Property is not assessed as fully improved for the
Base Year, then, for the purposes of Sections 5 and 6 of this Lease the Real
Estate Taxes payable in such year shall be borne by the tenants based upon the
assessment of the Property in the following manner: As to the land portion of
the assessment, Tenant shall pay Tenant's Proportion thereof. As to the building
improvement portion of the assessment, Tenant shall pay Tenant's Proportion
unless it shall be shown that the Assessor limited its assessment to only the
Premise of Tenant or to a lesser area than the Rentable Area of the Building, in
which event Tenant shall pay its equitable share based upon the composition
assessment.
(ii) Operating Expenses.
The Tenant shall pay to the Landlord, as Additional Rent, Tenant's
Proportion of the amount of Operating Expense for the Base Year and each
Subsequent Year, and such sum shall be paid in such monthly installments as
shall be reasonably estimated by the Landlord.
If any Project Operating Expense, although paid in one year, relates to
more than one calendar year, at the option of Landlord such Operating Expense
may be proportionately allocated among such related calendar years.
In the event that, during all or any portion for the Base Year or any
Subsequent year, the Building is not fully rented and occupied, Landlord shall
make an appropriate adjustment of Operating Expense for such year, employing
sound accounting and management principles, to determine the Operating Expenses
that would have been paid or incurred by Tenant had the Building been fully
rented and occupied and the amount so determined shall be deemed to have been
the Operating Expenses for such year.
(iii) Cost of Living Increase.
(Applicable only if Option B, Section 42 (d) is exercised by
Tenant).
In the event that the Consumer Last Index at January 1st for any
Subsequent year shall be greater than the Consumer Price Index at January 1st of
the Base year, Tenant shall pay to the Landlord, as Additional Rent, an amount
equal to thirty-three and one-third percent (33-1/3%) of the percentage of
increase by which the Consumer Price Index at January 1st of such Subsequent
year exceeds the Consumer Price Index at January 1st of the Base Year (said
product shall be referred to herein as the "Cost of Living Increase") and then
multiplied by the aggregate amount of the Base Rent and Additional Rent for the
prior calendar year as finally adjusted.
16
(iv) Triple Net Lease.
Notwithstanding any provisions of this Lease which may appear to be in
conflict herewith, the parties acknowledge and agree that this Lease is intended
to be what is commonly known in the real estate industry as a "triple net" or
"net-net-net" lease; that is, in addition to Base Rent, Tenant is obligated to
pay Landlord, as Additional Rent, Tenant's Proportion of Operating Expenses and
Taxes, as defined.
6. ADDITIONAL RENT ADJUSTMENT PAYMENT.
Effective as of each Adjustment Date, and at the time for the payment
of each monthly installment of Base Rent thereafter until the next Adjustment
Date, Tenant shall pay, as Additional rent, an amount equal to 1/12 of the
product of (a) the Rentable Area of the Premises, as specified above, multiplied
by (b) the sum of: (1) the amount of the estimated Per Square Foot Operating
Expenses for the Subsequent Year in which such Adjustment Date falls, plus (2)
the amount of the estimated Per Square Foot Taxes for the Subsequent Year in
which such Adjustment Date falls, plus (3) an amount equal to the product of :
thirty-three and one-third percent (33-1/3%) of the percentage increase, if any,
in the Consumer Price Index for the month of the Adjustment Date over the
Consumer Price Index for January of the Base Year, multiplied by the annual rate
of monthly Base Rent and Additional Rent for the prior calendar year as finally
adjusted divided by the Rentable Area of the Premises.
For purposes of calculating Taxes, Operating Expenses and the Consumer
Price Index for any Subsequent Year, as provided in the preceding paragraph,
Landlord ;may make reasonable estimates, forecasts or projections (hereinafter
the "Projections") of Taxes, Operating Expenses and changes in the Consumer
Price Index for such Subsequent Year. On or about March 1st following each
adjustment Date, Landlord shall deliver to Tenant a written statement (i)
setting forth the Projections of Operating Expenses, Taxes and changes in the
Consumer Price Index for the Subsequent Year in which such Adjustment Date
falls, and (ii) providing a calculation of the Additional Rent which became
effective retroactive to, and as of, said Adjustment Date and until the next
Adjustment Date; provided, however, that the failure of Landlord to provide any
such statement shall not relieve Tenant from its obligation to continue to pay
monthly Base Rent and Additional Rent at the rate then in effect under this
Lease, and when Tenant receives such statement from Landlord, Tenant shall pay
Additional Rent reflected thereby effective retroactively to the related
Adjustment Date.
On or about March 1st following the end of each Subsequent Year, or at
such later time as Landlord shall be able to determine the actual amounts of
Taxes, Operating Expenses and the Consumer Price Index for the Subsequent Year
last ended, Landlord shall notify Tenant in writing of such actual amounts. If
such actual amounts exceed the Projections for such Adjustment Year, then Tenant
shall, within thirty (30) days after the date of such written notice from
Landlord, pay to Landlord the amount of excess of the Additional Rent payable
for the Subsequent Year last ended based upon the actual Taxes, Operating
Expenses and the Consumer Price Index for such year over the total Additional
Rent paid by Tenant on account based on the Projections during and for such
Subsequent Year last ended. The obligation to make such
17
payment shall survive the expiration or earlier termination of the Lease. If the
Additional Rent paid by Tenant during such Subsequent Year based upon the
Projections exceeds the amount payable for such year based upon the actual
Taxes, Operating Expenses and the Consumer Price Index for such Subsequent Year,
then Landlord shall credit such excess to installments of Additional Rent which
shall become payable after the date of Landlord's notice until such excess has
been exhausted or, if this Lease shall expire or terminate prior to full
application of such excess, Landlord shall pay to Tenant the balance thereof not
theretofore applied against Additional Rent within thirty (30) days after
expiration or termination. No interest or penalties shall accrue on any amounts
which Landlord is obligated to credit or pay to Tenant by reason of this Section
unless not credited as aforesaid or paid to Tenant within thirty (30) days after
expiration or termination.
The annual determination and statement of Taxes, Operating Expenses and
the Consumer Price Index shall be prepared in accordance with the income tax
basis of accounting and otherwise in accordance with generally accepted
accounting principles. Tenant shall have the right, at its sole cost and
expense, to inspect Landlord's accounting records relative to Taxes, Operating
Expenses and the Consumer Price Index at Landlord's accounting office during
normal business hours upon reasonable notice at any time within sixty (60) days
following the furnishing by Landlord to Tenant of such statement. Unless Tenant
shall take written exception to any item within such sixty (60) day period, such
statement shall be considered as final and accepted and conclusive upon the
Tenant. If Tenant makes a timely written exception, a certification as to the
proper amount of Additional Rent shall be made by an accounting firm selected by
Tenant from the twenty-five largest independent certified public accounting
firms in Chicago, as designated in the last available Xxxxx'x Chicago Business
Annual Survey of Accounting Firms, provided same has not performed work for
Tenant or its affiliates for the three (3) years immediately preceding the date
of the exception notice, which certification shall be final and conclusive.
Tenant agrees to pay the cost of such certification unless it is determined that
Landlord's presentation or determination of the aggregate amount of the Taxes,
Operating Expenses and the Consumer Price Index for the year was in error by
more than three percent (3%).
In the event of the termination of this Lease by expiration of the Term
or for any other cause or reason whatsoever prior to the determination of the
rental adjustment as hereinabove set forth, Tenant's agreement to pay Base Rent,
Additional Rent, other rent and all other sum or sums due or which may become
due to Landlord up to the time of and upon or pursuant to the expiration or
termination of this Lease, shall survive the expiration or termination of this
Lease and the Tenant shall pay amounts due to Landlord promptly upon demand.
Insofar as the annual determination and statement of Taxes is concerned,
Landlord agrees to make such additional accounting or adjustment as is necessary
following the expiration of the Lease Term, based upon the actual tax bills
received by Landlord after such date of Lease expiration inasmuch as such bills
are likely to be received after the accounting date and procedure set forth in
Section 6.
Notwithstanding anything to the contrary contained in this Lease,
Tenant shall not be entitled to any payment or credit against Base Rent in the
event that the Consumer Price Index shall decrease from its January 1, 1989
level.
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7. HOLDING OVER.
Should Tenant hold over after the termination of this Lease, by lapse
of time or otherwise, Tenant shall become a tenant from month to month only upon
each and all of the terms herein provided as may be applicable to such month to
month tenancy and any such holding over shall not constitute an extension of
this Lease, provided, however, during such holding over, Tenant shall pay
monthly Base Rent and Additional Rent (pursuant to Sections 5 and 6, or as
estimated by Landlord) at 150% of the rate payable for the month immediately
preceding said holding over and, in addition, Tenant shall pay to Landlord all
damages, consequential as well as direct, sustained by reason of Tenant's
holding over, unless Landlord has consented in writing to the hold-over. The
provisions of this Section do not exclude the Landlord's rights of re-entry or
any other right pursuant to this Lease.
8. BUILDING SERVICES.
Landlord shall furnish to Premises during reasonable hours (9:00 A.M.
to 6:00 P.M. on Mondays through Friday and 8:00 A.M. to 1:00 P.M. on Saturdays)
of generally recognized business days as reasonably determined by Landlord, and
subject to the rules and regulations of the Building, heat and air conditioning
required in Landlord's reasonable judgment for the comfortable use and occupancy
of the Premises and passenger elevator and, subject to scheduling by Landlord,
freight service. Landlord shall also furnish cleaning and janitorial maintenance
services, substantially in accordance with Exhibit D, in and about the Premises
and Building (Saturdays, Sundays and holidays excepted). Elevator service shall
mean service by existing non-attended automatic elevators. Subject to reasonable
advance notice, Landlord shall also furnish heating and air conditioning at such
other times as are not provided for herein provided Tenant pays the charge of
Landlord to furnish such additional heating or air conditioning. Landlord shall
also maintain and keep lighted the common stairs, entries and toilet rooms in
the Building at all required times. Landlord shall not be liable for, and Tenant
shall not be entitled to, any abatement or reduction of rent by reasons of
Landlord's failure to furnish any of the foregoing, nor shall such failure
constitute an eviction, whether such failure is caused by accident, breakage,
repairs, energy shortages or restrictions, strikes, lockouts or other labor
disturbances or labor disputes of any character, riots, civil disturbance or by
any other cause, similar or dissimilar, beyond the reasonable control of
Landlord. Landlord shall not be liable under any circumstances for loss of or
injury or other loss or damage, direct or indirect, regardless of type and
however occurring through, or in connection with or incidental to, failure to
furnish any of the foregoing unless such failure was caused by Landlord's
negligence.
Whenever heat generating machines or equipment , including but not
limited to, word processing, photoreproduction, computer and telephone
equipment, are selected by Tenant for us in the Premises and such machinery or
equipment adversely affects the seasonal temperature otherwise maintained by the
air conditioning system, Landlord reserves the right at its election to either
(i) install supplementary air conditioning units in the Premises and the cost
thereof including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord, or (ii) charge Tenant for the additional costs for air conditioning
which are being incurred as a result of Tenant's usage (and would otherwise
19
be borne by the other tenants or Landlord as excessive operating expenses) as
reasonably determined from time to time by Landlord and its engineer or other
energy consultant.
