THE TIME & LIFE BUILDING
CHICAGO, ILLINOIS
VIDEO BROADCASTING CORPORATION
June 7, 1989
000 XXXXX XXXXXXXXX
OFFICE LEASE
TABLE OF CONTENTS
PAGE
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1. Basic Terms 1
2. Lease of Premises and Term 1
3. Rent 2
4. Base Rent Adjustment 2
5. Service 5
6. Condition of Premises 7
7. Inability to Deliver Possession 7
8. Care and Maintenance 8
9. Alterations 8
10. Access to Premises 9
11. Insurance 10
12. Subrogation 11
13. Untenantability 11
14. Eminent Domain 12
15. Waiver of Claims and Indemnity 12
16. Assignment/Subletting 13
17. Subordination 15
18. Certain Rights Reserved to the Landlord 15
19. Holding Over 16
20. Xxxxxxxx's Remedies 17
21. Surrender of Possession 18
22. Relocation Of Tenant 19
23. Covenant Against Liens 19
24. Tenant's Payments Upon Execution 19
25. Rules And Regulations 20
26. Miscellaneous 23
27. Quiet Enjoyment 26
28. Agency 26
29. Renewal Option 26
Tenant: Video Broadcasting Corporation,
a Delaware corporation
000 XXXXX XXXXXXXXX
OFFICE LEASE
THIS LEASE, made and entered into in Chicago, Illinois as of this 7th day
of June, 1989, by and between TEACHERS' RETIREMENT SYSTEM OF THE STATE OF
ILLINOIS (hereinafter referred to as the "Landlord"), and VIDEO BROADCASTING
CORPORATION, a Delaware corporation doing business as Media Link (hereinafter
referred to as the "Tenant");
WITNESSETH:
1. Basic Terms. This Section 1 contains the basic terms of the Lease
between Landlord and Tenant. All other provisions of this Lease are to be read
in accordance with the provisions herein contained.
A. Agent Xxxxxxx & Xxxxxxxxxx Asset
Management Company
B. Agent's Address 0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
C. Building 000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
D. Commencement Date August 1, 1989
X. Xxxxxxxxxxx Broker Xxx Xxxxx & Associates
F. Expense Base $2,999,670.00
G. Monthly Base Rental $2,579.12 (subject to increase
pursuant to Section 3A herein)
H. Security Deposit $2,579.12
I. Tax Base $2,632,750.00
X. Xxxxxx's Proportion .002432 (.2432%)
K. Term Five (5) years
L. Termination Date July 31, 1994
M. Total Base Rent $164,314.78
N. Use General office
2. Lease of Premises and Term. Landlord hereby leases to Tenant, and Xxxxxx
accepts the demised premises (hereinafter known as "demised premises" or
"premises"), being described in the plan attached hereto as Exhibit "A" in the
Building for the Term as set forth in Section 1 hereof, unless sooner terminated
as provided herein, commencing on the Commencement Date set forth in Section 1
hereof and ending on the Termination Date set forth in Section 1 hereof to be
occupied and used by the Tenant for the Use as defined in Section 1 hereof and
no other purpose, subject to the agreements herein contained.
3. Rent. A. The Tenant shall pay as rent hereunder the Total Base Rent plus
the Rent Adjustment, as hereinafter defined, plus all other sums herein required
to be paid to Landlord, to Agent at the Agent's Address or to such other person
or at such other place as Landlord may from time to time direct in writing.
Tenant shall pay to Landlord the Total Base Rent in equal monthly installments
in the amount of the Monthly Base Rental in advance on or before the first day
of each month of the term. The Monthly Base Rental set forth in Section 1F
hereof represents the Monthly Base Rental for the first year of the Term
commencing on the Commencement Date. The Monthly Base Rental shall increase on
each anniversary of the Commencement Date by an amount equal to three (3%)
percent of the Monthly Base Rental payable for the month prior to said
anniversary. All such rent shall be paid without any set-off or deduction
whatsoever.
Unpaid rent shall bear interest at the rate set forth in Section 26F hereof,
from the date due until paid.
B. Provided Tenant is not in default of any provision of this Lease, Total
Monthly Rent (including Base Rent and Base Rent Adjustments) for the period
commencing August 1, 1989 and ending July 31, 1990 shall be abated.
4. Base Rent Adjustment. In addition to the Total Base Rent, the Tenant
shall pay, as rent, the Rent Adjustment described in this Section 4 without set
off or deduction to the Agent.
A. For the purposes of this Lease:
(i) The term "Calendar Year" shall mean each calendar year or a
portion thereof during the Term.
(ii) The term "Expenses" shall mean and include all expenses paid or
incurred by the Landlord or its beneficiaries for managing, owning,
maintaining, operating, insuring, replacing (but excluding capitalized
expenditures) and repairing the Building, the land under the Building,
appurtenances and personal property used in conjunction therewith
(hereinafter collectively referred to as the "Project") during each
Calendar Year, or portion thereof, during the Term. Expenses shall not
include costs of alterations of the premises of tenants of the Building,
depreciation charges, interest and principal payments on mortgages, ground
rental payments, real estate brokerage and leasing commissions. If the
Building is not fully occupied during all or a portion of any year, then
Landlord may elect to make an appropriate adjustment of the Expenses for
such year employing sound accounting and management principles, to
determine the amount of Expenses that would have been paid or incurred by
the Landlord had the Building been fully occupied and the amount so
determined shall be the amount of Expenses attributable to such year;
provided, however, that any such adjustment to Expenses shall relate to
items of expense which vary with the occupancy of the Building such as, by
way of example and not limited to, cleaning services and utilities. If any
Project expense, though paid in one year, relates to more than one calendar
year, at the option of Landlord, such expenses may be proportionately
allocated among such related calendar years.
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(iii) The term "Rent Adjustments" shall mean all amounts owed by
Tenant as additional rent as defined in Subparagraph 4B hereof.
(iv) The term "Rent Adjustment Deposit" shall mean an amount equal to
the estimate of Rent Adjustments due for any Calendar Year as made by
Landlord from time to time during the Term. The Rent Adjustment Deposit
shall be payable by Tenant in equal monthly installments in the same manner
as Total Base Rent on the first day of each month of the Term.
(v) The term "Taxes" shall mean real estate taxes, assessments, sewer
rents, rates and charges, transit taxes, taxes based upon the receipt of
rent, and any other federal, state or local governmental charge, general,
special, ordinary or extraordinary (but not including general income or
franchise taxes or any other taxes imposed upon or measured by income or
profits, unless the same shall be imposed in lieu of Taxes as herein
defined or unless same shall be specifically imposed upon income derived
from rents), which may now or hereafter be levied or assessed against the
Project or any portion thereof which are payable in any Calendar Year
during the Term. In case of special taxes or assessments which may be
payable in installments, only the amount of each installment and interest
paid thereon paid during a calendar year shall be included in Taxes for
that year. Taxes shall also include any personal property taxes
(attributable to the year in which paid) imposed upon the furniture,
fixtures, machinery, equipment, apparatus, systems and appurtenances used
in connection with the operation of the Building. In the event the Project
is not assessed as fully improved for any year, then Taxes shall be
adjusted to the Taxes which would have been payable in such Calendar Year
if the assessment had been made on a fully improved basis, based on
Landlord's adjustment of the "Taxes" for such year, employing sound
management principles. Taxes also include the Landlord's reasonable costs
and expenses (including reasonable attorney's fees) in contesting or
attempting to reduce any taxes. Taxes shall be reduced by any recovery or
refund received of taxes previously paid by the Landlord, provided such
refund relates to taxes paid during the term of this Lease. Notwithstanding
anything set forth above to the contrary, if at any time the method of
taxation then prevailing shall be altered so that any new or additional
tax, assessment, levy, imposition or charge or any part thereof shall be
imposed upon Landlord in place or partly in place of any Taxes or
contemplated increase therein, or in addition to Taxes, and shall be
measured by or be based in whole or in part upon the Project, the rents or
other income therefrom or any leases of any part thereof, then all such new
taxes, assessments, levies, impositions or charges or part thereof, to the
extent that they are so measured or based, shall be included in Taxes.
B. The amount of Rent Adjustment shall be calculated as follows:
(i) In the event that the amount of Expenses attributable to any
Calendar Year shall be greater than the Expense Base set forth in Section 1
hereof, then the Tenant shall pay to the Landlord the Tenant's Proportion
of such increase.
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(ii) In the event that the amount of Taxes attributable to any
Calendar Year shall be greater than the Tax Base set forth in Section 1
hereof, then the Tenant shall pay to the Landlord the Tenant's Proportion
of such increase. The amount of Taxes attributable to a Calendar Year shall
be the amount payable during any such Calendar Year, even though the
assessment for such Taxes may be for a different Calendar Year.
C. Landlord shall provide Tenant with the amount of the Rent Adjustment
Deposit for the Calendar Year in which the Commencement Date occurs on or before
the Commencement Date and Tenant shall thereon pay same to Landlord in equal
monthly installments commencing on the Commencement Date.
X. Xx soon as reasonably feasible after the expiration of each Calendar
Year, Landlord will furnish Tenant a statement ("Adjustment Statement") showing
the following:
(i) Expenses and Taxes to the Calendar Year last ended;
(ii) The amount of Rent Adjustments due Landlord for the Calendar Year
last ended, less credits for Rent Adjustment Deposits paid, if any; and
(iii) The Rent Adjustment Deposit due in the current Calendar Year.
E. Within thirty (30) days after Xxxxxx's receipt of each Adjustment
Statement, Tenant shall pay to Landlord:
(i) The amount of Rent Adjustment shown on said statement to be due
Landlord for the Calendar Year last ended; plus
(ii) The amount, which when added to the Rent Adjustment Deposit
theretofore paid in the current Calendar Year would provide that Landlord
has then received such portion of the Rent Adjustment Deposit as would have
theretofore been paid to Landlord had Tenant paid one twelfth (1/12) of the
Rent Adjustment Deposit, for the current Calendar Year, to Landlord monthly
on the first day of each month of such Calendar Year.
