1
EXHIBIT 10.11
OFFICE LEASE
THIS LEASE is made as of August 1, 1992, between Illinois Institute of
Technology, an Illinois not-for-profit corporation (the "Landlord"), and DONLAR
CORPORATION (the "Tenant").
ARTICLE 1
DEMISED PREMISES AND TERM
A. Specific Locations and Terms. Subject to the terms, covenants and
agreements herein contained, Landlord does hereby demise and lease to Tenant
and Tenant hereby accepts the following spaces in the building commonly known
as Building 90, Xxxxxxx Campus, 0000 Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx
("Building 90").
(1) that certain space located on the second floor of Building 90
(the "Building 90 Space"), consisting of approximately 822 square feet
identified by cross-hatching on the floor plan attached hereto as
Exhibit A, for a term commencing on August 1, 1992 and ending on July
31, 1994, unless sooner terminated as provided herein or extended as
provided in Article 23.
ARTICLE 2
RENT
A. Rent. During the Term of this Lease, Tenant shall pay rent for the
Premises as follows:
(1) for the Building 90 Space, Twelve Thousand Three Hundred
Thirty and 00/100 Dollars ($12,330.00) per annum ($15.00 per square
foot per annum), which shall be payable in equal monthly installments
of One Thousand Twenty Seven and 50/100 Dollars ($1,027.50);
(2) as used in this Lease, the term "Rent" shall mean the rent
payable from time to time with respect to all of the Premises. Rent
shall be payable in advance on the first day of each and every
calendar month during the Term except that the first monthly payment
shall be paid in advance on the date Tenant executes this Lease. If
the Term ends on a day other than the first day of a calendar month,
then the portion of the rent for the first full calendar month of the
Term for which Rent is payable or the last calendar month of the Term,
as the case may be, shall be prorated on the basis of 1/365th of the
Rent (computed on an annual basis for the year of the Term closest to
the month for which the proration is made) for each day of such
fractional month.
1
2
B. Payment of Rent. Rent and all other amounts becoming due from
Tenant to Landlord hereunder shall be paid in lawful money of the United States
to Landlord at its Comptroller's Office located at 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 or as otherwise designated from time to time by written
notice from Landlord to Tenant. The payment of rent hereunder is independent of
each and every other covenant and agreement contained in this Lease and shall be
payable without any prior demand therefor and without any deductions or set-offs
whatsoever.
C. Interest on Overdue Payments. All rent and any other amounts owed by
Tenant to Landlord under this Lease shall be paid within five (5) days of the
due date. After said five days' grace period all such amounts shall bear
interest from the date due until the date paid at a rate equal to 2% (two
percent) per annum above the Reference Rate, or at the maximum legal rate,
whichever is lower. For purposes of this Lease, the term "Reference Rate" shall
mean the rate of interest announced from time to time by Continental Illinois
National Bank and Trust Company of Chicago, at Chicago, Illinois, as its
reference rate, changing as and when said reference rate changes.
ARTICLE 3
USE
A. Permitted Uses. Tenant shall use and occupy the Premises for office
and laboratory purposes and for no other purpose whatsoever. Tenant shall not
use or permit upon the Premises anything that will invalidate any policies of
insurance now or hereafter carried on the Building. Tenant will pay all extra
insurance premiums which may be caused by the use which Tenant shall make of the
Premises. Tenant will not use or permit upon the Premises anything that may be
dangerous to life or limb. Tenant will not in any manner deface or injure the
Building or any part thereof or overload the floors of the Premises. Tenant
will not do anything or permit anything to be done upon the Premises in any way
tending to create a nuisance, or tending to disturb any other tenant or occupant
of the Building or the occupants of neighboring property or tending to injure
the reputation of the Building. Tenant will promptly and fully comply with all
governmental, health and police requirements and regulations respecting the
Premises. Tenant will not use the Premises for lodging or sleeping purposes or
for any immoral or illegal purposes. Tenant shall not conduct nor permit to be
conducted on the Premises any business which is contrary to any of the laws of
the United States of America or of the State of Illinois or the Village of
Bedford Park, Illinois. Tenant shall not at any time manufacture, sell, use or
give away, and shall not at any time permit the manufacture, sale, use or gift
of any alcoholic liquors or controlled substances on the Premises. Tenant shall
not at any time sell, purchase or give away or permit the sale, purchase or gift
of, food in any form on the Premises. Notwithstanding the foregoing, if Tenant
makes a written request of Landlord as to whether any proposed use Tenant shall
desire to make of or conduct within the Premises will invalidate any policies of
insurance carried by Landlord on the Premises or the Building or will increase
the rate of insurance on the Premises or on the Building, Landlord shall, within
thirty (30) days of such request, inform Tenant as to
2
3
whether such proposed use will have either or both of such effects. If Landlord
does not so inform Tenant, such use shall be deemed not to invalidate or
increase the premiums on any policies of insurance and, so long as Landlord does
not notify Tenant that such use is not permitted pursuant to this Article 3,
Tenant shall be free to conduct such use without becoming obligated for paying
any extra insurance premiums or supplying any substitute policies of insurance.
B. Hazardous Substances. If Tenant is using any hazardous substance on
the Premises, Tenant shall notify Landlord of such use and shall identify to
Landlord the hazardous substance. Tenant shall establish and maintain a system
for the disposal of chemical wastes that is safe and environmentally acceptable.
Tenant shall bear the full responsibility to track and account for the hazardous
chemicals and wastes from the time they are generated until their ultimate
disposal. This shall be accomplished according to applicable federal and state
laws, such as (but not limited to) the Resources Conservation and Recovery Act
(RCRA) of 1976, the Hazardous and Solid Waste Amendments (HSWA) of 1980, the
Superfund Amendments and Reauthorization Act (XXXX) of 1986, and the Illinois
Environmental Protection Act, pursuant to 35 Illinois Administrative Code.
Landlord in no way accepts any ownership, responsibility, or liability for said
chemicals. Failure to comply with the requirements of this clause shall have
the right to cure that default pursuant to Section 20 of this Lease. Tenant
shall notify Landlord's Health and Safety Officer of all hazardous substances
brought into or stored on the Premises. For purposes of this Lease, "hazardous
substances" shall include those substances defined as hazardous by the U.S.
Environmental Protection Agency, radioactive substances and any other substances
which would pose a threat to person, property or the environment.
No hazardous wastes, hazardous substances, regulated substances, fumes,
sound, vibration, or radiation in any form are presently being or during the
term of this Lease shall be discharged, emitted or released, by Landlord or
Tenant, into the Building from any source in excess of applicable workplace
exposure constraints imposed by OSHA.
Landlord shall exercise its best efforts to assure that, based on hazardous
waste, hazardous substance, and regulated substance information supplied to
Landlord by Tenant and other tenants in the Building, that during the term of
this Lease no activities involving incompatible hazardous wastes, hazardous
substances, or regulated substances will be conducted within a proximity
reasonably expected to result in any adverse reaction or consequences, including
but not limited to worker exposures in excess of any applicable workplace
exposure constraint imposed by OSHA, without notice of the potential for such
adverse occurrence to Tenant.
ARTICLE 4
SERVICES
A. Utility Services. Landlord shall furnish utility services to the
Premises at such
3
4
time and in such amounts as Landlord deems reasonably necessary for the
comfortable use of the Premises as an office area. The utility services to be
provided by Landlord to the Premises shall include electricity, steam heat and
air conditioning. Landlord will use reasonable efforts to avoid interruptions in
the utility services to be provided hereunder, provided that Landlord shall not
be liable for interruptions caused by war, insurrection, civil commotion, riots,
acts of God, governmental action, repairs, renewal, improvements, alterations,
strikes, lockouts, picketing (whether legal or illegal), and other labor
disputes, accidents, inability of Landlord to obtain fuel, supplies or utility
services (after using reasonable efforts), restrictive governmental laws and
regulations, riots, insurrections, war, fuel shortages, casualties, acts of God,
acts of or circumstances caused by Tenant, unless resulting from Landlord's
failure to pay for such utility services (or by Tenant's agents, employees,
contractors, licensees or invitees, unless resulting from Landlord's failure to
pay for such utility services) or any other cause or causes beyond the
reasonable control of Landlord. Any such interruption of service shall never
render Landlord liable to Tenant for damages or relieve Tenant from performance
of Tenant's obligation under this Lease. Landlord shall not inhibit Tenant's
access to telephone lines and services for purposes of providing telephone
service to the Premises.
