EXHIBIT 10.8
FIRST AMENDMENT TO LEASE
LIGHTFIRST, INC.
Suite 700, The Park at Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx
THIS FIRST AMENDMENT TO LEASE (the "FIRST AMENDMENT") is made as of
this 19th day of May 2003, by and between BB&K/NORTHWEST POINT, LLC a Delaware
limited liability company ("LANDLORD") and LIGHTFIRST, INC. a Delaware
corporation, ("TENANT").
RECITALS
A. Landlord and Concert USA, a Delaware general partnership ("CONCERT")
entered into an Office Lease dated as of August 1, 2000 (the "LEASE") for
certain premises containing 8,947 rentable square feet known as Suite 700 (the
"PREMISES") located in the building commonly known as The Park at Northwest
Point, 00 Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000 (the "BUILDING");
B. AT&T, Corp., a Delaware corporation ("AT&T") succeeded to Concert's
interest as the tenant under the Lease;
C. AT&T assigned its interest as the tenant under the Lease to
Lightfirst, Inc. pursuant to a General Release and Novation Agreement dated as
of May 19, 2003, (the "ASSIGNMENT"), a copy of which is attached as Exhibit A,
D. The current Lease Term will expire on July 31, 2003;
E. Tenant desires to extend the Term of the Lease on a month to month
basis with the option to extend the Lease through July 31, 2006, and Landlord
agrees to extend the Term of the Lease, all in accordance with the terms and
conditions of this First Amendment;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. RECITALS AND DEFINED TERMS. The recitals set forth above are hereby
incorporated into and made a material part of this First Amendment.
Capitalized terms used but not otherwise defined herein shall have the same
meaning ascribed to them in the Lease. As of the date hereof, the term
"Lease" shall mean the Lease, as modified by this First Amendment.
2. CONDITIONS PRECEDENT. Except as may be waived in writing by Landlord in its
sole discretion, this First Amendment shall be effective only at such time
as Borrower has satisfied the following terms and conditions, in a manner,
form and content acceptable to Landlord on or before May 19, 2003, and is
in full compliance with the terms, covenants and conditions of this First
Amendment and the Lease as modified by this First Amendment:
a) Tenant shall execute and deliver to Landlord this First Amendment.
b) Tenant shall cause to be executed and delivered to Landlord the Lease
Guaranty of Xxxxxx Xxxxxxx attached hereto as Exhibit B.
c) Tenant shall pay to Landlord in advance via wire transfer or cashier's
check the cumulative amount of $56,048.16, which consists of (i)
Monthly Base Rent for the months of June 2003 in the amount of
$12,655.83, July 2003 in the amount of $12,655.83 and August 2003 in
the amount of $13,420.50 plus (ii) Rent Adjustment Deposits for the
months of June 2003 in the amount of $8,658.00 and July 2003 in the
amount of $8,658.00.
Lightfirst, Inc. Xxxxx 000
00 Xxxxxxxxx Xxxxx
0xx Xxxxxxxxx - 05-19-03
1
d) Tenant shall pay to Landlord via wire transfer or cashier's check the
amount of $17,894.00, as a replacement for the Security Deposit
initially deposited by Concert and subsequently refunded to AT&T.
3. ASSUMPTION. Tenant hereby covenants, promises and agrees (a) to pay the
Rent at the times, in the manner and in all respects as provided in the
Lease, (b) to perform each and all of the covenants, agreements and
obligations in said Lease to be performed by Tenant therein, at the time,
in the manner and in all respects as therein provided, and (c) to be bound
by each and all of the tenants and provisions of said Lease as though said
Lease had originally been made, executed and delivered by Tenant to
Landlord.
4. RELEASE. Tenant accepts the Premises in their "AS-IS" condition and
acknowledges that Landlord is not in default under the Lease and releases
Landlord, its affiliates, agents and assigns from any and all claims,
demands, causes of action, losses, costs, expenses, fines, and penalties,
whatsoever whether known or unknown, liquidated or unliquidated which
Tenant has suffered as of the date of this First Amendment which arise out
of, relate to, or are based upon the Lease or Tenant's use and occupancy of
the Premises or the Property.
5. TERM OF LEASE. Provided Tenant is not then in default, the Term of the
Lease shall be extended on a month-to-month basis (the "EXTENDED TERM"),
subject to the termination rights of Landlord or Tenant provided for in the
Lease and this First Amendment. Landlord or Tenant shall have the right to
terminate this Lease during the Extended Term as of the last day of any
calendar month upon giving ten (10) days prior written notice to the other.
Landlord and Tenant's rights pursuant to this Section 4 shall not apply to
the Renewal Term as defined below.
6. RENEWAL EVENT. This Paragraph shall supersede the renewal option contained
in Paragraph 2.03 of the Lease. Provided that the Lease has not been
terminated pursuant to Section 5 of this First Amendment and that no
default or a condition which, with the giving of notice, passage of time,
or both, would become, in Landlord's sole discretion, a material default
is existing under this Lease at the time the Renewal Event (as hereinafter
defined) occurs, the Term of the Lease shall on the date of the Renewal
Event be extended through 5 pm on July 31, 0000 (xxx "XXXXXXX XXXX").
x) Tenant is currently in the process of raising an anticipated
$20,000,000 in equity capital for continued business operations (the
"EQUITY RAISE"). Tenant anticipates that the Equity Raise will occur on
or before September 30, 2003. For purposes of this First Amendment the
Renewal Event shall be that date on which Tenant completes the Equity
Raise of $20,000,000 or such lesser amount as is acceptable to Landlord
in its sole and absolute discretion.
b) The Renewal Event shall occur, if at all, on or before September 30,
2003 and shall be evidenced by the certified financial statement of an
independent certified public accountant, which statement and accountant
shall be acceptable to Landlord in Landlord's sole and absolute
discretion. Unless waived by Landlord in writing, Tenant's failure to
provide an acceptable certified financial statement on or before
October 15, 2003 shall conclusively nullify any extension of the Lease
Term pursuant to this Section 6 of the First Amendment.