Commencing on the first day of the first month after Xxxxxx's receipt of each
Adjustment Statement, and on the first day of each month thereafter until Xxxxxx
receives a more current Adjustment Statement, Tenant shall pay to Landlord
one-twelfth (1/12) of the Rent Adjustment Deposit shown on said statement.
During the last complete Calendar Year, Landlord may include in the Rent
Adjustment Deposit its estimate of the Rent Adjustment which may not be finally
determined until after the expiration of the Term. The Tenant's obligation to
pay the Rent Adjustment shall survive the Term.
X. Xxxxxx's payment of the Rent Adjustment Deposit for each Calendar Year
shall be credited against the Rent Adjustments for such Calendar Year. All Rent
Adjustment Deposits may be co-mingled and no interest shall be paid to Tenant
thereon. If the Rent Adjustment Deposit paid by Tenant for any Calendar Year
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exceeds the Rent Adjustments for such Calendar Year, then Landlord shall give a
credit to Tenant in an amount equal to such excess against the Rent Adjustments
due for the next succeeding Calendar Year, except that if any such excess
relates to the last Calendar Year of the Term, then Landlord shall refund such
excess to Tenant, provided that all of the following have first occurred:
(i) The Term has expired or otherwise been terminated;
(ii) Tenant has vacated the premises and removed all of its property
and improvements therefrom in accordance with this Lease;
(iii) Tenant has surrendered the premises to Landlord in accordance
with this Lease; and
(iv) Tenant has paid all Total Base Rent and Rent Adjustments due
under this Lease and has fully performed and observed each and every
covenant and condition of this Lease required to be performed or observed
by Tenant.
G. The Tenant or its representative shall have the right to examine the
Landlord's books and records with respect to the items in the Adjustment
Statement during normal business hours at any time within ten (10) days
following the furnishing by the Landlord to the Tenant of such Adjustment
Statement. Unless the Tenant shall take written exception to any item within
thirty (30) days after the furnishing of the foregoing statement, such statement
shall be considered as final and accepted by the Tenant. Any amount due to
Landlord as shown on any such statement, whether or not written exception is
taken thereto, shall be paid by the Tenant within thirty (30) days after the
Landlord shall have submitted the statement, without prejudice to any such
written exception.
H. If the Commencement Date is on any day other than the first day of
January, or if the Termination Date is on any day other than the last day of
December, any Rent Adjustments due Landlord shall be prorated.
5. Service.
A. The Landlord shall, so long as Tenant is not in default under any
covenant or condition herein contained, furnish:
(i) Heating and air cooling when necessary to provide a temperature
condition for comfortable occupancy daily, in season, 8:00 A.M. to 9:00
P.M. and on Saturdays 8:00 A.M. to 1:00 P.M., Sunday and holidays excepted.
Wherever heat generating machines or equipment are used by Tenant in the
demised premises, which affect the temperature otherwise maintained by the
air-cooling system, Landlord reserves the right to install supplementary
air-conditioning units in the demised premises and the expense of
furnishing such units and installation thereof shall be paid by Tenant. The
expense resulting from the operation and maintenance of the supplementary
air conditioning system shall be paid by the Tenant to the Landlord as
Additional Rent at rates fixed by Landlord.
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(ii) Cold water in common with other tenants from City of Chicago
mains for drinking, lavatory and toilet purposes drawn through fixtures
installed by Landlord, or by Tenant with Landlord's prior written consent,
and warm water for lavatory purposes from the regular supply of the
Building. Tenant shall pay Landlord at reasonable rates fixed by Landlord
for water furnished for any other purposes, and Landlord may install a
water meter at Tenant's sole cost to measure such usage. Tenant shall not
waste or permit the waste of water. In the event Tenant shall fail to make
prompt payment to Landlord for water furnished by Landlord, Landlord, upon
ten (10) days' notice, may discontinue furnishing such service and no such
discontinuance shall be deemed an eviction or disturbance of Tenant's use
of the premises or render Landlord liable for damage or relieve Tenant from
any obligation under this Lease.
(iii) Customary janitor service and cleaning in and about the demised
premises Saturdays, Sundays and holidays, excepted. The Tenant shall not
provide any janitor services or cleaning without the Landlord's written
consent and then only subject to supervision of Landlord and at Tenant's
sole responsibility and by janitor or cleaning contractor or employees at
all times satisfactory to Landlord.
(iv) Passenger elevator service in common with Landlord and other
tenants, daily from 8:00 A.M. to 6:00 P.M. (Saturdays 8:00 A.M. to 1:00
P.M.), Sunday and holidays excepted, and daily freight elevator service in
common with Landlord and other tenants at reasonable hours to be determined
by Landlord, Saturdays, Sundays and holidays excepted. Landlord shall
provide limited passenger elevator service daily at all times during which
such normal passenger service is not furnished. Operatorless automatic
elevator service shall be deemed "elevator service" within the meaning of
this paragraph.
B. All electricity, telecommunication, signal and other similar services
used in the premises shall be supplied by the utility company serving the
Building through a separate meter and be paid for by Tenant. Except for
Landlord's gross negligence, Landlord shall not be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur if
either the quantity or character of such service is changed or is no longer
available or suitable for Tenant's requirements. If such service be
discontinued, such discontinuance shall not in any way affect this Lease or the
liability of Tenant hereunder or cause a diminution of Base Rent or Rent
Adjustments and the same shall not be deemed to be a lessening or diminution of
services within the meaning of any law, rule or regulation now or hereafter
enacted, promulgated or issued. Tenant shall receive such service directly from
the utility company and Landlord hereby permits its wires and conduits, to the
extent available, suitable and safely capable, to be used for such purposes.
C. The Landlord does not warrant that any of the services above mentioned
will be free from interruption caused by war, insurrection, civil commotion,
riots, acts of God or the enemy, governmental action, repairs, renewals,
improvements, alterations, strikes, lockouts, picketing, whether legal or
illegal,
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accidents, inability of the Landlord to obtain fuel, energy or supplies or any
other cause or causes beyond the reasonable control of the Landlord. No such
interruption of service shall be deemed an eviction (or a constructive eviction)
or disturbance of Tenant's use and possession of the premises or any part
thereof, or render Landlord liable to Tenant for damages, by abatement of rent
or otherwise, or relieve Tenant from performance of Tenant's obligations under
this Lease unless caused by Xxxxxxxx's gross negligence. Tenant hereby waives
and releases all claims against Landlord for damages from interruption or
stoppage of service except for claims arising by virtue of the Landlord's gross
negligence. Xxxxxx agrees to cooperate fully with Landlord, at all times, in
abiding by all regulations and requirements which Landlord may prescribe for the
proper functioning and protection of all utilities and services reasonably
necessary for the operation of the Project and the Building.
6. Condition of Premises. Xxxxxxxx agrees to construct the improvements to
the demised premises described in the Tenant Work Agreement attached hereto as
Exhibit "B" and made a part hereof. The Tenant's taking possession of the
premises shall he deemed to be Tenant's acceptance of the demised premises in
the order and condition as then exists, except for a punch list of items to be
completed or repaired, signed by Landlord and Tenant within twenty (20) days of
such possession. No promise of the Landlord to alter, remodel, decorate, clean
or improve the demised premises or the Building and no representation respecting
the condition of the demised premises or the Building have been made by the
Landlord to the Tenant, unless the same is contained herein.
7. Inability to Deliver Possession. If the Landlord shall be unable to give
possession of the demised premises on the Commencement Date for any reason the
rent reserved and covenanted to be paid herein shall not commence until the
demised premises are available for occupancy by Tenant. No such failure to give
possession on the Commencement Date of the Term hereof shall subject Landlord to
any liability for failure to give possession nor shall same affect the validity
of this Lease or the obligation of the Tenant hereunder, nor shall the same be
construed to extend the Term or Termination Date. At the option of Landlord to
be exercised within thirty (30) days of the delayed delivery of possession to
Tenant, the Lease shall be amended so that the Term shall be extended by the
period of time possession is delayed. If the demised premises are ready for
occupancy prior to the Commencement Date and Tenant occupies the premises prior
to said date, Tenant shall pay proportionate Total Base Rent and Rent
Adjustments. The demised premises shall not be deemed to be unready for Tenant's
occupancy or incomplete if only minor or insubstantial details of construction,
decoration or mechanical adjustments remain to be done in the demised premises
or any part thereof, or if the delay in the availability of the demised premises
for occupancy shall be due to special work, changes, alterations or additions
required or made by Tenant in the layout or finish of the demised premises or
any part thereof or shall be caused in whole or in part by Tenant through the
delay of Tenant in submitting plans, supplying information, approving plans,
specifications or estimates, giving authorizations or shall be otherwise caused
in whole or in part by delay and/or default on the part of Tenant. In the event
of any dispute as to whether the premises are ready for Tenant's occupancy, the
decision of Xxxxxxxx's architect shall be final and binding
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on the Landlord and Tenant. Notwithstanding anything to the contrary contained
herein, Tenant may terminate this Lease if the demised premises are not
available for occupancy by October 31, 1989.
8. Care and Maintenance. Subject to the provisions of Sections 13 and 14
hereof, the Tenant shall, at the Tenant's own expense, keep the demised premises
in good order, condition and repair and shall pay for the repair of any damages
caused by Tenant, its agents, employees or invitees. Tenant shall promptly
arrange with Landlord, at Tenant's sole expense, for the repair of all damage to
the premises and the replacement or repair of all damaged or broken glass
(including signs thereon), fixtures and appurtenances (including hardware,
heating, cooling, ventilating, electrical, plumbing and other mechanical
facilities in the premises), with materials equal in quality and class to the
original materials damaged or broken, within any reasonable period of time
specified by Landlord, all repairs and replacements to be made under the
supervision and with the prior written approval of Landlord, using contractors
or persons acceptable to Landlord. If Tenant does not promptly make such
arrangements, Landlord may, but need not, make such repairs and replacements and
one hundred twenty-one (121%) percent of Landlord's cost for such repairs and
replacements shall be deemed Additional Rent reserved under this Lease
due and payable forthwith. The Tenant shall pay the Landlord or the managing
agent of the Building, as Landlord may direct, a fee for supervision and
coordination of all work performed by Xxxxxx as well as all costs for overtime
and for any other expense incurred in the event repairs, alterations, decorating
or other work in the demised premises are not made during ordinary business
hours at the Tenant's request.
