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EXHIBIT 10.16
INDUSTRIAL SPACE LEASE
THIS LEASE, made and entered into in Xxxx Ridge, Illinois this ____ day of
January, 1996 by and between BOULEVARD BANK, N.A., not personally but solely as
Trustee under a certain Trust Agreement dated April 14, 1986 and known as Trust
Number 8364 (hereinafter referred to as the "Landlord"), and XXXXXXXX MICRO
SCIENCE, INC. (hereinafter referred to as the "Tenant"):
WITNESSETH:
1. Basic Term. This Section 1 contains basic terms of the Lease between
Landlord and Tenant. All other provisions of this Lease are to be read in
accordance with provisions herein contained.
A. Agent Xxxxxx Realty Partners
16 W 000 X. Xxxxxxxx Xxxx, Xxxxx 00
Xxxx Xxxxx, Xxxxxxxx 00000
B. Building 00X000 Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
C. Premises or Demised Approximately 11,200 sq. ft.
Premises depicted on Exhibit "A" attached
hereto
D. Commencement Date March 1, 0000
X. Xxxxxx Xxxxx & Xxxxx Company and
Xxxxx/Xxxxxx Associates
F. Monthly Base Rental $6,000.00/month for months 1-36
$6,366.67/month for months 37-60
G. Expense Stop 1995 Actual
H. Tax Stop 1995 Actual
I. Initial Monthly Rent $ - 0 -
Adjustment Report
J. Security Deposit $6,000.00
K. Tenant's Proportion 25.68%
L. Term Five (5) years
M. Termination Date February 28, 2001
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N. Use Warehouse/Office Laboratory and any
lawful use incident thereto
2. Lease of Premises and Term. Landlord hereby leases to Tenant, and
Tenant accepts the demised premises (hereinafter known as "demised premises" or
"premises"), consisting of approximately 11,200 square feet 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. The Tenant shall pay as Base Rent to Agent at the address as set
forth in Section 1 hereof or to such other person or at such other place as
Landlord may direct in writing, the Monthly Base Rental set forth in Section 1
hereof in advance on or before the first day of each month of the Term. 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 25D hereof, from the
sixth (6th) day after the date due until paid.
4. Base Rent Adjustment. In addition to the Base Rent, the Tenant shall
pay, as additional rent, the Rent Adjustment described in this Section 4
without set off or deduction to the Agent.
A. For the purpose 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 and repairing the Building, the
land under the Building, appurtenances and personal property used in
conjunction therewith including, without limitation, Landlord's obligations
under Section 8.
Expenses shall not include the following:
(a) all costs and expenditures for which Landlord receives
reimbursement other than by means of additional rent pursuant to the
leases of the Building;
(b) interest and principal payments on mortgage or other loans and
rental on any ground lease;
(c) all costs (if any) relating to activities for the solicitation
and execution of this or any other lease of space in the Building,
including but not
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limited to tenant allowances, space planning fees, legal fees for
preparing leases and amendments to leases, rent payable with respect to
any leasing office, advertising costs and real estate brokerage and
leasing commissions;
(d) salaries, and bonuses paid to executive personnel,
officers and partners of Landlord;
(e) all charges for depreciation;
(f) fines or penalties incurred due to non-compliance as of
the date hereof by Landlord or the Building or premises (other
than those aspects of the Building or premises constructed by
Tenant, and other than operations or activities of the Tenant at
the premises) with any law, governmental rule or regulation or
directive of any government authority; and
(g) property management fees in excess of four percent (4%)
of gross receipts.
The costs of capital improvements shall be includable in the
Expenses to the extent such costs are directly attributable to a
reduction in Expenses and provided that the cost of such capital
improvements shall be amortized by Landlord in accordance with the
applicable provisions of the Internal Revenue Code and regulations
promulgated in connection therewith. The costs of capital
additions shall not be includable in the Expenses. As used
herein, capital additions means expansion or addition to the
Building.
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 utilizing generally
accepted accounting principles to determine the amount of Expenses
which would have been paid or incurred by Landlord had the
Building been 95% occupied and the amounts so determined shall be
the amount of Expenses attributable to such year.
(iii) The term "Rent Adjustments" shall mean all amounts owed by Tenant as
additional rent pursuant to this Section 4.
(iv) The term "Rent Adjustment Deposit" shall mean an amount equal to
Landlord's good faith estimate of Rent Adjustments due for any Calendar Year.
(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, which may now or hereafter be assessed against the
Project or any portion thereof in any calendar year even though real estate
taxes shall be paid or payable in the year following that for which they are
assessed. In case of special taxes or assessments which may be payable in
installments, only the amount of each installment and interest paid thereon
during a calendar year shall be included in Taxes for that
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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 and not imposed on tenant improvements in locations other than the
premises. Taxes shall 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 by
Tenant to Landlord. If the Building is not assessed as fully improved for any
calendar year or part thereof, Landlord may make an adjustment to the amount of
Taxes which would have been assessed if the Building had been assessed as fully
improved, and the adjustment to the amount of Taxes for such calendar year to
reflect the amount of Taxes which would have been assessed if the Building had
been fully leased and occupied by tenants during such calendar year, and the
amount of any such adjustment shall be included in the amount of Taxes for such
calendar year.