B. Other Services. Landlord shall provide janitorial services to the
Premises and common areas of the Building at such times and to such extent as
Landlord deems reasonably necessary for the comfortable use, in Landlord's
opinion, of the Premises as an office area, but in any such event such services
shall be at the same level of quality as is generally provided by Landlord to
other tenants and occupants of the Building. If at time thereafter Tenant shall
be reasonably dissatisfied with respect to the level of quality of janitorial
services provided by Landlord, then Tenant shall notify Landlord specifying its
objections within ten (10) days notice to Landlord as Tenant's sole and
exclusive remedy, unless Landlord shall not have afforded Tenant the same level
of quality of janitorial services as is generally provided by Landlord to other
tenants and occupants of the Building, in which case Tenant may pursue any other
rights or remedies it may have at law or in equity.
ARTICLE 5
CONDITION OF PREMISES
No promise of Landlord to alter, remodel, repair or improve the Premises or
the Building and no representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant, other than as may be
contained herein. Tenant's taking possession of any portion of the Premises
shall be conclusive evidence as against Tenant that such portion of the Premises
were in good order and satisfactory condition.
4
5
ARTICLE 6
REPAIRS
A. Tenant Repairs. Except as otherwise provided in Article 9 of this
Lease and subject to the provisions of Article 7 of this Lease, Tenant shall, at
its sole cost and expense, keep the Premises in good order, repair and
tenantable condition at all times during the Term, ordinary wear and tear and
casualty excepted. Tenant shall promptly arrange with Landlord at Tenant's sole
cost and expense for the repair of all damages to the Premises and for the
replacement or repair of all damaged or broken glass, fixtures and appurtenances
within any reasonable period of time specified by Landlord. If Tenant does not
promptly make such arrangements, Landlord may, but need not, make such repairs
and replacements and the costs paid or incurred by Landlord for such repairs and
replacements (including Landlord's reasonable overhead) shall be deemed
additional Rent reserved under this Lease due and payable forthwith.
B. Landlord Repairs. Landlord may, but shall not be required so to do,
enter the Premises at all reasonable times, upon reasonable prior oral notice
(except in case of emergency), to make any repairs, alterations, improvements or
additions necessary for the safety, maintenance, repair, preservation or
improvement of the Building, or as Landlord may be required or requested to do
by the Village of Bedford Park, by the order or decree of any court or by any
other proper authority or as a result of the requirements of any other tenant or
occupant of the Building. In the event Landlord or its agents or contractors
shall elect or be required to make repairs, alterations, improvements or
additions to the Premises or the Building, Landlord shall be allowed to take
into and upon the Premises all material that may be required to make such
repairs, alterations, improvements or additions and, during the continuance of
any of said work, to temporarily close doors, entryways, public space and
corridors in the Building and to interrupt or temporarily suspend any services
and facilities without being deemed or held liable for damages to Tenant's
property, business or person, and the Rent reserved herein shall in no way xxxxx
while said repairs, alterations, improvements or additions are being made,
unless and to the extent the Premises or any portion thereof become untenantable
or such repairs, alterations, improvements or additions unreasonably interfere
with Tenant's ability to gain access to or conduct its business in the Premises,
but in no event shall Tenant be entitled to maintain any set-off or counterclaim
for damages of any kind against Landlord by reason thereof. Landlord may, at
its option, make all such repairs, alterations, improvements or additions in and
about the Building and the Premises during ordinary business hours, but if
Tenant desires to have the same done at any other time, Tenant shall pay for all
overtime and additional expenses resulting thereof. Nothing contained in this
Paragraph B shall be construed as requiring Landlord to keep (i) the common
elements, such as entrances, stairways, lobbies, washrooms or corridors of the
Building, (ii) any landscaped areas outside the Building, (iii) any other areas,
facilities or appurtenances from time to time provided for use in common by
Tenant and other tenants or occupants of the Building, (iv) the structure or
exterior portions of the Building or (v) the utility systems of the Building
(including mechanical, electrical, plumbing, elevator, life safety or fire
protection) in any particular state of repair or condition, but if
5
6
Tenant shall at any time be reasonably dissatisfied with respect to the state of
repair or condition of any of the same, then Tenant shall notify Landlord
specifying its objection to the same and, if Landlord shall not have corrected
the source of such objections within thirty (30) days after such notice of any
of the same, then Tenant shall have the right to terminate this Lease upon not
less than ten (10) days notice to Landlord as Tenant's sole and exclusive
remedy.
ARTICLE 7
ALTERATIONS
A. Tenant Alterations. Tenant shall not, without the prior written
consent of Landlord in each instance obtained, make any repairs, replacements,
alterations, improvements or additions to the Premises; provided, however, that
Landlord's consent shall not be required for minor electrical work, decorating,
cosmetic changes or repairs not in any case affecting the structure or exterior
appearance of the Building. In the event Tenant desires to make any
alterations, improvements or additions which require Landlord's consent pursuant
to this Article 7, or any repairs or replacements pursuant to Article 6 of this
Lease involving the structure or exterior appearance of the Building, Tenant
shall prior to commencing any such work:
(1) Submit to Landlord plans and specifications showing such work
in reasonable detail and obtain Landlord's prior written approval,
which approval shall not be unreasonably withheld and if notice of
approval or disapproval, as the case may be, shall not be delivered by
Landlord to Tenant within ten (10) business days after Landlord's
receipt of such plans and specifications the same shall be deemed
approved;
(2) Provide for the benefit of Landlord and the Building such
security measures with respect to construction traffic, delivery of
materials and other similar issues as Landlord may reasonably require,
as well as all necessary permits evidencing compliance with all
ordinances and regulations of the Village of Bedford Park or any
department or agency thereof, and with the requirements of all
statutes and regulations of the State of Illinois or any department,
or agency thereof;
(3) Provide Landlord with certificates of insurance in forms and
amounts reasonable and customary naming Landlord as an additional
insured when required by Landlord; and
(4) Comply with such other requests as Landlord may reasonably make
in connection with such work.
6
7
B. Contracts and Landlord's Reimbursement. All such work shall be done at
Tenant's expense by employees of or contractors hired by Landlord unless
Landlord gives its prior written consent (which consent shall not be
unreasonably withheld or delayed) to Tenant's hiring its own contractors or
using its own employees. All repairs, replacements, alterations, improvements
and additions shall be constructed in a good and workmanlike manner and only
new materials shall be used. Tenant shall promptly pay to Landlord or to
Tenant's contractors, as the case may be, when due, the cost of all such work
and of all decorating required by reason thereof. Tenant shall also pay to
Landlord two percent (2%) of this cost of such work to reimburse Landlord for
all overhead, fees and other costs and expenses arising from Landlord's
involvement with such work if Landlord's employees perform such work.
C. Indemnity. Tenant hereby agrees to protect, defend, indemnify and
hold Landlord, and its agents, officers and employees, the Building and the
Property harmless from and against any and all liabilities of every kind and
description which may arise out of or in connection with any repairs,
replacements, alterations, improvements or additions made by Tenant and shall at
all times keep the Premises and Building free from any and all mechanics' or
materialman's liens.
D. Tenant Obligations Upon Completion. Upon completing any of such
repairs, replacements, alterations, improvements or additions (provided the same
required Landlord's prior consent), Tenant shall furnish to Landlord
contractors' affidavits and full and final waivers of lien and receipted bills
covering all labor and material expended and used.
E. Landlord's Property. All alterations, improvements, additions,
repairs, or replacements, whether temporary or permanent in character,
including, without limitation, wall coverings, non-detachable carpeting and
other floor coverings, special lighting installations, built-in or attached
shelving or cabinetry and non-detachable mirrors, made by Landlord or Tenant in
or upon the Premises shall become Landlord's property and shall remain upon the
Premises at the termination of this Lease by lapse of time or otherwise without
compensation to Tenant (excepting only Tenant's movable office furniture, trade
fixtures, office equipment and other movable personal property). Notwithstanding
the foregoing, Landlord shall have the right to require Tenant to remove such
alterations, improvements, additions, repairs or replacements at Tenant's sole
cost and expense in accordance with the provisions of Article 16 of this Lease,
unless such items were installed in the Premises with Landlord's prior written
consent or were of a nature that Landlord's consent to make or install the same
was not required pursuant to Paragraph A of this Article 7.
ARTICLE 8
COVENANT AGAINST LIENS
Landlord's title is and always shall be paramount to the title of Tenant.
Nothing
7
8
contained in this Lease shall authorize or empower Tenant to do any act
which shall in any way encumber Landlord's title to the Building or Premises,
nor in any way subject Landlord's title to any claims by way of lien or
encumbrance whether claimed by operation of law or by virtue of any expressed or
implied contract of Tenant. Tenant has no authority or power to cause or permit
any lien or encumbrance of any kind whatsoever, whether created by operation of
law, act of Tenant or otherwise, upon the Building or Premises, and any and all
liens and encumbrances created by act or omission of Tenant shall attach only
against Tenant's interest and shall in all respects be subordinate to Landlord's
title to the Building and Premises. If Tenant has not removed or bonded over
any such lien or encumbrance within thirty (30) days after written notice to
Tenant by Landlord, Landlord may, but shall not be obligated to, pay the amount
necessary to remove such lien or encumbrance, without being responsible for
making any investigation as to the validity or accuracy thereof, and the amount
so paid, together with all costs and expenses (including reasonable attorneys'
fees) incurred by Landlord in connection therewith, and interest thereon at the
rate set forth in Paragraph C of Article 2, shall be deemed additional rent
reserved under this Lease due and payable forthwith.