7. BASE RENT. The Monthly Base Rent schedule payable for the Premises under
Article 3 of the Lease during either the Extended Term or Renewal Term
shall be as follows:
SUITE 700
Time Period Monthly Base Rent
----------- -----------------
8/1/03 - 7/31/04 $ 13,420.50
8/1/04 - 7/31/05 $ 16,402.83
8/1/05 - 7/31/06 $ 17,894.00
Lightfirst, Inc. Xxxxx 000
00 Xxxxxxxxx Xxxxx
0xx Xxxxxxxxx - 05-19-03
2
All references in the Lease to Monthly Base Rent for or during the Extended Term
or Renewal Term shall be deemed to be a reference to the Monthly Base Rent set
forth in the table above. All items of Additional Rent shall continue to be
payable by Tenant in accordance with the terms and provisions of the Lease for
the Term of the Lease as extended hereby, except that Tenant's Share Operating
Expenses shall be limited to the amount by which the Operating Expenses for the
Adjustment Year exceed Operating Expenses for the calendar year 2003 calculated
on an accrual basis, and (ii) the Tenant's share of Taxes shall be limited to
the amount by which Taxes for the Adjustment Year exceed Taxes paid in the
calendar year 2003.
7. No Brokers. Tenant represents to Landlord that except for Insignia/ESG
Tenant has not dealt with any broker or agent in connection with the
negotiation or execution of this First Amendment. Tenant shall
indemnify the Landlord against all costs, expenses, attorneys' fees,
and other liability for commissions or other compensation claimed by
any other broker or agent as a result of a breach of the foregoing
representation by Tenant.
8. Direction for Payments. All payments due from Tenant shall be made to
Landlord's managing agent, as follows:
BB&K/NORTHWEST POINT LLC by ACG Management Company,
Its Agent
000 X. XxXxxxx Xxxxxx, Xxxx. 0000
Xxxxxxx, Xxxxxxxx 00000-0000
9. Notices.
a) Notices to Landlord: Until further notice from Landlord all
notices and other communications given to Landlord pursuant to
the Lease shall be delivered to Landlord at the following
addresses:
BB&K/NORTHWEST POINT LLC
c/o Acg Management Company
Attn: Property Manager
00 Xxxxxxxxx Xxxxx Xxxx., Xxx. 000
Xxx Xxxxx Xxxxxxx, XX 00000
And
BB&K/NORTHWEST POINT, LLC
c/o ACG Management Company
Attn: Xxxx X. Xxxxxxx
00 X. Xxxx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000
With a copy to:
HEINRICH & XXXXXX
Attn: Xxxxx X. Xxxxx
00 X. Xxxx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000
b) Notices to Tenant: Until further notice from Tenant all
notices and other communications given to Tenant pursuant to
the Lease shall be delivered to Landlord at the following
addresses:
LIGHTFIRST, INC.
Attn: Xxxxxx Xxxxxxx
00 Xxxxxxxxx Xxxxx Xxxx., Xxx. 000
Xxx Xxxxx Xxxxxxx, XX 00000
Lightfirst, Inc. Xxxxx 000
00 Xxxxxxxxx Xxxxx
0xx Xxxxxxxxx - 05-19-03
3
10. ENTIRE AGREEMENT. This First Amendment sets forth the entire agreement
with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. In the case
of any inconsistency between the provisions of this First Amendment and
the Lease, the provisions of this First Amendment shall control to the
extent necessary to resolve any inconsistency.
11. PARTIAL INVALIDITY. If any provision contained in this First Amendment
is rendered invalid or unenforceable by a court of competent
jurisdiction it shall not affect the remaining provisions of this First
Amendment and the Lease, which shall remain in full force and effect.
12. BINDING. This First Amendment shall not be binding until executed and
delivered by both parties.
13. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts, any one of which shall be an original, but all which
together shall be one and the same instrument.
14. FULL FORCE AND EFFECT. Except as amended by this First Amendment, the
Lease shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of the
date first written above.
TENANT:
LIGHTFIRST, INC.
a Delaware Corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Its: President
----------------------------------
Date: May 19, 2003
---------------------------------
LANDLORD:
BB&K/NORTHWEST POINT, LLC
a Delaware limited liability company
By: BB&K PROPERTIES III, LLC
a Delaware limited liability company
its Manager
By: /s/ XXXXX X. XXXX
-----------------------------------
Name: Xxxxx X. Xxxx
---------------------------------
Its: VP
----------------------------------
Date: 5-20-03
---------------------------------
Lightfirst, Inc. Xxxxx 000
00 Xxxxxxxxx Xxxxx
0xx Xxxxxxxxx - 05-19-03
4
GENERAL RELEASE AND NOVATION AGREEMENT
This General Release And Novation Agreement is entered into on May , 2003
between BB&K/Northwest Point, LLC, and Illinois limited liability company, as
landlord; AT&T, Corp., a Delaware corporation, as tenant; and Lightfirst, Inc.
("Lightfirst"), a Delaware corporation, as subtenant.
