EXHIBIT 10.4
STANDARD GROSS OFFICE LEASE
000 XXXXX XXXXXXX XXXXXX
THIS LEASE Agreement, dated as of November 1, 1998, is entered into by and
between (i) WDI REALTY CO., a Michigan corporation (hereinafter referred to as
"Landlord"), and (ii) COMMERX, INC., an Illinois corporation (hereinafter
collectively referred to as "Tenant").
ARTICLE I
BASIC LEASE PROVISIONS AND TERM
1.01 Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby
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rents from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this Lease, the premises consisting of approximately, 8,835
rentable square feet consisting of all of the rentable area on the 10th floor of
the Building, as hereinafter defined (the "Premises"), located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (the "Building"). The land upon which the
Building is located is more particularly described on Exhibit "A", annexed
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hereto and made a part hereof (the "Property"). The Premises are depicted on the
floor plan annexed hereto and made a part hereof as Exhibit "B".
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1.02 Commencement of Lease and Term of Lease. The term of this Lease
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shall be for one hundred twenty (120) months, commencing on January 1, 1999 (the
"Commencement Date"), and ending on December 31, 2008 (the "Expiration Date"),
unless sooner terminated as otherwise provided in this Lease.
1.03 Tenant Option For Additional Lease Space. At any time prior to the
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first anniversary of the Commencement Date, Tenant shall have the option, upon
written notice to Landlord, to lease from Landlord, the remaining portion of the
11th floor of the Building, or any additional portion thereof ("Additional Lease
Space"); provided, however, if Tenant does not elect to lease all of the
remaining portion of the 11th floor, the configuration and area of the
Additional Lease Space shall be subject to Landlord's reasonable approval so
that Landlord will be able to lease the balance of the 11th floor to a third
party. All provisions of this Lease shall remain applicable to the Additional
Lease Space, including the applicable Gross Rent Per Square Foot Rate together
with the annual adjustments for such Additional Lease Space and Additional Rent.
Upon the exercise of Tenant's option under this Section 1.03, Tenant shall
provide Landlord with plans and specifications for its proposed improvements of
the Additional Lease Space ("Additional Improvements"). Landlord will allow and
pay the actual cost thereof to the Tenant upon completion of the Additional
Improvements and governmental approval of same, the sum of up to $35.00 per
square foot for the cost and design of such Additional Improvements ("Additional
Improvement Allowance"). All costs in excess of such allowance for the design
and construction of the Additional Improvements shall be paid by Tenant. Tenant
shall provide Landlord with documentation reasonably satisfactory to Landlord of
the cost of the Additional Improvements including, but not limited to, lien
waivers and sworn statements. Tenant shall arrange for the completion of the
Additional Improvements which shall be made in accordance with the plans and
specifications submitted to, and approved by Landlord. Said Additional
Improvements shall be completed by Tenant within 90 days from the exercise of
its option and the additional rental payments for the additional space shall
commence on the earlier of (i) 90 days from the exercise of such option or (ii)
actual occupancy. Landlord agrees to make interim disbursements of the
Additional Improvement Allowance in accordance with the provisions of Section
5.03 hereof.
1.04 Tenant Right of First Opportunity. At any time, from and after the
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first anniversary of the Commencement Date, but prior to the fifth anniversary
of the Commencement Date of this Lease, in the event Landlord proposes to rent
all or any remaining portion of the 11th floor of the Building ("Lease
Election"), Landlord shall send a notice to Tenant it proposes to lease the
space on the 11th floor of the Building ("Lease Election Notice") and the
material terms and conditions thereof. The Tenant shall have 15 days from the
receipt of the Lease Election Notice to serve written notice on the Landlord
that it elects to rent from Landlord, all of the remaining space on the 11th
floor of the Building. If Tenant fails to serve written notice to Landlord that
it elects to rent the remaining portion of the 1lth floor within such 15 day
period, such failure shall be deemed to be an election not to rent the remaining
portion of the 11th floor of the Building. If Tenant exercises such option, the
rental rate shall be the greater of (i) the rental rates set forth in Lease
Election Notice; or (ii) the then existing rate Tenant is paying under this
Lease subject to adjustments as provided herein, and the other conditions shall
be the same as in this Lease. The buildout allowance per square foot shall be
as set forth in Section 1.03. The lease term for such additional space shall be
co-terminus with this Lease term. The Tenant shall complete its buildout with
the same time frame and rental shall commence as set forth in Section 1.03.
1.05 Certain Lease Termination Rights. At any time after the fifth
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anniversary of the Commencement Date of this Lease, but prior to the eighth
anniversary of the Commencement Date of this Lease, Tenant shall have the right
to terminate this Lease ("Early Termination Option") subject to the satisfaction
of each of the following terms and conditions:
(i) Tenant delivers written notice to Landlord, at least six (6)
months prior to the proposed termination date, of its election to exercise its
Early Termination Option and the proposed termination date ("Termination
Notice");
(ii) At the time the Termination Notice is delivered to Landlord,
the Tenant then occupies at least one and one-half floors (13,253 rentable
square feet) of the Building;
(iii) Tenant certifies to Landlord, in good faith, that it requires
additional rental space such that it would necessitate Tenant occupying space on
three (3) different floors of the Building; and
(iv) Tenant delivers to Landlord with its Termination Notice a
certified check or bank check in the amount of the Early Termination Fee.
For the purposes of this Lease, the Early Termination Fee shall equal the
unamortized balance (amortized over the term of this Lease from date spent on a
straight line basis) of the Tenant Improvement Allowance for the Premises and,
if applicable, the Additional Improvements, plus all other transactional
expenses of Landlord in connection with this Lease or any modifications
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thereof or other agreements related thereto, including, but not limited to,
leasing brokerage fees and legal fees. Landlord shall provide Tenant with a
summary of such transactional costs upon request of Tenant.
1.06 Financial Statements.
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(a) It is acknowledged and agreed that Tenant is a relatively new
entity and does not currently have significant assets. Fast Heat International
and Fast Heat, Incorporated (collectively, "Fast Heat") are entities affiliated
with Tenant and have agreed to guaranty (the "Guaranty") all of the obligations
of Tenant under this Lease subject to Section 1.06(b) below.
(b) (i) Tenant shall annually, within 120 days after the expiration
of Tenant's fiscal year, provide to Landlord a financial statement of Tenant for
the most current fiscal year audited by a certified public accountant reasonably
acceptable to Landlord ("Financial Statement"). Except as otherwise provided
herein, in the event the net worth of Tenant exceeds $5,000,000 as disclosed by
the Financial Statement and as verified by Landlord's accountants ("Minimum Net
Worth Test"), Landlord agrees that, thereafter, in the event of a default under
this Lease, Landlord will have recourse against the Tenant only and shall not
look to any of the assets of Fast Heat to satisfy any of Tenant's obligations
hereunder.
(ii) Notwithstanding the foregoing, if any subsequent Financial
Statement discloses that Tenant's net worth has decreased to less than
$5,000,000 and Tenant does not meet the Minimum Net Worth Test, Fast Heat shall,
thereafter, be jointly and severally liable with Tenant for all of Tenant's
obligations under this Lease pursuant to the Guaranty ("Reinstatement"). In the
event a Reinstatement occurs for the first time, the Minimum Net Worth Test will
not be applied by Landlord until the second year following the Reinstatement.
In the event a Reinstatement occurs for the second time during the term of this
Lease, the provisions of Section 1.06(b)(i) shall terminate and Fast Heat shall
thereafter until the end of the term of the Lease be jointly and severally
liable for the obligations of Tenant pursuant to the terms of the Guaranty.
1.07 Temporary Space. From and after November 1, 1998 Landlord shall
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provide to Tenant temporary space with the minimum of 4,000 square feet and the
maximum of 5,000 square feet on the 11" floor of the Building in an area
designated by Landlord ("Temporary Space"). Tenant shall be responsible for all
costs associated with Tenant's moving and occupancy of such Temporary Space.
Tenant shall not have to pay any rent to Landlord for such Temporary Space;
provided, however, except as otherwise provided herein, Tenant shall pay all (i)
costs for its electrical usage; (ii) after hour charges; and (iii) parking
expenses. Tenant agrees that it will, at its sole cost and expense, restore the
Temporary Space to the condition of the Temporary Space at the time of
occupancy. Notwithstanding anything in this Lease to the contrary, if Tenant
has not completed the Initial Improvements by the Commencement Date, the Tenant
shall pay all Rent due under this Lease from and after the Commencement Date.
Tenant's rights to use the Temporary Space shall terminate upon the completion
of the Initial Improvements and occupancy of the Premises, but in no event later
than February 1, 1999. Landlord agrees to not charge Tenant "after hours"
charges for up to one (1) day for moving into the Temporary Space and for up to
one (1) day for moving into the Premises.
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ARTICLE II
GROSS RENT AND GENERAL RENTAL PAYMENT PROVISIONS
2.01 Types of Rental Payments. The rents shall be and consist of (a)
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gross rent payable in monthly installments as set forth below in advance, on the
first day of each and every calendar month during the term of this Lease (the
"Gross Rent") and (b) any additional charges (the "Additional Rent"; and the
Gross Rent and Additional Rent are hereinafter collectively referred to as
"Rent") payable by Tenant to Landlord under the terms of this Lease; all to be
paid in lawful money of the United States to Landlord's agent, Tishman Real
Estate Management Company, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
at such other place, as Landlord shall from time to time designate by notice to
Tenant.
2.02 Gross Rent. Subject to adjustment as provided herein, during the
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first twelve months of the term, Gross Rent shall be payable in monthly
installments of $19,657.88 which is based on the rate of $26.70 per square foot
per annum ("Gross Per Square Foot Rate"). Upon the first anniversary of the
Commencement Date of this Lease, and upon each anniversary thereafter, the Gross
Rent shall be adjusted as described below. Said Gross Rent and Additional Rent
shall be payable on or before the first day of each month commencing January 1,
1999 and continuing on the first day of each month thereafter until the
Expiration Date.
2.03 Gross Rent Adjustments. Commencing with the first anniversary of
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the Commencement Date, and upon each anniversary thereafter during the term of
this Lease, the Gross Rent shall be increased by an amount equal to $.50 per
square foot. The adjusted monthly installments of Gross Rent for the twelve
months succeeding any adjustment shall be determined by adding $.50 to the
initial Gross Rental Rate plus any prior adjustments, and multiply such rate by
the number of square feet in the Building being rented under this Lease and
dividing such amount by twelve (12).
2.04 Covenants Concerning Rental Payments. Tenant shall pay the Gross
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Rent and the Additional Rent promptly when due without notice or demand therefor
and without any abatement, deduction or set-off for any reason whatsoever
(except as specifically provided herein). No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the correct Gross Rent or
Additional Rent shall be deemed to be other than the payment on account, nor
shall any endorsement or statement on any check or letter accompanying any
payment be deemed an accord or satisfaction and Landlord may accept such payment
without prejudice to its right to recover the balance or pursue any other remedy
in this Lease or at law. If the Commencement Date occurs on a day other than the
first day of a calendar month, the Gross Rent for the partial calendar month, at
the commencement of the term of this Lease, shall be prorated on a per them
basis. Any payment of rent not made on the date that such payment is due shall
be subject to a one percent (1%) late payment fee to compensate Landlord for
Landlord's estimated costs associated with such delinquency. The above-described
late payment fee shall be immediately due and payable as Additional Rent
hereunder.
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2.05 Operating Expenses and Taxes.
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(a) For the purpose of this Lease, the following terms have the
meanings set forth herein.
"Base Year For Operating Expense" shall mean the calendar year 1999.
"Base Year for Taxes" shall mean the calendar year 1999.
"Taxes" shall mean all ad valorem real property taxes and all
assessments at large levied upon or assessed with respect to the Building
imposed by any taxing authority having jurisdiction or any taxes or assessments
which shall be levied on the Building in lieu of or in addition to all or any
portion of any such real estate taxes or assessments. Should the State of
Illinois or any political subdivision thereof or any governmental authority
having jurisdiction thereof levy, assess or impose:
(i) a tax on the rents or other income received from the
Building, or
(ii) a license fee measured by the rents receivable by
Landlord from the Building, or
(iii) a tax, license or franchise fee imposed upon Landlord
which is otherwise measured by or based in whole or in part upon the
Building or any portion thereof,
either by way of substitution for the taxes levied or assessed against the tax
parcel, or in addition thereto, such tax, assessment or fee shall be deemed to
constitute a tax against the Building for the purpose of this Section, computed
as if the Building was the only property of Landlord subject thereto.
"Tenant's Pro Rata Share" shall mean that proportion of any increase
in the Operating Expenses (as hereinafter defined) for any calendar year over
the Base Year For Operating Expenses or any increase in the Taxes for any
calendar year over the Base Year for Taxes, as the case may be, as the total
number of rentable square feet of the Premises compares to the total number of
rentable square feet in the Building. At such time, if ever, any space is added
to the Premises pursuant to the terms of this Lease, Tenant's Pro Rata Share
shall be increased by the percentage calculated by dividing the number of
additional rentable square feet by the total number of rentable square feet in
the Building.
