000 XXXXX XX XXXXX XXXXXX
OFFICE LEASE
THIS LEASE (hereinafter referred to as "Lease"), made this _____ day of
June, 1999,
W I T N E S S E T H:
MAC Management Co., Inc., as exclusive agent for 640 LaSalle LLC, an
Illinois limited liability company ("Lessor"), hereby leases unto Xxxxx.xxx
Inc., a Delaware Corporation ("Lessee"), and the Lessee hereby accepts the
Premises ("Premises") known as Suite 557, consisting of approximately 4,183
rentable square feet (as outlined in Attachment "A-1" attached hereto and made a
part of this Lease) at:
000 XXXXX XX XXXXX XXXXXX, XXXXXXX, XXXXXXXX
("Building") for a term ("Term") commencing on August 1, 1999, (sometimes
hereinafter referred to as the "Commencement Date"), and ending May 31, 2002,
unless sooner terminated as provided herein, to be occupied and used by the
Lessee for general office space. Occupancy shall be available on the
Commencement Date.
IN CONSIDERATION THEREOF, the Parties covenant and agree:
1. BASE RENT.
Lessee shall pay to Lessor at the office of Lessor or at such other
place as Lessor may designate, the annual Base Rent (hereinafter referred to as
"Base Rent") as follows:
Annual Base Rent Monthly Base Rent
Commencement Date -
07/31/00 $66,924.00 $5,577.00
08/01/00 - 07/31/01 $68,940.00 $5,745.00
08/01/01 - 05/31/02 $71,004.00 $5,917.00
which shall be paid and due in equal monthly installments, each in
advance on the first day of each and every calendar month during the Term and at
the then current rate for fractions of a month if the Term shall be commence or
terminate on any day other than the last day of a month. The Base Rent,
Adjusted Rent (as hereinafter defined), Estimated Rent (as
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hereinafter defined) and other sums and charges payable by Lessee under this
Lease are hereinafter referred to as "rent". Lessee recognizes that late
payment of any rent or other sum due under this Lease will result in
administrative expense to Lessor, the extent of which additional expense is
extremely difficult and economically impractical to ascertain. Lessee
therefore agrees that if rent or any other sum is not paid within five (5)
days after the date due and payable pursuant to this Lease, such amount shall
bear interest at the Designated Rate, as thereinafter defined from said fifth
day until paid. In addition, if said amount remains unpaid for more than five
(5) days after said amount is due, Lessee shall pay Lessor in addition to
interest as aforesaid a late fee equal to the greater of: (a) Fifty Dollars
($50.00), or (b) a sum equal to five percent (5%) per month of the unpaid
rent or other payment. The amount of the late charge to be paid by Lessee
shall be reassessed and added to Lessee=s obligation for each successive
monthly period until paid. The provisions for payment of interest and for
payment of a late fee in no way relieve Lessee of the obligation to pay rent
or other payments on or before the date on which they are due, nor do they in
any way affect Lessor=s remedies hereunder in the event said rent or other
payment is unpaid after any applicable notice or cure period. The Designated
Rate shall be the rate of interest announced from time to time by Bank of
America -Illinois as its Reference Rate, which may not be the lowest or best
rate charged by said bank.
2. SERVICE. The Lessor shall provide:
(a) Janitor Service in and about the Premises, Saturdays, Sundays and
holidays excepted. The Lessee shall not provide any janitor service without the
Lessor's written consent. If the Lessor's consent be given, such janitor
service shall be subject to Lessor's supervision but at the Lessee's sole
responsibility. The Lessee shall not provide any janitor service in the
Premises except through a janitor contractor or employees who are and shall
continuously be in each and every instance satisfactory to the Lessor.
(b) Heat and Air Conditioning daily from 8:00 a.m. to 6:00 p.m.,
Saturday 8:00 a.m. to 1:00 p.m., Sundays and holidays excepted, whenever heat
or air conditioning shall, in the Lessor's reasonable judgment, be required
for the comfortable occupation and use of the Premises.
(c) Water from City of Chicago mains for drinking, lavatory and
toilet purposes, drawn through fixtures installed by the Lessor or by the Lessee
with the Lessor's written consent. The Lessee shall pay, at rates fixed by the
Lessor, for water used for air conditioning, refrigerating or any purpose other
than drinking, lavatory and toilet purposes and dishwashing.
(d) Passenger Elevator Service in common with other tenants daily
from 8:00 a.m. to 6:00 p.m. (Saturdays to 1:00 p.m.) Sundays and holidays
excepted and Freight Elevator Service in common with other tenants daily from
8:00 a.m. to 5:00 p.m. Saturdays, Sundays and holidays excepted. At all other
times at least one elevator shall be available for Lessee's use.
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(e) Electricity 24 hours per day, each day of the Term, Lessee shall
be entitled to an allowance (the "Allowance") for electrical use up to $11.50
($1.00 per each rentable square foot in the Premises divided by 365 rounded up
to the nearest half dollar) for each day of the Term. Lessee shall not be
obligated to pay for electrical use at the rates (including taxes and other
charges) which Lessor is charges by the utility company furnishing the
electricity to the Premises, at the rates (including taxes and other charges),
which lessor is charged by the utility company furnishing the electricity
exceeds the Allowance, Lessee agrees to pay such excess to Lessor within thirty
(30) days of Lessor's invoice therefor, as additional rent due hereunder.
Lessor shall maintain but Lessee shall bear the cost of maintaining
the lighting fixtures and replacement of all parts, including lamps and
ballasts.
(f) Lessor reserves the right to discontinue furnishing electricity
and require Lessee to procure electricity at Lessee's expense by arrangement
with Commonwealth Edison Company or another approved local utility provided,
however, commencing with the date when Lessee receives such direct service, the
fixed annual Base Rent payable under the Lease shall be reduced by $4,183.00 per
annum.
The Lessor does not warrant that any of the services above mentioned
will be free from interruptions caused by war, insurrection, civil commotion,
riots, acts of God or the enemy or Government action, repairs, renewals,
improvements, alterations, strikes, lockouts, picketing, whether legal or
illegal, accidents, inability of Lessor to obtain fuel or supplies, or any other
cause or causes beyond the reasonable control of the Lessor. Any such
interruption of service shall never be deemed an eviction or disturbance of the
Lessee's use and possession of the Premises or any part thereof, or render the
Lessor liable to the Lessee for damages, or relieve the Lessee from performance
of the Lessee's obligations under this Lease. Notwithstanding the foregoing, in
the event of any interruption of service which is not beyond the reasonable
control of Lessor, (i) the Lessor will act diligently to restore any required
service which is interrupted; and, (ii) if an interruption of services renders
the Premises untenantable (i.e., unusable by the Lessee for the intended
purpose) for more than five (5) consecutive business days, the Base Rent
beginning on the sixth day will xxxxx until the Premises are restored to
tenantable condition.
3. LESSOR'S TITLE. The Lessor's title is and always shall be
paramount to the title of the Lessee, and nothing herein contained shall
empower the Lessee to do any act which can, shall or may encumber the title
of the Lessor.