Cold and hot water in common with other tenants for drinking, lavatory
and toilet purposes from regular Building supply drawn through fixtures
installed by the Landlord in common areas and drawn through fixtures installed
in the Premises, shall be supplied by Landlord. Tenant shall pay to Landlord as
an additional charge at rates based on Landlord's cost for water furnished for
any private or other purpose including, but not limited to, fixtures or
machinery within the Premises which utilizes water, or for bath or shower
facilities. The Tenant shall not waste or permit the waste of water. If the
Tenant fail to pay within twenty (20) days the Landlord's proper charges for
such special uses of water by Tenant, the Landlord, upon a notice of not less
than ten (10) days, may, in addition to any other remedy provided in this Lease,
discontinue furnishing that special service and no such discontinuance shall be
deemed an eviction or disturbance furnishing that special service and no such
discontinuance shall be deemed an eviction or disturbance furnishing that
special service and no such discontinuance shall be deemed an eviction or
disturbance of the use by Tenant of the Premises or render Landlord liable for
damages or relieve Tenant from any obligation hereunder.
Electricity for lighting the Premises and for the outlet usages of
Tenant shall not be furnished by Landlord but shall be furnished by Commonwealth
Edison Company, which services the area. Landlord shall permit the Tenant to
receive such service direct from such public utility at Tenant's cost, and shall
permit Landlord's wire and conduits, to the extent available, suitable and
safety and safely capable, to be used for such purposes. Tenant shall make all
necessary arrangements with such utility company for the metering of an payment
for electric current furnished to it and Tenant shall pay for all charges for
electric current consumed on the Premises (except for emergency lighting which
is on Building circuits) during Tenant's lease thereof including the electricity
used during the performance of janitorial services and the making by Landlord of
alterations or repairs within the Premises. Electricity used at Tenant's request
for the operation of air conditioning, heating and ventilation systems of the
Building at times other than as provided above or for the full or unnecessary
lighting of common areas during special times (other than during normal business
hours) as shall be requested by Tenant, or for the operation of any special air
conditioning systems which may required for date processing equipment or for
other special equipment or machinery installed by Tenant, shall be paid for by
Tenant to Landlord promptly upon demand. Tenant shall make no alterations of or
additions to the electrical wiring or equipment and/or appliances without the
prior written consent of the Landlord in each instance. Tenant also agrees to
purchase from the Landlord or its agents, at Landlord's reasonable cost for
labor and material, all lamps, bulbs, ballast and starters used within its
Premises after the initial installation thereof at the commencement of the
Lease. Tenant covenants and agrees that at no time shall its use of electricity
current ever exceed the capacity of the feeders to the Building or the risers or
wiring installation. Tenant will not, without the prior written consent of
Landlord, use any apparatus or device in the Premises which will in any way
increase the amount of electricity or increase the amount of water which
Landlord determines to be reasonable for use of the Premises as general office
space; nor connect with electric current (except through existing electrical
outlets in the Premises) or water pipes, any apparatus or device for the purpose
of using electric current or water. If Tenant shall require
20
water or electric current in excess of the which is respectively obtainable from
existing water pipes or electrical outlets and normal for use of the Premises as
general office space, Tenant shall first obtain the written consent of Landlord.
If Landlord consents to such excess water or electric requirements, Tenant shall
pay all costs of panel equipment, meter service and installation of facilities
necessary to furnishing such excess capacity.
Tenant shall not provide any janitorial services or cleaning without
the Landlord's written consent and then only subject to supervision by Landlord
and at Tenant's sole cost and responsibility and shall be provided by janitors
or cleaning contractors or employees who at all times must be satisfactory to
Landlord.
Landlord shall: (1) carry on a program of preventative maintenance with
respect to the Premises and Building in order to minimize slow-downs or
breakdowns of the mechanical systems; (2) maintain, repair, if necessary,
replace, and keep in good working order and condition throughout the Lease Term
all equipment, facilities, pipes, lines and systems serving the Premises,
including, without limitation, the mechanical systems of the Premises and
Building, and all interior and exterior structural elements of the Premises and
Building, including, without limitation, the foundation and roof of the
Building; and (3) make all repairs made necessary by the negligence, acts or
omissions of Landlord or its officers, agents, partners, servants,
representatives, and employees; and any repairs made necessary by latent
defects, defects in construction, or defects resulting from Landlord's failure
to meet Landlord's maintenance obligation(s) hereunder, including, without
limitation, defects resulting in leakage of water to the windows and exterior
walls of the Building or other openings therein.
Throughout the Lease Term, Landlord shall operate and maintain the
Premises and Building and its structural and mechanical systems at least on a
level comparable to standards maintained in other first-class buildings in the
area in which the Building is located ("the Area"). Landlord shall keep all
common areas and public portions of the Building clean and in good operating
order, condition and repair throughout the Lease Term, including, without
limitation, the lobby, public corridors, elevators, windows, freight facilities,
if any, janitor and telephone closets, and lavatories. Landlord shall maintain
the parking areas, access roadways, and entryways in good repair and condition
and reasonably free from ice, snow and debris. All laws, shrubbery and trees on
the grounds outside the Premises and Building and in the Complex shall be
maintained in an orderly appearance. Landlord shall keep all machinery and
equipment used t provide the service to be furnished by Landlord in first-class
operating order, condition and repair at all times, including, without
limitation, all equipment servicing the mechanical systems. Nothing in the
foregoing recitation of obligations of the Landlord, however, shall be construed
to infer that any of such expenses shall not be deemed to be Operating Expenses
except as may be specifically set forth as excluded pursuant to Section 5.
9. CONDITION OF PREMISES.
Tenant is currently in occupancy and shall be deemed to have agreed
that the Premises are in good order, repair and condition (except for latent
defects). No promise of the Landlord to alter, remodel, decorate, clean or
improve the Premises or the Building and no representation or
21
warranty, express or implied, respecting the condition of the Premises or the
Building has been made by the Landlord to Tenant, unless the same is contained
in and made a part of this Lease. This Lease does not grant rights to light or
air over or about the Property. At the termination of this Lease by lapse of
time or otherwise, Tenant shall return the Premises in a good condition as when
Tenant took possession (excepting ordinary wear and tear and loss by fire or
other insured casualty), failing which the Landlord may restore the Premises to
such condition and the Tenant shall pay the cost thereof promptly upon demand.
This covenant and obligation of Tenant shall survive the expiration or
termination of this Lease.
10. USES PROHIBITED.
Tenant shall not use, or permit the Premises pr any part thereof to be
used, for any purpose r purposes other than as specified in Section 1 of this
Lease. No use shall be made or permitted to be made of the Premises not acts
done which may (i) increase the existing rate of insurance or premium cost
therefor upon the Building or covering its operation or (ii) invalidate or cause
a cancellation of any insurance policy covering the Building or any part
thereof, or (iii) which may be dangerous to life, limb or property. Neither
shall Tenant sell, or permit to be kept, used, or sold, in or about the
Premises, any article which may be prohibited either by law or by the insurance
policies of Landlord. Tenant shall not commit, or suffer to be committed, any
waste upon the Premises, or any public or private nuisance, or other act or
allow anything to be brought into the Premises or the Building upon the Property
which may disturb the quite enjoyment of any other tenant in the Building, or
any adjoining property owner or tenant, nor, without limiting the generality of
the foregoing, shall Tenant shall allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose.
11. COMPLIANCE WITH LAW.
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. At its sole cost and expense, Tenant shall promptly
comply with all laws, statutes, ordinances and governmental rules, regulations
and requirements of the local fire district and any board of fire underwriters
or other similar body now or hereafter constituted, relating to, or affecting ,
the condition (except for items to be maintained by Landlord), Tenant's
particular manner of use or occupancy of the Premises, but excluding structural
changes and changes to Building central systems not necessitated by, related to,
or affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in an action against Tenant,
whether Landlord be a party thereto or not, that Tenant has violated any law,
statute, ordinance or governmental rule, regulation or requirement shall be
conclusive of that fact as between Landlord and Tenant.
12. ALTERATIONS AND REPAIRS.
Tenant shall not make any alterations in or construct any additions to
the Premise without the Landlord's prior specific written consent secured in
each and every instance. If the Landlord shall consent to such alterations or
additions, before commencement of the work or delivery of
22
any materials into the Building or upon the Premises, the Tenant shall furnish
to the Landlord as it may require, the following materials for Landlord's prior
written approval: final engineering plans and specifications (and "as-builts"
after completion); names and addresses of all contractors, sub-contractors, and
materialmen, copies of all contracts and necessary permits; indemnification in
form and amount satisfactory to Landlord; required certificates of insurance
from all contractors performing labor or furnishing materials insuring the
Landlord in breadth of coverage, by type and amount, to protect it against any
and all liabilities which may arise out of or be connected in any way with said
additions or alterations; and advance waivers of lien against any and all
claims, costs, damages, liabilities and expenses of any kind which may arise in
connection with the alterations or additions. Whether the Tenant furnishes the
Landlord with the foregoing or not, the Tenant hereby agrees to hold the
Landlord, its beneficiaries and the partners thereof, 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, except liabilities resulting from the negligence of
Landlord or its agents or employees, and , if requested by Landlord, Tenant
shall, at its own costs, appear and defend Landlord, its beneficiaries and the
partners thereof, and their respective agents and employees by legal counsel
satisfactory to Landlord. Any mechanic's lien filed against the Premises, the
Building, or the Property for work or materials claimed to have been furnished
to the Tenant shall be discharges of record by the Tenant within ten (10) days
thereafter, at Tenant's expense, except if Tenant shall elect to contest as
provided hereinafter. If Tenant shall fail to have said lien satisfied and
released of record as aforesaid or, as to any lien claim which Tenant shall
elect to contest, shall fail to (i) post a satisfactory bond or other security
in such form and amount as shall be agreeable to Landlord or (ii) promptly
contest and diligently and expeditiously prosecute to successful conclusion any
such lien claim, then after ten (10) days' notice to Tenant and on behalf of
Tenant, Landlord may, without being responsible for making any investigation as
to the validity thereof, pay the amount of said lien and Tenant shall promptly
reimburse Landlord therefor. The Tenant shall pay the cost of all such
alterations and additions and also the cost of decorating the Premises as may be
occasioned by such alterations and additions. Upon completing any alterations or
addition, the Tenant shall furnish the Landlord with contractors' affidavits and
full and final waivers of lien all fully executed in proper form and subject to
approval of Landlord's counsel, and receipted bills covering all labor and
materials provided and used. All additions and alterations shall be constructed
in a good and workmanlike manner and only new, high grade, building standard or
better quality materials shall be used. All alterations and additions shall
comply with all insurance requirements and with all ordinances and regulations
of the Village of Bannockburn and any department, commission or agency thereof
and with the requirements of ll statutes and regulations of the State of
Illinois and County of Lake and of any department, commission or agency thereof.