9. Alterations. The Tenant shall not do any painting or decorating, or
erect any partitions, make any alterations in or additions to the demised
premises or do any nailing, boring or screwing into the ceilings, walls or
floors, without the Landlord's prior written consent in each and every instance.
Unless otherwise agreed by Xxxxxxxx and Xxxxxx in writing, all such work shall
be performed either by or under the direction of Landlord, but at the sole cost
of Tenant. The Landlord's decision to refuse such consent shall be conclusive.
If the Landlord consents to such alterations or additions, before commencement
of the work or delivery of any materials into the demised premises or into the
Building, the Tenant shall furnish the Landlord for approval: (A) Plans and
specifications; (B) Names and addresses of contractors; (C) Copies of contracts;
(D) Necessary permits; and (E) Indemnification and insurance in form and amount
satisfactory to Landlord from all contractors performing labor or furnishing
materials, insuring against any and all claims, costs, damages, liabilities and
expenses which may arise in connection with the alterations or additions.
Landlord may withhold approval of any alteration or additions if the plans
and specifications therefor are not reasonably acceptable to the Landlord or
Landlord's architect or engineer (if any). In connection with any request for
approval of any alterations or additions by Xxxxxx, Landlord my retain the
services of an outside architect and/or engineer and the reasonable fees of such
architect and/or engineer to Landlord shall be reimbursed to Landlord by Xxxxxx.
Landlord's approval of any plans or specifications shall not be construed to be
an agreement
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or representation on Landlord's part as to the adequacy or suitability of the
Tenant's alterations or additions.
In the event Landlord permits the alterations or additions to be completed
by Xxxxxx's contractor, Landlord reserves the right to require that Tenant shall
terminate its contract with any such contractor in the event said contractor
shall be engaged in a labor dispute which disrupts said contractor's work.
Xxxxxxxx shall also have the right to order any contractor of Tenant who
violates any of Landlord's requirements or standards of work to cease work and
to remove himself, his equipment and his employees from the Building. Landlord
or the managing agent of the Building shall be entitled to charge a fee for
supervision and coordination of all such alterations. Tenant agrees that its
contractors shall not conduct their work in such a manner so as to interfere
with or cause any interruption of either: (A) Landlord's construction; (B)
Another tenant's occupancy or construction; or (C) Other phases of Landlord's
operation of the Building.
Whether the Tenant furnishes the Landlord the foregoing or not, the Tenant
hereby agrees to indemnify and hold the Landlord, its beneficiaries, partners
and their respective agents and employees harmless from any and all liabilities
of every kind and description which may arise out of or be connected in any way
with said alterations or additions. Any mechanic's lien filed against the
demised premises, or the Real Property, for work claimed to have been furnished
to the Tenant shall be discharged of record by the Tenant within ten (10) days
thereafter, at the Tenant's expense. Upon completing any alterations or
additions, the Tenant shall furnish the Landlord with contractors' affidavits
and full and final waivers of lien and receipted bills covering all labor and
materials expended and used. All alterations and additions shall comply with all
insurance requirements and with all ordinances and regulations of any pertinent
governmental authority. All alterations and additions shall be constructed in a
good and workmanlike manner and only good grades of materials shall be used.
All additions, decorations, fixtures, hardware, non-trade fixtures and all
improvements, temporary or permanent, in or upon the demised premises, whether
placed there by the Tenant or by the Landlord, shall, unless the Landlord
requests their removal, become the Landlord's property and shall remain upon the
demised premises at the termination of this Lease, by lapse of time or
otherwise, without compensation or allowance or credit to the Tenant. Landlord
may, at its sole option, request Tenant, at Tenant's sole cost, to remove same
and if, upon the Landlord's request, the Tenant does not remove said additions,
decorations, fixtures, hardware, non-trade fixtures and improvements, the
Landlord may remove the same, and the Tenant shall pay the cost of such removal
to the Landlord upon demand.
10. Access to Premises. The Tenant shall permit the Landlord, its agents
and designees, to erect, use and maintain pipes, ducts, wiring and conduits in
and through the demised premises and to have free access to the premises and any
part thereof in the event of an emergency. Upon prior written notice (except in
emergency circumstances) the Landlord or Landlord's agents shall have the right
to enter upon the premises, to inspect the same, to perform janitorial and
cleaning
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services and to make such decorations, repairs, alterations, improvements or
additions to the premises or the Project as the Landlord may deem necessary or
desirable, and the Landlord shall be allowed to take all material into and upon
said demised premises that may be required thereof without the same constituting
an eviction of the Tenant in whole or in part, and the rent reserved shall in no
way xxxxx (except as provided in Paragraphs 13 or 14 hereof) while said
decorations, repairs, alterations, improvements, or additions are being made, by
reason of loss or interruption of business of the Tenant, or otherwise. If the
Tenant shall not be personally present to open and permit an entry into said
demised premises, at any time, when for any reason an entry therein shall be
necessary or permissible, the Landlord or Landlord's agents may enter the same
by a master key, or may forcibly enter the same, without rending the Landlord or
such agents liable therefor (if during such entry Landlord or Landlord's agents
shall accord reasonable care to Tenant's property), and without in any manner
affecting the obligations and covenants of this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon the Landlord any
obligations, responsibility or liability whatsoever, for the care, supervision
or repair of the Building or any part thereof, in the exercise of any rights
herein provided. The Landlord shall also have the right at any time without the
same constituting an actual or constructive eviction and without incurring any
liability to the Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets or public parts of the Building, and to close entrances, doors,
corridors, elevators or other facilities. The Landlord shall not be liable to
the Tenant for any expense, injury, loss or damage resulting from work done in
or upon, or the use of, any adjacent or nearby building, land, street or alley.
11. Insurance. Tenant shall carry insurance during the entire Term hereof
insuring Tenant, and insuring, as additional named insureds, Landlord, any
beneficiary of Landlord, the managing agent for the Project and their respective
agents, partners and employees, as their interests may appear, with terms,
coverages and in companies satisfactory to Landlord, and with such increases in
limits as Landlord may from time to time request, but initially Tenant shall
maintain the following coverages in the following amounts:
A. Comprehensive public liability insurance, including the broad or
extended liability endorsement, during the entire term hereof with terms and in
companies satisfactory to Landlord to afford protection to the limits of not
less then $2,000,000 for combined single limit personal injury and property
damage liability per occurrence.
B. Insurance against fire, sprinkler leakage, vandalism, and the extended
coverage perils for the full insurable value of all additions, improvements and
alterations to the premises, and of all office furniture, trade fixtures, office
equipment, merchandise and all other items of Tenant's property on the premises
and business interruption insurance.
X. Xxxxxx shall, prior to the commencement of the Term, and during the
Term, thirty (30) days prior to the expiration of the policies of insurance,
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furnish to Landlord certificates evidencing such coverage, which certificates
shall state that such insurance coverage may not be changed or cancelled without
at least thirty (30) days' prior written notice to Landlord and Tenant.
12. Subrogation. Landlord and Tenant agree to have all fire and extended
coverage and material damage insurance which may be carried by either of them
endorsed with a clause providing that any release from liability of or waiver of
claim for recovery from the other party or any of the parties named in Paragraph
11 above entered into in writing by the insured thereunder 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 insurer waives all rights
of subrogation which such insurer might have against the other party or any of
the parties named in Paragraph 11 above. Without limiting any release or waiver
of liability or recovery contained in any other Section of this Lease but rather
in confirmation and furtherance thereof, Landlord and any beneficiaries of
Landlord waive all claims for recovery from Tenant, and Tenant waives all claims
for recovery from Landlord, any beneficiaries of Landlord and the managing agent
for the Project and their respective agents, partners and employees, for any
loss or damage to any of its property insured under valid and collectible
insurance policies to the extent of any recovery collectible under such
insurance policies.
Notwithstanding the foregoing or anything contained in this Lease to the
contrary, any release or any waiver of claims shall not be operative, nor shall
the foregoing endorsements be required, in any case where the effect of such
release or waiver is to invalidate insurance coverage or invalidate the right of
the insured to recover thereunder or increase the cost thereof (provided that in
the case of increased cost the other party shall have the right, within ten (10)
days following written notice, to pay such increased cost, thereby keeping such
release or waiver in full force and effect).
13. Untenantability. If in excess of thirty (30%) percent of the demised
premises or in excess of thirty (30%) percent of the Building are made
untenantable by fire or other casualty, and Landlord determines in its
reasonable judgment that the demised premises cannot be restored within one
hundred eighty (180) days of such casualty, then Landlord or Tenant may elect to
terminate this Lease as of the date of the fire or casualty by notice to the
other within sixty (60) days after that date. In the event of the termination of
this Lease pursuant to this section, rent shall be apportioned on a per diem
basis and paid to the date of the fire or other casualty.
In the event the Lease is not terminated pursuant to these provisions, then
landlord shall repair, restore or rehabilitate the Building and the demised
premises at Landlord's expense. Rent shall xxxxx only with respect to the
portion of the demised premises rendered untenantable on a per diem basis during
the period of untenantability.
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14. Eminent Domain.
A. If a portion of the Building, or the demised premises, shall be lawfully
taken or condemned for any public or quasi-public use or purpose, or conveyed
under threat of such condemnation, and as a result thereof, the premises cannot
be used for the same purpose and with the same utility as before such taking or
conveyance, the terms of this Lease shall end upon, and not before, the date of
the taking of possession by the condemning authority, and without apportionment
of the award. Tenant hereby assigns to the Landlord, Xxxxxx's interest in such
award, if any. Current rent shall be apportioned as of the date of such
termination. If any part of the Building shall be so taken or condemned, or if
the grade of any street or alley adjacent to the Building is changed by any
competent authority and such taking or change of grade makes it necessary or
desirable to demolish, substantially remodel, or restore the Building, the
Landlord shall have the right to cancel this Lease upon not less than ninety
(90) days' prior notice to the date of cancellation designed in the notice.
