FIFTH AMENDMENT TO LEASE
This Fifth Amendment to Lease (the "Amendment") is made as of this 31st day
of July 1998, by and between Xxxxxx Xxxx Limited Partnership ("Landlord") and
Xxxxx Graphsoft, Inc. ("Tenant"). All capitalized terms used but not defined
herein shall have the meaning ascribed to such terms in the Lease (as hereafter
defined).
RECITALS
WHEREAS, by lease dates January 11, 1993 (as amended by that certain First
Amendment to Lease dated as of March 2, 1993, and as further amended by that
certain Second Amendment to Lease dated as of October 21, 1994, and as further
amended by that certain Third Amendment to Lease dated as of November 15, 1995,
and as further amended by that certain Fourth Amendment to Lease dated as of
October 12, 1997, the "Lease"), Landlord leased to Tenant 7,190 rentable square
feet of space (the "Premises") commonly known as Suite 100 at 00000 Xxx Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx; and
WHEREAS, Tenant desires to extend the term of the Lease, upon the terms and
conditions more specifically hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein set forth,
of Ten Dollars($10.00)cash in hand paid by each party to the other, the receipt
and legal sufficiency of which are hereby acknowledged by each of the under
signed, and for other good and valuable consideration, Landlord and Tenant do
hereby agree as follows:
1. The foregoing recitals, being an integral part hereof and not mere
precatory language, are herein fully incorporated by this reference.
2. Effective as of the date hereof, the term of the Lease (as set forth on
the schedule on page 1 of the Lease) shall be amended to mean the period
commencing on May 1, 1993, and expiring (unless sooner terminated in accordance
with the terms and conditions of the Lease) on July 31, 2000.
3. (a) Commencing with the 6th Lease Year (beginning August 1, 1998),
monthly installments of Base Rent for the Premises shall be increased to Twelve
Thousand, Eight Hundred Eighty Six Dollars and Seventy Nine Cents ($12,886.79)
(b) Commencing with the 7th Lease Year (beginning August 1, 1999),
monthly installments of Base Rent for the Premises shall be increased to
Thirteen Thousand, Two Hundred Seventy Three Dollars and Forty Cents (13,273.40)
4. Rider 5 is deleted, in its entirety, from the Lease.
5. A portion of Section 1(b) of the Lease, from the beginning of Section
1(b) through Section 1(b)(3), inclusive, is hereby amended to read, effective
as of the date hereof, in its entirety as follows:
(b) Additional Rent
(1) Obligation to Pay: Definitions
In addition to paying Base Annual Rent specified in Paragraph (a) hereof,
Tenant shall pay as "Additional Rent" the amounts determined as hereinafter
set forth. The Base Annual Rent (and any installments thereof) and the
Additional Rent are sometimes herein collectively referred to as the
"Rent". In connection with the determination of the Tenant's obligation to
pay Rent, the relevant terms are defined as follows:
(A) [Intentionally Omitted]
(B) CAM Expenses:
"CAM Expenses" means and includes the following:
1. Those expenses incurred or paid on behalf of the Landlord in
respect of the operation, repair and maintenance of the Property, the cost
(except to the extent such cost applies to utilities or services used in
the Premises or in other demised premises, if the cost thereof is billed
directly to Tenant or the tenants of such other demised premises) of
electricity, water, lighting, window cleaning, snow removal service, trash
removal service, security service, insurance (including, but not limited
to, fire, extended coverage, liability, loss of rent, workmen's
compensation, elevator, or any other insurance carried in good faith by
Landlord and applicable to the Building, the Property or any party thereof)
painting, uniforms, customary management fees, supplies, sundries, sales or
use taxes on supplies or services, costs of wages and salaries of all
persons engaged in the operation, maintenance and repair of the Building,
the Property or any part thereof, and so-called fringe benefits, including
Social Security taxes, unemployment insurance taxes, cost for providing
coverage for disability benefits, cost of any pensions, hospitalization,
welfare or retirement plans, or any other similar or like expenses incurred
under the provisions of any collective bargaining agreement, and any other
cost or expense which Landlord pays or incurs to provide benefits for
employees so engaged in the operation, maintenance and repair of the
Building, the Property or any part thereof, the changes of any independent
contractor who, under contract with Landlord or its representatives, does
any of the work of operating, maintaining or repairing of the Building, the
Property or any part thereof, legal and accounting expenses, or any other
expense or charge, whether or not hereinbefore mentioned, which in
accordance with generally accepted accounting and management principles
would be considered as an expense of maintaining, operating, or repairing
the Building, the Property of any part thereof. If any CAM Expense, though
paid in one year, relates to more than one calendar year, at the option of
Landlord, such expense may be proportionately allocated among such related
calendar years.
2. CAM Expenses shall also include the cost, as reasonably
amortized by the Landlord, with interest at the prime rate (as that term is
defined in subparagraph (4) hereof) on the unamortized amount, of any
capital improvements made after completion of initial construction of the
Building which are reasonably intended to reduce CAM Expenses below the
level of CAM Expenses which would otherwise have been incurred without such
capital improvements for the relevant year. For purposes of determining CAM
Expenses for any year, if the entire rentable area of the Building shall
not have been occupied for any part of the year, CAM Expenses shall include
the amount of such expenses that would reasonably have been incurred had
the entire Building been occupied throughout the year.