The Tenant shall permit the Landlord to supervise construction operations in
connection with alterations or additions if the Landlord requests to do so. All
additions, hardware, non-trade fixtures and all improvements, temporary or
permanent, in or upon installation, and shall, unless the Landlord requests
their removal, by notice to Tenant, 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 notice, the Tenant does not
remove said additions, 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 promptly upon demand. Notwithstanding anything herein to the
contrary, if Landlord desires
23
that any addition, hardware, non-trade fixture or improvement (whether temporary
or permanent), in or upon the Premises, be removed by Tenant at the termination
of this Lease, Landlord shall so advise Tenant prior to the installation of such
item in order that Tenant may determine whether such items should be installed
in light of Landlord's desire that such item be removed by Tenant at a later
date, provided Tenant has given Landlord, prior to the installation of such
item, reasonable written notice of the intended installation allowing Landlord
and its engineers and architects to examine such plans, and Tenant has complied
with all other provisions of this Lease which may affect such installation. The
Tenant shall remove the Tenant's furniture, machinery, safes, trade fixtures and
other items of personal property of ever kind and description from the Premises
prior to the end of the Term, however ended, or in the event Tenant's right to
possession is terminated without a termination of this Lease. If not so,
removed, the Landlord may request their removal, and if the Tenant does not
remove them, the Landlord may, but shall not be required to, do so and the
Tenant shall pay the cost of such removal to the Landlord promptly upon demand.
If the Landlord does not request their removal, all such items 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. Subject to the provisions of Section 8 and 17 and at its own cost
and expense, Tenant shall keep the Premises in good order, condition and repair
during the Term including but not limited to, the replacement of all interior
broken glass with glass of the same size and quality, with the approval of the
Landlord. If the Tenant does not make repairs promptly and adequately, the
Landlord may elect, but shall not be required, to make repairs upon ten (10)
days prior to notice to Tenant, and the Tenant shall promptly pay the cost
thereof. At any time or times, the Landlord, either voluntarily or pursuant to
governmental requirements, may, at the Landlord's own expense, make repairs,
alterations or improvements in or to the Building or any part thereof, including
the Premises, and, during operations, may close entrances, doors, corridors,
elevators or other facilities, all without any liability to the Tenant by reason
of interference, inconvenience or annoyance. 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, or street. The
Tenant shall pay the Landlord for overtime and any other expense incurred in the
event repairs, alterations, decorating or other work performed in the Premises
is performed at the Tenant's request during non-ordinary business hours.
13. ABANDONMENT OF PREMISES.
Tenant shall not abandon the Premises at any time during the Term, and
if Tenant shall abandon or surrender (whether at the end of the stated Term or
otherwise) the Premises, or be dispossessed by process of law or otherwise, any
personal property belonging to Tenant and left on the Premises for more than ten
(10) days following termination of Tenant's occupancy of the Premises shall be
deemed abandoned, at the option of Landlord.
14. ASSIGNMENT AND SUBLETTING.
Tenant shall not assign this Lease, or any interest herein, and shall
not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without the prior written consent of
24
Landlord first had and obtained. Landlord agrees not to unreasonably withhold
consent to any such assignment, occupancy or subletting provided: (i) at the
time thereof Tenant is not in default under this Lease; (ii) Landlord in its
sole discretion reasonably exercised, determines that the reputation, business,
proposed use of the Premises and financial responsibility of an by the proposed
single entity or person or assignee, sublessee or occupant, as the case may be,
of the Premises are satisfactory to Landlord; (iii) any assignee or sublessee
shall expressly assume all of the obligations of Tenant under this Lease; (iv)
such consent, if given, shall not release Tenant from any of its obligations,
including, without limitation, its obligation to pay rent and other sums
becoming due to Landlord, under this Lease; (v) Tenant agrees specifically to
pay to Landlord, as Additional Rent, all sums received by Tenant under the terms
and conditions of such assignment, sublease. or occupancy which are in excess of
the sum of amounts otherwise required to be paid pursuant to this Lease and all
amounts spent by Tenant to effect such assignment or sublease; (vi) a consent to
one assignment, subletting, occupation or use by any person or entity other than
Tenant shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another person or entity; and (vii) no such
assignment, subletting or occupation shall infer the ability to divide the
Premises into smaller suites or among more than one entity. Any such assignment,
subletting or occupancy without such consent shall be void and shall, at the
option of Landlord, constitute a default under this Lease. Neither this Lease
nor any interest herein shall be assignable as to the interest of Tenant by
operation of law without the written consent of Landlord, which consent may be
arbitrarily withheld. If Tenant shall at any time seek Landlord's consent to
assign this Lease or subject or have another person or entity occupy all of the
Premises as provided herein, then, within thirty (30) days following such notice
by Tenant to Landlord, which notice shall specify all particulars as Landlord
may request concerning the proposed sublease, assignment or occupancy including
but not limited to, names of proposed assignees of sublessees and term of the
proposed transaction, Landlord shall have the right to terminate this Lease as
to all of the Premises and recapture possession of the Premises, in which case
Tenant shall thereafter be released from all obligations under this Lease
accruing after such termination if such obligations relate to the remaining
portion of the Term following the date the Lease has been terminated and so long
as not in conflict with other provisions contained elsewhere in this Lease. In
the event that Tenant shall elect to attempt to assign or sublease all of its
Premises and shall choose to advertise, list with a real estate broker or
brokers, or otherwise show the Premises to prospective assignees or sub-lessees,
Tenant shall be required (i) to comply with Rules and Regulations in relation to
use of any likeness of the Building or Property, and (ii) to refrain from
publicly advertising a rental rate less than that then-quoted by the Landlord
for space within the Building or complex.
15. SIGNS.
Tenant shall not place or affix any exterior or interior signs visible
from the outside of the Building or Premises without the prior written consent
of Landlord. The Tenant shall not display, inscribe, print, paint, maintain or
affix on any place in or about the Building or Property any sign, notice,
legend, direction, figure or advertisement.
25
16. DAMAGE TO PROPERTY; INJURY TO PERSONS.
As a material part of the consideration to be rendered to Landlord
under this Lease and to the full extent permitted by law, Tenant hereby waives
all claims, except claims caused by or resulting from the negligence of
Landlord, its agents or employees, which Tenant or Tenant's successors or
assigns may have against Landlord, its beneficiaries, the partners thereof and
the agents and employees of all of the foregoing, for loss, theft or damage to
property and fir injuries to persons in, upon or about the Premises, the
Building or the Property, from any cause whatsoever. Tenant will hold Landlord,
its beneficiaries , the partners thereof and the agents and employees of all of
the foregoing exempt and harmless from and on account of any damage or injury to
any person, or to the property of any person or entity arising from the use of
the Premises by Tenant or arising from the failure of Tenant to keep the
Premises in good condition as herein provided, except for damage or injury
resulting from the negligence of Landlord, its beneficiaries, the partners
thereof or the agents or employees of any of the foregoing. Neither Landlord nor
its beneficiaries, nor the partners thereof nor the agents or employees of any
of the foregoing shall be liable to Tenant for any damage by or from any act or
negligence of any co-tenant or other occupant of the Building, or by any owner
or occupant of adjoining or contiguous property. Tenant agrees to pay for all
damage to the Property or the Building or the Premises, as well as all damage to
tenants or occupants thereof caused by Tenant's misuse or neglect of the
Premises or Building its apparatus or appurtenances or caused by any licensee,
invitee, contractor, agent or employee of Tenant.
Specifically, but not in limitation of the foregoing paragraph, all
property belonging to Tenant or any occupant of the Premises or any agent,
employee, licensee or invitee of such occupant or Tenant that is on the
Property, in the Building or the Premises shall be there at the risk of Tenant
or such other person only, and neither Landlord, nor its beneficiaries, nor the
partners thereof, nor the agents or employees of any of the foregoing (except in
case of the negligence of Landlord or its beneficiaries, or its agents or
employees) shall be liable for: damages to or theft of or misappropriation of
such property; damage to property entrusted to Landlord, its agents or
employees, if any; the loss or damage to any property by theft or otherwise by
any means whatsoever, any injury or damage to persons or property resulting from
fire, explosion, falling plaster or ceiling tiles, steam, gas, electricity,
snow, water or rain which may leak from any part of the Building or from the
pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place or resulting from dampness, or any other
cause whatsoever; nor for interference with the light or other incorporeal
hereditaments, nor for any latent defect in the Premises or in the Building.
Tenant shall give prompt notice to Landlord in case of fire or accident in the
Premises or in the Building or of defects therein or in the fixtures pr
equipment appurtenant thereto.
Tenant agrees to indemnify and save the Landlord, its beneficiaries,
the beneficiaries, partners and their respective agents and employees, of all of
the foregoing, harmless against any and all claims, demands, costs and expenses,
including reasonable attorneys' fees, for the defense thereof ("claims"),
arising from Tenant's occupation of the Premises or from any breach or default
on the part of the 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
26
Tenant, its agents, employees or invitees, in or about the Premises, the
Building or the Property, except claims resulting from the negligence of
Landlord, its beneficiaries, the partners thereof or the agents or employees of
any of the foregoing. In case of any action or proceeding brought against
Landlord, its beneficiaries, the beneficiaries, partners or their respective
agents or employees of any of the foregoing , by reason of any such claim. upon
notice from Landlord, Tenant covenants to defend such action or proceeding by
counsel reasonably satisfactory to Landlord. If any damage, whether to the
Premises or to the Building or to the Property, or any part thereof, or whether
to the Landlord or to other tenants in the Building, results from any act or
neglect of the Tenant or of the Tenant's agents, employees, licensees or
invitees, the Landlord may, at the Landlord's option, repair such damage and the
Tenant shall, upon demand by the Landlord, reimburse the Landlord forthwith for
the total costs of such repairs.
Tenant shall maintain in full force and effect during the Term of this
Lease, with financially responsible and reputable companies, insurance coverages
in type and amount as follows: (i0 fire and extended coverage insurance
(including an endorsement for vandalism and malicious mischief) covering all of
Tenant's property in, on or about the Premises, with full waiver of subrogation
rights against Landlord and in an amount equal to the full replacement cost of
such property; and (ii) Comprehensive General Liability insurance, insuring
Tenant and naming Landlord, its beneficiaries, the partners thereof and their
respective agents and employees as additional insureds against all claims,
demands and action for bodily injury, personal injury or death in any one
occurrence in an amount of not less than $1,000,000 and with an aggregate limit
of not less than $1,000,000 and for damage to property in an amount of not less
than $1,000,000 for each occurrence and $1,000,000 in the aggregate, made by or
on behalf of any person, firm or corporation, arising from, related to, or
connected with the conduct and operation of Tenant's business in the Premises
and, in addition, and in like amounts, covering Tenant's contractual liability
under the aforesaid hold harmless clause. Certificates of such insurance shall
be delivered to Landlord in advance of possession and new certificates in
advance of the dates of policy expirations. All such insurance policies shall
indicate that at least thirty (30) days' prior written notice shall be delivered
to Landlord by the insurer prior to termination, cancellation or any amendment
of such insurance.
17. DAMAGE OR DESTRUCTION.
In the event the Premises or the Building are damages by fire or other
casualty, Landlord may elect by notice to the Tenant within thirty (30) days
after the fire or casualty; (a) to terminate this Lease; or (b) to repair and
restore the Building or the Premises at Landlord's expense within one hundred
eighty (180) days after the Landlord has adjusted the loss and is able to take
possession of the damaged portions of the Building or Premises and undertake
reconstruction or repairs, in which latter event this Lease shall not terminate.