B. If a portion of the premises shall be lawfully taken or condemned or
conveyed under threat of condemnation but thereafter the premises can be used by
Tenant for the same purpose and with substantially the same utility, this Lease
shall not be terminated by Landlord and Landlord shall repair the premises, and
the Lease shall be amended to reduce the Tenant's Proportion and Base Rent in
the proportion of the amount taken. No money or other consideration shall be
payable by the Landlord to the Tenant for any right of cancellation or temporary
taking, and the Tenant shall have no right to share in any condemnation award or
in any judgment for damages caused by a change of grade.
15. Waiver of Claims and Indemnity. To the extent permitted by law, the
Tenant releases the Landlord, its beneficiaries, and their respective agents,
employees, mortgagees and partners (all of said parties are, for the purposes of
this Paragraph 15 collectively referred to as "indemnitees") from, and waives
all claims for, damage to person or property sustained by the Tenant or any
occupant of the Building or premises resulting from the Building or premises or
any part of either or any equipment or appurtenance becoming out of repair, or
resulting from any accident in or about the Building, or resulting directly or
indirectly, from any act or neglect of any tenant or occupant of the Building or
of any other person, including the indemnitees. This Section 15 shall apply
especially, but not exclusively, to the flooding of basements or other
subsurface areas, and to damage caused by refrigerators, sprinkling devices,
air-conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or
leaking of pipes or plumbing fixtures, and shall apply equally whether any such
damage results from the act or neglect of other tenants, occupants or servants
in the Building or of any other person, and whether such damage be caused or
result form any thing or circumstance above mentioned or referred to, or any
other thing or circumstance whether of a like nature or of a wholly different
nature, except if caused by Landlord's gross negligence or willful misconduct.
If any such damage, whether to the demised premises or to the Building or any
part thereof, or whether to the Landlord or to other tenants in the Building,
results from any act or neglect of the Tenant, its
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employees, agents, invitees and customers, the Tenant shall be liable therefor
and the Landlord may, at the Landlord's option, repair such damage and the
Tenant shall, upon demand by the Landlord, reimburse the Landlord forthwith for
the total cost of such repairs. The Tenant shall not be liable for any damage
caused by its act or neglect if the Landlord or a Tenant has recovered the full
amount of the damage from insurance and the insurance company has waived its
right of subrogation against the Tenant. All property belonging to the Tenant or
any occupant of the premises that is in the Building or the premises shall be
there at the risk of the Tenant or other person only, and the Landlord shall not
be liable for damage thereto or theft or misappropriation thereof.
To the extent permitted by law, Xxxxxx agrees to indemnify and save the
indemnitees harmless against any and all claims, demands, costs and expenses,
including reasonable attorney's fees for the defense thereof, arising from
Xxxxxx's occupation of the demised premises or from any breach or default on the
part of the Tenant in the performance of any covenant or agreement on the part
of Tenant to be performed pursuant to the terms of this Lease, or from any act
or negligence of Tenant, its agents, servants, employees or invitees, in or
about the demised premises. In case of any action or proceeding brought against
any indemnitees by reason of any such claim, upon notice from Landlord, Tenant
covenants to defend such action or proceeding by counsel reasonably satisfactory
to Landlord.
16. Assignment/Subletting.
A. Tenant shall not, without Xxxxxxxx's prior written consent, which will
not be unreasonably withheld: (i) assign, transfer, hypothecate, mortgage,
encumber, or convey or subject to or permit to exist upon or be subjected to any
lien or charge this Lease or any interest under it; (ii) allow any transfer of,
or any lien upon, Xxxxxx's interest in this Lease by operation of law; (iii)
sublet the demised premises in whole or in part; or (iv) allow the use or
occupancy of any portion of the premises for a use other than the Use or by
anyone other than Tenant or Tenant's employees.
Notwithstanding the foregoing, should any law governing Landlord's consent
to a sublease or assignment require Landlord to exercise reason in the
consideration of the granting or denying of consent, Landlord may take into
consideration the business reputation and credit worthiness of the proposed
subtenant or assignee; any alteration of the premises; the intended use of the
premises by the proposed subtenant or assignee; the estimated pedestrian and
vehicular traffic in the premises and to the Building which would be generated
by the proposed subtenant or assignee; and any other factors which Landlord
shall deem relevant. Provided further, however, that if Xxxxxxxx does not
consent to a sublease or assignment to any subtenant or assignee which is a
governmental agency, which is a present tenant in the Building or with whom
Landlord or its agents has discussed tenancy within the Building, same shall not
be deemed to be unreasonable.
B. If Tenant shall, with Xxxxxxxx's prior consent as herein required,
sublet the demised premises: (i) an amount equal to rental in excess of the Base
Rent and any Additional Rent herein provided to be paid shall be for benefit of
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Landlord and shall be paid to Landlord promptly when due under any such
subletting as Additional Rent; and (ii) Landlord shall be entitled to a fee not
greater than an amount equal to six (6) months Base Rental as consideration for
any such consent.
C. If Tenant is an entity whose ownership is not publicly held, and if
during the Term, the ownership of the control of Tenant changes, Tenant shall
notify Landlord of such change within five (5) days thereof, and Landlord, at
its option, may at any time thereafter terminate this Lease by giving Tenant
written notice of said termination at least sixty (60) days prior to the date of
termination stated in the notice. The term "control" as used herein means the
power to directly or indirectly direct or cause the direction of the management
or policies of the Tenant. A change or series of changes in ownership of stock
which would result in direct or indirect change in ownership by the stockholders
or an affiliated group or stockholders of less than fifty (50%) percent of the
outstanding stock shall not be considered a change of control.
X. Xxxxxx shall, by notice in writing, advise Landlord of its intention
from, on and after a stated date (which shall not be less than sixty (60) days
after the date of the giving of Tenant's notice to Landlord) to assign this
Lease or sublet any part or all of the demised premises for the balance or any
part of the Term, and, in such event, Landlord shall have the right, to be
exercised by giving written notice to Tenant within thirty (30) days after
receipt of Xxxxxx's notice, to terminate this Lease with respect to the space
described in Xxxxxx's notice as of the date stated in Xxxxxx's notice for the
commencement of the proposed assignment or sublease. Xxxxxx's notice shall
include the name and address of the proposed assignee or subtenant, a true and
complete copy of the proposed assignment or sublease and sufficient information
as Landlord deems necessary to permit Landlord to determine the financial
responsibility and character of the proposed assignee or subtenant. If Xxxxxx's
notice covers all of the demised premises and if Landlord exercises its right to
terminate this Lease as to such space, then the Term of this Lease shall expire
and end on the date stated in Xxxxxx's notice for the commencement of the
proposed assignment or sublease as fully and completely as if that date had been
the Expiration Date. If, however, Xxxxxx's notice covers less than all of the
demised premises, and if Landlord exercises its right to terminate this Lease
with respect to such space described in Tenant's notice, then as of the dated
stated in Xxxxxx's notice for the commencement of the proposed sublease, the
Base Rent and the Tenant's Proportionate Share as defined herein shall be
adjusted on the basis of the number of rentable square feet retained by Tenant,
and this Lease as so amended, shall continue thereafter in full force and
effect.
X. Xxxxxxxx's consent to any assignment or subletting shall not release
Tenant of liability under this Lease or permit any subsequent prohibited act,
unless specifically provided in such written consent. Xxxxxx agrees to pay to
Landlord, on demand, all reasonable costs incurred by Landlord in connection
with any request by Tenant of Landlord in connection with any consent to any
assignment or subletting by Xxxxxx.
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17. Subordination. Landlord may execute and deliver a mortgage or trust
deed in the nature of a mortgage (both sometimes hereinafter referred to as
"Mortgage") against the Building, the Project or any interest therein, including
a ground lease thereof ("Ground Lease") and sell and leaseback the underlying
land. This Lease and the rights of Tenant hereunder shall be and are hereby made
expressly subject and subordinate at all times to any ground lease of the land
or the Building, or both, now or hereafter existing and all amendments, renewals
and modifications thereto and extensions thereof, and to the lien of any
Mortgage now or thereafter encumbering any portion of the Project, and to all
advances made or hereafter to be made upon the security thereof provided that
any such subordination at all times shall be subject to the right of Tenant to
remain in possession of the demised premises under the terms of this Lease for
the Term, notwithstanding any default under the Ground Lease or Mortgage or
after termination of said Ground Lease or foreclosure of the Mortgage or any
sale pursuant thereto so long as the Tenant is not in default under this Lease.
Tenant agrees to execute and deliver such ground lease instruments subordinating
this Lease to any such ground lease and to the lien of any such Mortgage as may
be requested in writing by Landlord from time to time. Notwithstanding anything
to the contrary contained herein, any mortgagee under a Mortgage may, by notice
in writing to the Tenant, subordinate its Mortgage to this Lease.
In the event of the cancellation or termination of any such ground lease
described above in accordance with its terms or by the surrender thereof,
whether voluntary, involuntary or by operation of law, or by summary
proceedings, or the foreclosure of any such Mortgage by voluntary agreement or
otherwise, or the commencement of any judicial action seeking such foreclosure,
Tenant, at the request of the then Landlord, shall attorn to and recognize such
ground lessor, mortgagee or purchaser in foreclosure as Tenant's Landlord under
this Lease. Xxxxxx agrees to execute and deliver at any time upon request of
such ground lessor, mortgagee, purchaser, or their successors, any instrument to
further evidence such attornment.
Xxxxxx agrees to give the holder of any Mortgage, by registered or
certified mail, a copy of any notice of default served upon the Landlord by
Xxxxxx, provided that prior to such notice Tenant has received notice (by way of
service on Tenant of a copy of an assignment of rents and leases, or otherwise)
of the address of such Mortgagees and containing a request therefor.