"Operating Expenses" shall:
(i) mean all operating expenses of any kind or nature (incurred
consistent with the operation of a Class A office building located in
the central business district in the City of Chicago) with respect to
the Building, except the Taxes, as determined in accordance with
generally accepted accounting principles and shall include, but not be
limited to, the cost of Building supplies; costs incurred in
connection with all energy sources for the common areas of the
Building such as
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propane, butane, natural gas, steam, electricity, solar energy and
fuel oil; the costs of water and sewer services; window washing;
janitorial services; general maintenance and normal repair of the
Building, including the heating and air conditioning systems of the
Building; landscaping maintenance; maintenance, repair, striping and
replacement of all parking areas furnished by Landlord for use by
tenants or their invitees of the Building; the cost of rubbish
removal, snow removal and service contracts for the elevator, HVAC and
alarm systems of the Building; the cost of such security guards and
protection services as may be deemed reasonably necessary by Landlord,
including, but not limited to, a 24 hour security guard; an
administration fee not to exceed 5% of the gross rentals payable to
Landlord by all tenants in the building; insurance in amounts and
coverages determined by Landlord, including fire and extended
coverage, rental interruption, sprinkler leakage, plate glass and
public liability insurance (but Tenant shall have no interest in such
insurance or the proceeds thereof); labor costs incurred in the
operation and maintenance of the Building, including wages and other
payments, costs to Landlord of Workers' Compensation and disability
insurance; payroll taxes, and welfare fringe benefits; professional
building management fees; legal, accounting, inspection and
consultation fees incurred in connection with the Building to the
extent required by any governmental authority or any other inspection
or consultation fees incurred in connection with the Building to the
extent required by any governmental authority or any other inspection
or consultation fees required for the normal prudent operation of the
Building and not normally the responsibility of the managing agent;
the cost of any capital improvements to the Building or of any
machinery or equipment installed in the Building which is made or
becomes operational, as the case may be, after the Commencement Date,
which costs shall be amortized over the useful life of the capital
improvement (as reasonably estimated by Landlord's accountant); and
all other common area costs and expenses and replacements relating to
the Building and all other charges properly allocable to the repair,
operation and maintenance of the Building in accordance with generally
accepted accounting principles. If Landlord selects an accrual
accounting basis for calculating Operating Expenses, Operating
Expenses shall be deemed to have been paid when such expenses have
accrued in accordance with generally accepted accounting principles.
(ii) Expressly exclude Landlord's income taxes; leasing commissions,
interest on debt or amortization payments on any mortgages or deeds of
trust and rental under any ground or underlying leases or lease;
advertising and promotional expenditures; and any other expense which
under generally accepted accounting principles would not be considered
a normal maintenance or operating expense, except as otherwise
specifically provided herein.
(b) It is hereby agreed that during each calendar year of the term of
this Lease, Tenant shall pay to Landlord (i) the amount of any excess of
Tenant's Pro Rata Share of Operating Expenses over Tenant's Pro Rata share of
the Base Year For Operating Expenses; and (ii) the amount of any excess of
Tenant's Pro Rata Share of the Taxes over Tenant's Pro Rata Share of the Base
Year for Taxes. Beginning with the first calendar year in which this Lease
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commences, the monthly rent to be paid by Tenant to Landlord shall be increased
by an amount equal to (i) 1/12th of the estimated increase, if any, for each
calendar year over Tenant's Pro Rata Share of the Base Year For Taxes and (ii)
1/12th of the estimated increase, if any, of Tenant's Pro Rata Share of the Base
Year Operating Expenses, with an adjustment to be made between the parties at a
later date as hereinafter provided. As soon as practicable following the end of
each calendar year during the term of this Lease, Landlord shall submit to
Tenant a statement setting forth the exact amount of the increase, if any, in
(i) Tenant's Pro Rata Share of the Taxes for the calendar year just completed
over Tenant's Pro Rata Share of the Base Year For Taxes, and the difference, if
any, between Tenant's actual Pro Rata Share of the Taxes for the calendar year
just computed and the estimated amount of Tenant's Pro Rata Share of the Taxes
(on which its rent was based) for such year prior to the end of each calendar
year during the term hereof and (ii) Tenant's Pro Rata Share of the Operating
Expenses for the calendar year just computed over Tenant's Pro Rata Share of the
Base Year Operating Expenses, and the difference, if any, between Tenant's
actual Pro Rata Share of the Operating Expenses for the year first completed and
the estimated amount of Tenant's Pro Rata Share of Operating Expenses for such
year. Landlord shall submit to Tenant a statement setting forth the amount
reasonably estimated by Landlord as the increase, if any, in the Operating
Expenses or Taxes for the subsequent year and the amount of the increased
monthly rent to be paid by Tenant for such subsequent year computed in
accordance with the foregoing provision. To the extent that Tenant's Pro Rata
Share of the actual Operating Expenses or Tenant's Pro Rata Share of the Taxes
for the period covered by such statement is different from the estimated
increases upon which Tenant paid rent during the calendar year just completed,
Landlord shall pay to Tenant, or Tenant shall pay to Landlord, as the case may
be, the difference within thirty (30) days following receipt of said statement
from Landlord. In addition, with respect to the monthly rent, until Tenant
receives such statement, Tenant's monthly rent for the new calendar year shall
continue to be paid at the then current rate, but Tenant shall commence payment
to Landlord of the monthly installments of rent on the basis of the statement
beginning on the first day of the month following the month in which Tenant
receives such statement. Moreover, Tenant shall pay to Landlord, or shall
receive a credit against the next installment due hereunder, as the case may be,
on the date required for the first payment of rent as adjusted, the difference,
if any, between the monthly installments of rent so adjusted and the monthly
installments of rent actually paid during the new calendar year. In no event
shall any adjustment hereunder result in a decrease in the Gross Rent or
additional rent payable pursuant to any other provision of this Lease it being
agreed that the payments under this Section 2.05 are an obligation supplemental
to Tenant's obligation to pay the Gross Rent.
(c) If the Lease is in effect for less than a full calendar year
during the first or last calendar years of the term hereof, Tenant's Pro Rata
Share for such partial year shall be calculated by proportionately reducing the
Operating Expenses or the Taxes, as the case may be, to reflect the number of
months in such year during which the Lease is in effect (the "Adjusted Operating
Expenses and Taxes"). The Adjusted Operating Expenses and Taxes shall then be
compared with the actual Operating Expenses and Taxes for said partial year to
determine the amount, if any, of any increases in the actual Operating Expenses
and Taxes, as the case may be, for such partial year over the Adjusted Operating
Expenses and Taxes. Tenant shall pay its Pro Rata Share of any such increases
within thirty (30) days following receipt of notice thereof.
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(d) Landlord's failure during the Lease term to prepare and deliver
any statements or bills, or Landlord's failure to make a demand under this
Section or under any other provision of this Lease shall not in any way be
deemed to be a waiver of, or cause Landlord to forfeit or surrender, its rights
to collect any items of Additional Rent which may have become due pursuant to
this Section during the term of this Lease, except as otherwise specifically set
forth in this Lease. Tenant's liability for all Additional Rent due under this
Section 2.05 shall survive the expiration or earlier termination of this Lease.
(e) At its option and expense, Tenant shall have the right, one time
during any Lease year, upon fifteen (15) days prior written notice to Landlord,
to have its accountant's audit the records of Landlord relating to Taxes and
Operating Expenses for the prior year, at Landlord's record keeping office
during business hours; provided, however, if such audit (based on generally
accepted accounting principles) shall disclose that there is an overstatement of
Tenant's Pro Rata Share of the increases over the Base Year For Operating
Expenses or Base Year For Taxes to the extent of five (5%) percent, then
Landlord shall pay the cost of such audit.
ARTICLE III
SECURITY DEPOSIT; LETTER OF CREDIT
3.01 Security Deposit. Tenant has deposited with Landlord the sum of
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$39,315.75 (the "Security"), the receipt of which is acknowledge by Landlord,
representing security for the full and faithful performance and observance by
Tenant of the covenants and obligations hereunder. Notwithstanding the
foregoing, upon the fifth anniversary of the Commencement Date, and further
provided that Tenant is not currently in default has not or has not been in
default (which default was not cured within any applicable notice and cure
period) under this Lease, the Security will be reduced to $19,657.88 and
Landlord, at its option, shall refund the excess portion of the Security to
Tenant or apply such excess toward Tenant's Gross Rent due Landlord. In the
event Tenant is in default or has been in default (which default was not cured
within any applicable notice and cure period) under the terms of this Lease, the
Security shall not be reduced and the entire Security shall be held and/or
applied by Landlord pursuant to the terms of this Lease throughout the remaining
term of the Lease. The Security shall be held by Landlord without interest in
favor of Tenant, and in the event Tenant defaults in the full and prompt payment
and performance of any of its covenants or obligations hereunder, Landlord may,
without notice to Tenant, use, apply or retain the whole or any part of the
Security to the extent required for the payment of any Gross Rent and Additional
Rent or any other sums which may be due Landlord hereunder. In the event
Landlord shall so use, apply, or retain the whole or any part of the Security,
Tenant shall, upon demand, immediately deposit with Landlord a sum equal to the
amount so used. The use, application, or retention of the Security, or a
portion thereof by Landlord shall not prevent Landlord from exercising any other
right or remedy provided by this Lease or by law (it being intended that
Landlord shall not first be required to proceed against the Security) and shall
not operate as a limitation on any recovery to which Landlord may otherwise be
entitled. If Tenant shall fully and faithfully comply with all the covenants
hereunder, the Security, or any balance thereof, shall be returned or paid over
to Tenant after the last to occur of (i) the date on which this Lease has
expired or been terminated, (ii) delivery to Landlord of full possession of the
Premises and (iii) Landlord's inspection of the Premises and determination that
all obligations of the Tenant under this Lease have been fully satisfied. It is
agreed and
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understood that the obligations of Tenant to Landlord hereunder which may not
have been performed prior to the Expiration Date shall be continuing obligations
owed by Tenant to Landlord and shall accordingly survive the termination of this
Lease. Landlord may deliver the Security to any purchaser of Landlord's interest
in the Premises and thereupon Landlord shall be discharged of and from any
further liability with respect to the same.
3.02 Letter of Credit.
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(a) Upon the execution of this Lease, Tenant shall provide Landlord
with a clean, unconditional and irrevocable letter of credit in the amount of
$200,000 ("Letter of Credit") issued by a commercial banking institution
acceptable to Landlord, which shall include American National Bank, LaSalle Bank
or Xxxxxx Bank and Trust. The term of the Letter of Credit shall be two years
from and after the Commencement Date. The Letter of Credit shall permit partial
draws. Notwithstanding the foregoing, in the event Tenant is unable to procure
a letter of credit at the time of the execution of this Lease, Tenant shall
deposit $200,000 in cash with Landlord or with an escrow agent ("Escrow Agent")
satisfactory to Landlord ("Cash Deposit"). Landlord shall be entitled to draw
on the Cash Deposit on demand in the same manner Landlord is entitled to draw on
the Letter of Credit. Upon the presentation of a Letter of Credit satisfactory
to Landlord, the Escrow Agent or Landlord, as the case may be, shall promptly
refund, or be directed to refund, the Cash Deposit to Tenant. Unless there is
an Event of Default hereunder, all interest, if any, which accrues on the Cash
Deposit shall be paid to the Tenant.
(b) In the event Tenant defaults in the full and prompt payment and
performance of any of its covenants or obligations hereunder, Landlord may,
without notice to Tenant, draw in full or in part, on the Letter of Credit or
Cash Deposit, as the case may be, and use, apply or retain in whole or in part
to apply to any Gross Rent, Additional Rent or other sums due Landlord
hereunder. Any excess amounts drawn under the Letter of Credit or Cash Deposit,
as the case may be, shall be held and/or applied by Landlord as additional
Security under Section 3.01 above.
ARTICLE IV
USE
4.01 Use of Premises. It is agreed and understood that the Premises shall
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be used for the purpose of commercial office use for the purpose of the conduct
of Tenant's business as the executive offices for an internet related company
(or such other use as permitted by Landlord with respect to a sublease approved
by Landlord under Section 8.01 hereof) and for no other purpose. Tenant shall
abide by and not violate any of the rules and regulations of the Building
promulgated by Landlord from time to time. Landlord shall not be liable to
Tenant for violation of the rules and regulations by any other tenant or such
tenant's employees, agents, invitees or licensees. The existing rules and
regulations in force for the Building are described in Article XXVI below;
however, it is understood and agreed that, at any and all times during the term
of this Lease, Landlord may revise, modify, or amend said rules and regulations,
in Landlord's sole discretion, and Tenant shall comply with any and all rules
and regulations in effect, from time to
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time, throughout the term of this Lease, which will be enforced by Landlord in a
non-discriminatory manner.
4.02 Operation of Tenant's Business. If any governmental license or
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permit, other than a Certificate of Occupancy, shall be required for the proper
and lawful conduct of Tenant's business in the Premises or any part thereof,
Tenant, at its expense, shall procure such license prior to the first day of the
term of this Lease, and thereafter maintain and renew such license or permit.
Tenant shall not, at any time, use or occupy, or suffer or permit anyone to use
or occupy, the Premises, or do or permit anything to be done in the Premises, in
any manner which may (a) violate the Certificate of Occupancy for the Premises
or for the Building; (b) cause or be liable to cause injury to the Building or
any equipment, facilities or systems therein; (c) constitute a violation of the
laws and requirements of any public authority or the requirements of insurance
bodies; (d) impair or intend to impair the character, reputation or appearance
of the Building as a first class office building; (e) impair or tend to impair
the proper and economic maintenance, operation, and repair of the Building
and/or its equipment, facilities or systems; and (f) disturb the quiet enjoyment
of other tenants or users of the Building.