ARTICLE 9
DAMAGE OR DESTRUCTION BY FIRE OR CASUALTY
A. Landlord's Rights in Event of Damage or Destruction. If the Premises
or any material part of the Building that houses machinery or equipment used in
operation of the Building shall be damaged by fire or other casualty, Landlord
may elect:
(1) to terminate this Lease as of the date of the fire or
casualty by notice to Tenant within ninety (90) days after such
date, or
(2) to proceed to repair and restore with reasonable
promptness the same (subject to reasonable delays for insurance
adjustments and delays of the nature described in Paragraph O of
Article 31), in which case this Lease shall not terminate.
Notwithstanding anything to the contrary herein set forth,
Landlord shall have no duty pursuant to this Article 9 to repair
or restore any portion of the alterations, additions or
improvements owned or made by Tenant in the Premises or to expend
for any repair or restoration amounts in excess of insurance
proceeds paid to Landlord and available for repair or
restoration.
If Landlord elects to proceed pursuant to subparagraph (2) of this
Paragraph A, Landlord shall so notify Tenant within ninety (90) days after the
date of such fire or casualty, which notice shall contain Landlord's reasonable
estimate of the date on which the Premises will be ready for Tenant's occupancy
as evidenced by a certificate of occupancy issued by the Village of Bedford Park
or certificate of substantial completion issued by Landlord's architect for the
uses and with the services contemplated herein ("Reoccupancy Date"), and whether
Landlord does not reasonably believe it has sufficient insurance proceeds
8
9
or other resources to fully repair or restore the Building and Tenant's
Premises. In the event such estimate indicates that the Reoccupancy Date shall
be more than 150 days from the date of the fire or other casualty or Landlord's
notice indicates it does not have sufficient insurance proceeds or other
resources to fully repair or restore the Building and Tenant's Premises, Tenant
shall have the right to terminate this Lease as of the date of such casualty (as
Tenant's sole and exclusive remedy) by giving written notice thereof to Landlord
not later than thirty (30) days after Landlord's notice. If Landlord's estimate
indicates that the Reoccupancy Date will be within 150 days from the date of the
fire or casualty, Landlord's notice indicates it reasonably expects to have
sufficient insurance proceeds or other resources to fully repair or restore the
Building and Premises or if Tenant fails to exercise its right to terminate this
Lease, as aforesaid, this Lease shall remain in full force and effect; provided,
however, if the Premises are not so ready for Tenant's occupancy for the uses
and with the services contemplated herein by the Reoccupancy Date, Tenant, on
thirty (30) days prior written notice to Landlord, shall have the right to
terminate this Lease; provided, however, that if Landlord in fact substantially
completes such repairs or restorations to the Building and Premises within said
thirty (30) day period, Tenant's notice to terminate shall be of no force or
effect and this Lease shall remain in full force and effect.
B. Rent Abatement. In the event any such fire or casualty damage is not
caused by the act or neglect of Tenant, its agents or employees, but renders the
Premises untenantable, and if this Lease shall not be terminated pursuant to the
foregoing provisions of this Article 9 by reason of such damage, then Rent shall
xxxxx on a per diem basis during the period beginning with the date of such
damage and ending with the date when Landlord tenders the Premises to Tenant as
being ready for occupancy. In the event that only a portion of Premises is
untenantable, such abatement shall be in an amount equal to the total amount of
Rent for such period multiplied by the ratio of the number of square feet in the
Premises that is not ready for occupancy from time to time to the total number
of square feet in the entire Premises. In the event of termination of this
Lease pursuant to this Article 9, Rent shall be apportioned on a per diem basis
and be paid to the date of the fire or casualty.
C. No Consequential Damage. In no event shall Landlord be liable to
Tenant for loss of profits or indirect, special or consequential damages arising
out of the partial or total damage to or destruction of the Premises or the
Building by fire or other casualty.
ARTICLE 10
INSURANCE
A. Insurance to be Maintained by Tenant. Tenant shall maintain the
following policies of insurance during the entire Term with companies as
reasonably approved by Landlord, but with increases in limits of liability as
Landlord may from time to time reasonably request:
9
10
(1) Property. Insurance covering the full replacement value of all
Tenant's fixtures and improvements including, but not limited to,
special wall and floor coverings, special lighting fixtures, built-in
cabinets and bookshelves and of all Tenant's contents, furniture,
equipment or other items of personal property on the Premises against
all risk of direct physical loss or damage, including but not limited
to, fire, lighting, sprinkler leakage, water damage, vandalism and
malicious mischief, theft, explosion, and such other similar risks
insured against under the typical extended coverage form.
(2) Liability. Comprehensive general liability coverage for Tenant
and its agents and employees covering claims for personal injury,
including death, and property damage occurring in and about the
Premises under insurance policies offering coverage of not less than
One Million and no/100 Dollars ($1,000,000.00) per person and per
occurrence.
B. Evidence of Insurance. Tenant shall, prior to the Commencement Date,
furnish to Landlord certificates evidencing such policies of insurance. Within
thirty (30) days of receipt of a written request by Landlord (but in no event
more than once in each calendar year) Tenant shall provide Landlord with a
certificate of insurance evidencing that the insurance Tenant is obligated to
provide hereunder is currently in force.
C. Mutual Waiver of Subrogation. Landlord and Tenant agree to have any
and all property insurance policies issued to either of them contain a clause
providing that any release from liability of or waiver of claim for recovery
from the other party entered into in writing by the insured prior to any loss or
damage shall not affect the validity of said policy or the right of the insured
to recover thereunder, and providing further that the insured waives all rights
of subrogation which such insurer may have against the other party. Without
limiting any release or waiver of liability or recovery contained in any other
provision of this Lease, but rather in confirmation in furtherance thereof, each
of the parties hereto waives any and all rights of action against the other
which may arise on account of damage to the Premises or Building or either
party's property located in the Premises or in the Building resulting from fire
or any other casualty of the kind covered by standard fire insurance policies
with extended coverage, regardless of whether or not, or in what amounts, such
insurance is now or hereafter carried by the parties.
ARTICLE 11
CONDEMNATION
If the entire Building or land on which the Building is located shall be
taken or condemned for any public or quasi-public use or purpose, or conveyed
under threat of any such taking or condemnation, then the Term and this Lease
shall terminate upon the date when possession of the Building and land is taken
or conveyed to the condemning authority. If less than all, but any material
part of the Premises or Building or land on which the Building is located shall
be taken or condemned for any public or quasi-public
10
11
use or purpose, or conveyed under threat of any such taking or condemnation,
or if any adjacent property or street shall be condemned or improved in such
manner as to require the use of any part of the Premises or of the Building,
the Term and this Lease, at the option of Landlord, shall terminate upon the
date when possession of the part so taken or conveyed shall be taken or
conveyed to the condemning authority for such use or purpose. Landlord shall
be entitled to receive the entire award with respect to any such taking or
condemnation without any payment to Tenant, Tenant hereby assigning to the
Landlord Tenant's interest therein, if any, but Rent shall be apportioned as
of the date of any such termination.
In the event that the Landlord does not elect to terminate the Term and
this Lease as provided in the preceding paragraph, this Lease shall continue
and Landlord will restore the Premises or Building; provided, however, that
if the Premises cannot in Tenant's reasonable opinion be restored to a
tenantable condition or size similar to that before such taking or if in
Tenant's reasonable opinion the Premises or any substitute Premises offered by
Landlord cannot be effectively used for the purposes contemplated herein,
Tenant shall have the right to terminate this Lease effective as of the date
when possession of the part so taken or conveyed shall be taken by or granted
to the condemning authority upon not more than thirty (30) days notice to
Landlord given not more than thirty (30) days after the date when possession is
taken or granted. In the event neither Landlord nor Tenant shall elect to
terminate this Lease, as aforesaid, and the Premises or a portion of the
Premises is untenantable during the period of restoration, all Rent under this
Lease shall xxxxx on a per diem basis, with the amount of the abatement equal
to the total amount of square feet in the untenantable portion of the Premises
to the total number of square feet in the entire Premises.
ARTICLE 12
WAIVER OF CLAIMS AND INDEMNITY
A. Tenant's Indemnity. Tenant agrees to indemnify, defend and hold
Landlord harmless from and against any claim of liability or loss from personal
injury or property damage resulting from or arising out of the use and
occupancy of the Premises by Tenant, its agents or employees during the Term of
this Lease.