4. CERTAIN RIGHTS RESERVED TO THE LESSOR. The Lessor reserves the
following rights: (a) to change the name or street address of the Building
without notice or liability of the Lessor to the Lessee; (b) to install and
maintain a sign or signs on the exterior of the Building; (c) to have access for
the Lessor and the other tenants of the Building to any mail chutes located on
the Premises according to the rules of the United States Post Office; (d) to
designate all sources for furnishing sign painting and lettering on any exterior
surfaces of the Premises or those within the Premises, which can be seen from
outside the Premises or the
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Building, ice, drinking water, towels and toilet supplies used on the
Premises; (e) during the last 180 days of the Term or any part thereof, if
during or prior to that time the Lessee vacates the Premises, to decorate,
remodel, repair, alter or otherwise prepare the Premises for reoccupancy; (f)
to constantly have pass keys to the Premises; (g) to grant to anyone the
exclusive right to conduct any particular business or undertaking in the
Building; provided no such grant shall prohibit Lessee from using the
Premises for general office space; (h) to exhibit the Premises to others and
to display "For Rent" signs on the exterior or interior of the Premises
during the last 180 days of the Term; (i) to take any and all measures,
including inspections, repairs, alterations, additions and improvements to
the Premises or to the Building, as may be necessary or desirable for the
safety, protection or preservation of the Premises or the Building or the
Lessor's interests, or as Lessor may deem necessary in the operation of the
Building, Lessor shall at all times when proceeding hereunder, use its best
efforts not to unreasonably interfere with Lessee's business operations.
The Lessor may enter upon the Premises after oral or written notice to
Lessee, except in case of emergency in which no notice shall be required, and
may exercise any or all of the foregoing rights hereby reserved without being
deemed guilty of an eviction or disturbance of the Lessee's use or possession of
the Premises or any part thereof or render the Lessor liable to the Lessee for
damages, or relieve the Lessee from performance of the Lessee's obligations
under this Lease.
5. DEFAULT UNDER OTHER LEASE. If the term of any lease, other than
this Lease, made by the Lessee for any premises in the Building shall be
terminated or terminable after the making of this Lease because of any default
by the Lessee under such other lease, such fact shall empower the Lessor, at the
Lessor's sole option, to terminate this Lease by notice to the Lessee.
6. WAIVER OF CLAIMS. To the fullest extent permitted by law, the Lessee
releases the Lessor and the Lessor's agents, beneficiaries, and servants from,
and waives all claims for, damage to person or property sustained by the Lessee
or any occupant of the Building or Premises resulting from the Building or
Premises or any part of either or any equipment or appurtenance becoming out of
repair, or resulting from any accident in or about the Building, or resulting
directly or indirectly from any act or neglect of any lessee or occupant of the
Building or of any other person, other than by reason of Lessor's negligence or
intentional misconduct. This Paragraph 6 shall apply especially, but not
exclusively, to the flooding of basements or other subsurface areas, and to
damage caused by refrigerators, sprinkling devices, air conditioning apparatus,
water, snow, frost, steam, excessive heat or cold, falling plaster, broken
glass, sewage, gas, odors or noise, or the bursting or leaking of pipes or
plumbing fixtures, and shall apply equally whether any such damage results from
the act or neglect of other tenants, occupants or servants in the Building or of
any other person, and whether such damage be caused or result 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. If any such damage,
whether to the demised Premises or to the Building or any part thereof, or
whether to the Lessor
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or to other tenants in the Building, result from any act or neglect of the
Lessee, the Lessor may, at the Lessor's option, repair such damage and the
Lessee shall, upon demand by the Lessor, reimburse the Lessor forthwith for
the total cost of such repairs. The Lessee shall not be liable for any
damages caused by its act or neglect if the Lessor or a tenant has recovered
the full amount of the damages from insurance and the insurance company has
waived in writing its right of subrogation against the Lessee as rent
hereunder. Lessee's failure to pay any such reimbursement upon demand shall
entitle Lessor to interest at the Default Rate from the date of demand until
paid. All property belonging to the Lessee or any occupant of the Premises
that is in the Building or the Premises shall be there at the risk of the
Lessee or other person only, and the Lessor shall not be liable for damage
thereto or theft or misappropriation thereof.
Lessor and the Lessor's agents, beneficiaries and servants shall not
be liable in damages to the Lessee for any direct or consequential injury
sustained by any person or property of Lessee, or that of Lessee's employees,
beneficiaries, agents or invitees, occasioned in whole or in part by war,
insurrection, civil commotion, riots, acts of God or the enemy or Government
action, repairs, renewals, improvements, alterations, strikes, lockouts,
picketing, whether legal or illegal, accidents, inability of Lessor to obtain
fuel or supplies, planned or intentional action by any person resulting in fire,
explosion or panic, or any other cause or causes beyond the reasonable control
of the Lessor.
7. HOLDING OVER. If the Lessee retains possession of the Premises or any
part thereof after the expiration of the Term by lapse of time or otherwise, the
Lessee shall pay the Lessor rent at double the rate of rent specified in
Paragraph 1 for the time the Lessee thus remains in possession, and in addition
thereto, shall pay the Lessor all damages sustained by reason of the Lessee's
retention of possession. If the Lessee remains in possession of the Premises,
or any part thereof, after the expiration of the Term by lapse of time or
otherwise, such holding over shall, at the election of the Lessor expressed in a
written notice to the Lessee and not otherwise, constitute a renewal of this
Lease for one year. The provisions of this Paragraph do not waive the Lessor's
rights of reentry or any other right hereunder.
8. ASSIGNMENT AND SUBLETTING. The Lessee shall not, without Lessor's
written consent, which consent may not be unreasonably withheld: (a) assign or
convey this Lease or any interest under it; (b) allow any transfer hereof or any
lien upon the Lessee's interest herein or in the Premises by operation of law;
(c) sublet the Premises or any part thereof; or (d) permit the use or occupancy
of the Premises or any part thereof by any one other than the Lessee. The
transfer, assignment or hypothecation of any stock or interest in Lessee in
excess of fifty (50%) percent in the aggregate shall be deemed an assignment
within the meaning and provisions of this Paragraph 8, requiring Lessor's
consent.
9. CONDITION OF PREMISES.
(a) CONDITION OF IMPROVEMENTS. Anything in this Lease to the
contrary notwithstanding, it is understood and agreed between the Lessor and
Lessee that the Premises
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covered by this Lease are being delivered by Lessor to Lessee in "AS IS"
condition. The Lessee's taking possession of the Premises shall be conclusive
evidence as against the Lessee that the Premises were in satisfactory
condition when the Lessee took possession. No promise of the Lessor to
alter, remodel or improve the Premises or the Building and no representation
respecting the condition of the Premises or the Building have been made by
the Lessor to the Lessee, unless the same is contained herein, or made a part
hereof. This Lease does not grant any rights to light or air over property,
except over public streets kept open by public authority.
The Lessee shall remove the Lessee's furniture, machinery, safe or
safes, trade fixtures and other items of personal property of every kind and
description from the Premises prior to the end of the Term, however ended. If
not so removed, the Lessor may request their removal, and if the Lessee does not
remove them, the Lessor may do so and the Lessee shall pay the cost of such
removal to the Lessor upon demand. If the Lessor does not request their
removal, all such items shall be conclusively presumed to have been conveyed by
the Lessee to the Lessor under this Lease as a xxxx of sale without further
payment or credit by the Lessor to the Lessee.
(b) Lessee shall promptly notify Lessor in writing of all
assignments, liens, encumbrances, granting of chattel mortgages, or creation of
security interests, all as same relate to Lessee's sign and trade fixtures or
other personal property in the Premises, effected during the quarter. Any
consent by Lessor to such security interest shall be held to apply only to the
specific transaction thereby authorized and to any subsequent transaction. Any
violation of the terms of this Subparagraph by Lessee shall be without force and
effect and shall not be binding upon the Lessor. In no event shall Lessee
assign, lien, encumber, grant a chattel mortgage or create a security interest
in leasehold improvements which have been incorporated into the Premises,
including, but not limited to, affixed lighting fixtures, heating, ventilating
and air conditioning equipment.