ARTICLE V
PREPARATION OF PREMISES
5.01 Tenant Improvements. Tenant shall promptly furnish to Landlord for
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approval, design drawings and working drawings and specifications ("Plans and
Specifications") for all of Tenant's work as set forth in Exhibit C attached
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hereto ("Initial Improvements"). Tenant agrees to construct all of the Initial
Improvements in accordance with the approved Plans and Specifications. No
material deviation from the final set of Plans and Specification, once approved
by Landlord, in its reasonable discretion, shall be made without Landlord's
prior written consent. Approval of the Plans and Specifications shall not
constitute the assumption of any responsibility by Landlord for their accuracy,
efficiency or sufficiency, the Tenant being solely responsible for such items.
Tenant shall have access to the Premises to complete the Initial Improvements
from and after November 1, 1998.
5.02 Reimbursement for Initial Improvements. Landlord will provide to
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Tenant an allowance for the Initial Improvements in the amount of up to $371,180
("Tenant Improvement Allowance") for the design and construction of the Initial
Improvements. Upon completion of the construction of the Initial Improvements,
Tenant shall provide Landlord with documentation, satisfactory to Landlord,
including, but not limited to, sworn statements and lien waivers, of all costs
for the construction of the Initial Improvement and design thereof and a copy of
all governmental approvals of same, and upon the satisfaction of such
requirements, Landlord shall promptly reimburse Tenant or pay directly to or
jointly with contractors or subcontractors for all such costs up to $371,180.
All costs for the Initial Improvements and design thereof in excess of $371,180
shall be paid by the Tenant. Notwithstanding the foregoing, provided Tenant is
not in default hereunder, the Landlord shall, subject to the limitations set
forth herein, make disbursements of the Tenant Improvement Allowance but not
more frequently than once each month. Such disbursements shall be reduced by the
holdback described below. At no time shall Landlord be required to make any
advances for construction costs if the remaining amount to be advanced under the
Tenant Improvement Allowance is insufficient to pay all remaining
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construction costs. If at any time prior to the completion of the Initial
Improvements it appears to Landlord or architect/agent of Landlord that the net
proceeds of the Tenant Improvement Allowance will be insufficient to complete
the Initial Improvements and to pay for all labor, material and costs thereof,
the Tenant shall deposit with Landlord additional monies, when added to the
Tenant Improvement Allowance, will be sufficient to complete and pay for the
Initial Improvements and until the additional monies are deposited, Landlord
shall not be required to make any additional disbursements.
All disbursements of hard costs from the Tenant Improvement Allowance shall
be subject to a 10% holdback of funds by Landlord and the monies so withheld
shall not become due or payable until (i) the full and final completion of work
of each contractor, subcontractor, materialmen, supplier or laborer, (ii) all
certificates of occupancy have been issued, (iii) complete releases and
discharges for all work has been submitted to Landlord and (iv) the receipt by
Landlord of a certification from Tenant's architect of substantial completion.
All applications for disbursements to Landlord shall include (i) a
certificate from Borrower's architect, certifying that the work described on the
application has been completed in accordance with the Plans and Specifications
approved by Landlord to the degree of completion as represented in the
application; (ii) sworn statements of the general contractor or construction
manager describing in detail the amount of costs incurred for construction to
the date of the request, the names of all persons or entities that have provided
work or materials for the construction, the amounts previously paid to the date
of the request, the amounts due and unpaid and an estimate of the amount
necessary to complete the work and (iii) partial or final waivers of lien
(whichever is applicable) duly executed by each contractor, subcontractor,
materialmen, supplier or laborer who has performed work or supplied material for
which reimbursement is sought. Landlord reserves the right to make disbursements
directly to the contractors, subcontractors, materialmen or suppliers or to make
any check jointly payable with Tenant.
ARTICLE VI
SUBORDINATION, NOTICE TO SUPERIOR
LESSORS AND MORTGAGEES AND ATTORNMENT
6.01 Subordination of Lease. This Lease, and all rights of Tenant
----------------------
hereunder are and shall be subject and subordinate to all mortgages, trust deeds
in the nature of a mortgage (both referred to hereafter as "mortgages"), and
ground leases, which may now or hereafter affect or encumber the Property and/or
the Building and/or any of such leases (whether or not such mortgages shall also
cover other lands and/or buildings and/or leases). This subordination shall
likewise apply to each and every advance made or hereafter to be made under such
mortgages, to all renewals, modifications, replacements and extensions of such
leases and such mortgages and to spreaders and consolidation of such mortgages.
This Section shall be self-operative and no further instrument of subordination
shall be required. However, in confirmation of such subordination, Tenant shall
promptly execute, acknowledge and deliver any instrument that Landlord, the
lessor, or the holder of any mortgage (or their respective successors-in-
interest) may reasonably request to evidence such subordination. If Tenant
fails to execute, acknowledge or deliver any such instrument within ten (10)
days after request therefor, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact, which appointment is
11
agreed to be coupled with an interest, to execute and deliver any such
instruments for and on behalf of Tenant. Any lease to which this Lease is
subject and subordinate is hereinafter referred to as a "Superior Lease" and the
lessor of a Superior Lease is hereinafter referred to as a "Superior Lessor";
and any mortgage to which this Lease is subject and subordinate is hereinafter
referred to as a "Superior Mortgage"; and any mortgagee of a Superior Mortgage
is hereinafter referred to as a "Superior Mortgagee." Notwithstanding the
foregoing, at Landlord's election, this Lease may be made senior to the lien of
any mortgage, if the mortgagee thereunder so requests.
6.02 Notice in the Event of Default. If any act or omission of Landlord
------------------------------
would give Tenant the right, immediately or after the lapse of a period of time,
to cancel or terminate this Lease or to claim a partial or total eviction,
Tenant shall not exercise such right (a) until it has given by registered or
certified mail written notice of such act or omission to Landlord and each
Superior Mortgagee and Superior Lessor whose name and address shall previously
have been furnished to Tenant, and (b) until a thirty (30) day period for
remedying (or-if the act or omission cannot, by its nature, be cured within
thirty days commencing with diligence and good faith, to remedy) such act or
omission shall be elapsed following the giving of such notice.
6.03 Successor Landlord. If any Superior Lessor or Superior Mortgagee
------------------
shall succeed to the rights of Landlord hereunder, whether through possession or
foreclosure action or delivery of a new lease or deed, or otherwise, then, at
the request of such party (hereinafter referred to as "Successor Landlord"),
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
such Successor Landlord may reasonably request to further evidence such
attornment.
6.4 Non-Disturbance. Landlord agrees to use its reasonable efforts to
---------------
obtain a non-disturbance agreement (so long as Tenant is not in default under
this Lease) from any Superior Lessor or Superior Mortgagee.
ARTICLE VII
QUIET ENJOYMENT
So long as Tenant pays all of the Gross Rent and Additional Rent and
performs all of its other obligations hereunder, Tenant shall peaceably and
quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any other person lawfully claiming through or under
Landlord, subject to the provisions of this Lease and to Superior Leases and
Superior Mortgages. This covenant shall be construed as a covenant running with
the Property and is not, nor shall it be construed as, a personal covenant of
Landlord, except to the extent of Landlord's interest in this Lease and only so
long as such interest shall continue. Thereafter, this covenant shall be binding
upon only Landlord's successors in interest, to the extent of their respective
interests herein, as and when they shall have acquired the same and for so long
as they shall retain such interest.
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ARTICLE VIII
ASSIGNMENT, SUBLETTING, AND MORTGAGING
8.01 Prohibition. Except as expressly otherwise provided herein, Tenant
-----------
may not (a) assign or otherwise transfer this Lease or the term and estate
hereby granted, or offer or advertise to do so, or sublet the Premises or any
part thereof, or offer or advertise to do so, or allow the same to be used or
occupied by anyone other than Tenant, without the written consent of Landlord,
which consent shall be in the sole and absolute discretion of Landlord, and
which consent may be denied for any reason whatsoever; provided, however,
notwithstanding the foregoing, such consent shall be in the reasonable
discretion of Landlord provided (i) the proposed subtenant ("Subtenant") (-A-)
has a net worth (determined in accordance with reasonably accepted accounting
principles) in excess of $4,000,000 or (-B-), Subtenant provides a guaranty to
Tenant of an affiliated entity or party, who, has a net worth (in the aggregate
with Tenant) in excess of $4,000,000, which guaranty shall be assigned to
Landlord, (ii) such proposed Subtenant proposes to conduct a business compatible
with the other tenants of the Building and the manner in which Landlord is
marketing the building, which includes, but is not limited to, certain types of
the following businesses: an executive headquarters for a (-A-) leading edge
high technology company; (-B-) leading edge high technology interconnect
business; (-C-) financial services business; or (-D-) leading edge high
technology research and development, (iii) the Subtenant subleases the entire
10th floor or the entire space on the 11th floor, if any, which Tenant is then
currently leasing and (iv) Subtenant is a well established entity with a solid
financial record; and (b) mortgage, pledge, encumber, or otherwise hypothecate
this Lease or the Premises or any part thereof in any manner whatsoever, without
in each instance obtaining the prior written consent of Landlord, which consent
shall be in the sole and absolute discretion of Landlord, and which consent may
be denied for any reason whatsoever. Tenant shall pay Landlord's expenses,
including reasonable attorney fees, incurred in connection with the review of
Tenant's request for consent to assignment, sublease, or mortgage.
8.02 Rights of Landlord. If this Lease is assigned, whether or not in
------------------
violation of the provisions herein, Landlord may (without prejudice to, or
waiver of its rights), collect rent from the assignee. If the Premises or any
part thereof are sublet or used or occupied by anyone other than Tenant, whether
or not in violation of this Lease, Landlord may collect rent from the subtenant
or occupant. In either event, Landlord may apply the net amount collected to
the Gross Rent and Additional Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of this Article VIII or the acceptance of the assignee, subtenant or
occupancy as a tenant, or a release of Tenant from the performance of its
obligations hereunder. In the event of any assignment, mortgaging, subletting,
or use or occupancy by others (whether or not in violation of this Lease) the
same shall not in any way be considered to relieve Tenant from acting in
accordance with the terms and prohibitions set forth in this Article VIII. Any
approved sublease shall be expressly subject to the terms and conditions of this
Lease. Reference in this Lease to use or occupancy by others (that is, anyone
other than Tenant) shall not be construed as limited to subtenants and those
claiming under or through subtenants but as including also licensees and others
claiming under or through Tenant, immediately or remotely. Tenant covenants
that, notwithstanding any assignment or transfer, and notwithstanding the
acceptance of Gross Rent and/or Additional Rent by Landlord from an assignee,
transferee, or any other party, it shall remain fully liable for the
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payment of the Gross Rent and Additional Rent and for the other obligations of
this Lease to be performed or observed by Tenant. In the event that the total
rent and any other considerations (whether cash or non-cash) received under any
sublease by Tenant, after deduction of Tenant's reasonable and actual expenses
in obtaining such sublease (including attorneys' fees, brokerage commissions and
advertising expenses, but excluding remodeling or construction costs), is
greater than the total rent provided for from time to time under this Lease,
which is allocable to the space sublet, Tenant shall pay to Landlord fifty
percent (50%) of such excesses received from any subtenant. In the event that
Tenant receives any consideration for an assignment of Tenant's interest under
this Lease, after deduction of Tenant's reasonable and actual expenses in
obtaining such assignment (including attorney fees, brokerage, commissions and
advertising expenses, but excluding remodeling or construction costs), Tenant
shall pay to Landlord fifty percent (50%) of such excesses received from any
assignee.
8.03 Permitted Transfers. The provisions of Section 8.01 (a) shall apply
-------------------
to a transfer of a majority of the stock of Tenant as if such transfer were an
assignment of this Lease; but said provisions shall not apply to transactions
with a corporation into or with which Tenant is merged or consolidated or to
which substantially all of Tenant's assets are transferred, provided in any of
such events (a) the successor to Tenant has a net worth computed in accordance
with generally accepted accounting principles at least equal to $5,000,000, and
(b) proof satisfactory to Landlord of such net worth shall have been delivered
to Landlord at least ten (10) days prior to the effective date of any such
transaction.
8.04 Recapture of Space. In the event Tenant desires to enter into any
------------------
sublease of the Premises, Landlord shall have the option to exclude from the
Premises covered by this Lease the space proposed to be sublet by Tenant,
effective as of the proposed commencement date of sublease of said space by
Tenant or if the proposed subletting is for the entire Premises, to terminate
this Lease. Landlord may exercise said option by giving Tenant written notice
thereof within twenty (20) days after receipt by Landlord of Tenant's notice of
the proposed sublease. In the event Landlord exercises said option, Tenant
shall either withdraw its request to sublease within ten (10) days after receipt
of notice of Landlord's exercise of such option or surrender possession of the
proposed subleased space to Landlord on the effective date of exclusion of said
space from the Premises covered by this Lease, and neither party hereto shall
have any further rights or liabilities with respect to said space from the
Premises covered by this Lease, and neither party hereto shall have any further
rights or liabilities with respect to said space under this Lease. Effective as
of the date of exclusion of any portion of the Premises covered by this Lease
pursuant to this Article VIII, (i) the Gross Rent specified in Article II shall
be reduced in the same proportion as the number of square feet of rentable area
contained in the portion of the Premises so excluded bears to the number of
square feet of rentable area contained in the Premises prior to such exclusion,
and (ii) the rentable area of the Premises specified in Article I shall be
decreased in the same proportion that the Premises has been decreased, for all
purposes under this Lease.