WHEREAS, AT&T Corp. ("AT&T") is the tenant of the property located at 00
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx Xxxxxxx, Xxxxxxxx (the "Property") under
a lease executed August 1, 2000 and continuing through July 31, 2003 (the
"Prime Lease"); and
WHEREAS, AT&T subleased the Property as sublandlord to Lightfirst as subtenant
in a sublease executed July 9, 2002 and continuing through July 15, 2003 (the
"Sublease"); and
WHEREAS, AT&T and Lightfirst contemplate entering into an Agreed Order to
vacate a judgment in favor of AT&T and against Lightfirst for possession and
unpaid rent under the Sublease, and as BB&K/Northwest Point ("Landlord")
desires to lease the Property directly to Lightfirst; and
In consideration for the right to lease the Property to another tenant before
the expiration of the Prime Lease and to induce AT&T to enter into the Agreed
Order vacating the judgment and other good and valuable consideration, it is
hereby agreed between AT&T, Landlord, and Lightfirst that:
1. AT&T assigns all its rights and interest in the Prime Lease to Lightfirst
with the consent of the Landlord.
2. Lightfirst accepts assignment of the AT&T's rights and interest in the
Prime Lease.
3. Landlord acknowledges that AT&T is not in default under the Prime Lease
and releases AT&T from any and all claims, demands, causes of action,
losses, costs, expenses, fines, and penalties, whatsoever whether known or
unknown, liquidated or unliquidated which Landlord now has suffered or may
suffer and which arise out of, relate
to, or based upon the Prime Lease, At&T's use and occupancy of the Property
or At&T's sublease of the Property.
5. Landlord shall return to AT&T the full amount of its security deposit
including applicable interest within 14 days. upon return, AT&T shall
indemnify and hold Landlord harmless from any claims of Concert USA to the
security deposit.
6. This General Release And Novation Agreement may be executed in multiple
counterparts and delivered by telecopy to (000)000-0000. Each such
counterpart shall be deemed to be an original and all such counterparts
shall together constitute the agreement of the parties.
Agreed this 19th day of May 2003
/s/ XXXXXX XXXXXX
-----------------------------
Xxxxxx Xxxxxx
AT&T Corp. Real Estate Asset
Manager
/s/ XXXXX X. XXXX
-----------------------------
Xxxxx X. Xxxx
-----------------------------
BB&K/Northwest Point LLC
Its VP
--------------------------
/s/ XXXXXX XXXXXXX
-----------------------------
Xxxxxx Xxxxxxx
President of Lightfirst, Inc.
2
OFFICE LEASE
SUITE 700
AT
00 XXXXXXXXX XXXXX
XXX XXXXX XXXXXXX, XXXXXXXX 00000
BETWEEN
BB&K/NORTHWEST POINT, LLC (LANDLORD)
AND
CONCERT USA (TENANT)
DATED: AUGUST 1, 2000
TABLE OF CONTENTS
PAGE
ARTICLE - BASIC LEASE PROVISIONS .......................................... 1
1.01 BASIC LEASE PROVISIONS ............................................ 1
1.02 ENUMERATION OF EXHIBITS ........................................... 2
1.03 DEFINITIONS ....................................................... 2
ARTICLE TWO - PREMISES, TERM AND FAILURE TO GIVE POSSESSION ................ 6
2.01 LEASE OF PREMISES ................................................. 6
2.02 TERM .............................................................. 6
2.03 RENEWAL OPTION .................................................... 6
2.04 AREA OF PREMISES .................................................. 7
2.05 CONDITION OF PREMISES ............................................. 7
ARTICLE THREE - RENT ...................................................... 7
ARTICLE FOUR - RENT ADJUSTMENTS AND PAYMENTS .............................. 8
4.01 RENT ADJUSTMENTS .................................................. 8
4.02 STATEMENT OF LANDLORD ............................................. 8
4.03 BOOKS AND RECORDS ................................................. 9
4.04 PARTIAL OCCUPANCY ................................................. 9
ARTICLE FIVE - SECURITY DEPOSIT ........................................... 9
ARTICLE SIX - SERVICES .................................................... 10
6.01 LANDLORD'S GENERAL SERVICES ....................................... 10
6.02 ELECTRICAL SERVICES ............................................... 11
6.03 ADDITIONAL AND AFTER-HOUR SERVICES ................................ 12
6.04 TELEPHONE SERVICES ................................................ 12
6.05 DELAYS IN FURNISHING SERVICES ..................................... 13
6.06 CHOICE OF SERVICE PROVIDER ........................................ 13
ARTICLE SEVEN - POSSESSION, USE AND CONDITION OF PREMISES ................ 14
7.01 POSSESSION AND USE OF PREMISES .................................... 14
7.02 LANDLORD ACCESS TO PREMISES; APPROVALS ............................ 15
7.03 QUIET ENJOYMENT ................................................... 16
ARTICLE EIGHT - MAINTENANCE ............................................... 16
8.01 LANDLORD'S MAINTENANCE ............................................ 16
8.02 TENANT'S MAINTENANCE .............................................. 16
ARTICLE NINE - ALTERATIONS AND IMPROVEMENTS ............................... 17
9.01 TENANT'S ALTERATIONS .............................................. 17
9.02 LIENS ............................................................. 18
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XX&X/Xxxxxxxxx Xxxxx Page i of iii
9.03 TENANT ALLOWANCE ................................................ 18
ARTICLE TEN - ASSIGNMENTS AND SUBLETTING ................................. 19
10.01 ASSIGNMENT AND SUBLETTING ....................................... 19
10.02 RECAPTURE ....................................................... 21
10.03 EXCESS RENT ..................................................... 21
10.04 TENANT LIABILITY ................................................ 21
10.05 ASSUMPTION AND ATTORNMENT ....................................... 22
ARTICLE ELEVEN - DEFAULT AND REMEDIES .................................... 22
