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LEASE AGREEMENT
BETWEEN
820 WEST LAKE, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY,
AS LANDLORD,
AND
MORTGAGE EXPRESS, INC.,
AN ILLINOIS CORPORATION
AS TENANT
DATED: SEPTEMBER 1, 2000
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TABLE OF CONTENTS
Page
LEASE INFORMATION SUMMARY................................................. iv
1. LEASE GRANT............................................................ 1
2. TERM................................................................... 1
2.1. Commencement Date................................................. 1
2.2. Condition of Premises............................................. 1
2.3. (Intentionally Omitted)........................................... 1
3. RENT................................................................... 1
3.1. Base Rent......................................................... 1
3.2. Additional Rent................................................... 1
3.3. Payment........................................................... 3
4. SECURITY DEPOSIT.......................................................
4.1. Cash..............................................................
4.2. (Intentionally Omitted)........................................... 4
4.3. (Intentionally Omitted)........................................... 3
5. LANDLORD'S OBLIGATIONS................................................. 3
5.1. Services.......................................................... 3
5.2. Utilities......................................................... 4
5.3. Excess Utility Use................................................ 4
5.4. Restoration of Services........................................... 4
6. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE........................ 5
6.1. Improvements; Alterations......................................... 5
6.2. Repairs and Maintenance........................................... 5
6.3. Performance of Work............................................... 5
6.4. Mechanic's Liens.................................................. 6
7. USE.................................................................... 6
8. ASSIGNMENT AND SUBLETTING.............................................. 6
8.1. Transfers; Consent................................................ 6
8.2. Recapture......................................................... 8
8.3. Additional Compensation........................................... 8
9. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY............................. 8
9.1. Insurance......................................................... 8
9.2. Waiver of Negligence; No Subrogation.............................. 9
9.3. Indemnity by Tenant............................................... 9
10. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE............. 9
10.1. Subordination.................................................... 9
10.2. Attornment....................................................... 9
10.3. Notice to Landlord's Mortgagee................................... 9
11. RULES AND REGULATIONS................................................. 10
12. CONDEMNATION.......................................................... 10
12.1. Total Taking..................................................... 10
12.2. Partial Taking-- Tenant's Rights................................. 10
i
12.3. Partial Taking-- Landlord's Rights............................... 10
12.4. Award............................................................ 10
13. FIRE OR OTHER CASUALTY................................................ 11
13.1. Landlord's Rights................................................ 11
13.2. Repair Obligation................................................ 11
14. PERSONAL PROPERTY TAXES............................................... 11
15. DEFAULT............................................................... 12
15.1. Events of Default................................................ 12
15.2. Default Interest................................................. 12
16. REMEDIES.............................................................. 12
16.1. Right To Terminate............................................... 13
16.2. Receipt Of Money After Termination............................... 13
16.3. Recovery Of Damages.............................................. 13
16.4. Right To Re-Enter................................................ 13
16.5. Independent Covenant............................................. 14
16.6. Legal Expenses................................................... 14
17. PAYMENT BY TENANT; NON-WAIVER......................................... 14
17.1. Payment by Tenant................................................ 14
17.2. No Waiver........................................................ 14
18. SURRENDER OF PREMISES................................................. 15
19. HOLDING OVER.......................................................... 15
20. CERTAIN RIGHTS RESERVED BY LANDLORD................................... 15
21. MISCELLANEOUS......................................................... 17
21.1. Landlord Transfer................................................ 17
21.2. Landlord's Liability............................................. 17
21.3. Force Majeure.................................................... 17
21.4. Brokerage........................................................ 18
21.5. Estoppel Certificates............................................ 18
21.6. Notices.......................................................... 18
21.7. Severability..................................................... 18
21.8. Amendments; Binding Effect....................................... 19
21.9. Quiet Enjoyment.................................................. 19
21.10. No Merger....................................................... 19
21.11. No Offer........................................................ 19
21.12. Entire Agreement; Governing Law................................. 19
21.13. Calendar Days................................................... 19
21.14. Prohibition Against Leasehold Mortgages......................... 19
21.15. Waiver of Trial by Jury......................................... 19
21.16. Landlord's Remedies Cumulative.................................. 20
21.17. Prohibition Against Recordation................................. 20
21.18. Joint and Several Liability..................................... 20
21.19. Corporate Tenants............................................... 20
ii
EXHIBIT A - BUILDING RULES AND REGULATIONS
EXHIBIT B - INTENTIONALLY OMITTED
EXHIBIT C - ESTOPPEL CERTIFICATE
EXHIBIT D - INTENTIONALLY OMITTED
EXHIBIT E - INTENTIONALLY OMITTED
EXHIBIT F - CERTIFICATE OF COMMENCEMENT DATE
iii
LEASE INFORMATION SUMMARY
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I. LEASE DATE September 1, 2000
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II PARTIES AND ADDRESSES
A. LANDLORD: 820 West Lake, LLC, an Illinois limited liability company
B. LANDLORD'S ADDRESS FOR NOTICES: 000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
With copies to:
Much Shelist Freed Xxxxxxxxx Xxxxx & Xxxxxxxxxx, P.C.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
C. TENANT: Mortgage Express, Inc.
D. TENANT'S ADDRESS FOR NOTICES: 000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X'Xxxxxx
E. GUARANTOR: N/A
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III. PROPERTY INFORMATION
A. BUILDING: 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 including all related
land, landscaped areas, driveways, parking facilities and similar
improvements to the extent applicable
B. PREMISES: Suites Nos. 10-14, 20, 22, 24, 102, 201-04, 300, 330 and 360 in the
Building comprising approximately Twenty Three Thousand and Five
Hundred Thirty (23,530) rentable square feet (Section 1)
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IV. TERM
A. TERM OF LEASE: Ten (10) years, beginning on the Commencement Date and ending on the
Termination Date (Section 2)
B. COMMENCEMENT DATE: September 1, 2000
C. TERMINATION DATE: August 31, 2010 (Section 2)
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V. RENT
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A. BASE RENT: $12,000.00 per month during first and second year
After the third year, there shall
be an annual increase in the base
rent equal to three percent (3%)
a month of the base rent
(Section 3.1)
B. LANDLORD'S ADDRESS FOR PAYMENT OF 801 Cass LLC, an Illinois limited liability company
RENT: 000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
(Sections 3.1 and 3.3)
C. TENANT'S PROPORTIONATE SHARE: Fifty-Two one-hundredths percent
(52%), which equals the
percentage that the rentable
square footage of the Premises
(which is stipulated by the
parties to be 21.034 square feet)
bears to the total square footage
of all rentable office space in
the Building (which is stipulated
by the parties to be 39,928
square feet) (Section 3.2).
D. OPERATING COSTS Tenant's Proportionate Share of the Operating Costs incurred during
ADJUSTMENT: any calendar year during the Term (Section 3.2)
E. TAX ADJUSTMENT: Tenant's Proportionate Share of the Taxes paid during any calendar
year of the Term (Section 3.2)
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VI. OTHER PROVISIONS
A. SECURITY DEPOSIT: $_______________ (Section 4.1)
B. ELECTRICAL USAGE RATE: N/A
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C. PERMITTED USE: General Office and Administrative Use (Section 7)
D. LANDLORD'S BROKER: N/A (Section 21.4)
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E. TENANT'S BROKER: N/A (Section 21.4)
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The summary of lease information set forth above and any addendum and/or
exhibit(s) attached to this Lease are incorporated into and made a part of the
following Lease. Each reference in this Lease to any of the lease information
set forth above means the respective information above, including all of the
terms provided under the particular section of this Lease pertaining to such
information. In the event of any conflict between the summary of lease
information and the provisions of this Lease, the latter will control. All
section references in this summary refer to the sections of the Lease where such
provision is described.
v
LANDLORD:
820 West Lake, LLC, an Illinois
limited liability company
By:
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Its: Managing and Sole Member
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TENANT:
Mortgage Express, Inc., an Illinois corporation
By:
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Its: President
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vi
THIS LEASE AGREEMENT (the "LEASE") is made and entered into as of the
Lease Date between Landlord and Tenant. All capitalized terms not otherwise
defined in the body of the Lease have the meanings established in the Lease
Information Summary above.
1. LEASE GRANT.
Subject to the terms of this Lease, Landlord leases to Tenant and
Tenant rents from Landlord the Premises in the Building. The Premises are
outlined on the floor plan attached to this Lease as Exhibit A.
2. TERM.
2.1. COMMENCEMENT DATE.
The term of this Lease (the "TERM") will commence on the Commencement
Date and will end on the Termination Date. Upon taking occupancy of the
Premises, Tenant agrees to sign the Certificate of Commencement Date attached to
this Lease as Exhibit F confirming the Commencement Date and the Termination
Date. Tenant shall be responsible and shall pay the cost of any and all tenant
improvements required by Tenant.