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ARTICLE IX
COMPLIANCE WITH LAWS
9.01 Generally. Tenant shall give prompt notice to Landlord of any notice
---------
it receives of the violation of any law or requirement of any governmental or
administrative authority with respect to the Premises or the use or occupation
thereof. Tenant shall, at Tenant's expense, comply with all laws and
requirements of any governmental or administrative authorities which shall
impose any violation, order or duty on Landlord or Tenant arising from (a)
Tenant's use of the Premises; (b) the manner or conduct of Tenant's business or
operation of its installations, equipment or other property therein; (c) any
cause or condition created by or at the instance of Tenant; (d) breach of any of
Tenant's obligations hereunder, whether or not such compliance requires work
which is structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen; and Tenant shall pay all the costs, expenses, fines, penalties and
damages which may be imposed upon Landlord, any Superior Lessee, Superior Lessor
or Superior Mortgagee, by reason or arising out of Tenant's failure to fully and
promptly comply with and observe the provisions of this Section.
9.02 Environmental Laws. Neither Tenant or Tenant's agents, employees,
------------------
invitees or guests shall generate, release, store or dispose of hazardous
materials as defined by federal, state or local statures, ordinances, rules or
regulations ("Hazardous Materials"), at, upon, under or within any portion of
the Property. Tenant shall strictly comply in all respects with the requirements
with the Hazardous Materials laws, rules and regulations, and shall notify
Landlord immediately in the event of any discharge or discovery of any Hazardous
Material at, upon, under or within the Property. Tenant shall hold harmless and
indemnify Landlord against and from any damage, loss, expense or liability
resulting from the violation of this subsection including all attorney fees and
costs incurred as a result thereof. The covenants and indemnification contained
in this subsection shall survive the termination of this Lease.
ARTICLE X
INSURANCE
10.01 Tenant Activities. Tenant shall not violate, or permit the violation
-----------------
of, any condition imposed by any insurance policy issued in respect of the
Property and/or the Building of which Tenant has notice and shall not do, or
permit anything to be done, or keep or permit anything to be kept in the
Premises, which would (a) subject Landlord, any Superior Lessor, any Superior
Lessee or any Superior Mortgagee, to any liability or responsibility for
personal injury or death or property damage; (b) which would increase any
insurance rate in respect of the Property, the Building or the property therein
over the rate which would otherwise then be in effect; (c) which would result in
insurance companies of good standing refusing to insure the Property, the
Building or the property therein in amounts reasonably satisfactory to Landlord;
and (d) which would result in the cancellation or the assertion of any defense
by the insurer, in whole or in part, to claims under any policy of insurance
with respect to the Property, the Building or the property therein.
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10.02 Increased Premiums. If, by reason of any failure of Tenant to
------------------
comply with any provisions of this Lease, the premiums on Landlord's insurance
on the Property, the Building and/or property therein shall be higher than they
otherwise would be, Tenant shall reimburse Landlord, on demand, for that part of
such premiums determined to be attributable to such failure on the part of
Tenant.
10.03 Waiver of Subrogation. Landlord and Tenant each agree that it shall
---------------------
use its best efforts to obtain an appropriate clause in, or an endorsement
upon, each insurance policy obtained by it and covering or applicable to the
Premises and the personal property, fixtures, and equipment located therein or
thereon, pursuant to which the insurance company waives subrogation or Tenant,
as the case may be. The waiver of subrogation or permission for waiver of any
claim shall extend to Landlord and its beneficiaries, agents and employees, and
each Superior Lessor, Superior Lessee and Superior Mortgagee, and to other
appropriate parties designated by Landlord (collectively, "Superior Parties").
Each party hereby releases the other and its beneficiaries, agents and
employees, and each Superior Party with respect to any claim (including a claim
for negligence but not gross negligence or willful misconduct) which it might
otherwise have against the other or its beneficiaries, agents or employees, or
any Superior Party for loss, damage or destruction with respect to Tenant's
Property or the Building or any property therein by fire or other casualty
(including rental value or business interruption as the case may be) occurring
during the term of this Lease and normally covered under a fire insurance policy
with extended coverage endorsement.
10.04 Insurance to be Maintained by Tenant. Tenant, at its expense, shall
------------------------------------
maintain at all times during the term of this Lease comprehensive general public
liability insurance with respect to the Premises and the conduct or operation of
the business therein, protecting Landlord, its agents, its beneficiaries and
Tenant against any and all claims for injury and damage to persons or property
or for the loss of life or property occurring in, on, or about the Premises,
arising out of the act, negligence, omission, nonfeasance, or malfeasance of
Tenant, its employees, agents, contractors, customers, licensees, and invitees.
Such insurance shall be carried in a minimum amount (combined single limit) of
not less than Two Million Dollars ($2,000,000) for bodily injury or death to any
one person or any number of persons in any one occurrence and not less than Two
Million Dollars ($2,000,000) for property damage, and shall not provide for
deductible amounts. Landlord and its managing agent, and any Superior Lessor,
Superior Mortgagee and other parties designated by Landlord whose names and
addresses shall previously have been furnished to Tenant, shall be named as
additional insureds. Tenant, at its expense, shall also maintain at all times
during the term of this Lease fire insurance, with extended coverage, vandalism
and malicious mischief endorsements, in an amount adequate to cover full
replacement value of all leasehold improvements and all fixtures, contents and
wall and floor coverings in the Premises, and with no deductible in excess of
$1,000. Tenant shall deliver to Landlord and any additional named insured, all
such policies or certificates of insurance, in form satisfactory to Landlord,
issued by the insurance company or its authorized agent, along with receipts
indicating that the premiums for such insurance have been paid at least one (1)
year in advance, at least ten (10) days prior to the Commencement Date. Tenant
shall procure and pay for renewals of all such insurance from time to time
before the expiration thereof and deliver to Landlord (and any additional named
insured) such renewal policy or certificate thereof, along with receipts
indicating that the premiums for such insurance have been paid at least one (1)
year in advance, at least thirty (30) days prior to the expiration of any
existing policy. All such
16
policies shall be issued by companies licensed to do business in the State of
Illinois and acceptable to Landlord, and all such policies shall contain a
provision whereby the same cannot be canceled or materially modified unless
Landlord and any additional named insured are given at least thirty (30) days'
prior written notice of such cancellation or material modification. Landlord may
require the amount of any public liability insurance to be maintained by Tenant
be increased from time to time so that the amount thereof adequately protects
Landlord's interest.
ARTICLE XI
ALTERATIONS
11.01 Procedural Requirements. Tenant may, from time to time, at its
-----------------------
expense, make such alterations, decorations, additions, or improvements
(hereinafter collectively referred to as "Alterations") in and to the Premises,
excluding structural changes, as Tenant may reasonably consider necessary for
the conduct of its business in the Premises; provided, however, that the written
consent of the Landlord is first obtained. Landlord's consent shall not be
reasonably withheld, provided, however, that: (a) the exterior of the Building
shall not be affected; (b) the Alterations are non-structural and the structural
integrity of the Building shall not be affected; (c) the Alterations are to the
interior of the Premises and no part of the Building outside of the Premises
shall be affected; (d) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building shall not be adversely
affected and the usage of such systems by Tenant shall not be increased; (e)
Tenant shall have appropriate insurance coverage reasonably satisfactory to
Landlord regarding the Alterations; and (f) before proceeding with any
Alterations, Tenant shall submit to Landlord for Landlord's approval, plans and
specifications for the work to be done and Tenant shall not proceed with such
work until it has received said approval. In the event that the cost of the
proposed alternations exceed $25,000, upon Landlord's request Tenant shall
obtain and deliver to Landlord either (i) a performance bond and a labor and
materials payment bond (issued by a corporate surety licensed to do business in
Illinois), each in an amount equal to one hundred twenty-five percent (125%) of
the estimate of the cost of the Alterations and in form satisfactory to
Landlord, or (ii) such other security or evidence of Tenant's ability to pay the
cost of such Alternations as shall be reasonably satisfactory to Landlord.
11.02 Performance of Alterations, Initial Improvements and Additional
---------------------------------------------------------------
Improvements. Tenant, at its expense, shall obtain all necessary governmental
------------
permits and certificates for the commencement and prosecution of Alterations,
Initial Improvements and Additional Improvements and for the final approval
thereof upon completion, and shall cause the Alterations to be performed in
compliance therewith and in compliance with all applicable laws and requirements
of public authorities, or all entities holding mortgages on the Building and
with Landlord's rules and regulations or any other restrictions Landlord may
impose on the Alterations. Tenant shall not commence any Alterations, Initial
Improvements and Additional Improvements without having first demonstrated to
Landlord's reasonable satisfaction that all such permits and certificates have
been obtained. The Alterations, Initial Improvements and Additional
Improvements shall be diligently performed in a good and workmanlike manner,
using new materials and equipment at least equal in quality and class to the
standards for the Building established by Landlord. Alterations, Initial
Improvements and Additional Improvements shall be performed by contractors first
approved by Landlord, and Tenant's
17
agents, contractors, workmen, mechanics, suppliers and invitees shall work in
harmony, and not interfere with, Landlord and its agents and contractors in
performing their work in the Premises, the Building, or with any other tenants
or occupants of the Building. Tenant shall, and hereby does, indemnify, defend,
and hold Landlord harmless from any and all claims, damages or losses, of any
nature, suffered by Landlord, whether directly or indirectly, as a result of, or
due to, or arising from, any labor dispute involving Landlord and/or the
Building and/or the Premises which labor dispute results from, or is due to, or
arising from the performance of any Alterations by, or on behalf of, Tenant.
Alterations, Initial Improvements and Additional Improvements shall be performed
in such manner as to not unreasonably interfere with or delay and as not to
impose any additional expense upon Landlord in the construction, maintenance,
repair or operation of the Building and so as not to interfere with any common
area renovation program being undertaken by Landlord; and if such expense is
incurred by Landlord, Tenant shall pay, the same upon demand. Tenant
acknowledges that any Alterations, Initial Improvements and Additional
Improvements commenced or performed in violation of any provision of this
Article XI shall cause Landlord irreparable injury, and Landlord shall have the
right to enjoin any such violations by injunction or other equitable relief.
11.03 Lien Prohibition. Tenant shall not permit any mechanics' or
----------------
materialmens' liens to attach to the Premises, the Building, the Property,
Tenant's leasehold estate or any of them. Tenant shall defend, indemnify, and
hold Landlord harmless from and against any and all mechanics' and other liens
and encumbrances filed in connection with Alterations, Initial Improvements and
Additional Improvements or any other work, labor, services, or materials done
for or supplied to Tenant, or any person claiming through or under Tenant,
including, without limitation, security interests in any materials, fixtures or
articles installed in and constituting a part of the Premises and against all
costs, expenses, and liabilities (including reasonable fees and attorneys of
Landlord's choosing) incurred in connection with any such lien or encumbrance or
any action or proceeding brought thereon. Tenant, at its expense, shall procure
the satisfaction or discharge of record of all such liens and encumbrances
within fifteen (15) days after the filing thereof. In the event Tenant has not
so performed, Landlord may, at its option, pay and discharge such liens and
Tenant shall be responsible to reimburse Landlord for all costs and expenses
incurred in connection therewith, together with interest thereon at the rate set
forth in Article XXI, Section 21.03, below, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any costs in posting
bond to effect discharge or release of the lien as an encumbrance against the
Premises, the Building, the Property, or any of them.
ARTICLE XII
LANDLORD'S AND TENANT'S PROPERTY
12.01 Landlord's Property. All fixtures, equipment, improvements and
-------------------
appurtenances to or built into the Premises at the commencement of or during the
term of this Lease, whether or not placed thereby or at the expense of Tenant,
shall be and remain a part of the Premises, shall be deemed the property of
Landlord (the "Landlord Property") without compensation or credit to Tenant, and
shall not be removed by Tenant unless Landlord requests their removal. Further,
any personal property in the Premises on the Commencement Date, unless installed
and paid for by Tenant, shall be and shall remain the property of the Landlord
and shall not be removed by Tenant. All carpeting contained within the Premises
during the term of this Lease shall be and
18
remain the property of Landlord and shall not be removed or replaced without the
prior written consent and approval by Landlord.
12.02 Tenant's Property. All movable partitions, business and trade
-----------------
fixtures, machinery and equipment, communications equipment and office
equipment, whether or not attached to or built into the Premises, which are
installed in the Premises by or for the account of Tenant without expense to
Landlord and which can be removed without damage to the Building, and all
furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the Premises shall be and shall remain the property of
Tenant (the "Tenant's Property") and may be removed by Tenant at any time during
the term of this Lease, provided Tenant is not in default hereunder. In the
event Tenant's Property is so removed, Tenant shall repair or pay the cost of
repairing any damage to the Premises or to the Building resulting from the
installation and/or removal thereof. Any equipment or other property for which
Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense to
Landlord, shall not be considered Tenant's Property and shall be deemed the
property of Landlord.
12.03 Removal of Tenant's Property. At or before the Expiration Date of
----------------------------
this Lease, or the date of any earlier termination hereof, Tenant, at its
expense, shall remove from the Premises all of Tenant's Property (except such
items thereof as Landlord shall have expressly permitted in writing to remain,
which property shall become the property of Landlord), and Tenant shall repair
any damage to the Premises or the Building resulting from any installation which
shall remain in the Premises after the Expiration Date of this Lease, or
following an earlier termination date, may, at the option of Landlord, be deemed
to have been abandoned, and in such case, such items may be retained by Landlord
as its property or disposed of by Landlord, without accountability, in such
manner as Landlord shall determine, at Tenant's expense. Notwithstanding the
foregoing, if Tenant is in default under the terms of this Lease, it shall only
remove Tenant's Property from the Premises upon the express, written consent of
Landlord.
