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EXHIBIT 10.1
OFFICE LEASE
for
METAL MANAGEMENT, INC.
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a Delaware corporation duly qualified to transact business in Illinois
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at
THE XXXXX BUILDING
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
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TABLE OF CONTENTS
1. Basic Lease Provisions & Identification of Exhibits 1
2. Premises & Term 2
3. Base Rent 5
4. Adjustments to Base Rent 6
5. Security Deposit 10
6. Delivery of Possession 10
7. Condition and Care of Premises 12
8. Services 14
9. Assignment and Subletting 19
10. Waiver of Subrogation 21
11. Indemnification 21
12. Insurance 22
13. Fire or Casualty 23
14. Alterations and Improvements 25
15. Eminent Domain 27
16. Lessor's Remedies 27
17. Surrender 29
18. Holding Over 30
19. Rules and Regulations 30
20. Lessors Rights 31
21. Estoppel Certificate 32
22. Subordination 33
23. Notices 33
24. Miscellaneous 34
Exhibit A Premises Base Plan
Exhibit B Building Rules and Regulations
Exhibit C Workletter
Exhibit D Rider
Guaranty
Real Estate Broker Disclosure
Certificate of Authority (Corporation or Partnership)
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XXXXX BUILDING OFFICE LEASE
1. BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS
1.01 BASIC LEASE PROVISIONS
A. BUILDING IDENTIFICATION
XXXXX BUILDING
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
X. XXXXXX AND ADDRESS:
XXXXXXXX PROPERTIES, LTD., an Illinois corporation, 00 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, As Agents of the beneficiaries of
XXXXXX BANK GLENCOE-NORTHBROOK, N.A., not personally but as Trustee of
Land Trust No. L-582 (the "Trust").
C. LESSEE AND LEASED PREMISES:
LESSEE NAME: METAL MANAGEMENT, INC., A DELAWARE CORPORATION DULY
QUALIFIED TO TRANSACT BUSINESS IN ILLINOIS, currently located at: x/x
X. Xxxxxxxx Xxxxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000.
LEASED PREMISES: 000 XXXXX XXXXXXXX XXXXXX - XXXXX #000, Xxxxxxx,
Xxxxxxxx 00000, consisting of approximately 4,514 square feet of
rentable area, as defined in Section 24.27, on the 4TH floor of the
Building, as depicted on Exhibit "A" attached hereto and made a part
hereof.
D. DATE OF LEASE: JUNE 20, 1996
E. COMMENCEMENT DATE: SEPTEMBER 1, 1996
F. EXPIRATION DATE: XXXXXX 00, 0000
X. LEASE TERM: FIVE (-5-) Years & NO (-0-) Months.
H. MONTHLY BASE RENT, due and payable monthly in advance throughout the
Term, pursuant to Section 3. as adjusted pursuant to Section 4., as
follows:
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SEPTEMBER, 1996 THROUGH/INCLUDING AUGUST, 1997 $6,115.00;
SEPTEMBER, 1997 THROUGH/INCLUDING AUGUST, 1998 $6,295.00;
SEPTEMBER, 1998 THROUGH/INCLUDING AUGUST, 1999 $6,485.00;
SEPTEMBER, 1999 THROUGH/INCLUDING AUGUST, 2000 $6,680.00;
SEPTEMBER, 2000 THROUGH/INCLUDING AUGUST, 2001 $6,880,00;
I. SECURITY DEPOSIT: $6,115.00 DOLLARS, deposited, held, adjusted and
administered pursuant to Section 5.
J. INTENDED USE: Lessee shall use and occupy the Premises for the following
uses and purposes ONLY and for NO other use or purpose without the express
prior written consent of Lessor: GENERAL BUSINESS AND PROFESSIONAL
OFFICES.
1.02 ENUMERATION OF EXHIBITS
The exhibits checked off below and attached to this Lease are incorporated in
this Lease by this reference:
[X] EXHIBIT A PREMISES BASE PLAN
[X] EXHIBIT B RULES AND REGULATIONS
[X] EXHIBIT C WORK LETTER
[X] EXHIBIT X. XXXXX
R-1 GENERAL
R-2 TEMPORARY OFFICES
R-3 BICYCLE STORAGE
R-4 PARKING
[ ] GUARANTY
[X] REAL ESTATE BROKER DISCLOSURE
[X] CERTIFIED RESOLUTION OF AUTHORITY
[X] OTHER: EXPANSION OPTION SPACE EXHIBIT
2. DEMISE & TERM
2.01 DEMISE OF PREMISES
A. BASE DEMISE: In consideration of the mutual covenants and agreements herein
stated, Lessor hereby leases to Lessee and Lessee hereby accepts the leased
premises specified in Subsection 1.01 C. and depicted on Exhibit A (the
"Premises") which are contained in the commercial building specified in
Subsection 1.01 A. commonly known as 000 XXXXX XXXXXXXX XXXXXX, XXXXXXXX 00000
("Building", the underlying real estate of which may be referred to herein as
the "Land") for the term and upon the terms, covenants and conditions provided
in this Lease ("Lease").
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B. EXPANSION OPTIONS: So long as this Lease is in full force and effect without
uncured Lessee default after applicable notice and grace period, if any, Lessor
grants Lessee the following option to enlarge the rentable area of the Premises:
1. Attached to this Lease is a sheet entitled EXPANSION OPTION SPACE
Exhibit incorporated by this reference (the "Sheet"). The Sheet shows the
Premises and identifies the existing tenant spaces on the 4th floor of the
Building (each of space "A" and "B" an "Option Space" and collectively the
"Option Spaces"), which Option Spaces have the following availability/lease term
expiration dates:
I.D. / Suite # S.F. of Rentable Area Availability Date
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"A" (Pt. Suite 400) 1,484 "NOW"
"B" (Bal. Suite 400) 5,202 One (1) Year following
Commencement Date
2. Lessee may give written notice to Lessor from time to time, that
Lessee desires to expand the Premises with Option Space "A", "B", or both,
subject to availability as stated above, (an "Expansion Notice"), identifying
the Option Space or Spaces desired. Lessee shall be required to choose Option
Space "A" and "B" in that order, however. Subject to agreement upon mutually
acceptable space plans as provided in Subsection 2.01 B. 3. below, Lessor shall
be obligated to deliver the identified Option Space or Spaces within 90 days
after the Expansion Notice, subject to availability as stated above.
3. Within 30 days after each Expansion Notice, Lessor and Lessee shall
agree upon a space plan for each Option Space identified, comparable on a per
square foot of rentable area basis in terms of quantity and quality of
improvements to the quantity of improvements in the Premises (and which
agreement shall not be unreasonably withheld or delayed so long as the plans
call for such a comparable finished build-out), and Lessee shall make a deposit
with Lessor equal to the Security Deposit for each Option Space, as provided in
Section 2.01 B. 4. below. Lessor's Work and Lessee's Work, as defined in Exhibit
C Workletter, shall apply to each Option Space.
4. The terms, covenants and conditions of this Lease shall apply to
each Option Space, with the following adjustments and/or modifications:
a. The Term of this Lease shall be extended without further
action of the parties being required, by a period of THIRTY (30) full
rent-paying months, from the date of substantial completion and delivery of the
Option Space(s) identified in the given Expansion Notice;
b. Monthly Base Rent for each Option Space shall be figured on
a per square foot of rentable area amount equal to the Monthly Base Rent of the
Premises to and including the Expiration Date of the Term and, if the Term is
extended as a consequence of the operation of Section 2.01B.4.a., Monthly Base
Rent shall be adjusted for each year (or part thereof) of the extension
resulting therefrom by TWO AND ONE-HALF PERCENT (2.5%) compounded annually;
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c. Lessee's Proportionate Share of Taxes and Operating
Expenses, as defined and provided for in Section 4.01 F., shall be increased by
the Proportionate Share for each Option Area;
d. The Security Deposit required for each Option Space shall
be deposited at the time Lessor and Lessee agree on a space plan as provided in
Section 2.01 B. 3. above and shall equal one full installment of Monthly Base
Rent first payable therefor; and if Lessee fails or refuses to do so, then the
Expansion Notice shall be deemed void and of no force or effect and Lessor shall
not be bound to accept a late deposit of Security Deposit but shall be free to
lease the space as Lessor in its sole discretion may determine; and
Lessor and Lessee shall execute a new lease or modification to this
Lease to memorialize the terms and conditions of each expansion hereunder prior
to the delivery date of the given Option space(s). Section R-2 of Exhibit D
Rider shall not apply to any expansion hereunder, however.
2.02 TERM
A. Subject to Section 6. ("Delivery of Possession"), the term of this Lease
("Term") shall commence on the date ("Commencement Date") which is the earlier
to occur of. (i) the date specified in Subsection 1.01 E. or (ii) the date
Lessee first occupies all or part of the Premises; and the Term shall expire,
unless sooner terminated, on the date (the "Expiration Date") specified in
Subsection 1.01 F., subject to extension in accordance with Sections 2.01B.4.a.
and 6.
B. EXTENSION OPTION: So long as this Lease is in full force and effect without
uncured Lessee default after applicable notice and grace period, if any, Lessor
grants Lessee the option to extend the Term of this Lease, once, for a period of
five (-5-) years, to begin, if at all, immediately upon expiration of the Term
(as extended, if at all, pursuant to the operation of Sections 2.01B. and 6.)
and to end, unless sooner terminated, five(-5-) years thereafter, on all of the
terms, covenants and conditions of this Lease except as provided in this Section
2.02 B (the "Extension"). In the event Lessee has not exercised its Option Space
options or has exercised its option as to Option Space "A" only (as provided in
Section 2.01B.) Lessee must deliver written notice of intent to renew and extend
hereunder to Lessor not later than six (-6-) months prior to the Expiration Date
of the Term in order to exercise this Extension, but in the event Lessee has
exercised its options as to both Option Spaces "A" and "B" (as so provided)
Lessee must deliver written notice of intent to renew and extend hereunder to
Lessor not later than nine (-9-) months prior to the Expiration Date as extended
pursuant to operation of Section 2.01B, and, in either case, if so elected, (a)
the Monthly Base Rent rate for the first year of the Extension will be the
average rental for comparable space at the Building under at least two (2)
comparable renewal leases made within six (6) months of the notice of intent
delivered hereunder (within nine (9) months in the event both Option Spaces "A"
and "B" have been undertaken pursuant to operation of Section 2.01B) as Lessor
and Lessee mutually and reasonably determine, and such Monthly Base Rent shall
be increased annually at the beginning of each subsequent year of the Extension
by two and one-half percent (2.5%) rounded to the next highest $5.00 increment,
(b) there will be no
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Workletter for the Extension and Lessee shall take the Premises "AS IS"
therefor. Section R-2. of Exhibit D Rider shall NOT apply to the Extension,
either.
C. CANCELLATION OPTION: So long as this Lease is in full force and effect
without uncured Lessee default after applicable notice and grace period, if any,
Lessor grants Lessee the option to cancel and terminate the Term of this Lease,
ONCE, effective at the end of the THIRTIETH (30th) full rent paying month of the
Term, upon delivery of written notice to Lessor not later than NINE (9) MONTHS
prior thereto ("Cancellation Notice") together with the Cancellation Fee of
$103,942.17 ______; provided, however, that if Lessee shall have exercised an
option for an Option Space prior delivery of the Cancellation Notice, then the
effective cancellation date shall I extended to the date which is the THIRTIETH
(30th) full rent paying month of occupancy of the applicable Option Space and
the Cancellation Fee shall be increased by the amount of all "deal costs" of the
Option Space, being the unamortized amount of (a) all of Lessor's construction
costs therefor (including then customary general conditions, overhead and profit
so long as Lessor's pricing otherwise is competitive for like work, and if not
then limited to 5% of the costs of a competitive bid for like work procured by
Lessee); and (b) all leasing commissions paid or incurred by Lessor as a
consequence thereof, such sum of (a) and (b) amortized on a straight line basis
with interest at Lessor's cost of funds based upon the then current first
mortgage loan secured by the Building, over the intended period of occupancy of
the Option Space including any extension of the Term resulting therefrom, taken
together with Lessor's out-of-pocket administrative costs not to exceed
$1,000.00; and provided further, however, that once Lessee has delivered the
Cancellation Notice, any unexercised Option Space option shall be deemed
revoked, void and unavailable for exercise.
3. BASE RENT
Lessee agrees to pay to Lessor at its office as specified in Subsection 1.01 B.
or to such other person or at such other place as designated by Lessor, without
any prior demand therefor and without any deduction whatsoever, base rent in
installments for the convenience of Lessee, as specified in Subsection 1.01 H.