If the Landlord elects not to repair and restore, then Landlord shall, in its
written notice to Tenant of such election to terminate, specify a date for the
termination of the Lease, which shall not be more than sixty (60) days after the
giving of such notice, and upon the date specified in such notice the Term shall
expire as fully and completely as if such date were the date described above for
the expiration of this Lease. In such event, Tenant shall forthwith vacate and
surrender the Premises without prejudice, however, to Landlord's rights and
remedies against Tenant under the Lease provisions
27
in effect prior to such termination, and any rent and any other amount owing to
Landlord shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make the repairs and restorations under the conditions hereof
with all reasonable expedition. If the Landlord elects to so repair and restore
the Building or the Premises and does not substantially complete the work within
the one hundred eighty (180) day period or within such additional period to
which such period may be extended pursuant to the provisions of Section 27
hereof, either party may terminate this Lease as of the date of the fire or
casualty by notice to the other party not later than ten (10) days following the
expiration of such 180 day period or such additional period, as the case may be.
In the event any such damage not caused by the act or neglect of the Tenant, its
agents or employees renders the Premises untenantable, and if this Lease shall
not be canceled and terminated by reason of such damage as provided hereinabove,
then the base Rent and Additional Rent shall xxxxx during the period beginning
with the date of such damage and ending with the date when the Premises are
again rendered tenantable. Such abatement shall be in an amount bearing the same
ratio to the total amount of Base Rent and Additional Rent for such period as
the untenantable portion of the Premises from time to time bears to the entire
Premises. Except as provided in this Section, there shall be no abatement of
rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business or property arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Premises
or in or to fixtures, appurtenances and equipment therein, which repairs,
alterations or improvements are necessitated by fire or other casualty.
Tenant understands that Landlord will not carry insurance of any kind
on Tenant's furniture and furnishings or on any fixtures or equipment including
but not limited to, trade fixtures, removable by Tenant under the provisions of
this Lease, and that Landlord shall not be obligated to repair any damage
thereto or to replace the same. Landlord shall not be required to repair any
damage thereto or to replace the same. Landlord shall not be required to repair
any injury or damage caused by fire or other cause or to make any repairs to or
replacements of improvements installed in the Premises by or for Tenant unless
Tenant has advised Landlord in writing prior to the loss as to all of the
pertinent details concerning replacement values. Tenant hereby agrees at
Tenant's election, to either: (i) insure the portion of tenant improvements and
other improvements made by Tenant as its cost within Tenant's premises to the
extent in excess of the Landlord's contribution as set forth in Exhibit C, and
provide Landlord a certificate of insurance evidencing such insurance coverage
which shall name Landlord as additional insured; or (ii) pay to Landlord as
Additional Rent or other rent from time to time, upon demand, the cost to
Landlord of insuring the portion of tenant improvements and other improvements
made by Tenant at its cost within Tenant's Premises to the extent in excess of
the Landlord's contribution as set forth in Exhibit C. Such charges shall b e
computed by Landlord on the basis of the appropriate prorated portion of
insurance premium allocable to Tenant at the actual rate from time to time being
charged to Landlord to insure improvements within the Building. Tenant's
election shall be in writing and shall be transmitted to Landlord prior to
completion of any such improvements. In the absence of such written election,
alternative (ii) shall apply.
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18. ENTRY BY LANDLORD.
Landlord and its agents shall have the right, upon prior notice to
Tenant (except in emergencies or as otherwise agreed by the parties), to enter
the Premises at all reasonable times and if abandoned at any time, for the
purpose of examining or inspecting the same, to supply janitorial and cleaning
services and any other service to be provided by Landlord to Tenant hereunder,
to render emergency repair or other emergency service, to investigate unusual
noises or odors, to show the same to present or prospective purchasers, lenders,
or, during the last twelve (12) months of the Term of this Lease, prospective
tenants of the Building, and to make such alterations, repairs, improvements or
additions, whether structural or otherwise, to the Premises or to the Building
as Landlord may deem necessary or desirable. Landlord may enter by means of a
master key without liability to Tenant, except for any failure to exercise due
care for Tenant" property and without affecting this Lease. Landlord shall use
reasonable efforts on any such entry not to unreasonably interrupt or interfere
with Tenant's use and occupancy of the Premises.
19. INSOLVENCY OR BANKRUPTCY.
If, at any time during the Term or prior thereto, there shall be filed
by or against Tenant ii any court pursuant to any statute, either of the United
States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, and within sixty (60) days thereof Tenant shall
fail to secure a discharge thereof, or if Tenant makes an assignment for the
benefit of creditors at the option of Landlord exercised within a reasonable
time after notice of the happening of any one or more of such events, this Lease
may be canceled and terminated, in which event neither Tenant nor any person
claiming through or under Tenant by virtue of any statute or of an order of any
court shall be entitled to possession or to remain in possession of the Premises
demised, but shall forthwith quit and surrender the Premises. In addition to the
other rights and remedies Landlord has by virtue of any other provisions herein
or elsewhere in this Lease contained or by virtue of any statute or rule of law,
Tenant specifically agrees that Landlord may retain any rent, security deposit
or other monies received by it from Tenant or others in behalf of Tenant to be
applied upon the obligations of Tenant hereunder as may be or become due and
unpaid in such manner as Landlord may deem appropriate.
20. DEFAULT.
If any of the following events of default shall occur, to wit:
(i) Tenant defaults in the payment of rent (whether Base Rent
or Additional Rent or other rent) or any other sum required to be paid
hereunder or any part thereof and such default shall continue for a
period of ten (10) days after written notice thereof to Tenant, or
(ii) Tenant defaults in the prompt and full performance of any
non-monetary covenant, agreement or condition of this Lease and such
other default shall continue for a period of thirty (30) days after
written notice thereof to Tenant (unless such default
29
involves a hazardous condition, in which event it shall be cured
forthwith), excepting, however, any default which cannot be cured
within such thirty (30) days period with which Tenant has commenced,
and with due diligence is proceeding to cure. or
(iii) The leasehold interest of Tenant be levied upon under
execution or be attached by process of law or if Tenant abandons the
Premises,
then, and in any such event, besides other rights or remedies it may have by law
or otherwise, Landlord shall have the immediate right of re-entry without
process of law and may remove all persons and property from the Premises; and
such property may be removed and stored in any other place, for the account of
and at the expense and at the risk of Tenant. Any such property of the Tenant
not claimed oar retaken from storage by Tenant within sixty (60) days after the
end of the Term, however, ended (or, in the event Tenant's right to possession
is terminated without a termination of this Lease, within sixty [60] days after
the date such right is 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. Tenant hereby
waives all claims for damages which may be caused by the re-entry of Landlord
and taking possession of the Premises or removing or storing the furniture and
property as herein provided, and shall save Landlord harmless from any loss,
costs or damages occasioned to Landlord thereby; and no such re-entry shall be
considered or construed to be a forcible entry or detainer, trespass or
eviction, or a relinquishment of Landlord's right to rent or other rights given
to Landlord hereunder or by operation of law.
Should Landlord elect to re-enter, as herein provided, or take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, it may either terminate this Lease or it may, either terminate this
Lease or it may, but need not, from time to time, without terminating this
Lease, relet the Premises or any part thereof for such term or terms and at such
rentals and upon such other terms and conditions as Landlord in its sole
discretion may deem advisable, with the right to make alterations and repairs to
the Premises, the costs for which shall be paid for by Tenant, provided such
costs do not exceed the aggregate remaining financial obligations of Tenant
hereunder. The Landlord shall not be required to accept any tenant offered by
Tenant or otherwise observe any instructions given by the Tenant concerning such
reletting; provided, however, that if any substitute tenant tendered by Tenant
shall be financially responsible and shall, by all other normal and reasonable
standards, be at least as acceptable to Landlord as Tenant would be if Tenant
were not in default, then the approval of Landlord shall not be unreasonably
withheld.
Landlord may elect to apply rentals received by it to any or all of the
following, in such order as Landlord may deem appropriate from time to time: (i)
to the payment of any indebtedness, other than rent, due hereunder from Tenant
to Landlord; (ii) to the payment of all costs, commissions and other expenses of
such reletting; (iii) to the payment of the cost of alterations and repairs to
the Premises; (iv) to the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of future rent
as the same may become due and payable hereunder. If, at any time, the net rent
received from reletting after applications by Landlord of payments described in
the foregoing clauses (i) through (iv) be less
30
than that agreed to be paid by Tenant hereunder, then Trustee shall pay such
deficiency to Landlord. Such deficiency shall be calculated by Landlord and paid
by Tenant to Landlord promptly on demand.
In lieu of electing to terminate this Lease, to terminate possession,
or to receive and apply rentals as provided in the immediately preceding
paragraph, Landlord may elect to receive from Tenant, as and for Landlord's
liquidated damages for Tenant's default, an amount equal to the sum of the
present value of (i) the entire amount of Base Rent provided for in this Lease
for the remainder of the Term, plus all other amounts to become due and payable
to Landlord under any other provisions of this Lease for the remainder of the
Term, including, but not limited to, Additional Rent, other rent and other
amounts to become due from Tenant to Landlord, as may be, at Landlord's
election, projected by Landlord at the then current rates for such item(s) or
otherwise reasonably estimated by Landlord; plus (ii) all other amounts then due
and payable to Landlord under any other provisions of this Lease, including, but
not limited to, all then accrued and unpaid Base Rent, Additional rent, other
rent and other amounts then due from Tenant to Landlord such as, but not limited
to, payment for tenant improvements. For purposes of determining present value,
Landlord shall use a discount rate equal to one percent above the then-current
published or quoted prime or base rate charged by American National Bank and
Trust Company of Chicago on short term commercial loans to its customers.
No such re-entry or taking possession of the Premises by Landlord shall
be construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant pursuant to this Section 20 or
unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach.
Nothing herein contained shall limit or prejudice the right of Landlord
to obtain as damages by reason of any such termination of this Lease or of
possession an amount equal to the maximum allowed by any statute or rule of law
in effect at the time when such termination takes place, whether or not such
amount be greater, equal to, or less than the amounts of damages which Landlord
may elect to receive as set forth above.
The Tenant shall pay upon demand all the Landlord's costs, charges and
expenses, including the fees of counsel, agents and other 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.