18. Certain Rights Reserved to the Landlord. The Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
A. To change the name or street address of the Building;
B. To install and maintain a sign or signs on the interior or exterior of
the Building;
C. To have access for the Landlord and the other tenant of the Building to
any mail chutes located on the demised premises according to the rules of the
United States Postal service;
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D. To designate all sources furnishing sign painting and lettering, ice,
drinking water, towels, food, beverages, vending machines and toilet supplies,
lamps and bulbs used on the demised premises;
E. To decorate, remodel, repair, alter or otherwise prepare the demised
premises for reoccupancy if Tenant vacates the demised premises prior the
expiration of the Term;
F. To retain at all times pass keys to the demised premises;
G. To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building; provided, however, such grant does not
prohibit Tenant from pursuing the use of the demised premises granted hereunder;
H. To exhibit the demised premises to others during the last six months of
the Term;
I. To close the Building after regular working hours and on the holidays;
subject, however, to Tenant's rights to admittance, under such reasonable
regulations as Landlord may prescribe from time to time, which may include by
way of example but not of limitation, that persons entering or leaving the
Building identify themselves to a watchman by registration or otherwise and that
said persons establish their right to enter or leave the Building; provided,
however, Landlord shall not be liable for the failure to admit any person to the
Building;
J. To approve the weight, size and location of safes or other heavy
equipment or articles, which articles may be moved in, about, or out of the
Building or premises only at such times and in such manner as Landlord shall
direct and in all events, however, at Tenant's sole risk and responsibility;
K. To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the premises or to the
Building and to close or temporarily suspend, as may be necessary or desirable
for the safety, protection or preservation of the premises or the Building or
the Landlord's interests or the interest of other tenants, or as may be
necessary or desirable in the operation of the Building.
The Landlord may enter upon the demised premises and may exercise any or
all of the foregoing rights reserved without being deemed guilty of an eviction
or disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant and without abatement of rent or affecting any of the
Tenant's obligations hereunder.
19. Holding Over. If the Tenant retains possession of the demised premises
or any part thereof after the termination of the Term or any extension thereof,
by lapse of time and otherwise, the Tenant shall pay the Landlord Monthly Base
Rent, at double the rate payable for the month immediately preceding said
holding over (including increases for Rent Adjustment which Landlord may
reasonably
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estimate), computed on a per-month basis, for each month or part thereof
(without reduction for any such partial month) that the Tenant thus remains in
possession, and in addition thereto, Tenant shall pay the Landlord all damages,
consequential as well as direct, sustained by reason of the Tenant's retention
of possession. Alternatively, at the election of Landlord expressed in a written
notice to the Tenant and not otherwise, such retention of possession shall
constitute a renewal of this Lease for one (1) year at the same terms and
conditions herein set forth except that the Monthly Base Rent during said one
(1) year period shall be equal to one hundred sixty (160%) percent of the
Monthly Base Rent for the month immediately preceding said holding over. The
provisions of this paragraph do not exclude the Landlord's rights of re-entry or
any other right hereunder. Any such extension or renewal shall be subject to all
other terms and conditions herein contained.
20. Landlord's Remedies.
A. Each of the following shall constitute a breach of this Lease by Tenant:
(i) Tenant fails to pay any installment or other payment of rent including
without limitation Total Base Rent, Rent Adjustment Deposits or Rent Adjustments
when due; (ii) Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease or under the Workletter to be observed or
performed by Tenant and fails to cure such default within fifteen (15) days
after written notice thereof to Tenant; (iii) the interest of Tenant in this
Lease is levied upon under execution or other legal process; (iv) a petition is
filed by or against Tenant to declare Tenant bankrupt or seeking a plan of
reorganization or arrangement under any Chapter of the Bankruptcy Act, or any
amendment, replacement or substitution therefor, or to delay payment of, reduce
or modify Tenant's debts, or upon the dissolution of Tenant; (v) Xxxxxx is
declared insolvent by law or any assignment of Xxxxxx's property is made for the
benefit of creditors; a receiver is appointed for Tenant or Tenant's property;
or (vi) Tenant abandons the premises.
B. In the event of any breach of this Lease by Xxxxxx, Landlord at its
option, without further notice or demand to Tenant, may, in addition to all
other rights and remedies provided in this Lease, at law or in equity:
(i) terminate this Lease and Xxxxxx's right of possession of the
premises, and recover all damages to which Landlord is entitled under law,
specifically including, without limitation, all rent payable hereunder for
the balance and of the Term, all Landlord's expenses of reletting
(including repairs, alterations, improvements, additions, decorations,
legal fees and brokerage commissions); or
(ii) terminate Tenant's right of possession of the premises without
terminating this Lease, in which event Landlord may, but shall not be
obligated to, relet the premises, or any part thereof for the account of
Tenant, for such rent and term and upon such terms and conditions as are
acceptable to Landlord.
For purposes of such reletting, Landlord is authorized to decorate, repair,
alter and improve the premises to the extent reasonably necessary. If Landlord
fails or refuses to relet the premises or if the premises are relet and a
sufficient sum not
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be realized therefrom after payment of all Landlord's expenses of reletting
(including repairs, alterations, improvements, additions, decorations, legal
fees and brokerage commissions) to satisfy the payment when due of rent reserved
under this Lease for each such monthly period, or if the premises have been
relet, Tenant shall pay any such deficiency monthly. Xxxxxx agrees that Landlord
may file suit to recover any sums due to Landlord hereunder from time to time
and that such suit or recovery of any amount due Landlord hereunder shall not be
any defense to any subsequent action brought for any amount not theretofore
reduced to judgment in favor of Landlord. In the event Landlord elects, pursuant
to this Subsection B of Section 20, to terminate Tenant's right of possession
only without terminating this Lease, Landlord may, at Landlord's option, enter
into the premises, remove Xxxxxx's signs and other evidences of tenancy, and
take and hold possession thereof, as provided in Section 21 hereof; provided,
such action shall not terminate this Lease or release Tenant, in whole or in
part, from Tenant's obligation to pay the rent reserved hereunder for the Term
or from any other obligation of Tenant under this Lease. Any and all property
which may be removed from the premises by the Landlord pursuant to the authority
of the Lease or of law, to which the Tenant is or may be entitled, may be
handled, removed or stored by the Landlord at the rising, cost and expense of
the Tenant, and the Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. The Tenant shall pay to the Landlord, upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in the Landlord's possession
or under the Landlord's control. Any such property of the Tenant not retaken
from storage by the Tenant within thirty (30) days after the end of the Term,
however terminated, shall be conclusively presumed to have been conveyed by the
Tenant to the Landlord under this Lease as a bill of sale without further
payment or credit by the Landlord to the Tenant. Tenant hereby grants to
Landlord a first lien upon the interest of Tenant under this Lease to secure the
payment of monies due under this Lease, which lien may be enforced in equity.
Any default by Tenant of any term or condition hereof other than the payment of
sums due hereunder may be restrained or enforced by injunction.
C. Tenant shall pay upon demand, all costs and expenses, including
reasonable attorney's fees, incurred by Landlord in enforcing the observance and
performance by Tenant of all covenants, conditions and provisions of this Lease
to be observed and performed by Xxxxxx, or resulting from Xxxxxx's default under
this Lease.
D. If the term of any lease, other than this Lease, made by the Tenant for
any demised premises in the Building shall be terminated or terminable after the
making of this Lease because of any default by the Tenant under such other
lease, such fact shall empower the Landlord, at the Landlord's sole opinion, to
terminate this Lease by notice to the Tenant.
21. Surrender of Possession. Upon the expiration or other termination of
the Term, Xxxxxx shall quit and surrender to Landlord the premises, broom clean,
in good order and condition, ordinary wear excepted, surrender all keys to the
premises to Landlord, and Tenant shall remove all of its property except as
otherwise specifically provided herein.
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If the Tenant does not remove its property of every kind and description
from the demised premises prior to the end of the Term, however ended, at
Landlord's option, the Tenant shall be conclusively presumed to have conveyed
the same to the Landlord under this Lease as a bill of sale without further
payment or credit by the Landlord to the Tenant and the Landlord may remove the
same and the Tenant shall pay the cost of such removal to the Landlord upon
demand. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the term of this Lease.
22. Relocation Of Tenant. Landlord shall have the right, upon thirty (30)
days written notice, to relocate Tenant to another location in the Building at
no cost or expense to Tenant and upon the condition that the new premises
designated by Landlord shall be substantially similar to the demised premises
with respect to area and configuration in the Building and shall not be smaller
in area than the demised premises. Xxxxxxxx's right to relocate Tenant may be
exercised once during the Term hereof.
23. Covenant Against Liens. Tenant has no authority or power to cause or
permit any lien or encumbrance of any kind whatsoever, whether created by act of
Tenant, operation of law or otherwise, to attach to or be placed upon Xxxxxxxx's
title or interest in the Building, the Project or premises, and any liens and
encumbrances created by Tenant shall attach to Tenant's interest only. Tenant
covenants and agrees not to suffer or permit any lien of mechanics or
materialmen or others to be placed against the Land, Building or the premises
with respect to work or services claimed to have been performed for or materials
claimed to have been furnished to Tenant or the premises, and in case of any
such lien attaching, Tenant covenants and agrees immediately to cause it to be
released and removed of record.
24. Tenant's Payments Upon Execution.
A. As additional security for the faithful and prompt performance of its
obligation hereunder, Xxxxxx has concurrently with the execution of this Lease
paid to Agent the Security Deposit described in Section 1 hereof. Said Security
Deposit need not be segregated and may be applied by Landlord for the purpose of
curing any default or defaults of Tenant hereunder, in which event Tenant shall
replenish said deposit in full by promptly paying to Landlord on demand the
amount so applied. Landlord shall not pay any interest on said deposit, except
as may be required by law. If Xxxxxx has not defaulted hereunder and Landlord
has not applied said deposit to cure a default, or Landlord has applied said
deposit to cure a default and Tenant has replenished the same, then said
deposit, or such remaining portion thereof, shall be paid to Tenant after the
termination of this Lease. Said deposit shall not be deemed an advance payment
of rent or measure of Landlord's damages for any default hereunder by Xxxxxx.
B. Upon sale or transfer of the Building by Landlord and the concurrent
assignment of this Lease to a successor Landlord, Landlord shall be relieved of
any responsibility to Tenant to refund the Security Deposit provided said
deposit is
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transferred or assigned to the successor Landlord. Any such successor Landlord
shall thereafter be liable to Tenant for the obligations of Landlord hereunder.
C. Notwithstanding anything to the contrary herein set forth, the Monthly
Base Rent payable for the first month of the Term shall be due and paid to
Landlord concurrently upon the execution thereof by Xxxxxx.