2.2. CONDITION OF PREMISES.
Tenant's acceptance of possession of the Premises will be deemed
conclusive evidence that Tenant has approved and accepted the Premises in their
"AS-IS" condition on the date Tenant accepts possession. Landlord has no
obligation to make any changes or improvements to the Premises. Tenant shall be
responsible and shall pay the cost of any and all tenant improvements required
by Tenant.
2.3. (INTENTIONALLY OMITTED)
3. RENT.
3.1. RENT.
Rent is payable by Tenant throughout the Term in the amounts and at the
times set forth in the Lease Information Summary above. The first monthly
installment of Rent is due and payable contemporaneously with the execution of
this Lease; subsequently, Rent is payable no later than the first day of each
month beginning on the second full calendar month of the Term. The monthly Rent
for any partial month at the beginning of the Term will equal the product of
1/365 of the annual Rent, annualized, in effect during the partial month
multiplied by the number of days in the partial month from and after the
Commencement Date.
3.2. ADDITIONAL RENT.
(a) Payment of Additional Rent. In addition to base Rent and
commencing at the beginning of the Term, Tenant will pay to
Landlord as Additional Rent ("ADDITIONAL RENT") the Operating
Costs Adjustment and the Tax Adjustment, which will be
calculated and determined by Landlord as set forth below.
(b) Definition - Operating Costs. The term "OPERATING COSTS" means
all expenses and disbursements (subject to the limitations set
forth below) that Landlord incurs in connection with the
ownership, operation, maintenance and management of the
Building, determined in accordance with sound accounting
principles consistently applied, including, but not limited
to, the following costs: (1) wages and salaries
1
(including management fees and reimbursements of expenses
incurred by Landlord's management agent) of all employees
engaged in the operation, maintenance, and security of the
Building, including taxes, insurance and benefits relating to
such costs; (2) all uniforms, supplies, tools and materials
used in the operation, supervision, maintenance, repair,
replacement and security of the Building; (3) costs for
improvements made to the Building which, although capital in
nature, are expected to reduce the normal operating costs of
the Building, as well as capital improvements made in order to
comply with any law, statute, ordinance, code, regulation or
insurance requirement(s) promulgated by any governmental
authority, as amortized over the useful economic life of such
improvements as determined by Landlord in its reasonable
discretion; (4) cost of all utilities, except the cost of
utilities reimbursable to Landlord by the Building's tenants;
(5) insurance expenses; (6) repairs, replacements, and general
maintenance of the Building, including costs of inspecting and
depreciation of machinery and equipment; (7) service or
maintenance contracts and/or agreements for the operation,
maintenance, repair, replacement, or security of the Building
(including, without limitation, alarm service, window washing,
landscaping, elevator maintenance, HVAC system maintenance,
security, cleaning, trash removal, sweeping and snow removal);
(8) legal, accounting, engineering and other professional fees
and expenses relating to managing and maintaining the
Building; (9) costs, including reasonable attorney's fees,
incurred in contesting, protesting, attempting to reduce
and/or attempting to restrict increases in Taxes; and (10) all
other costs properly constituting operating costs according to
sound accounting principles consistently applied.
(c) Exclusions From Operating Costs. Operating Costs do not
include costs for (1) capital improvements made to the
Building (except capital improvements described in Section
3.2(b)(3) above); (2) repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or
other third parties; (3) interest, principal, amortization or
other payments on loans to Landlord, except for interest
payments made in connection with Subsection 3.2(b)(3) above;
(4) depreciation; (5) real estate brokerage and/or leasing
commissions; and (6) renovations, alterations or improvements
to the space of other tenants or occupants of the Building or
vacant space in the Building.
(d) Definition - Taxes. The term "TAXES" means all taxes,
assessments, and governmental charges payable in a calendar
year, regardless when such Taxes become a lien upon the
Building, including but not limited to all real estate and
transit district taxes and assessments, sewer charges, sales
and use taxes, ad valorem taxes, personal property taxes, the
Illinois Property Replacement Tax and any other taxes and
assessments attributable to the Building (or its operation),
the grounds, parking areas, driveways, and alleys around the
Building, but excluding any federal and state taxes on the
income of Landlord from the operation of the Building. If the
present method of taxation changes so that in lieu of the
whole or any part of any Taxes, there is levied on Landlord a
capital tax directly on the rents received from the Building
or a franchise tax, assessment, or charge based, in whole or
in part, upon such rents for the Building, then all such
taxes, assessments, or charges, or the part of such taxes so
based, will be deemed to be included within the term "Taxes"
for purposes of this Lease.
(e) Payment of Additional Rent. Landlord will make a good faith
estimate of the Additional Rent to be due from Tenant for all
or part of any calendar year during the Term, and Tenant
agrees to pay to Landlord, on the Commencement Date and on the
first day of each subsequent calendar month during the Term,
an amount equal to 1/12th of the estimated Additional Rent for
such full or partial calendar year. From time to time,
2
Landlord may estimate and re-estimate the Additional Rent to
be due from Tenant and deliver a copy of the estimate or
re-estimate to Tenant. Subsequently, the monthly installments
of Additional Rent payable by Tenant will be appropriately
adjusted in accordance with Landlord's estimations so that by
the end of the calendar year in question Tenant will have paid
all of the Additional Rent as estimated by Landlord. By April
1 of each calendar year, or as soon after that date as
practicable, Landlord will furnish to Tenant a statement of
Operating Costs paid for the previous year, adjusted as
provided in Section 3.2(f) below (the "OPERATING COSTS
STATEMENT"). By June 1 of each calendar year, or as soon after
that date as practicable, Landlord will furnish to Tenant a
statement of the Taxes paid for the previous year, adjusted as
provided in Section 3.2(f) below (the "TAX STATEMENT"). If the
Operating Costs Statement and/or the Tax Statement reveal(s)
that Tenant paid more in Operating Costs Adjustment or Tax
Adjustment than the actual amount for the year for which such
statement was prepared, then Landlord will promptly credit
Tenant for such excess. Likewise, if Tenant paid less in
Operating Costs Adjustment than the actual amount for the year
for which such statement was prepared, then Tenant shall pay
such deficiency to Landlord within ten (10) days after
Landlord's demand. This provision will survive the Termination
Date of this Lease.
(f) Occupancy and Tax Adjustment. With respect to any calendar
year or partial calendar year in which the Building is not
fully occupied, those Operating Costs which vary with
occupancy of the Building and/or Taxes for such period will,
for the purposes of this Lease, be increased to the amount
which would have been incurred had the Building been fully
occupied.
3.3. PAYMENT.
Tenant agrees to timely pay to Landlord during the Term Rent, and our
additional sums to be paid by Tenant to Landlord under this Lease (collectively
the "RENT"), without notice, demand, abatement, deduction, setoff or
counterclaim, at Landlord's Address for Payment of Rent or as otherwise
specified by Landlord. Tenant further agrees to pay a late fee equal to five
percent (5%) of any delinquent payment to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenant's delinquency. In no event,
however, will the charges permitted under this Section 3.3 or elsewhere in this
Lease, to the extent they are considered to be interest under law, exceed the
maximum lawful rate of interest.
4. SECURITY DEPOSIT. (INTENTIONALLY OMITTED)
4.1. (INTENTIONALLY OMITTED)
4.2. (INTENTIONALLY OMITTED)
4.3. (INTENTIONALLY OMITTED)
5. LANDLORD'S OBLIGATIONS.
5.1. SERVICES.
Landlord will furnish to the Premises (1) water at those points of
supply provided for general use of tenants of the Building; (2) heating and air
conditioning between 8:00 a.m. and 6:00 p.m. on weekdays and from 8:00 a.m. to
1:00 p.m. on Saturdays (collectively "NORMAL
3
BUSINESS HOURS"); (3) janitorial service to the Premises on weekdays, other than
holidays, for Building-standard installations and such window washing as may
from time to time be reasonably required; (4) passenger elevators for ingress
and egress, provided that Landlord may reasonably limit the number of operating
elevators during non-business hours and holidays; and (5) facilities for the
provision of electric current for Tenant's equipment in a sufficient quantity to
meet normal office usage, Tenant will be responsible for the cost of all
electric current used by Tenant, and electrical requirements. Landlord will
maintain the common areas of the Building in reasonably good order and
condition, except for damage caused by Tenant, or its employees, agents or
invitees.