10. ALTERATIONS. The Lessee shall not make any alterations in or
additions to the Premises without the Lessor's advance written consent in each
and every instance, not to be unreasonably withheld. All alterations or
additions shall be made pursuant to the following conditions:
(a) Before commencement of any work or delivery of any materials onto
the Premises or into the Building, the Lessee shall furnish the Lessor with
plans and specifications, names and addresses of contractors, copies of
contracts, necessary permits and indemnification in form and amount satisfactory
to Lessor and waivers of lien against any and all claims, costs, damages,
liabilities and expenses which may arise in connection with the alterations or
additions, together with certificates of insurance from all contractors
performing labor or furnishing materials insuring the Lessor against any and all
liabilities which may arise out of or be connected in any way with said
additions or alterations. In addition, Lessee shall provide an "All Physical
Loss" Builders Risk insurance policy with respect to all alterations and
additions in an amount equal to l00% of the replacement cost of the alterations
and additions. Lessor shall be named an insured as its interest may appear.
Whether the Lessee furnishes the Lessor the
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foregoing or not, the Lessee hereby agrees to defend, indemnify and hold the
Lessor 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.
(b) Alterations and additions shall comply with all insurance
requirements and with all ordinances and regulations of the City of Chicago or
any department or agency thereof and with the requirements and statutes and
regulations of the State of Illinois or of any department or agency thereof, and
shall be installed in a good, workmanlike manner and only new, high-grade
materials shall be used. Lessee shall permit the Lessor to supervise
construction operations in connection with alterations or additions if the
Lessor requests to do so.
(c) The Lessee shall pay all the costs of such alterations and
additions plus a reasonable amount to Lessor for Lessor's overhead with respect
to supervision necessary to satisfy Lessor that no damage will result to the
Building. Such charge shall not, however, relieve Lessee of any responsibility
or liability for any such damage. Lessee shall also pay the cost of decorating
the Premises occasioned by such alterations and additions. Each payment upon
said costs shall be only upon receipt of all such contractor's and
subcontractor's sworn statements, full or partial waivers of lien, certificates
and other documentation, if any, as Lessor or any title insurance company shall
request in order to fully protect the building and the Premises against all
possible claims in the nature of mechanic's liens arising out of the performance
of said work and to enable said title insurance company to insure the title to
the Premises and the building against such claims. Without limitation of the
foregoing, upon completing any alterations or additions, the Lessee shall
furnish the Lessor with contractors' affidavits and full and final waivers of
lien and receipted bills covering all labor and materials expended and used,
together with all such of the other documentation described above as Lessor
shall require.
(c) All alterations, additions, hardware, non-trade fixtures and all
improvements, temporary or permanent, in or upon the Premises, including all
affixed lighting fixtures, heating, ventilating and air conditioning equipment,
and all pipes, ducts, conduits, wiring, paneling, partitions, railing, galleries
and the like, whether placed there by the Lessee or by the Lessor, shall, unless
the Lessor requests their removal, become the Lessor's property and shall remain
upon the Premises at the termination of this Lease by lapse of time or otherwise
without compensation or allowance or credit to the Lessee. If, upon the
Lessor's request, the Lessee does not remove said additions, hardware, non-trade
fixtures and improvements, the Lessor may remove the same and the Lessee shall
pay the cost of such removal to the Lessor upon demand. In any event, Lessee
shall repair or pay on demand all costs of repair of, any damage to the Premises
or the Building done during the course of such removal.
11. USE OF PREMISES. (a) The Lessee shall occupy and use the Premises
during the Term for the business purposes set forth on page l hereof and none
other. (b) The Lessee shall not, without prior written consent of the Lessor,
exhibit, sell or offer for sale on the Premises or in the Building any article
or thing except those articles and things essentially connected with the stated
use of the Premises without the advance written consent of the Lessor.
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(c) The Lessee will not make or permit to be made any use of the Premises
which, directly or indirectly is forbidden by public law, ordinance or
governmental regulation or which may be dangerous to life, limb or property,
or which may invalidate or increase the premium cost of any policy of
insurance carried on the Building or covering its operation. (d) the Lessee
shall not display, inscribe, print, paint, maintain or affix on any place in
or about the Building any sign, notice, legend, direction, figure or
advertisement, except on or next to the doors of the Premises and on the
Directory Boards, and then only such name or names and matter, and in such
color, size, style, place and material, as shall first have been approved by
the Lessor in writing. (e) The Lessee shall not advertise the business,
profession, or activities of the Lessee conducted in the Building in any
manner which violates the letter or spirit of any code of ethics adopted by
any recognized association or organization pertaining to such business,
profession or activities, and shall not use the name of the Building for any
purpose other than that of business address of the Lessee, and shall never
use any picture or likeness of the Building in any circulars, notices,
advertisements or correspondence without the Lessor's express consent in
writing. (f) The Lessee shall not obstruct, or use for storage, or for any
purpose other than ingress and egress, the sidewalks, entrances, passages,
courts, corridors, vestibules, halls, elevators and stairways of the
Building. (g) No vehicle and no dog or other animal or bird hall be brought
or permitted to be in the Building or any part thereof. (h) The Lessee shall
not make or permit any noise or odor that is objectionable to other occupants
of the Building to emanate from the Premises and shall not create or maintain
a nuisance thereon, and shall not disturb, solicit or canvass any occupant of
the Building, and shall not do any act tending to injure the reputation of
the Building. (i) The Lessee shall not install any piano in the Building, or
any antennae, aerial wires or other equipment inside or outside the Building,
without, in each and every instance, prior approval in writing by the Lessor.
The use thereof, if permitted shall be subject to control by the Lessor to
the end that others shall not be disturbed or annoyed. (j) The Lessee shall
not place or permit to be placed any article of any kind on the window ledges
or on the exterior walls, and shall not throw or permit to be thrown or
dropped any article from any window of the Building. (k) The Lessee shall
not undertake to regulate any thermostat, and shall not waste water by tying,
wedging or otherwise fastening open any faucet. (l) No additional locks or
similar devices shall be attached to any door or window. No keys for any
door other than those provided by the Lessor shall be made. If more than two
keys for one lock are desired by the Lessee, the Lessor may provide the same
upon payment by the Lessee. Upon termination of this Lease or of the
Lessee's possession the Lessee shall surrender all keys of the Premises and
shall make known to the Lessor the explanation of all combination locks on
safes, cabinets and vaults. (m) The Lessee shall be responsible for the
locking of doors and the closing of transoms and windows in and to the
Premises. (n) If the Lessee desires telegraphic, telephonic, burglar alarm
or signal service, the Lessor will, upon request, direct where and how
connections and all wiring for such services shall be introduced and run.
Without such directions, no boring, cutting or installation of ires or cables
is permitted. (o) If the Lessee desires and the Lessor permits blinds,
shades, awnings, or other form of inside or outside window covering, or
window ventilators or similar devices, they shall be furnished, installed and
maintained at the expense of the Lessee and must be of such shape, color,
material and make as approved by the Lessor. (p) All persons entering or
leaving the Building between the hours of 6 p.m. and 8 a.m., Monday through
Friday, or at any time on
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Saturdays, Sundays or holidays, may be required to identify themselves to a
watchman by registration or otherwise and to establish their rights to enter
or leave the Building. The Lessor may exclude or expel any peddler,
solicitor or beggar at any time. (q) The Lessee shall not overload any
floor. The Lessor may direct the routing and location of safes and other
heavy articles. Safes, furniture and all large articles shall be brought
through the Building and into the Premises at such times and in such manner
as the Lessor shall direct and at the Lessee's sole risk and responsibility.
