FOURTH AMENDMENT TO
INDUSTRIAL SPACE LEASE
THIS FOURTH AMENDMENT TO INDUSTRIAL SPACE LEASE (hereinafter referred
to as this "Amendment") is dated as of the ___ day of April, 1997 by and between
CENTERPOINT PROPERTIES CORPORATION, a Maryland corporation (the "Landlord") and
HALO INDUSTRIES, INC., an Illinois corporation doing business as HALO
ADVERTISING SPECIALTIES (the "Tenant").
RECITALS
A. LaSalle National Trust, N.A., not personally but solely as Trustee
under a certain Trust Agreement dated August 14, 1990 and known as Trust No.
115722 ("Original Landlord") and Tenant entered into that certain Industrial
Space Lease dated as of December 30, 1992 as modified by that certain Amendment
to Industrial Space Lease dated May 1, 1995, Second Amendment to Industrial
Space Lease dated April ___, 1996, and Third Amendment to Industrial Space Lease
dated November ___, 1996 (the "Third Amendment") (said Lease and Amendments are
herein collectively referred to as the "Lease") with respect to certain premises
located in the building commonly known as 0000 Xxxx Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx as more particularly described in the Lease (the "Project").
B. Landlord is the successor in interest to Original Landlord's
interest in the Lease.
C. Pursuant to the Third Amendment, Tenant leased the Expansion
Premises (as defined in the Third Amendment) from Landlord, and Landlord leased
the Expansion Premises to Tenant.
D. Tenant desires to alter a portion of the Expansion Premises
comprising 11,760 square feet of space as depicted in EXHIBIT A attached hereto
and by this reference made a part hereof (the "Office Space") for use as office
space, and Landlord has agreed to pay a tenant improvement allowance to Tenant
in connection with the tenant improvement work to be performed in the Office
Space.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1. INCORPORATION OF RECITALS AND DEFINITIONS. The foregoing Recitals
are incorporated into this Amendment as if fully set forth herein. All
capitalized terms used in this Amendment, unless otherwise defined, shall have
the meanings ascribed to them in the Lease. In the event of a conflict between
the terms and conditions of the Lease and the terms and conditions of this
Amendment, the terms and conditions of this Amendment shall prevail.
2. ADDITIONAL BASE RENTAL FOR OFFICE SPACE. From and after June 1, 1997
(the "Effective Date"), Tenant shall pay additional Base Rental ("Additional
Office Space Base Rental") to Landlord with respect only to the Office Space,
which Additional Office Space Base Rental shall be in addition to and not in
lieu of the Base Rental provided for in the Third Amendment, as follows:
ANNUAL ADDITIONAL
PERIOD OFFICE SPACE BASE RENTAL
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June 1, 1997-September 30, 1998 $ 89,622.80
October 1, 1998-September 30, 1999 $ 92,311.48
October 1, 1999-September 30, 2000 $ 95,080.82
October 1, 2000-September 30, 2001 $ 97,933.25
October 1, 2001-September 30, 2002 $100,871.25
October 1, 2002-September 30, 2003 $103,897.38
3. TERMINATION OPTION. If Tenant exercises the Termination Option
pursuant to Section 5 of the Third Amendment, then Tenant shall pay to Landlord,
in addition to and not in lieu of the Termination Fee set forth in the Third
Amendment, an additional Termination Fee ("Additional Termination Fee") with
respect to the Office Space as follows:
EXPANSION PREMISES ADDITIONAL
TERMINATION DATE TERMINATION FEE
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June 1, 1997-September 30, 1998 $372,320.62
October 1, 1998-September 30, 1999 $314,688.96
October 1, 1999-September 30, 2000 $251,963.19
October 1, 2000-September 30, 2001 $183,693.02
October 1, 2001 -September 30, 2002 $109,388.40
October 1, 2002-September 30, 2003 $ 28,515.92
The Additional Termination Fee shall be payable at the same time and in
the same manner as the Termination Fee and shall not be refundable under any
circumstances.
4. TENANT IMPROVEMENTS AND TENANT IMPROVEMENT ALLOWANCE.
(a) Tenant shall, at Tenant's sole cost and expense, cause to
be prepared and submitted to Landlord for Landlord's prior approval,
plans and specifications (the "Plans"), including, but not limited to,
all space plans, working drawings, mechanical and engineering drawings,
disclosing all construction to be performed by Tenant in the Office
Space (collectively, the "Work"). Landlord's approval of the Plans
shall not be unreasonably withheld or denied. In the event the Plans
are disapproved, Tenant shall revise and resubmit the Plans and
Landlord shall review the same and notify Tenant of its approval or
disapproval in the same manner as required for the initial submittal.