5.2. UTILITIES.
If the respective utilities are not separately metered at the Premises
and billed directly to Tenant by the service provider, then Tenant will pay
directly to Landlord as Rent, upon demand by Landlord, the cost of all utilities
used or consumed at, on or in the Premises. Such cost will be computed by
multiplying the Electrical Usage Rate then in effect times the square footage of
the Premises, or as adjusted by Landlord from time to time. If the respective
utilities are separately metered at the Premises, then Tenant shall pay directly
to each provider of such utilities the cost of all utilities used or consumed
at, on or in the Premises as and when the charges for the same become due and
payable. If Tenant fails to pay for any of the above services when the same
become due and payable, Landlord will have the right but not the duty to pay the
same, which amount so paid will be deemed Rent and will be payable immediately
upon demand from Landlord. Tenant agrees to (i) keep and cause to be kept closed
all windows in the Premises, (ii) at all times cooperate fully with Landlord in
the operation of the heating and air conditioning systems, and (iii) abide by
all reasonable regulations and requirements which Landlord may prescribe to
permit the proper functioning and protection of the heating and air conditioning
systems.
5.2. EXCESS UTILITY USE.
Tenant may not install any electrical equipment requiring special
wiring or requiring voltage in excess of normal office usage or otherwise
exceeding Building capacity unless approved in advance and in writing by
Landlord, which approval will be within Landlord's sole discretion. Tenant
agrees not to use electricity in the Premises which exceeds the capacity of
existing feeders and risers to or wiring in the Premises. If approved by
Landlord, any risers or wiring required to meet Tenant's excess electrical
requirements will be installed by Landlord, upon Tenant's request and at
Tenant's cost, if, in Landlord's judgment, the same are necessary and will not
cause permanent damage to the Building or the Premises, cause or create a
dangerous or hazardous condition, entail excessive or unreasonable alterations,
repairs, or expenses, or interfere with or disturb other tenants of the
Building. If Tenant uses machines or equipment in the Premises which affect the
temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Premises, and such cost, including the
cost of installation, operation, use, and maintenance, will be paid by Tenant to
Landlord within ten (10) days after Landlord has delivered to Tenant an invoice
for such cost.
5.3. RESTORATION OF SERVICES.
Landlord agrees to use reasonable efforts to restore any service that
becomes unavailable. Such unavailability will not, however, render Landlord
liable for any damages, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or entitle Tenant to any abatement of Tenant's
obligations under this Lease.
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6. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
6.1. IMPROVEMENTS; ALTERATIONS.
No alterations, physical additions or improvements in or to the
Premises may be made without Landlord's prior written consent. Landlord may
withhold its consent to any alteration or addition that could affect the
Building's structure or its HVAC, plumbing, electrical or mechanical systems.
Tenant may not paint or install lighting, signs, window or door lettering, or
advertising media of any type on or about the Premises without the prior written
consent of Landlord. Tenant acknowledges that Landlord may withhold its consent
to any such painting or installation which could affect the appearance of the
exterior of the Building or of any common areas of the Building. All
alterations, additions and improvements installed in the Premises must be (i)
performed at Tenant's expense and only in accordance with plans and
specifications which have been previously submitted to and approved in writing
by Landlord, and (ii) constructed, maintained and used by Tenant at its own risk
and expense in accordance with all laws. Landlord's approval of the plans and
specifications is not a representation by Landlord that such alterations,
additions, or improvements comply with any law. Prior to commencing any work,
Tenant agrees to pay to Landlord a supervisory and administrative fee equal to
ten percent (10%) of the cost of any alterations, additions or improvements
performed by Tenant subsequent to the tenant improvements described in the
Workletter. Tenant agrees that it will remove or cause its contractor(s) to
remove all waste and debris from the Premises upon the completion of any
alterations, additions or improvements.
6.2. REPAIRS AND MAINTENANCE.
Tenant agrees to maintain the Premises in a clean, safe, and operable
condition, and will not permit or allow to remain any waste or damage to any
portion of the Premises. Tenant agrees to pay for the cost of repairing or
replacing, subject to Landlord's direction and supervision, any damage to the
Premises and the Building caused by Tenant, Tenant's employees, Tenant's
transferees, or their respective agents, contractors, or invitees. If Tenant
fails to make such repairs or replacements within fifteen (15) days after the
occurrence of such damage, then Landlord may make the same at Tenant's cost. If
any such damage occurs outside of the Premises, then Landlord may elect to
repair such damage at Tenant's expense, rather than having Tenant repair such
damage. The cost of all repair or replacement work performed by Landlord under
this Section 6.2 must be paid by Tenant to Landlord, together with a supervisory
and administrative fee equal to ten percent (10%) of the cost of the repair or
replacement work performed by Landlord, within ten (10) days after Landlord has
invoiced Tenant for such cost and will constitute Rent under this Lease.
6.3. PERFORMANCE OF WORK.
Only Landlord or contractors and subcontractors approved in writing by
Landlord may perform the work described in this Section 6. Tenant will cause all
contractors and subcontractors to procure and maintain insurance coverage naming
Landlord as an additional insured against such risks, in such amounts, and with
such companies as Landlord may reasonably require. All such work must be
performed in accordance with all applicable governmental requirements and in a
good and workmanlike manner so as not to damage the Premises, the Building or
the components of the Building. Tenant agrees to defend, indemnify and hold
Landlord, its trustees, beneficiaries, employees, successors and assigns
harmless from and against any claims, liabilities, damages, losses, costs and
expenses, including but not limited to attorney's fees and court costs, suffered
or incurred by Landlord arising from any of Tenant's alterations, additions or
improvements to the Premises.
5
6.4. MECHANIC'S LIENS.
Tenant must not permit any mechanic's lien(s) to be filed against the
Premises or the Building for any work performed, materials furnished, or
obligations incurred by or at the request of Tenant. If such a lien is filed,
then, within ten (10) days after Landlord has delivered notice of the filing to
Tenant, Tenant must either pay the amount of the lien or diligently contest such
lien and deliver to Landlord a bond or other security reasonably satisfactory to
Landlord. If Tenant fails to timely take either such action, then Landlord may
pay the lien claim, and any amounts so paid, including expenses and interest,
will constitute Rent payable by Tenant to Landlord within ten (10) days after
Landlord has invoiced Tenant for such payment. Tenant agrees to defend,
indemnify and hold Landlord, its trustees, beneficiaries, employees, successors
and assigns harmless from and against any claims, liabilities, damages, losses,
costs and expenses, including but not limited to attorney's fees and court
costs, suffered or incurred by Landlord arising from the presence or removal of
any mechanic's lien(s) affecting the Premises and/or the Building relating to
any work performed, materials furnished or obligations incurred by or at the
request of Tenant.
7. USE.
Tenant may use the Premises only for the Permitted Use, and must comply
with all applicable statutes, laws, ordinances, codes, orders, rules and
regulations, as well as all requirements of any of Landlord's insurance
providers, relating to the use, condition and occupancy of the Premises. The
Premises may not be used for any use which (i) is disreputable, creates fire
hazards, or results in an increased rate of insurance on the Building or its
contents; (ii) would violate any covenant, agreement, term, provision or
condition of this Lease or is in contravention of the certificate of occupancy
or zoning ordinances pertaining to the Building; (iii) would alter, affect or
interfere with or would overload the electrical, mechanical or HVAC systems or
any other component of the Building, or would exceed the floor load per square
foot which the floor was designed to carry and which is allowed by law; or (iv)
would, in Landlord's judgment, in any way impair or tend to impair or exceed the
design criteria, structural integrity, character, reputation or appearance of
the Building. Tenant will not conduct or permit the generation, transportation,
storage, installation, treatment or disposal, either in the Building or in the
Premises, of any hazardous or toxic materials, and Tenant will keep the Building
and the Premises free of any lien or claim imposed under any federal, state or
local environmental statute, law, ordinance, code, rule or regulation. If,
because of Tenant's acts, the rate of insurance on the Building or its contents
increases, then such acts will constitute an Event of Default, Tenant must pay
to Landlord the amount of such increase on demand, and acceptance of such
payment will not waive any of Landlord's other rights. Tenant agrees to conduct
its business and control its agents, employees, and invitees in such a manner as
not to create any nuisance or unreasonably interfere with other tenants or
Landlord in its management of the Building.
8. ASSIGNMENT AND SUBLETTING.
8.1. TRANSFERS; CONSENT.
(a) Transfers. Tenant may not, without the prior written
consent of Landlord, which consent may be granted or withheld by
Landlord in its sole discretion, do any of the following:
(i) assign, transfer, or encumber this Lease or any
estate or interest in this Lease, whether directly or by
operation of law;
6
(ii) permit any other entity to become Tenant under
this Lease by merger, consolidation, or other reorganization;
provided, however, Tenant does not need to obtain Landlord's
consent if, after giving effect to such merger, consolidation
or other reorganization, Tenant maintains fifty percent (50%)
of the ownership in or voting control of such new entity and
the minimum tangible net worth of such new entity is the same
as that of Tenant at the beginning of this Lease;
(iii) if Tenant is an entity other than a corporation
whose stock is publicly traded, permit the transfer of an
ownership interest in Tenant so as to result in a change in
the current control of Tenant;
(iv) sublet any portion of the Premises;
(v) grant any license, concession, or other right of
occupancy of any portion of the Premises; or
(vi) permit the use of the Premises by any parties
other than Tenant.