The Lessee shall list all furniture, equipment and similar articles to be
removed from the Building, and the list must be approved at the Office of the
Building or by a designated person before Building employees will permit any
article to be removed. (r) Unless the Lessor gives advance written consent
in each and every instance, the Lessee shall not install or operate any steam
or internal combustion engine, boiler, machinery, refrigerating or heating
device or air conditioning apparatus in or about the Premises, or carry on
any mechanical business therein, or use the Premises for housing
accommodations or lodging or sleeping purposes, or do any cooking therein, or
use any illumination other than electric light, or use or permit to be
brought into the Building or Premises any inflammable oils or fluids such as
gasoline, kerosene, naphtha and benzine, or any explosives or other articles
deemed extra hazardous to life, limb or property. (s) The Lesse shall not
place or allow anything to be against or near the glass of partitions or
doors of the Premises which may diminish the light in, or be unsightly from,
halls or corridors. (t) The Lessee shall not install in the Premises any
equipment which uses a substantial amount of electricity without the advance
written consent of the Lessor. The Lessee shall ascertain from the Lessor
the maximum amount of electrical current which can safely be used in the
demised Premises, taking into account the capacity of the electric wiring in
the Building and the Premises and the needs of other tenants in the Building
and shall not use more than such safe capacity. The Lessor's consent to the
installation of electric equipment shall not relieve the Lessee from the
obligation not to use more electricity than such safe capacity. (u) The
Lessee shall not lay linoleum or other similar floor covering so that such
floor covering shall come in direct contact with the floor of the Premises,
and if linoleum or other similar floor covering is used, an interliner of
builder's deadening felt shall first be affixed to the floor by paste or
other material soluble in water. The use of cement or other similar material
is prohibited. (v) In addition to all other liabilities for breach of any
covenant of this Paragraph 11, the Lessee shall pay to the Lessor all damages
caused by such breach and shall also pay to the Lessor an amount equal to any
increase in insurance premium or premiums caused by such breach. The
violation of any covenant of this Paragraph 11 may be restrained by
injunction.
12. REPAIRS. Subject to the provisions of Paragraph 13, the Lessee shall,
at the Lessee's own expense, keep the Premises in good order, condition and
repair during the Term, including the replacement of all broken glass with glass
of the same size and quality, with signs thereon, under the supervision and with
the approval of the Lessor. If the Lessee does not make repairs promptly and
adequately, the Lessor may, but need not, make repairs, and the Lessee shall pay
promptly the cost thereof. At any time or times, the Lessor, either voluntarily
or pursuant to governmental requirement, may, at the Lessor's own expense, make
repairs, alterations or improvements in or to the Building or any part thereof,
including the Premises, and, during operations, may close entrances, doors,
corridors, elevators or other facilities, all
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without any liability to the Lessee by reason of interference, inconvenience
or annoyance. The Lessor and its beneficiaries shall not be liable to the
Lessee for any expense, injury, loss or damage resulting from work done in or
upon, or the use of, any adjacent or nearby building, land, street or alley.
The Lessee shall pay the Lessor for overtime and for any other expense
incurred in event repairs, alterations, decorating or other work in the
Premises are not made during ordinary business hours at the Lessee's request.
Lessor, at Lessor's own expense, shall maintain in good order,
condition and repair during the Term, the roof, foundation and structural
components of the Building other than the Premises, such that the same shall be
at all times in a clean and sanitary condition, in full compliance with all
applicable laws, and in a condition at lease as good as that maintained at other
comparable office buildings within the City of Chicago. Lessor may include
within the Operating Expenses, Lessor's expenses incurred in complying with this
paragraph.
13. UNTENANTABILITY. If the Premises or the Building are made
untenantable by fire or other casualty, the Lessor may elect to terminate this
Lease as of the date of the fire or casualty by notice to the Lessee within
sixty (60) days after that date. In the event that the Lessor does not
terminate this Lease, the Lessor shall repair, restore or rehabilitate the
Building or the Premises at the Lessor's expense within one hundred twenty (120)
days after the Lessor is enabled to take possession of the Premises and
undertake reconstruction or repairs, in which latter event the Lease shall not
terminate but rent shall be abated on a per diem basis while the Premises are
untenantable. If the Lessor elects so to repair, restore or rehabilitate the
Building or the Premises and does not substantially complete the work within the
one hundred twenty (120) day period, either party can terminate this Lease as of
the date of the fire or casualty by notice to the other party not later than one
hundred thirty (130) days after the Lessor is enabled to take possession of the
Premises and undertake reconstruction or repairs. In the event of termination
of the Lease pursuant to this Paragraph 13, rent shall be apportioned on a per
diem basis and be paid to the date of the fire or casualty.
14. EMINENT DOMAIN. If the Building, or any portion thereof which
includes a substantial part of the Premises, or which prevents the operation of
the Building, shall be taken or condemned by any competent authority for any
public use or purpose, the Term of this Lease shall end upon, and not before,
the date when the possession of the part so taken shall be required for such use
or purpose, and without apportionment of the condemnation award. The Lessee
shall have no right to share in such award. Current rent shall be apportioned
as of the date of such termination. If any condemnation proceeding shall be
instituted in which it is sought to take or damage any part of the Building, or
the land under it, or if the grade of any street or alley adjacent to the
Building is changed by any competent authority and such change of grade makes it
necessary or desirable to remodel the Building to conform to the changed grade,
the Lessor shall have the right to cancel this Lease upon not less than ninety
days' notice prior to the date of cancellation designated in the notice. No
money or other consideration shall be payable by the Lessor to the Lessee for
the right of cancellation and the Lessee shall have no
10
right to share in the condemnation award or in the judgment for damages
caused by the change of grade.
15. LESSOR'S REMEDIES. All rights and remedies of the Lessor herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law.
(a) If any voluntary or involuntary petition or similar pleading
under any section or sections of any bankruptcy act shall be filed by or against
the Lessee, or any voluntary or involuntary proceeding in any court or tribunal
shall be instituted to declare the Lessee insolvent or unable to pay the
Lessee's debts, and in the case of an involuntary petition or proceeding, the
petition or proceeding is not dismissed within thirty days from the date it is
filed, the Lessor may elect, but is not required, and with or without notice of
such election, and with or without entry or other action by the Lessor, to
forthwith terminate this Lease, and, notwithstanding any other provision of this
Lease, the Lessor shall forthwith upon such termination be entitled to recover
damages in an amount equal to the then present value of the rent specified in
Paragraph 1 of this Lease for the residue of the stated Term hereof, less the
fair rental value of the Premises for the residue of the stated Term.
(b) If the Lessee defaults in the payment of rent, and the Lessee
does not cure the default within five (5) days after written demand for payment
of such rent, or if the Lessee defaults in the prompt and full performance of
any other provision of this Lease, and the Lessee does not cure the default
within twenty days (forthwith if the default involves a hazardous condition)
after written demand by the Lessor that the default be cured unless the default
involves a hazardous condition, which shall be cured forthwith upon the Lessor's
demand, or if the leasehold interest of the Lessee be levied upon under
execution or be attached by process of law, or if the Lessee makes an assignment
for the benefit of creditors, or if a receiver be appointed for any property of
the Lessee, or if the Lessee abandons the Premises, then and in any such event
the Lessor may, if the Lessor so elects but not otherwise, and with or without
notice of such election and with or without any demand whatsoever, either
forthwith terminate this Lease and the Lessee's right to possession of the
Premises or, without terminating this Lease, forthwith terminate the Lessee's
right to possession of the Premises.