21. RULES AND REGULATIONS.
Tenant hereby agrees to obey the following rules and regulations, as
well as such rules and regulations as may be hereafter adopted by Landlord
pursuant to the provisions of Section 29, for the safety, care and cleanliness
of, and maintenance of good order in and on the Premises, the Building, the
Property and all contiguous property and improvements thereon. The violation by
Tenant of any such rules and regulations set forth in this Section 21 or as may
be hereafter adopted, may at Landlord's option be deemed a default under this
Lease by Tenant, affording
31
Landlord all those remedies set out in Section 20 hereof and Tenant agrees any
violation may also be restrained by injunction, and Tenant shall be liable for
all damages by reason of any violation, including. but not limited to, all of
the increase, if any, in insurance premiums caused by such violation. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant,
occupant or invitee of the Building, the Property or any contiguous property of
any of said rules and regulations. (a) The Tenant shall occupy and use the
Premises during the Term for the purpose above specified and none other. (b) The
Tenant shall not exhibit, sell or offer for sale on the Premises or in the
Building any article or thing except those articles and things essentially
connected with the stated use of the Premises or Building without the advance
written consent of the Landlord. (c) The Tenant shall not make or permit to be
made any use of the Premises which, directly or indirectly is forbidden by
public law, zoning ordinance or governmental regulation or which may be
dangerous to life, limb or property or which may increase the premium cost of,
or invalidate any policy of insurance carried which covers the Building or its
operation. (d) The Tenant shall not display, inscribe, print, paint, maintain or
affix on any place in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises and on the
directory board, and then only such name or names and matters, and in such
color, size, style, place and material, as shall first have been approved by the
Landlord in writing. (e) The Tenant 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 or Property in any circulars,
notices, advertisements or correspondence without the prior express consent in
writing of the Landlord. (f) The Tenant 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 or the Property. (g) No bicycle or other vehicles and no dog or other
animal or bird shall be brought or permitted to be in the Building or any part
thereof. (h) The Tenant shall not make or permit any noise or odor that is
objectionable to other tenants of the Building to emanate from the Premises, and
shall not create or maintain a nuisance thereof, and shall not disturb, solicit
or canvass any other occupant of the Building, and shall not do or permit any
act tending to injure the reputation of the Building. (i) The Tenant shall not
install or use any piano, phonograph or other musical instrument, or use any
phonograph or similar device in the Building or any antennae, or aerial wires
outside the Building without, in each and every instance, prior approval in
writing by the Landlord. The use thereof, if permitted, and also of radio or
television equipment shall be subject to control by the Landlord to the end that
others shall be disturbed or annoyed. (j) The Tenant shall not waste water. (k)
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 an
extraordinary number of keys for one lock are desired by the Tenant. the
Landlord may provide the same upon payment to Landlord by Tenant of a reasonable
charge therefor. Upon termination of this Lease or of the Tenant's possession,
the Tenant shall surrender all keys to locks into and within the Premises and
shall make known to the Landlord combinations for locks on safes, cabinets and
vaults. (1) The Tenant shall be responsible for the locking of doors in and to
the Premises. (m) If the Tenant desires telegraphic, telephone, burglar alarm or
signal service, the Landlord will, upon request, direct where and how
connections and all wiring for such service shall be introduced and run. Without
such directions, no boring, cutting or installation of wires or cables if
permitted (except wiring and cabling under raised floors). (n) Although
furnished by Landlord, the standard venetian blinds, or from time to time, other
32
Landlord-furnished interior window coverings shall be cleaned by Landlord but
kept in good repair and maintained at the expense of the Tenant and must be of
such shape, color, material and make as approved by the Landlord. (o) If elected
by Landlord, all persons-entering or leaving the Building between the hours of 6
p.m. and 8 a.m.,. Monday through Friday, or at any time on Saturdays, Sundays or
holidays, may be required to identify themselves to a watchman, by registration,
by a key and/or security card, or otherwise and to establish their rights to
enter or leave the Building. The Landlord may exclude or expel any peddler,
solicitor, beggar or other person without specific business or valid reason to
be in the Building at any time. (p) The Tenant shall not overload any floor. The
Landlord shall be notified and asked to direct the routing and location of safes
and all other heavy articles. 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 may be required to list all furniture, equipment and
similar articles to be removed from the Building, and the list must be lodged at
the office of the Building or by a designated person before Building employees
will permit any article to be removed. (1) The Tenant shall not install or
operate any steam or internal combustion engine, boiler, machinery, refrigerator
or heating device or air-conditioning apparatus in or about the Premises, or
carry on any mechanical or manufacturing business therein, or use the Premises
for housing accommodations or lodging or sleeping purposes, or do any cooking
therein except by not more than one (1) standard kitchen-sized microwave over
per wing in the employee break rooms, 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
explosives or other articles deemed extra hazardous to life, limn or property.
(r) The Tenant shall not place or allow anything to be against or near the glass
of partitions or doors of the Premises which may diminish the light in, or be
unsightly from, halls or corridors. (s) The Tenant shall 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 its equitable share of 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 its equitable
share of such safe capacity. (t) The Tenant shall not lay linoleum or other
similar floor covering so that such floor covering shall come in direct contact
with the floor of the Premises. If linoleum or other similar floor covering is
approved by Landlord, an interliner of builder's deadening felt shall first be
affixed to the floor by paste or other material soluble in water. The use of
damaging cement or other similar materials is prohibited. (u) Landlord may
establish controls for the purpose of regulating all property and packages (both
personal and otherwise) to be moved into or out of the Building and Premises.
(v) Landlord may regular delivery and service of supplies in order to insure the
cleanliness and security of the Premises and to avoid congestion of the
receiving areas and elevators. (w) Subject to the provisions of Section 18,
Landlord may show the Premises to prospective tenants at reasonable hours during
the last twelve (12) months of the Term and, if abandoned, may show the Premises
at any time. (x) Tenant shall not xxx the Premises to engage in the manufacture
or sale or permit the use of any spiritous, fermented, intoxicating or alcoholic
beverages on the Premises or in the Building or on the Property. (y) Tenant
shall not use the Premises to engage in the manufacture
33
or sale or permit the use of any illegal drugs on the Premises. (z) Tenant shall
not cause any unnecessary janitorial labor or services to be incurred by reason
of Tenant's special improvements made after Tenant's initial buildout, or by
carelessness or indifference to the preservation of good order and cleanliness.
22. TAXES.
During the term hereof and prior to delinquency, Tenant shall pay all
taxes assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises, and Tenant shall
cause said fixtures, furnishings, equipment and other personal property to be
assessed and billed separately from the real and personal property of Landlord.
In the event any or all of the Tenant's fixtures, furnishings, equipment or
other personal property shall be assessed and taxed with the Landlord's real or
personal property, the Tenant shall pay to Landlord its share of such taxes
within thirty (30) days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes applicable to the Tenants'
property.
23. INTENTIONALLY DELETED.
24. EMINENT DOMAIN.
If the Building, or a substantial part thereof or a substantial part of
the Premises, shall be lawfully taken, or condemned, or conveyed under threat of
such taking or condemnation, for any public or quasi-public use or purpose, the
Term of this Lease shall end upon, and not before, the date of the taking of
possession by the condemning authority, and without apportionment of the award t
Tenant. Tenant shall have the right to appear at any condemnation proceeding to
claim any separate award with respect to the value of Tenant's fixtures,
improvements, furniture, partitions, equipment, relocation expenses and loss of
business. Landlord shall have the right to claim and recover all Rent and
Additional Rent and other rent or sums that would otherwise have been due under
the Lease had the Lease not been terminated. Base Rent, Additional Rent and
other rent or sums to be paid by Tenant to Landlord shall be pro-rated as of the
date of such termination. Tenant" recovery shall not in any way detract from, or
lessen, Landlord's recovery for lost rent or other consideration lost by
Landlord. If any non-substantial part of the Building other than the Premises or
a non-substantial part of the Premises shall be so taken, or condemned, or
conveyed under threat of such taking or condemnation, or if the grade of any
street adjacent to the Building is changed by any competent authority and such
taking or change of grade makes it necessary to substantially remodel or restore
the Building, Landlord shall have the right to cancel this Lease upon not less
than ninety (90) days' notice prior to the date of cancellation designated in
the notice. No money or other consideration shall be payable by Landlord to
Tenant for the right of cancellation, and Tenant shall have no right to share in
any proceeds of any sale made under any threat of condemnation or taking.
25. SUBORDINATION TO MORTGAGE AND DEEDS OF TRUST.
This Lease and the rights of Tenant hereunder shall be and are hereby
made subject and subordinate to the lien of any mortgage, mortgages or deeds of
trust now or hereafter existing
34
against the Building, the Property or any part or parts thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Although such subordination shall be self-operating, Tenant, or its successors
in interest, shall, upon Landlord's request, execute and deliver to Landlord any
and all instruments desired by Landlord subordinating in the manner requested by
Landlord this Lease to any such mortgage or deed of trust. Tenant shall execute
all such subordination instruments within ten (10) days after Tenant's receipt
of notice from Landlord (requiring the execution thereof.)
Should any mortgage affecting the Building or the Property be
foreclosed: (i) 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 Building or Property and such liability shall not
continue or survive after further transfer of ownership; and (ii) Tenant shall
be deemed to have attorned, as tenant, under this Lease to purchaser at any
foreclosure sale thereunder subject to the condition that Tenant shall have the
right to remain in possession subject to the terms of this Lease, and this Lease
shall continue in force and effect as a direct lease between and binding upon
Tenant and such mortgagee. As used in this Section, "mortgagee" shall include
the successors and assigns of any such party, whether immediate or remote, the
purchaser of any mortgage, whether at foreclosure or otherwise, and the
successors, assigns and mortgagee of such purchaser, whether immediate or
remote. Tenant, to the extent not prohibited by law, waives the provisions of
any statute or rule of law, now or hereafter in effect, which may give or
purport to give Tenant any right or election to terminate or otherwise adversely
affect this Lease and the obligation of Tenant hereunder in the event any such
foreclosure proceeding is brought, prosecuted or completed.
Notwithstanding the foregoing, if any mortgagee or trustee elects to
have this Lease and the interest of Tenant hereunder superior to any such
interest or right and evidences such election by notice given to Tenant, then
this Lease and the interest of Tenant hereunder shall be deemed superior to any
such instrument, whether this Lease was executed before or after such instrument
and in that event such mortgagee or trustee shall have the same rights with
respect to this Lease as if it had been executed and delivered prior to the
execution and delivery of such instrument and had been assigned to such
mortgagee or trustee. The provisions of this paragraph shall be self-operative
if such election shall be made and no further instrument shall be required;
provided, however, in confirmation thereof Tenant shall execute such further
assurances as may be required.
So long as Tenant shall observe and perform its covenants and
agreements hereunder, Tenant shall, at all times during the Term herein granted,
peacefully and quietly have and enjoy possession of the Premises without any
encumbrance or hindrance by, from or through Landlord, its successors or
assigns, including any mortgagee.
Landlord further reserves the right from time to time, without notice
to Tenant, to collaterally assign this Lease and the rents to become due to
Landlord hereunder as security for a loan or loans. Tenant Hereby consents to
all such assignments from time to time
35
(notwithstanding any lack of notice thereof) and upon notice to Tenant, Tenant
is hereby directed and agrees to comply with the terms of any such assignment.
26. NON-WAIVER.
The waiver by Landlord of any breach of any term, covenant or condition
therein contained shall not be deemed to be a waiver of the subsequent breach of
the same or any other term, covenant or condition herein contained. The
acceptance of rent or any other sums due to Landlord hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant or
condition of this Lease. It is understood and agreed that the remedies herein
given to Landlord shall be cumulative and the exercise of any one remedy by
Landlord shall not be to the exclusion of any other remedy.
27. INABILITY TO PERFORM.
This Lease and the obligation of Tenant to pay rent and other sums due
to Landlord hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed shall not be affected, impaired
or excused, nor shall Landlord at any time be deemed to be in default hereunder,
because Landlord is unable to fulfill any of its obligations under this Lease or
cannot supply or is delayed in supplying any service expressly or by implication
to be supplied or performed or is unable to make or is delayed in making any
Building improvements, repairs, additions, alterations or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of any cause whatsoever
beyond the reasonable control of Landlord, including but not limited to strike
or labor disputes, Acts of God, riots and civil disturbances or energy shortages
or governmental preemption in connection with a national emergency or by reason
of any rule, order or regulation of any department or subdivision thereof or any
government agency or quasi-government agency or by reason of the conditions of
supply and demand which have been, are or may be affected by, war or other
emergency.