11.01 EVENTS OF DEFAULT ............................................... 22
11.02 LANDLORD'S REMEDIES ............................................. 23
11.03 ATTORNEY'S FEES ................................................. 24
11.04 BANKRUPTCY ...................................................... 24
11.05 LANDLORD'S DEFAULT .............................................. 25
ARTICLE TWELVE - SURRENDER OF PREMISES ................................... 25
12.01 IN GENERAL ...................................................... 25
12.02 LANDLORD'S RIGHTS ............................................... 26
ARTICLE THIRTEEN - HOLDING OVER .......................................... 26
ARTICLE FOURTEEN - DAMAGE BY FIRE OR OTHER CASUALTY ...................... 26
14.01 SUBSTANTIAL UNTENANTABILITY ..................................... 26
14.02 INSUBSTANTIAL UNTENANTABILITY ................................... 27
14.03 RENT ABATEMENT .................................................. 27
ARTICLE FIFTEEN - EMINENT DOMAIN ......................................... 28
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART ............................. 28
15.02 TAKING OF PART .................................................. 28
15.03 COMPENSATION .................................................... 28
ARTICLE SIXTEEN - INSURANCE .............................................. 29
16.01 TENANT'S INSURANCE .............................................. 29
16.02 FORM OF POLICIES ................................................ 29
16.03 LANDLORD'S INSURANCE ............................................ 30
16.04 WAIVER OF SUBROGATION ........................................... 30
16.05 NOTICE OF CASUALTY .............................................. 31
ARTICLE SEVENTEEN - WAIVER OF CLAIMS AND INDEMNITY ....................... 31
17.01 WAIVER OF CLAIMS ................................................ 31
17.02 INDEMNITY BY TENANT ............................................. 32
ARTICLE EIGHTEEN - RULES AND REGULATIONS ................................. 32
18.01 RULES ........................................................... 32
18.02 ENFORCEMENT ..................................................... 32
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XX&X/Xxxxxxxxx Xxxxx Page ii of iii
ARTICLE NINETEEN - LANDLORD'S RESERVED RIGHTS............................... 33
ARTICLE TWENTY - ESTOPPEL CERTIFICATE....................................... 33
20.01 IN GENERAL.................................................. 33
20.02 ENFORCEMENT................................................. 34
ARTICLE TWENTY-ONE - RELOCATION OF TENANT................................... 34
ARTICLE TWENTY-TWO - REAL ESTATE BROKERS.................................... 34
ARTICLE TWENTY-THREE - MORTGAGEE PROTECTION................................. 34
23.01 SUBORDINATION AND ATTORNMENT................................ 34
23.02 MORTGAGEE PROTECTION........................................ 35
ARTICLE TWENTY-FOUR - NOTICES............................................... 36
ARTICLE TWENTY-FIVE - STORAGE SPACE -- INTENTIONALLY OMITTED................ 37
ARTICLE TWENTY-SIX - MISCELLANEOUS.......................................... 37
26.01 LATE CHARGES................................................ 37
26.02 WAIVER OF JURY TRAIL........................................ 37
26.03 OPTION...................................................... 38
26.04 AUTHORITY................................................... 38
26.05 ENTIRE AGREEMENT............................................ 38
26.06 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE.............. 38
26.07 EXCULPATION................................................. 38
26.08 ACCORD AND SATISFACTION..................................... 38
26.09 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING.................. 38
26.10 BINDING EFFECT.............................................. 39
26.11 CAPTIONS.................................................... 39
26.12 APPLICABLE LAW.............................................. 39
26.13 ABANDONMENT................................................. 39
26.14 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES................. 39
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XX&X/Xxxxxxxxx Xxxxx Page iii of iii
OFFICE LEASE
ARTICLE ONE
BASIC LEASE PROVISIONS
1.01 BASIC LEASE PROVISIONS
In the event of any conflict between these Basic Lease Provisions and any other
Lease provision, such other Lease provision shall control.
(1) BUILDING AND ADDRESS:
00 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx
(2) LANDLORD AND ADDRESS:
BB&K/NORTHWEST POINT, LLC
c/o ACG Management Company
00 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx, XX 00000
(3) TENANT AND CURRENT ADDRESS:
(a) Name: CONCERT USA, a Delaware general partnership having as
its general partners Concert Global Networks USA LLC, a
Delaware limited liability company, and VLT GP Holdco LLC,
a Delaware limited liability company
(b) Address: Concert USA
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
ATTN: Law and Regulatory Affairs
(4) DATE OF LEASE: August 1, 2000
(5) LEASE TERM: three (3) years, with one (1) 3-year extension option
(6) COMMENCEMENT DATE: August 1, 2000
(7) EXPIRATION DATE: July 31, 2003
(8) MONTHLY BASE RENT:
Period from/to Monthly Annually
-------------- ------- --------
Commencement Date thru
Lease Year 1 $11,929.33 $143,152.00
Concert USA Suite 000
XX&X/Xxxxxxxxx Xxxxx Page 1 of 38
Period from/to Monthly Annually
-------------- ------- --------
Lease Year 2 $12,287.21 $147,446.56
Lease Year 3 $12,655.83 $151,869.95
(9) RENTABLE AREA OF THE BUILDING: 204,367 square feet
(10) RENTABLE AREA OF THE PREMISES: Approximately 8,947 square feet
(11) SECURITY DEPOSIT: Twelve Thousand Dollars ($12,000.00)
(12) SUITE NUMBER OF PREMISES: 700
(13) TENANT'S SHARE: 4.38%
(14) TENANT'S USE OF PREMISES: General office use, training and similar
incidental office uses.