ARTICLE XIII
REPAIRS AND MAINTENANCE
13.01 Tenant Repairs and Maintenance. Except as provided in Section 13.02
------------------------------
of this Lease, Tenant shall, at its expense, throughout the term of this
Lease, take good care of the Premises, the fixtures and appurtenances therein,
including, without limitation, the Landlord's Property, and Tenant's Property.
Tenant shall be responsible for all repairs, interior and exterior, structural
and non-structural, ordinary and extraordinary to the Premises and the Building
and the facilities and systems thereof, if and to the extent that the need for
such repairs arises directly or indirectly from the Initial Improvements to the
extent performed by Tenant or under Tenant's supervision, Additional
Improvements or Alterations, (b) the installation, use or operation of Tenant's
Property in the Premises, (c) the moving of Tenant's Property in or out of the
Building, or (d) any act, omission, misuse, or neglect of Tenant or any of its
subtenants or its or their respective employees, agents, contractors, invitees,
or others entering into the premises by act or omission of Tenant or any
subtenant. Tenant, at its expense, shall promptly replace all scratched,
damaged, or broken doors and glass in and about the Premises and floor coverings
in the Premises and for the repair and maintenance of all sanitary and
electrical fixtures therein;
19
provided, however, that all replacement materials and methods of replacement
shall be approved in writing by the Landlord prior to installation. Tenant shall
promptly make, at Tenant's expense, all repairs in or to the Premises for which
Tenant is responsible, and any repairs required to be made by Tenant to the
mechanical, electrical, sanitary, heating, ventilating, air conditioning, or
other systems of the Building or Premises shall be performed only by
contractor(s) designated by Landlord. All such repairs shall be performed at
such times and in such manner as shall cause the least interference with the
operation of the central systems of the Building and the use of the Building by
other occupants. All such repairs shall be subject to the supervision and
control of Landlord for which Landlord may charge Tenant a reasonable fee, not
to exceed 10% of the amount of such repairs. Any other repairs in or to the
Building and the facilities and systems thereof for which Tenant is reasonable
shall be performed by Landlord at Tenant's expense.
13.02 Landlord Repairs and Maintenance. Landlord, at its expense (subject
--------------------------------
to reimbursement as provided herein), shall keep and maintain the public
portions of the Building and its systems and facilities serving the Premises in
good working order, condition and repair, and shall keep and maintain the
foundation, exterior walls and roof of the Building and the structural portions
of the Building in good repair. Landlord shall have no liability to Tenant, nor
shall Tenant's covenants and obligations hereunder be reduced or abated in any
manner whatsoever, by reason of any inconvenience, annoyance, interruption or
injury to business arising from Landlord's making any repairs or changes which
Landlord is required or permitted by this Lease, or required by law, to make in
or to any portion of the Building or the Premises, or in or to the fixtures,
equipment or appurtenances of the Building or the Premises. Additionally, except
as may otherwise be provided herein, Tenant waives any and all claims of any
kind, nature or description against Landlord arising out of the temporary
failure of the Landlord from time to time to furnish any of the services
requested to be furnished hereunder, including, without limitation, air
conditioning, heat, electricity, elevator service, and toilet facilities.
13.03 Tenant Equipment. Tenant shall not place a load upon any floor of
----------------
the Premises which exceeds the load per square foot which such floor was
designed to carry or which is allowed by law. Tenant acknowledges that there may
be special heavy-load extra-reinforced areas designated by landlord on the
Premises that Tenant may use, but that no other portion of the Premises may bear
a load that exceeds seventy (70) pounds per square foot. Business machines and
mechanical equipment belonging to Tenant which cause noise or vibrations that
may be transmitted to the structure of the Building or to the Premises to such a
degree as to be objectionable to Landlord shall, at Tenant's expense, be placed
and maintained by Tenant in settings of cork, rubber or spring-type vibration
eliminators sufficient to eliminate such noise or vibration.
ARTICLE XIV
HEAT, VENTILATION, AIR CONDITIONING, AND ELECTRICAL ENERGY
14.01 Air Conditioning and Heating Provided by Landlord. Except as
-------------------------------------------------
otherwise provided herein, Landlord, at its expense, shall maintain and operate
the heating, ventilating and air conditioning in the Premises and shall furnish
heat, ventilating and air conditioning in the Premises as may be reasonably
required for reasonably comfortable occupancy of the Premises
20
during Business Hours of Business Days. "Business Hours" shall mean 8:00 a.m.
through 6:00 p.m. during Business Days and "Business Days" shall mean all days
except Saturdays (after 1:00 p.m.), Sundays and days observed by the Federal
government as legal holidays, and such other days as shall be designated by
Landlord as holidays. If Tenant shall require such services any other time,
Landlord may, at its option, furnish the same upon not less than twenty-four
(24) hours' notice and Tenant shall pay to Landlord, upon demand, Landlord's
then established charges therefor.
14.02 Use of Electrical Energy By Tenant. Tenant shall pay for all
----------------------------------
electrical services to its Premises, which are currently separately metered by
Commonwealth Edison. Tenant's use of electrical energy in the Premises shall
not, at any time, exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Premises. In order to insure that such
capacity is not exceeded and to avert possible adverse effects upon the
Building's electrical service, Tenant shall not, without Landlord's prior
written consent in each instance, make any alteration or addition to the
electric system of the Premises existing on the Commencement Date. Tenant's
electrical usage under this Lease contemplates only the use of normal and
customary office equipment. In the event Tenant installs any office equipment
which uses substantial additional amounts of electricity, then Tenant agrees
that Landlord's prior written consent is required before the installation of
such additional office equipment.
ARTICLE XV
OTHER SERVICES
15.01 Services Provided by Landlord. Landlord, at its expense, shall
-----------------------------
provide elevator service to the Premises during Business Hours of Business Days,
and Landlord shall have at least one elevator subject to call at all other
times. The use of the elevators shall be subject to the rules and regulations
promulgated by the Landlord. Landlord shall furnish adequate hot and cold water
to the floor of the Building on which the Premises are located for drinking,
lavatory and cleaning purposes. Landlord shall maintain listings on the
Building directory of the names of Tenants, and the names of any Tenant's
officers and employees, provided that the names so listed shall not use more
than tenant's proportionate share of the space in the Building on the Building
directory.
15.02 Janitorial Standards. Provided that Landlord, its cleaning
--------------------
contractor and their employees shall have access to the Premises at all
reasonable times and shall have the right to use, without charge therefor, all
light, power, and water in the Premises reasonably required to clean the same,
Landlord shall cause the Premises, including the exterior and interior of the
windows thereof, to be cleaned in a manner which, in Landlord's sole and
exclusive judgment, is consistent with standards of similar downtown Chicago
office buildings and in material accordance with the specifications attached
hereto as Exhibit D. Landlord shall not be required to clean any portions of
the Premises used for the preparation, serving or consumption of food or
beverages. Tenant shall pay to Landlord on demand the cost incurred by Landlord
for (a) extra cleaning work in the Premises required because of (i) misuse or
neglect on the part of Tenant or subtenants or its or their employees or
visitors, (ii) the use of portions of the Premises for special purposes
requiring greater or more difficult cleaning work than office areas, (iii)
interior glass partitions or unusual quantity of interior glass surfaces, and
(iv) non-building standard materials
21
or finishes installed by Tenant or at its request, and (b) removal from the
Premises and the Building of any refuse and rubbish of Tenant in excess of that
ordinarily accumulated in business office occupancy or times other than
Landlord's standard cleaning times, and (c) the use of the Premises by Tenant
other than during Business Hours on Business Days except for Saturday.
15.03 Involuntary Cessation of Services. Landlord reserves the
---------------------------------
right, without any liability to Tenant and without affecting Tenant's covenants
and obligations hereunder, to stop service of the heating, air conditioning,
electric, sanitary, elevator, or other building systems serving the Premises, or
to stop any other services required by Landlord under this Lease, whenever and
for so long as may be necessary, by reason of accidents, emergencies, strikes,
or the making of repairs or changes which Landlord is required by this Lease or
by law to make or in good xxxxx xxxxx necessary, by reason of Landlord's
inability to secure proper supplies of fuel, steam, water, electricity, labor,
or supplies, or by reason of any other cause beyond Landlord's reasonable
control.
15.04 Parking. Landlord agrees, upon request of Tenant, to lease to
-------
Tenant up to four (4) parking spaces in the Building during the term of the
Lease at market rates, as determined by Landlord. Tenant shall enter into such
additional standard lease agreements with respect to the parking spaces as
requested by Landlord.
15.05 Untenability. Except for Tenant's non-payment of the
------------
electrical xxxx set forth in Section 14.02, if the heating, air conditioning, or
water or sewer services are interrupted, which causes the Premises to be
rendered untenable for more than 365 consecutive days, Tenant may, at its option
by giving Landlord written notice thereof terminate this Lease within three (3)
days after the end of such 365 day period. In the event Tenant terminates this
Lease under this Section 15.05, Tenant shall pay Landlord, as a condition
precedent to Lease termination, the unamortized balance (amortized over the term
of this Lease on a straight line basis) of any Tenant Improvement Allowance and
Additional Improvement Allowance plus all other transactional costs of Landlord
in connection with this Lease or any modification thereto, including, but not
limited to, leasing brokerage fees, and legal fees.
ARTICLE XVI
LANDLORD'S RIGHTS
16.01 Common Areas. Except for the space within the inside surfaces
------------
of all walls, hung ceilings, floors, windows and doors bounding the Premises,
all of the Building, including, without limitation, exterior Building walls,
core corridor walls and doors and any core corridor entrance, any terraces or
roofs adjacent to the Premises, and any space in or adjacent to the Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well as
access thereto through the Premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord. Landlord reserves the right,
and Tenant shall permit Landlord, to install, erect, use and maintain pipes,
ducts and conduits in and through the Premises.
16.02 Landlord's Rights of Access. Landlord and its agents shall
---------------------------
have the right to enter and/or pass through the Premises at any time or times
(a) to examine the Premises and to show
22
them to actual and prospective Superior Lessors, Superior Lessees, Superior
Mortgagees, or prospective purchasers, mortgagees or lessees of the Building,
and (b) to make such repairs, alterations, additions and improvements in or to
the Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make; provided, however, that Landlord shall
use reasonable efforts to avoid disturbing Tenant, Tenant's employees and
Tenant's business operations. Landlord shall be allowed to take all materials
into and upon the Premises that may be required in connection therewith, without
any liability to Tenant and without any reduction of Tenant's covenants and
obligations hereunder. During the period of nine (9) months prior to the
expiration date of this Lease, Landlord and its agents may exhibit the Premises
to prospective tenants.
16.03 Landlord's Right to Repair and Maintain. If at any time any
---------------------------------------
windows of the Premises are temporarily darkened or obstructed by reason of any
repairs, improvements, maintenance and/or cleaning in or about the Building, or
if any part of the Building, other than the Premises, is temporarily or
permanently closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this Lease. Landlord reserves the right, at any time, without incurring any
liability to Tenant therefore, and without affecting or reducing any of Tenant's
covenants and obligations hereunder, to decorate and to make, at Landlord's
expense, repairs, alterations, additions and improvements (structural or
otherwise), in or to the Premises, the Building or any part thereof, and during
such operations to take into and through the Premises or any part of the
Building all material required, and to close or temporarily suspend operation of
entrances, doors, corridors, elevators and other facilities. Landlord may do
any such work during regular business hours; provided, however, Landlord shall
use reasonable efforts to avoid disturbing Tenant or its operations, and Tenant
shall pay Landlord for overtime and for any other expenses incurred if such work
is done during other hours by agreement between Landlord and Tenant.
16.04 Other Landlord Rights. Landlord shall have the following
---------------------
rights exercisable without notice, without liability to Tenant for damage or
injury to persons, property or business and without being deemed an eviction or
disturbance of Tenant's use or possession of the Premises or giving rise to any
claim for setoff or abatement of Rent: (i) to adopt any name for the Building
and to change the Building's name or street address; (ii) to install, affix and
maintain all signs on the exterior and/or interior of the Building; (iii) 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; (iv) to grant to
any party the exclusive right to conduct any business or render any service in
or to the Building, provided such exclusive right shall not operate to prohibit
Tenant from using the Premises for the purpose permitted hereunder; (v) to
designate all sources furnishing sign painting and lettering, drinking water,
towels, and toilet supplies used on the Premises; (vi) to have access for
Landlord 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;
(vii) to sell or otherwise transfer the Property or Building and assign and pass
through all of Landlord's obligations hereunder to the new owner; (viii) to
close the Building after normal business hours, except that Tenant and its
employees and invitees shall be entitled to admission at all times, under such
regulations as Landlord prescribes for security purposes; (ix) to have pass
keys, access cards, or both, to the Premises; (x) to decorate, remodel, repair,
alter or otherwise prepare the Premises for reoccupancy at any time after Tenant
vacates or abandons the Premises or suspends active
23
business operations for a period of thirty (30) thirty days; (xi) to require all
persons entering or leaving the Building during such hours as Landlord may from
time to time reasonably determine, to identify themselves to a security guard by
registration or otherwise and to establish their right to enter or leave, and to
exclude any peddlers, solicitors, vagrants or beggars at any time from the
Premises or the Building; and (xii) to close the receiving dock for the Building
at 5:00 p.m. daily, and all day on Saturdays, Sundays and all other non-Business
Days.