(b) Tenant shall enter into a contract with Executive
Construction ("Tenant's Contractor") to perform the Work. Prior to
commencing the Work, Tenant shall submit all written contracts with
Tenant's Contractor for Landlord's approval. All installations,
alterations and additions which comprise the Work shall be constructed
in a good and workmanlike manner and only new and good grades of
material shall be used. The Work performed by Tenant's Contractor shall
comply with all applicable insurance requirements, all laws, statutes,
ordinances and regulations of the Village of Niles, the State of
Illinois and the United States of America. Tenant shall permit Landlord
to observe all construction operations within the Office Space
performed by Tenant's Contractor. No silence or statement by Landlord's
supervisor shall be deemed or
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construed as an assumption by said supervisor or Landlord of any
responsibility for or in relation to the construction of the Office
Space or any guarantee that the Work complies with laws, complies with
the Plans, or is suitable or acceptable to Tenant for Tenant's intended
business purposes.
(c) Tenant, at its sole cost and expense, shall file all
necessary plans with the appropriate governmental authorities having
jurisdiction over the Work. Tenant shall be responsible for obtaining
all permits, authorizations and approvals necessary to perform and
complete the Work. Tenant shall not commence the Work until the
required permits authorizations and approvals for such work are
obtained and delivered to Landlord.
(d) Tenant shall at all times keep the Office Space and the
balance of the Premises and adjacent areas free from accumulations of
waste materials or rubbish caused by its suppliers, contractors or
workmen. Landlord reserves the right to do clean-up at the expense of
Tenant if Tenant fails to comply with Landlord's reasonable cleanup
requirements. At the completion of the Work, Tenant's Contractor shall
forthwith remove all rubbish and all tools, equipment and surplus
materials from and about the Office Space and Building. Any damage
caused by Tenant's Contractor to any portion of the Building or to any
property of Landlord shall be repaired forthwith by Tenant at its
expense to its condition prior to such damage.
(e) Tenant and Tenant's Contractor shall assume responsibility
for the prevention of accidents and shall take all reasonable safety
precautions with respect to the Work and shall comply with all
reasonable safety measures initiated by Landlord and with all
applicable laws, ordinances, rules, regulations and orders applicable
to the Work including those of any public authority for the safety of
persons or property. Tenant shall advise Tenant's Contractor to report
to Landlord any injury to any of its agents or employees and shall
furnish Landlord a copy of the accident report filed with its insurance
carrier within three (3) days of its occurrence.
(f) Provided no default exists under this Lease, Landlord
shall pay, as Landlord's contribution to the costs of construction of
the Work, a sum equal to THREE HUNDRED NINETY THOUSAND AND NO/100
($390,000.00) DOLLARS ("Tenant Improvement Allowance"). Tenant shall
pay for the entire cost of the Work including, but not limited to, all
labor, material, permits, architectural and engineering fees, and
permit fees, in excess of the Tenant Improvement Allowance. The Tenant
Improvement Allowance shall be paid to Tenant's Contractor in
installments by the Landlord as the Work progresses within ten (10)
days of presentation by Tenant and Tenant's Contractor of reasonable
documentation evidencing (i) the amounts due, in relation to the Work,
to the Tenant's Contractor and any subcontractors and materialmen,
including, but not limited to, general contractor's statement and
partial and final lien waivers, as the case may be, covering all Work
for which the Tenant's Contractor is requesting payment; (ii) the
percentage of the Work completed; (iii) a sworn statement from Tenant
setting forth in detail all contractors and material suppliers with
whom Tenant has contracted, their addresses, work or materials to be
furnished, amounts of contracts, amounts paid to date, amounts of
current payments and balances due; and (iv) a report by the architect
that prepared the Plans certifying that the Work has been completed and
materials are in place
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as indicated by the request for payment of Tenant's Contractor. Tenant
shall be responsible for obtaining and submitting to Landlord all
documentation reasonably required by the Landlord in relation to draw
requests. Payments of the Tenant Improvement Allowance shall never
exceed, in the aggregate, the lesser of (i) the remaining unpaid amount
of the Tenant Improvement Allowance, or (ii) that amount equal to
ninety percent (90%) of the cost of all Work completed in accordance
with the Plans, as evidenced by the documentation furnished with such
request (including lien waivers). The ten percent (10%) of the cost of
the Work not disbursed (the "Holdback") shall be disbursed to Tenant's
Contractor with the final payment for the Work. The disbursement of the
Tenant Improvement Allowance and any additional funds due from Tenant
shall be made through a construction escrow ("Construction Escrow")