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon termination of the Lessee's right to possession without
termination of the Lease, the Lessee shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to the Lessor, and hereby
grants to the Lessor and its beneficiaries full and free license to enter into
and upon the Premises in such event with or without process of law and to
repossess the Lessor of the Premises as of the Lessor's former estate and to
expel or remove the Lessee and any others who may be occupying or within the
Premises and to remove any and all property therefrom, using such force as may
be necessary, without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer and without relinquishing the Lessor's rights to rent
or any other right given to the Lessor hereunder or by operation of law.
11
(d) If the Lessee abandons the Premises or otherwise entitles the
Lessor so to elect, and the Lessor elects to terminate the Lessee's right to
possession only, without terminating the Lease, the Lessor may, at the
Lessor's option enter into the Premises, remove the Lessee's signs and other
evidences of tenancy, and take and hold possession thereof as in this
Paragraph 15 provided, without such entry and possession terminating the
Lease or releasing the Lessee, in whole or in part, from the Lessee's
obligation to pay the rent hereunder for the full Term, and in any such case
the Lessee shall pay to the Lessor, the rent and other financial obligations
hereunder as they come due. Upon and after entry into possession without
termination of the Lease, the Lessor may, but need not, relet the Premises or
any part thereof for the account of the Lessee to any person, firm or
corporation other than the Lessee for such rent, for such time and upon such
terms as the Lessor in the Lessor's sole discretion shall determine, and the
Lessor shall not be required to accept any tenant offered by the Lessee or to
observe any instructions given by the Lessee about such reletting. In any
such case, the Lessor may make repairs, alterations and additions in or to
the Premises, and redecorate the same to the extent deemed by the Lessor
necessary or desirable, and the Lessee shall, upon demand, pay the cost
thereof, together with the Lessor's expenses of the reletting. If the
consideration collected by the Lessor upon any such reletting for the
Lessee's account is not sufficient to pay monthly the full amount of the rent
reserved in this Lease, together with the costs of repairs, alterations,
additions, redecorating and the Lessor's expenses, the Lessee shall pay to
the Lessor the amount of each monthly deficiency upon demand; and if the
consideration so collected from any such reletting is more than sufficient to
pay the full amount of the rent reserved herein, together with the costs and
expenses of the Lessor, the Lessor, at the end of the stated Term of the
Lease, shall account for the surplus to the Lessee.
(e) Deleted in its entirety.
(f) Any and all property which may be removed from the Premises by
the Lessor pursuant to the authority of the Lease or of law, to which the
Lessee is or may be entitled, may be handled, removed or stored by the Lessor
at the risk, cost and expense of the Lessee, and the Lessor and its
beneficiaries shall in no event be responsible for the value, preservation or
safekeeping thereof. The Lessee shall pay to the Lessor, 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 Lessor's possession or under the
Lessor's control. Any such property of the Lessee not removed from the
Premises or retaken from storage by the Lessee within thirty days after the
end of the Term, however terminated, shall be presumed to have been conveyed
by the Lessee to the Lessor under this Lease as a xxxx of sale without
further payment or credit by the Lessor to the Lessee.
(g) The Lessee shall pay upon demand all the Lessor's costs,
reasonable charges and expenses, including the fees of counsel, agents and
others retained by the Lessor, incurred in enforcing the Lessee's obligations
hereunder or incurred by the Lessor in any litigation, negotiation or
transaction in which the Lessee causes the Lessor, without the Lessor's
fault, to become involved or concerned.
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16. SUBORDINATION OF LEASE. Without the necessity of any additional
document being executed by Lessee for the purpose of effecting a subordination,
this Lease shall be subject and subordinate at all times to ground or
underlying leases and to the lien of any mortgages or deeds of trust now
(provided Lessee is furnished a Non Disturbance Agreement in a commercially
reasonable form) or hereafter placed on, against or affecting the Building,
Lessor's Site (which shall mean the land on which the Building is situated
and, where appropriate, the sidewalks and landscaping from the boundaries of
the land to the surrounding streets), Lessor's interest or estate therein, or
in any ground or underlying lease; provided, however, that if the mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to have
Lessee's interest in this Lease be superior to any such instrument, then by
notice to Lessee this Lease shall be deemed superior, whether this Lease was
executed before or after said instrument. Notwithstanding the foregoing,
Lessee covenants and agrees to execute and deliver upon demand such further
instruments evidencing such subordination or superiority of this Lease as may
be required by Lessor.
17. NOTICES.
(a) Except as otherwise expressed herein, all notices
provided for herein shall be in writing. In every instance where it shall be
necessary or desirable for either party hereto to serve any notice or demand
upon the other party hereto, it shall be sufficient (i) to deliver or cause
to be delivered to the party on whom such notice or demand is to be served or
its duly authorized agent a written or printed copy thereof, or (ii) to send
a copy thereof by United States certified or registered mail, postage
prepaid, addressed to the party on whom such notice or demand is to be
served, in which event the notice or demand shall be deemed to have been
served at the time the notice or demand is postmarked, or (iii) send a copy
thereof by recognized overnight courier service, next business day delivery,
in which event the notice or demand shall be deemed to have been served on
the next business day.
(b) In every instance where notice or demand is served by mail or
overnight courier as aforesaid, it shall be sufficient to send such notice or
demand, as above provided, to Lessor at:
Xxxxxxx Xxxxx
MAC Management Co., Inc.
000 Xxxxx XxXxxxx
Xxxxxxx, XX 00000
with a copy to :
Xxxxxxx Xxxxxxxx, Esquire
X'Xxxxxx & Xxxxxx
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000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
and to Lessee at:
Xxxxx.xxx Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
or to such other address or addresses as either party may select upon notice
to the other party as herein provided.
18. MISCELLANEOUS.
(a) No receipt of money by the Lessor from the Lessee after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the
Premises shall renew, 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 Lessee hereunder shall be
implied from any omission by the Lessor to take any action on account of such
default if such default persists or be repeated, and 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. The invalidity or
unenforceability of any provision hereof shall not affect or impair any other
provision.
(c) No person, firm or corporation, or the heirs, legal
representatives, successors and assigns, respectively, thereof, executing
this Lease on behalf of Lessor as agent, trustee or in any other
representative capacity shall ever be deemed or held individually liable
hereunder for any reason or cause whatsoever.
(d) The words "Lessor" and "Lessee" wherever used in this Lease
shall be construed to mean Lessors or Lessees in all cases where there is
more than one lessor or lessee, 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. Lessee agrees to furnish promptly upon demand a
corporate resolution, proof of due authorization by partners, or appropriate
documentation evidencing the due authorization of Lessee to enter into this
Lease. The term "rentable square feet" shall mean the rentable area of the
Premises or the Building as calculated by Lessor on the basis of the plans
and specifications (which were available for inspection by Lessee at the time
the Lease was executed) of the
14
Building and including a proportionate share of any common areas. Lessee
hereby consents and agrees that the calculation of rentable square feet on
Page 1 hereof shall be controlling.
(e) Intentionally omitted.
(f) Provisions inserted herein or affixed hereto shall not be
valid unless appearing in the duplicate original hereof held by the Lessor.
In event of variation or discrepancy, the Lessor's duplicate shall control.
