THIRD AMENDMENT TO LEASE AGREEMENT
This Third Amendment to Lease Agreement ("Third Amendment") is dated as
of February , 2000, by and between BROADWAY PARTNERS, an Illinois General
Partnership as Landlord and XXXXXXX, INC., an Illinois Corporation as Tenant.
WITNESSETH
WHEREAS, on October 8, 1993, International Brotherhood of Painters and
Allied Trades Union and Industry Pension Fund ("Prior Landlord") and Tenant
entered into a Lease ("the Original Lease") for 51,155 square feet of space in
the building located at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxx Xxxxxxx, Xxxxxxxx (the
"Building") for a term of April 1, 1994 through March 31, 1997.
WHEREAS, on March 2,1995, prior Landlord and Tenant entered into a
Lease Amendment Agreement whereby Tenant leased the entire 82,620 square feet
(the "Premises") of the Building.
WHEREAS, on September 17, 1996, Landlord and Tenant entered into a
Second Lease Amendment extending the term of the Lease to March 31, 2000, and
amending the rental rate pursuant to the Lease;
(Hereinafter the Original Lease, the Lease Amendment Agreement and
Second Lease Amendment are hereinafter referred to "as the Lease")
WHEREAS, Broadway Partners has succeeded to the interest of Prior
Landlord (hereinafter, Broadway Partners shall be referred to as "Landlord");
WHEREAS, Landlord and Tenant desire to amend the Lease to extend the
term through March 31, 2005, amend the Base Rent to be paid under the Lease,
amend the Security Deposit requirement and to provide at the option of Tenant
for the construction of approximately 2,500 square feet of additional office
space, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of Ten no/100 dollars and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, Landlord and Tenant agree as follows:
1. Term. Paragraph 1 of the Lease is amended to provide that the
expiration date of the Lease shall be March 31, 2005.
2. Base Rent. Paragraph 2a is amended to provide that the base
rent to be paid by Tenant to Landlord hereunder
shall be as set forth in the rent schedule attached hereto as
Schedule A.
3. Paragraph 2b of the Lease is hereby amended as follows:
SECURITY DEPOSIT
Landlord presently holds the amount of $30,146.10 as
the Security Deposit. Upon the signing of this Third
Amendment, Tenant shall deposit with Landlord the
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amount of $4,967.40, which will increase the Security Deposit
to the sum of $35,113.50 as security for the faithful
performance and observance by Tenant of the terms, conditions
and provisions of this Lease including without limitation, the
surrender of possession of the Premises to Landlord as herein
provided. At the option of Tenant, the Security Deposit may be
in the form of an irrevocable letter of credit ("Letter of
Credit") issued on the account of Tenant by a bank or
financial institution ("Issuer Bank"). The Letter of Credit
must provide for partial draws and that the same may be drawn
upon by Landlord pursuant to the provisions of this Section.
In the event Tenant defaults in respect of any of the terms,
provisions and conditions of this Lease, including, but not
limited to, the payment of Base Rent or Additional Rent, and
fails to cure said default within any applicable cure period,
Landlord may draw down upon said Letter of Credit and apply or
retain the whole or any part of the Security Deposit so
deposited to the extent required for the payment of any Base
Rent and Additional Rent or any other sum as to which Tenant
is in default or for any sum which Landlord may expend or may
be required to expend, as provided in this Lease, by reason of
Tenant's default in respect of any of the terms, covenants and
conditions of this Lease. If Landlord applies or retains any
part of the Security Deposit so deposited, Tenant, upon
demand, shall deposit with Landlord the amount so applied or
retained so that Landlord shall have the full Security Deposit
on hand at all times during the Term. If Tenant shall fully
and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the security shall be
returned to Tenant within ten (10) days after the Expiration
Date and after delivery of the entire possession of the
Premises to Landlord. In the event of a sale of the Building
or leasing of the Building, Landlord shall have the right to
transfer the Security Deposit to the purchaser or lessee and
Landlord shall whereupon be released by Tenant from all
liability for the return of the Security Deposit; and Tenant
agrees to look solely to the new landlord for the return of
the Security Deposit; and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant further covenants
that it will not assign or encumber or attempt to assign or
encumber the Security Deposit and that neither Landlord nor
its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted
encumbrance.
4. Option to Terminate Lease. Tenant is hereby granted the one
time option to terminate the Lease (the "Termination Option")
effective March 31, 2003, upon the following terms and
conditions:
a. Written notice of the election of Tenant to terminate
the Lease must be given by Tenant to Landlord on or
before October 1, 2002.
b. Tenant's right to exercise the Termination Option
shall be contingent upon no Event of Default being
in existence under this Lease on the date of
exercise of the Termination Option or March 31, 2003,
whichever is applicable.
c. Tenant's right to terminate the Lease shall be
contingent upon Tenant paying to Landlord the
following amounts:
i. The sum of $105,340.50; and
ii. The unamortized cost of the Tenant
Improvement's performed by Landlord pursuant
to paragraph 5(a) below.
d. Tenant shall make payment of one-half the amount
referred to in subparagraphs c (i) and (ii) above at
the time of delivery of written notice of the
election of the Termination Option, and shall pay the
balance no later than the effective date of
termination of the Lease as set forth in the
termination notice.