(15) TENANT ALLOWANCE: $53,682.00 ($6.00 per square feet of Rentable Area)
1.02 ENUMERATION OF EXHIBITS
The exhibits set forth below and attached to this Lease are incorporated in
this Lease by this reference:
EXHIBIT A. Plan of Premises
EXHIBIT B. INTENTIONALLY DELETED
EXHIBIT C. INTENTIONALLY DELETED
EXHIBIT D. Rules and Regulations
RIDER 1. Commencement Date Agreement
1.03 DEFINITIONS
For purposes hereof, the following terms shall have the following meanings:
AFFILIATE: Any corporation or other business entity which is currently
owned or controlled by, owns or controls, or is under common ownership or
control with Tenant.
ADJUSTMENT YEAR: The calendar year or any portion thereof after the
Commencement Date of this Lease for which a Rent Adjustment computation is
being made.
BUILDING: The office building located at 00 Xxxxxxxxx Xxxxx, Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000.
COMMENCEMENT DATE: The date specified in Section 1.01(6) as the
Commencement Date.
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XX&X/Xxxxxxxxx Xxxxx Page 2 of 38
COMMON AREAS: All areas of the Real Property made available by Landlord
from time to time for the general common use or benefit of the tenants of the
Building, and their employees and invitees, or the public, as such areas
currently exist and as they may be changed from time to time.
DECORATION: Tenant Alterations which do not require a building permit
and which do not involve any of the structural elements of the Building, or any
of the Building's systems, including, without limitation, its electrical,
mechanical, plumbing and security and life/safety systems.
DEFAULT RATE: Two percent (2%) above the rate then most recently
announced Bank One (Chicago) as its corporate base lending rate, from time to
time announced, but in no event higher than the maximum rate permitted by law.
ENVIRONMENTAL LAWS: Any Law governing the use, storage, disposal or
generation of any Hazardous Material, including without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended and the Resource Conservation and Recovery Act of 1976, as amended.
EXPIRATION DATE: The date specified in Section 1.01(7).
FORCE MAJEURE: Any accident, casualty, act of God, war or civil
commotion, strike or labor troubles, or any cause whatsoever beyond the
reasonable control of Landlord, including, but not limited to, energy shortages
or governmental preemption in connection with a national emergency, or by reason
of government laws or any rule, order or regulation of any department or
subdivision thereof or any governmental agency, or by reason of the conditions
of supply and demand which have been or are affected by war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or
become regulated under any Environmental Law; or which are classified as
hazardous or toxic under any Environmental Law; and explosives and firearms,
radioactive material, asbestos, and polychlorinated biphenyls.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of
the Property, the property manager and the leasing manager for the Property and
their respective directors, officers, agents and employees.
LAND: The parcels of real estate on which the Building is located.
LANDLORD WORK: None
LAWS: All laws, ordinances, rules, regulations, other requirements,
orders, rulings or decisions adopted or made by any governmental body, agency,
department or judicial authority having jurisdiction over the Property, the
Premises or Tenant's activities at the Premises and any covenants, conditions or
restrictions of record which affect the Property.
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XX&X/Xxxxxxxxx Xxxxx Page 3 of 38
LEASE: This instrument and all exhibits and riders attached hereto, as
may be amended from time to time.
LEASE YEAR: The twelve month period beginning on the first day of the
first month following the Commencement Date (unless the Commencement Date is the
first day of a calendar month in which case beginning on the Commencement Date),
and each subsequent twelve month, or shorter, period until the Expiration Date.
MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).
MORTGAGEE: Any holder of a mortgage, deed of trust or other security
instrument encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day and other holidays recognized by
the Landlord and the janitorial and other unions servicing the Building in
accordance with their contracts. A listing of National Holidays then in effect
shall be available at the Building's management office upon Tenant's request to
Landlord.
OPERATING EXPENSES: All costs, expenses and disbursements of every kind
and nature which Landlord shall pay or become obligated to pay in connection
with the ownership, management, operation, maintenance, replacement and repair
of the Property (including, without limitation, the amortized portion of any
capital expenditure or improvement, together with interest thereon, and the
costs of changing utility service providers). Operating Expenses shall not
include, (i) costs of alterations of the premises of tenants of the Building,
(ii) costs of capital improvements to the Building (except for the amortized
portion of capital improvements installed for the purpose of reducing or
controlling Operating Expenses or complying with applicable Laws), (iii)
depreciation charges, (iv) interest and principal payments on loans (except for
loans for capital improvements which Landlord is allowed to include in Operating
Expenses as provided above), (v) ground rental payments, (vi) real estate
brokerage and leasing commissions, (vii) advertising and marketing expenses for
procurement of tenants, (viii) costs of Landlord reimbursed by insurance
proceeds, (ix) expenses incurred in negotiating leases of other tenants in the
Building or enforcing lease obligations of other tenants in the Building and (x)
Landlord's or Landlord's property manager's corporate general overhead or
corporate general administrative expenses. If any Operating Expense, though paid
in one year, relates to more than one calendar year, at option of Landlord such
expense may be proportionately allocated among such related calendar years.