(g) Each provision hereof shall extend to and shall, as the case
may require, bind and inure to the benefit of the Lessor and the Lessee and
their respective heirs, legal representatives and successors, and assigns in
the event this Lease has been assigned with the express, written consent of
the Lessor as herein provided.
(h) The headings of Paragraphs are for convenience only and do not
limit or construe the contents of the Paragraphs.
(i) Submission of this instrument for examination does not
constitute a reservation of or option for the Premises. The instrument
becomes effective as a Lease upon execution and delivery by both Lessor and
Lessee.
(j) Except as otherwise expressly provided for herein, all amounts
(other than rent) owed by the Lessee to the Lessor hereunder shall be paid
within ten (l0) days from the date the Lessor renders statements of account
therefor and shall bear interest at the Default Rate from and after such
tenth day until paid.
(k) All riders attached to this Lease and signed by the Lessor and
the Lessee are hereby made a part of this Lease as though inserted at length
herein.
(l) If the Lessee shall occupy the Premises prior to the beginning
of the Term with the Lessor's consent, all the provisions of this Lease
shall be in full force and effect as soon as the Lessee occupies the
Premises. Rent for any period prior to the beginning of the Term shall be
fixed by agreement between the Lessor and the Lessee.
(m) This Lease is the entire understanding of the parties and the
terms and provisions of this Lease shall only be modified or amended in
writing.
(n) All sums due hereunder and accruing prior to the expiration of
the Term, whether by lapse of time or otherwise, shall be due notwithstanding
such expiration.
19. RENT ADJUSTMENT.
(a) The rent adjustment reserved herein by this Paragraph is based
15
upon the Operating Expenses, as hereinafter defined, for the calendar year
1998, hereinafter referred to as the "Base Year". Should there be an increase
or decrease in said Operating Expenses for any calendar year during the term
of this Lease or any extension of the Term of this Lease, after the Base
Year, the amount of such increase or decrease shall be ascertained and the
rent reserved herein shall be adjusted, hereinafter referred to as "Adjusted
Rent", as follows: The rent for each calendar year or fraction thereof after
the Base Year shall be increased or decreased by 1.882% of said increase or
decrease in said Operating Expenses for the calendar year immediately ended
provided, however, that in the event of a decrease the reduction in the
Adjusted Rent may never result in a rent lower than the stipulated Base Rent
set forth in this Lease.
(b) In the event of an Operating Expense increase Lessee shall pay
Adjusted Rent to Lessor within ten (10) days of Lessor's written notice to
Lessee. Lessee's obligation for its payments hereunder shall survive the
Term of this Lease.
(c) In the event of an Operating Expense decrease Lessee shall be
given a credit towards Adjusted Rent within thirty (30) days of written
notice from Lessor to Lessee.
(d) Lessee shall also pay Lessor estimated rent (hereinafter
referred to as "Estimated Rent") in equal monthly installments each in
advance on the first day of each and every month during the Term in an amount
equal to one twelfth (1/12th) of Lessor's estimate of the increase in
Operating Expenses for the then current calendar year over the Base Year
based on Lessee's proportionate share as set forth in subparagraph (a) above
provided, however, that all Estimated Rent paid by Lessee in each calendar
year shall be applied as a credit against the Adjusted Rent to be paid by
Lessee to Lessor in accordance with subparagraph (a) above as calculated at
the end of each calendar year.
(e) "Operating Expenses" as used herein include, but not by way of
limitation, ad valorem real property taxes paid, as well as special taxes,
without limitation, special assessments, and any tax or excise levied by the
State of Illinois or the City of Chicago or any political subdivision
thereof, either on rents or other income from the Building and other portions
of Lessor's Site, excluding net income taxes required to be paid by Lessor to
the State of Illinois or the City of Chicago. Operating Expenses shall also
include, but not by way of limitation, all other expenses incurred by Lessor
in the maintenance and operation of the Building and other portions of
Lessor's Site, calculated in accordance with generally accepted accounting
principles, except as specifically modified herein, excluding the following:
(i) pro rata Operating Expenses and Taxes for owner
occupied space;
(ii) costs recovered by Lessor directly from Lessee and
other tenants of the Building and other portions of
Lessor's Site;
(iii) real estate brokers' leasing commissions or compensation;
16
(iv) costs of improvements and replacements that are
capitalized in accordance with generally accepted
accounting principles;
(v) consulting fees associated with capital improvements;
and
(vi) depreciation, interest and principal payments on
mortgages, and other debt costs, if any, except that
depreciation of any capital improvements made after
expiration of the Base Year which are intended to
reduce Operating Expenses or which are required under
any governmental laws, regulations, or ordinances which
were not applicable to the Building or Lessor's site as
of the date hereof, shall not be excluded from
Operating Expenses.
20. ADDITIONAL RENT.
(a) "Consumer Price Index" shall mean the Consumer Price Index of
Urban Wage Earners and Clerical Workers - as revised from time to time - all
items, City of Chicago, issued by the Bureau of Labor Statistics, United
States Department of Labor, 1967 equals 100. In the event of a change in the
base index year or other index change, the adjustment factor issued by the
United States Department of Labor or other appropriate agency shall be
applied to the Consumer Price Index for purposes of this paragraph. If the
Consumer Price Index shall become unavailable to the public because
publication is discontinued, or otherwise, Lessor will substitute therefor a
comparable index based upon changes in the cost of living or purchasing power
of the consumer dollar published by any other governmental agency or, if no
such index shall then be available, a comparable index published by a major
bank or other financial institution or by a university or a recognized
financial publication.
(b) Effective as of each January 1 ("Adjustment Date") during the
Term, commencing January 1, 2000, the annual Base Rent for each year, shall
be increased by multiplying the Base Rent times twenty (20%) percent of the
percentage increase, if any, in the Consumer Price Index for the immediately
preceding calendar year over the Price Index for the calendar year 1998
("Base Year"). The Consumer Price Index for any year shall be determined by
adding the Consumer Price Index published for each month of the year and
dividing the total by twelve. In no event shall the Base Rent for any Lease
year be less than those amounts provided in Paragraph 1 hereof, unless Lessor
has exercised its right under Paragraph 2(f) of this Lease regarding the
discontinuance of furnishing electricity to the Premises.
(c) Lessor shall notify Lessee in writing as to the amount due
Lessor as a result of any change in the Consumer Price Index and Lessor shall
provide to the Lessee the Consumer Price Index for the Base Year and such
subsequent calendar year. Lessee shall remit its payment for the adjustment
to rent attributed by the Consumer Price Index within ten (10) days of the
above referred written notice from Lessor to Lessee.
17
(d) Lessee shall also pay Lessor estimated rent (hereinafter
referred to as "Estimated Rent") in equal monthly installments each in
advance on the first day of each and every month during the Term in an amount
equal to one twelfth (l/l2th) of Lessor's estimate of the increase in
Consumer Price Index for the then current calendar year over the Base Year
computed as set forth in subparagraph (b) of this Paragraph 20, above
provided, however, that all Estimated Rent paid by Lessee in each calendar
year shall be applied as a credit against the Additional Rent to be paid by
Lessee to Lessor in accordance with subparagraph (b) above as calculated at
the end of each calendar year. At the expiration of Lessee's Term, Lessor
shall notify Lessee in writing of the actual Additional Rent due from Lessee
for the period, the Consumer Price Index for said period, and the Consumer
Price Index for the Base Year. All estimated Consumer Price Index rent
adjustment payments made by Lessee under this subparagraph (d) for the
period, shall be applied as a credit against the actual Additional Rent due
Lessor. Lessee's payment, if any, shall be due within ten (l0) days of said
notification from Lessor to Lessee. Lessee's obligation for said payment
shall survive the Term of this Lease.