("Monthly Base Rent") as adjusted, if at all, pursuant to the terms of Section
4. ("Adjustments to Monthly Base Rent"), and as adjusted shall be known as
Monthly Base Rent. It is understood that base rent due for the Term is the
aggregate of the installments of Monthly Base Rent payable over the Tenn. Except
as provided elsewhere in this Lease, all installments of base rent shall be paid
monthly in advance on the first day of each month of the Term, except that the
first installment shall be paid by Lessee to Lessor upon execution of this Lease
by Lessee. Base rent shall be prorated for partial months within the Term. All
charges, costs and sums required to be paid by Lessee or reserved to Lessor
under this Lease in addition to base rent shall be deemed additional rent
("Additional Rent"), and base rent and Additional Rent shall hereinafter be
collectively called "Rent." Lessee's covenant to pay Rent shall be independent
of every other covenant in this Lease. Lessee shall pay a late charge for
delinquent Rent in accordance with the provisions of Subsection 24.01. After
default in payment of Rent resulting from any NSF, Account Closed or other
dishonor, or as to any Rent account more than 30 days in arrears; or as to any
Rent account where Rent is paid more than five (5) days after its due date
(taken together with any written extensions thereof granted by Lessor and grace
periods applicable thereto) more than twice per year of the Term, then Lessor,
in addition to and
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exclusive of any other remedy provided in this Lease, at law or in equity, shall
have the right to demand, by delivering notice to Lessee, that all Rent payable
to Lessor, including without limitation Rent payments in default from the
foregoing occurrences, to be transmitted or paid to Lessor by wire transfer,
certified or cashier's check, or money order, until further notice to the
contrary.
4. ADJUSTMENTS TO MONTHLY BASE RENT
4.01 DEFINITIONS. For the purposes of this Section 4. the following words and
phrases shall have the following meanings:
A. "Adjustment Date" shall mean the Commencement Date and each January
1st thereafter falling within the Term.
B. "Initial Year" shall mean the calendar year during which the
Commencement Date falls.
C. Adjustment Year" shall mean the Initial Year and each subsequent
calendar year during which an Adjustment Date falls.
D. "Taxes" shall mean all federal, state and local government taxes,
assessments and charges(including transit or transit district taxes or
assessments) of every kind or nature, whether general, special, ordinary or
extraordinary, which Lessor shall pay or become obligated to pay or remit
because of or in connection with the ownership, leasing, managing, control or
operation of the Building and the Land, or of the personal property, fixtures,
machinery, equipment, systems and apparatus located therein or used in
connection therewith including any rental or similar taxes levied in lieu of or
in addition to general real estate and/or personal property taxes to the extent
the same legislatively are not prohibited from imposition upon the tenant/lessee
or affirmatively are imposed on the tenant/lessee regardless whether the
landlord/lessor is obligated for collection thereof). For the purposes hereof,
Taxes for any Adjustment Year shall be Taxes which are assessed or become a lien
during such year, even though not due or payable until a subsequent year. There
shall be included in Taxes for any year the amount of all reasonable fees
(including reasonable attorneys' fees) paid or incurred by Lessor during such
year in seeking or obtaining any refund or deduction of Taxes or the assessments
underlying same. Taxes in any year shall be reduced by the net amount of any tax
refund received by Lessor (or its principals or its agents) during such year. If
a special assessment payable in installments is levied against the Land or
improvements, Taxes for any such year shall include only the installment of such
assessment and any interest payable or paid during such year. Taxes shall not
include any federal, state or local, franchise, capital stock, inheritance,
general income, gift or estate taxes, except that if a change occurs in the
method of taxation resulting in whole or in part the substitution of any such
taxes, or any other assessment, for any Taxes as above defined, such substituted
taxes or assessments shall be included in the Taxes, to the extent not
prohibited from imposition on tenants/lessees no matter whether legislatively
imposed on landlords/lessor or tenants/lessees. Also excluded from Taxes are
penalties and interest resulting from late payment of Taxes.
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E. "Operating Expenses" shall mean and include all those reasonable
costs, expenses and disbursements of every kind and nature (determined for the
applicable calendar year on an accrual basis) which Lessor (or its principals or
its agents) shall pay or become obligated to pay in direct connection with the
management (including management fees not to exceed 5 % of gross rents during
the Term), ownership, operation, maintenance, replacement and repair of the
Building and the Land and of the personal property, fixtures, machinery,
equipment, systems and apparatus located in or used in connection with the
Building or Land, including without limitation, Taxes (as defined herein),
common area utility expenses and current amortization, including interest, of
capital operation and maintenance of the Building. Operating Expenses shall not
include the following, however: costs of capital improvements which increase the
size of the Building; costs of legal, accounting, space planner or broker
services for leasing of or alterations to premises of any lessees of the
Building including without limitation the Premises); charges for depreciation of
the Building; interest and principal payments on mortgages, ground leases (if
any) or similar debt service except for the financing of capital expenditures as
provided hereinabove); real estate brokerage and leasing commissions; damage and
repairs attributable to condemnation, fire or other casualty; damage and repairs
covered under any insurance policy carried by Lessor (excepting any deductible);
damage and repairs necessitated by the negligence or willful misconduct of
Lessor or Lessor's employees, contractors or agents; executive salaries or
salaries of service personnel to the extent that such executives or personnel
perform services not allocable to the operation, management, repair or
maintenance of the Building; Lessor's general overhead expenses not related to
the Building; legal fees, accountants fees and other expenses incurred in
connection with disputes with tenants or other occupants of the Building or
associated with the enforcement of any lease or defense of Lessor's title to or
interest in the Building or any part thereof (excepting that if Lessor should
prevail against any one or more tenant or occupant of the Building -- including
but not necessarily limited to Lessee individually or as representative or
member of a class of Building lessees -- in any action involving a dispute over
Operating Expenses wherein Lessee would have benefited had Lessor not prevailed,
then Lessor may recoup its attorneys', accountants' and other professional fees
as well as court costs as Operating Expenses); costs incurred due to violations
by Lessor or any other lessee of the Building of the terms and conditions of any
other lease, or fines imposed upon Lessor and not caused by Lessee, for
violation of any governmental rule or authority; costs in excess of those for
comparable services, labor and materials in comparable buildings (excepting in
any event costs under $1,000.00); services, installations or benefits furnished
to other lessees in excess of Building standard or not available to Lessee; and
any other expenses which, under generally accepted accounting principles and
practice would not be considered a normal maintenance and operating expense.
F. "Proportionate Share" shall mean 2.6 % (being the rentable area of
the Premises divided by the rentable area of the Building), subject to
provisions of Section 4.02.
G. "Base Year" shall mean Taxes which become payable during 1996 and
Operating Expenses which accrue during 1996.
4.02 ADJUSTMENTS TO MONTHLY BASE RENT
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A. "STEP" ADJUSTMENT.
For each year of the Term subsequent to the first year, Monthly Base Rent shall
be as follows, which represents annually compounding N/A% increases: See
Subsection 1.01 H.
B. "TAXES AND OPERATING EXPENSES"
In addition to and exclusive of Monthly Base Rent as adjusted pursuant to
Section 4.02 A. above, on each Adjustment Date, there shall be assessed an
amount, payable together with Monthly Base Rent for each month of the Adjustment
Year which includes the particular Adjustment Date until the next adjustment
hereunder, which equals one-twelfth (1/12th) of the product of (1) the positive
difference only, if any, between the Premises' Proportionate Share of Taxes and
Operating Expenses for the applicable Adjustment Year and the Premises'
Proportionate Share of Base Year Taxes and Operating Expenses. The result of the
foregoing calculation, if not an even dollar figure, shall be rounded to the
next highest dollar figure (for example $87.65 to $88.00) as the additional rent
due and payable under this Lease.
i. Notwithstanding the foregoing, in the event Operating Expenses for
any Adjustment Year shall exceed one hundred & ten percent (110%) of the prior
Adjustment Year's adjusted Operating Expenses, Lessor shall not, for the
purposes of calculating Operating Expenses subject to assessment for the
Premises Proportionate Share thereof for the Adjustment Year and each subsequent
Adjustment Year, the amount of any such excess. In other words, Operating
Expenses increase adjustments shall be limited, in any given Adjustment Year, to
a maximum of 10% in excess of the immediately preceding Adjustment Year.
a. Solely by way of example and not by way of limitation, assume that
adjusted Base Year Operating Expenses are $100,000.00, and adjusted Operating
Expenses for this example's first Adjustment Year are $120,000.00. In this
example, the monthly amount attributable to Operating Expenses and calculable
under Section 4.02 B. from the Adjustment Date for this example's Adjustment
Year until the next Adjustment Date would be as follows: (a) Is $120,000.00
MORE than 10% more than the Base Year amount? (b) Yes. (c) Then Lessor is
limited to calculating the amount due, as follows: $110,000.00 - $100,000.00 =
$10,000.00 x 2.6% = $260.00 divided by 12 = $21.66, rounded to $22.00. As to the
next Adjustment Year, the monthly amount attributable to Operating Expenses can
not exceed $24.00 (actually $23.83 rounded), being 10% in excess of the first
Adjustment Year's monthly amount, regardless of actual adjusted Operating
Expenses for that next Adjustment Year.
4.03 PROJECTIONS
For purposes of calculating Taxes and Operating Expenses additional rent for any
Adjustment Year, Lessor may make reasonable estimates, forecasts or projections
of Taxes and Operating Expenses increases collectively the "Projections") for
such Adjustment Year. Lessor shall deliver to Lessee a written statement i)
setting forth the Projections for the Adjustment Year in which
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such Adjustment Date falls, and (ii) providing a calculation of the additional
rent, if any, resulting from and based on the Projections, to become effective
as of said Adjustment Date; provided, however, that the failure of Lessor to
provide any such statement shall not relieve Lessee from its obligation to
continue to pay base rent at the monthly rate then in effect under this Lease.
If and when Lessee receives such statement from Lessor, Lessee shall pay the
additional rent reflected thereby effective retroactively to the applicable
Adjustment Date. If any unexpected increase in Taxes occurs after preparation of
the Projections which results in a projected increase of five percent (5%) or
more, based upon action by the Assessor of Xxxx County which Lessor, after
Assessor level objection proceeding, has been unsuccessful in preventing, Lessor
may revise the Projections and the estimated Taxes and Operating Expenses
additional rent may be recalculated based on the revised Projections.
4.04 READJUSTMENTS
On or about April 1st following the end of each Adjustment Year, or at such
later time as Lessor shall be able to determine me actual amounts of Taxes and
Operating Expenses for the Adjustment Year last ended, Lessor shall notify
Lessee in writing of such actual amounts. If the total Taxes and Operating
Expenses additional rent paid by Lessee for such Adjustment Year exceeds the
amount thereof payable for such year based upon actual Taxes and Operating
Expenses as determined by Lessor, Lessor shall credit such excess to
installments of Monthly Base Rent payable after the date of Lessor's notice
until such excess has been exhausted unless the excess is greater than one such
monthly installment, in which case the excess beyond the amount equal to one
such monthly installment shall be refunded to lessee within 30 days, or if this
Lease shall expire prior to full application of such excess, Lessor shall pay to
Lessee the balance thereof not theretofore applied against Rent. If the actual
amounts exceed the Taxes and Operating Expenses additional rent for such
Adjustment Year, then and no later than thirty 30) days after the date of
Lessor's written notice, Lessee shall pay to Lessor the stated deficiency. The
obligation to make such payments shall survive the expiration of the Term or
earlier termination of this Lease. No interest or penalties shall accrue on any
amounts which Lessor is obligated to credit or pay to Lessee by reason of this
Section 4.04. The obligation for readjustments for the final year of the Term
shall survive expiration of the Term of this Lease.
4.05 PARTIAL OCCUPANCY AND PARTIAL SERVICES
There shall be no "grossing up" of Operating Expenses.
4.06 BOOKS AND RECORDS
Lessor shall maintain books and records showing Taxes and Operating Expenses in
accordance with sound accounting and management practices, which records shall
be available to Lessee for inspection at the offices of the Building upon
reasonable prior notice; provided, however, that Lessee must exercise its right
hereunder within sixty (60) days after receipt from Lessor of notice of
increased rentals or sums due hereunder.
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4.07 NO DECREASES IN MONTHLY BASE RENT
Notwithstanding anything to the contrary contained in this Lease, and except for
Lessee's rights to negotiate rental rates for specific events (such as but not
necessarily limited to Option Space and Extension rentals), Monthly Base Rent
never shall be adjusted so as to produce a monthly sum less than the Monthly
Base Rent as adjusted from time to time in accordance with Section 4.02 A.
4.08 PRORATION
For any Adjustment Year which constitutes less than a full calendar year, Taxes
and Operating Expenses additional rent for the partial Adjustment Year shall be
prorated based on the number of the days of the Term falling within such
calendar year.
4.09 CHANGE IN AREA
In the event that the rentable area of either the Premises or the Building
changes during any particular Year during the Term, appropriate adjustment shall
be made hereunder for such Year or Years.