(vi) The term "Project" shall mean the Building and the land (the "Land")
on which the Building is situated, and which is legally described on Exhibit
"B".
B. Tenant shall pay to the Landlord as additional rent the Tenant's
Proportion of the amount by which the Expenses and Taxes, respectively,
attributable to each calendar year of the Term exceed Tenant's Proportion of
the respective Expenses Stop and the Tax Stop. The amount of taxes
attributable to a year shall be the amount payable for such year, even though
the taxes for such calendar year relate to the prior calendar year.
C. Within one hundred twenty (120) days after the expiration of each
calendar year, Landlord will furnish Tenant a statement ("Adjustment
Statement") showing the following:
(i) Expenses and Taxes for Calendar Year last ended and the amount of
Expenses and Taxes payable by Tenant for such calendar year;
(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.
D. Within thirty (30) days after Tenant's receipt of the 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 (1/12th) of
the Rent Adjustment Deposit for the current Calendar Year, to Landlord
monthly on the first day of each month of such Calendar Year.
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Commencing on the first day of the first month after Tenant's receipt of
each Adjustment Statement, and on the first day of each month thereafter
until Tenant receives a more current Adjustment Statement, Tenant shall pay
to Landlord one-twelfth (1/12th) 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
expiration of the Term.
E. Tenant'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 commingled and no interest shall be paid to
Tenant thereon. If the Rent Adjustment Deposit paid by Tenant for any Calendar
Year 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 to the next succeeding Calendar Year, except that if any such
excess relates to the last Calendar Year of the Term, then, provided that no
default of Tenant exists hereunder, Landlord shall refund such excess to Tenant
within thirty (3) days after determination of the amount of such excess in
accordance with the provisions of this Lease.
F. 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.
G. 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. Utilities. Tenant shall pay directly to the appropriate supplier, all
costs of all natural gas, electricity, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the premises. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services, and Tenant
shall pay such share to Landlord within fifteen (15) days after receipt of
Landlord's written statement. Tenant shall have the right to exercise
Landlord's records with regard to such metered utilities and services.
Landlord shall not in any way 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.
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6. Condition of Premises. The Tenant's taking possession of the premises
shall be deemed to be Tenant's acceptance of the demised premises in the order
and condition as then exists, except for latent defects and 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 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.
8. Care and Maintenance. Subject to the provisions of Sections 13 and 14
hereof, Landlord shall keep and maintain the roof and structural members of the
Building and the parking lot, sidewalk, landscaping and all other areas of the
Building used or available for use by all tenants of the Building in good order
and repair, except for loss by fire or other casualty. 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 and which
service the premises), with materials equal in quality and class to the
original materials damaged or broken, with 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 reasonably acceptable to Landlord. If Tenant does not promptly make
such arrangements, Landlord may, but need not, make such repairs and
replacements and one hundred ten percent (110%) of Landlord's cost for such
repairs and replacements shall be deemed Additional Rent reserved under this
Lease due and payable forthwith. Tenant shall obtain and maintain, at its sole
expense, a maintenance contract (in form and with a contractor reasonably
acceptable to Landlord providing for inspection and necessary repairs of the
heating, ventilating and air conditioning systems at least once each calendar
quarter.
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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. Notwithstanding the foregoing, Tenant may install and operate in and
about the Premises such trade fixtures, equipment, machinery and appliances as
it shall consider necessary or desirable for the conduct of its business,
without Landlord's consent, and shall retain ownership of and shall have the
right to remove from the premises any such trade fixtures upon expiration or
termination of this Lease, provided Tenant is not in default under the Lease
and Tenant restores or repairs any damage to the premises resulting from such
removal. Notwithstanding anything contained in this paragraph 9, Landlord's
consent shall not be unreasonably withheld with respect to non-structural
alterations with a cost of $15,000.00 or less. Unless otherwise agreed by
Landlord and Tenant 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.
In the event Landlord permits the alterations or additions to be
completed by Tenant'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. Landlord 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 of 12% of the cost of the work 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. Unless caused by the negligence
or willful misconduct of Landlord or its agents, employees or invitees. 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
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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 the time of giving its consent to any
additions, decorations, fixtures, hardware, non-trade fixtures and all
improvements, at Tenant's sole cost, to remove same, and if at the end of the
Lease term 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 upon reasonable prior written notice, except in case of
emergency, 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. Landlord shall conduct such
work in a manner not to interfere unreasonably with Tenant's business at the
Premises. Landlord or Landlord's agents shall have the right to enter upon the
premises, to inspect the same and to make such decorations, repairs,
alterations, improvements, or additions to the premises or the Building as the
Landlord may deem necessary or desirable upon 24 hours' notice (except in case
of emergency), 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 Section 13) 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, 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.