(e) In the event of a Lease expiration on a day other than the
last day of the calendar year, rent adjustment for any Consumer Price Index
increase will be prorated for that portion of the Lease year extending beyond
the first day of the calendar year in which the Lease expires.
21. INTENTIONALLY DELETED.
22. SECURITY DEPOSIT. Lessee has this day deposited with the Lessor,
the sum of Five thousand nine hundred seventeen dollars ($5,917.00) as
security for the full and faithful performance by the Lessee of all the
terms, covenants and conditions upon the Lessee's part to be performed, which
said sum shall be returned to the Lessee within ninety (90) days after the
time fixed as the expiration of the Term herein. In the event of default by
the Lessee in respect of any of the terms, covenants, conditions or
provisions of said Lease, the Lessor may use, apply or retain all or any part
of the said security deposit in payment of any expense incurred by Lessor in
curing any default by Lessee, or (b) of damages suffered by Lessor by reason
of Lessee's default. Where applicable, vouchers and/or paid receipts will be
submitted to the Lessee within ninety (90) days, however Lessor's failure to
submit said documents within said time period shall not relieve Lessee's
liability for the above referred defaults under this Lease. The Lessor may
return the security or unused portion to the original Lessee, regardless of
any assignments of the within Lease in the absence of evidence satisfactory
to the Lessor of an assignment of the right to receive such security or any
part or balance thereof.
23. AFTER HOUR HVAC. During the Term of the Lease, the Lessee shall
have the right to purchase after hour heating, ventilation and air
conditioning at the rate of Forty Five ($45.00) Dollars per hour during the
first year of the Term and thereafter at its prevailing rates for such
services. Lessee must notify Lessor during the business hours and at least
two (2) hours
18
in advance of its requirement for after hour HVAC. Lessee shall pay for such
services within ten (10) days after receipt of invoice from Lessor.
24. EFFECT OF WAIVER. The failure of Lessor to insist in any one or
more instances upon the strict performance of any of the terms, covenants,
conditions and agreements of this Lease, or to exercise any option herein
conferred, shall not be considered as Waiving or relinquishing for the future
any such terms, covenants or conditions, agreements or options, but the same
shall continue and remain in full force and effect; and the receipt of any
rent or any part thereof, whether the rent be that specifically reserved or
that which may become payable under any of the covenants herein contained,
and whether the same be received from Lessee or from any one claiming under
or through it or otherwise shall not be deemed to operate as a waiver of the
rights of Lessor to enforce the payment of rent or charges of any kind
previously due or which may thereafter become due, or the right to terminate
this Lease and to recover possession of the Premises by summary proceedings
or otherwise, as Lessor may deem proper, or to exercise any of the rights or
remedies reserved to Lessor hereunder or which Lessor may have at law, in
equity or otherwise.
25. CONSTRUCTION OF LEASE. Should any of the provisions of this Lease
require judicial interpretation, it is agreed that the court interpreting or
construing the same shall not apply a presumption that the terms of any such
provision shall be more strictly construed against one party by reason of the
rule of construction that a document is to be construed most strictly against
the party who itself or through its agent prepared the same, it being agreed
that the agents of all parties have participated in the preparation of this
Lease.
26. TENANT'S INSURANCE.
(a) Lessee, at Lessee's expense, agrees to maintain in force
during the Term:
(i) Comprehensive General Liability Insurance on an occurrence
basis with minimum limits of liability in an amount of
$500,000 for bodily injury, personal injury or death to
any one person and $100,000 with respect to damage to
property, including water and sprinkler damage; and
(ii) Fire Insurance with extended coverage and vandalism and
malicious mischief endorsements, in an amount adequate to
cover the full replacement value of all leasehold
improvements paid for by Lessee and wall and floor coverings
in the Premises.
(b) The policy referred to in Paragraph 26(a)(i) shall name
Lessor, its beneficiaries, and its respective agents and employees as
additional insureds and shall not provide for deductible amounts. The policy
referred to in Paragraph 26(a)(ii) shall not provide for deductible amounts
in excess of $5,000. Each policy referred to in Paragraph 26 shall be
19
issued by one or more responsible insurance companies reasonably satisfactory
to Lessor and shall contain the following provisions and endorsements:
(i) that such insurance may not be canceled or amended without
thirty (30) days prior written notice to Lessor;
(ii) an express waiver of any right of subrogation by the
insurance company against Lessor and its agents and
employees; and
(iii) that the policy shall not be invalidated should the insured
waive in writing prior to a loss any or all rights of
recovery against any other party for losses covered by such
policies.
(c) Lessee shall deliver to Lessor certificates of insurance of
all insurance policies and renewals thereof to be maintained by Lessee
hereunder, not less than ten (10) days prior to the expiration date of each
policy. Provided that the insurance policies of Lessee will not be
invalidated nor will the right of the insured to collect the proceeds payable
under such policies be adversely affected by the waiver contained in the
following portion of this sentence, Lessee herein expressly waives all rights
of recovery which it might otherwise have against Lessor and its agents and
employees, for loss or damage to person, property or business to the extent
that such loss or damage is covered by valid and collectible insurance
policies. Lessee shall use its best efforts to obtain from its insurer the
right to waive claims as set forth in the preceding sentence without thereby
invalidating its insurance or affecting its right to proceeds payable
thereunder.
(d) Any insurance policy maintained by Lessor shall contain if
available an express waiver of any right of subrogation by the insurance
company against Lessee and its agents or employees.
27. REAL ESTATE BROKERS. Lessee represents that Lessee has not dealt
with any real estate broker, sales person or finder in connection with this
Lease, and no such person initiated or participated in the negotiation of
this Lease or showed the Premises to Lessee. Lessee hereby agrees to
indemnify and hold harmless Lessor from and against any and all liabilities
and claims for commissions and fees arising out of a breach of the foregoing
representation. Lessor shall be responsible for the payment of a commission
to the broker specified in this Paragraph 27, based upon the leasing
commission policy of Lessor applicable to the Building and in effect as of
the date of this Lease.
28. GOVERNING LAW. This Lease and the terms and provisions hereof
shall be construed in accordance with the Laws of the State of Illinois.
20
29. SIGNAGE. Lessee shall obtain Lessor's written consent, which shall
not be unreasonably withheld, prior to placing any signage on or next to the
entrance door to the Premises.
30. SALE BY LESSOR. In the event of a sale or conveyance by Lessor of
the Building and Lessor's site, the same shall operate to release Lessor from
any future liability upon any of the covenants or conditions, expressed or
implied, herein contained in favor of Lessee, and in such event Lessee agrees
to look solely to the responsibility of the successor in interest of Lessor
in and to this Lease. Except as set forth in this Paragraph, this Lease
shall not be affected by any such sale, and Lessee agrees to attorn to the
purchaser or assignee. If any security has been given by Lessee to secure
the faithful performance of any of the covenants of this Lease, Lessor may
transfer or deliver said security, as such, to Lessor's successor in interest
and thereupon Lessor shall be discharged from any further liability with
regard to said security, provided that any successor shall not be liable for
such security unless such successor receives the same.