5. SECURITY DEPOSIT
As security for the performance of its obligations under this Lease, Lessee upon
its execution of this Lease has deposited with Lessor a fund (the "Security
Deposit") in the amount specified in Subsection 1.01 1. Lessor may, but shall
not be obligated, to apply the Security Deposit to cure any default of Lessee
under this Lease, and upon notice by Lessor of such application, Lessee shall
replenish the Security Deposit in full by promptly paying to Lessor the amount
so applied. Within forty-five (45) days after the Expiration Date and Lessee has
vacated the Premises in the condition required by this Lease, Lessor shall
return to Lessee the balance, if any, of the Security Deposit. In no event shall
the Security Deposit be deemed an advance payment of Rent or the last
installment of Monthly Base Rent or the measure of damages for any default by
Lessee under this Lease, or a bar of defense to any action which Lessor may at
any time commence against Lessee. The Security Deposit must at all times remain
equal to ONE monthly installments of INITIALLY PAYABLE Monthly Base Rent FOR THE
PREMISES AND EACH OPTION SPACE UNDERTAKEN BY LESSEE PURSUANT TO THE TERMS AND
CONDITIONS OF THIS LEASE, BUT IN NO EVENT LESS THAN $6,115,00 AT ANY TIME, and
Lessee agrees to remit to Lessor any deficiency with the first installment of
adjusted Monthly Base Rent next payable. Lessor shall not be liable for the
payment of any interest on Security Deposit funds.
6. DELIVERY OF POSSESSION
A. Lessor shall deliver possession of the Premises on the Commencement Date,
prepared with Lessor's Work under the terms of Exhibit C ("Workletter"), if any,
attached hereto and made a part hereof, to a state of substantial completion (as
defined in Section 6.B. below) or, if no
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Workletter is attached, then "AS-IS" as of the date of this Lease. A Workletter
IS part of this lease.
B. For the purposes of this Lease, the term "substantial completion" shall mean
functional completion of the construction to be undertaken, if any, by Lessor
pursuant to the Workletter but for minor and insubstantial details of
construction or decoration, and/or balancing of mechanical systems serving the
Premises. In the event of a dispute as to whether or not substantial completion
has been achieved, the reasonable opinion of Lessor's architect (in the event
Lessor has paid for or performed the work) or Lessee's architect (in the event
Lessee has paid for or performed the work, provided that Rent shall not be
deemed payment for work) shall be conclusive and binding upon the parties.
C. Within thirty (30) days after delivery of possession where substantial
completion is required, Lessor and Lessee shall execute Lessor's standard form
of "punch list", outlining uncompleted details of construction required to be
performed by Lessor, which items Lessor shall remain obligated to complete
within 30 days after creation of the punch list.. Lessor shall have no
obligation to repair damages to the Premises caused by Lessee prior to the
execution of the punch list.
D. If for any reason Lessor shall be unable to deliver possession as required
under Section 6. A. above, Lessor shall be subject to no liability therefor,
except as provided in this Subsection 6. D., as follows. Except to the extent
that any delay (including without limitation any delay in performance of
Lessee's obligations under the Workletter) in delivery is due to, caused by or
attributable to any act or omission on the part of Lessee or any person acting
on behalf of Lessee (including without limitation any architect or space planner
selected or designated by Lessee), Lessee's sole and exclusive right and remedy
shall be that the Term and Rent shall commence only when possession of the
Premises is delivered as required under Section 6.A. above and the Expiration
Date of the Term shall be extended by a like amount of time (plus just so many
days as are necessary to have the Term expire at the end of a calendar month and
still provide Lessee the benefit of the "full" Term intended in Section 1.01G);
provided, however, that (i) to the extent that any such delay is due to, caused
by or attributable to Lessee, then and to that extent neither the Commencement
Date or Expiration Date of the Term nor the date upon which Rent commences shall
be so extended, and (ii) in no way shall the foregoing prevent Lessor and Lessee
from agreeing upon any other or different dates for occupancy of the Premises or
commencement of Rent. In no other way shall the validity of this Lease or the
obligations of Lessee be deemed altered, modified or impaired, however.
i. Notwithstanding the foregoing, if for any reason other than a delay
caused by Lessee (including delays in executing this Lease and depositing
Lessee's funds due and payable upon Lease execution as of the date of this Lease
set forth in Section 1.01 D.), Lessor fails to deliver the Premises as required
under this Section 6. on the Commencement Date projected under Subsection 1.01
E., Lessee shall have the right to one (1) day of abatement of Monthly Base Rent
(only) for each day of delay, abatement to commence coincident with the
Commencement Date of the Term, together with continued occupancy of temporary
space, if any, managed by Xxxxxxxx Properties, Ltd. at the same arrangements
therefor.
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ii. In addition and not withstanding the foregoing, if for any reason
other than a delay caused by Lessee (as aforesaid), Lessor fails to deliver the
Premises as required under this Lease by or before OCTOBER 1, 1996, then and in
such case Lessee shall have the right to (a) cancel and terminate this Lease
effective as of that date by delivery to Lessor of written notice of such
election within 5 days thereafter (but if Lessor delivers possession prior to
expiration of such 5 days' period then Lessee's notice of cancellation hereunder
shall be deemed null and void but Lessee shall have the benefit of the
continuation of the arrangement under the foregoing subparagraph i. through the
date of delivery aforesaid) and (b) if cancellation and termination hereunder
becomes effective to continued occupancy of its then temporary space but free of
base monthly rent charges therefor (but not free of standard additional charges
for additional services at that location) for a period not to exceed 60 days
after the effective cancellation and termination date.
iii. In any event, and except as provided in the foregoing provisions
of this Section 6., Rent under this Lease shall not commence to accrue and
become payable except and until delivery of possession of the Premises.
E. Within thirty (30) days after delivery of possession on any date other than
the Commencement Date set forth in Subsection 1.01 E., Lessor and Lessee shall
execute a letter certifying the date of substantial completion, if applicable;
(ii) the Term Commencement and Expiration Dates; (iii) the Rent commencement
date: (iv) such other information as Lessor reasonably may request (including
information a mortgagee of the Building or Land requires to confirm this Lease
in full force and effect with Term and Rent commenced) and (v) attaching a copy
of the "punch list", if applicable..
7. CONDITION AND CARE OF PREMISES
A. Subject to the provisions of Section 6. above, Lessee's taking possession of
the Premises or any portion thereof shall be rebuttable evidence against Lessee
that the Premises were in good order and satisfactory condition. No promises of
Lessor to alter, remodel, improve, repair, decorate or clean the Premises or any
part thereof have been made, and no representation respecting the condition of
the Premises, the Building, the Common Areas (hereinafter defined) or the Land
has been made to Lessee by or on behalf of Lessor, except to the extent
expressly set forth herein or in Exhibit C Workletter, if any, attached to and
made a part of this Lease. Lessee shall notify Lessor of any damage to the
Premises after taking possession, regardless of the cause of damage.
i. Notwithstanding the foregoing, coincident with the Commencement Date
of the Term Lessor also shall have substantially completed the following
renovations to the Common Areas of the Building:
a. cornice restoration;
x. Xxxxxxxx Street lobby upgrades;
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c. refinishing of passenger elevator cab interiors;
d. 4th floor passenger elevator lobby upgrades.
ii. Subject to exceptions for certified historic structures, Lessor's
Common Areas renovations and upgrades which serve or access the Premises shall
comply with the Americans with Disabilities Act of 1990 (as amended).
B. LESSEE'S BASIC REPAIR & MAINTENANCE OBLIGATIONS. Except for damage resulting
from the negligence or willful and wanton conduct of Lessor or Lessor's agents,
employees or servants, and subject to the provisions of Section 13., Lessee at
its own expense (i) shall keep the Premises decorated, in good repair and
leaseable condition complying at all times with all governmental requirements
and undertaking in good faith all of Lessee's obligations under this Lease, and
(ii) except where Lessor elects to make repairs at Lessee's expense as provided
hereinbelow, shall promptly and adequately repair all damage to the Premises
caused by Lessee, it agents, officers, employees, servants, invitees, licensees
or contractors, including but not limited to the replacement of all broken
glass, fixtures and appurtenances resulting from any such damage, under the
supervision and with the approval of Lessor and within any reasonable period of
time specified by Lessor. Upon not less than ten (10) days' prior written notice
(excepting only emergency situations, which shall require no prior notice but
whatever notice may thereafter be reasonable) Lessor may, but shall have no
obligation to, elect to make any or all repairs required of Lessee hereunder, on
Lessee's behalf at Lessee' sole cost, or, upon Lessee's request, perform any
such repairs at Lessee's sole cost; or should Lessee fail to make required
repairs either promptly or adequately, Lessor may, but need not, make such
repairs and replacements at Lessee's sole cost. In any case where Lessor
undertakes or supervises Lessee's obligations under this Section B., Lessee
shall pay Lessor on demand the cost thereof together with an amount equal to 5%
of such cost as an overhead and supervision fee.
C. UTILITIES,
1. SEPARATELY METERED SERVICES. Lessee shall place its name on all
accounts for separately metered utilities serving the Premises, for billing
purposes, and Lessee shall pay directly to the applicable utility company its
utility charges per its tariffs from time to time in effect. In case the bills
and charges are not paid when due, Lessor shall have the right to pay the same,
which amounts so paid are declared to be so much additional rent and payable
with the very next installment of Monthly Base Rent The following utilities are
separately metered for die Premises: ELECTRICAL FOR LIGHTS, OUTLETS AND GENERAL
CONDITIONS (INCLUDING ELECTRICAL FOR ELECTRIC HOT WATER HEATER).
2. OTHER UTILITIES. All other utilities requested by Lessee or
necessary for the particular uses of the Premises (beyond its Intended Use) in
excess of those required to provide Building Standard services (as provided in
Section 8. below) shall be paid for at rates and tariffs as provided for the
respective utility under Section 8. The costs of providing Building Standard
services not billable or rebillable directly to Lessee under either Section 8.
or this Section 7. shall
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be deemed included in the Rent, except as follows: AIR CONDITIONING, DUCTED
VENTILATING AND "MORNING WARM-UP" ENERGY COSTS PER SECTION 8.A.
D. TELEPHONE SERVICE. Lessee shall make arrangements directly with the telephone
company providing line service to the Building, and the telephone equipment
vendor of Lessee's choice, for telephone service to the Premises. Lessee shall
pay all telephone line, wire and equipment installation, rental and maintenance
fees and charges for telephone service to the Premises, and if wire maintenance
or similar charges are not directly billable to Lessee by the telephone company
providing line service to the Building but are charged to Lessor, the same shall
be an item of Operating Expenses.
i. Notwithstanding the foregoing, Lessee shall be entitled to existing
Building feeds for such services.
E. ELECTRICAL FIXTURES. Lessee shall pay for the repair, maintenance and
replacement of all light fixtures, electrical switches, electrical outlets and
lamps located in the Premises and all bulbs, tubes, ballasts and starters
utilized in the Premises. Lessee at its sole cost and expense shall have the
right to change light bulbs and tubes in die Premises, however, but in such case
Lessee shall be solely responsible for all damages caused by improper changing
and incorrect type or capacity bulb or tube installed.
F. This Lease grants no rights to light or air over or about the Premises.
Lessor specifically excepts and reserves to itself the use of any and all
portions of the Building exterior to the Premises, as well as all rights to the
Land and improvements and air rights above and about the Premises, and to such
areas within the Premises required for installation of utility lines and other
installations required to serve any occupants of the Building and to maintain
and repair same, and no rights with respect thereto are conferred upon Lessee,
unless otherwise specifically provided herein, provided that Lessor's exercise
of its reserved rights hereunder shall not materially interfere with Lessee's
use and possession of the Premises.
8. SERVICES
SO LONG AS THIS LEASE IS IN FULL FORCE AND EFFECT WITHOUT UNCURED LESSEE DEFAULT
AFTER THE APPLICABLE NOTICE AND GRACE PERIOD, IF ANY, LESSOR SHALL PROVIDE THE
FOLLOWING SERVICES:
A. HVAC SYSTEMS. (I) HEATING. The Premises shall be served for seasonal heating
from September 16 through April 15, or such other dates annually as Lessor
reasonably determines, by the Building's central heating system, through
radiators located in the Premises, to provide levels of seasonal comfort
consistent with generic Class "B" office building standards in Chicago,
Illinois. (ii) COOLING. The Premises shall be served for seasonal cooling from
April 16 through September 15, or such other dates annually as Lessor reasonably
determines, by the air conditioning unit(s) located on the same floor as the
Premises, to provide levels of seasonal comfort consistent with generic Class
"B" office building standards in Chicago, Illinois. (iii) "MORNING WARM UP" AND
RELATED FEATURES. The cooling system serving the Premises also may include other
features, including ducted electric "morning warm up" coils, economizers and
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setback controls. (iv) CONTROLS. Lessee may adjust only such thermostatic,
economizer and setback controls as may be physically located in the Premises,
but shall NOT tamper with supply or return registers or grills in the Premises
or any controls beyond the Premises; provided that during heating season Lessee
shall keep Premises' thermostats set at no less than 55 DEGREES F and during
cooling season Lessee shall keep the Premises' thermostats at no more than 85
DEGREES X. Xxxxxx shall maintain the system seasonally as required, subject to
misuse, abuse or waste by Lessee, which is prohibited. The Premises also may be
equipped with operable sash windows, Building Standard window blinds, and one or
more ceiling fans; to the extent the Premises are equipped with these additional
features, Lessee acknowledges that all of these features have cause and effect
relationships upon the interior environment of the Premises, and Lessee shall
use its own efforts first to control and balance the system for its own comfort
using these features. Lessor makes NO guaranty that the system will fulfill any
particular uses and purposes to which Lessee may put the Premises, but shall be
adequate for the Intended Uses, and heating, ventilating or cooling shall be
available at all times. There shall be no smoking unless the Premises are
equipped for separate handling of return air, and then only in those areas of
the Premises so equipped [The "bullpen" area between the two principals' offices
shall be so equipped, at Lessee's sole cost and expense, and as such smoking of
cigars only shall be allowed in that area only so long as the doors to the area
are closed off from other areas of the Premises not so equipped]. In addition,
Lessor shall provide Lessee with a schedule of the set-back hours of the
Building's central steam heating system, to allow Lessee to determine when it
may desire to activate supplemental heating coils in the ducted ventilating
system.