25. Rules And Regulations. The Tenant shall occupy and use the demised
premises during the Term for the purpose above specified and none other and
shall comply with the following provisions:
A. The Tenant will not make or permit to be made any use of the demised
premises which, directly or indirectly is forbidden by public law, ordinance, or
governmental regulation or which may be dangerous to persons or property, or
which may invalidate or increase the premium cost of any policy of insurance
carried on the Building or covering its operations; the Tenant shall not do, or
permit to be done, any act or thing upon the demised premises which will be in
conflict with fire insurance policies covering the Building. The Tenant, at its
sole expense shall comply with all rules, regulations or requirements of the
local inspection and Rating Bureau, or any other similar body, and shall not do
or permit anything to be done upon said premises or bring or keep anything
thereon in violation of rules, regulations, or requirements of the Fire
Department, local inspection and Rating Bureau, Fire Insurance Rating
Organization or other authority having jurisdiction and then only in such
quantity and manner of storage as not to increase the rate of fire insurance
applicable to the Building;
B. Any sign installed in the demised premises or anywhere within the
Building shall be installed by Landlord at Tenant's cost and in such manner,
character and style as Landlord may approve in writing;
C. The Tenant shall not advertise the business, profession or activities of
the Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and shall
not use the name of the Building for any purpose other than that of business
address of the Tenant, and shall never use any picture or likeness of the
Building in any circulars, notices, advertisements or correspondence without the
Landlord's express consent in writing;
D. The Tenant shall not obstruct, or use for storage, or for any purpose
other than ingress and egress, the sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways of the Building;
E. No bicycle or other vehicle and no dog, other than a seeing eye dog, or
other animal shall be brought or permitted to be in the Building or any part
thereof;
F. The Tenant shall not make or permit any noise or odor that is
objectionable to other occupants of the Building to emanate from the demised
-20-
premises, and shall not create or maintain a nuisance thereon, and shall not
disturb, solicit or canvass any occupant of the Building, and shall not do any
act tending to injure the reputation of the Building;
G. The Tenant shall not install any musical instrument or equipment in the
Building or any antennas, aerial wires or other equipment inside or outside the
Building, without, in each and every instance, prior approval in writing by the
Landlord. The use thereof, if permitted, shall be subject to control by the
Landlord to the end that others shall not be disturbed or annoyed;
H. The Tenant shall not waste water by tying, wedging or otherwise
fastening open, any faucet;
I. No additional locks or similar devices shall be attached to any door or
window. No keys for any door or window other than those provided by the Landlord
shall be made. If more than two keys for one lock are desired by the Tenant, the
Landlord may provide the same upon payment by the Tenant. Upon termination of
this Lease or of the Tenant's possession, the Tenant shall surrender all keys of
the demised premises and shall make known to the Landlord the explanation of all
combination locks on safes, cabinets, and vaults;
J. The Tenant shall be responsible for protecting the demised premises and
all property located therein and for the safety of all persons therein;
K. If the Tenant desires telegraphic, telephonic, burglar alarm or signal
service, the Landlord will, upon request, direct where and how connections and
all wiring for such service shall be introduced and run. Without such
directions, no boring, cutting or installation of wires or cables is permitted;
L. Shades, draperies or other forms of inside window covering must be of
such shape, color and material as approved by the Landlord;
M. Tenant shall pay, as a late charge in the event any installment of Total
Base Rental, Rent Adjustments, Rent Adjustment Deposits and any other charge
owed by Tenant hereunder is not paid when due, the greater of $100.00 or an
amount equal to five (5%) percent of the amount due for each and every thirty
(30) day period that said amount remains unpaid (but in no event shall the
amount of such late charge exceed an amount based upon the highest legally
permissible rate chargeable at any time by Landlord under the circumstances).
Should Tenant make a partial payment of past due amounts, the amount of such
partial payment shall be applied first to reduce all accrued and unpaid late
charges, in inverse order of their maturity, and then to reduce all other past
due amounts, in inverse order of their maturity;
N. The Tenant shall not overload any floor. Safes, furniture and all large
articles shall be brought through the Building and into the demised premises at
such times and in such manner as the Landlord shall direct and at the Tenant's
sole risk and responsibility. The Tenant shall list all furniture, equipment and
similar articles to be removed from the Building, and the list must be approved
at
-21-
the Office of the Building or by a designated person before building employees
will permit any article to be removed;
O. Unless the Landlord gives advance written consent in each and every
instance, the Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heating device or
air-conditioning apparatus in or about the demised premises, or carry on any
mechanical business therein, or use the demised premises for housing
accommodations or lodging or sleeping purposes, or do any cooking therein or
install or permit the installation of any vending machines, or use any
illumination other than electric light, or use or permit to be brought into the
Building any inflammable oils or fluids such as gasoline, kerosene, naphtha and
benzene, or any explosive or other articles hazardous to persons or property;
P. The Tenant shall not place or allow anything to be against or near the
glass of partitions, doors or windows of the demised premises which may diminish
the light in, or be unsightly from the exterior of the Building, public halls or
corridors;
Q. The Tenant shall not install in the demised premises any equipment which
uses a substantial amount of electricity without the advance written consent of
the Landlord. The Tenant shall ascertain from the Landlord the maximum amount of
electric current which can safely be used in the demised premises, taking into
account the capability of the electric wiring in the Building and the demised
premises and the needs of other tenants in the Building and shall not use more
than such safe capacity. The Landlord's consent to the installation of electric
equipment shall not relieve the Tenant from the obligation not to use more
electricity than such safe capacity;
R. The Tenant may not install carpet padding or carpet by means of a
mastic, glue or cement without Landlord's prior written consent. Such
installation shall be by tackless strip or double-faced tape only;
S. Tenant shall not, without Landlord's prior written consent in each
instance, do any cooking, baking, heating, preparation, serving or selling of
any food or beverages in the premises, or permit the same to occur, except for
coffee service and microwave ovens to service Tenant;
T. If Tenant breaches any covenant or condition of this Section 25, then in
addition to all other liabilities, rights and remedies for breach of any
covenant of this Section 25, the Tenant shall pay to the Landlord all damages
caused by such breach and shall also pay to the Landlord as Additional Rent an
amount equal to any increase in insurance premium or premiums caused by such
breach. The Landlord shall have the right to make and Tenant shall observe, such
reasonable rules and regulations as the Landlord or its agent may from time to
time adopt on such reasonable notice to be given as the Landlord may elect.
Nothing in this lease shall be construed to impose upon the Landlord any duty or
obligation to enforce provisions of this Section 25 or any rules and regulations
hereafter adopted, or the terms, covenants or conditions of any other lease as
against any
-22-
other Tenant, and the Landlord shall not be liable to the Tenant for violation
of the same by any other tenant, its servants, employees, agents, visitors or
licensees.
26. Miscellaneous.
A. No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of rent due shall be deemed to be other than a payment on
account of the amount due and no endorsement or statement on any check or any
letter accompanying any check or payment of rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of rent
or pursue any other remedies available to Landlord. No receipt of money by the
Landlord from the Tenant after the termination of this Lease or after the
service of any notice or after the commencement of any suit, or after final
judgment for possession of the demised premises shall reinstate, continue or
extend the term of this Lease or affect any such notice, demand or suit.
B. No waiver of any default of the Tenant hereunder shall be implied from
any omission by the Landlord to take any action on account of such default and
if such default be repeated, no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. Receipt of rent by Xxxxxxxx, with knowledge of any
breach of this Lease by Tenant or of any default by Tenant in the observance or
performance of any of the conditions or covenants of this Lease, shall not be
deemed to be a waiver of any provision of this Lease.
C. The words "Landlord" and "Tenant" wherever used in the Lease shall be
construed to mean plural where necessary, 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. The term "Tenant" shall include the Tenant's agents, employees,
contractors, officers, invitees, successors and others using the demised
premises with the expressed or implied permission of Xxxxxx.
D. Each provision hereof shall extend to and shall, as the case may
require, bind and inure to the benefit of the Landlord and the Tenant and their
respective heirs, legal representatives, successors and assigns in the event
this Lease has been assigned with the express written consent of the Landlord;
provided, however, this provision shall not be construed to permit any
assignment or subletting by tenant.
E. The execution of this Lease by Xxxxxx and delivery of same to Landlord
or the Landlord's Agent does not constitute a reservation of or option for the
premises or an agreement to enter into a Lease. This Lease shall become
effective only if and when Landlord executes and delivers same to Tenant;
provided, however, the execution and delivery by Tenant of this Lease to
Landlord or the Landlord's Agent shall constitute an irrevocable offer by Tenant
to lease the premises on the terms and conditions herein contained, which offer
may not be
-23-
withdrawn or revoked for 30 days after such execution and delivery. If Tenant is
a corporation, partnership, association or any other entity, it shall deliver to
Landlord, concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors or other governing person or body
authorizing execution and delivery of this Lease and the performance by Tenant
of its obligations hereunder and the authority of the party executing the lease
as having been duly authorized to so do.
F. All amounts (unless otherwise provided herein, and other than the Total
Base Rent and Rent Adjustment, which shall be due as hereinbefore provided) owed
by the Tenant to the Landlord hereunder shall be deemed additional rent and be
paid within ten (10) days from the date the Landlord renders statements of
account therefor. All such amounts (including Total Base Rent and Rent
Adjustment) shall bear interest from the date due until the date paid at the
rate of two (2%) percent above the prime rate of interest published by the First
National Bank of Chicago on the date that any payment is due, or at the maximum
legal rate of interest, allowed by law, if such maximum legal rate is applicable
and lower. Whenever rent is referred to in this Lease, it shall include (but not
by way of exclusion) Total Base Rent, Rent Adjustment and Additional Rent.
G. All riders and exhibits attached to this Lease referred to herein are
hereby made a part of this Lease as though inserted in this Lease.
H. The headings of sections are for convenience only and do not limit or
construe the contents of the sections.
I. If the Tenant shall occupy the premises prior to the beginning of the
term of this Lease with the Landlord's consent, all the provisions of this Lease
shall be in full force and effect as soon as the Tenant occupies the premises.