11. Insurance. Tenant shall carry insurance during the entire Term hereof
insuring Tenant, 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 than $2,000,000 for combined single limit personal injury and property
damage liability per occurrence. And insuring as additional 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
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and in companies satisfactory to Landlord, and with such increases in limits as
Landlord may from time to time request.
B. Insurance against fire, sprinkler leakage, vandalism, and the
extended coverage perils for the full insurable value of all contents of Tenant
within 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.
C. Tenant shall, prior to the commencement of the Term and during the
Term thirty (30) days' prior to the expiration of the policies of insurance,
furnish to Landlord certificates evidencing such coverage, which certificates
shall state that such insurance coverage may not be changed or canceled 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
Section 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.
13. Untenantability. If the demised premises or in excess of thirty
percent (30%) of the Building are made untenantable by fire or other casualty,
Landlord may elect:
A. To terminate this Lease as of the date of the fire or casualty by
notice to Tenant within sixty (60) days after that date; or
B. Proceed with all due diligence to repair, restore, or rehabilitate
the Building or the demised premises (excluding leasehold improvements paid for
by Tenant) at Landlord's expenses and complete such repair, restoration or
rehabilitation within one hundred twenty (120) days of the date of the casualty,
in which latter event this Lease shall not terminate. [Text missing] period,
tenant shall have the right to terminate this lease by giving written notice to
Landlord, provided, however, that if Landlord substantially completes such
repairs within thirty (30) days of Tenant's notice, Tenant's notice shall become
null and void and the Lease shall remain in full force and effect. The time
within which Landlord shall complete such repair, rebuilding or rehabilitation
shall be extended by reason of strikes, acts of God, unavailability of materials
and such other matters beyond the reasonable control of Landlord.
In the event the Lease is not terminated pursuant to these provisions,
Base 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.
In the event of the termination of this Lease pursuant to this section, Base
Rent shall be apportioned on a per diem basis and paid to the date
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of the fire or other casualty. If less than thirty percent (30%) of the
Building or the demised premises are made untenantable as aforesaid during the
last year of the Term hereof, Landlord shall have the right to terminate this
Lease as of the date of the fire or other casualty by giving written notice
thereof to Tenant within sixty (60) days after the date of fire or other
casualty, in which event the Base Rent shall be apportioned on a per diem basis
and paid to the date of such fire or other casualty.
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 of 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, Tenant's
interest in such award, if any. Nothing contained in this paragraph 14 shall
prohibit Tenant from maintaining a separate cause of action against the
condemning authority for loss of personal property or relocation expenses,
provided that such action does not adversely affect Landlord's recovery against
such condemning authority. 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 at Tenant's option 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 judgement for damages caused by a change of
grade.
15. Waiver of Claims and Indemnity. To the extent permitted by law, and
to the extent not caused by the negligence or willful misconduct of Landlord,
its invitees, employees or agents, 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 Section 14, collectively
referred to as "indemnitees") from, and waives all claims for, damage to person
or property sustained by the Tenant its employees, agents, invitees and
customers 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,
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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 on the Building or of any other person, and
whether such damage be caused or result from 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
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 negligent or willful act of
the Tenant, its 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, Tenant 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
Tenant'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. 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 Landlord's prior written consent, which
consent shall 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, Tenant'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, Landlord shall exercise reason in the
consideration of the granting or denying of consent to a sublease or assignment.
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, that it
shall not be deemed unreasonable
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for Landlord to refuse consent to a sublease or assignment to any subtenant or
assignee which is a governmental agency, to a present tenant in the Building, or
to an entity with whom Landlord or its agents has discussed tenancy within the
Building.
B. The consent by Landlord to any assignment or subletting shall not be
construed as a waiver or release of Tenant from liability for the performance of
all covenants and obligations to be performed by Tenant under this lease, and
Tenant shall remain liable therefor, nor shall the collection or acceptance of
Rent from any assignee, subtenant or occupant constitute a waiver or release of
Tenant from any of its obligations or liabilities under this Lease. Any consent
given pursuant to this Section 16 shall not be construed as relieving Tenant
from the obligation of obtaining Landlord's prior written consent to any
subsequent assignment or subletting.
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 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 hereafter encumbering any portion of the Building, and to
all advances made or hereafter to be made upon the security thereof; provided,
however, Tenant's right to possession during this Lease term shall not be
disturbed provided Tenant pays all rent and performs all obligations imposed
hereunder and is not in default under this Lease. Tenant agrees to execute and
deliver such ground lease instruments reasonably acceptable to Tenant
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.
Tenant 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
Tenant, 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.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then if said Mortgagees notify
Tenant in writing that Mortgagees elect to cure such default said Mortgagees
shall have an additional thirty (30) days after receipt of notice thereof
within which to cure such default or, if such default cannot be cured within
that time, then such additional time as may be necessary, if, within such
thirty (30) days, any Mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure).