Any of the events listed in Section 8.1(a)(i) through
8.1(a)(vi) above are referred to as a "TRANSFER".
(b) Procedure to Obtain Consent. If Tenant requests Landlord's
consent to a Transfer, then Tenant must provide Landlord with a written
description of all terms and conditions of the proposed Transfer,
copies of the proposed documentation, and the following information
about the proposed transferee: name and address; reasonably
satisfactory information about its business and business history; its
proposed use of the Premises; banking, financial, and other credit
information that Landlord may request; and general references
sufficient to enable Landlord to determine the proposed transferee's
creditworthiness and character. Landlord will attempt to provide Tenant
with a written response to such Transfer request within thirty (30)
days after Landlord's receipt of Tenant's written request. Concurrently
with Tenant's request for consent to a Transfer, Tenant agrees to (i)
pay to Landlord an assignment fee in the amount of One Thousand and
00/100 Dollars ($1,000.00), and (ii) reimburse Landlord immediately
upon its request for all of its expenses (including but not limited to
attorneys' fees and administrative fees) incurred in connection with
considering any request for consent to a Transfer. Nothing in this
Section 8.1(b) may be construed as granting to any third party the
rights of a third-party beneficiary, so as to entitle such third party
to seek to enforce any of the above provisions.
(c) Obligations After Transfer. If Landlord consents to a
proposed Transfer, then both Tenant and the proposed transferee must
(i) deliver to Landlord a written agreement acceptable in all respects
to Landlord under which the proposed transferee expressly assumes all
of Tenant's obligations under this Lease, and (ii) if requested by
Landlord, execute the consent form required by Landlord. Landlord's
consent to a Transfer will not release Tenant from its obligations
under this Lease, but rather Tenant and its transferee will be jointly
and severally liable for such obligations. Landlord's consent to any
Transfer does not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the Premises or any part
of the Premises are subject to a Transfer, then Landlord, in addition
to its other remedies, may collect rent due and owing directly from
such transferee and apply such rent against Rent. Tenant authorizes its
transferees to make payments of rent directly to Landlord upon receipt
of notice from Landlord to do so.
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8.2. RECAPTURE.
In the event Tenant causes or seeks to cause a Transfer, Landlord may
terminate this Lease and recapture the applicable space as of the date the
proposed Transfer is to be effective, or within thirty (30) days after the date
of Landlord's discovery of the Transfer, as the case may be. Landlord may
exercise this termination right within thirty (30) days after Landlord's receipt
of Tenant's written request for Landlord's consent, or within thirty (30) days
after learning of such Transfer if Landlord's consent has not been requested by
Tenant. If Landlord terminates this Lease as provided above, then this Lease
will cease and Tenant shall pay to Landlord all Rent accrued through the
Termination Date. Subsequently, Landlord may lease the Premises to the
prospective transferee (or to any other person) without liability to Tenant.
8.3. ADDITIONAL COMPENSATION.
Tenant agrees to pay to Landlord, immediately upon receipt, any and all
funds received by Tenant for a Transfer in excess of the Rent aIlocable to the
Premises.
8.4 INJUNCTIVE RELIEF.
Notwithstanding anything in this Lease to the contrary, in the event
Landlord wrongfully prevents a Transfer by Tenant, or if Landlord commits any
other default under this Section 8, Tenant's sole remedy will be limited to an
action for injunctive relief to permit the Transfer to occur.
9. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY.
9.1. INSURANCE.
Tenant agrees to maintain throughout the Term the following insurance
policies:
(a) comprehensive general liability insurance in amounts of
not less than a combined single limit of $2,000,000.00 or such other
amounts as Landlord may, from time to time, reasonably require,
insuring Tenant, Landlord, Landlord's agents and their respective
affiliates against all liability for injury to or death of a person or
persons or damage to property arising from the use and occupancy of the
Premises;
(b) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others) in the
Premises;
(c) contractual liability insurance sufficient to cover
Tenant's indemnity obligations under this Lease;
(d) worker's compensation insurance, containing a waiver of
subrogation endorsement acceptable to Landlord; and
(e) business interruption insurance.
Tenant will, prior to taking possession of the Premises and prior to
the commencement of any work in the Premises, furnish Landlord with certificates
of such insurance and such other evidence satisfactory to Landlord confirming
Tenant's maintenance of all insurance coverages required under this Lease and
naming Landlord and any other parties requested by Landlord as additional
insured(s). Each certificate must contain a written obligation on the part of
each insurance company to notify Landlord at least thirty (30) days before
cancellation or a material change of any such insurance policies. All such
insurance policies must be (i) issued by insurers authorized to do business in
the State of Illinois and which are rated at least A+XII in Best's Key Rating
Guide, and (ii) issued by companies and be in form and substance
8
reasonably satisfactory to Landlord. The term "AFFILIATE" means any person or
entity, directly or indirectly, controlling, controlled by, or under common
control with the party in question. Tenant acknowledges and agrees that it is
not permitted to self-insure under this Lease.
9.2. WAIVER OF NEGLIGENCE; NO SUBROGATION.
Landlord and Tenant each waives any claim it might have against the
other for damage to or theft, destruction, loss, or loss of use of any property
(a "LOSS"), to the extent the same is insured against under any insurance policy
that covers the Building, the Premises, Landlord's or Tenant's fixtures,
personal property, leasehold improvements, or business, or with respect to such
matters as are required to be insured against under the terms of this Section 9,
regardless of whether the negligence of the other party caused such loss.
Landlord's waiver under this Section 9.2 will not, however, include any
deductible amounts on insurance policies carried by Landlord nor any coinsurance
penalty which Landlord may sustain. Each party will cause its insurance carrier
to endorse all applicable policies waiving the carrier's rights of recovery
under subrogation or otherwise against the other party.
9.3. INDEMNITY BY TENANT.
Except to the extent such loss is covered by Landlord's or Tenant's
applicable insurance, Tenant agrees to defend, indemnify and hold Landlord, its
trustees, beneficiaries, employees and agents harmless from and against all
claims, demands, liabilities, causes of action, suits, judgments, and expenses
(including attorneys' fees) for any loss arising from (i) any occurrence on the
Premises and/or the Building caused by or contributed to by Tenant, its
subtenants, licensees, employees, invitees, contractors and/or agents
(collectively "TENANT'S AFFILIATES"), and (ii) Tenant's or any of Tenant's
Affiliates' failure to perform its obligations under this Lease. This indemnity
provision will survive the termination or expiration of this Lease.
10. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.
10.1. SUBORDINATION.
This Lease is automatically subordinate to any deed of trust, mortgage,
or other security instrument, or any ground lease, master lease, or primary
lease, that now or subsequently covers all or any part of the Building without
any further action or writing of the parties (the mortgagee under any such
mortgage or the lessor under any such lease is referred to below as a
"LANDLORD'S MORTGAGEE"). However, any Landlord's Mortgagee may at any time
unilaterally elect to make this Lease superior to its mortgage, ground lease or
other interest in the Premises by so notifying Tenant in writing.
10.2. ATTORNMENT.
Tenant agrees to attorn to any party succeeding to Landlord's interest
in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, attornment, termination of lease, or otherwise. Within ten (10)
days after such party's request, Tenant will execute and deliver to the
requesting party a written agreement(s) confirming such attornment. If Tenant
fails to deliver the attornment agreement(s) described herein within the ten
(10) day period, Tenant acknowledges and agrees that Landlord is authorized to
act as Tenant's attorney-in-fact to execute the agreement(s) on behalf of
Tenant, and Tenant will be bound by the terms of the agreement(s) executed by
Landlord.
10.3. NOTICE TO LANDLORD'S MORTGAGEE.
Tenant may not seek to enforce any remedy it may have for any default
on the part of the Landlord without first giving written notice by certified
mail, return receipt requested,
9
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's obligations under this Lease.
11. RULES AND REGULATIONS.
Tenant must comply with the rules and regulations of the Building which
are attached as Exhibit A. Landlord may, from time to time, change such rules
and regulations for the safety, care, or cleanliness of the Building and related
facilities, including without limitation parking facilities, provided that such
changes will not unreasonably interfere with Tenant's use of the Premises.
Tenant is responsible for the compliance with such rules and regulations by its
employees, agents, and invitees.
12. CONDEMNATION.
12.1. TOTAL TAKING.
If the entire Building or Premises is taken by right of eminent domain
or conveyed in lieu of eminent domain (a "TAKING"), this Lease will terminate
and Rent will be apportioned as of the date of the Taking, and Tenant will have
no claim against Landlord for the value of the unexpired Term.