28. SUBROGATION.
The parties hereto agree to use good faith efforts to have any and all
fire, extended coverage and any and all material damage insurance which may be
carried endorsed with a subrogation clause to the effect that such insurance
shall not be invalidated nor shall the right of the insured to recovery
thereunder be adversely affected should the insured waive in writing prior to a
loss any or all right of recovery against any party for loss occurring to the
property described therein; and each party hereto hereby waives all claims for
recovery from the other party for any loss or damage (whether or not such loss
or damage is caused by negligence of the other party and notwithstanding any
provision or provisions contained in this Lease to the contrary) to any of its
property insured under valid and collectible insurance policies to the extent of
any recovery collected under such insurance, subject to the limitation that this
waiver shall apply only when it is not prohibited by the applicable policy of
insurance.
36
29. PLATS AND RIDERS.
Clauses, plats and riders, if any, signed by Landlord and Tenant and
endorsed on or affixed to this Lease are a part hereof, and in the event of
variation or discrepancy, a counterpart or duplicate original hereof, including
such clauses, plats and riders, if any, as held by Landlord shall control. Any
commercially reasonable rules and regulations which may be promulgated by
Landlord from time to time whether or not attached hereto are specifically made
a part of this Lease, whether signed by Tenant or not, effective on the
thirtieth (30th) day following Tenant's receipt of a notice of the promulgation
of such rule or regulation, unless prompted by, or as may be considered, an
emergency.
30. SALE BY LANDLORD.
In the event of a sale or conveyance by Landlord of the fee of the
Building containing the Premises, the same shall operate to release Landlord
from any future liability upon any of the covenants or conditions express or
implied, herein contained in favor of Tenant, and in such event Tenant agrees to
look solely to the responsibility of the successor in interest of Landlord in
and to this Lease. If any security deposit has been made by Tenant, Landlord may
transfer or credit such security deposit to such successor in interest of
Landlord and thereupon Landlord shall be released from any further obligations
hereunder.
31. RIGHT OF LANDLORD TO PERFORM.
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent or setoff of any other amount due from
Tenant to Landlord. If Tenant shall fail to pay any sum of money, other than
rent, required to be paid by it hereunder, or shall fail to perform any other
act on its part to be performed hereunder, and Tenant shall not have commence to
cure such failure within ten (10) days after notice thereof by Landlord (except
in an emergency when no notice shall be required), Landlord may, but shall not
be so obligated, without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such other act on Tenant's part to
be made or performed as in this Lease provided. All sums so paid by Landlord and
all necessary incidental costs together with interest thereon at the rate set
forth in Section 4 from time to time during such period from the date of such
payment by Landlord, shall be payable to Landlord promptly on demand. Tenant
covenants to pay all such sums and Landlord shall have, in addition t any other
right or remedy of Landlord, the same rights and remedies in the event of the
non-payment thereof by Tenant as in the case of default by Tenant in the payment
of rent.
32. ATTORNEY'S FEES.
In the event of any litigation between Tenant and Landlord to enforce
any provision of this Lease or any right of either party hereto, the
unsuccessful party of such litigation shall pay to the successful party all
costs and expenses, including reasonable attorneys' fees incurred therein. If
Landlord or any of its beneficiaries or the partners, agents or employees
thereof, without fault, is made a party to or threatened with any litigation or
caused to become involved in any
37
controversy or matter instituted by or against Tenant, Tenant shall indemnify
Landlord and its beneficiaries and the partners, agents, and employees thereof
against and save them harmless from all costs, loss, and expenses, including
reasonable attorneys' fees, incurred by any one or all of them in connection
therewith and if requested by Landlord, to appear and defend such action by
legal counsel satisfactory to Landlord.
33. ESTOPPEL CERTIFICATE.
Tenant shall, at any time and from time to time, within ten (10) days
after a written request from Landlord addressed to Tenant's National Facilities
Manager is received at Tenant's headquarters in Northbrook, Illinois, execute,
acknowledge and deliver to Landlord and to such other parties as Landlord shall
direct, a statement in writing certifying, inter alia, that this Lease is
unmodified and in full force and effect (or if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect); the dates to which the rent and other charges are paid and
acknowledging that there are not any uncured defaults on the part of Landlord
hereunder (or specifying such defaults if any are claimed); that the Premises
have been completed in accordance with the terms of this Lease and that Tenant
is in occupancy and paying rent on a current basis with no rental offsets or
claims (or if any specifying the nature and amount); there has been no
prepayment of rent other than as specified in the Lease, if any; and such other
matters as may be required by the Landlord or its mortgagee. It is expressly
understood and agreed that any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Property of
which the Premises are a part. Tenant's failure to deliver such statement within
such time shall be conclusive upon Tenant that this Lease is in full force and
effect, without modification except as may be represented by Landlord, that
there are no uncured defaults in Landlord's performance and that nor more than
one (1) months' rent has been paid in advance. Further, such failure by Tenant
shall, at the written election of Landlord and not otherwise, constitute a
default hereunder and render Tenant liable for all damages caused by such
default. The form and content of Estoppel Certificate as is presently required
by Landlord and its mortgagee is attached hereto as Exhibit E.
34. INTENTIONALLY DELETED.
35. NOTICE.
Any notice from Landlord to Tenant or from Tenant to Landlord shall be
served either personally or by certified or registered mail, postage prepaid,
return receipt requested. If served by mail, notice shall be deemed served on
the second (2nd) calendar day after mailing addressed to Tenant at the Premises
or to Landlord at the place from time to time established by it for the payment
of rent. Either party may change the place for the giving of notices by a
written notice delivered in the manner provided herein. A copy of each notice
served upon Tenant shall be sent to the address of Tenant's headquarters: TSI
International Software Ltd., Attn: Vice President of Finance and Administration
and Chief Financial Officer, 00 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000-0000.
36. INTENTIONALLY DELETED.
38
37. RIGHTS RESERVED TO LANDLORD.
Landlord reserves the following rights, exercisable without notice and
without liability to Tenant for damage or injury to property, person or business
and without effecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession or giving rise to any claim for setoff or abatement
of rent:
(a) To change the Building's name or street address.
(b) To install, affix and maintain any and all signs on the
exterior and interior of the Building and upon the Property.
(c) To control all interior lighting that may be visible from the
exterior of the Building and all exterior lighting on the
Property.
(d) To designate, restrict and control all sources from which
Tenant may obtain sign painting and lettering, drinking water,
towels, toilet supplies, catering, food and beverages, or
other services in the Building and on the Premises, and in
general to designate, limit, restrict and control any service
in or to the Building and its tenants. No vending or
dispensing machines of any kind shall be placed in or about
the Premises without the prior written consent of Landlord.
(e) To decorate or to make repairs, alterations, additions or
improvements, whether structural or otherwise, in and about
the Property or Building, or any part thereof, including the
Premises, and for such purposes to enter upon the Premises,
and during the continuance of said work to temporarily close
doors, entryways, public spaces and corridors in the Building
and to interrupt or temporarily suspend Building services and
facilities.
(f) To have and retain a paramount title to the Premises free and
clear of any act of Tenant. Tenant has no authority or power
and warrants it shall not cause or permit the recording or
assertion of any lien, this Lease, or any lease or encumbrance
of any kind whatsoever, whether created by the act of Tenant,
by operation of law or otherwise, to attach to, be placed
upon, or cloud or complicate Landlord's title or interest in
the Property, Building or Premises, and any and all liens and
encumbrances created by Tenant shall attach to Tenant's
interest only and shall be promptly removed by Tenant upon
demand by Landlord.
(g) To grant to anyone the exclusive right to conduct any business
or render any services within the Building or to, or on, the
Property, provided that such exclusive right does not
interfere with Tenant's right to conduct its own business.
(h) Notwithstanding the provisions of (d) and (g) above, Tenant
shall not be required to obtain a service from a vendor
specified by Landlord if such vendor's charges for comparable
service are not competitive.
39
38. INTENTIONALLY DELETED.
39. REAL ESTATE BROKER(S).
Tenant represents that it has dealt directly with, and only with, its
broker(s) set forth as such in Item N as broker in connection with this Lease
and that, insofar as it knows, no other broker negotiated or participated on its
behalf in the negotiation of this Lease or submitted or showed the Premises to
Tenant or is entitled to any commission in connection therewith by reason of the
actions of Tenant. Landlord hereby agrees to pay the commissions due to each of
the broker(s) named in Item N in connection with the Lease in such amount, if
any, and manner as Landlord has agreed with such broker(s) by separate
agreement. Tenant hereby agrees to indemnify, appear and defend, and hold
harmless the Landlord from all loss, costs, liability and expense, including but
not limited to attorneys' fees, arising from any claim or demand for a broker's
commission in respect to this Lease by any other broker with whom the Tenant has
been in contact other than the broker, if any, named in Item N as having acted
for it.
40. MISCELLANEOUS DEFINITIONS AND PROVISIONS.
A. The term "office" or "offices" wherever used in this Lease shall not
be construed to mean or permit the Premises to be used at any time as a store or
stores, for the sale or display of goods, wares or merchandise of any kind, or
as a restaurant, shop, booth, including but not limited to, cigar store, shoe
repair or other stand, or for providing personal service of any kind including,
but not limited to, a beauty shop or a barbershop, or for other similar
purposes, or for manufacturing. The words "re-enter" or "re-entry" as used in
this Lease are not restricted to their technical legal meaning. The term
"Landlord" as used in this Lease means only the Landlord from time to time, and
upon conveying its interest, Landlord shall be relieved from any further
obligation or liability pursuant to section 30. The words "Landlord" and
"Tenant" whenever used in this Lease shall be construed to mean the plural and
singular where necessary and the necessary grammatical changes required to make
the provisions hereof apply either to corporations, other entities, individuals,
men or women, shall in all cases be assumed as though in each case more
specifically and fully expressed.
B. Time is of the essence of this Lease and each and all of its
provisions.
C. Submission by Landlord or its agent of this instrument for
examination or signature by Tenant does not constitute a reservation of or offer
or option for lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant; provided, however, the
execution and delivery of this instrument by Tenant to Landlord or the agent of
Landlord's beneficiary shall constitute an irrevocable offer coupled with an
interest by Tenant to lease the Premises upon the terms and conditions herein
contained, which offer may not be revoked for thirty (30) days after such
delivery to Landlord or the agent of Landlord" beneficiary.
D. The invalidity or unenforceability of any provision hereof shall not
affect or impair any other provisions.
40
E. This Lease shall be governed by and construed pursuant to the laws
of the State of Illinois.
F. Should any mortgagee or proposed mortgagee require a modification of
this Lease, which modification shall 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, Tenant agrees that this
Lease may be so modified.
G. All rights and remedies of Landlord under this Lease, or that may be
provided by law, may be exercised by Landlord in its name individually, or in
its name by its beneficiary or agent, and all legal proceedings for the
enforcement of any such rights or remedies including, but not limited to,
distress for rent, forcible detainer, and any other legal or equitable
proceedings, may be commenced and prosecuted to final judgment and execution by
Landlord in its own name individually or in its name by its beneficiary or
agent. Tenant expressly stipulates that any rights or remedies available to
Landlord either by the provisions of this Lease or otherwise may be enforced by
Landlord in its own name as Trustee aforesaid or in its name by agent or
beneficiary.
H. The marginal headings and titles to the paragraphs of this Lease are
provided primarily for ease of reference and shall not be construed to affect
the construction or interpretation of any provision hereof.
I. No receipt of money by the Landlord from the Tenant after the
termination of this Lease or after service of any notice or demanded or after
the commencement of any suit or after final judgment for possession of the
Premises shall renew, reinstate, continue or extend the term of this Lease or be
construed to affect any such notice, demand or suit.