Such period of time shall be extended by any period within which such Mortgagee
is prevented from commencing or pursuing such foreclosure proceedings
by reason of Landlord's bankruptcy. Until the time allowed as aforesaid for
said mortgagee to cure such defaults has expired without cure, Tenant shall
have no right to, and shall not,
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terminate this Lease on account of default. This Lease may not be modified or
amended so as to reduce the rent or shorten the term, or so as to adversely
affect in any other respect to any material extent the rights of the Landlord,
nor shall this Lease be cancelled or surrendered, without the prior written
consent, in each instance, of the ground lessor or the mortgagee.
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 upon thirty
(30) days prior written notice to Tenant;
B. To install and maintain a sign or signs on the interior or exterior
of the Building;
C. To decorate, remodel, repair, alter or otherwise prepare the demised
premises for reoccupancy if Tenant vacates the demised premises prior to the
expiration of the Term;
D. To retain at all times pass keys to the demised premises;
E. To exhibit the demised premises to others and to display "For Rent"
signs on the demised premises during the last three months of the Term;
F. 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;
G. To establish and enforce such rules and regulations as Landlord
deems reasonably necessary for the operation of the Building.
H. To enter upon the demised premises upon no less than 24 hours prior
notice, except in cases of emergency and exercise any or all rights herein
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 and without affecting any of the tenant's
obligations hereunder.
I. To sell, assign or transfer this Lease, in which event this Lease
shall remain in full force and effect, subject to the performance by Tenant of
all the terms, covenants and conditions on its part to be performed. In the
event that the assignee or transferee agrees to perform all the terms, covenants
and conditions of Landlord pursuant to this Lease which are to be performed by
Landlord from and after the effective date of such sale, assignment or transfer
of this Lease (as the case may be), then, upon any such sale, assignment, or
transfer other than merely as security, Tenant agrees to look solely to the
assignee or transferee with respect to all
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matters in connection with this Lease and the transferor Landlord shall be
released from any further 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 rent, at 1.50 x the rate payable for the month immediately preceding
said holding over (including increases for Rent Adjustment which Landlord may
reasonably estimate), computed on a per-month basis, for each month or part
thereof (without reduction for any such partial month) that the Tenant remains
in possession, and in addition thereto, Tenant shall pay the Landlord all
direct damages. The provisions of this paragraph do not exclude the Landlord's
rights of re-entry or any other right hereunder in accordance with local laws
and applicable judicial procedures. 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 when due any installment or other payment of
Rent including without limitation Base Rent, Rent Adjustment Deposits or Rent
Adjustments and such failure continues for five (5) days after written notice
thereof to Tenant; (ii) Tenant fails to observe or perform any of the other
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant and fails to cure such default within thirty (30) days after written
notice thereof to Tenant unless such default cannot be cured within that time,
then such additional time as may be necessary, if within such thirty (30) days,
Tenant has commenced and is diligently pursuing remedies to cure such default,
provided that in no event shall the time to cure such default exceeds sixty (60)
days; (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 any
petition is filed or other action taken by an unrelated third party to
reorganize or modify Tenant's debts, or any petition is filed or other action
taken to reorganize or modify Tenant's capital structure or upon the dissolution
of Tenant; [missing text] ninety (90) days after such filing; (v) Tenant is
declared insolvent by law or any assignment of Tenant's property is made for the
benefit of creditors; a receiver is appointed for Tenant or Tenant's property;
(vi) Tenant abandons the premises without the payment of Rent; or (vii) Tenant
shall repeatedly default in the timely payment of Rent or any other charges
required to be paid, or shall repeatedly default in keeping, observing or
performing any other covenant, agreement, condition or provision of this Lease,
whether or not Tenant shall timely cure any such payment or other default.
For the purposes of the foregoing, "repeated default" means the
occurrence of similar defaults three times in any twelve month period.
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B. In the event of any breach of this Lease by Tenant, Landlord at its
option, without 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 Tenant's right of possession of the
premises, and recover all damages to which Landlord is entitled under law,
specifically including, without limitation, all Landlord's reasonable expenses
of reletting (including repairs, alterations, improvements, additions,
decorations, reasonable 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 use reasonable
efforts 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 reasonably
acceptable to Landlord. As used herein, reasonable efforts to relet shall be
satisfied by the employment of a qualified real estate brokerage firm to relet
the premises.
For purposes of such reletting, Landlord is authorized to decorate,
repair, alter and improve the premises to the extent reasonably necessary. If
Landlord despite reasonable efforts fails to relet the premises or if the
premises are relet and a sufficient sum not 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. Tenant agrees that Landlord may file suit to recover any
sums due to Landlord hereunder from time to time and that such suit or recovery
of any amount due Landlord hereunder shall not be any defense to any subsequent
action brought for any amount not theretofore reduced to judgement 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 in
accordance with local laws and applicable judicial procedures, remove Tenant'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 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 risk, cost and expense of the Tenant, and the Landlord shall in no event
be responsible for the value, preservation, or safekeeping thereof. The Tenant
shall pay to the Landlord, upon demand, any and all expenses incurred in such
removal and all storage charges against such property so long as the same shall
be in the Landlord's possession or under the Landlord's control. Any such
property of the 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 xxxx of sale without further payment or credit by the Landlord to the Tenant.