established with Chicago Title Insurance Company ("Escrowee"), or such
other title company selected by Landlord. The parties shall execute a
standard form of construction escrow agreement utilized by the Escrowee
with such revisions thereto as may be necessary to conform to the
provisions hereof. The parties and any contractor employed by Tenant
and all subcontractors thereof shall furnish to the Escrowee such other
documents, information and undertakings as may be reasonably requested
by the Escrowee to enable it to advise Landlord and Tenant, with
respect to the periodic disbursement made through the construction
escrow and lien waivers are in proper form for the purpose of releasing
and waiving any and all rights to file mechanics lien claims against
the Office Space and the Premises or any portion thereof and that there
are no liens of public record. Landlord shall fund the Tenant
Improvement Allowance into the Construction Escrow periodically by the
transfer of funds upon approval of documents submitted in connection
with each construction draw and upon the Escrowee's determination, with
respect to the periodic disbursements made through the construction
escrow, that it is prepared to advise Landlord that all statements and
lien waivers are in proper form for the purpose of releasing and
waiving any and all rights to file mechanics lien claims against the
Office Space or any portion thereof and that there are no liens of
public record through the date of disbursement of funds.
Notwithstanding the foregoing, if at any time during the course of
performance of the Work the total unpaid cost of completing the Work as
indicated by any of the sworn statements provided hereunder exceeds the
balance of the Tenant Improvement Allowance, Landlord need not make
further disbursements of Tenant Improvement Allowance until Tenant has
deposited in the Construction Escrow the sum necessary, along with the
balance of the Tenant Improvement Allowance, to make all available
funds equal to the unpaid cost of construction or has paid such excess
costs directly. The final payment for the Work (inclusive of the entire
Holdback) shall not be made until the architect who prepared the Plans
shall have certified to Landlord and Tenant that the Work is
substantially complete in accordance with the Plans, any applicable
certificate of occupancy or other governmental license or permit has
been issued, all final waivers of lien have been deposited with the
Escrowee and the Escrowee is prepared to advise Landlord that there are
no liens of public record resulting from the Tenant's Work and is
prepared to issue a date-down endorsement
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to Landlord's then existing Title Insurance Policy issued by Chicago
Title Insurance Company free of any exceptions relating to Work. The
payment for expenses incurred in connection with the Construction
Escrow and issuance of the Title Insurance Policy date-down endorsement
shall be paid from the Tenant Improvement Allowance as an element of
the cost of the Work.
5. BROKERS. Landlord and Tenant hereby represent and warrant to one
another that it has not dealt with any broker, salesperson, finder or other
party who is or might be entitled to a commission, fee or other compensation in
connection with the transaction contemplated by this Amendment except for Xxxxx
& Xxxxx and P.M. Realty Group/Xxxxx (collectively, the "Brokers"). Landlord and
Tenant each hereby agree to indemnify, defend and hold the other harmless from
and against all loss, cost and expense (including, without limitation, attorneys
fees) arising out of the breach by the other party of the foregoing
representation and warranty.
6. NO OTHER MODIFICATION. The Lease is only modified as set forth
herein and in all other respects remains in full force and effect.
7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
8. MODIFICATION. This Amendment may not be modified or amended except
by written agreement executed by the parties hereto.
9. GOVERNING LAW. The validity, meaning and effect of this Amendment
shall be determined in accordance with the laws of the State of Illinois.
10. COUNTERPARTS. This Amendment may be executed in two counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11. SEVERABILITY. Landlord and Tenant intend and believe that each
provision in this Amendment comports with all applicable local, state and
federal laws and judicial decisions. However, if any provision in this Amendment
is found by a court of law to be in violation of any applicable ordinance,
statute, law, administrative or judicial decision, or public policy, and if such
court should declare such provision to be illegal, void or unenforceable as
written, then such provision shall be given force to the fullest possible extent
that the same is legal, valid and enforceable and the remainder of this
Amendment shall be construed as if such provision was not contained therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
LANDLORD: TENANT:
CENTERPOINT PROPERTIES HALO INDUSTRIES, INC., an
CORPORATION, a Maryland Illinois corporation
corporation
By By:
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Its: Its:
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By
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Its:
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