PREMISES: The space located in the Building described in Section
1.01(10) and depicted on Exhibit A attached hereto.
PROPERTY: The Building, the Land, any other improvements located on the
Land, including, without limitation, any parking structures and the personal
property, fixtures, machinery, equipment, systems and apparatus located in or
used in conjunction with any of the foregoing.
REAL PROPERTY: The Property excluding any personal property.
Concert USA Suite 000
XX&X/Xxxxxxxxx Xxxxx Page 4 of 38
RENT: Collectively, Monthly Base Rent, Storage Space Rent (if any),
Rent Adjustments and Rent Adjustment Deposits, and all other charges, payments,
late fees or other amounts required to be paid by Tenant under this Lease.
RENTABLE AREA OF THE BUILDING: The amount of square footage set forth
in 1.01(9).
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth
in 1.01(10).
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating
Expenses or Taxes. The Rent Adjustments shall be determined and paid as provided
in Article Four.
RENT ADJUSTMENT DEPOSIT: An amount equal to the Rent Adjustments
attributable to each month as estimated by Landlord for each Adjustment Year.
SECURITY DEPOSIT: The funds specified in Section 1.01(11),if any,
deposited by Tenant with Landlord as security for Tenant's performance of its
obligations under this Lease.
STANDARD OPERATING HOURS: Monday through Friday from 8:00 A.M. to 6:00
P.M., Saturday from 8:00 A.M. to 1:00 P.M., excluding National Holidays.
TAXES: All federal, state and local governmental taxes, assessments and
charges of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to pay because of or
in connection with the ownership, leasing, management, control or operation of
the Property or any of its components, or any personal property used in
connection therewith, which shall also include any rental or similar taxes
levied in lieu of or in addition to general real and/or personal property taxes.
For purposes hereof, Taxes for any year shall be Taxes which are assessed or
become a lien during such year, whether or not such taxes are billed and payable
in a subsequent calendar year. There shall be included in Taxes for any year the
amount of all fees, costs and expenses (including reasonable attorneys' fees)
paid by Landlord during such year in seeking or obtaining any refund or
reduction of Taxes. Taxes for any year shall be reduced by the net amount of any
tax refund received by Landlord attributable to such year. If a special
assessment payable in installments is levied against any part of the Property,
Taxes for any year shall include only the installment of such assessment and any
interest payable or paid during such year. Taxes shall not include any federal
or state inheritance, general income, gift or estate taxes, except that if a
change occurs in the method of taxation resulting in whole or in part in the
substitution of any such taxes, or any other assessment, for any Taxes as above
defined, such substituted taxes or assessments shall be included in the Taxes.
TENANT ALLOWANCE: An amount to be made available by Landlord to Tenant
pursuant to Section 9.03 hereof for costs of future remodeling and redecorating
of the Premises.
TENANT ALTERATIONS: Any alterations, improvements, additions,
installations or construction in or to the Premises or any Real Property systems
serving the Premises; and any
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supplementary air-conditioning systems installed by Landlord or by Tenant at
Landlord's request pursuant to Section 6.01(b).
TENANT'S SHARE: The percentage specified in Section 1.01(13) which
represents the ratio of Rentable Area of the Premises to the Rentable Area of
the Building.
TERM: The term of this Lease commencing on the Commencement Date and
expiring on the Expiration Date.
TERMINATION DATE: The Expiration Date or such earlier date as this
Lease terminates or Tenant's right to possession of the Premises terminates.
ARTICLE TWO
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
2.01 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term and upon the terms, covenants and conditions provided in
this Lease. In the event Landlord delivers possession of the Premises to Tenant
prior to the Commencement Date, Tenant shall be subject to all of the terms,
covenants and conditions of this Lease (except with respect to the payment of
Rent) as of the date of such possession.
2.02 TERM
The Commencement Date shall be the date specified in Section 1.01(6), and the
Expiration Date shall be the date specified in Section 1.01(7).
2.03 RENEWAL OPTION
(a) Provided that no default or a condition which, with the giving of
notice, passage of time, or both, would become, in Landlord's sole discretion, a
material default (such condition being hereinafter referred to as an "Unmatured
Default") is existing under this Lease at the time the Renewal Option
(hereinafter defined) is exercised, or at the commencement of the Renewal Period
(hereinafter defined), and subject to the right of Tenant to nullify the
exercise of the Renewal Option as hereinafter provided, Tenant shall have the
right (the "Renewal Option") to extend the Term for one (1) three (3) year
period (the "Renewal Period") commencing on the expiration of the initial Term.
(b) The Renewal Option shall be exercised, if at all, by written notice
to Landlord given on or before nine (9) months prior to the expiration of the
initial Term, but not earlier than fifteen (15) months prior to the expiration
of the initial Term. If Tenant fails strictly to comply with the procedure for
exercise of the Renewal Option, Tenant shall have no further right to extend the
Term.