PAYMENT FOR HVAC SERVICES:
(i.) Heating. The costs of operating and maintaining the central
heating system is included in Rent subject to Operating Expenses adjustments as
provided in Section 4.
(ii) Cooling and ducted ventilating and "morning warm up" heating. The
air conditioning system, which includes ducted supplemental heating coils, is
not separately metered to the Premises, and serves the entire 4th floor of the
Building. Lessee will pay Lessor for cooling and "morning warm up" heating
services, based upon the Premises' proportionate share of the costs and expenses
for operating this system, not less often than quarter annually and not more
often than monthly, within 10 days after receipt of Lessor's statement to Lessee
therefor. For the purposes of this Subsection 8.A., "proportionate share" shall
mean the ratio of the Premises' rentable area to the total rentable area served
by this system from time to time as Lessor and Lessee mutually and reasonably
determine, and "costs and expenses" shall mean the applicable utility bills for
the applicable utility meters through which energy for this system is drawn.
(iii) There are NO surcharges for extended use of heating or air
conditioning services, as such, but Lessee's obligations under this Payment
provision shall SURVIVE expiration or sooner termination of this Lease.
B. WATER. Domestic cold water in common with other lessees from City of Chicago
mains for drinking, lavatory and toilet purposes drawn through fixtures
installed by Lessor (or by Lessee with Lessor's written consent), which shall be
one of the Building Operating Expenses. Hot
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water heating for premises' hot water service for private washrooms and kitchen
facilities shall be provided by an hot water heater located in the Premises and
electrified via the Premises' separate general services' electrical meter.
C. ELEVATOR. Passenger and freight elevator service in common with Lessor and
other persons, at all times.
D. ELECTRICITY. Electricity shall not be furnished by Lessor, but shall be
furnished by the authorized public utility company from time to time serving the
Building, provided Lessor shall have the sole right to choose between such
companies should more than one provide comparable service. Lessor is an
authorized reseller of electrical energy for the Building. Lessor shall permit
Lessee to receive such service from such utility company through one or more
electric meters or submeters serving the Premises and, unless stated to the
contrary in Exhibit C Workletter installed at Lessor's expense; provided,
however, that any and all electric company start-up charges, security deposit,
periodic usage charges and all related rates and tariffs, for electrical service
used or consumed in the Premises or its appurtenances, shall be paid by Lessee
at its sole expense. Lessee shall install no electrical fixtures or equipment
not shown and specified on the final plans (and specifications, if any) approved
for the Premises and to be installed in the Premises as of the Commencement Date
of the Term of this Lease, without first securing Lessor's prior written
approval as to power loads; Lessee shall bear all costs of increasing electric
service to the level Lessor deems appropriate to supply any approved power load
in excess of existing Building capacities allocable to the Premises, based upon
general mercantile levels of usage. Lessee shall make all necessary arrangements
with the utility company for metering and paying for electric current furnished
by it to Lessee. Electricity used during the performance of janitorial service,
or for the making of alterations or repairs in the Premises, or for the
operation of any heating, ventilating or air-conditioning systems (supplemental
to the Buildings central heating system, if any) and which may be required for
computer or data processing equipment or for other special equipment or
machinery installed by or on behalf of Lessee, shall be paid for by Lessee.
Lessee shall make no alterations or additions to the electric equipment or
appliances in the Premises or the Building without the prior written consent of
Lessor in each instance. Lessee covenants and agrees that at all times its use
of electric current shall never exceed the capacity of the feeders to the
Building or risers or wiring installed thereon.
PAYMENT FOR PREMISES ELECTRICAL SERVICES:
The Premises are separately metered or submetered for premises general
electrical service; if separately metered Lessee shall place As name on the
electric metered account therefor, for billing purposes, and Lessee shall pay
directly to the applicable utility company its utility charges per its tariffs
from time to time in effect. In case the bills and charges are not paid when
due, Lessor shall have the right to pay the same, which amounts so paid mm
declared to be so much additional rent and payable with the very next
installment of Monthly Base Rent. If the premises general electrical service is
submetered, Lessee shall pay Lessor for premises general electrical services
based upon application, without xxxx-up, of the applicable public electrical
utility company's rates
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and tariffs regulating authorized resellers of electrical service to independent
submeter readings, within 10 days after Lessor's invoice to Lessee therefor,
which shall be not less often than quarterly and not more often than monthly.
Nominal costs of meter reading and xxxx preparation services shall be an item of
Operating Expenses; Lessor shall use its best efforts to keep such charges
minimal. The obligation for these payments shall survive termination of this
Lease.
E. WINDOWS. Window washing of exterior surfaces OTHER THAN retail storefronts,
weather permitting, at such times as shall be required in Lessor's sole
judgment, but at a minimum twice annually.
F. JANITORIAL / TRASH REMOVAL SERVICE. Lessor shall provide nightly (nonholiday,
weekdays) trash removal of a reasonable amount of pre-contained typical and
ordinary (i.e. not requiring special disposal treatment as mandated by
applicable law, which shall remain Lessee's sole responsibility) office trash,
and weekly vacuuming of open carpeted areas and dry dusting of clear open
horizontal surfaces. Kitchen clean-up is available at Lessor's janitorial
contractor's standard rates (from time to time) but otherwise is not a Building
Standard service. Lessee shall be responsible for placing trash to be removed
outside locked office doors, and for leaving office doors unlocked for weekly
services. Lessor shall use its best efforts to keep Lessee apprised of changes
in cleaning schedules, if any.
G. STRUCTURAL, COMMON AREAS, EXCEPTIONS. Lessor shall maintain and make
reasonable and necessary repairs to the structural elements of the Building, the
exterior windows of the Building, the main electrical, plumbing, water and sewer
services of the Building, central heating, ventilation and air conditioning
systems and major components of self-contained systems of the Building, and the
public corridors, washrooms and lobby of the Building, except that: (i) Lessor
shall not be responsible for the maintenance or repair of any such systems which
are located within the Premises and are supplemental or special to the
Building's standard systems (including but not limited to NON-standard HVAC
systems such as but not limited to computer room air conditioners, provided that
the special system allowing cigar smoking in the "bullpen" area as described in
section 8.a. shall be repaired and maintained by lessor at its sole cost and
expense, and as to failure of the system lessor shall assign any warranties
therefor to lessee to enforce), or floor or wall coverings or any decorations,
furnishings, trade fixtures or office and related equipment in the Premises; and
(ii) the cost of performing any of the said maintenance or repairs caused either
by the negligence of Lessee, its employees, agents, servants, licensees,
subtenants, contractors or invitees or by the failure or default of Lessee to
perform its obligations under this Lease shall be paid by Lessee, or Lessor may
perform said maintenance or repairs and Lessee shall pay to Lessor all amounts
incurred on demand, except to the extent of insurance proceeds, if any, actually
collected by Lessor with regard to the damage necessitating such repairs. Lessor
shall have the right to make repairs under this Section 8.G. at all times
subject to notice provisions for access and entry provided elsewhere under this
Lease, provided that Lessor shall not unreasonably interfere with Lessee's use
and possession of the Premises while making such repairs.
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i. To the extent that boiler and machinery insurance remains
commercially reasonably available as Lessor reasonably determines and Lessor
carries same, Lessor shall file for insurance claims thereunder in appropriate
cases and only the uncovered costs of repairs shall be included in Operating
Expenses.
H. ADDITIONAL SERVICES. Services provided in Subparagraphs 8.A. through 8.G.
above shall be deemed "Building Standard Services." Lessor may, but shall have
no obligation to, provide such extra or additional services as it is reasonably
possible for Lessor to provide, and as Lessee may from time to time request in
writing, within a reasonable period after the time such extra or additional
services are requested. Lessee shall pay for such extra or additional services
at Lessor's scheduled rate therefor from time to time, or if there be no
scheduled rate, then at the rate of 120% of Lessor's cost in providing them (but
only 105% of Lessor's cost in providing them if Lessee is required under the
terms and conditions of this Lease to utilize the services of Lessor or any of
Lessor's contractors or affiliates to do so), such amount to be considered to be
additional rent hereunder.
I. PAYMENT FOR SERVICES. Charges for services provided by Lessor for which
Lessee is required to pay Lessor and which are not payable pursuant to any other
provisions of this Lease shall be deemed additional rent, and shall be due and
payable at the same time as the installment of base rent with which they are
billed, or if billed separately, shall be due and payable within ten (10) days
after Lessee receives Xxxxxx'x xxxx therefor. Any such xxxxxxxx for extra or
additional services shall include an itemization of the extra or additional
service rendered and the charge for each such service.
J. Lessee agrees that Lessor, its principals, the Trust, and their respective
agents, employees and servants, shall not be liable in damages, by abatement of
Rent or otherwise, for failure to furnish or for delay in furnishing any service
when such failure or delay is occasioned, in whole or in part, by the act or
default of Lessee or by any cause beyond the reasonable control of Lessor; and
such failures or delays shall never be deemed to constitute an eviction or
disturbance of Lessee's use and possession of the Premises or relieve Lessee
from paying Rent or performing any of its obligations under this Lease.
i. Notwithstanding the foregoing, in the event of a failure to furnish
or delay in furnishing Building Standard heating, ventilating or air
conditioning, electrical, or elevator services which failure or delay renders
the Premises untenantable for their Intended Uses and Lessee A unable to use and
occupy the Premises for said Uses as Lessee reasonably determines, then and in
such case if the failure or delay continues unabated for five (5) calendar days,
Lessee shall be entitled to an abatement of Rent for each day such failure to
furnish or delay in furnishing continues beyond such five (5) days' period. From
and after the end of a period of thirty days of unabated continuance of such
failure or delay, either Lessor or Lessee shall have the right, from that time
forward, to treat the failure or delay as a casualty loss or damage under
Section 13. by giving written notice to the other at any time.
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K. Lessee agrees to cooperate fully with Lessor, at all times, in abiding by all
regulations and requirements which Lessor reasonably may prescribe for the
proper functioning and protection of all utilities and services reasonably
necessary for the operation of the Premises and the Building. Lessor shall have
free access to any and all mechanical installations, and Lessee agrees that
there shall be no construction or partitions or other obstructions which might
interfere with the moving of the servicing equipment of Lessor to or from the
enclosures containing said installations. Except to the extent that Lessee is in
performance of its leasehold obligations, Lessee further agrees that neither
Lessee nor its employees, agents, licensees, invitees or contractors shall at
any time tamper with, adjust or otherwise in any manner affect Lessor's
mechanical installations after the Commencement Date of the Term.
9. ASSIGNMENT AND SUBLETTING
9.01 GENERAL PROVISIONS
A. General. Lessee shall neither assign nor mortgage this Lease, nor sublet all
or any portion of the Premises, nor permit the use of all or part of the
Premises by any party other than Lessee, without Lessor's prior written consent
in each instance; provided, however, that Lessee is strictly prohibited from
assigning this Lease and any interest in it and from subletting or subletting
all or part of the Premises to any other tenant or occupant of the Building.
Lessor shall have the right to withhold its consent, provided the same is not
done unreasonably. Where Lessee proposes to assign, mortgage or sublet, Lessee
first shall supply Lessor with: (i) a certified copy of the proposed assigning,
mortgage or sublease together with all documentation reasonably related thereto
and upon which Lessor may rely in forming its decision not only as to whether
consent is required but also as to whether consent is to be withheld or granted
under the totality of the circumstances, including without limitation a
reasonable amount of financial and background information as to the proposed
assignee, sublessee or mortgagee and a reasonable amount of information as to
not only any change in use but also as to any alterations proposed in connection
with the transaction or contemplated upon or after the intended time of
consummation of the transaction, and (ii) as to the second and each subsequent
assignment, mortgage or sublease hereunder, a non-refundable processing fee
equal to one monthly installment of then current Monthly Base Rent. This Lease
shall not be assignable by operation of law. Except as provided in this Section
9.01, no assignment, mortgaging, subletting, or use shall relieve Lessee of its
liability under this Lease. Consent by Lessor to any one assignment or
subletting shall NOT be deemed consent to any subsequent assignment, mortgaging,
subletting or use. The terms of Lessor's consent shall be binding upon the
assignee, mortgagee or sublessee. Assignees or sublessees shall become directly
liable to Lessor for all obligations of Lessee under this Lease. If Lessor
subleases or releases Premises at the request of Lessee, Lessee shall pay Lessor
die then customary and standard real estate brokerage commission for such
services at market brokerage commission rates at the time as Lessor and Lessee
mutually agree plus all other reasonable customary costs incurred in connection
therewith (e.g. advertising, decoration, etc.).