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.
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C. Tenant shall pay upon demand all costs and expenses, including
reasonable attorneys' 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 Tenant or resulting from Tenant'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 written notice to the Tenant.
21. Surrender of Possession. Upon the expiration or other termination of
the Term, Tenant 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. 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
conclusively presumed to have conveyed the same to the Landlord under this
Lease as a xxxx 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. Estoppel Certificate. Each party shall at any time and from time to
time upon not less than ten (10) days prior written request from the other
party execute, acknowledge and deliver to the other party, in form reasonably
satisfactory to the other party and/or mortgagee, a written statement
certifying (if true) that such party has accepted the premises, that this Lease
is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications), that the other party 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
the other party 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.
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
Landlord's title or interest in the Building 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 shall have the right to contest in good faith and with reasonable
diligence the validity of any such lien, and on final determination of the
lien, Tenant covenants and agrees immediately to cause it to be released and
removed of record. In the
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event that Tenant consents to any lien or claim for lien, Tenant shall deliver
to Landlord a bond or other security in form, content and amount reasonably
satisfactory to Landlord within twenty (20) days after the filing of such lien
or claim for lien. If Tenant fails to have such lien or claim for lien
released, Landlord may pay or discharge the same and Tenant shall reimburse
Landlord upon demand for the amount so paid by Landlord together with any fees
or expenses incurred by Landlord in connection therewith.
24. Security Deposit. As additional security for the faithful and prompt
performance of its obligation hereunder, Tenant has concurrently with the
execution of this Lease paid 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 Tenant 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 Tenant.
25. 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 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
judgement 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.
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 Tenant.
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
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written consent of the Landlord; provided, however, this provision shall not be
construed to permit any assignment or subletting by tenant.
E. All amounts (unless otherwise provided herein, and other than the
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 Base Rent and Rent Adjustment)
shall bear interest from the date due until the date paid at the rate of two
percent (2%) 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 Base Rent
Adjustment and Additional Rent. In addition to the foregoing, Tenant shall pay
Landlord as a late charge the sum of $250.00 for each installment of base rent
which is received after the fifth (5th) day of any month of the Term.
F. All riders and exhibits attached to this Lease and referred to
herein are hereby made a part of this Lease as though inserted in this lease.
G. The headings of sections are for convenience only and do not limit
or construe the contents of the sections.
H. 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.
I. The Tenant represents that the Tenant has dealt directly with and
only with Agent and the 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.
Each party indemnifies and holds the other party, its respective 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.
J. 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.
K. The laws of the State of Illinois shall govern the validity,
performance, and enforcement of this Lease.
L. 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.
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M. Tenant warrants and represents that is 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.
N. Landlord has no obligation pursuant to this lease except as
expressly provided for herein. Landlord's liability hereunder shall cease upon
the transfer of Landlord's interest in this Lease.
O. 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.
P. 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.
(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 with a copy to
Xxxxxxx Xxxxxxxxx, Xxxxxxxxx & X'Xxxxx Ltd., 00 X. XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx, 00000.
The address to which any notice shall be given, made or spent to either
party may be changed by written notice given by such party as above provided.
Q. This Lease does not grant any rights to light or air over about the
real property of Landlord. Landlord specifically excepts and reserves to itself
the use of any roofs, the exterior portions of the Building, all rights to and
the land and improvements below the improved floor level of the Building, to the
improvements and air rights above the Building and to the improvements and air
rights located outside the demising walls of the Building and to such areas
within the Building required for installation of utility lines and other
installations required to serve any occupants of the Building and to maintain
and repair same, and no rights with respect thereto are conferred upon Tenant,
unless otherwise specifically provided herein. Notwithstanding the foregoing,
Tenant shall have the non-exclusive right, in common with Landlord and all
others to whom Landlord has or may hereafter grant rights, to use such portions
of the Project which are not leased, or held for lease ("Common Area") of common
benefit to the tenants and occupants of the Project as Landlord deems
appropriate, subject to such reasonable regulations as Landlord may from time to
time impose.
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26. Quite 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.
27. Exculpation Clause. This Lease is executed by BOULEVARD BANK, N.A.,
not personally, but as Trustee as aforesaid, in the exercise of the power and
authority conferred upon and vested in it as Trustee, and under the express
direction of the beneficiaries of the said Trust. It is expressly understood
and agreed that nothing herein shall be construed as creating any liability
whatsoever against said Trustee personally, and in particular, without limiting
the generality of the foregoing, there shall be no personal liability to pay
any indebtedness accruing hereunder or to perform any covenant, either express
or implied, herein contained, or to keep, preserve, or sequester any property
of said Trust, and that all personal liability of said Trustee of every sort,
if any, is hereby expressly waived by said Tenant, and by every person now or
hereafter claiming any right or security hereunder, and that so far as the said
Trustee is concerned, the owner of any indebtedness or liability accruing
hereunder, shall look solely to the assets of said Trust and the proceeds
thereof for the payment thereof.