(c) Landlord's and Tenant's rights and obligations for the Renewal
Period shall be upon the same terms and conditions as are contained in this
Lease, except as hereinafter provided:
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(1) The annual Base Rent (described below) during the renewal
Period shall be at the rate per annum per square foot of
rentable area in the Premises, equal to a fair market rate
with tenant improvement allowance and concessions, but in no
event shall the Base Rent for any year in the Renewal Period
be less than the Base Rent for the year immediately preceding
the commencement of the Renewal Period;
(2) Landlord's good faith determination of the Base Rent for a
Renewal Period shall be conclusive, binding upon Tenant and
not contestable by Tenant; provided, however, Tenant shall
have the right to nullify its exercise of the option to
extend the Term, by notice to Landlord, given within thirty
(30) days of Landlord's notice to Tenant (which Landlord's
notice shall be given to Tenant not later than thirty (30)
days after receipt of Tenant's notice of exercise of the
Renewal Option) setting forth the initial Base Rent for the
Renewal Period, in which event Tenant's exercise of the option
to extend shall be null and void and neither Landlord nor
Tenant shall have any further rights or liabilities with
respect thereto. Tenant's failure to give the notice of
nullification described above within such thirty (30) day
period shall constitute acceptance by Tenant of, and Tenant's
agreement to pay, the Base Rent specified for the Renewal
Period.
(3) Tenant shall have no further right to extend the Term and no
right to any abatement of Base Rent or Rent Adjustments during
the Renewal Period.
2.04 AREA OF PREMISES
Landlord and Tenant agree that for all purposes of this Lease the Rentable Area
of the Premises and the Rentable Area of the Building as set forth in Article
One are controlling, and are not subject to revision after the date of this
Lease.
2.05 CONDITION OF PREMISES
Tenant shall be conclusively deemed to have accepted the Premises "AS IS" in the
condition existing on the date Tenant first takes possession, and to have waived
all claims relating to the condition of the Premises. No agreement of Landlord
to alter, remodel, decorate, clean or improve the Premises or the Real Property
and no representation regarding the condition of the Premises or the Real
Property has been made by or on behalf of Landlord to Tenant. Landlord
represents to Tenant that Landlord has received no notice of, and has no
knowledge of, any violation of the Premises of any Environmental Law or of the
ADA as set forth in Article 7 hereof.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the office specified in Section 1.01(2), or
to such other persons, or at such other places designated by Landlord, without
any prior demand therefor in immediately available funds and without any
deduction or offset whatsoever, Rent, including, without limitation,
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which the Lease terminates, Landlord may include in the Rent Adjustment Deposit
its estimate of Rent Adjustments which may not be finally determined until after
the termination of this Lease. Tenant's obligation to pay Rent Adjustments
survives the expiration or termination of the Lease. Notwithstanding the
foregoing, in no event shall the sum of Monthly Base Rent and the Rent
Adjustments be less than the Monthly Base Rent payable.
4.03 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses and Taxes
in accordance with sound accounting and management practices, consistently
applied. The Tenant or its representative (which representative shall be a
certified public accountant licensed to do business in the state in which the
Property is located) shall have the right, for a period of one hundred twenty
(120) days following the date upon which Landlord's Statement is delivered to
Tenant, to examine the Landlord's books and records with respect to the items in
the foregoing statement of Operating Expenses and Taxes during normal business
hours, upon written notice, delivered at least three (3) business days in
advance, and to dispute such statement by Tenant's notice to Landlord setting
forth the specific item(s) in dispute and Tenant's reason for such objection. If
Tenant does not give such notice of objection in writing to Landlord's Statement
within said one hundred twenty (120) day period, specifying the nature of the
item in dispute and the reasons therefor, then Landlord's Statement shall be
considered final and accepted by Tenant. Any amount due to the Landlord as shown
on Landlord's Statement, whether or not disputed by Tenant as provided herein
shall be paid by Tenant when due as provided above, without prejudice to any
such written exception. If, as a result of Tenant's examination hereunder, it is
determined that the amount charged to Tenant pursuant to Landlord's Statement
exceeds the actual amount chargeable to Tenant by more than five percent (5%),
then (in addition to the credit or refund due to Tenant pursuant to Section
(1)(1)(3) hereof) Landlord shall reimburse Tenant for the reasonable costs
expended by Tenant for such examination.
4.04 PARTIAL OCCUPANCY
For purposes of determining Rent Adjustments for any Adjustment Year if the
Building is not fully rented during all or a portion of any year, Landlord may
make appropriate adjustments to the Operating Expenses for such Adjustment Year
employing sound accounting and management principles consistently applied, to
determine the amount of Operating Expenses that would have been paid or incurred
by Landlord had the Building been 95% occupied, and the amount so determined
shall be deemed to have been the amount of Operating Expenses for such
Adjustment Year. In the event that the Real Property is not fully assessed for
any year, then Taxes shall be adjusted to an amount which would have been
payable in such year if the Real Property had been fully assessed.
ARTICLE FIVE
SECURITY DEPOSIT
Tenant concurrently with the execution of this Lease shall pay to Landlord the
Security Deposit. The Security Deposit may be applied by Landlord to cure any
default of Tenant under this Lease not cured by Tenant within any applicable
notice or grace period, and upon notice by Landlord of such
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application, Tenant shall replenish the Security Deposit in full by paying to
Landlord within thirty (30) days of demand the amount so applied. Landlord shall
not pay any interest on the Security Deposit. The Security Deposit shall not be
deemed an advance payment of Rent, nor a measure of damages for any default by
Tenant under this Lease, nor shall it be a bar or defense of any action which
Landlord may at any time commence against Tenant. In the absence of evidence
satisfactory to Landlord of an assignment of the right to receive the Security
Deposit or the remaining balance thereof, Landlord may return the Security
Deposit to the original Tenant, regardless of one or more assignments of this
Lease. Upon the transfer of Landlord's interest under this Lease and notice to
Tenant of such Transfer by the transferee, Landlord's obligation to Tenant with
respect to the Security Deposit shall terminate upon assumption of such
obligation by the transferee.