B. Exception for Publicly Traded Companies. Lessee represents that as a business
entity Lessee is a stock company whose corporate stock is publicly traded on a
recognized national stock exchange. So long as there is no change in Intended
Uses and no alterations of the Premises in
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connection with any proposed assignment of this Lease resulting from a sale,
acquisition, merger, consolidation or similar business transaction involving
Lessee, Lessor's right to withhold consent under the foregoing Section 9.01
shall be limited to the following condition(s): prior to consummating any such
transaction, Lessee or its purchaser, assignee or successor, shall submit
financial data which is reasonably satisfactory to Lessor, and Lessor shall have
the right to withhold its consent only if the financial condition of the
purchaser, assignee or successor is not at least as acceptable as was Lessee's
at the time of execution of this Lease based upon financial data submitted to
Lessor immediately prior to the time of execution of this Lease. Execution of
this Lease shall be deemed evidence conclusive against Lessor that Lessor has
received, reviewed and accepted Lessee's financial condition as such.
9.02 RECAPTURE OF PREMISES
Excepting transactions covered under Section 9.01 B., any proposal by Lessee
either to (a) assign this Lease or any interest in it or (b) sublet any more
than 33% of the floor area of the Premises, shall constitute, without further
action being required, Lessee's implied offer to Lessor to recapture either this
Lease (in the case of any assignment or mortgaging) or the portion of Premises
proposed to be sublet (in the case of any subletting). Within fourteen (14) days
following receipt by Lessor of all of the documentation, information and funds
required to be submitted by Lessee under Section 9.01, Lessor shall notify
Lessee whether Lessor will recapture. In the case of recapture based upon a
proposed assignment or mortgaging, this Lease shall terminate and Lessee shall
be released from liability under this Lease accruing after the effective
recapture date. In the case of a recapture based upon a proposed subletting,
then and as of the effective recapture date, that portion of the Premises being
recaptured and Lessee's obligations therefor accruing thereafter shall be deemed
excluded from and no longer an obligation of Lessee under the Lease, and Rent
for the Premises remaining after the recapture shall be reduced proportionately
to a sum equal to the said Rent immediately prior to recapture multiplied by a
fraction, the numerator of which is the rentable area of the Premises
immediately prior to recapture minus the rentable area of that portion
recaptured, and the denominator of which is the rentable area of the Premises
immediately prior to recapture. Lessee agrees to execute promptly any
modifications to this Lease resulting therefrom. If Lessor does not exercise its
option to recapture within the fourteen (14) day period, Lessee may, provided
Lessor consents thereto in writing pursuant to Section 9.01, consummate the
assignment or subletting but ONLY as submitted to Lessor, and within ninety (90)
days from the date of Lessee's submittal.
9.03 TRANSFER, ASSIGNMENT, AND CONVEYANCE
Lessor shall have the right, freely as Lessor in its sole discretion may
determine, to assign, transfer, or convey, in whole or in part, Lessor's
interest in this Lease, the Premises, the Building and/or the Land. If Lessor
shall so assign, transfer or convey (other than for security purposes only),
such assignee, transferee, or grantee shall thereafter be deemed to be the
Lessor hereunder, Lessee shall attorn to Lessor's assignee, transferee or
grantee, and Lessor, its principals, the Trust, and their respective agents,
employees and servants, all shall be relieved of any obligation accruing
hereunder after such assignment, transfer or conveyance.
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10. WAIVER OF SUBROGATION
Whether the loss or damage is due to the negligence of either Lessor or Lessee
or their respective agents or employees, or any other cause, Lessor or Lessee do
each herewith and hereby release and relieve the other, their principals (as
well as the Trust in the case of Lessor), and their respective agents, employees
and servants, all from responsibility for, and waive their entire claim of
recovery for:
(i) any loss or damage to real or personal property of either located anywhere
in the Building, including the Building itself, arising out of or incident to
the occurrence of any of the perils which may be covered by their respective
fire insurance policies, with extended coverage endorsements, or
(ii) loss resulting from business interruption at the Premises or loss of rental
income horn the Building, arising out of or incident to the occurrence of any of
the perils which may be covered by the business interruption insurance policy
and by the loss of rental income insurance policy held by Lessor or Lessee.
Lessor and Lessee each shall cause its respective insurance carriers to consent
to such waiver of all rights of subrogation against the other. Notwithstanding
the foregoing, no such release shall be effective unless the aforesaid insurance
policy or policies shall expressly permit such a release or contain a waiver of
the carrier's right to be subrogated and to the extent of the proceeds collected
under such insurance.
11. INDEMNIFICATION
A. Lessee's Indemnification of Lessor. Lessee shall defend and indemnify Lessor,
its principals, the Trust, and their respective agents, employees and servants
(the foregoing being "Lessor's indemnified parties") and save Lessor's
indemnified parties all harmless from and against any and all liability,
damages, costs, or expenses, including attorneys fees, arising from any act,
omission, or negligence of Lessee, its assignees, sublessees, or their
respective officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors in or about the Building or Premises (the
foregoing being "Lessee's parties") or arising from any accident, injury, or
damage to any person or property, occurring in or about the Building or Premises
as a result of any act, omission or negligence of any of Lessee or Lessee's
parties, or arising from breach or default under this Lease by Lessee or any of
Lessee's parties. The foregoing provisions shall not be construed to make Lessee
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the negligence of Lessor or any of its indemnified
parties. In no event, however, shall Lessor be liable to Lessee or any of its
parties: for any loss of property; for defects in the Building or in the
Premises; or for any accidental damages to the person or property or property of
the Lessee or Lessee's parties in or about the Building or the Premises, from
water, rain or snow which may leak into, or flow from any part of the Building
or the Premises, or from the pipes or plumbing works of the same; and Lessee
hereby covenants and agrees (a) to make no claim for any such loss or damage at
any time, unless caused by the
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negligence of Lessor or any of Lessor's indemnified parties, and (b) to insure
its property against such perils. Notwithstanding the foregoing, Lessor shall
have no liability to Lessee or Lessee's parties for any loss or damage to person
or property sustained by Lessee or Lessee's parties caused by any other lessee
or other persons or occupants of the Building. Finally it is agreed and notice
is hereby given that Lessee is not and shall not be deemed to be an agent of
Lessor for the construction, alteration, repair or maintenance of any portion of
the Premises, the remainder of the Building, or the Land, or any improvements,
fixtures or personalty located therein or thereon. For the purposes hereof, and
notwithstanding anything to the contrary stated elsewhere in this Lease, the
term "defect" shall include (without limiting its generality) the nature or
composition of a,, Building construction materials, natural conditions,
construction methods, or the capacity of the Building, the Premises or any
system serving either to compensate for air quality or other environmental
conditions.
X. Xxxxxx'x Indemnification of Lessee. Lessor shall defend and indemnify Lessee,
its principals, and their respective agents, employees and servants (be
foregoing being "Lessee's indemnified parties") and save Lessee's indemnified
parties all harmless from and against any and all liability, damages, costs, or
expenses, including attorneys fees, arising from any act, omission, or
negligence of Lessor, the Trust, their respective principals, and their
respective principals' officers, contractors, licensees, agents, servants,
employees, guests, invitees, or visitors in or about the Building or Premises
(the foregoing being "Lessor's parties") or arising from any accident, injury,
or damage to any person or property, occurring in or about the Building or
Premises as a result of any act, omission or negligence of any of Lessor or
Lessor's parties, or arising from breach or default under this Lease by Lessor
or any of Lessor's parties. The foregoing provisions shall not be construed to
make Lessor responsible for loss, damage, liability or expense resulting from
injuries to third parties caused by the negligence of Lessee or any of its
indemnified parties.
12. INSURANCE
12.01 COVERAGE
Lessee shall carry, at its own expense, insurance during the Term insuring
Lessee and Lessor as their interests may appear, upon such terms, with such
coverages and limits, and in such companies, all as may be satisfactory to
Lessor, and with such changes in coverages and such increases in limits as
Lessor from time to time may request, and shall maintain the following minimum
coverages in the following minimum amounts until such request
(i) a policy of comprehensive public liability insurance insuring Lessee's
activities with respect to the Premises, with $500,000.00 single limits
as to death or bodily injury in any one occurrence and with $50,000.00
single limits as to loss to property in any one occurrence. For retail
stores, product liability coverage is required.
(ii) in case of fire, sprinkler leakage, malicious mischief, vandalism, and
other extended coverage perils, for the full insurable replacement
value of all additions, improvements and alterations to the Premises
(beyond Workletter improvements provided by Lessor)
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and of all office furniture, trade fixtures, office equipment, work
product, and all other items of Lessee's property on the Premises.
Lessor will not carry insurance of any kind on any of the stated perils
and items covered by this Subsection 12.01 (ii), and will not be
obligated to repair thereto.
(iii) in case of fire, sprinkler leakage, malicious mischief, vandalism and
other extended coverage perils, for (a) the full insurable replacement
value of all inventory, work in progress and property of others, and
(b) such other and further risks as are typically covered in the
operations of a professional business office.
Prior to the date that Lessee occupies the Premises or any portion thereof,
Lessee shall furnish to and maintain with Lessor either the policies or
certificates thereof evidencing the foregoing coverages and limits from time to
time required hereunder, naming Lessor, its principals, the Trust, as well as
their respective agents, employees and servants, all as additional insureds as
their respective interests may appear, and which policies or certificates shall
state no insurance coverage thereunder may be altered or canceled without at
least ten (10) days prior written notice to Lessor and Lessee.
Without impairing or diminishing Lessor's rights or remedies, and until Lessee
supplies the appropriate certificate(s) or, alternatively, should Lessee fail to
carry and maintain the foregoing insurance, Lessee will be deemed a
self-insurer.
12.02 AVOID ACTION INCREASING RATES
Lessee shall comply with all applicable laws and ordinances, all orders and
decrees of court and all requirements of other governmental authorities and
shall not, directly or indirectly, make any use of die Premises which may
thereby be prohibited or be dangerous to person or property or which may
jeopardize any insurance coverage, or may increase the cost of insurance or
require additional insurance coverage. If by reason of the failure of Lessee to
comply with the provisions of this Section 12.02, any insurance coverage is
jeopardized or insurance premiums are increased, Lessor shall have the option
either to terminate this Lease or to require Lessee to make immediate payment of
the increased insurance premium.
13. FIRE OR CASUALTY
A. GENERAL. Notwithstanding Section 7. of this Lease, if the Premises or the
Building (including machinery or equipment used in its operation) shall be
damaged by fire or other casualty (except fires or other casualties resulting
from Lessee's gross negligence or intentional misconduct) and if such damage
does not render all or a substantial portion of the Premises or the Building
unleaseable, then Lessor shall repair and restore the same and Lessee shall
repair and replace its furniture, fixtures and equipment and re-open for
business, all with reasonable promptness, subject to reasonable delays for
insurance adjustment and delays caused by matters beyond Lessor's or Lessee's
reasonable control.
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B. RIGHT TO TERMINATE UNDER CERTAIN CONDITIONS. If any such damage renders all
or a substantial portion of the Premises or the Building unleaseable, Lessor
shall have the right to terminate this Lease as of the date of such damage (with
appropriate prorations of Rent being made for Lessee's possession subsequent to
the date of such damage of those leaseable portions of the Premises) upon giving
written notice to the Lessee at any time within sixty (60) days after the date
of such damage. If any such damage renders all or more than fifty percent (50%)
of the Premises unleaseable and if such damage does not result from Lessee's
gross negligence or intentional misconduct, Lessee also shall have the right to
terminate this Lease as of the date of such damage upon giving written notice to
Lessor at any time within thirty (30) days after the date of such damage. Unless
this Lease is terminated as provided as aforesaid, and so long as such damage
does not result from Lessee's gross negligence or intentional misconduct, Lessor
shall proceed to repair and restore the Premises and Lessee shall repair and
replace its furnitures, fixtures and equipment and re-open for business, all
with reasonable promptness subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Lessor's or Lessee's reasonable
control. Lessee shall have the right to cancel and terminate this Lease in the
event the Lessor's repairs and restorations are not substantially completed
within 150 days after the date of damage be delivery of written notice to Lessor
within five (5) days after the end of such 1 5 0 days' period. If any such
damage renders all or more than fifty percent (50%) of the Premises unleaseable
and if such damage does not result from Lessee's gross negligence or intentional
misconduct, Lessor shall use its best efforts to provide temporary space for
Lessee in any other tenantable space managed by Lessor in the Courthouse
District at reasonable rates and upon reasonable terms and conditions, pending
the sooner of restoration of the Premises and Lessor's or Lessee's cancellation
or termination of this Lease under this Section 13.