12.2. PARTIAL TAKING -- TENANT'S RIGHTS.
If any part of the Building becomes subject to a Taking and such Taking
will prevent Tenant from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such Taking for a
period of more than one hundred eighty (180) days, then Tenant may terminate
this Lease as of the date of such Taking by giving written notice to Landlord
within thirty (30) days after the Taking, and Rent will be apportioned as of the
date of such Taking. If Tenant does not terminate this Lease, then Rent will
xxxxx on a basis reasonably determined by Landlord as to that portion of the
Premises rendered untenantable by the Taking.
12.3. PARTIAL TAKING -- LANDLORD'S RIGHTS.
If any material portion but less than all of the Building becomes
subject to a Taking and Landlord makes a good faith determination that (i) such
Taking will prevent Tenant from conducting its business in the Premises in a
manner reasonably comparable to that conducted immediately before such Taking
for a period of more than one hundred eighty (180) days, (ii) restoring the
Premises would be uneconomical, (iii) the condemnation award is insufficient to
rebuild or restore the Building or the Premises, or (iv) Landlord is required to
pay any condemnation award arising from the Taking to any Landlord's Mortgagee,
then Landlord may terminate this Lease by delivering written notice to Tenant
within thirty (30) days after such Taking, and Rent will be apportioned as of
the date of such Taking. If Landlord does not so terminate this Lease, then this
Lease will continue, but if any portion of the Premises has been taken, Rent
will xxxxx as provided in the last sentence of Section 12.2 above.
12.4. AWARD.
If any Taking occurs, then Landlord is entitled to receive the entire
award or other compensation for the land on which the Building is situated, the
Building, and other improvements taken, and Tenant may separately pursue a claim
against the condemnor for the value of Tenant's personal property which Tenant
is entitled to remove under this Lease (but because of the condemnation is
unable to move such property), moving costs, and other claims
10
it may have so long as such claim does not diminish Landlord's award. In no
event may Tenant seek or file any claim against Landlord.
13. FIRE OR OTHER CASUALTY.
13.1. LANDLORD'S RIGHTS.
If all or any part of the Building and/or the Premises is(are) damaged
by fire or other casualty (a "CASUALTY"), and if Landlord makes a good faith
determination that (i) restoring the Premises would be uneconomical, (ii) there
are insufficient insurance proceeds to rebuild or restore the Building or the
Premises, or (iii) Landlord is required to pay any insurance proceeds arising
out of the Casualty to any Landlord's Mortgagee, then Landlord may terminate
this Lease by giving Tenant written notice of Landlord's election to terminate
(the "CASUALTY TERMINATION NOTICE") within one hundred twenty (120) days after
the Casualty has occurred, and Base Rent and Additional Rent will xxxxx as of
the date of the Casualty, unless Tenant or any of Tenant's Affiliates caused
such damage, in which event Tenant shall continue to pay Rent without abatement.
Such termination shall be effective sixty (60) days after the date of the
Casualty Termination Notice.
13.2. REPAIR OBLIGATION.
If Landlord elects not to terminate this Lease following a Casualty,
then Landlord, within a reasonable time after such Casualty, will proceed with
reasonable diligence to repair, restore or rehabilitate the Building and/or the
Premises, as the case may be, to substantially the same condition as they
existed immediately before such Casualty. However, Landlord will not be required
to repair or replace any of the furniture, equipment, fixtures, and other
leasehold improvements which may have been placed by or at the request of Tenant
or other occupants in the Building or the Premises and required to be insured by
Tenant or other tenants, and Landlord's obligation to repair or restore the
Building and/or the Premises will be limited to the extent of the insurance
proceeds actually received by Landlord for the Casualty in question. In the
event that Landlord elects not to terminate the Lease and Landlord proceeds to
repair the Building and/or the Premises, then Tenant must apply to the
replacement or restoration of the furniture, equipment, fixtures and other
improvements in the Premises (if replacement or restoration is necessary because
of the Casualty) any proceeds of insurance that it may have received from its
policy(ies) on account of the Casualty. During such repair or rebuilding of the
Building and/or the Premises, Rent for the portion of the Premises rendered
untenantable by the damage will be abated on a reasonable basis determined by
Landlord from the date of damage until the completion of the repair, restoration
or rehabilitation, unless the Casualty was caused by Tenant or any of Tenant's
Affiliates, in which event Tenant shall continue to pay Rent without abatement.
14. PERSONAL PROPERTY TAXES.
Tenant is liable for all taxes based upon this Lease or the receipt of
Rent due under this Lease and all taxes levied or assessed against any personal
property, furniture or fixtures placed by Tenant in the Premises. If any taxes
for which Tenant is liable are levied or assessed against Landlord or Landlord's
property and Landlord elects to pay the same, or if the assessed value of
Landlord's property is increased by inclusion of such personal property,
furniture or fixtures and Landlord elects to pay the taxes based on such
increase, then Tenant shall pay to Landlord as Rent, upon demand, the part of
such taxes for which Tenant is primarily liable under this Lease. Landlord may
not, however, pay such amount if Tenant notifies Landlord that it will contest
the validity or amount of such taxes before Landlord makes such payment, and
subsequently diligently proceeds with such contest in accordance with law and if
the non-
11
payment does not pose a threat of lien or other cloud on Landlord's title to the
Building, or threat of loss or seizure of the Building or interest of Landlord
in the Building.
15. DEFAULT.
15.1. EVENTS OF DEFAULT.
Each of the following occurrences will constitute an "EVENT OF
DEFAULT":
(a) Tenant's failure to pay Rent on or before the date when
due;
(b) Tenant's failure to perform, comply with or observe any
other agreement or obligation of Tenant under this Lease and the
continuance of such failure for a period of more than ten (10) days
after Landlord has delivered written notice thereof to Tenant;
(c) The filing of a petition by or against Tenant (the term
"TENANT" includes, for the purpose of this Section 15(c), any guarantor
of the Tenant's obligations under this Lease) (1) in any bankruptcy or
other insolvency proceeding; (2) seeking any relief under any state or
federal debtor relief law; (3) for the appointment of a liquidator or
receiver for all or substantially all of Tenant's property or for
Tenant's interest in this Lease; or (4) for the reorganization or
modification of Tenant's capital structure. If, however, such a
petition is filed against Tenant, then such filing will not be an Event
of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within sixty (60) days after such filing;
(d) The failure by Tenant to take possession of the Premises
in accordance with the terms of this Lease;
(e) The discontinuance of its business by Tenant for thirty
(30) or more consecutive days;
(f) Tenant's vacating or abandoning of the Premises for thirty
(30) or more days during the Term;
(g) The failure of any guarantor(s) of this Lease to comply
with the terms and conditions of its(their) guaranty; and
(h) The merger, liquidation, dissolution or change of control
of any guarantor.
15.2. DEFAULT INTEREST.
All past due Rent and any other payments required of Tenant under this
Lease will be deemed Rent and interest will accrue from the date due until paid
at the rate of interest equal to two percent (2%) over the corporate base rate
or so-called "prime rate" as announced from time to time by Bank One
Corporation.
16. REMEDIES.
Upon any Event of Default, Landlord may, at its election, in addition
to all other rights and remedies afforded Landlord under this Lease or by law or
equity, take any one or more of the following actions:
12
16.1. RIGHT TO TERMINATE.
Upon the occurrence of an Event of Default, Landlord has the right to
terminate the Lease and obtain possession of the Premises. Landlord may make its
election to terminate known to Tenant by delivery of a notice of termination.
Such termination is immediately effective and Landlord, if necessary, is
entitled to commence immediately an action in summary proceedings to recover
possession of the Premises.
16.2. RECEIPT OF MONEY AFTER TERMINATION.
No receipt of money by Landlord from Tenant after the termination of
this Lease shall act to reinstate, continue or extend the Term, nor affect or
waive any notice given by Landlord to Tenant prior to such receipt of money.
16.3. RECOVERY OF DAMAGES.
Landlord agrees to use commercially reasonable efforts to mitigate
damages caused by a default or breach of Tenant. If Landlord terminates this
Lease at any time for any breach, then in addition to any other remedies it may
have, Landlord may recover from Tenant by reason of such breach all Rent and
Additional Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by Tenant under
this Lease. In addition, Landlord may recover as damages for loss of the bargain
and not as a penalty the sum of (i) the unamortized cost to Landlord, computed
and determined in accordance with generally accepted accounting principles, of
any tenant improvements provided by Landlord at its expense, (ii) the aggregate
sum which at the time of such termination represents the excess, if any, of the
present value of the aggregate Rent and Additional Rent at the same annual rate
for the remainder of the Term as then in effect over the then present value of
the then aggregate fair rental value of the Premises for the balance of the Term
immediately prior to such termination, such present worth to be computed in each
case on the basis of a five percent (5%) per annum discount from the respective
dates upon which Rent would have been payable under this Lease had the Term not
been terminated, and (iii) any additional damages, including any costs or
expenditures to fit the Premises to the needs of Tenant, reasonable attorneys'
fees and court costs which Landlord sustains by reason of the breach of any of
the covenants of this Lease other than for the payment of Base Rent and
Additional Rent.