J. Notwithstanding anything to the contrary set forth in this Lease,
wherever in this Lease Landlord's consent or approval is required to any action,
such consent or approval shall not be unreasonably withheld or delayed. Wherever
Landlord's judgment or discretion is to be exercised, it shall be exercised
reasonably. Any fees, costs, charges, or expenses that Tenant is required to
reimburse to Landlord shall mean Landlord's actual, direct, and reasonable,
costs, charges, fees or expenses in all such cases.
41. SUCCESSORS AND ASSIGNS.
The covenants and conditions herein contained shall apply to and
benefit and bind the respective heirs, successors, executors, administrators and
assigns of the parties hereto. The terms "Landlord" and "Tenant" shall include
the successors and assigns of either such party, whether immediate or remote.
42. ADDITIONAL RIDER PROVISIONS.
a. Assignment and Subletting, Further Provisions. Anything to the
---------------------------------------------
contrary in Section 14 of the Lease notwithstanding, upon a prior written
notification to Landlord sufficiently detailed as to the circumstances and
financial aspects, but without requiring the prior consent of the Landlord,
Tenant may assign the Lease or sublet the Premises to any directly or
41
indirectly wholly- or partially-owned subsidiary of The Dun & Bradstreet
Corporation or an affiliate thereof or Tenant or parent of Tenant or an
affiliate of Tenant or a successor corporation by a merger, consolidation or
sale of assets, subject to the condition that Tenant shall remain liable for the
faithful performance of all of the terms and covenants of the Lease, and further
subject to the condition that the financial responsibility of Tenant or Assignee
shall not have been materially diminished by merger, consolidation, sale of
assets, acquisition by a parent or other company or for any other reason and
that Assignee possesses a financial worth at least equivalent to Tenant's
financial worth at the date of execution hereof or can, in Landlord's
estimation, fulfill Tenant's obligations under this Lease. Tenant hereby agrees
to notify Landlord with the specifics thereof in advance of, or
contemporaneously with, any such merger, consolidation, sale of assets or
acquisition.
Anything to the contrary in Section 14 of the Lease notwithstanding,
the spaces shall be so subleased in a manner so as not to divide the Premises
into small separate areas of less than one full wing, and the foregoing does not
and shall not be construed to be a waiver of Landlord's rights to approve any
alterations and additions as provided in Section 12 of this Lease.
In the event Tenant shall at any time be required to seek Landlord's
consent to assign this Lease or sublet a portion or all of the Premises as
provided in Section 14 of this Lease and Landlord shall thereafter elect not to
terminate pursuant to said Section 14, then, in such event, Tenant shall pay to
Landlord, at the time and in the manner that it makes monthly payments of rent,
fifty percent (50%) of the excess (if any), after deducting Tenant's expenses
incurred in effecting the assignment or sublease, of the rent and all other
similar amounts received by Tenant from any such assignee or subtenant over the
sum of Base Rent (as periodically adjusted) and Additional Rent (as periodically
adjusted) then being paid by Tenant to Landlord for such space.
b. Security System. Landlord shall provide Landlord's standard security
---------------
system for the Building which currently includes an after-hours key system for
entrance to the outer vestibule and, currently, a Honeywell magnetic card system
for access to the inner lobby atrium area. A Schlage central processing unit is
currently maintained by the Building management and controls card access into
the Building. If Tenant shall so elect, the Landlord shall make available to
Tenant magnetic card readers, wiring and related equipment for use at such of
its entrances as Tenant may choose, at a per-reader material, labor and an
overhead cost and fee of 21% to Tenant. The cost will vary depending upon floor,
distance of card reader from central connections within the Building and any
other necessary or desired related equipment. Currently, there is no charge for
use of conduit, wiring or other equipment of Landlord as may be located outside
the Building. A nominal monthly maintenance charge, on a per-card reader basis,
will be charged to Tenant if individual card readers are elected by Tenant for
the use of its employees in gaining entry into any of Tenant's Premises within
the Building. If requested, and at Tenant's costs, Landlord shall cooperate with
Tenant to cause a security key-pad or card reader to be installed in the
elevators and/or within the stairwells so as to bar access to the third floor
level by unauthorized persons.
c. Option to Extend - Option A. Tenant shall have the right, to be
---------------------------
exercised as hereinafter provided, to extend the term for one (1) consecutive
period of eighteen (18) months,
42
which shall commence on the day following the day upon which the Initial Term
expires and shall end on a date which is the eighteenth (18th) month anniversary
of the commencement date of the Initial term (the "Extension Period"), upon
satisfaction of the following terms and conditions:
(i) At the time of the exercise of such right and at the time the
Extension Period begins, Tenant shall not be in either material nor monetary
default in the performance of any of the terms, covenants or conditions herein
contained;
(ii) This Lease shall not have been terminated during the initial
Term, and shall be in full force and effect at the date of the exercise of the
right to extend and at the date upon which the Extension Period begins;
(iii) The extension shall be upon the same terms, covenants and
conditions contained in this Lease, except that the Base Rent and determination
of Additional Rent shall be as set forth in Section 4, Base Rent in this Lease
and provided further that no new rights to extend shall be construed to be
thereby created and no other inapplicable provisions such as, but not limited
to, any obligation to construct or contribute toward tenant improvements, for
rental abatement, or for any reimbursement by, or cost to, Landlord, shall be
construed to be contained in or govern such Extension period; and
(iv) the extension shall be an extension of the entire leased Premises
and Tenant shall have no right to exercise the right of extension as to less
than the entire Premises.
Tenant shall exercise its right of extension for the Extension Period
granted hereby only in the following manner: no later than six (6) months prior
to the end of the Initial term, Tenant shall notify Landlord in writing of its
election to exercise its right to extend the Term of this Lease for such
additional period at the amounts of annual base rent set forth in Section 4,
pursuant to the right granted hereby. Such notice shall be given in the manner
in this Lease provided relative to notices.
Tenant shall also pay to Landlord during the Extension Period its
proportion of all Operating Expenses and Taxes from the commencement date of the
Extension Period.
Landlord shall have the right to elect to waive any condition or
default so as to effectuate an extension by Tenant.
d. Option to Extend - Option B. Tenant shall have the right, to be
---------------------------
exercised as hereinafter provided, to extend the term for one (1) consecutive
period of five (5) years, which shall commence on the day following the day upon
which the Initial Term expires and shall end on a date which is the fifth (5th)
anniversary of the commencement date of the Initial Term (the "Extension
Period"), upon satisfaction of the following terms and conditions:
(i) At the time of the exercise of such right and at the time the
Extension period begins, Tenant shall not be in default either material or
monetary default in the performance of any of the terms, covenants or conditions
herein contained;
43
(ii) This Lease shall not have been terminated during the Initial
Terms, and shall be in full force and effect at the date of the exercise of the
right to extend and at the date upon which the Extension Period begins;
(iii) The extension shall be upon the same terms, covenants and
conditions contained in this Lease, except that the Base Rent and determination
of Additional Rent shall be modified as set forth hereinafter elsewhere in this
Lease, and except that no new rights to extend shall be construed to be thereby
created and no other inapplicable provisions such as, but not limited to , any
obligation to construct or contribute toward tenant improvements, for rental
abatement, or for any reimbursement by, or cost to, Landlord, shall be construed
to be contained in and govern such Extension Period; and
(iv) The extension shall be an extension of the entire leased Premises
and Tenant shall have no right to exercise the right of extension as to less
than the entire Premises.
Landlord shall notify Tenant no later than seven (7) months prior to
the end of the Initial Term of the amount of annual Base Rent for the Premises
for the Extension Period granted hereby, which shall be determined by Landlord
according to the following formula: the rate per rentable square foot being
quoted for newly-leased space within the Building as of the date of Landlord's
notice to Tenant shall be reduced by $2.00 per rentable square foot for the
Extension Period, when multiplied by the rentable square footage of the
Premises, 12,095 rentable square feet, shall equal the amount of annual Base
Rent for the Premises during the Extension Period. Tenant shall exercise its
right of extension for the Extension Period granted hereby. Such notices shall
be given in the manner in this Lease provided relative to notices.
Tenant shall also pay to Landlord during the Extension Period its
proportion of all Operating Expenses and Taxes from the commencement date of the
Extension Period and for annual increases in the Consumer Price Index (Cost of
Living Increase) based upon the Base Year, 1994, in accordance with the
provisions of Sections 5 and 6 of this Lease. The Base Year for the
determination of such Cost of Living Increase for such Extension Period shall be
the calendar year 1994.
Landlord shall have the right to elect to waive any condition or
default so as to effectuate an extension by Tenant.
e. Landlord's Conditional Right to Terminate. Notwithstanding any
-----------------------------------------
provision to the contrary as may be contained elsewhere within this Lease, the
Landlord shall have the sole right and option, upon a prior notice to Tenant of
at least one hundred twenty (120) days, to terminate this Lease or any extension
thereof, effective as of and on December 31, 1994, or at the end of any calendar
month thereafter. Such right to terminate shall be conditioned upon the event
that either X. X. Xxxxxxx or The Dun and Bradstreet Corporation or any
partially- or wholly-owned subsidiary or affiliate thereof shall have executed a
Lease with Landlord for the premises demised hereby.
44
43. TENANT'S AUTHORITY.
Tenant warrants and represents that it has full power and authority to
enter into this Lease and all related agreements and undertakings and, upon
request, will provide to Landlord such instruments and assurances in that
respect as Landlord shall request including, but not limited to, a certified
copy of a corporate or partnership resolution authorizing, confirming or
ratifying these actions by the respective officers or general partners executing
this Lease and related documents.
44. EXCULPATORY CLAUSE.
This instrument is executed by the undersigned Land Trustee, not
personally but solely as Trustee in the exercise of the power and authority
conferred upon and vested in it as such trustee. It is expressly understood and
agreed that all of the warranties, indemnities, representations, covenants,
undertakings and agreements herein made on the part of the Trustee are
undertaken by it solely in its capacity as Trustee and not personally. No
personal liability or personal responsibility is assumed by or shall at any time
be asserted or enforceable against the trustee on account of any warranty,
indemnity, representation, covenant, undertaking or agreement of the Trustee in
this instrument.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, not individually but
solely as Trustee under Trust Agreement dated
[Corporate Seal] June 1, 1978 and known as Trust No. 42978
ATTEST: By: /S/ Xxxxx Xxxxxxxx
------------------------------------------
Its: Vice President
-----------------------------
Its: Assistant-Secretary
TENANT:
[Corporate Seal] TSI INTERNATIONAL SOFTWARE LTD
ATTEST: By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Its: President
/s/ Xxxxxxx Xxxxxxxx Authorized Signatory
-----------------------------
Its: VP, Finance
Authorized Signatory
45
STATE OF ILLINOIS }as
COUNTY OF XXXX
I, Xxxxxxx Xxxxx, a Notary Public duly authorized in and for
-------------
said County, in the State aforesaid, DO HEREBY CERTIFY, that Xxxxx Xxxxxxxx
--------------
of American National Bank and Trust Company of Chicago and
Xxxxx Xxxxxxxx of said Banking Association who are personally known to
--------------
me to be the same persons whose names are subscribed to the foregoing Office
Building Lease as Vice-President and Assistant-Secretary, respectively, appeared
before me this day in person and acknowledged that they signed and delivered the
Office Building Lease as their own free and voluntary act and as the free and
voluntary act of said Banking Association, the Trustee as aforesaid, for the
uses and purposes therein set forth; and the said Assistant-Secretary then and
there acknowledged that he, as custodian of the corporate seal of said Banking
Association, did affix the corporate seal of said Banking Association to said
Office Building Lease as his own free and voluntary act and as the free and
voluntary act of said Banking Association, as Trustee as aforesaid, for the uses
and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 12th day of March, 1994.