B. Limitation of Landlord's Liability. Except for any loss or damage
resulting from Landlord's negligence or more culpable conduct, including
negligence or more culpable conduct relating to Landlord's maintenance and
repair of the Building and its systems, Tenant releases Landlord and its agents
and employees from and waives all claims for, and Landlord shall not be liable
for, (i) any damage occasioned by Landlord's failure to keep the Building or
the Premises or any part of any thereof in repair, nor for any damage done or
occasioned by or from plumbing, gas, water, sprinkler, steam or other pipes or
sewerage or the bursting, leaking or running of any pipes, tanks or plumbing
fixtures, in, above, upon or about the Premises; (ii) any damage occasioned by
water, snow or ice being upon or coming through the roof; (iii) any damages
arising from
11
12
acts or neglect of any co-tenants or other occupants of the Building or of
any owners of adjacent or contiguous property; or (iv) any theft or
misappropriation of any of Tenant's personal property or trade fixtures located
from time to time in or on the Premises.
ARTICLE 13
NONWAIVER
No waiver of any condition expressed in this Lease shall be implied by any
neglect of Landlord to enforce any remedy on account of the violation of such
condition if such violation is continued or subsequently repeated, and no
express waiver by Landlord shall affect any condition other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of moneys by Landlord or its agent from Tenant
after the termination in any way of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given to Tenant prior to the receipt of such
moneys, it being agreed that after the service of notice or the commencement of
a suit or after final judgement for possession of the Premises, Landlord may
receive and collect any Rent or other sums due, and such payment shall not
waive or affect said notice, suit or judgment.
No waiver of any condition expressed in this Lease shall be implied by any
neglect of Tenant to enforce any remedy on account of the violation of such
condition if such violation is continued and subsequently repeated, and no
express waiver by Tenant shall affect any Condition other than the time and in
the manner specifically stated, unless and to the extent expressly provided
otherwise herein, and no payment of Rent as provided herein shall be deemed to
be a waiver by Tenant of any of its other rights under this Lease, unless made
after the expiration of any time period during which any other right to Tenant
is required to be exercised.
ARTICLE 14
WAIVER OF NOTICE
Except as provided in Article 15 hereof, Tenant hereby expressly waives
the service of any notice of intention to terminate this Lease or to re-enter
the Premises and waives the service of any demand for payment of Rent or for
possession and waives the service of any other notice or demand prescribed by
any statute or other law.
ARTICLE 15
DEFAULT; LANDLORD'S RIGHTS AND REMEDIES
A. Default. The occurrence of any one or more of the following matters
12
13
constitutes a default ("Default") by Tenant under this Lease:
(1) Failure by Tenant to pay any Rent within five (5) days after the
due date;
(2) Failure by Tenant to pay, within fifteen (15) days after notice
thereof from Landlord to Tenant, any other moneys required to be paid
by Tenant under this Lease;
(3) Failure by Tenant to observe or perform any of the covenants
in respect of assignment and subletting set forth in Article 24;
(4) Failure by Tenant to cure forthwith, immediately after receipt
of notice from Landlord, any hazardous condition which Tenant has
created in violation of law or of this Lease;
(5) Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure
shall continue for thirty (30) days after notice thereof from
Landlord to Tenant, unless such failure cannot reasonably be cured
within said thirty (30) day period, in which case a Default shall be
deemed to have occurred only if Tenant has not commenced said cure
with said thirty (30) day period, or does not continue to diligently
pursue the cure of such failure with the shortest time reasonably
possible thereafter or does not in all events cure such failure
within 120 days after notice thereof from Landlord to Tenant;
(6) The levy upon under execution or the attachment by legal process
of the leasehold interest of Tenant, or the filing or creation of
a lien in respect of such leasehold interest, which lien shall not be
released, bonded over or discharged within the time period provided
in Article 8;
(7) Tenant vacates or abandons the Premises or fails to take
possession of the Premises when available for occupancy (the transfer
of a substantial part of the operations, business, and personnel of
Tenant to some other location being deemed, without limiting the
meaning of the term "vacates" or "abandons", to be vacation or
abandonment within the meaning of this subparagraph (7), unless
Tenant thereafter continues to pay the Rent due under this Lease);
(8) Tenant becomes insolvent or bankrupt or admits in writing its
inability to pay its debts as they mature, or makes an assignment for
the benefit of creditors, or applies for or consents to the
appointment of a trustee or receiver for Tenant or for the major part
of its property;
(9) A trustee or receiver is appointed for Tenant or for the major
part of its property and is not discharged within sixty (60) days
after such appointment; or
13
14
(10) To the extent permitted by law, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings for relief under any bankruptcy law, or similar law for
the relief of debtors, are instituted (a) by Tenant or (b) against
Tenant and are allowed against
it or are consented to by it or are not dismissed within sixty
(60) days after being instituted.
B. Landlord's Remedies. If a Default occurs, Landlord shall have the
rights and remedies hereinafter set forth, which shall be distinct, separate or
cumulative, at Landlord's option, and shall not operate to exclude or deprive
Landlord of any other right or remedy allowed it by law:
(1) Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Term of this Lease
shall end, and all right, title and interest of Tenant hereunder shall
expire on the date stated in such notice which shall be no sooner
than ten (10) days after Landlord's delivery of such notice;
(2) Landlord may terminate the right of Tenant to possession of
the Premises without terminating this Lease by giving notice to
Tenant that Tenant's right of possession shall end on the date stated
in such notice, which shall be no sooner than ten days after
Landlord's delivery of such notice, whereupon the right of Tenant to
possession of the Premises or any part thereof shall cease on the
date stated in such notice; and
(3) Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit or
suits in equity or at for the specific performance of any covenant or
agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all
moneys due or to become due from Tenant under any of the provisions
of this Lease.
C. Possession. If Landlord exercises either of the remedies provided
for in subparagraphs (1) and (2) of paragraph B of this Article 5, Tenant shall
surrender possession and vacate the Premises and immediately deliver possession
thereof to Landlord pursuant to the provisions of Article 16. Landlord may
re-enter and take complete and peaceful possession of the Premises, with or
without process of law, full and complete license so to do being hereby granted
to Landlord, and Landlord may remove all occupants and property therefrom,
using such force as may be necessary, without being deemed in any manner guilty
of trespass, eviction or forcible entry and detainer and without relinquishing
Landlord's right to Rent, additional rent, any other sums due hereunder or any
other right given to Landlord hereunder or by operation of law.
D. Rent Without Termination of Lease. If Landlord terminates the right
of
14
15
Tenant to possession of the Premises without terminating this Lease, such
termination of possession shall not release Tenant, in whole or in part,
from Tenant's obligation to pay the Rent or any additional rent payable
hereunder for the full Term. In addition, Landlord shall have the right, from
time to time, to recover from Tenant, and Tenant shall remain liable for Rent,
additional rent and any other sums thereafter accruing as they become due under
this Lease during the period from the date of such notice of termination of
possession to the stated end of the Term.
Landlord may, but, unless otherwise required by law, shall be under no
obligation to, relet the Premises or any part thereof for the account of Tenant
for such rent, for such time (which may be for a term extending beyond the Term
of this Lease) and upon such terms as Landlord in Landlord's sole discretion
shall determine, and Landlord, unless otherwise required by law, shall not be
required to accept any tenant offered by Tenant or to observe any instructions
given by Tenant relative to such reletting. Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extent deemed by Landlord necessary or desirable and in connection therewith
change the locks to the Premises, and Tenant shall upon demand pay the cost
thereof together with Landlord's expenses of reletting. Landlord may collect
the rents from any such reletting and apply the same first to the payment of
the expense of reentry, redecoration, repair and alterations and the expenses
of reletting and second, to the payment of Rent or additional rent herein
provided to be paid by Tenant, and any excess or residue shall operate only as
an offsetting credit against the amount of Rent or additional rent due and
owing or as the same thereafter becomes due and payable hereunder, but the use
of such offsetting credit to reduce the amount of Rent or additional rent due
Landlord, if any, shall not be deemed to give Tenant any right, title or
interest in or to any credit on its indebtedness to Landlord in excess of the
aggregate sum which would have been paid by Tenant for the period for which the
credit to Tenant is being determined, had no Default occurred, and any such
excess or residue shall belong to Landlord solely.
No re-entry or repossession, repairs, alterations and additions, or
reletting by Landlord shall be construed as an eviction or ouster of Tenant or
as an election on Landlord's part to terminate this Lease, unless a written
notice of such intention is given to Tenant, or shall operate to release
Tenant in whole or in part from any of Tenant's obligations hereunder. Landlord
may, at any time and from time to time, xxx and recover judgment for any
deficiencies from time to time remaining after the application from time to
time of the proceeds of any such reletting.