C. LIMITATIONS ON LESSOR'S OBLIGATION TO REPAIR AND RESTORE, In the event the
Building is damaged by fire or other casualty resulting from Lessee's gross
negligence or intentional misconduct, Lessor shall have no obligation to repair
or restore the Building or any part thereof and Lessee shall not be released
from any of its obligations hereunder (including, without limitation, its duty
to repair the Premises and its liability to Lessor for damages caused by such
fire or other casualty). Lessee hereby acknowledges that Lessor is under no
obligation to insure Lessee's interest in the Premises or the Building, and
Lessor shall have no duty to repair or restore any of the alterations,
additions, or improvements in the Premises or the decorations thereto except to
the extent that such alterations, additions, improvements and decoration were
provided by Lessor at Lessor's cost at the beginning of the Term. If Lessee
wants any other or additional repairs or restoration and if Lessor consents
thereto, the same shall be done at Lessee's expense subject to all of the
provisions of Section 7. and 14. of this Lease.
D. STATUS OF OCCUPANCY AND RENT PENDING OPERATION OF SECTION 13. If the damage
renders the Premises unleaseable and so long as the damage is not caused by the
fault of Lessee, Lessor shall use its best efforts to locate temporary space for
Lessee elsewhere in any building managed by Xxxxxxxx Properties, Ltd., its
successors or assigns in the "Courthouse District" at reasonable rental rates
for comparable temporary uses, for the period of the dislocation only, and in no
event beyond the effective cancellation date of this Lease if Lessee cancels
this Lease pursuant to the terms and conditions of this Section 13.; and Rent
shall xxxxx
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on those portions of the Premises as are, from time to time, unleaseable as a
result of such damage and which Lessee in fact does not use for the purposes of
conducting any material ongoing business.
E. INSURANCE CLAIMS. Lessor shall file claims for insurance proceeds of Lessor's
insurance coverage for all repairs and restorations required of Lessor under
this Section 13.
14. ALTERATIONS AND IMPROVEMENTS
14.01 LESSEE'S ALTERATIONS
After the Commencement Date of the Term, Lessee, without the prior written
consent of Lessor which shall not be unreasonably withheld or delayed, shall do
no painting or decorating, erect no partitions, make no alterations or repairs
(other than minor, inconsequential repairs which require no expertise) in or
additions to the Premises, make no change to the locks, do no nailing, boring,
or screwing in the ceiling, walls (except for hanging of typical framed artwork,
plaques and similar items for which no prior consent shall be required) or
floors, and disturb or change no HVAC, electrical or plumbing systems or
facilities; provided, however, that as to the two offices and 'bullpen'
designated for the principals of Lessee on the final initial plans for the
Premises, Lessor may deny consent to any reconfiguration thereof in Lessor's
sole discretion. If the Building is or becomes certified or designated as a
national or local landmark, or is placed on any national or local register of
historic districts or places, Lessor's decision to refuse to consent based upon
the requirements and restrictions of such status, shall be conclusive. If Lessor
so consents, then and before commencement of any such work or delivery of any
materials into the Premises or the Building Lessee shall furnish to Lessor for
approval architectural plans and specifications, names and addresses of all
contractors, contracts, necessary permits and licenses, certificates of
insurance and instruments of indemnification against any and all claims, costs,
expenses, damages and liabilities which may arise in connection with such work,
all in such form and amount as may be satisfactory, to Lessor. In addition,
prior to commencement of any such work or delivery of any materials into the
Premises, Lessee shall provide for payment for such work and materials in full,
and, if requested by Lessor, shall deposit with Lessor at such time such
security for the payment of said work and materials as Lessor may require.
Whether or not Lessee furnishes the foregoing, Lessee agrees to indemnify and
save Lessor, its principals, the Trust, and their respective agents, employees
and servants all forever harmless against all claims and liabilities of every
kind, nature and description which may arise out of or in any way be connected
with such work. All such work shall be in accordance with all applicable legal,
governmental and quasi-governmental requirements, ordinances and rules
(including the Board of Fire Underwriters) and all requirements of applicable
insurance companies, and Lessee shall be responsible for securing all necessary
pen-nits and approvals prior to commencement of any such work. All such work
shall be done in a good and workmanlike manner and with the use of good grades
of materials and free and clear of all liens for labor and materials therefor.
Unless Lessor requests their removal, all alterations, improvements, additions
and installations to or on the Premises shall become part of the Premises at the
time of their installation and shall remain in and with the Premises at the
expiration or sooner termination of this Lease (or of Lessee's rights of
possession of the Premises), without compensation or credit to Lessee; and if
Lessor so
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requests and Lessee does not remove as requested, Lessor may remove the same and
Lessee shall pay the cost of such removal to Lessor upon demand. In no event
shall Lessor's consent hereunder ever be deemed to operate as consent to any
mortgage, pledge, hypothecation or lien (including mechanic's lien) of this
Lease or the Premises; and should Lessee desire to encumber its leasehold
interests only for the purposes of securing an obligation to pay for any work
otherwise consented to by Lessor hereunder, the provisions and procedures set
forth in Section 9. of this Lease shall control.
14.02 LESSOR'S ALTERATIONS
Lessor reserves the right at all times to make changes in the Building, the
Common Areas and the Premises, all at any time and from time to time, as Lessor
deems legally requisite, necessary or appropriate in its sole discretion (and
otherwise improve the Common Areas and Premises as part of a renovation) at
Lessor's sole cost, all so long as the rentable area of the Premises and access
thereto are not materially impaired.
14.03 LIENS
Lessee shall permit no lien or claim for lien of any mechanic, laborer or
supplier or any other lien to be filed against the Building, the Land, the
Premises, or any part thereof arising out of work performed, or alleged to have
been performed by, or at the direction of, or on behalf of Lessee. If any such
lien or claim for lien is filed, Lessee immediately either shall have such lien
or claim for lien released of record or shall deliver to Lessor a bond in form,
content, amount, and issued by a surety satisfactory to Lessor indemnifying
Lessor and others designated by Lessor against all cost and liabilities
resulting from such lien or claim for lien and the foreclosure or attempted
foreclosure thereof, or escrow, with Lessor's designated title insurer, an
amount determined by such insurer, as necessary to endorse over such lien with
the power in Lessor to settle and pay same within the limits of the principal,
and accrued interest, held in such escrow (provided investment fees and risk of
loss shall be upon Lessee). If Lessee fails to have such lien or claim for lien
so released or to deliver such bond to Lessor or establish such escrow, Lessor,
without investigating the validity of such lien, may (but as between Lessor and
Lessee shall have no obligation to) pay or discharge the same as claimed, and
Lessee shall reimburse Lessor upon demand for the amount so paid by Lessor,
together with Lessor's expenses and attorneys' fees; and the failure of Lessor
to compromise or settle the lien for any amount other than as claimed shall be
no defense to Lessees reimbursement obligations hereunder.
14.04 ACCESS
Except during emergencies and during performance of Building Standard Services
ordinarily performed after normal business hours, if the Lessee shall not be
present personally to permit an entry into the Premises, when for any other
reason an entry therein shall be necessary or desirable, the Lessor or Lessor's
agents may enter the same, without rendering the Lessor or such agents liable
therefor (if during such entry Lessor or Lessor's agents shall accord reasonable
care to Lessee's property), and without in any manner affecting the obligations
and covenants of this Lease, upon reasonable prior notice to Lessee. Nothing
herein contained, however, shall be
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deemed or construed to impose upon the Lessor any obligations, responsibility or
liability whatsoever, for the care, supervision or repair of the Building or any
part thereof, other than as herein provided.
15. EMINENT DOMAIN
15.01 TAKING OF WHOLE
In the event the whole or any substantial part of the Building or the Premises
is taken through condemnation (including a deed given in lieu of condemnation),
this Lease shall terminate as of the date possession and beneficial enjoyment
vests in the condemning authority, and Rent shall be apportioned as of that
date.
15.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by any
competent authority for any public use or purpose (including a deed given in
lieu of condemnation) and this Lease is not terminated pursuant to Section
15.01, Rent shall be reduced to an amount which equals the Rent applicable to
the entire Premises multiplied by a fraction, the numerator of which is the full
rentable area of the Premises immediately prior to the taking minus the rentable
area taken and the denominator of which is the full rentable area of the
Premises immediately prior to the taking. Promptly upon receipt and to the
extent of the award in condemnation (or proceeds of sale in lieu thereof),
Lessor shall make necessary repairs and restoration (exclusive of Lessee's
leasehold improvements and personal property paid for or installed by Lessee) to
restore the Premises remaining to as close to Is former condition as
circumstances will permit, and to the Building to the extent necessary to
constitute the portion of the Building not taken or condemned as a complete
architectural unit.
15.03 COMPENSATION
Lessor shall be entitled to its award; and Lessee shall be entitled to its
award; provided that neither award shall diminish the other.
16. LESSOR'S REMEDIES
ALL RIGHTS AND REMEDIES OF THE LESSOR ENUMERATED IN THIS LEASE (INCLUDING
WITHOUT LIMITATION THIS SECTION 16.) ARE AND SHALL BE DEEMED CUMULATIVE, AND
NONE SHALL EXCLUDE ANY OTHER RIGHT OR REMEDY ALLOWED BY LAW.
A. GENERAL. IF:
1. Lessee defaults in any payment of Rent and does not cure the default
within five (5) days after written demand for payment of such Rent, or
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2. Lessee defaults in the prompt and full performance of any other
provisions of this Lease and does not cure the default within fifteen
(15) days after written demand by the Lessor that the default be cured
(unless the default involves a hazardous condition, which shall be
cured forthwith), or
3. the leasehold interest of Lessee is levied upon under execution or is
attached by process of law, or
4. Lessee makes an assignment for the benefit of creditors or admits its
inability to pay its debts generally, or
5. a receiver is appointed for any property of Lessee, or
6. Lessee abandons the Premises,
THEN, and in any of these events or any other event which at law or in equity
allows Lessor to terminate this Lease or any of Lessee's rights or interests in
it, Lessor may, if the Lessor so elects but not otherwise, and with or without
further notice of such election, and with or without any further demand
whatsoever, either forthwith terminate this Lease and the Lessee's right to
possession of the Premises or, without terminating this Lease, forthwith
terminate the Lessee's right to possession of the Premises.
B. PARTIES' OBLIGATIONS ON EXERCISE OF LESSOR'S REMEDIES. Upon termination of
this Lease, whether by lapse of time or otherwise, or upon any termination of
the Lessee's right to possession without termination of the Lease, the Lessee
shall surrender possession and vacate the Premises immediately and deliver
possession of them to Lessor, and hereby grants to the Lessor full and free
license to enter into and upon the Premises in such event with or without
process of law and to repossess the Lessor of the Premises as of the Lessor's
former estate and to expel or remove the Lessee and any others who may be
occupying or be within the Premises and to remove any and all property
therefrom, using such force as reasonably may be necessary, without being deemed
in any manner guilty of trespass, eviction or forcible entry or detainer, and
without relinquishing the Lessor's rights to Rent or any other right given to
the Lessor hereunder or by operation of law.
X. XXXXXX'X RIGHT TO REPAIR/REDECORATE. Upon and after entry into possession,
Lessor may make repairs, and alterations to only the two principals' offices and
'bullpen' designated on the final initial plans for the Premises, in or to the
Premises and redecorate the same to the extent deemed by Lessor in its
reasonable discretion as being reasonably necessary to relet them, and the
Lessee shall, upon demand, pay the reasonable cost of repairs only, together
with the Lessor's reasonable expenses of the reletting. Lessee's obligations
under this Subsection C. also shall survive termination of the Lease.
D. RENT NOT EXTINGUISHED. Exercise of Lessor's remedies shall have NO effect
Lessee's Rent obligations, which shall survive termination of this Lease or
Lessee's right of possession of the Premises. Notwithstanding the foregoing,
Lessor and Lessee each shall be
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obligated to mitigate damages to Lessor flowing from the termination, including
without limitation using all best efforts to secure a successor lessee or
occupant of the Premises. Additionally, on demand Lessee shall pay Lessor, (i)
Rent as it becomes due and payable in monthly installments, until the sooner of
the Expiration Date of the Term or Lessor's agreement to accept a successor
lessee as the Lessee of the Premises, and (ii) if no successor shall be found
acceptable within six (6) months from the date of termination, then at that time
an amount equal to the positive difference, if at all, between (a) the net
present value of the entire ascertainable amount of Rent for the balance of the
Term reduced by (b) the net present value of the fair rental value of the
Premises for the balance of the Term.