16.4. RIGHT TO RE-ENTER.
If the Event of Default is the nonpayment of Rent, Landlord may, as an
alternative to terminating the Lease, serve a written demand for possession or
payment. Unless the Rent is paid in accordance with the demand for possession or
payment, Landlord is entitled to possession of the Premises and Tenant will then
have no further right to possession under the Lease. Tenant remains liable to
Landlord for the payment of all Rent and other charges which Tenant has agreed
to pay under this Lease throughout the remainder of its Term. If Landlord elects
to re-enter, as provided, it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Premises, and relet all or any part of such Premises for such term or terms
(which may be for a term extending beyond the Term of this Lease) and at such
rental or rentals and upon such other terms and conditions as Landlord in its
reasonable discretion may deem advisable. Upon each such reletting all rentals
and other sums received by Landlord from such reletting are applied, first, to
the payment of any indebtedness other than rent due under this Lease from Tenant
to Landlord; second, to the payment of any costs and expenses of such reletting,
including reasonable brokerage fees and attorneys' fees and costs of such
alterations and repairs; third, to the payment of Rent and other charges due
from Tenant, and the residue, if any, will be held by
13
Landlord and applied in payment of future rent as the same may become due and
payable. If such rentals and other sums received from such reletting during any
month are insufficient to pay the Rent and other charges due from Tenant, Tenant
agrees to pay such deficiency to Landlord. Such deficiency will be calculated
and paid monthly. No such re-entry or taking possession of such premises by
Landlord may be construed as an election on its part to terminate this Lease.
Notwithstanding any such reletting without termination, Landlord may at any time
elect to terminate this Lease for such previous breach.
16.5. INDEPENDENT COVENANT.
Tenant acknowledges and agrees that its obligation to pay Rent under
this Lease is an independent covenant and that such obligation to pay Rent is
not subject to setoff or recoupment in connection with any action for summary
proceedings to recover possession of the Premises.
16.6. LEGAL EXPENSES.
If Landlord or Tenant is required to bring an action arising out of the
covenants, terms, conditions or provisions of this Lease, or if Landlord
undertakes an action for summary proceedings to recover possession of the
Premises, the prevailing party will be reimbursed by the other party for such
reasonable costs and attorneys' fees as the prevailing party may incur in
connection with such action.
17. PAYMENT BY TENANT; NON-WAIVER.
17.1. PAYMENT BY TENANT.
Upon any Event of Default, Tenant agrees to pay to Landlord all costs
incurred by Landlord (including court costs and reasonable attorneys' fees and
expenses) in (1) obtaining possession of the Premises, (2) removing and storing
Tenant's or any other occupant's property, (3) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into condition acceptable to a new
tenant, (4) if Tenant is dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises (including brokerage
commissions, cost of tenant finish work, and other costs incidental to such
reletting), (5) performing Tenant's obligations which Tenant failed to perform,
(6) enforcing its rights, remedies, and recourses arising out of the Event of
Default or in obtaining advice about the same, and (7) the reasonable value of
Landlord's and its agents' and employees' time in connection with such activity.
To the full extent permitted by law, Landlord and Tenant agree the federal and
state courts of the state in which the Premises and Building are located have
exclusive jurisdiction over any matter relating to or arising from this Lease
and the parties' rights and obligations under this Lease. Tenant agrees to pay
all costs, expenses and reasonable attorneys' fees incurred by Landlord in
successfully enforcing and/or defending any provision contained in this Lease.
17.2. NO WAIVER.
Landlord's acceptance of any payment from Tenant following an Event of
Default will be deemed Rent and will not waive Landlord's rights regarding such
Event of Default. No waiver by Landlord of any violation or breach of any
term(s) contained in this Lease will waive Landlord's rights regarding any
future violation of such term(s). Landlord's acceptance of any partial payment
of Rent will not waive Landlord's rights with regard to the remaining portion of
the Rent that is due, regardless of any endorsement or other statement on any
instrument delivered in payment of Rent or any writing delivered in connection
with such Rent. Accordingly, Landlord's acceptance of a partial payment of Rent
will not constitute an accord and satisfaction of the full amount of the Rent
that is due.
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18. SURRENDER OF PREMISES.
No act by Landlord will be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises will be valid
unless it is in writing and signed by Landlord. At the expiration or termination
of this Lease, Tenant must deliver to Landlord the Premises with all
improvements in good repair and condition, broom-clean, except for reasonable
wear and tear (and condemnation and Casualty damage not caused by Tenant, as to
which Sections 12 and 13 above control). All alterations, additions,
improvements, equipment, wiring and furniture made in or upon the Premises must,
at Landlord's option upon notice to Tenant, either be removed by Tenant (and
Tenant must repair all damage caused by such removal) or remain on the Premises
without compensation to Tenant. Tenant must also deliver to Landlord all keys to
the Premises. So long as Tenant has performed all of its obligations under this
Lease, Tenant may remove all unattached trade fixtures and personal property
placed in the Premises by Tenant, provided that Tenant remains obligated to
repair all damage caused by such removal. All items not so removed will be
deemed to have been abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to Tenant and
without any obligation to account for such items. The provisions of this Section
18 will survive the end of the Term.
19. HOLDING OVER.
If Tenant fails to vacate the Premises at the end of the Term, then
Tenant will be a tenant-at-will and, in addition to all other damages and
remedies to which Landlord may be entitled for such holding over, Tenant must
pay to Landlord a monthly Base Rent for all or any part of a month equal to 200%
of the aggregate Base Rent plus all other Rent payable during the last month of
the Term. Tenant is also responsible for all damages, consequential as well as
direct, incurred or sustained by Landlord by reason of such retention, together
with all costs incurred by Landlord (including but not limited to reasonable
attorneys' fees) in connection with such holdover. In addition, Landlord may
elect, upon notice to Tenant, that such holding over will constitute a renewal
of this Lease for one (1) year at the stated holdover rate, but acceptance by
Landlord of Rent after such termination will not in and of itself constitute a
renewal. Nothing contained in this Section 19, however, will be construed or
operate as a waiver of Landlord's right of re-entry or any other right of
Landlord.
20. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights which may be exercised without
notice (except as otherwise expressly provided below) and without liability to
Tenant for damage or injury to property, person or business, and without
effecting an eviction or disturbance of Tenant's use or possession of the
Premises, nor giving rise to any claim for setoff or abatement of Rent or
affecting any of Tenant's obligations under this Lease:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise,
in and about the Building during ordinary business hours, and if Tenant
desires to have such work done during other than business hours, Tenant
agrees to pay all overtime and additional expenses resulting from such
work; to enter upon the Premises and, during the continuance of any
such work, to temporarily close doors, entryways, public space, and
corridors in the Building; and to interrupt or temporarily suspend
Building services and facilities agreed to be furnished by Landlord,
all without the same constituting an eviction of Tenant in whole or in
part and without abatement of Rent by reason of loss or interruption of
the business of
15
Tenant or otherwise and without in any manner rendering Landlord liable
for damages or relieving Tenant from the performance of Tenant's
obligations under this Lease; provided, however, reasonable access to
the Premises will be maintained and the business of Tenant may not be
interfered with unreasonably;
(b) To change the name and street address of the Building, and
to change the arrangement and location of entrances or passageways,
doors, and doorways, corridors, elevators, stairs, restrooms or other
public parts of the Building;
(c) To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants;
evacuating the Building for cause, suspected cause, or for drill
purposes; temporarily denying access to the Building; and closing the
Building after normal business hours and on Sundays and holidays,
subject, however, to Tenant's right to enter when the Building is
closed after normal business hours under such reasonable regulations as
Landlord may prescribe from time to time for application to and for the
benefit and protection of all tenants of the Building;
(d) Upon prior oral notice to Tenant, to enter the Premises
during reasonable hours (i) at any time during the Term to show the
Premises to prospective purchasers or lenders, or (ii) during the last
twelve (12) months of the Term to show the Premises to prospective
tenants, and to decorate, remodel, repair, alter or otherwise prepare
the Premises for reoccupancy at any time after Tenant vacates or
abandons the Premises;
(e) Upon prior written notice to Tenant, to relocate Tenant
within the Building to new space (the "RELOCATION SPACE") which is
comparable in size, utility and condition to the Premises. Such
relocation will be effective on a date specified by Landlord, which
date will not be less than ninety (90) days after Landlord's notice. If
Landlord relocates Tenant, Landlord will reimburse Tenant for Tenant's
reasonable out-of-pocket expenses directly related to Tenant's move to
the Relocation Space. Upon such relocation, the Relocation Space will
be deemed to be the Premises, the terms of the Lease will remain in
full force and apply to the Relocation Space, and Landlord and Tenant
agree to execute an amendment to this Lease confirming such relocation
of Tenant to the Relocation Space within twenty (20) days after Tenant
takes possession of the Relocation Space;
(f) To maintain within the lobby of the Building a directory
containing a standard listing with Tenant's name;
(g) To install and maintain signs on the exterior and interior
of the Building;
(h) To prescribe and approve in advance the location and style
of any suite number and identification sign or lettering on the door to
the Premises occupied by Tenant, the cost of which signage shall be
borne by Tenant;
(i) To retain at all times and to use in appropriate instances
pass keys to the Premises;
(j) To grant to anyone the right to conduct any business or
render any service in the Building, whether or not it is the same as or
similar to the use expressly permitted to Tenant in Section 7 above;
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(k) To have access for Landlord and other tenants of the
Building to all mail chutes according to the rules of the United States
Post Office;
(l) To enter the Premises at any time for reasonable purposes,
including supplying janitor service or other service to be provided to
Tenant under this Lease;
(m) To require all persons entering or leaving the Building
during such hours as Landlord may from time to time determine to
identify themselves to watchmen or security personnel by registration
or otherwise, and to establish their right to enter or leave the
Building; provided Landlord will not be liable in damages for any error
with respect to admission to or eviction or exclusion of any person
from the Building. In case of fire, invasion, insurrection, mob, riot,
civil disorder, public excitement or other commotion, or threat
thereof, Landlord reserves the right to limit or prevent access to the
Building during the continuance of same, shut down elevator service,
activate elevator emergency controls, or otherwise take such action or
preventive measures deemed necessary by Landlord for the safety of the
tenants or other occupants of the Building or the protection of the
Building and the property in the Building. Tenant agrees to cooperate
in any reasonable safety program developed by Landlord; and
(n) From time to time to make and adopt such reasonable rules
and regulations, in addition to or other than or by way of amendment or
modification of the rules and regulations contained in Exhibit A
attached to this Lease or other sections of this Lease, for the
protection and welfare of the Building, its tenants and occupants, as
Landlord may determine, and Tenant agrees to abide by all such rules
and regulations.