J. Should any mortgage, leasehold or otherwise, require a modification or
modifications of this Lease, which modification or modifications will not bring
about any increased cost or expense to Tenant or in any other way substantially
change the rights and obligations of Tenant hereunder, then and in such event,
Xxxxxx agrees that this Lease may be so modified.
K. The Tenant represents that the Tenant has dealt directly with and only
with Agent and the Cooperating Broker listed in Section 1 hereof, if any, as
broker in connection with this Lease and that insofar as the Tenant knows no
other broker negotiated this Lease or is entitled to any commission in
connection therewith. Tenant indemnifies and holds Landlord, its beneficiaries,
Owner and Owner's partners and their respective agents and employees harmless
from all claims of any other broker or brokers in connection with this Lease.
L. Tenant shall at any time and from time to time upon not less than ten
(10) days prior written request from Landlord execute, acknowledge and deliver
to Landlord, in form reasonably satisfactory to Landlord and/or Xxxxxxxx's
mortgagee, a written statement certifying (if true) that Xxxxxx has accepted the
premises, that this Lease is unmodified and in full force and effect (or if
there have been
-24-
modifications, that the came is in full force and effect as modified and stating
the modifications), that the Landlord is not in default hereunder, the date to
which the rental and other charges have been paid in advance, if any, and such
other accurate certification as may reasonably be requested by Landlord or
Landlord's mortgagee, and agreeing to give copies to any mortgagee of Landlord
of all notices by Tenant to Landlord. It is intended that any such statement
delivered pursuant to this subsection may be relied upon by any prospective
purchaser or mortgagee of the premises and their respective successors and
assigns.
M. The Landlord's or Owner's title is and always shall be paramount to the
title of the Tenant, and nothing herein contained shall empower the Tenant to do
any act which can, shall or may encumber such title.
N. The laws of the State of Illinois shall govern the validity, performance
and enforcement of this Lease.
O. If any term, covenant or condition of this Lease or application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term, covenant
or condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
P. Tenant warrants and represents that it has full power and authority to
execute this Lease. In the event Tenant is a general partnership or consists of
two or more individuals, all present and future partners or individuals, as
applicable, shall be jointly and severally liable hereunder.
Q. Landlord has no obligation pursuant to this Lease except as expressly
provided for herein. Xxxxxxxx's liability hereunder shall cease upon the
transfer of Landlord's interest in this Lease, except for Xxxxxxxx's prior gross
negligence.
R. This Lease sets forth all the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant, concerning the
demised premises and there are no covenants, promises, agreements, conditions,
or understandings, either oral or written, between them other than herein set
forth, except as herein otherwise provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by them.
S. Notices hereunder shall be in writing and shall be deemed given when
received if:
(i) Served by Landlord upon Tenant by leaving a notice at the premises
or forwarding through certified or registered mail, postage prepaid, to
Tenant at the premises.
-25-
(ii) Served by Tenant upon Landlord when addressed to Landlord and
served by forwarding through certified or registered mail, postage prepaid,
to Landlord's agent at the address set forth in Section 1 or to such other
address and such other parties as notified by Landlord.
T. This Lease does not grant any rights to light or air over or about the
real property of Landlord. Landlord specifically excepts and reserves to itself
the use of any roofs, the exterior portions of the Project, all rights to and
the land and improvements below the improved floor level of the Project, to the
improvements and air rights above the Project and to the improvements and air
rights located outside the demising walls of the Project and to such areas
within the Project required for installation of utility lines and other
installations required to serve any occupants of the Project and to maintain and
repair same, and no rights with respect thereto are conferred upon Tenant,
unless otherwise specifically provided herein.
U. The preparation of this Lease has been a joint effort of the parties
hereto and the resulting documents shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the
other.
27. Quiet Enjoyment. Subject to the provisions of this Lease, Landlord
covenants that Tenant, on paying the rent and performing the covenants of this
Lease on its part to be performed, shall and may peaceably have, hold and enjoy
the premises for the Term.
28. Agency. This Lease is executed by Xxxxxxx & Xxxxxxxxxx Realty Advisors,
Inc., acting solely as the duly authorized agent for the Teachers' Retirement
System of the State of Illinois, and all the terms, provisions, stipulations,
covenants and conditions to be performed by Xxxxxxxx are undertaken solely as
said duly authorized agent, and not individually, and all statements herein made
by Landlord except for its authority to act as agent are made on information and
belief and are to be construed accordingly. No personal liability shall be
asserted or be enforceable against Xxxxxxx & Xxxxxxxxxx Realty Advisors, Inc. or
any of its agents, employees or shareholders by reason of any of the terms,
provisions, stipulations, covenants and/or statements contained in this
instrument.
29. Renewal Option.
X. Xxxxxx shall have an option (hereinafter referred to as the "Renewal
Option") to renew the original Term for all of the premises then covered by this
Lease as of the expiration date of the original Term, for an additional period
of five (5) years (hereinafter referred to as the "Renewal Term") commencing on
August 1, 1994 upon the following terms and conditions:
(1) Tenant gives Landlord written notice of its exercise of the
Renewal Option on or before February 1, 1994;
(2) Tenant is not in default under this Lease either on the date
Tenant delivers the notice required under (1) above or on the expiration
date of the original Term; and
-26-
(3) All of the terms and provisions of this Lease (except this Section
29) shall be applicable to the Renewal Term, except that Monthly Base
Rental for the Renewal Term shall be equal to the Fair Market Rental Value
of the premises as reasonably determined by Landlord. All Rent for the
Renewal Term shall be subject to immediate adjustment pursuant to Section 4
for each Calendar Year thereafter, utilizing, in lieu of the Tax Base and
Expense Base for purposes of Subparagraph 4B, a Revised Tax Base
(hereinafter referred to as the "Revised Tax Stop") and a Revised Expense
Base (hereinafter referred to as the "Revised Expense Stop") to be
determined by Landlord. If Tenant disagrees with Xxxxxxxx's determination
of the Monthly Base Rent to be payable under this Lease for the Renewal
Term and notifies Landlord in writing on or before February 28, 1994 (said
date is hereinafter referred to as the "Rental Agreement Date"), then the
Fair Rental Value of the premises shall be determined by appraisal as
hereinafter set forth, provided, however, that the Monthly Base Rental for
the Renewal Term shall in no event be less than the escalated annual
Monthly Base Rental plus rent adjustments payable by Tenant under this
Lease for the last year of the original Term. Within fifteen (15) days
after the Rental Agreement Date, Landlord and Tenant shall institute an
appraisal procedure to determine the Fair Rental Value of the premises by
jointly nominating and appointing one appraiser who shall forthwith make a
determination of the Fair Rental Value of the premises. If Landlord and
Xxxxxx fail to jointly agree on the nomination and appointment of one
appraiser within said 15-day period, each party shall then each nominate
and appoint one appraiser within thirty (30) days after the Rental
Agreement Date and give notice of such appointment to the other party. Upon
the appointment of the two appraisers as aforesaid, the two appraisers so
appointed shall forthwith jointly make a determination of the Fair Rental
Value of the premises. If either party fails to appoint an appraiser within
said 30-day period, the appraiser appointed by the other party shall
forthwith make the determination of the Fair Rental Value of the premises.
If the two appraisers are unable to agree upon a determination of the Fair
Rental Value of the premises within thirty (30) days after the appointment
of the second appraiser, the two appraisers shall jointly nominate and
appoint a third appraiser within fifteen (15) days after the expiration of
said 30-day period and give written notice of such appointment to both
parties. In the event the two appraisers fail to appoint such third
appraiser within said 15-day period, either party may thereafter apply to
the United States District Court for the Northern District of Illinois for
the appointment of such third appraiser. The third appraiser shall
forthwith make a determination of the Fair Rental Value of the premises. In
the event the three appraisers are unable to agree upon a determination of
the Fair Rental Value of the premises within thirty (30) days after the
appointment of the third appraiser, then the Fair Rental Value of the
premises shall be an amount equal to the average of the three values
contained in the respective written appraisals submitted by the appraisers.
The appraisers shall make their determination in writing and give notice
thereof to both parties. The
-27-
Fair Rental Value of the premises shall be the rent (including rental
escalations and rent concessions) which the premises would generate for the
period of the Renewal Term in a competitive and open market lease
transaction under all conditions requisite to a fair lease and assuming
that (i) the landlord and the tenant are each acting voluntarily, prudently
and knowledgeably, (ii) the landlord and the tenant are each typically
motivated and are acting without malice, (iii) the landlord and the tenant
are each well informed or well advised and each acting in what it considers
its own best interest, and (iv) a reasonable time is allowed for exposure
in the open market. Each appraiser shall afford both parties a hearing and
the right to submit evidence, with the privilege of cross-examination in
connection with its determination of the Fair Rental Value of the premises.
In the event any appraiser appointed as aforesaid shall die or become
unable or unwilling to act before completion of the appraisal, such
appraiser's successor shall be appointed in the same manner as provided
above. Any appraiser appointed hereunder shall (x) be independent of both
parties (and of all persons and entities with interest in either party);
(y) have not less than five (5) years' experience in the appraisal of real
property; and (z) hold the professional designation M.A.I., or if the
M.A.I. ceases to exist, a comparable designation from an equivalent
professional appraiser organization. All appraisal fees and expenses shall
be borne equally by the parties.
X. Xxxxxx agrees to accept the premises to be covered by this Lease during
the Renewal Term in an "as is" physical condition and Tenant shall not be
entitled to receive any allowance, credit or payment from Landlord for the
improvement thereof.
C. In the event Tenant exercises the Renewal Option herein set forth,
Landlord and Tenant shall mutually execute and deliver an amendment to this
Lease reflecting the renewal of the Term on the terms herein provided, which
amendment shall be executed and delivered within fifteen (15) days after the
determination of the Monthly Base Rent to be applicable to the Renewal Term as
hereinabove provided.
D. The Renewal Option herein granted shall automatically terminate upon the
earliest to occur of (i) the expiration or termination of this Lease, (ii) the
termination of Tenant's right to possession of the premises, (iii) the
assignment (or subletting with respect to any portion so sublet) by Tenant of
its interest in this Lease except as set forth and permitted in Section 16
hereof, or (iv) the failure of Tenant to timely or properly exercise the Renewal
Option.