E. BANKRUPTCY & RELATED PROCEEDINGS. Lessor shall have all of its rights under
the U.S. Bankruptcy Code (as amended from time to time); and Lessor's leasehold
interests shall be deemed secured, retroactive to the 91st day prior to any
voluntary or involuntary filing. If as a result of such proceeding Lessee shall
be entitled to assign its interests under this Lease, the Lessee's trustee in
bankruptcy shall be obligated to use is best efforts to secure only tenants
whose businesses are primarily the same as the Intended Use of the Premises as
then-built, if legally permissible, or, if Lessor shall have given Lessee notice
of a default prior to the filing that Lessee is in default of this Lease because
of an unapproved change in the Intended Use or unapproved alterations of the
Premises, then and among the defaults which the Lessee, its trustee or the
assignee in bankruptcy must cure shall be such defaults, and Lessor shall be
entitled to reasonable security for such cure prior to the effectiveness of the
assignment, if legally permissible. As to insolvency proceeding or assignment
for the benefit of creditors, or like proceeding brought under state law and not
federal bankruptcy laws, Lessor shall have all of its rights under this Lease,
including the right hereby conferred to deem this Lease or Lessee's right to
possess the Premises as canceled and terminated ipso facto upon commencement of
such proceedings. In any case, Rent pending the final outcome of any such
proceeding as it relates to Lessee's interests under this Lease shall be deemed
a priority claim and cost of administration. In no event shall Lessor have any
rights hereunder which exceed rights granted to parties in the position of
Lessor under the U.S. Bankruptcy Code (as amended from time to time).
F. RESERVED.
G. COSTS OF ENFORCEMENT. As between Lessor and Lessee, in any legal action
between them to enforce this Lease, or involving one of them and resulting,
without the other's fault, in the other's joining or being joined in such
action, the non-prevailing party shall pay the prevailing party, on demand after
entry of the final, non-appealable order (or settlement in any other case), the
prevailing party's costs, charges and expenses in action or proceeding,
including the reasonable fees of counsel, agents and others retained by the
prevailing party in connection with such matter or proceeding.
H. RESERVED
17. SURRENDER
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Upon expiration or sooner termination of this Lease, or termination of Lessee's
right of possession of the Premises or any part thereof, Lessee voluntarily
shall surrender and vacate the Premises immediately and deliver possession to
Lessor in good and leaseable condition, broom clean, ordinary wear and tear
excepted. Unless the termination flows from Lessee's default, Lessee shall be
entitled to remove from the Premises all of Lessee's moveable personal property
which can be removed (a) without damaging the Premises or (b), with minor damage
beyond ordinary wear and tear (nail-holes and similar holes caused by hanging of
artwork, shelving and similar fixtures SHALL be considered ordinary wear and
tear, but anchor bolts and similar devices for securing heavier attachments
SHALL NOT be considered ordinary wear and tear) so long as Lessee at its sole
cost and expense repairs same at the time of removal, and in either case which
do not inure to Lessor's benefit by operation of Section 14. of this Lease; or,
if Lessor elects within 30 days after Lessee otherwise physically surrenders
possession to Lessor, Lessor may, but shall have no obligation to, allow Lessee
to remove other items of Lessee's property, but ONLY if Lessee at its sole cost
and expense restores the Premises to the condition as delivered to Lessee on
execution of this Lease (ordinary, wear and tear excepted), for which work
Section 14. also shall control. If Lessee fails or refuses to act in accord with
the foregoing, Lessor in addition to any other rights conferred by this Lease,
shall have the right to deem any of Lessee's property then remaining on the
Premises as conclusively abandoned by Lessee with title thereto passing to
Lessor without further compensation required and without credit to Lessee
whatsoever, or Lessor may, at its option and at Lessee's expense, store and/or
dispose of such property and Lessee shall remain responsible for any costs
related to the restoration of the Premises once such property has been removed.
18. HOLDING OVER
Unless agreed otherwise in writing, Lessee shall pay Lessor double the Monthly
Base Rent payable for the last month of the Term, for each month or portion
thereof Lessee retains possession of the Premises, or any portion thereof, after
the expiration or termination of this Lease, and also shall pay all damages
sustained by Lessor by reason of such retention of possession. The provisions of
this Article shall not constitute a waiver by Lessor of any re-entry rights of
Lessor herein before or by law provided. The provisions of this Section 18 shall
not be deemed to limit or constitute a waiver of any other rights or remedies of
Lessor provided herein or at law. If Lessee retains possession of the Premises,
or any part thereof, for ten (10) days after the expiration or termination of
this Lease, then at the sole option of Lessor expressed by written notice to
Lessee, but not otherwise, such holding over shall constitute a renewal of this
Lease for a period of one year (or less if specified by Lessor at Lessor's
option) on the same terms and conditions, except that the base rent shall be
increased to equal 125% of the product of twelve (12) multiplied by the most
recent monthly installment of base rent theretofore payable, subject to all
further adjustments.
19. RULES AND REGULATIONS,
Lessee agrees for itself and for its assignees, sublessees, successor,
employees, agents, and invitees, to comply with the Rules and Regulations stated
on Exhibit B and with all reasonable modifications, amendments, and additions to
them which Lessor from time to time may make.
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While Lessor shall not be responsible for any violation of the Rules and
Regulations by other Lessees of the Building Lessor-shall enforce them, to the
extent that they apply to each tenancy at the Building, against all other
Lessees uniformly.
20. LESSOR'S RIGHTS
LESSOR SHALL HAVE THE FOLLOWING RIGHTS WITHOUT LIABILITY TO LESSEE FOR DAMAGE OR
INJURY TO PERSONS, PROPERTY OR BUSINESS AND WITHOUT BEING DEEMED AN EVICTION OR
DISTURBANCE OF LESSEE'S USE OR POSSESSION OF THE PREMISES IN WHOLE OR IN PART OR
GIVING RISE TO ANY CLAIM FOR SET OFF OR ABATEMENT OF RENT (EXCEPT AS PROVIDED IN
SECTION 13):
(a) to change the Buildings name or street address upon thirty (30)
day's prior written notice to Lessee:
(b) to install, affix and maintain all signs on the exterior and/or
interior of the Building;
(c) to designate and/or approve prior to installation, all types of
signs, window shades, blinds, drapes, awnings or other similar
items, and all internal lighting that may be visible from the
exterior of the Premises or the public corridors or the Building;
(d) to display the Premises to prospective tenants at reasonable
hours during (i) the last six (6) months of the Term if no Option
Space has been undertaken or (ii) the last nine (9) months of the
Term if any Option Space has been undertaken, or at any time
after Lessee shall have given Cancellation Notice pursuant to
Section 2.02 C., and to display the Premises to prospective
purchasers and mortgagees on reasonable notice at reasonable
hours at any time during the Term;
(e) to close, change or rearrange the location of the entrances,
doors, corridors, elevators, stairs and toilets or other public
parts of the Building, provided that no such change shall
materially adversely affect access to the Premises;
(f) to grant to any party the exclusive right (to the extent
permitted by law) to conduct any business or render any service
in or to the Building, provided such exclusive right shall not
operate to prohibit Lessee from using the Premises for the
purposes permitted hereunder;
(g) to prohibit the placing of vending or dispensing machines of any
kind in or about the !Premises;
(h) to have access for Lessor and other tenants of the Building to
any mail chutes and boxes located in or on the Premises according
to the rules of the United States Post Office:
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(i) to close the Building after normal business hours, except that
Lessee and its employees and invitees shall be entitled to
admission subject to Lessor's reasonable rules and regulations
regarding Building security.
(j) to take any and all reasonable measures, including inspections
and repairs to the Premises or to the Building, as may be
necessary or desirable in the operation or protection thereof and
shall have the right to enter upon the Premises, to inspect the
same, and to make such decorations, repairs, alterations,
improvements or additions to the Premises or the Building as the
Lessor may deem necessary or desirable, and the Lessor shall be
allowed to take all material into and upon said Premises that may
be required therefor.
(k) to retain at all times master keys or pass keys to all doors in
and to the Premises, excepting doors which Lessor has agreed in
writing to allow Lessee to install separate locks (provided that
Lessor shall not be responsible for rendering of janitorial
services to areas of the Premises made so in accessible);
(l) to install operate and maintain a building security system which
monitors, by closed circuit television or otherwise, all entering
and leaving the Building and all public areas of the Building
including, but not limited to, elevators and staircases; and
(m) to install and maintain pipes, duct, conduits, wires and
structural elements located in the Premises which service other
parts of the Building, so long as such installations do not
materially interfere with Lessee's use and possession of the
Premises.
21. ESTOPPEL CERTIFICATE
FROM TIME TO TIME BUT UPON NOT LESS THAN 10 DAYS' PRIOR WRITTEN REQUEST BY
LESSOR OR ANY MORTGAGEE HOLDING A MORTGAGE ON THE LAND OR THE BUILDING, LESSEE
SHALL DELIVER TO LESSOR OR SUCH MORTGAGEE A STATEMENT IN WRITING CERTIFYING:
(a) that this Lease is unmodified an in full force and effect or, if
there have been modifications, that this Lease, as modified, is
in full force and effect;
(b) the amount of current Monthly Base Rent then payable hereunder
and the date through which Rent has been paid;
(c) that to Lessee's knowledge Lessor is not in default under this
Lease or, if in default, a detailed description of such
default(s), attaching a copy of any and all notices given to
Lessor with respect thereto;
(d) that Lessee is or is not in possession of the Premises, as the
case may be; and
(e) such other information or agreements as Lessor or the mortgagee
reasonably may request
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In the event that Lessee fails to deliver the statement within fifteen (15) days
after Lessor or the mortgagee requests it, Lessee irrevocably appoints Lessor as
Lessee's attorney-in-fact, in Lessee's name, to execute and accept such
instrument on behalf of Lessee. Such appointment shall not relieve Lessee from
its affirmative obligation to execute and deliver such instrument, however, at
any time thereafter immediately upon Lessor's written demand therefor.
22. SUBORDINATION.
A. GENERAL. This Lease is subject and subordinate to all present and future
ground or underlying leases of the Land and to the lien of any mortgages or
trust deeds, now and hereafter in force against the Land and Building, or
either, and to all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be made upon the
security of such mortgages or trust deeds, unless the holders of such mortgages
or trust deeds, or the lessors under such ground lease or underlying leases
require in writing that this Lease shall be superior thereto. At Lessor's
request Lessee shall execute such further instruments or assurances as Lessor
reasonably may deem necessary to evidence or confirm the subordination or
superiority of this Lease to any such mortgages, trust deeds, ground leases or
underlying leases. Lessee hereby irrevocably authorizes Lessor to execute and
deliver in the name of Lessee any such instrument or instruments if Lessee fails
to do so, provided that such shall in no way relieve Lessee from the obligation
of executing such instruments of subordination or superiority.
B. QUIET ENJOYMENT. It is expressly understood and agreed that while this Lease
and the rights of the Lessee hereunder shall be and remain subordinate to any
such mortgage, mortgages, trust deeds, or ground leases, so long as the Lessee
shall keep and perform each and all of the terms, covenants and conditions of
this Lease contained on the part of the Lessee provided to be kept and
performed, the right of the Lessee to continue to occupy the Premises and to
conduct business therein shall not be disturbed by any foreclosure or other
proceeding or by the holder or holders of any indebtedness secured by any such
mortgage, trust deed, or by the lessor of any such ground or underlying lease,
or by any trustee, receiver of any other person claiming by, through, or under
such holder of such trust deed, mortgage, or such ground or underlying lease
lessor.
23. NOTICES
All notices required or permitted to be given hereunder shall be in writing and
shall be deemed given and delivered, whether or not received, when and properly
addressed, certified mail, return receipt requested, at the following address:
if
(a) To Lessor:
Xxxxxxxx Properties, Ltd., 00 Xxxx Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X.Xxxxxxxx, Pres., and to such other persons or entities as
Lessor may designate in writing; and if
(b) To Lessee:
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At the address specified in Subsection 1.01C prior to Lessee's occupancy of any
portion of the Premises, and upon occupancy at the Premises or at such other
address in Xxxx County, Illinois as Lessee shall designate by written notice to
Lessor, provided if Lessee shall occupy temporary space provided by Xxxxxxxx
Properties, Ltd. pending the Commencement Date, then until occupancy of the
Premises Lessee's address for leasehold notices shall be the address of such
temporary space.
24. MISCELLANEOUS.
24.01 LATE CHARGES. All delinquent Rent and other payments due from Lessee to
Lessor shall bear interest from the 5th day after the due date until
paid in full at the greater of the following rates,: (a) the default
rate of interest in effect under the Building's first mortgage loan
promissory-note from time to time, or (b) 18% per annum. A minimum
charge of $50.00 will be made for any returned checks, NSF or
otherwise.
24.02 ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than any installment or payment of Rent due shall be
deemed to be other than on account of the amount due, and no
endorsement or statement on any check or any letter accompanying any
check or payment of Rent shall be deemed an accord and satisfaction.
Lessor may accept such check or payment without prejudice to Lessor's
right to recover the balance of such installment or payment of Rent or
pursue any other remedies available to Lessor. Lessor at its sole
discretion shall have the right to apply any payment by Lessee to
current or past due Rent under this Lease, without regard to any
notation or restriction Lessee may make upon the form of payment,
provided that upon Lessee's request, Lessor shall provide Lessee a
statement of Lessee's Rent account showing the extent of such
applications and the balance of Rent then due and payable. No receipt
of money by Lessor from Lessee after the termination of this Lease or
Lessee's right of possession of the Premises shall reinstate, continue
or extend the Term.
a. Notwithstanding the foregoing Section 24.02, Lessor shall
apply payments received from Lessee under this Lease, in the following
order, so long as Lessee is NOT in default under this Lease: to current
Monthly Base Rent, then to Taxes and Operating Expenses additional
rent, then to HVAC and electrical services additional rent, to charges
for non-Standard Building Services, then to other Rent, and finally to
outstanding late charges, if any.