ARTICLE XVII
NON-LIABILITY AND INDEMNIFICATION
17.01 Non-Liability. Neither Landlord nor any partner, director,
-------------
officer, agent, servant, or employee of Landlord, Landlord's beneficiary,
Landlord's managing agent, any Superior Lessor or any Superior Mortgagee, shall
be liable to Tenant for any loss, injury, or damage, to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss, unless caused by or resulting from the gross negligence or
willful misconduct of Landlord, its agents, servants or employees in the
operation or maintenance of the Premises or the Building, subject to the
doctrine of comparative negligence, if applicable, in the event of negligence on
the part of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors. Further, neither Landlord, Landlord's
beneficiaries, any Superior Lessor, or any Superior Mortgagee, nor any partner,
director, officer, agent, servant, or employee of Landlord or its beneficiaries
shall be liable (a) for any such damage caused by other tenants or persons, in,
upon or about the Building, or caused by operations in construction of any
private, public or quasi-public work; or (b) for consequential damages arising
out of any loss of the Premises or any equipment or facilities therein by Tenant
or any person claiming through or under Tenant.
17.02 Tenant Indemnification. Tenant shall defend, indemnify and
----------------------
hold Landlord, Landlord's beneficiary, Landlord's managing agent, and all
Superior Lessors and Superior Mortgagees and its and their respective partners,
directors, officers, agents and employees harmless from and against any and all
claims arising from or in connection with (a) the management of the Premises or
the conduct of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in or about the Premises during
the term of this Lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have given access to the Premises; (b) any
act, omission or negligence of Tenant or any of its subtenants or licensees or
its or their partners, directors, officer, agents, employees or contractors; (c)
any accident, injury or damage whatsoever (unless caused by Landlord's gross
negligence) occurring in, at or upon the Premises; and (d) any breach or default
by Tenant in the full and prompt payment and performance of Tenant's obligations
under this Lease; together with all costs, expenses and liabilities incurred in
or in connection with each such claim or action or proceeding brought thereon
(including, without limitation, all reasonable fees and costs of attorneys of
Landlord's choice). In case any action or proceeding is brought against
Landlord and/or its beneficiaries, and/or any Superior Lessor or Superior
Mortgagee and/or its beneficiaries, and/or any Superior Lessor or Superior
Mortgagee and/or its or their partners, directors, officers, agents and/or
employees by reason of any such claim. Tenant, upon notice from Landlord,
Landlord's beneficiary, Landlord's managing agent, or such Superior Lessor,
24
Superior Lessee or Superior Mortgagee, shall resist and defend such action or
proceeding (by counsel selected by Landlord or such Superior Lessor, Superior
Lessee or Superior Mortgagee).
17.03 Landlord Indemnification. Landlord shall indemnify Tenant and
------------------------
its officers, directors, representations, agents, employees and beneficiaries,
and hold them harmless from and against all claims, actions, damages,
liabilities, cost and expense, including attorney fees, in connection with any
loss, including loss of life, personal injury and/or damage to property, arising
from or out of any occurrence in, upon or at the common areas of the Premises,
except for any loss occurring as a result of Tenant's or its employees, agents,
or invitees gross negligence or willful misconduct.
17.04 Force Maieure. The obligations of Tenant hereunder shall not
-------------
be affected, impaired or excused, and Landlord shall have no inability
whatsoever to Tenant, with respect to any act, event or circumstances arising
out of (a) Landlord being unable to fulfill, or delayed in fulfilling any of its
obligations under this Lease by reason of strike, other labor trouble,
governmental preemption of priorities or other controls in connection with the
national or other public emergency or shortages of fuel, supplies, labor or
materials, or any other cause, whether similar or dissimilar, beyond Landlord's
reasonable control; or (b) any failure or defect in the supply, quantity or
character of electricity, gas, steam, or water furnished to the Premises, by
reason of any requirement, act or omission of any public utility or others
serving the Building beyond Landlord's reasonable control. Tenant shall not
hold Landlord liable for any latent defect in the Premises nor shall Landlord be
liable for injury or damage to person or property caused by fire, theft, or
resulting from the operation of elevators, heating or air conditioning or
lighting apparatus, or from falling plaster, or from steam, gas, electricity,
water, rain, snow, ice, or dampness, which may leak or flow from any part of the
Building, or from the pipes, appliance or plumbing work of the same.
ARTICLE XVIII
DAMAGE OR DESTRUCTION
18.01 Notification. Tenant shall give prompt notice to Landlord of
------------
(a) any occurrence in or about the Premises for which Landlord might be liable,
(b) any fire or other casualty in the Premises, (c) any damage to or defect in
the Premises, including the fixtures, equipment and appurtenances thereof, for
the repair of which landlord might be responsible, and (d) any damage to or
defect in any part or appurtenance of the Building's sanitary, electrical,
hearing, ventilating, air conditioning, elevator or other systems located in or
passing through the Premises or any part thereof.
18.02 Repair Provisions. If the Building or the Premises shall be
-----------------
damaged by fire or other casualty (and if this Lease shall not be terminated as
hereinafter provided), Landlord shall repair the damage and restore and rebuild
the Building and/or the Premises (except for Landlord's Property and Tenant's
Property) with reasonable dispatch after notice to it of the damage or
destruction and the collection of the insurance proceeds attributable to such
damage and Tenant's Property, with reasonable dispatch after such damage or
destruction. Such work by Tenant shall be deemed Alterations for the purposes
of this Lease.
25
18.03 Rental Abatement. If the Building or the Premises shall be
----------------
partially damaged by fire or other casualty, the Gross Rent shall be abated in
the proportion that the untenantable area of the premises bears to the total
area of the Premises, for the period from the date of such damage or destruction
to (i) the date the damage or destruction shall be substantially repaired or
restored; or (ii) if the Building and not the Premises is so damaged or
destroyed, the date on which the Premises shall be made tenantable; provided,
however, should Tenant reoccupy a portion of the Premises during the period the
restoration work is taking place and prior to the date that the Premises are
substantially repaired or restored, the Gross Rent allocable to such reoccupied
portion, based upon the proportion which the area of the reoccupied portion of
the Premises bears to the total area of the Premises, shall be payable by Tenant
from and after the date of such occupancy.
18.04 Total Destruction. If the Building or the Premises shall be
-----------------
totally destroyed by fire or other casualty, or if the Building shall be so
damaged by fire or other casualty (whether or not the Premises are damaged or
destroyed) that its repair or restoration requires more than Two Hundred Seventy
(270) days or the expenditure (as estimated by a contractor or architect
designated by Landlord) or more than twenty percent (20%) of the full insurable
value of the Building immediately prior to the casualty, or if the holder of, or
appropriate party under, any mortgage, Superior Lease or other lease or other
party entitled to proceeds fails to make insurance proceeds available to
Landlord sufficient for restoration of the Building or the Premises, then in any
such case Landlord may, at Landlord's sole option, either (i) terminate this
Lease by giving Tenant notice to such effect within ninety (90) days after the
date of the casualty, or (ii) make the appropriate repairs and restoration. For
the purposes of this Section only, "full insurable value" shall mean replacement
cost less the cost of footings, foundations and other structures below the
street floor of the Building.
18.05 Repair or Restoration. Tenant shall not be entitled to
---------------------
terminate this Lease and no damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to make such repair or
restoration promptly and in such manner as not to unreasonably interfere with
Tenant's use and occupancy of the Premises, but Landlord shall not be required
to do such repair or restoration work except during Business Hours of Business
Days.
18.06 Liability of Tenant. Notwithstanding any of the foregoing
-------------------
provisions of this Article, if by reason of some act or omission on the part of
Tenant or any of its subtenants or its or their partners, directors, officers,
servants, employees, agents, or contractors, either (a) Landlord or any Superior
Lessor or any Superior Mortgagee or other appropriate party shall be unable to
collect all of the insurance proceeds (including, without limitation, rent
insurance proceeds) applicable to damage or destruction of the Premises or the
Building by fire or other casualty, or (b) the Premises or the Building shall be
damaged or destroyed or rendered completely or partially untenantable on account
of fire or other casualty then, without prejudice to any other remedies which
may be available against Tenant, there shall be no abatement or reduction of the
Gross Rent or Additional Rent. Further, nothing contained in this Article shall
relieve Tenant from any liability that may exist as a result of any damage or
destruction by fire or other casualty.
26
ARTICLE XIX
EMINENT DOMAIN
19.01 Total Condemnation. If the whole of the Building or the
------------------
Premises or if any part of the Building or the Property which materially affects
Tenant's use and occupancy of the Premises shall be taken by condemnation or in
any other manner for any public or quasi-public use or purpose, this Lease and
the term and estate hereby granted shall terminate as of the date of vesting of
title on such taking (herein called "date of the Taking"), and the Gross Rent
and Additional Rent shall be prorated and adjusted as of such date.
19.02 Award. Landlord shall be entitled to receive the entire award
-----
or payment in connection with any taking without deduction therefrom; provided,
however, Tenant shall have the right separately to pursue against the condemning
authority an award in respect of the loss, if any, to leasehold improvements in
the Premises paid for by Tenant without any credit or allowance from Landlord or
deduction from Landlord's award.
19.03 Compensation to Tenant for Temporary Use. If temporary use or
----------------------------------------
occupancy of all or any part of the Premises shall be taken by condemnation or
in any other manner for any public or quasi-public use or purpose during the
term of this Lease, Tenant shall be entitled, except as hereinafter set forth,
to receive that portion of the award or payment for such taking which represents
compensation for the use and occupancy of the Premises for the taking of
Tenant's Property and for moving expenses, and Landlord shall be entitled to
receive that portion which represents reimbursement for the cost of restoration
of the Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall continue to be responsible for all of its obligations hereunder
insofar as such obligations are not affected by such taking and shall continue
to pay in full the Gross Rent and Additional Rent due. If the period of
temporary use or occupancy shall extend beyond the expiration date of this
Lease, that part of the award which represents compensation for the use and
occupancy of the Premises (or a part thereof) shall be divided between Landlord
and Tenant so that Tenant shall receive so much thereof as represents the period
up to and including such expiration date and Landlord shall receive so much
thereof as represents the period after such expiration date. All monies paid
as, or as part of, an award for temporary use and occupancy for a period beyond
the date to which the Gross Rent and Additional Rent have been paid shall be
received, held and applied by Landlord as a trust fund for payment of the Gross
Rent and Additional Rent becoming due hereunder.
19.04 Partial or Temporary Taking. Subject to the rights of any
---------------------------
Superior Mortgagee or Superior Lessor, the grantee of any facade or historical
easement, and other appropriate parties having rights to condemnation proceeds,
in the event of any taking of less than the whole of the Building and/or the
Property which does not result in termination of this Lease, or in the event of
taking for a temporary use or occupancy of all or any part of the Premises which
does not result in a termination of this Lease, (a) Landlord, at its expense,
shall proceed with reasonable diligence to repair the remaining parts of the
Building and the Premises (other than those parts of the Premises which are
Landlord's Property and Tenant's Property) to substantially their former
condition to the extent that the same may be feasible (subject to reasonable
changes which Landlord shall deem desirable) and so as to continue a complete
and tenantable Building and Premises, and (b) Tenant, at its expense, and
whether or not any award or awards shall be
27
sufficient for the purpose, shall proceed with reasonable diligence to repair
the remaining parts of the Premises which are deemed Landlord's Property and
Tenant's Property, to substantially their former condition, subject to
reasonable changes which Tenant shall deem desirable. Such work by Tenant shall
be deemed Alterations as hereinabove defined.
ARTICLE XX
SURRENDER AND HOLDOVER
On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Premises,
Tenant shall quit and surrender the Premises to Landlord "broom-clean" and in
good order, condition and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of the Tenant's Property therefrom except as
otherwise expressly provided in this Lease. No termination of this Lease prior
to the Expiration Date shall affect Landlord's right to collect Gross Rent and
Additional Rent for any period prior to the effective date of termination. If
Tenant remains in possession after the Expiration Date hereof, (a) Tenant shall
be deemed a tenant at will, (b) Tenant shall pay two hundred percent (200%) of
the Gross Rent and Additional Rent last prevailing hereunder, and also shall pay
all damages sustained by Landlord, consequential as well as direct, by reason of
such remaining in possession after the expiration or termination of this Lease,
(c) there shall be no renewal or extension of this Lease by operation of law,
and (d) the tenancy at will may be terminated upon thirty (30) days' notice from
Landlord. The provisions of this Article shall not constitute a waiver by
Landlord of any re-entry rights of Landlord provided hereunder or by law.
ARTICLE XXI
EVENTS OF DEFAULT
21.01 Bankruptcy of Tenant.
(a) In the event that Tenant shall make an assignment for the benefit
of creditors, or shall file a voluntary petition under any state or federal
bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any state or
federal bankruptcy or insolvency law, or whenever a petition shall be filed by
or against Tenant under the reorganization provisions of the United States
Bankruptcy Act or under the provisions of any law of like import, or whenever a
petition shall be filed by Tenant under the arrangement provisions of the United
States Bankruptcy Act or similar law, or whenever a receiver of Tenant, or of or
for the property of Tenant shall be appointed, or Tenant admits it is insolvent
or is not able to pay its debts as they mature, then Landlord, if such event
occurs without the acquiescence of Tenant at any time after the event continues
for sixty (60) days, or otherwise with no such grace period, may give Tenant a
notice of default, and may exercise its remedies as provided in Article XXII
below.