E. Damages Upon Termination of Lease. In the event of the termination
of this Lease by Landlord as provided for by subparagraph (1) of paragraph B of
this Article 15, Landlord shall be entitled to recover from Tenant all the
fixed dollar amounts of Rent accrued and unpaid for the period up to and
including such termination date, as well as all other additional rent or sums
payable by Tenant, or for which Tenant is liable or in respect of which Tenant
has agreed to indemnify Landlord under any of the provisions of this Lease,
which may be then owing and unpaid. Landlord may also recover all costs and
expenses, including court costs and attorneys' fees incurred by Landlord in the
15
16
enforcement of its rights and remedies hereunder. In addition, Landlord shall
be entitled to recover as damages for loss of the bargain and not as a penalty
(a) the aggregate sum which at the time of such termination represents the
excess, if any, of the present value of the Rent at the same annual rate for
the remainder of the Term as then in effect pursuant to the applicable
provisions of Article 2 or Article 23 of this Lease, over the then present
value of the then aggregate fair rental value of the Premises for the balance
of the Term, such present worth to be computed in each case on the basis of a
discount rate equal to two percent (2%) per annum below the Reference Rate in
effect at the time Landlord delivers its notice pursuant to subparagraph (1) of
Paragraph B of this Article 15; and (b) any damages in addition thereto,
including reasonable attorneys' fees and court costs, which Landlord shall have
sustained by reason of the breach of any of the covenants of this Lease other
than for the payment of Rent.
F. Bankruptcy. Notwithstanding anything contained in Paragraph A
(10) of this Article 15, in the event that Tenant shall be adjudged bankrupt,
or a trustee in bankruptcy shall be appointed for Tenant, Landlord and Tenant
agree, to the extent permitted by law, to request that the trustee in
bankruptcy shall determine within sixty (60) days thereafter whether to assume
or reject this Lease.
ARTICLE 16
SURRENDER OF POSSESSION
A. Tenant's Obligations on Termination of Possession. On or
before the date this Lease and the Term hereby created terminates, or on or
before the date Tenant's right of possession terminates, whether by lapse of
time or at the option of Landlord, Tenant shall:
(1) restore the Premises to the same condition as they were in
at the beginning of the Term, ordinary wear and tear or damage by fire
or other casualty excepted;
(2) remove those alterations, improvements or additions
installed for or during Tenant's occupancy, whether installed by
Landlord or Tenant, or acquired by Tenant from former tenants, which
Landlord shall request Tenant to remove, unless such items were
installed in the Premises prior to the date hereof, were installed
with Landlord's prior written consent or were of a nature that
Landlord's consent to make or install the same was not required
pursuant to Paragraph A of Article 7;
(3) remove from the Premises and the Building all of Tenant's
movable office furniture, trade fixtures, and other movable personal
property;
(4) surrender possession of the Premises to Landlord in a
clean condition free of all rubbish and debris; and
16
17
(5) surrender all keys of the Premises to Landlord and make known to
Landlord the combination of all locks on the Premises.
B. Failure to Surrender Possession. If Tenant shall fail or refuse to
surrender possession of the Premises to Landlord on or before the date
specified in Paragraph A of this Article 16, Landlord may forthwith re-enter
the Premises and repossess itself thereof as of its former estate and remove
all persons and effects therefrom, using such force as may be necessary,
without being guilty of any manner of trespass or forcible entry or detainer
and, in addition, may put the Premises in the condition required pursuant to
said Paragraph A and recover from Tenant Landlord's cost of so doing. Without
limiting the generality of the foregoing, Tenant agrees to pay Landlord, upon
demand, the cost of restoring the walls, ceilings and floors of the Premises to
the same condition that existed prior to the date of the commencement of the
alterations, improvements, or additions made by or for Tenant's occupancy (or a
prior tenant's occupancy if such alterations, improvements or additions were
acquired by Tenant from a former tenant) of the Premises, ordinary wear and
tear or damage by fire or other casualty excepted, unless such items were
installed in the Premises prior to the date hereof, were installed with
Landlord's prior written consent or were of a nature that Landlord's consent to
make or install the same was not required pursuant to Paragraph A of Article 7.
C. Failure to Remove Personal Property and Trade Fixtures. If Tenant
shall fail or refuse to comply with Tenant's duty to remove all personal
property or trade fixtures from the Premises and the Building on or before the
above-specified date, the parties hereto agree and stipulate that Landlord may
enter into and upon the Premises and may, at its election:
(1) treat such failure or refusal as an offer by Tenant to transfer
title to such personal property to Landlord, in which event title
thereto shall thereupon pass under this Lease as a xxxx of sale to and
vest in Landlord absolutely without any cost either by set-off, credit
allowance or otherwise, and Landlord may retain, remove, sell, donate,
destroy, store, discard, or otherwise dispose of all or any part of
said personal property or trade fixtures in any manner that Landlord
shall choose; provided, however, that Landlord shall be solely liable
for any claims of liability or loss from personal injury or property
damage resulting from the manner in which any such personal property
or trade fixtures are removed, destroyed, discarded or otherwise
disposed of (but in no event shall Landlord be so liable to Tenant);
or
(2) treat such failure or refusal as conclusive evidence, on which
Landlord or any third party shall be entitled absolutely to rely and
act, that Tenant has forever abandoned such personal property or trade
fixtures, and without accepting title thereto, Landlord may, at
Tenant's expense, remove, store, destroy, discard or otherwise dispose
of all or any part thereof if any manner that Landlord shall choose
without incurring liability to Tenant or to any other person;
provided, however, that Landlord shall be solely liable for
18
any such personal property or trade fixtures removed, destroyed,
discarded or otherwise disposed of (but in no event shall Landlord be so
liable to Tenant).
In no event shall Landlord ever become or accept or be charged with the duties
of a bailee (either voluntary or involuntary) of any personal property or trade
fixtures, and the failure of Tenant to remove all personal property and trade
fixtures from the Premises and the Building shall forever bar Tenant from
bringing any action or from asserting any liability against Landlord with
respect to any such property or fixtures which Tenant fails to remove.
ARTICLE 17
HOLDING OVER
Tenant shall pay to Landlord for each day Tenant retains possession of
the Premises or any portion thereof after the termination of this Lease, whether
by lapse of time or otherwise, an amount which is double the amount of rent per
day (computed on year of 365 days) based on the annual rate of Rent set forth
in Article 2 or Article 23, as the case may be, for the period in which such
possession occurs, and also shall pay all direct damages sustained by Landlord
on account thereof. The provisions of this Article 17 shall not operate as a
waiver by Landlord of any right of re-entry hereinbefore provided.
ARTICLE 18
COSTS, EXPENSES AND ATTORNEY'S FEES
In case Landlord shall, without fault on its part, be made a party to
any litigation commenced by or against Tenant, then Tenant shall pay all costs,
expenses and reasonable attorneys' fees incurred or paid by Landlord in
connection with such litigation. Tenant shall also pay all costs, expenses and
reasonable attorneys' fees that may be incurred or paid by Landlord in
enforcing any of Tenant's covenants and agreements in this Lease. In case
Tenant shall, without fault on its part, be made a party to any litigation
commenced by or against Landlord, then Landlord shall pay all costs, expenses
and reasonable attorneys' fees incurred or paid by Tenant in connection with
such litigation. Landlord shall also pay all costs, expenses and reasonable
attorneys' fees that may be incurred or paid by Tenant in enforcing any of
Landlord's covenants and agreements in this Lease.
18
19
ARTICLE 19
COMPLIANCE WITH LAWS
Tenant shall operate the Premises in compliance with all applicable
federal, state, and municipal laws, ordinances and regulations and shall not
knowingly, directly or indirectly, make any use of the Premises or Building
which is prohibited by any such laws, ordinances or regulations.
ARTICLE 20
CERTAIN RIGHTS RESERVED BY LANDLORD
A. Landlord's Rights. Landlord shall have the following rights,
exercisable without notice (except as otherwise expressly provided in this
Paragraph A) and without liability to Tenant for damage or injury to property,
person or business and without affecting an eviction, constructive or actual,
or disturbance of Tenant's use or possession or giving rise to any claim for
set-off or abatement of Rent or additional rent or any other amounts due and
payable by Tenant under this Lease:
(1) To name the Building and, upon not less than thirty (30)
days prior written notice to Tenant, to change the Building's
name or street address.
(2) To install, affix and maintain any and all signs on the
exterior and interior of the Building.
(3) To reasonably designate and approve, prior to installation,
all types of carpeting, paint, wall hanging devices, window
shades, blinds, drapes, and other similar equipment, and to
control all internal lighting that may be visible from the
exterior of the Building.
(4) In the event that Landlord believes the suppliers of
services or goods to Tenant or other tenants located in the
Building are impeding access to the Building, interfering with
the security of the Building or significantly increasing the
amount of traffic in the Building, Landlord shall have the right
to establish reasonable written rules and regulations
designating, restricting or controlling the suppliers of
services or goods to Tenant and other tenants in the Building.