It is further understood and agreed that said Trustee merely holds the
naked title to the Property herein described and has no control over and under
this Lease and assumes no responsibility for: (A) Management or control of the
Property; (B) The upkeep, inspection, maintenance or repair of the Property;
(C) The collection of rents or the rental of the Property; and (D) The conduct
of any business which is carried on upon the Property.
IN WITNESS WHEREOF, this Instrument has been duly executed by the parties
hereto, as of the day and year first above written.
LANDLORD: BOULEVARD BANK, N.A., not personally, but
solely as Trustee U/T/A dated August 14, 1986
and known as Trust No. 8314
ATTEST:
By: [illegible]
------------------------------- ------------------------------------------
Its: Beneficiary of Trust 8314
TENANT: XXXXXXXX MICRO SCIENCE, INC.
ATTEST:
[illegible] By:
------------------------------- -------------------------------------------
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RIDER TO INDUSTRIAL SPACE LEASE
This Rider dated January _____, 1996, by and between Boulevard Bank, N.A.,
not personally but solely as Trustee under a certain Trust Agreement dated
April 14, 1986 and known as Trust Number 8364 ("Landlord") and Xxxxxxxx Micro
Science, Inc. ("Tenant").
1. Assignment/Subletting. Notwithstanding anything contained in Section
16 of the Lease, Tenant, without Landlord's consent, may assign this Lease or
sublet the premises, or any portion thereof, to its patient, any of its
subsidiaries or to any other entity affiliated with Tenant or its parent, or to
a corporation or other entity resulting from any reorganization or merger to
which Tenant, its parent or any of its subsidiaries or affiliates is a party.
In the event that Tenant assigns this Lease pursuant to the terms herein,
Tenant shall be released from all of its covenants and obligations arising
under this Lease, without the further act or agreement by Landlord, if the
assignee has a net worth of at least $1,000,000.00 at the time of such
assignment as confirmed by an independent certified public accountant based on
current financial statements and such assignee accepts and assumes all of the
Tenant's obligation under this Lease.
2. Right to Extend. Tenant is hereby granted the right to extend this
Lease for a term of five (5) years commencing March 1, 2001 and terminating
February 28, 2006 (the "Extended Term") subject to the following conditions:
(a) Tenant serves written notice on Landlord of its intent to extend the term
not less than two hundred ten (210) days prior to the expiration of the
original term (the "Extension Notice"); (b) Tenant is not in default under the
Lease either at the time it serves the said notice or at the commencement of
the Extended Term; (c) the base rental payable by Tenant during the Extended
Term shall be the "prevailing market rental rate" as hereinafter defined and
(d) during the Extended Term, all terms and conditions of the Lease shall
remain in effect and unchanged except for the Base Rental pursuant to this
Section. As used herein, the "prevailing market rental rate" shall mean and
refer to the rent at which Landlord is then marketing space in the Building,
comparable to the premises. If there is no comparable space being marketed in
the Building, Landlord and Tenant shall attempt to agree upon the prevailing
market rental rate within thirty (30) days of the date of receipt by Landlord
of the Extension Notice. If Landlord and Tenant are unable to agree upon the
prevailing market rate within said thirty (30) day period, Landlord and Tenant
shall each select a real estate broker or appraiser or other qualified person
experienced in determining market rental rates. The brokers or appraisers
shall make their determination in writing within forty-five (45) days of the
date of the receipt by Landlord of the Extension Notice. If the valuations
determined by the said brokers or appraisers are within ten (10%) percent of
one another, the average of the two valuations shall be the prevailing market
rental rate and as such, shall be the Base Rent payable of Tenant during the
Extended Term. If the valuations are not within ten (10%) percent of one
another, the two brokers or appraisers shall select a third qualified person.
The third qualified person shall make his or her determination in writing
within thirty (30) days of his or her selection. In such event, the prevailing
market rate (and the Base Rental payable by Tenant during the Extended Term)
shall be defined as the average of the two closest (in terms of dollars) of the
three valuations. Each party shall be responsible for paying for its own
valuation pursuant to this section; provided, however, that the cost of the
third appraiser or broker shall be shared equally by Landlord and Tenant.
Notwithstanding anything contained herein, in no event shall the
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prevailing market rental rate be less than the annual base rental payable by
Tenant during the final twelve (12) months.
3. Leasehold Improvements. Landlord shall use all reasonable efforts
substantially to complete within thirty (30) days of the date hereof the
leasehold improvements for which it is responsible (the "Leasehold
Improvements"). The Leasehold Improvements shall consist of the matters set
forth on Exhibit "B" attached hereto and made a part hereof by this reference.