(b) If following the filing of a petition by or against Tenant in a
bankruptcy court, Landlord shall not be permitted to terminate this Lease as
herein provided because of the provisions of Title 11 of the United States Code
relating to Bankruptcy, as amended (the "Bankruptcy code"), then Tenant
(including Tenant as Debtor-in-Possession) or any trustee for
28
Tenant agrees to promptly, but no later than sixty (60) days after petition by
Landlord to the bankruptcy court, assume or reject this Lease, and Tenant agrees
not to seek or request any extension or adjournment, of any petition to assume
or reject this Lease by Landlord with such court. Tenant's, or the trustee's,
failure to assume this Lease within said 60-day period shall be deemed a
rejection. Landlord shall thereupon immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee, and this Lease
shall be terminated, except that Landlord's right to damages for Tenant's
default shall survive such termination.
(c) Tenant or any trustee for Tenant may also assume this Lease if
(i) it cures or provides adequate assurance that the trustee will promptly cure
any default hereunder, (ii) it compensates or provides adequate assurance that
the Tenant will promptly compensate Landlord for any actual pecuniary loss to
Landlord resulting from Tenant's default, and (iii) it provides adequate
assurance of future performance under this Lease by Tenant. In no event after
the assumption of this Lease by Tenant or any trustee for Tenant shall any then-
existing default remain uncured for a period in excess of ten (10) days.
Adequate assurance of future performance of this Lease shall include, without
limitation, adequate assurance (a) of the source of Gross Rent and Additional
Rent required to be paid by Tenant hereunder, and (b) that assumption or
permitted assignment of this lease will not breach any provision hereunder. To
adequately assure the source of Rent due under this Lease in such event, Fast
Heat shall be required to be liable for Tenant's obligations under the Guaranty.
21.02 Default Provisions. This Lease and the term and estate hereby
------------------
granted are subject to the following limitations, each of which shall constitute
a breach of this Lease by Tenant: (a) if Tenant shall fail to pay Gross Rent or
Additional Rent or any other payment within five (5) days of when due hereunder;
(b) if Tenant shall, whether by action or inaction, be in default of any of its
obligations under this Lease (other than a default in any payment hereunder) and
such default shall continue and not be remedied within thirty (30) days after
Landlord shall have given to Tenant a notice specifying the same; (c) in the
case of a non-monetary default which cannot by its nature with due diligence be
cured within a period of thirty (30) days and the continuance of which for the
period required for cure will or could subject Landlord to any litigation or
subject the Premises or any part thereof or the Building or the Property, or any
part thereof, to being condemned or vacated, subject the Building or the
Property, or any part thereof, to any lien or encumbrance, or result in the
termination of any Superior Lease or foreclosure of any Superior Mortgage, and
Tenant shall not have (i) within said thirty (30) day period advised Landlord of
Tenant's intention to take all steps necessary to remedy such default, (ii) duly
commenced within said thirty (30) day period and thereafter to diligently
prosecute to completion all steps necessary to remedy the default, and (iii)
completed such remedy within a reasonable time, but in no event later than sixty
(60) days after the date of said notice of Landlord; (d) if any event shall
occur or any contingency shall arise whereby this Lease or the estate hereby
granted or the unexpired balance of the term hereof would, by operation of law
or otherwise, devolve upon or pass to any person, firm or corporation other than
Tenant; or (e) if Tenant shall vacate or abandon the Premises. After Landlord
has provided two (2) default notices during any twelve (12) month period, any
additional event during such twelve (12) month period which would otherwise
require Landlord to provide notice to Tenant in order to be deemed an event of
Tenant default, shall be immediately deemed an event of Tenant default.
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21.03 Landlord's Rights Upon Default of Tenant. If Tenant shall
----------------------------------------
default in the performance of any of its obligations under this Lease, Landlord,
without thereby waiving such default, may (but shall not be obligated to)
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency, and in any other case only if such default continues after
the expiration of thirty (30) days from the date Landlord gives Tenant notice of
the default. Any expenses incurred by Landlord in connection with any such
performance, and all costs, expenses, and disbursements of every kind and nature
whatsoever, including reasonable disbursements of every kind and nature
whatsoever, including reasonable attorney fees (through all appellate
proceedings) involved in collecting or endeavoring to collect the Gross Rent or
Additional Rent or any part thereof or enforcing or endeavoring to enforce any
rights against Tenant or Tenant's obligations hereunder shall be due and payable
upon Landlord's submission of an invoice therefor. All sums advanced by
Landlord on account of Tenant under this Article, or pursuant to any other
provision of this Lease, and all Gross Rent and Additional Rent, if delinquent
or not paid by Tenant and received by Landlord when due hereunder, shall bear
interest at the rate of three percent (3%) per annum above the Corporate Base
Rate or similar rate of interest announced from time to time by the First
National Bank of Chicago from the due date thereof until paid and the same shall
be and constitute Additional Rent and be due and payable upon Landlord's
submission of an invoice therefor.
ARTICLE XXII
REMEDIES
22.01 Landlord's Remedies. In the event of any breach of this Lease
-------------------
by Tenant, Landlord, at its option, and after the proper notice if any, as
provided in Article XXI has expired, without further notice or demand to Tenant,
may, in addition to all other rights and remedies provided in this Lease, at law
or in equity, to the extent permissible:
(a) Terminate this Lease and Tenant's right of possession of
the Premises, and recover all damages to which Landlord is entitled under law,
specifically including, without limitation, Rent for the balance of the Term,
and all Landlord's expenses of reletting (including repairs, alterations,
improvements, additions decorations, legal fees and brokerage commissions).
(b) Terminate Tenant's right of possession of the Premises
without terminating this Lease; provided, however, that Landlord shall use its
reasonable efforts, whether Landlord elects to proceed under subparagraphs (a)
or (b) above to relet the Premises, or any part thereof for the account of
Tenant, for such rent and term and upon such terms and conditions as are
acceptable to Landlord. In addition, Landlord may accelerate and declare all
Rent due and to become due immediately payable, and obtain immediate payment
thereof (subject to an accounting at the end of the term for amounts received
from any re-letting of the Premises).
(c) Without entering into possession of the Premises or
canceling this Lease, accelerate and declare all Rent due and to become due and
other charges equivalent to rent reserved in this Lease due and to become due
immediately due and payable, and bring suit for collection thereof and for
damages. Such acceleration and commencement of any such action shall not be
construed as an election to terminate this Lease and shall not absolve or
discharge Tenant from any obligations or liabilities under this Lease for the
remainder of the term.
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If Landlord shall elect to pursue its rights and remedies under subparagraph
(b), then Landlord shall have the further right and remedy to rescind such
election and pursue its rights and remedies under subparagraph (a) or (c), if
Landlord has obtained a tenant to relet the Premises, which, in Landlord's
judgment is a suitable tenant. For purposes of such reletting, Landlord is
authorized to decorate, repair, alter and improve the Premises to the extent
deemed necessary by Landlord in its sole discretion. If Landlord fails to relet
the Premises or if the Premises are relet and a sufficient sum if not realized
therefrom after payment of all Landlord's expenses of reletting (including
repairs, alterations, improvements, additions, decorations, legal fees and
brokerage commissions) to satisfy the payment when due of Rent reserved under
this Lease for any monthly period, then Tenant shall pay Landlord, a sum equal
to the amount of Gross Rent and Additional Rent due under this Lease for each
such monthly period, or if the Premises have been relet, Tenant shall pay any
such deficiency monthly. Landlord shall have the right to draw on the Letter of
Credit or the Cash Deposit to pay any amounts due under this Lease. Tenant
agrees that Landlord may file suit to recover any sums due to Landlord hereunder
from time to time and that such suit or recovery of any amount due Landlord
hereunder shall not be any defense to any subsequent action brought for any
amount not therefore reduced to judgment in favor of Landlord. In the event
Landlord elects, pursuant to subsection (b) of Article XXII to terminate
Tenant's right of possession only without terminating this Lease, Landlord may,
at Landlord's option, enter into the Premises, remove Tenant's signs and other
evidences of tenancy, and take and hold possession thereof, as provided in this
Lease; provided, however, that such entry and possession shall not terminate
this Lease or release Tenant, in whole or in part, from Tenant's obligation to
pay the Gross Rent and Additional Rent reserved hereunder for the full Term or
from any other obligation of Tenant under this Lease. Any and all property
which may be removed from the Premises by the Landlord pursuant to the authority
of the lease or of law, to which the Tenant is or may be entitled, may be
handled, removed or stored by the Landlord at the risk, cost and expense of the
Tenant, and the Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. The Tenant shall pay to the Landlord, upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in the Landlord's possession
or under the Landlord's control. Any such property of the Landlord not retaken
from storage by the Tenant within thirty (30) days after the end of the term,
however terminated, shall be conclusively presumed to have been conveyed by the
Tenant to the Landlord under this lease as a xxxx of sale without further
payment or credit by the Landlord to the Tenant. Tenant hereby grants, to
Landlord a first lien upon the interest of Tenant under this Lease to secure the
payment of monies due under this Lease, which lien may be enforced in equity;
and Landlord shall be entitled as a matter of right to have a receiver appointed
to take possession of the Premises and relet the same under order of court.
Landlord, upon request of Tenant, shall subordinate its interest, pursuant to an
agreement reasonably satisfactory to Landlord, to a lender of the Tenant.
22.02 Rights of Landlord. Suit or suits for the recovery of such
------------------
damages, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the term of this Lease would have
expired nor limit or preclude recovery by Landlord against Tenant of any sums or
damages which, in addition to the damages particularly provided above, Landlord
may lawfully be entitled by reason of any default hereunder on the part of
Tenant. The various rights, remedies and elections of Landlord reserved,
expressed or contained herein are cumulative and no one of them shall be deemed
to be exclusive of the others or of such other
31
rights, remedies, options or elections as are now or may hereafter be conferred
upon Landlord by law. Landlord is hereby granted a valid security interest to
secure payment of all Gross Rent and Additional Rent becoming due hereunder and
to secure payment of any loss or damage due to any default by Tenant hereunder
upon all of Tenant's Property and any other personal property of Tenant which
may now or hereafter be installed or placed in the building. Landlord, upon
request of Tenant, shall subordinate its interest, pursuant to an agreement
reasonably satisfactory to Landlord, to a lender of the Tenant.
ARTICLE XXIII
ESTOPPEL CERTIFICATES
Each party agrees, at any time and from time to time, as requested by
the other party to execute and deliver to the other (and to any existing or
prospective mortgage lender, ground lessor, or purchaser designated by
Landlord), within ten (10) days after the request therefor, a statement
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modification), certifying the dates to which the Gross
Rent and Additional Rent have been paid, stating whether or not the other party
is in default in performance of any of its obligations under this Lease, and, if
so, specifying each such default and stating whether or not, any event has
occurred which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event. Any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the party requesting the certificate and by others
with whom such party may be dealing, regardless of independent investigation.
Tenant also shall include in any such statements such other information
concerning this Lease as Landlord may reasonably request including, but not
limited to, the amount of Gross Rent and Additional Rent under this Lease, and
whether Landlord has completed all improvements to the Premises required under
this Lease. If Tenant fails to execute, acknowledge or deliver any such
statement within ten (10) days after request therefor, Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact (which
appointment is agreed to be coupled with an interest), to execute and deliver
any such statements for and on behalf of Tenant.
ARTICLE XXIV
MISCELLANEOUS
24.01 Merger. Tenant expressly acknowledges and agrees that Landlord
------
has not made and is not making, and Tenant, in executing and delivering this
Lease, is not relying upon, any warranties, representations, promises, or
statements, except to the extent that the same are expressly set forth in this
Lease. All prior understandings and agreements between the parties are merged
in this Lease which alone fully and completely expresses the agreement of the
parties. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, and is signed by the party against
whom enforcement of said change or modification is sought.
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24.02 Notices. Any notice required to be given by either party
-------
pursuant to this Lease, shall be in writing and shall be deemed to have been
properly given, rendered or made only if personally delivered or if sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at the addresses set forth below (or to such other
address as Landlord or Tenant may designate in writing to each other from time
to time), and shall be deemed to have been given, rendered or made on the day so
delivered or mailed:
If to Landlord:
Xx. Xxxxx Xxxxxx
WDI Realty Co.
000 00xx Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
With a copy to:
Tishman Real Estate Management Company
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
and With a copy to:
Xxxxxxx X. Xxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to Tenant:
Commerx, Inc.
000 Xxxxx XxXxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx, Xxxxxx, Xxxxx & Xxxxx
000 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
24.03 Non-Waiver. The failure of either party to insist in any one
----------
or more instances upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the performance
of such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt by Landlord or
Gross Rent or Additional Rent with knowledge of breach by Tenant of any
obligation of this Lease shall not be deemed a waiver of such breach.
33
24.04 Parties Bound. Except as otherwise expressly provided for in
-------------
this Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. The obligations of Tenant
hereunder shall be joint and several; however, the obligations of Landlord shall
not be binding upon Landlord herein named with respect to any period subsequent
to the transfer of its interest in the Building as owner thereof, and in the
event of such transfer, said obligations shall thereafter be binding upon each
transferee, and Tenant waives all rights and causes of action Tenant may then
have, as against the Landlord herein named. Submission of this instrument by
Landlord to Tenant for examination shall not bind Landlord in any manner, and no
lease, option, agreement to lease or other obligation of Landlord shall arise
until the instrument is signed by, and delivered to, both Landlord and Tenant.