21. MISCELLANEOUS.
21.1. LANDLORD TRANSFER.
Landlord may transfer any portion of the Building and any of its rights
under this Lease. If Landlord assigns its rights under this Lease, then Landlord
will be released from any further obligations under this Lease, provided that
the assignee assumes Landlord's obligations under this Lease in writing.
21.2. LANDLORD'S LIABILITY.
The liability of Landlord and Landlord's Affiliates (as defined below)
to Tenant for any default by Landlord under the terms of this Lease will be
recoverable only from the interest of Landlord in the Building, and Tenant
agrees to look solely to Landlord's interest in the Building for the enforcement
of any judgment, award, order or other remedy under or in connection with this
Lease. Under no circumstances will Landlord or Landlord's Affiliates have any
personal liability for any of the foregoing matters. The term "LANDLORD'S
AFFILIATES" means collectively Landlord's property manager and its and
Landlord's respective current and future affiliates, trustees, beneficiaries,
principals, investors, directors, officers, general or limited partners,
shareholders, managers, employees, agents, representatives, successors and
assigns.
21.3. FORCE MAJEURE.
Other than for Tenant's obligations under this Lease which can be
performed by the payment of money (e.g., payment of Rent and maintenance of
insurance), whenever a period of time is prescribed for action to be taken by
either party, such party will not be liable or responsible for, and there will
be excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations, or restrictions, or any other causes of any kind whatsoever
which are beyond the reasonable control of such party.
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21.4. BROKERAGE.
Tenant has not dealt with any broker or agent in connection with the
negotiation or execution of this Lease, other than Landlord's Broker and
Tenant's Broker, whose commissions are payable by Landlord. Tenant agrees to
defend, indemnify and hold Landlord harmless from and against all claims,
damages, costs, expenses, attorneys' fees and other liabilities for commissions
or other compensation claimed by any other broker or agent.
21.5. ESTOPPEL CERTIFICATES.
From time to time, Tenant agrees to furnish to Landlord, Landlord's
Mortgagee or any third party designated by Landlord, within ten (10) days after
Landlord has made a request, a written estoppel certificate signed by Tenant or
an authorized signatory of Tenant in the form attached as Exhibit C, confirming
and certifying to such party, as of the date of such estoppel certificate, to
the extent factual or known, (i) that Tenant is in possession of the Premises,
(ii) that this Lease is unmodified and in full force and effect (or if there
have been modifications, that this Lease is in full force and effect as modified
and setting forth such modification); (iii) that Tenant has no offsets, claims
or defenses against Rent or the enforcement of any right or remedy of Landlord,
or any duty or obligation of Tenant under this Lease (and, if so, specifying the
same in detail); (iv) the dates through which Base Rent and Additional Rent have
been paid; (v) that Tenant has no knowledge of any then uncured defaults on the
part of Landlord under this Lease (or if Tenant has knowledge of any such
uncured defaults, specifying the same in detail); (vi) that Tenant having made
due investigation has no knowledge of any event having occurred that authorizes
the termination of this Lease by Tenant (or if Tenant has such knowledge,
specifying the same in detail): (vii) the amount of any Security Deposit held by
Landlord; (viii) that there are no actions, whether voluntary or otherwise,
pending against Tenant; and (ix) other matters reasonably requested by Landlord
or such other party. If Tenant fails to deliver the estoppel certificate
described above within said ten (10) day period, Tenant acknowledges and agrees
that Landlord is authorized to act as Tenant's attorney-in-fact to execute the
estoppel certificate on behalf of Tenant, and Tenant will be bound by the terms
of the estoppel certificate prepared and executed by Landlord.
21.6. NOTICES.
All notices and other communications given pursuant to this Lease must
be in writing and must be sent to the parties listed in the Lease Information
Summary above by (1) first class mail, United States Mail, postage prepaid,
certified, with return receipt requested, and addressed to the parties at the
address specified in the Lease Information Summary, (2) a nationally recognized
overnight courier, (3) personal delivery to the intended address, or (4) prepaid
telegram, cable, facsimile transmission or telex with confirmation of successful
transmission followed by a confirmatory letter. All notices will be effective
upon delivery to the address of the addressee, or, if the addressee refuses
delivery, then delivery will be deemed effective as of the date of the attempted
delivery. The parties may change their addresses by giving notice of such change
to the other party in conformity with this provision.
21.7. SEVERABILITY.
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws, then the remainder of this Lease
will not be affected, and in lieu of such clause or provision, a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause
or provision will be deemed added to this Lease as may be possible and be legal,
valid, and enforceable.
18
21.8. AMENDMENTS; BINDING EFFECT.
This Lease may not be amended except by instrument in writing signed by
Landlord and Tenant. No provision of this Lease will be deemed to have been
modified or waived by Landlord unless such modification or waiver is in writing
signed by Landlord. No custom or practice which may evolve between the parties
in the administration of the terms of this Lease will waive or diminish the
right of Landlord to insist upon the performance by Tenant in strict accordance
with the terms of this Lease, except as expressly modified in writing signed by
Landlord and Tenant. The terms and conditions contained in this Lease will inure
to the benefit of and be binding upon the parties, and upon their respective
successors in interest and legal representatives, except as otherwise expressly
provided. This Lease is for the sole benefit of Landlord and Tenant, and, other
than Landlord's Mortgagee, no third party may be deemed a third party
beneficiary.
21.9. QUIET ENJOYMENT.
Provided Tenant has performed all of its obligations under this Lease,
Tenant may peaceably and quietly hold and enjoy the Premises for the Term,
without hindrance from Landlord or any party claiming by, through, or under
Landlord, subject to the terms and conditions of this Lease.
21.10. NO MERGER.
No merger of the leasehold estate created under this Lease with the fee
estate in all or any part of the Premises will occur if the same person acquires
or holds, directly or indirectly, this Lease or any interest in this Lease and
the fee estate in the leasehold Premises or any interest in such fee estate.
21.11. NO OFFER.
The submission of this Lease to Tenant may not be construed as an
offer, and Tenant will have no rights under this Lease unless Landlord executes
a copy of this Lease and delivers it to Tenant.
21.12. ENTIRE AGREEMENT; GOVERNING LAW.
This Lease constitutes the entire agreement between Landlord and Tenant
regarding the subject matter of this Lease and supersedes all prior related oral
statements and writings. Except for those set forth in this Lease, no
representations, warranties, or agreements have been made by Landlord or Tenant
to the other with respect to this Lease or the obligations of Landlord or Tenant
in connection with this Lease. This Lease shall be governed by, construed under
and be enforceable in accordance with the laws of the State of Illinois.
21.13. CALENDAR DAYS.
All references in this Agreement to a certain number of days will be
deemed to mean calendar days, unless otherwise expressly stated.
21.14. PROHIBITION AGAINST LEASEHOLD MORTGAGES.
Tenant will not mortgage, pledge or otherwise encumber its interest in
this Lease or in the Premises during the Term.