Notwithstanding anything herein contained, if, for any reason, the
Leasehold Improvements are not substantially completed on or before March 1,
1996, the Tenant's obligation to pay rent shall not commence until the day
after the date of substantial completion of the Leasehold Improvements;
provided, however, that if Leasehold Improvements are not substantially
completed as a consequence of the acts or omissions of Tenant, Tenant shall be
obligated to pay Rent commencing on March 1, 1996. If the Landlord's Leasehold
Improvements are not substantially completed on or before March 1, 1996 and
such is not the result of the acts or omissions of Tenant, the Term shall be
extended by the number of days from March 1, 1996 to the date on which the
Leasehold Improvements are substantially completed.
If the Leasehold Improvements are not substantially completed by April 1,
1996 and such is not in consequence of the acts or omissions of Tenant, Tenant
shall have the right to terminate this Lease, without payment or penalty, by
serving written notice to Landlord on or before April 15, 1996.
4. Hazardous Materials.
(a) Tenant agrees that Tenant, its agents contractors, licensees or
invitees shall not handle, manufacture, store or dispose of any flammables,
explosives, radioactive materials, hazardous wastes or materials, toxic wastes
or materials, or other similar substances, petroleum products or derivatives
(collectively 'Hazardous Materials") on, under, or about the premises, without
Landlord's prior written consent (which consent shall not be unreasonably
withheld as long as Tenant demonstrates and documents to Landlord's reasonable
satisfaction (1) that such Hazardous Materials (A) are necessary or useful to
Tenant's business; and (B) will be used, kept in or about the premises; and (2)
that Tenant will give all required notices concerning the presence in or on the
premises or the release of such Hazardous Materials from the Premises) provided
that tenant may handle, store, use or dispose of products containing small
quantities of Hazardous Materials, which products are of a type customarily
found in offices and households (such as aerosol cans containing insecticides,
toner of copies, paints, paint remover, and the like) and provided further that
Tenant shall handle, store, use and dispose of any such Hazardous Materials in a
safe and lawful manner and shall not allow such Hazardous Materials to
contaminate the premises or the environment.
(b) Tenant further agrees that Tenant will not permit any substance
suspected of causing cancer or reproductive toxicity to come into contact with
groundwater under the premises. Any such substance coming into contact with
groundwater shall be considered a Hazardous Materials for purposes of this
Section.
23
(c) (1) Notwithstanding the provisions hereinabove, Tenant may handle,
store, and use Hazardous Materials, limited to the types, amounts, and use
identified in the Hazardous Materials Exhibit attached hereto as Exhibit "C". If
no Hazardous Materials Exhibit is attached to this Lease, then this paragraph
(C) shall be of no force and effect. Tenant hereby certifies to Landlord that
the information provided by Tenant pursuant to this paragraph is true, correct,
and complete. Tenant covenants to comply with the use restrictions shown on the
attached Hazardous Materials Exhibit. Tenant's business and operations, and
more especially its handling, storage, use and disposal of Hazardous Materials
shall at all times comply with all applicable laws pertaining to Hazardous
Materials. Tenant shall secure and abide by all permits necessary for Tenant's
operations on the premises. Tenant shall give or post all notices required by
all applicable laws pertaining to Hazardous Materials. If Tenant shall at any
time fail to comply with this paragraph, Tenant shall immediately notify
Landlord in writing of such noncompliance.
(2) Tenant shall provide Landlord with copies of any Material
Safety Data Sheets (as required by Occupational Safety and Health Act) relating
to any Hazardous Materials to be used, kept, or stored at or on the premises, at
least thirty (30) days prior to the first use, placement, or storage of such
Hazardous Material on the premises. Landlord shall have ten (10) days following
delivery of such Material Safety Data Sheets to approve or forbid, in the
reasonable exercise of its discretion subject to the limitation contained in
Paragraph (C) above, such use, placement, or storage of a Hazardous Material on
the premises.
(3) Tenant shall not store any hazardous waste on the premises for
more than 90 days; "hazardous waste" having the meaning given it by the Resource
Conservation and Recovery Act of 1976, as amended. Tenant shall not install any
underground or above ground storage tanks on the premises. Tenant shall not
dispose of any Hazardous Material in the premises without the prior written
consent of Landlord.
(4) Any increase in the premiums for necessary insurance on the
Building which arises from Tenant's use or storage of Hazardous Materials shall
be solely at Tenant's expense. Tenant shall procure and maintain at its sole
expense such additional insurance as may be necessary to comply with any
requirement of any Federal, State or local governmental agency with
jurisdiction.
(d) If Landlord, in its sole discretion, believes that the premises or
the environment have become contaminated with Hazardous Materials that must be
removed under the laws of the state where the premises is located, in breach of
the provisions of this Lease, Landlord, in addition to its other rights under
this Lease, may enter upon the premises and obtain samples from the premises,
including without limitation the soil and groundwater under the premises, for
the purposes of analyzing the same to determine whether and to what extent the
premises or the environment have become so contaminated. Tenant shall reimburse
Landlord for the costs of any inspection, sampling and analysis that discloses
contamination for which Tenant is liable under the terms of this Lease. Tenant
may not perform any sampling, testing, or drilling to locate any Hazardous
Materials on the premises without Landlord's prior written consent.