24.03 FORCE MAJEURE. Except to the extent specifically provided to the
contrary elsewhere in this Lease, Lessor shall be deemed not in default
with respect to any of the terms, covenants and conditions of this
lease on Lessor's part to be performed, if Lessor fails to timely
perform same and such failure is due in whole co in part to any strike,
lockout labor trouble (whether legal or illegal), civil disorder,
inability to procedure materials, failure. of power, restrictive
governmental law or regulation, riot, insurrection, war, fuel shortage,
accident, casualty, act of God, act caused directly or indirectly by
Lessee (or
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Lessee's agents, employees or invitees), or any other cause beyond
Lessor's reasonable control.
24.04 CAPTION. The various Section and Subsection captions in the Lease are
inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or intent of such Sections and
Subsections.
24.05 APPLICABLE LAW. This Lease shall be construed in accordance with the
laws of the State of Illinois as amended from time to time, including
that State's laws regarding conflict of laws..
24.06 TIME. Time is of the essence in this Lease and the performance of all
obligations hereunder.
24.07 LESSOR'S RIGHT TO PERFORM LESSEE'S DUTIES. If Lessee fails to perform
any of its duties under this Lease when required (or if not so
specified then within a reasonable time), Lessor shall have the right
(but not the obligation), after the expiration of any grace period or
notice period provided elsewhere under this Lease expressly granted to
Lessee for the performance of such duty, to perform such duty on behalf
and at the expense of Lessee without further prior notice to Lessee,
and all sums expended or incurred by Lessor (including court costs,
attorneys' fees and related litigation or settlement expenses) in
performing such duty shall be deemed to be additional Rent under this
Lease and shall be due and payable upon demand by Lessor.
24.08 LIMITATION OF LIABILITY. The term "Lessor" as used in this Lease shall
mean the beneficial owner of the Trust (or its successor) which holds
legal title to the Building, and any obligation or liability of Lessor
hereunder shall be limited to the beneficial owner's assets. In no way
shall Xxxxxxxx Properties, Ltd., its affiliates or their respective
owners, agents, employees or servants be personally or individually
responsible or liable for any claim arising out of this Lease.
24.09 PARTIAL INVALIDITY. If any term, covenant, or condition of the Lease or
the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable as a matter of law, the remainder
of this Lease, or the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term,
covenant and condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
24.10 INCORPORATION BY REFERENCE. All Exhibits, Riders, Schedules and related
documents intended to be part of his Lease are deemed as such, whether
or not actually attached, so long as the parties have identified them
as to be so incorporated.
24.11 BINDING EFFECT. All of the covenants, agreements, terms and conditions
contained in this Lease shall inure to and be binding upon Lessor and
Lessee and their respective heirs,
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executors, administrators, successors and/or its assigns; provided the
foregoing never shall be construed to be a consent by Lessor to any
proposed assignment, or subletting or related transaction by which
Lessee's status as Lessee may be altered.
24.12 Reserved
24.13 GRAMMAR. All grammatical changes reasonably required to make the
provisions hereof apply either to corporations, partnerships or
individuals, male or female, as the case may require, shall in all
cases be assumed as though in each case fully expressed.
24.14 LEASE CONTAINS ALL TERMS. All of the representations and obligations of
the parties are contained in this Lease, and no modification, waiver or
amendment of the Lease or of any of its conditions or provisions shall
be binding upon either party unless in writing signed by the party to
be charged or by its duly authorized agent empowered by a written
instrument signed by the party to be charged; and there are no other
agreements whether written or oral.
24.15 DELIVERY FOR EXAMINATION. Submission of this Lease for examination
shall not bind Lessor in any manner, and no Lease or obligations of the
Lessor shall arise until this instrument is signed by both Lessor and
Lessee, the initial funds due, if any, from Lessee to Lessor upon
execution of this Lease are paid to and/or deposited with Lessor, and
fully executed originals of this Lease are delivered to both Lessor and
Lessee.
24.16 MODIFICATION OF LEASE. If any lender requires, as a condition to its
lending funds the repayment of which is or is to be secured by a
mortgage or trust deed on the Land and Building or either, that certain
modifications be made to this Lease, which modifications will not
require Lessee to pay any additional amounts or otherwise change
materially the rights or obligations of Lessee hereunder, Lessee shall,
upon Lessor's request, execute appropriate instruments effecting such
modifications.
24.17 LESSOR'S TITLE. Lessor's title is and always shall be paramount to the
title of Lessee. Except as provided in Section 22. ("Subordination")
nothing in this Lease shall empower or be deemed to empower any act
which can, shall or may encumber the title of Lessor.
24.18 PROHIBITION AGAINST RECORDING. Neither this Lease, nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by
Lessee or by anyone acting through, under or on behalf of Lessee, and
the recording thereof in violation of this provision shall make this
Lease null and void at Lessor's election.
24.19 PUBLICITY. Lessor and Lessee covenant and agree that but for
disclosures required by applicable law, code, ordinance, rule and
regulation and but for typical trade publication announcements and
other typical and customary disclosures required by Lessor's and
Lessee's financial sources, all of the business terms of this Lease are
deemed confidential and shall not be publicized without the mutual
written approval of Lessor and Lessee.
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24.20 COVENANTS AND CONDITIONS. All of the covenants of Lessee hereunder
shall be deemed and construed to be "conditions", if Lessor so elects,
as well as "covenants" as though the words specifically expressing or
importing covenants and conditions were used in each separate instance.
24.21 ONLY LESSOR-LESSEE RELATIONSHIP. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint
venturer or any association between Lessor and Lessee, it being
expressly understood and agreed that neither the method of computation
of Rent nor any act of the parties hereto shall be deemed to create any
relationship between Lessor and Lessee other than the relationship of
landlord and tenant.
24.22 Reserved.
24.23 PERFORMANCE OF TERMS. The failure of the Lessor to insist upon
performance of any of the conditions of this lease in any one or more
instances shall never be a waiver thereafter of the right of Lessor to
demand full performance of all of the agreements of Lessee herein set
forth, and of all conditions when any performance is due.
24.24 AGREEMENT TO EXECUTE OTHER DOCUMENTS. The parties to this Lease hereby
agree to execute such other of further documents as may be necessary to
effectuate the intents and purposes of this Lease.
24.25 COMMON AREAS. So long as Lessee is not in default under this Lease,
Lessor grants Lessee a non-exclusive license to use and occupy in
common with others entitled thereto the common areas, loading
facilities, sidewalks, and other facilities as may be designated from
time to time by Lessor as Common Areas, subject, however, to the terms
and conditions of this Lease and to reasonable rules and regulations
for the use thereof as prescribed from time to time by Lessor.
24.26 LESSEE AS CORPORATION OR PARTNERSHIP. In case the named Lessee is a
corporation, Lessee (i) represents and warrants that this Lease has
been duly authorized, executed and delivered by and on behalf of Lessee
and constitutes the valid and binding agreement of Lessee in accordance
with the terms hereof and (ii) shall deliver to Lessor, concurrently
with the delivery of this Lease executed by Lessee, certified
resolutions of the board of directors (and shareholders, if required)
authorizing Lessee's execution and delivery of this Lease and the
performance of Lessee's obligations hereunder, including a certificate
of incumbency for such authorizations. In the event this Lease is
modified or amended in writing, Lessor shall have the right, prior to
executing any such modification or amendment, to require Lessee, at the
time of execution of, and for, each such modification or amendment, to
provide Lessor with the documents and instruments set forth under
clause (ii) as may be correct at each such time.
24.27 DEFINITION OF PREMISES AREA. For the purposes of this Lease, the
"Rentable Area" of the Premises shall mean the area in and/or
attributable to the Premises as
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calculated herein. Rentable Area shall be that area calculated by
measuring first the "gross area" within (i) the exterior window glass
line of exterior Building walls of the Premises where said walls are
more than 50% windowed or, if not so windowed, from the interior
surface of said walls, (ii) the outside of demising partitions
separating the Premises from common hallways, corridors, lavatories,
stairwells and/or elevator shafts not otherwise constituting vertical
penetrations through the gross area, and/or (iii) the center of
demising partitions separating the Premises from other tenant space,
then deducting from the gross area the area within the Premises devoted
to utility risers, shafts and other vertical penetrations (measured
from the exterior of said penetrations but NOT deducting structural
support elements of the Building located within the gross area, thereby
resulting in the "net rentable area", then equalized and adjusted by
Premises' proportionate share, if any, of the corridors, hallways,
bathrooms, air conditioning and fan rooms, janitorial, electrical and
other utility closets, and other similar areas and facilities serving
the floor of the Building on which the Premises are located.
24.28 HAZARDOUS SUBSTANCES
A. Definition. For the purposes of this Lease, "hazardous substances"
shall mean all materials or substances, whether solid, liquid or
gaseous, which from time to time are declared by applicable federal,
state or local governmental law, ordinance, code, rule or regulation
from time to time in effect, to be subject to removal, abatement or
regulated use, by reason of toxicity or other public health, safety or
welfare consideration, whether per se or dependent upon level of
presence in composites or other mixtures, and shall include, by way of
example only and NOT by way of limitation: asbestos, asbestos
containing materials, PCBS, and dioxin.
B. Insofar as the construction materials of the Building, common areas
and permanent leasehold improvements are concerned:
C. If any Building Standard construction materials are declared to be
or contain hazardous substances, Lessor at its sole cost and expense
shall comply with the appropriate removal, abatement or regulation
requirements, and in such event Lessor at its sole cost and expense
shall replace those materials with others of similar quality excepting
they shall contain no hazardous substances. Lessee shall cooperate in
the removal, abatement or regulation program, including temporary
relocation pending removal or abatement (as the case may require), at
Lessor's sole cost and expense, with Rent adjusted on a proportionate
basis, but not fully abated, during such temporary relocation.
D. Any and all construction materials incorporated into the Premises by
Lessee at its sole cost and expense and declared to be or contain
hazardous substances shall be removed or abated at Lessee's sole cost
and expense.
E. Insofar as Lessee's moveable fixtures, office furniture, business
equipment and miscellaneous personalty is concerned, and except to the
limited extent (and solely in the
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manner) permitted by applicable governmental law, ordinance, code rule
or regulation from time to time in effect, Lessee shall neither bring
into, keep nor use any hazardous substances in or about the Premises or
the Building; and Lessee at its sole cost and expense shall comply with
all such laws, ordinances, codes, rules and regulations, including
without limitation removal of hazardous substances if banned. Likewise
and similarly Lessor at its sole cot and expense shall regulate use of
hazardous substances, if permitted, or enforce removal of same, if and
as legally required, from the balance of the Building. This obligation
shall survive expiration or sooner termination of this Lease.
F. For the purposes of this Lease, any loss, cost, damage or expense
arising from compliance with this Section 24.28 shall not be deemed a
casualty loss except to the extent insurance against such perils is
reasonably available to both Lessor and Lessees and if so available,
Lessee each shall procure and maintain same in connection with
insurance coverages otherwise required to be obtained and maintained by
it under this Lease.
24.29 FULLY INTEGRATED LEASE. This Lease represents a commercial lease made
at arm's length by Lessor and Lessee and fully negotiated with the
assistance of independent legal counsel and other professional
consultants. For the purposes hereof, any real estate broker engaged by
Lessee (other than X.X. Xxxxxxxx & Associates or any of its
affiliates), even though to be paid by Lessor as provided elsewhere in
this lease, shall be deemed Lessee's "independent" consultant. As such
Lessor and Lessee acknowledge that, except where specifically indicated
to the contrary, there is no clear delineation between the "business"
and "legal" terms of this Lease. Also as a consequence thereof, in the
event this Lease or any provision of his Lease requires judicial or
similar interpretation because of an alleged or claimed ambiguity,
NEITHER Lessor nor Lessee shall be prejudiced by any rule, canon or
maxim of construction that any such provision is to be construed
(strictly or otherwise) against the "drafter; rather, all provisions of
his Lease shall be interpreted so as to be equitable to both Lessor and
Lessee under the totality of all provisions of this Lease, if any,
reasonably in pari materia to the provision alleged or claimed to be
ambiguous.
IN WITNESS WHEREOF, THIS LEASE HAS BEEN EXECUTED AS OF THE DATE SET FORTH IN
SUBSECTION 1.01 X.
XXXXXX:
XXXXXXXX PROPERTIES, LTD., etc., as Agents, etc.
By: /s/ A.M.F.
Xxxxxx X. Xxxxxxxx, President
LESSEE:
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METAL MANAGEMENT, INC., A DELAWARE CORPORATION DULY QUALIFIED TO TRANSACT
BUSINESS IN ILLINOIS
BY: /s/ XXXXXX X XXXXXX
PRINT NAME: XXXXXX X. XXXXXX
TITLE/OFFICE: PRESIDENT
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