5. Tenant Improvements.
(a) Upon written request from Tenant, Landlord at a cost
to Landlord not to exceed the sum of $62,500 will
construct approximately 2,500 square feet of
additional office space in the Premises (the "Tenants
Improvements"). Tenant shall reimburse Landlord for
the cost of the Tenant Improvements by amortizing the
cost thereof over the then remaining months of the
term of the Lease at an interest rate of 11%;
provided, however, Tenant shall reimburse Landlord
within ten days of substantial completion of the
Tenant improvements for any costs thereof in excess
of the sum of $62,500. Landlord shall construct the
Tenant Improvements pursuant to plans prepared by
Tenant (the "Tenant Plans") and reasonably approved
by Landlord. Upon substantial completion of the
Tenant Improvements, Tenant shall be obligated to
reimburse Landlord for said Tenant Improvements as
set forth above. Upon the completion of the Tenant
Improvements, the parties shall execute an agreement
memorializing the amount due from Tenant to Landlord
each month to reimburse Landlord for the Tenant
Improvement Work.
(b) Landlord shall give Tenant not less than 5 days
notice of the date of the expected substantial
completion date of the Tenant Improvements. If Tenant
disputes Landlord's notice that the Tenant
Improvements have been Substantially Completed,
Tenant shall deliver notice of such dispute to
Landlord within five (5) days after Landlord's
delivery to Tenant of Landlords' Notice of
Substantial Completion. The failure of Tenant to
deliver the foregoing Notice within such five (5) day
period shall preclude Tenant from claiming at a later
date that the Tenant Improvements have not been
Substantially Completed. Tenant's Notice disputing
Landlord's notice of Substantial Completion must
state with specificity which items Tenant disputes
are not Substantially Completed. In the event Tenant
delivers the foregoing Notice within such five (5)
day period, and Landlord and Tenant cannot mutually
agree on the date of Substantial Completion within
fifteen (15) days of Tenant's delivery of the
foregoing Notice, or such longer period as Landlord
and Tenant may agree upon, then the parties shall
each select an architect who in turn shall select a
third party licensed architect, whose determination
as to substantial completion shall be binding. The
parties shall each pay for their own architect and
split the cost of the third party architect.
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(c) In addition to the office space referred to in
Paragraph 5(a) above, Tenant shall have the option to
construct up to 2,500 square feet of additional
office space (the "Additional Space") pursuant to
plans and specifications prepared by the Tenant and
approved by the Landlord. Payment of the Additional
Space improvements will be the sole responsibility of
the Tenant. Landlord shall have the right to
condition its consent to the work for the Additional
Space upon review of the following information from
Lessee: (i) the names and addresses of all
contractors, subcontractors and material suppliers
who will be present on the Premises; (ii) copies of
all contracts pertaining to the performance of the
work for which such access is being requested; (iii)
copies of all licenses and permits required in
connection with the performance of the work for which
such access is being requested; and (iv) certificates
of insurance and instruments of indemnification
against all claims, costs, expenses, liens, damages,
and liabilities which may arise in connection with
such work in amounts and with companies reasonably
acceptable to Landlord. Tenant agrees that in
accordance with Paragraph 7 of the Original Lease
that upon expiration of the term, upon written notice
from Landlord it will remove the Additional Space and
restore the Premises to its original condition.
6. Tenants Payments for Fire and Casualty Insurance and
Landscaping:
a. Tenant shall pay all costs of Fire and Casualty
Insurance for the Building above the base year for
Fire and Casualty Insurance which for purposes hereof
is deemed to be April 1, 2000 through March 31, 2001.
b. Tenant shall pay Landlord for all landscaping costs
incurred in connection with the Building in each year
of the Lease which exceeds the sum of $4,500 per
year.
c. Tenant shall pay to Landlord the costs set forth in
subparagraphs a and b above within 15 days of receipt
of invoice thereof from Landlord.
7. The parties agree that all other terms and conditions of the
Lease remain in full force and effect.
8. Tenant agrees to provide Landlord with an original copy of
this amendment properly signed and attested to by a duly
authorized officer of the corporation approving this Third
Amendment prior to April 1, 2000, and prior to Landlords
obligation to commence the Tenant Improvements as set forth in
paragraph 5 hereof.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the date set forth above.
LANDLORD: TENANT:
BROADWAY PARTNERS, an Illinois XXXXXXX CORPORATION, an Illinois
General Partnership Corporation
By: /s/ Xxxxxxx X. X'Xxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- ------------------------------
Title: One of its Genera1 Partners Title: Senior Vice President
Print Name: XXXXXXX X. X'XXXXX Print Name: XXXXXXX XXXXXXX
Attest:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Secretary
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RENT SCHEDULE
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Rent per Sq. Ft.* Monthly Rent Annual Rent
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Year 1: 4/1/00 - 3/31/03 $5.10 $35,113.50 $421,362.00
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Year 2: 4/1/03 - 3/31/05 $5.20 $35,802.00 $429,624.00
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* Rent calculated upon 82,620 square feet.
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