(5) On reasonable prior notice to Tenant, to show the Premises
to prospective tenants or purchasers at reasonable hours during
the Term and, if vacated or abandoned (within the meaning of
Paragraph A (7) of Article 15) during such period, to decorate,
remodel, repair or otherwise prepare the Premises for
re-occupancy without affecting Tenant's obligation to pay Rent.
19
20
(6) To retain at all times, and to use in appropriate instances,
keys to all doors within and into the Premises. No locks
shall be changed without the prior written consent of Landlord.
(7) To have and retain a paramount title to the Premises free and
clear of any act of Tenant purporting to burden or encumber it.
(8) To grant to anyone the exclusive right to conduct any business
or render any service in or to the Building, provided such exclusive
right shall not operate to exclude Tenant from the use expressly
permitted herein.
(9) To approve the weight, size and location of safes and other
heavy equipment and bulky articles in and about the Premises and the
Building (so as not to overload the floors of the Premises), and to
require all such items and furniture and similar items to be moved
into and out of the Building and Premises only at such times and in
such manner as Landlord shall direct in writing. Any damages done to
the Building or Premises or to other tenants in the Building by
taking in or putting out safes, furniture, and other items, or from
overloading the floor in any way, unless the location of such items
shall have been approved in writing in advance by Landlord, shall be
paid by Tenant. Furniture, boxes, merchandise or other bulky
articles shall be transported within the Building only upon or by
vehicles equipped with rubber tires and shall be carried only in
freight elevators and at such times as the management of the Building
shall require. Movements of Tenant's property into or out of the
Building and within the Building are entirely at the risk and
responsibility of Tenant, and Landlord reserves the right to require
permits before allowing any such property to be moved into or out of
the Building.
(10) To prohibit the placing of vending or dispensing machines of
any kind in or about the Premises without the prior written
permission of Landlord.
(11) To have access for Landlord and other tenants of the Building to
any mail chutes located on the Premises according to the rules of the
United States Post Office.
(12) To change the arrangement or location of entrances,
passageways, doors and doorways, corridors, stairs, toilets and other
public service portions of the Building not contained within the
Premises or any part thereof, so long as no such change materially,
adversely affects Tenant's use of or access to Premises.
(13) To close the Building after regular working hours and on
Saturdays, Sundays and legal holidays subject, however, to Tenant's
right to admittance, under such reasonable written regulations as
Landlord may prescribe from time to time, which may include by
way of example but not
20
21
limitation, that persons entering or leaving the Building identify
themselves to Building personnel by registration or otherwise and
that said persons establish their rights to enter or leave the
Building.
B. Landlord May Enter Premises. Landlord may enter upon the Premises
and may exercise any or all of the foregoing rights hereby reserved without
being deemed guilty of an eviction or disturbance of Tenant's use or possession
and without being liable in any manner to Tenant; provided, however, that if
Landlord enters upon the Premises for any reason whatsoever, Landlord shall use
reasonable efforts so as not to unreasonably interfere with Tenant's use of or
access to the Premises.
ARTICLE 21
ESTOPPEL
Tenant agrees that from time to time, upon not less than ten (10) days'
prior request by Landlord, Tenant or Tenant's duly authorized representative
having knowledge of the following facts shall deliver to Landlord or to a
prospective purchaser of the Building, or any interest therein, or to any
prospective or actual mortgagee or any trustee under any mortgage against the
Building, a statement in writing certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications that the
Lease as modified is in full force and effect); (b) the dates to which the Rent
and any other sums due under this Lease have been paid; (c) that, to the best
of such authorized representative's knowledge, neither Landlord nor Tenant is
in default under any provision of this Lease, or, if in default, the nature
thereof in detail; (d) that there are no offsets or defenses to the payment of
Rent or any such offsets or defenses, specifying such in detail; and (e) such
other matters as may reasonably be requested by Landlord, or such prospective
purchaser or the mortgagee or trustee under any such mortgage.
ARTICLE 22
RULES AND REGULATIONS
Landlord reserves the right to make such reasonable written rules and
regulations as in Landlord's judgment may from time to time be needful for the
safety, care and cleanliness of the Building and Premises and for the
preservation of good order therein.
Tenant agrees to observe the reservations to Landlord in Article 20 hereof
and agrees, for itself, its employees, agents, servants, clients, customers,
invitees, licensees and guests to observe and comply at all times with the
written rules and regulations as Landlord may from time-to-time make for the
Building, and that failure to observe and comply with such reservations, rules
and regulations shall constitute a Default under Article 15 of this Lease.
21
22
All such rules and regulations shall be applied uniformly against all
tenants and other occupants of the Building, including, without limitation,
Landlord, but any failure by Landlord to enforce any rules or regulations now
or hereafter in effect, either against Tenant or any other tenant in the
Building, shall not constitute a breach hereunder or waive any such rules and
regulations.
ARTICLE 23
OPTION TO EXTEND TERM
A. Extension Option; Option Period. Provided that, at the time Tenant
delivers its notice pursuant to Paragraph B of this Article 23, and at the
commencement of the particular Option Period (as hereinafter defined) to which
such notice relates, this Lease is then in full force and effect and that no
Default then exists or no event which, with notice or the passage of time or
both, would constitute a Default then exists under this Lease, Landlord hereby
grants to Tenant options to extend the Term of the Building 90 space (each such
option to extend being hereafter called an "Extension Option") on the same
terms, conditions and provisions as contained in this Lease, except as
otherwise provided herein, commencing on the first day following the last day
of the then Term. Tenant acknowledges that each Extension Option granted to
Tenant under this Article 23 shall apply only to the Current Space.
B. Manner of Exercise. Any Extension Option pursuant to this Article
23 shall be exercisable by written notice from Tenant to Landlord, given no
later than three (3) months prior to the expiration of the Term (as the same
may have then been extended under this Article 23), time being of the essence.
If not so exercised, such Extension Option and each and every other subsequent
Extension Option under this Article 23 shall thereupon expire.
C. Effect of Exercise. If Tenant has validly exercised its Extension
Option under this Article 23, (i) the Term of this Lease will be extended for
the applicable Option Period, (ii) this Lease will expire, if not extended
pursuant to this Article 23 or if not terminated earlier under any other
provisions of this Lease, upon the last date of the applicable Option Period,
and (iii) the term "Term" as used in this Lease shall mean the original or
previous Term of this Lease as so extended.
D. Rent During Option Period. Notwithstanding any other provision
contained in this Lease, the Rent payable during such Option Period shall be
current rent increased four percent (4%).
ARTICLE 24
ASSIGNMENT AND SUBLETTING
A. Assignment and Subletting. Except as otherwise provided herein,
Tenant
22
23
shall not, without the prior written consent of Landlord, (1) assign, convey,
mortgage, pledge or otherwise transfer this Lease, or any part thereof, or any
interest hereunder; (2) permit any assignment of this Lease, or any part
thereof, by operation of law; (3) sublet the Premises, or any part thereof; or
(4) permit the use of the Premises, or any part thereof, by any parties other
than Tenant, its agents, invitees and employees. Except in the case of an
assignment or subletting to a Permitted Assignee as provided in Paragraph E of
this Article 24, Tenant shall, by notice in writing, advise Landlord of its
intention from, on or after a stated date (which shall not be less than thirty
(30) days after date of Tenant's notice), to assign this Lease, or any part
thereof, or to sublet any part or all of the Premises for the balance or any
part of the Term. Tenant's notice shall include all of the terms of the
proposed assignment or sublease or in separate agreements) and shall state the
consideration therefor. Tenant's notice shall state the name and address of the
proposed assignee or sub-tenant and a true and complete copy of the proposed
assignment or sublease and any and all other agreements relating thereto shall
be delivered to Landlord with Tenant's notice.
B. Landlord's Right to Recapture. In the event that Tenant intends to
sublet all or any portion of the Premises or assign this Lease, other than to a
Permitted Assignee (as described in Paragraph E below), Landlord shall have the
right, to be exercised by giving written notice to Tenant within ten (10)
business days after receipt of Tenant's notice, to recapture all or such
portion of the Premises as is described in Tenant's notice and such recapture
notice shall, if given, cancel and terminate this Lease with respect to the
space therein described as of the date stated in Landlord's notice. If Tenant's
notice shall cover all of the Premises, and Landlord shall have exercised its
foregoing recapture right, the Term of this Lease shall expire and end on the
effective date of such assignment or sublease as fully and completely as if
that date had been herein definitely fixed for the expiration of the Term. If,
however, this Lease is hereby cancelled with respect to less than the entire
Premises, Rent reserved herein and additional rent shall be adjusted on the
basis of the number of square feet retained by Tenant in proportion to the
number of square feet contained in the Premises, as described in this Lease,
and this Lease as so amended shall continue thereafter in full force and effect.