31. ESTOPPEL CERTIFICATE. Within ten (l0) days following any written
request which Lessor may make from time to time, Lessee shall execute and
deliver to Lessor or any prospective Lessor or mortgagee or prospective
mortgagee a sworn statement certifying: (a) the date of commencement of this
Lease; (b) the fact that this Lease is unmodified and in full force and
effect (or, if there have been modifications hereto, that this Lease is in
full force and effect, as modified, and stating the date and nature of such
modifications), (c) the date to which the rent and other sums payable under
this Lease have been paid, (d) the fact that there are no current defaults
under this Lease by either Lessor or Lessee, except as specified in Lessee's
statement, and (e) such other matters requested by Lessor. Lessor and Lessee
intend that any statement delivered pursuant to this Paragraph may be relied
upon by any mortgagee, beneficiary or purchaser and Lessee shall be liable
for all loss, cost or expense resulting from the failure of any sale or
funding of any loan caused by any material misstatement contained in such
estoppel certificate. Lessee hereby irrevocably appoints Lessor, or if
Lessor is a trust, Lessor's beneficiary or agent, as attorney-in-fact, for
the Lessee with full power and authority to execute and deliver the same
after such ten (l0) day period and such certificate as signed by Lessor,
Lessor's beneficiary or agent, as the case may be, shall be fully binding on
Lessee, if Lessee fails to deliver a contrary certificate within five (5)
days after receipt by Lessee of a copy of the certificate executed by Lessor,
Lessor's beneficiary or agent, as the case may be, on behalf of Lessee. This
Paragraph shall also be binding on any subtenant of Lessee.
32. UNAVOIDABLE DELAYS. The provisions of this Paragraph shall be
applicable if there shall occur, in and after the Rent Commencement Date, any
strikes, lockouts for labor disputes, inability to obtain labor or materials
or reasonable substitutes therefor or acts of God, governmental restrictions,
regulations or controls, enemy or hostile government action, civil commotion,
fire or other casualty or other conditions similar or dissimilar to those
enumerated in this Paragraph beyond the reasonable control of the party
obligated to perform. If Lessor or Lessee shall, as a result of any of the
above mentioned events, fail punctually to
21
perform any obligation on its part to be performed under this Lease, then
such failure shall be excused and not be a breach of this Lease by the party
in question, but only to the extent and for the time occasioned by such
event. Notwithstanding anything to the contrary herein contained, however,
the provisions of this Paragraph shall not be applicable to Lessee's
obligation to pay, when due and payable, the Base Rent, Adjusted Rent,
Estimated Rent, or any other rent or sums or charges; and in addition, lack
of funds or inability to procure financing shall not be deemed to be an event
beyond the reasonable control of Lessee in the event of any unavoidable
delays as in this Paragraph provided. As a condition precedent to Lessee
claiming or relying upon such delay, Lessee shall give notice in writing of
such event to Lessor within ten (l0) days after the occurrence of the same.
33. TAXES. Lessee shall pay before delinquency all taxes, assessments,
license fees and public charges levied, assessed or imposed upon its business
operation, as well as upon its leasehold interest, trade fixtures,
furnishings, equipment, leasehold improvements, alterations, changes and
additions made by Lessee, merchandise and personal property of any kind
owned, installed or used by Lessee in, on or upon the Premises. In the event
any such items of property are assessed together with property of Lessor for
purposes of ad valorem real estate taxes, then, and in such event, such
assessment shall be equitably divided. Lessor shall determine the basis of
dividing any such assessments and such determination shall, if not arbitrary
or capricious, be binding upon both Lessor and Lessee. Lessee shall
reimburse Lessor upon demand for any such tax based on property of Lessee and
such amount shall be deducted in determining Operating Expenses hereunder.
Lessee, and not Lessor, shall pay when due and payable, any sales or use tax,
or other excise, tax or assessment, if any, now or hereafter levied or
assessed upon or against Lessee's or Lessor's interest in this Lease. If at
any time during the Term a tax, imposition, assessment or excise on rents or
other tax, however described, is levied or assessed against Lessor's interest
in this Lease or the rents hereunder, as a substitute in whole or in part for
any real property taxes as hereinbefore described, then Lessee hereby agrees
to pay Lessor, as additional rent hereunder, the amount of such tax,
imposition, assessment or excise on rents to the extent of such substitution.
Should the appropriate taxing authority require that any such tax, excise
and/or assessment be collected by Lessor for or on behalf of such taxing
authority, then such tax, excise and/or assessment shall be paid by Lessee to
Lessor monthly as additional rent in accordance with the terms of any notice
from Lessor to Lessee to such effect.
34. EXCULPATION OF LESSOR. Notwithstanding anything contained herein
to the contrary, the covenants contained in this Lease to be performed by
Lessor shall not be binding personally, but instead said covenants are made
for the purpose of binding only the fee simple or leasehold estate which
Lessor owns in the demised Premises. The Lessee shall look solely to the
equity of the Lessor in the property for the satisfaction of the remedies of
the Lessee in the event of a breach by the Lessor.
22
IN WITNESS WHEREOF, the parties hereunder have caused this Lease to be
executed under their seals, on the date first above written.
LESSOR:
ATTEST: MAC Management Co., Inc. as exclusive agent for
640 LaSalle LLC, an Illinois limited liability
company
By: BY
------------------------- -------------------------
Its Secretary Its President
ATTEST: LESSEE:
Xxxxx.xxx Inc., a Delaware Corporation
BY: BY:
------------------------- -------------------------
Its Secretary Its President
23
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, ________________________ , a Notary Public in and for said County in
the State aforesaid, do hereby certify that ____________________________, an
officer of the corporation, personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that he signed and delivered the said
instrument as his own free and voluntary act.
Given under my hand and notarial seal this ________ day of
____________________________, 199__.
---------------------------------------
Notary Public
My commission expires:
-------------------------
24
INDEX
PARAGRAPH PAGE
--------- ----
1. BASE RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. LESSOR'S TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. CERTAIN RIGHTS RESERVED TO THE LESSOR . . . . . . . . . . . . . . 3
5. DEFAULT UNDER OTHER LEASE . . . . . . . . . . . . . . . . . . . 4
6. WAIVER OF CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . 4
7. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . 5
9. CONDITION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . 5
10. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13. UNTENANTABILITY . . . . . . . . . . . . . . . . . . . . . . . . 9
14. EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . 10
15. LESSOR'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 10
16. SUBORDINATION OF LEASE. . . . . . . . . . . . . . . . . . . . . 12
17. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18. MISCELLANEOUS.. . . . . . . . . . . . . . . . . . . . . . . . . 13
19. RENT ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . . . 15
20. ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . 16
21. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . . . . . . 17
22. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . 17
23. AFTER HOUR HVAC . . . . . . . . . . . . . . . . . . . . . . . . 18
24. EFFECT OF WAIVER. . . . . . . . . . . . . . . . . . . . . . . . 18
25. CONSTRUCTION OF LEASE . . . . . . . . . . . . . . . . . . . . . 18
26. TENANT'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . 18
27. REAL ESTATE BROKERS . . . . . . . . . . . . . . . . . . . . . . 19
28. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 20
29. SIGNAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
30. SALE BY LESSOR. . . . . . . . . . . . . . . . . . . . . . . . . 20
31. ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . 20
32. UNAVOIDABLE DELAYS. . . . . . . . . . . . . . . . . . . . . . . 20
33. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
34. EXCULPATION OF LESSOR . . . . . . . . . . . . . . . . . . . . . 21
LEASE AGREEMENT
BY AND BETWEEN
MAC Management Co., Inc. as
Exclusive Agent for
640 LaSalle LLC, an Illinois
limited liability company
and
Xxxxx.xxx Inc., a Delaware Corporation, as Lessee
To Premises Commonly Known As
SUITE 557
000 X. XX XXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