---- ----- --
[Notarial Seal] (Seal)
---------------------
Notary Public
My commission expires:
02/11/96
----------------------------
STATE OF Connecticut ]as
-----------
COUNTY OF Fairfield
---------
I, Xxxxxx Xxxxxxx, a Notary Public duly authorized in and for said
--------------
County, in the State aforesaid, DO HEREBY CERTIFY, that Xxxxxxxxx Xxxxxx and
----------------
Xxxxxxx Xxxxxxxx who are personally known to me as the same persons whose names
----------------
are subscribed to the foregoing Office Building Lease as (Vice-) President and
(Assistant-) Secretary, respectively, of the Tenant named therein, appeared
before me this day in person and severally acknowledged before me that they
signed and delivered the Office Building Lease as such officers as their own
free and voluntary act of said Corporation, for the uses and purposes therein
set forth, having sworn before me that they are duly authorized and fully
empowered to execute said Office Building Lease, and the said (Assistant-)
Secretary then and there acknowledged that he, as custodian of the corporate
seal of said Corporation, did affix the corporate seal of said Corporation to
said Office Building Lease as his own free and voluntary act and as the free and
voluntary act of said Corporation for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 22nd day of March, 1994.
---- ----- --
[Notarial Seal] (Seal)
----------------------
Notary Public
My commission expires:
March 31, 1995
----------------------------
46
EXHIBITS
47
GRAPHICS
[Plan of Premises, Building B First Floor]
48
EXHIBIT B
Legal Description of Property
Land (10.043 acres) and Building
--------------------------------
PARCEL 1: THAT PART OF THE NORTH 1/2 OF THE NORTH EAST 1/4 OF THE NORTH WEST 1/4
OF SECTION 20, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL
MERIDIAN, LYING EASTERLY OF THE RIGHT OF WAY OF THE CHICAGO, MILWAUKEE AND ST.
XXXX RAILROAD COMPANY (EXCEPT THEREFROM THE WESTERLY 60 FEET THEREOF NOW USED AS
A PUBLIC HIGHWAY) AND THE WESTERLY 200 FEET (AS MEASURED ALONG THE NORTH AND
SOUTH LINES THEREOF) OF THE NORTH 1/2 OF THE NORTH WEST 1/4 OF THE NORTH EAST
1/4 OF SECTION 20 AFORESAID, AND THE EAST 20 FEET OF THE WEST 220 FEET (AS
MEASURED ALONG THE NORTH AND SOUTH LINES AFORESAID) OF THE SOUTH 200 FEET OF THE
NORTH 1/2 OF THE NORTH WEST 1/4 OF THE NORTH EAST 1/4 OF SECTION 20 AFORESAID
(EXCEPTING THEREFROM THAT PART THEREOF LYING WESTERLY OF THE FOLLOWING DESCRIBED
LINE: BEGINNING AT A POINT ON THE NORTH LINE OF THE NORTH WEST 1/4 OF SECTION
20, AFORESAID, 360 FEET WEST OF THE EAST LINE OF THE NORTH EAST 1/4 OF THE NORTH
WEST 1/4 OF SAID SECTION 20; THENCE SOUTHERLY ALONG A LINE 360 FEET WEST OF AND
PARALLEL WITH THE AFOREMENTIONED EAST LINE OF THE NORTH EAST 1/4 OF THE NORTH
WEST 1/4, 266.08 FEET; THENCE WEST PARALLEL WITH THE NORTH LINE OF THE NORTH
WEST 1/4 OF SECTION 20 AFORESAID, 161 FEET; THENCE SOUTH PARALLEL WITH THE
AFOREMENTIONED EAST LINE OF THE NORTH EAST 1/4 OF THE NORTH WEST 1/4, 297.24
FEET TO THE SOUTH LINE OF THE NORTH 1/2 OF THE NORTH EAST 1/4 OF THE NORTH WEST
1/4 OF SAID SECTION 20; ALSO EXCEPT THE SOUTH 14 FEET OF THE WEST 126 FEET OF
THE EAST 442.45 FEET (AND ALSO EXCEPT THE SOUTH 1.00 FOOT OF THE EAST 316.45
FEET) OF THE NORTH 1/2 OF THE NORTH EAST 1/4 OF THE NORTH WEST 1/4 OF SAID
SECTION 20, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN,
LYING EAST OF THE EASTERLY RIGHT OF WAY LINE OF THE CHICAGO, MILWAUKEE AND ST.
XXXX RAILROAD, IN LAKE COUNTY, ILLINOIS.
Parking Easement
PARCEL 2: EASEMENT FOR INGRESS, EGRESS, PARKING AND OTHER PURPOSES, FOR THE
BENEFIT OF PARCEL 1 AS STATED BY THE FIRST RESTATEMENT OF CROSS-EASEMENT
AGREEMENT DATED JANUARY 11, 1982 AND RECORDED JANUARY 19, 1982 AS DOCUMENT
2146522 AND AS STATED BY SECOND RESTATEMENT OF CROSS-EASEMENT AGREEMENT DATED
MAY 1, 1986 AND RECORDED OCTOBER 6, 1986 AS DOCUMENT 2490734 AND BY THIRD
CROSS-EASEMENT AGREEMENT DATED AUGUST 1, 1990 AND RECORDED DECEMBER 17, 1990 AS
DOCUMENT 2973898, (EXCEPT ANY PART THEREOF FALLING IN PARCEL 1), ALL IN LAKE
COUNTY, ILLINOIS.
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EXHIBIT D
CLEANING AND JANITORIAL MAINTENANCE SERVICES
Landlord shall furnish cleaning and janitorial maintenance services as
described below at least as frequently as set forth:
MONDAY THROUGH FRIDAY
1. Sweep, dry mop or vacuum all floors, compete. Remove gum, tar,
etc., adhering to the floors.
2. Empty and damp wipe all ashtrays.
3. Dust all horizontal surfaces that can be reached without a
ladder with a treated cloth, mitt or duster.
4. Clean, polish and sanitize all drinking fountains.
5. Sweep all steps, sidewalks, and plazas.
6. Clean passenger elevator cab and landing doors, including
floors.
7. Empty all waste containers.
8. Clean all public wash and restrooms:
(a) All cleaning will be performed with approved
germicidal detergents at disinfectant strengths.
(b) All toilets and urinals will be cleaned on all
surfaces nightly; acid bowl cleaner to be used in
the interior.
(c) All wash basins, shelves, dispensers and all other
washroom fixtures will be cleaned nightly.
(d) All mirrors will be cleaned and polished nightly.
(e) All chrome and other bright work, including exposed
plumbing, toilet seat hinges, etc., will be cleaned
and polished nightly.
(f) All waste receptacles are to be emptied and cleaned
nightly.
(g) All lavatory floors will be swept and mopped with a
germicidal detergent solution nightly.
(h) Washroom supplies will be replenished nightly, as
needed.
9. All normal rubbish and office waste paper shall be removed
from tenant floors and carried to a designated location.
WEEKLY
1. Dust and wipe clean with dust cloth all desk tops.
2. Spot clean all doors, switch plates, wall and glass areas
adjacent to doors.
3. Dust and wipe all tops of all file cabinets and counters.
4. Sweep building stairwells.
5. Damp mop floors and/or spray buff for heavy scuffs, if
necessary.
6. Clean glass in building directory.
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7. Wipe all waste containers.
8. Wash all glass entrance doors and side panels inside and out.
MONTHLY
1. When possible, sweep and hose down outside terrace space,
exterior walks, trucking areas and shipping platforms.
2. Shampoo all elevator carpeting.
3. Dust all windowsills.
4. Once each month, remove hard water stains from toilet
fixtures by using bowl cleaner after normal cleaning.
EVERY THREE MONTHS
1. When possible, wash all windows, both interior and exterior,
but not less than three times per year.
2. Dust all vertical surfaces of all furniture.
3. Scrub all resilient floor areas so as to maintain a highly
polished surface.
4. All lavatory floors will be machine scrubbed every three
months.
SNOW AND ICE REMOVAL
1. Landlord shall be responsible for snow and ice removal from
the parking lots, sidewalks and roadways serving the Property.
INITIALS:
For Landlord: /s/ CG
------------------
For Tenant: /s/ PJ
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EXHIBIT E
ESTOPPEL CERTIFICATE
May 1, 1994
Transamerica Life Insurance
and Annuity Company
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Bannockburn Lake Office Plaza
Limited Partnership II
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Re: Lease of Premises, Suite E-100, First Floor
in Building B at
Bannockburn Lake Office Plaza,
To TSI International Software Ltd.
Gentlemen:
In Accordance with the provisions of Paragraph 33 of that certain
Office Building Lease (the "Lease") dated January 26, 1994 by and between
American National Bank and Trust Company of Chicago, not individually but solely
as Trustee under Trust Agreement dated June 1, 1978 and known as Trust 42978
("Landlord") and TSI International Software Ltd. ("Tenant"), we hereby make the
following certifications to Transamerica Life Insurance and Annuity Company
("Transamerica")(and/or Landlord's other mortgagee):
1. The Lease is in full force and effect. The Term of the Lease
commences on May 1, 1994. The primary Least Term expires on
December 31, 1995. No necessary licenses and permits are
required. The use of the Premises is and will be lawful. The
Lease had not been modified.
2. There are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord under the terms of the Lease.
3. Landlord has satisfied all conditions of an inducement nature
in the Lease.
4. Tenant has no charge, lien, claim or offset of any kind
against Landlord. Tenant will not withhold or reduce payments
on account of rent for any reason, except as may be specified
in the Lease.
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5. If a security deposit has been paid to Landlord pursuant to
the Lease, Tenant agrees not to look to Transamerica, as
mortgagee, mortgagee in possession, or successor in title to
the Property for accountability on any security deposit
received by Landlord for the prompt and full performance by
Tenant under the Lease, unless said sum has actually been
received by Landlord for performance by Tenant under the Lease
and unless said sum has actually been received by
Transamerica.
6. Tenant understands that the Lease may have been collaterally
assigned to Transamerica as security for a loan to Landlord
and agrees that Tenant has not and will not prepay rent other
than the one month's rent next becoming due.
7. Tenant agrees that it will not terminate the Lease or its
tenancy on account of any default by Landlord unless Tenant
shall first have given a written notice to Transamerica
specifying such default and afforded a reasonable opportunity
to cure such default.
We understand and agree that the above certifications may be relied upon by the
above addressees and any prospective purchaser or encumbrancer of all or a
portion of the Property of which the Premises are a part.
TENANT:
(Corporate Seal) TSI International Software Ltd.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Print Name:
---------------------
Title: VP, Finance
--------------------------
Authorized Signatory
ATTEST:
By: /s/ Xxxxx Xxxxxx
--------------------------
Print Name:
------------------
Title: Executive Assistant
-----------------------
Authorized Signatory
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