21.15. WAIVER OF TRIAL BY JURY.
Landlord and Tenant mutually, knowingly, irrevocably, voluntarily and
intentionally waive the right to a trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other in connection
with this Lease. Each party further warrants and
19
represents that it has reviewed this waiver with its legal counsel and that each
has waived its jury trial rights following consultation with legal counsel. This
waiver applies to any and all subsequent amendments and any other agreements
relating to this Lease. In the event of litigation, this Lease may be filed as a
written consent to a trial by the court sitting without a jury. Tenant further
agrees that in the event Landlord commences any summary proceeding for
non-payment of Rent, Tenant will not interpose any counterclaim of any nature or
description in such proceeding.
21.16. LANDLORD'S REMEDIES CUMULATIVE.
No reference to any specific right or remedy will preclude Landlord
from exercising any other right, having any other remedy or maintaining any
action to which it may otherwise be entitled at law or in equity. No failure by
Landlord to insist upon the strict performance of any agreement, term, covenant
or condition of this Lease, or to exercise any right or remedy consequent upon a
breach thereof, and no acceptance of full or partial Rent during the continuance
of any such breach will constitute a waiver of any such breach, agreement, term,
covenant or condition. No waiver by Landlord of any breach by Tenant under this
Lease or of any breach by any other tenant under any other lease or any portion
of the Building will affect or alter this Lease in any way whatsoever. No
covenant, term or condition of this Lease will be deemed waived by Landlord
unless such waiver is in writing and executed by Landlord. Landlord may accept a
partial payment of Rent or other sums due under this Lease without such
acceptance constituting an accord and satisfaction and without prejudice to
Landlord's right to demand the balance of such Rent or other sum,
notwithstanding any notation on a check or letter accompanying such partial
payment, unless Landlord expressly waives its right to such balance in writing.
21.17. PROHIBITION AGAINST RECORDATION.
Tenant may not record all or any part of this Lease or any memorandum
of this Lease. Any recording by Tenant of all or any part of this Lease or any
memorandum of this Lease will be in violation of this Lease and will be void,
and Tenant agrees to indemnify Landlord, its trustees, beneficiaries, agents,
successors and assigns for any losses, damages or expenses of any nature
whatsoever incurred by reason of such recording. In the event Tenant records or
causes all or any part of this Lease or any memorandum of this Lease to be
recorded, Tenant hereby irrevocably appoints Landlord as Tenant's
attorney-in-fact, coupled with an interest, to execute and record a certificate
to clear any cloud on the title to the Building created by the improper
recordation.
21.18. JOINT AND SEVERAL LIABILITY.
If two (2) or more individuals, corporations, partnerships or other
business associations (or any combination of two (2) or more thereof) sign this
Lease as Tenant, the liability of each such individual, corporation, partnership
or other business association to pay Rent and perform all of Tenant's other
obligations under this Lease are deemed to be joint and several.
21.19. CORPORATE TENANTS.
If Tenant is a corporation, the persons executing this Lease on behalf
of Tenant hereby covenant and warrant that Tenant is a duly constituted
corporation qualified to do business in the State of Illinois; all of Tenant's
franchise and corporate taxes have been paid to date; all future forms, reports,
fees and other documents necessary for Tenant to comply with all applicable laws
will be filed by Tenant when due; and such persons are duly authorized by the
board of directors of such corporation to execute and deliver this Lease on
behalf of Tenant.
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[SIGNATURE PAGE FOLLOWS]
21
LANDLORD:
820 WEST LAKE LLC, an Illinois limited
liability company
By:
------------------------------------
Its:
-----------------------------------
TENANT:
MORTGAGE EXPRESS, INC. , an Illinois corporation
By:
------------------------------------
Its: President
-----------------------------------
22
EXHIBIT A
OUTLINE OF PREMISES
(INTENTIONALLY OMITTED)
EXHIBIT A
BUILDING RULES AND REGULATIONS
The following rules and regulations will apply to the Premises, the
Building and any appurtenances:
Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas may not be obstructed by tenants or used by any tenant for purposes other
than ingress and egress to and from their respective leased premises and for
going from one to another part of the Building.
Tenant must comply with all City of Chicago's ordinances, regulations,
and rules, including but not limited to, Fire and Police Department regulations,
regarding tenant's use for the Premises. Tenant must maintain all, necessary
licenses for activities conducted on the premises.
Plumbing fixtures and appliances may be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable material may
be thrown or deposited in such fixtures and appliances. Damage resulting to any
such fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
No signs, advertisements or notices may be painted or affixed on or to
any windows or doors or other part of the Building without the prior written
consent of Landlord. No nails, hooks or screws may be driven or inserted in any
part of the Building except by Building maintenance personnel. No curtains or
other window treatments may be placed between the glass and the Building
standard window treatments.
Landlord will provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
Landlord will provide all door locks in each tenant's leased premises,
at the cost of such tenant, and no tenant may place any additional door locks in
its leased premises without Landlord's prior written consent. Landlord will
furnish to each tenant a reasonable number of keys to such tenant's leased
premises, at such tenant's cost, and no tenant may make a duplicate.
Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which require use of elevators or stairways, or movement through the Building
entrances or lobby may be conducted under Landlord's supervision at such times
and in such a manner as Landlord may reasonably require. Each tenant assumes all
risks of and will be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which will in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building, will
be repaired at the expense of such tenant.
Corridor doors, when not in use, must be kept closed. Nothing may be
swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals may be brought into or
kept in, on or about any tenant's leased premises. No portion of any tenant's
leased premises may at any time be used or occupied as sleeping or lodging
quarters.
Tenant will cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenant will not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. may be delivered to any leased area except by
persons approved by Landlord.
Tenant may not make or permit any improper, objectionable or unpleasant
noises or odors in the Building or otherwise interfere in any way with other
tenants or persons having business with them.
No machinery of any kind (other than normal office equipment) may be
operated by any tenant on its leased area without Landlord's prior written
consent, nor may any tenant use or keep in the Building any flammable or
explosive fluid or substance.
Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
EXHIBIT B
(INTENTIONALLY OMITTED)
EXHIBIT C
ESTOPPEL CERTIFICATE
The undersigned tenant ("TENANT") certifies as follows:
1. Tenant entered into a written lease dated January , 2003 (the
"LEASE") with 820 West Cass LLC, an Illinois limited liability company, as
landlord ("LANDLORD"), under which Lease Landlord leased to Tenant and Tenant
rented from Landlord certain premises on the 3rd floor of the building located
at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the "PREMISES").
2. The Lease is in full force and effect; Tenant accepted and presently
occupies the Premises and is paying rent currently; Tenant has no setoffs,
claims or defenses to the enforcement of the Lease; and Tenant has not assigned
or transferred its interest thereunder.
3. Tenant's Rent under the Lease is currently $12,000.
4. As of this date, Tenant is not in default in the performance of the
Lease, has not committed any breach of the Lease and no notice of default has
been given to Tenant.
5. As of this date, Landlord is not in default under the Lease, and no
notice of default has been given to Landlord.
6. No rent or other moneys have been paid to Landlord or Landlord's
agent by Tenant more than thirty (30) days in advance under the Lease, and a
security deposit has been paid by Tenant in the amount of N/A .
--------------
7. The term of the Lease expires on August 31, 2003 and Tenant has no
rights to extend the term of the Lease nor purchase all or any portion of the
Premises.
8. Tenant has no claim against Landlord for any security deposit or
prepaid rent.
9. The Lease constitutes the only agreement between Landlord and Tenant
with respect to the Premises, and the Lease has not been amended, modified or
superseded.
Dated: February 1, 2003.
TENANT:
,
----------------------------------
a ,
--------------- ---------------
By:
------------------------------
Its:
-----------------------------
EXHIBIT D
(INTENTIONALLY OMITTED)
EXHIBIT E
(INTENTIONALLY OMITTED)
EXHIBIT F
CERTIFICATE OF COMMENCEMENT DATE
With respect to that certain Lease Agreement dated September 1, 2000
(the "LEASE") for the premises commonly known as 000 Xxxx Xxxx, Xxxxxxx,
Xxxxxxxx , the undersigned certify and agree that the date of the commencement
of the Term of the Lease was Suites Nos. 10-14, 20, 22, 24, 102, 201-04, 300,
330 and 360 in the Building comprising approximately Twenty Three Thousand and
Five Hundred Thirty (23,530) rentable square feet (Section 1), and the date of
expiration of the Term of the Lease will be August 31, 2010.
Dated this 1st day of September 1, 2000.
LANDLORD:
820 WEST LAKE LLC, an Illinois limited
liability company
By:
---------------------------------------------
Its:
-------------------------------------------
TENANT:
MORTGAGE EXPRESS, INC., an Illinois corporation
By:
---------------------------------------------
Its: President
-------------------------------------------