24.05 Recordation of Lease. Tenant shall not record this Lease in
--------------------
the public records of Xxxx County or elsewhere. However, at the request of
Landlord or Tenant, Tenant and Landlord, as required, shall promptly execute,
acknowledge, and deliver to Landlord a memorandum of lease in respect of this
Lease and a memorandum of modification of lease in respect of any modification
of this Lease, sufficient for recording. Such memorandum shall not be deemed to
change or otherwise affect any of the obligations or provisions of this Lease.
24.06 Definition of Parties. The term "Tenant" shall mean the Tenant
---------------------
herein named or any assignee or other successor in interest of the Tenant herein
named, which at the time in question is the owner of the Tenant's estate and
interest granted by this Lease and which is expressly permitted by this Lease to
hold such interest. The term "Landlord" shall mean only the owner at the time
in question of the Building or of a lease of the Building, so that in the event
of any transfer or transfers of title to the Building of Landlord's interest in
a lease of the Building, the transferor shall be and hereby is relieved and
freed of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed, without further agreement that such transferee
has assumed and agreed to perform and observe all obligations of Landlord herein
during the period it is the holder of Landlord's interest in this Lease.
Nothing in this paragraph shall prevent Landlord, if Landlord so elects, from
dealing with a purported assignee or successor in interest is prohibited
hereunder; provided, however, that no dealings between Landlord and such
purported assignee, subtenant or successor in interest shall constitute or
waiver of any of Landlord's rights and remedies hereunder.
24.07 Survival of Obligations. Upon the expiration or other
-----------------------
termination of this Lease, neither party shall have any further obligation or
liability to the other except as otherwise expressly provided in this Lease and
except for such obligations as by their nature and under the circumstances can
only be, or by the provisions of this Lease, may be, performed after such
expiration or other termination; and, in any event, unless otherwise expressly
provided in this lease, any liability for any payment hereunder which shall have
accrued to or with respect to any period ending at the time of expiration or
other termination of this Lease shall survive the expiration or other
termination of this Lease.
24.08 Interference by Tenant. Tenant agrees that the exercise of its
----------------------
rights pursuant to this Lease or the Exhibits hereto shall not be done in a
manner which would violate Landlord's union contracts affecting the Building
and/or the Property to extent Tenant has been informed of such contracts nor
create any work stoppage, picketing, labor disruption or dispute or any
interference with the business of Landlord or any tenant or occupant of the
Building.
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24.09 Prorations. Any apportionments or prorations of Gross Rent or
----------
Additional Rent to be made under this Lease shall be computed on the basis of a
year containing Three Hundred Sixty (360) days, consisting of twelve (12) months
of thirty (30) days each.
24.10 Governing Law; Construction. This Lease shall be governed by
---------------------------
and construed in accordance with the laws of the State of Illinois. If any
provision of this Lease or the application thereof to any person or circumstance
shall, for any reason and to any extent be invalid or unenforceable, the
remainder of this Lease and the application of that provision to other persons
or circumstances shall not be affected but rather shall be enforced to the
extent permitted by law. The captions, headings and titles in this lease shall
be construed without regard to any presumption or other rule requiring
construction against the party causing this Lease to be drafted. Each covenant,
agreement, obligations, or other provision of this Lease on Tenant's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
24.11 Time. Time is of the essence of this Lease and in the
----
performance of all obligations hereunder. If the time for performance hereunder
falls on a Saturday, Sunday or any non-Business Day, then such time shall be
deemed extended to the next Business Day following such day.
24.12 Authority of Tenant. If Tenant is a corporation, limited
-------------------
liability company, partnership, associated or any other entity, it shall deliver
to Landlord, concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors or other governing person or body
authorizing execution and delivery of this Lease and the performance by Tenant
of its obligations hereunder and the authority of the party executing the Lease
as having been duly authorized to do so.
24.13 Riders. All Riders attached hereto and executed both by
------
Landlord and Tenant shall be deemed to be a part hereof and hereby incorporated
herein.
24.14 Brokerage. Landlord represents that it has dealt with Tishman
---------
Real Estate Services Co. as agent of Landlord who has cooperated with Xxxxx and
Xxxxx as the sole broker with respect to negotiation of this Lease. Tenant
represents that it has dealt only with the Xxxx Group in the negotiation of this
Lease. Landlord, through its agent Tishman Real Estate Services Co., will pay
the brokerage commission due Xxxxx and Xxxxx and the Xxxx Group. Landlord and
Tenant each hereby agree to indemnify the hold the other harmless of and from
any and all loss, cost, damage, or expense (including, without limitation, all
counsel fees and disbursements) by reason of any claim or liability to any other
broker claiming through it or arising out of or in connection with the execution
or delivery of this Lease. In event any claim shall be made by any other broker
who shall claim to have negotiated this Lease on behalf of Tenant or Landlord or
to have introduced Tenant or Landlord to the Building or each other, Tenant or
Landlord shall have the right to defend any such action by counsel selected by
it and approved by the other, which approval shall not be unreasonably withheld,
and in the event such broker shall be successful in such action, Tenant or
Landlord, as the case may be, shall, in addition to making payment of the claim
of such broker, be responsible for all counsel fees incurred in such action.
35
ARTICLE XXV
RULES AND REGULATIONS
It is the intention of Landlord that the Building shall be operated at
all times as a first-class office building, and Tenant covenants that it will
not engage in, or permit, any activities which are not consistent with such
standard. In the furtherance of this purpose, but not in limitation thereof,
Tenant agrees to abide by the following rules and regulations, and further
agrees that Landlord may make such reasonable changes or additions to such rules
and regulations as it may deem necessary or advisable so long as such additions
or changes do not discriminate against Tenant and are applied uniformly against
all other tenants of the Building:
25.01 Any sign, lettering, picture, notice or advertisement installed
within the Premises which is visible from the public corridors within the
Building shall be installed in such manner, and be of such character and style,
as Landlord shall approve in writing. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or door or in a position to
be visible from the public corridor or outside the Building.
25.02 Sidewalks, entrances, passages, courts, corridors, halls,
elevators and stairways in and about the Building shall not be obstructed nor
shall objects be placed against glass partitions, doors or windows which would
be unsightly from the Building's' corridors or from the exterior of the
Building.
25.03 No animals, pets, bicycles or other vehicles shall be brought,
or permitted to be brought, in the Building or the Premises.
25.04 Room to room canvasses to solicit business from other tenants
of the Building are not permitted.
25.05 Tenant shall not waste electricity, water or air conditioning
systems. All controls shall be adjusted only by authorized Building personnel.
25.06 Tenant shall not utilize the Premises in any manner which would
overload the standard heating, ventilating or air conditioning systems of the
Building.
25.07 Tenant shall not permit the use of any apparatus for sound
production or transmission in such manner that the sound so transmitted or
produced shall be audible or vibrations shall be detectable beyond the Premises.
25.08 Tenant shall not utilize any electronic, radiowave, microwave
or other transmitting, receiving or amplification device which would disturb or
interfere with any other tenant of the Building or the operation of the Building
generally.
25.09 Tenant shall not utilize any equipment or apparatus in such
manner as to create any magnetic fields or waves which adversely affect or
interfere with the operation of any systems or equipment in the Building.
36
25.10 Tenant shall keep all electrical and mechanical apparatus free
of vibration, noise and air waves which may be transmitted beyond the Premises.
25.11 All corridor doors shall remain closed at all times.
25.12 No locks or similar devices shall be attached to any door
except by Landlord and Landlord shall have the right to retain a key to all such
locks.
25.13 Tenant assumes full responsibility of protecting the Premises
from theft, robbery and pilferage. Except during Tenant's normal business
hours, Tenant shall keep all doors to the Premises locked and other means of
entry to the Premises closed and secured.
25.14 Only machinery or mechanical devices of a nature directly
related to Tenant's ordinary use of the Premises shall be installed, placed or
used in the Premises and the installation and use of all such machinery and
mechanical devices is subject to the other rules contained in this Lease.
25.15 Except with the prior written approval of Landlord, all
cleaning, repairing, janitorial, decorating, painting or other services and work
in and about the Premises shall be performed only by authorized Building
personnel.
25.16 Safes, furniture, equipment, machines and other large or bulky
articles shall be brought to the Building, and into and out of the Premises, at
such times, and in such manner, as Landlord shall direct (including the
designation of elevator), and at Tenant's sole risk and costs. Prior to
Tenant's removal of such articles from the Building, Tenant shall obtain written
authorization of the office of the Building and shall present such authorization
to a designated employee of Landlord.
25.17 Tenant shall not in any manner deface or damage the Building.
25.18 Inflammables such as gasoline, kerosene, naphtha and benzene,
or explosives or any other articles of an intrinsically dangerous nature are not
permitted in the Building or the Premises.
25.19 Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electrical wiring of the Building and the Premises and the
needs of other tenants, and shall not use more than such capacity. Landlord's
consent to the installation of electrical equipment shall not relieve Tenant
from the obligation not to use more electricity than such capacity.
25.20 To the extent permitted by law, Tenant shall not permit
picketing or other union activity involving its employees in the Building,
except in those locations and subject to time and other constraints as to which
Landlord may give its prior written consent.
25.21 Tenant shall not enter into or upon the roof or basement of the
Building or any storage, heating, ventilation, air-conditioning, mechanical or
elevator machinery housing areas.
37
25.22 Tenant shall not distribute literature, flyers, handouts or
pamphlets of any type in any of the common areas of the Building.
25.23 Tenant shall not xxxx, otherwise prepare or sell any food or
beverages in or from the Premises, other than as is reasonably necessary in
order to accommodate Tenant's employees.
25.24 Tenant shall not permit objectionable odors or vapors to
emanate from the Premises.
25.25 Tenant shall not place a load upon any floor of the Premises
exceeding the floor load capacity for which such floor was designed or allowed
by law to carry.
25.26 No floor covering shall be affixed to any floor in the Premises
by means of glue or other adhesive without Landlord's prior written consent.
25.27 Tenant shall not open or permit to be opened any window in the
Premises.
25.28 The directories of the Building shall be used exclusively for
the display of the name and suite number of the tenants only and will be
provided at the expense of the Landlord. Additional names requested by Tenant
to be displayed in the directories must be approved by the Landlord and, if
approved, will be provided at the expense of the Landlord. Changes in the
directory listings requested by the Tenant after the Commencement Date will be
submitted to the Landlord for approval and, if approved, will be provided at the
expense of the Tenant.
25.29 Tenant shall comply with all applicable laws, ordinances,
governmental orders or regulations and applicable orders or directions from any
public office or body having jurisdiction, with respect to the Premises and the
use of occupancy thereof. Tenant shall not make or permit any use of the
Premises which is directly or indirectly forbidden by law, ordinance,
governmental regulation or order, or direction of applicable authority, or which
may be dangerous to person or property.
25.30 Tenant shall not take or permit to be taken in or out of other
entrances of the Building, or take or permit on other elevators, any item
normally taken in or out through service doors or in or on freight elevators;
and Tenant shall not, whether temporarily, accidentally or otherwise, allow
anything to remain in place or store anything in, or obstruct in any way, any
sidewalk, court, passageway, entrance or shipping area. Tenant shall lend its
full cooperation to keep such areas free from all obstruction and in a clean and
sightly condition, and move all supplies, furniture and equipment as soon as
received directly to the Premises, and shall move all such items and waste
(other than waste customarily removed by Building employees) that are at any
time being taken from the Premises directly to the areas designated for
disposal. All courts, passageways, entrances, exits, elevators, escalators,
stairways, corridors, hall and roofs are not for the use of the general public
and Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation and interests of the Building
and its tenants' provided, however, that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant deals within the
normal course of Tenant's business unless such persons are engaged in illegal
activities. Neither Tenant nor any employee or invitee of Tenant shall enter
into areas reserved for the exclusive use of Landlord, its employees or
invitees.
38
25.31 Service requirements of Tenant will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their duties unless under special
instructions from Landlord.
25.32 The toilet rooms, urinals, wash bowls and other apparatus
located in the Building shall not be used for any purpose other than that for
which they were constructed, and no foreign substance of any kind whatsoever
shall be thrown therein, and the expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by Tenant if Tenant, or
its employees or invitees, shall have caused it.
25.33 Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of the rules and regulations of the Building.
25.34 No vending machines of any description shall be installed,
maintained or operated without the written consent of Landlord.
ARTICLE XXVI
LIMITATION OF LIABILITY
Notwithstanding anything contained in this Lease to the contrary, if
Landlord is in default of this Lease, and as a consequence Tenant recovers a
money judgment against Landlord, the judgment shall be satisfied only out of the
proceeds of sale received on execution of the judgment and levy against the
right, title, and interest of Landlord in the Building and out of rent or other
income from the Building receivable by Landlord, or out of the consideration
received by Landlord from the sale or other disposition of all or any part of
Landlord's right, title, and interest in the Building.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of The day and year first above written.
LANDLORD:
WDI REALTY CO.,
a Michigan corporation
BY: /s/ illegible
----------------------------------
Its: General Manager / V.P.
-----------------------------------
TENANT:
COMMERX, INC.,
an Illinois corporation
BY: /s/ Xxxx Xxxxxx
----------------------------------
Its: Vice President
-----------------------------------
39