C. Landlord Election Not to Recapture. If Landlord, upon receiving
Tenant's notice with respect to any such space, shall not exercise its right to
recapture as aforesaid, and if no Default then exists or no even which, with
notice or passage of time or both, would constitute a Default then exists,
Landlord will not unreasonably withhold its consent to Tenant's assignment of
the Lease or subletting such space to the party identified in Tenant's notice;
provided, however, that in the event Landlord consents to any such assignment or
subletting, and as a condition thereto, Tenant shall pay to Landlord all profit
derived by Tenant from such assignment or subletting. For purposes of the
foregoing, profit shall be deemed to include, but shall not be limited to, the
amount paid or payable to Tenant to effect or to induce Tenant to enter into
any such transaction, and the amount of all rent and other consideration of
whatever nature payable by such assignee or sublessee in excess of the Rent or
additional rent payable by Tenant under this Lease, after deducting Tenant's
documented and reasonable costs associated with the assignment or subletting of
the Premises. If a part of the consideration for such
23
24
assignment or subletting shall be payable other than in cash, the payment to
Landlord of its share of such non-cash consideration shall be in such form as
is satisfactory to Landlord.
Tenant shall and hereby agrees that it will furnish to Landlord upon
request from Landlord a complete statement, certified by an officer of Tenant,
setting forth in detail the computation of all profit derived and to be derived
from such assignment or subletting. Tenant agrees that Landlord, Agent or any
other authorized representative of Landlord shall be given access at all
reasonable times to the books, records and papers of Tenant relating to any
such assignment or subletting, and Landlord shall have the right to make copies
thereof. Tenant's profit due Landlord hereunder shall be paid to Landlord
within five (5) days of receipt by Tenant of payments made from time to time by
such assignee or sublessee to Tenant.
D. Limitations on Percentage Rent. If Landlord consents to any
sublease, assignment, or other agreement for the possession, use, occupancy or
utilization of the Premises, no such sublease, assignment or agreement shall
contain a provision providing for rental or any other payment to be based in
whole or in part on the net income or profits derived by any person from the
property leased (other than an amount based on fixed percentage or percentages
of gross receipts or sales) and any such provision shall render such sublease,
assignment or agreement absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization of any part
of the Premises.
E. Permitted Assignee. Notwithstanding anything contained herein to
the contrary, at any time and from time to time during the Term, Tenant may
without Landlord's consent assign this Lease or sublet any portion or all of
the Premises for all or any portion of the Term to any Permitted Assignee (as
hereinafter defined), so long as on the effective date of such assignment or
subletting no Default then exists or no event which, with notice or passage of
time or both, would constitute a Default then exists. In connection with an
assignment or subletting to a Permitted Assignee, Tenant shall not be obligated
to pay to Landlord any portion of the sublease profit described in Paragraph C
of this Article 24 derived by Tenant from such assignment or subletting (if
any). For purposes of this Lease, "Permitted Assignee" shall mean Tenant's
parent corporation, any subsidiary, any Affiliate (as hereinafter defined), or
any Successor (as hereinafter defined) of Tenant or any Affiliate or Successor
of any subsidiary, Affiliate or Successor of Tenant. For purposes of this
Lease, an "Affiliate" shall mean any corporation or any subsidiary of or
Successor to Tenant or Tenant's parent corporation or any subsidiary of or
Successor to Tenant's parent corporation has a direct or indirect ownership
interest equal to or greater than fifty percent. For purposes of this Lease, a
"Successor" shall mean any party succeeding to all or substantially all of the
business or assets of Tenant or any party resulting from a merger or
consolidation with Tenant.
F. Liability and Obligations of Tenant. Any subletting of assignment
hereunder shall not release or discharge Tenant of or from any
liability, whether past, present or future, under this Lease, and Tenant shall
remain fully liable thereunder. Any subtenant
24
25
or assignee shall agree, pursuant to a sublease or assignment agreement in a
form satisfactory to Landlord, to comply with and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease to the extent of
the portion of the Premises sublet or to which such assignment applies, and
Tenant shall deliver to Landlord promptly after execution, an executed copy of
each such sublease or assignment and an agreement of compliance by each such
subtenant or assignee. Tenant agrees to pay Landlord, on demand, all reasonable
costs incurred by Landlord (including reasonable fees paid to consultants and
attorneys) in connection with any request by Tenant for Landlord to consent to
any assignment or subletting by Tenant. Any sale, assignment, mortgage,
transfer, or subletting of this Lease which is not in compliance with the
provisions of this Article 24 shall be of no effect and void.
ARTICLE 25
NOTICE
All notices, requests, waivers and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given (i) when delivered in person, or (ii) three
days after deposit in the United States mail, sent by registered or certified
mail, return receipt requested, or (iii) one day after deposit with a commercial
"overnight" delivery service, in any case, with postage, registration and
certification fees or delivery charges prepaid:
If to Landlord, to:
Illinois Institute of Technology
IIT Center
00 Xxxx 00xx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Vice President for
Business and Finance
With a copy to:
Illinois Institute of Technology
IIT Center
00 Xxxx 00xx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx Xxxxx, Vice President
and University Counsel
or to such other address or addressee as hereafter shall be furnished by a
notice sent in like manner by any party hereto to the other. Persons to whom
copies of notices are to be sent shall be sent copies for information purposes
only and such copies may be sent via regular mail, telecopy or any other means.
A failure to give or receive such copies shall not affect the validity of
notice given to a party.
25
26
ARTICLE 26
SUCCESSIVE LANDLORDS
The term "landlord" as used in this Lease means only the owner or owners
from time to time of the Building of which the Premises form a part. In the
event of any sale or sales of the Building, Landlord in its sole discretion may
either (i) terminate this Lease by providing Tenant within thirty (30) days
prior written notice and thereafter be discharged of any further liability
under this Lease; or (ii) assign this Lease to the purchaser of the Building
and if any security deposit to the purchaser of the Building and thereafter
Landlord shall be discharged of any further liability with respect to the
security deposit.
ARTICLE 27
SUBORDINATION OF LEASE
Landlord may hereafter execute and deliver a mortgage or trust deed in the
nature of a mortgage against the Building, or any interest therein. If
requested by the mortgagee or trustee under any mortgage or trust deed, Tenant
will, at the option of such mortgagee or trustee, either (a) subordinate its
interest in this Lease to such mortgage or trust deed, and to any and all
advances made thereunder and to the interest thereon, and to all renewals,
replacements and extensions thereof, provided that such mortgagee or
trustee shall agree concurrently therewith, pursuant to a non-disturbance and
attornment agreement executed in recordable form, so long as no Default then
exists or no event which, with notice or passage of time or both, would
constitute a Default then exists under this Lease, that this Lease shall not be
terminated nor shall Tenant's use, possession or enjoyment of the Premises be
interfered with nor shall the leasehold estate granted in this Lease be
affected in any way by the giving of a deed in lieu of foreclosure or the
foreclosure of or any action or proceeding instituted under such mortgage or
trust deed, or (b) make Tenant's interest in this Lease superior. Subject to
the immediately preceding sentence, Tenant will execute and deliver such
agreement or agreements as may be reasonably required by such mortgage or
trustee. In addition, if any mortgage or trust deed is foreclosed or a deed in
lieu of foreclosure is given to the mortgagee or trustee thereunder (or its
designee), (i) the liability of the mortgagee or trustee thereunder or
purchaser at such foreclosure sale or the liability of a subsequent owner
designated as landlord under this Lease shall exist only so long as such
trustee, mortgagee, purchaser or owner is the owner of the Building and such
liability shall not continue or survive after further transfer of ownership;
and (ii) upon request of such mortgagee or trustee, Tenant will agree to become
tenant and attorn to the new owner or landlord after the purchase at any
foreclosure sale thereunder or the giving of a deed in lieu of foreclosure on
the same terms and conditions of this Lease, and will execute such instruments
as may be necessary or appropriate to evidence such agreement, provided that
such mortgagee,
26
27
trustee, new owner or landlord shall agree pursuant to a non-disturbance and
attornment agreement executed in recordable form, so long as no Default then
exists or event which, with notice or passage of time or both, would constitute
a Default then exists under this Lease, that this Lease shall not be terminated
nor shall Tenant's use, possession or enjoyment of the Premises be interfered
with nor shall the leasehold estate granted in this Lease be affected in any
way by the giving of a deed in lieu of foreclosure or the foreclosure of or any
action or proceeding instituted under such mortgage or trust deed.
ARTICLE 28
BROKERS
Tenant represents and warrants to Landlord that neither it nor its
officers or agents nor anyone acting on its behalf has dealt with any real
estate brokers in the negotiation or making of this Lease, and Tenant agrees to
indemnify and hold harmless Landlord from the claim or claims of any other
broker or brokers claiming to have interested Tenant in the Building or
Premises or claiming to have caused Tenant to enter into this Lease.