-28-
IN WITNESS WHEREOF, this Instrument has been duly executed by the parties
hereto, as of the day and year first above written.
LANDLORD: TEACHERS' RETIREMENT SYSTEM OF THE STATE OF
ILLINOIS
By: XXXXXXX & XXXXXXXXXX REALTY ADVISORS, INC.,
an Illinois corporation
By: Signature
---------------------------------
Its: President
TENANT: VIDEO BROADCASTING CORPORATION, a Delaware
corporation
ATTEST:
Signature By: X. Xxxxxx XxXxxxxxxx
---------------------------- ---------------------------------
Its: General Manager/Chicago Its: Chief Financial Officer
-29-
EXHIBIT A
POTENTIAL TENANT PLAN
TENANT MEDIA LINK R.S.F. 1317 DATE 5.26.89
VIDEO BROADCASTING CORP
[Level 20 floor plan diagram]
EXHIBIT "B"
541 FAIRBANKS
TENANT WORK AGREEMENT
Landlord: TEACHERS' RETIREMENT SYSTEM OF THE STATE OF ILLINOIS
Tenant: VIDEO BROADCASTING CORPORATION, a Delaware corporation
Premises: Suite 2010
Building: 000 X. Xxxxxxxxx
Xxxxxxx, Xxxxxxxx
Landlord and Tenant have executed, or are executing simultaneously with
this Tenant Work Agreement, a Lease pertaining to Premises. This Agreement is
ancillary to the Lease.
In consideration of the mutual covenants hereinafter contained, Landlord
and Xxxxxx agree as follows:
I. TENANT'S WORK
1.1. Landlord agrees to cause the completion of the work necessary to
construct improvements to the Premises in accordance with the Tenant
Construction Plans (said work is hereinafter referred to as the "Tenant's Work")
and to pay THIRTY-TWO THOUSAND NINE HUNDRED TWENTY-FIVE AND NO/100 ($32,925.00)
DOLLARS (hereinafter referred to as the "Landlord's Contribution") of the cost
of the Tenant's Work and and to pay for the cost of the initial space plan in
connection therewith. Tenant shall pay for all necessary architectural,
mechanical (including heating, ventilating and air conditioning), electrical and
plumbing plans, drawings and specifications (hereinafter collectively referred
to as "Tenant Construction Plans") pertaining to the Tenant's Work. Tenant shall
deliver to Landlord the following Tenant Construction Plans as applicable
prepared by Xxxxxxx & Xxxx, architects (hereinafter referred to as the
"Consultants") on or before June 15, 1989 (hereinafter referred to as the "Plans
Due Date").
A. Architectural/Engineering Plans with elevation, section and detail.
B. Reflected Ceiling Plans.
C. Power and Signal Plans.
D. Finish Plans.
1.2. All Tenant Construction Plans shall be prepared by the Consultants and
shall comply with all applicable governmental requirements and shall enable
Landlord to obtain any necessary building permits without revision. The Tenant
Construction Plans are subject to Landlord's approval, which shall not be
unreasonably withheld.
1.3. All costs of the Tenant's Work in excess of the Landlord's
Contribution shall be paid by the Tenant. Prior to commencing any Tenant's Work,
Landlord shall submit to Tenant for Xxxxxx's approval a written good faith
estimate of the cost of Xxxxxx's Work (hereinafter referred to as the
"Estimate"). Landlord shall not be obligated to proceed with Tenant's Work until
the Estimate is approved in writing by Xxxxxx and forty (40%) percent of the
cost set forth in the Estimate in excess of the Landlord's Contribution is paid
to Landlord pursuant to Paragraph 1.5, below. Should Tenant not approve any
Estimate within five (5) days of delivery thereof by Landlord, Tenant shall be
deemed to have rejected the Tenant's Work and to have directed the
discontinuance of such Tenant's Work.
1.4. If Tenant shall request any modifications, revisions or changes to the
Tenant's Work at any time, it shall follow the same procedure herein prescribed
for the initiation, approval and commencement of the Tenant's Work.
1.5. Tenant shall pay forty (40%) percent of the cost of Tenant's Work
payable by Tenant prior to commencement of any such work and shall pay to
Landlord within ten (10) days of being billed therefor, all such additional
costs and charges for Xxxxxx's Work payable by Tenant hereunder set forth in
such xxxxxxxx, which xxxxxxxx shall cover the cost of such work performed to the
date thereof. Landlord shall have, in connection with such xxxxxxxx, all of the
rights and remedies granted under the Lease in connection with the enforcement
of the collection of rents owing to Landlord thereunder.
II. TENANT'S DELAYS
Tenant's obligation to pay rent under the Lease shall not commence until
Landlord shall have substantially completed the Tenant's Work and the
commencement of the Term of the Lease shall be delayed until the Tenant's Work
is completed; provided, however, if Landlord shall be delayed in substantially
completing the Premises as a result of any or all of the following, the
commencement of the term of the Lease and the payment of rent thereunder shall
not be affected or deferred on account of such delay:
X. Xxxxxx's failure to furnish promptly information concerning Tenant's
requirements to Consultants or the delivery of any Tenant Construction Plans
after the Plans Due Date; or
B. Tenant's failure to approve the Estimate and pay the applicable portion
of the costs of the Tenant's Work within the applicable time set forth in
Article I hereof; or
C. Any change to the Tenant's Work; or
D. The performance or completion by Xxxxxx, or any person, firm or
corporation employed by Tenant, of any work on or about the Premises; or
E. Any other act or omission by Tenant or its agents;
III. TENANT'S ACCESS TO PREMISES
3.1. Landlord, in its sole discretion, may permit Tenant and Xxxxxx's
agents or independent contractors to enter the Premises prior to the
Commencement
-2-
Date specified in the Lease in order that Tenant may do other work or
alterations as may be required by Tenant to make the Premises ready for Tenant's
use and occupancy. Such permission must be in writing. If Landlord permits such
prior entry, then such license shall be subject to the condition that Tenant and
Xxxxxx's agents, contractors, workmen, mechanics, suppliers and invitees shall
work in harmony and not interfere with Landlord and its agents and contractors
in doing its work in the demised premises or in the above building or with other
tenants and occupants of the above building. If at any time such entry or
occupancy shall cause or threaten to cause such disharmony or interference,
Landlord, in its sole discretion, shall have the right to withdraw and cancel
such license upon twenty-four (24) hours written notice to Tenant. Tenant agrees
that any such entry into and occupancy of the Premises shall be deemed to be
under all of the terms, covenants, conditions and provisions of the Lease,
except as to the covenant to pay rent. Tenant further agrees that to the extent
permitted by law, Landlord and its principals shall not be liable in any way for
any injury or death to any person or persons, loss or damage to any of Tenant's
work and installations made in the Premises or loss or damage to property placed
therein prior to the commencement of the term of the Lease, the same being at
Tenant's sole risk.
3.2. In addition to any other conditions or limitations on such license to
enter or occupy the Premises prior to the said occupancy date, Tenant expressly
agrees that none of its agents, contractors, workmen, mechanics, suppliers or
invitees shall enter the demised premises prior to such occupancy date unless
and until each of them shall furnish Landlord with satisfactory evidence of
insurance coverage, financial responsibility and appropriate written releases of
mechanics' lien claims.
IV. MISCELLANEOUS
4.1. The Tenant's Work shall be done by Landlord, or its designees,
contractors or subcontractors, in accordance with the terms, conditions and
provisions herein contained in a good and workmanlike manner using new
materials.
4.2. Except as herein expressly set forth, Landlord has no agreement with
Tenant and has no obligation to do any other work with respect to the Premises.
Any other work in the Premises which may be permitted by Landlord pursuant to
the terms and conditions of the Lease shall be done at Tenant's sole cost and
expense and in accordance with the terms and provisions herein set forth
pertaining to Tenant's Work and such additional requirements as Landlord deems
necessary or desirable.
4.3. If the Tenant Construction Plans require the construction and
installation of more fire hose cabinets than the number regularly provided by
Landlord in the core of the Building in which the Premises are located, Xxxxxx
agrees to pay all costs and expenses arising from the construction and
installation of such additional fire hose cabinets.
4.4. Under no circumstances shall the rent otherwise payable under the
Lease xxxxx in whole or in part because of any delay, expense or cost arising or
-3-
incurred in connection with any modification, revision or change made by Tenant
at any time and from time to time to any or all of the Tenant's Work.
4.5. Time is of the essence under this Agreement.
4.6. Any person signing this Agreement on behalf of the Landlord and Tenant
warrants and represents he has authority to do so.
4.7. This Tenant Work Agreement shall not be deemed applicable to any
additional office space added to the original Premises at any time or from time
to time, whether by any options under the Lease or otherwise, or to any portion
of the original Premises or any additions thereto in the event of a renewal or
extension of the original term of this Lease, whether by any options under the
Lease or otherwise, unless expressly so provided in the Lease or any amendment
or supplement thereto.
4.8. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
4.9. This Agreement is executed by Xxxxxxx & Xxxxxxxxxx Realty Advisors,
Inc., acting solely as the duly authorized agent for the Teachers' Retirement
System of the State of Illinois, and all the terms, provisions, stipulations,
covenants and conditions to be performed by Landlord are undertaken solely as
said duly authorized agent, and not individually, and all statements herein made
by Landlord except for its authority to act as agent are made on information and
belief and are to be construed accordingly. No personal liability shall be
asserted or be enforceable against Xxxxxxx & Xxxxxxxxxx Realty Advisors, Inc. or
any of its agents, employees or shareholders by reason of any of the terms,
provisions, stipulations, covenants and/or statements contained in this
instrument.
LANDLORD: TEACHERS' RETIREMENT SYSTEM OF THE STATE OF
ILLINOIS
By: XXXXXXX & XXXXXXXXXX REALTY ADVISORS,
INC., an Illinois corporation
By: Signature
-------------------------------
Its: President
TENANT: VIDEO BROADCASTING CORPORATION, a Delaware
corporation
ATTEST:
By: /s/ X. Xxxxxx XxXxxxxxxx
------------------------- -------------------------------
Its: Its: Chief Financial Officer
-4-