3. CAM Expenses shall not include franchise or income taxes
imposed on the Landlord, except to the extent hereinbefore provided, nor
the Landlord of any work or service performed in any instance for any
tenant (including the Tenant) at the cost of such tenant. If the Landlord
is not furnishing any particular work or service (the cost of which if
performed by the Landlord would constitute an CAM Expense) to a tenant who
has under taken to perform such work or service in lieu of the performance
thereof by the Landlord, CAM Expenses shall be deemed for the purposes of
this Section to be increased by an amount equal to the additional operating
expense which would reasonably have been incurred during such period by the
Landlord if it had at its own expense furnished such work or service to
such tenant.
4. If Landlord makes any capital improvement during the term of
this Lease in order to comply with safety or any other requirements of any
federal, state or local law or governmental regulation, then the Tenant's
proportionate share of the reasonable annual amortization of the cost of
such improvement, with interest at the prime rate, shall be deemed an CAM
Expense in each of the calendar years during which such amortization
occurs, and the Tenant shall be responsible for said proportionate share of
any such charges. The "prime rate" shall mean the Corporate Base Rate most
recently publicly announced by the First National Bank of Chicago, or
Landlord's then current primary bank as designated to Tenant by notice from
Landlord from time to time, for unsecured 90-day loans to its most credit
worthy customers.
(C) Tenant's Percentage:
"Tenant's Percentage" means the quotient of the rentable
area of the Premises divided by the rentable area of the Building, which is
currently thirty-seven and thirty-six hundredths percent (37.36%). In the
event of any changes in either or both of the rentable area of the Premises
or the rentable area of the Building, the Tenant's Percentage shall be
appropriately modified.
(D) (Intentionally Omitted)
(2) [Intentionally Omitted]
(3) Payment of CAM Expenses
(A) Tenant shall pay to Landlord as Additional Rent, in
addition to the Base Rent required by Paragraph 1(a) hereof, an amount (CAM
Expense Percentage Amount") equal to Tenant's Percentage of the CAM
Expenses incurred by Landlord with respect to each calendar year during the
Term hereof. Tenant shall pay to Landlord the CAM Expense Percentage Amount
with respect to such calendar year, in monthly installments at the same
time and place as installments of Base Annual Rent under Paragraph 1 (a)
hereof are to be paid, in an amount estimated from time to time by Landlord
by a written notice to Tenant. Landlord shall cause to be kept books and
records showing CAM Expenses in accordance with an appropriate system of
accounts and accounting practices consistently maintained. As promptly as
practicable following the close of each calendar year, Landlord shall
deliver to Tenant its certificate specifying the amount of CAM Expenses for
such calendar year. The certificate of Landlord shall constitute a
determination which is final and conclusive on both Landlord and Tenant,
unless Tenant asserts in a writing addressed to Landlord specified error(s)
in Landlord's certificate within thirty (30) days after delivery thereof.
Notwithstanding any assertion of error by Tenant, Tenant shall pay any
deficiency to Landlord as shown by such certificate on the date of the
monthly installment of Rent next due after receipt thereof. If the total
amount paid by Tenant during any calendar year exceeds the actual CAM
Expense Percentage Amount due from Tenant for such calendar year, such
excess shall be credited against payments next due hereunder. If not such
payments are next due, such excess shall be refunded by Landlord. Landlord
will allow Tenant at Tenant's expense at least ten (10) days prior notice
to Landlord during normal business hours to have reasonable access to
Landlord's books and records relating to actual expenses for the purpose of
verifying such expenses.
(B) In the event the Building is not fully Leased and occupied
during any portion of any calendar year during the term of the Lease, an
appropriate adjustment will be made in CAM Expenses for such calendar year
to reflect the CAM Expenses that would have been incurred by Landlord for
such year had the Building been fully Leased and occupied during the entire
calendar year, and Tenant shall pay Landlord, in the manner provided in
Paragraph 1(b)(v) hereof, Tenant's Percentage of such adjusted CAM Expenses
in excess of the CAM Expense Base Amount.
6. Section 2 of the Lease is hereby amended to read, in its entirety,
as follows:
2. Services
(a) The Tenant shall be Responsible for provision of the
following services to the Premises:
(1) Utilities
The Tenant will contract directly with any authorized
supplier thereof for the provision of electrical service,
natural gas and other utilities to the Premises. All such
services shall be separately metered, and Tenant covenants
and agrees to pay when due any bills or invoices issued in
connection with such utility service directly to the provider
or supplier thereof.
(2) Cleaning and Janitorial Service
Tenant will contract directly with a vendor approved in
advance by Landlord for the provision of char services to the
Premises, which contract shall require the Premises to be
serviced by such vendor on a schedule approved by Landlord.
(3) Parking
Tenant shall have the right, in common with other tenants and
authorized persons, to use the parking facility adjacent to
the building on a first-come, first-served, unallocated and
nonexclusive basis.
7. Expect as expressly modified herein, the Lease is and shall remain
in full force and effect; Tenant acknowledges and represents that Landlord is
not, as of the date hereof, in default of any of its obligations under the
Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth Amendment
to Lease as of the date and year first written above.
WITNESS: LANDLORD:
XXXXXX XXXX LIMITED PARTNERSHIP
By: Xxxxxx and Xxxxxx, Incorporated
as Manager
/s/ Xxxxx Xxxxxxx-Xxxx /s/ Xxxxxxx X. Xxxxxx III
Name: Xxxxx Xxxxxxx-Xxxx Name: Xxxxxxx X. Xxxxxx III
Title: Accts Admin Title: Dir of Prop Mgt, East Const
ATTEST: TENANT:
XXXXX GRAPHSOFT, INC.
/s/ Xxxxxxxx X Xxxxxxx By:/s/ Xxxxxxx Xxxxx
Name: Xxxxxxxx X Xxxxxxx Name: Xxxxxxx Xxxxx
Title: Exec Asst Title: President