ARTICLE 29
QUIET ENJOYMENT
Subject to the provisions of this Lease, Landlord covenants that
Tenant, on paying the Rent and other amounts due and payable pursuant to this
Lease and performing the covenants of this Lease on its part to be performed,
shall and may peaceably and quietly have, hold and enjoy the Premises for the
Term of this Lease.
ARTICLE 30
MISCELLANEOUS
Landlord and Tenant further covenant with each other that:
A. Remedies Cumulative. All rights and remedies of Landlord under
this Lease shall be cumulative and none shall exclude any other rights
and remedies allowed by law.
B. Meaning of Tenant; Gender. The word "Tenant" wherever used herein
shall be construed to mean Tenants in all cases where there is more than
one Tenant, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals, men or
women, shall in all cases be assumed as though in each case fully
expressed.
27
28
C. Binding Effect. Each of the provisions of this Lease and all
covenants, indemnities and agreements of the parties hereto shall extend
to and shall, as the case may require, bind or inure to the benefit, not
only of Landlord and of Tenant, but also of their respective heirs,
legal representatives, successors and assigns, provided this clause
shall not permit any assignment contrary to the provisions of Article 24
hereof.
D. Complete Agreement Modifications. All negotiations,
considerations, representations and understandings between Landlord and
Tenant are incorporated herein and may be modified or altered only by
agreement in writing between Landlord and Tenant, and no act or omission
of any employee or other agent of Landlord, Landlord's agent or any
brokers of Landlord shall alter, change or modify any of the provisions
hereof. This Lease constitutes the entire agreement between Landlord and
Tenant with respect to the Premises and there are no representations,
warranties, promises, agreements, conditions or undertakings, oral or
written, between Landlord or Tenant other than those set forth herein.
Any subsequent change, addition or alteration to this Lease shall not be
binding upon Landlord or Tenant unless in writing and signed by both
parties.
E. No Rights to Air and Light. No rights to light or air over any
property, whether belonging to Landlord or any other person, are granted
to Tenant by this Lease.
F. Headings. Article or paragraph headings in this Lease are solely
for convenience or reference and shall not in any way limit or amplify
the terms and provisions hereof.
G. Applicable Law; Construction of Provisions. The laws of the
State of Illinois shall govern the validity, performance and enforcement
of this Lease. If any provision of this Lease is capable of two
constructions, one of which would render the provision invalid and the
other of which would make the provision valid, then the provision shall
have the meaning which renders it valid.
H. Recording. Neither this Lease, nor any memorandum, affidavit or
other writing with respect thereto, shall be filed for record by Tenant
or by anyone acting through, under or on behalf of Tenant, and the
filing for record thereof in violation of this provision shall make this
Lease null and void at Landlord's election.
I. Relationship of Parties. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint
venture or any association between Landlord and Tenant, it being
expressly understood and agreed that neither the method of computation
of rent now any act of the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than the relationship of
landlord and tenant.
28
29
J. Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder,
in such order and amounts, as Landlord its sole discretion, may elect.
K. Severability. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and will be in force to the full extent permitted by law.
L. Authorization. Tenant represents to Landlord that Tenant has full
power and authority to enter into this Lease and to perform all of its
obligations hereunder, and that execution and delivery of this Lease does not
and will not violate or conflict with any provisions of any law, contract,
mortgage, lien, instrument, agreement or judgment to which Tenant is a party or
which is binding by Tenant. If Tenant is a corporation, the persons executing
this Lease on behalf of such corporation hereby represent and warrant that they
have been duly authorized to execute this Lease for and on behalf of such
corporation pursuant to a duly adopted resolution of its board of directors or
by virtue of its by-laws.
M. Individual Liabilities of Representations. No person executing
this Lease in a representative capacity for Landlord or Tenant shall be held
individually liable hereunder in the absence of fraud, provided such person
acted with due authority and that intended principals are bound.
N. Limitations of Liability. Notwithstanding anything to the contrary
contained in this Lease, it is specifically understood and agreed that the
liability of Landlord hereunder shall be limited to the interests of Landlord
in the Building in the event of a breach by Landlord of any other of the terms,
covenants and conditions of this Lease to be preformed by Landlord. In
furtherance of the foregoing, Tenant hereby agrees that any judgment it may
obtain against Landlord shall be enforceable solely against Landlord's
ownership interest in the Building.
O. Force Majeure. If Landlord fails to perform timely by of the
terms, covenants and conditions of this Lease on Landlord's part to be
performed, and such failure is due in whole or in part to a strike, lockout,
picketing (whether legal or illegal) or other labor dispute, inability to
procure fuel, supplies or materials (after using reasonable efforts), failure
of power or other utility services (other than where caused by Landlord's
non-payment for such services), restrictive governmental laws and regulation,
riots, insurrections, war, fuel shortages, accidents, casualties, act of God,
acts of or circumstances caused directly or indirectly by Tenant (or Tenant's
agents, employees, contractors, licensees or invitees) or any other cause or
causes beyond the reasonable control of Landlord, then Landlord shall not be
deemed in default under this Lease as a result of such failure. If Tenant is
prevented from performing timely any of the terms, covenants and conditions of
this Lease on Tenant's part to be performed due to a strike, lockout, picketing
29
30
(whether legal or illegal) or other labor dispute, inability to procure
fuel, supplies, materials (after using reasonable efforts), failure of
power or other utility services (other than where caused by Tenant's
non-payment for such services or failure to supply any such services
otherwise required to be supplied by Tenant, so long as the same is not
caused by Landlord's non-payment for such services), restrictive
governmental laws and regulations, riots, insurrections, was, fuel
shortages, accidents, casualties, acts of God, acts of or circumstances
caused directly or indirectly by Landlord (or Landlord's agents,
employees, contractors, licensees or invitees) or any other cause or
causes beyond the reasonable control of Tenant, then Tenant shall be
excused from the failure to perform any such term, covenant or condition
for the time during which any such cause or causes shall continue to
exist before any Default shall be deemed to exist; provided, however, that
except as otherwise provided herein, nothing contained in this paragraph
shall relieve Tenant from the responsibility of paying Rent, additional
rent or any other monetary sums or amounts due pursuant to this Lease
during the period the performance of such other term, covenant or
condition is excused.
P. Time of the Essence. Time is of the essence of this Lease and
of each and all provisions thereof.
Q. Counterparts. This Lease may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
ARTICLE 31
LANDLORD'S RIGHT TO SUBSTITUTE PREMISES
At any time during the Term, but only once during the Term, Landlord may
substitute for the Premises any other premises within the Building (herein
referred to as the "New Premises") provided the New Premises shall be similar
to the Premises in area and use for Tenant's purposes. In addition:
(1) Landlord shall reimburse Tenant for all of the reasonable
expenses of Tenant incurred by Tenant in moving from the Premises
to the New Premises and improving the New Premises so that they are
substantially similar to the then condition of the Premises;
(2) Such move shall be made during evenings, weekends, or
otherwise so as to incur the least inconvenience to Tenant;
(3) Landlord shall first give Tenant at least sixty (60) days'
notice before making any such substitution; and
(4) Tenant shall have the right to terminate this Lease at any time
prior to
30
31
the effective date set forth in Landlord's notice delivered pursuant to
subparagraph (3) above, if Tenant determines, in its sole discretion, that the
New Premises are or will be unacceptable, provided such termination notice is
given not more than thirty (30) days after Landlord's notice is aforesaid.
ARTICLE 32
EFFECT OF EARLY TERMINATION OF LEASE
If at any time during the Term of this Lease Tenant shall have the
right and shall elect to terminate the Term or this Lease prior to its then
stated expiration date, the rights and obligations of the parties hereto,
including without limitation, Tenant's obligation to pay Rent, additional rent
and other additional sums due and payable pursuant to this Lease after the
effective date of such termination, shall cease as of the applicable
termination date, but in no event shall either party be relieved of any
liabilities or responsibilities incurred or arising prior to the applicable
termination date.
ARTICLE 33
DEFAULT UNDER OTHER LEASES
If the term of any other lease made by Tenant for any other premises in
the Building shall be terminated after the making of this Lease because of any
default by Tenant (beyond any applicable notice and cure or grace periods)
under such other lease, Landlord, at its option, may terminate this Lease
effective immediately upon written notice of Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed on the date first above written.
LANDLORD: ILLINOIS INSTITUTE OF TECHNOLOGY,
an Illinois not-for-profit corporation
By: /s/ [SIGNATURE]
--------------------------------------
Its: Vice Pres., Bus. & Finance
-------------------------------------
TENANT. DONLAR CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Its: President
--------------------------------------
31