24
(e) Without limiting the above, Tenant shall reimburse, defend,
indemnify and hold Landlord harmless from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys fees and
costs, arising out of or in any way connected with the use, manufacture,
storage, or disposal of Hazardous Materials by Tenant, its agents or contractors
on, under or about the premises including, without limitation, the costs of any
required or necessary investigation, repair, cleanup, or detoxification and the
preparation of any closure or other required plans in connection therewith,
whether voluntary or compelled by governmental authority. The indemnity
obligations of Tenant herein contained shall survive any termination of this
Lease. At Landlord's option, Tenant shall perform any required or necessary
investigation, repair, cleanup or detoxification of the premises. In such case,
Landlord shall have the right, in its sole discretion, to approve all plans,
consultants, and cleanup standards. Tenant shall provide Landlord on a timely
basis with (i) copies of all documents, reports, and communications with
governmental authorities; and (ii) notice and an opportunity to attend all
meetings with regulatory authorities. Tenant shall comply with all notice
requirements and Landlord and Tenant agree to cooperate with governmental
authorities seeking access to the premises for purposes of sampling or
inspection. No disturbance of Tenant's use of the premises resulting from
activities conducted pursuant to this paragraph shall constitute an actual or
constructive eviction of Tenant from the premises. In the event that such
cleanup extends beyond the termination of the Lease, Tenant's obligation to pay
Rent shall continue until such cleanup is completed and any certificate of
clearance or similar document has been delivered to Landlord. In no event shall
such period exceed six (6) months beyond the expiration date of the original
term. Rent during such period shall be at the rental applicable during final
twelve (12) months of the original term.
(f) Notwithstanding anything set forth in this Lease, Tenant shall only
be responsible for contamination of Hazardous Materials or any cleanup resulting
directly therefrom, resulting directly from matters occurring or Hazardous
Materials deposited (other than by contractors, agents or representatives
controlled by Landlord) during the Term, and any other period of time during
which Tenant is in actual or constructive occupancy of the premises. Tenant
shall take responsible precautions to prevent the contamination of the premises
with Hazardous Materials by third parties.
(g) It shall not be unreasonable for Landlord to withhold its consent
to any proposed assignment or sublease if (1) the proposed assignee's or
sublessee's anticipated use of the premises involves the generation, storage
use, treatment or disposal of Hazardous Materials; (2) the proposed assignee or
sublease has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such assignee's or
sublessee's actions or use of the property in question; or (3) the proposed
assignee or sublessee is subject to an enforcement order issued by an
governmental authority in connection with the use, disposal or storage or a
Hazardous Material.
(h) In the event of any transfer of Tenant's interest under this Lease
or the termination of this Lease, by lapse of time or otherwise, Tenant shall be
solely responsible for
25
compliance with any and all then effective federal, state or local laws
concerning (1) the physical condition of the premises or Building relating to
Tenant's use of the Premises or (2) the presence of Hazardous or toxic Materials
in or on the premises or Building (for example, the New Jersey Environmental
Cleanup Responsibility Act, the Illinois Responsible Property Transfer Act or
similar applicable state laws), including but not limited to any reporting or
filing requirements imposed by such laws, relating to Tenant's use of the
Premises.
5. Signage. Tenant shall not be permitted to post signage on the exterior
walls or doors or both of the premises, identifying Tenant without the prior
written consent of Landlord, which shall not be unreasonably withheld or
delayed. Any signage approved by Landlord shall be subject to such conditions
as Landlord shall reasonably required. Such conditions shall include, without
limitation, the following: (a) such signage is in conformity with the signage
of the other tenants at the Building; (b) such signage is in compliance with
all applicable governmental requirements and (c) Tenant shall remove such
signage upon the expiration or termination of the Lease and repair any damage
to the premises resulting from the installation or removal of such signage.
6. Parking. The parking spaces shown in Exhibit "D" attached hereto shall
be designated as Tenant's parking spaces during the term of the Lease.
00
XXXXXXXX:
XXXXXXXXX XXXX, X.X., not personally but
solely as Trustee under a certain Trust
Agreement dated April 14, 1986 a/k/a/
Trust Number 8364
By: [illegible]
-------------------------------------
Its: Beneficiary of Trust 8364
-------------------------------
TENANT:
XXXXXXXX MICRO SCIENCE, INC.
By: [illegible]
-------------------------------------
Its:
---------------------------------
February 5, 1996
27
EXHIBIT "A"
-----------
[SITE PLAN]
28
EXHIBIT "B"
-----------
MODIFICATIONS TO SPACE FOR XXXXXXXX MICRO SCIENCE
-------------------------------------------------
[SITE PLAN]
29
EXHIBIT "C"
-----------
(HAZARDOUS MATERIAL EXHIBIT)