If Tenant shall fully and faithfully comply with all the terms, provisions,
covenants, and conditions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant after the following:
(a) the expiration of the Term of this Lease;
(b) the removal of Tenant and its property from the
Premises;
(c) the surrender of the Premises by Tenant to Landlord
in accordance with this Lease; and
(d) the payment by Tenant of any outstanding Rent,
including, without limitation, all Rent Adjustments
due pursuant to the Lease as computed by Landlord.
ARTICLE SIX
SERVICES
6.01 LANDLORD'S GENERAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant has
paid all Rent then due, Landlord shall furnish the following services at the
same or better standard as is generally applicable to "Class A" buildings in the
market area of the Building:
(1) heat, ventilation and air-conditioning in the Premises during Standard
Operating Hours, as necessary in Landlord's reasonable judgment for the
comfortable occupancy of the Premises under normal business operations,
subject to compliance with all applicable voluntary and mandatory
regulations and laws;
(2) tempered and cold water for use in lavatories in common with other
tenants from the regular supply of the Building;
(3) customary cleaning and janitorial services in the Premises and in the
Common Areas five (5) days per week, excluding National Holidays;
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(4) landscape maintenance, snow and ice removal, pest extermination and
trash removal for the Common Areas;
(5) washing of the outside windows in the Premises weather permitting at
intervals determined by Landlord;
(6) automatic passenger elevator service in common with other tenants of
the Building and freight elevator service subject to reasonable
scheduling by Landlord and payment of Landlord's standard charges;
(b) Wherever heat generating machines or equipment are used by Tenant
in the Premises, the following additional provisions shall apply:
(1) If the use of such machinery exceeds the limits established by Landlord
thereby affecting the temperature otherwise maintained by the
air-cooling system or whenever the occupancy or electrical load exceeds
the standards established by Landlord, Landlord reserves the right to
install or to require Tenant to install supplementary air-conditioning
units in the Premises. Tenant shall bear all costs and expenses related
to the installation, maintenance and operation of such units.
(2) Tenant shall pay Landlord at rates fixed by Landlord for all tenants in
the Building, charges for all water furnished to the Premises for
purposes other than kitchen and drinking water, including the expenses
of installation of a water line, meter and fixtures.
6.02 ELECTRICAL SERVICES
(a) The electricity used during the performance of janitorial service
or the making of alterations or repairs in the Premises by Landlord
shall be paid by Tenant. Tenant also agrees to purchase from Landlord
or its agents at competitive prices (including reasonable charges for
installation) fixed by Landlord for all tenants in the Building all
lamps, bulbs, ballasts and starters used in the Premises, and to pay a
reasonable installation charge for any such items installed by Landlord
at Tenant's request. Landlord reserves the right to provide electricity
to Tenant and in such event Tenant agrees to purchase electricity from
Landlord at Landlord's then current charges. Tenant shall make no
alterations or additions to the electric equipment or systems without
the prior written consent of the Landlord in each instance.
(b) If Premises are separately metered, Tenant shall make all necessary
arrangements with the utility provider chosen by Landlord for
furnishing, metering and paying for electricity furnished by it to
Tenant and consumed on the Premises. Landlord shall permit Landlord's
wire and conduits, to the extent available and safely capable, to be
used for such purposes.
(c) If the Premises are not separately metered for any reason, Tenant
shall pay Landlord as additional Rent, in monthly installments at the
time prescribed for monthly installments of Monthly Base Rent, an
amount, reasonably estimated by Landlord from time to time, which
Tenant would pay for such electricity if the same were separately
metered to the Premises by
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the utility provider chosen by Landlord and billed to Tenant at such
utility provider's then current rates.
6.03 ADDITIONAL AND AFTER-HOUR SERVICES
At Tenant's request, Landlord shall furnish additional quantities of any of the
services or utilities specified in Section 6.01, if Landlord can reasonably do
so, on the terms set forth herein. Tenant shall deliver to Landlord a written
request for such additional services or utilities prior to 2:00 P.M. on Monday
through Friday (except National Holidays) for service on those days, and prior
to 2:00 P.M. on the last business day prior to Saturday, Sunday or a National
Holiday. For services or utilities requested by Tenant and furnished by
Landlord, Tenant shall pay to Landlord as a charge therefor Landlord's
prevailing rates for such services and utilities (as posted from time to time at
Landlord's management office). If Tenant shall fail to make any such payment,
Landlord may, upon ten (10) days prior notice to Tenant and in addition to
Landlord's other remedies under this Lease, discontinue any or all of such
additional services.
6.04 TELEPHONE SERVICES
All telegraph, telephone, and electric connections which Tenant may desire shall
be first approved by Landlord in writing, before the same are installed, and the
location of all wires and the work in connection therewith shall be performed by
contractors approved by Landlord and shall be subject to the direction of
Landlord. Landlord reserves the right to designate and control the entity or
entities providing telephone or other communication cable installation, repair
and maintenance in the Building and to restrict and control access to telephone
cabinets. In the event Landlord designates a particular vendor or vendors to
provide such cable installation, repair and maintenance for the Building, Tenant
agrees to abide by and participate in such program. Tenant shall be responsible
for and shall pay all costs incurred in connection with the installation of
telephone cables and related wiring in the Premises, including, without
limitation, any hook-up, access and maintenance fees related to the installation
of such wires and cables in the Premises and the commencement of service
therein, and the maintenance thereafter of such wire and cables; and there shall
be included in Operating Expenses for the Building all installation, hook-up or
maintenance costs incurred by Landlord in connection with telephone cables and
related wiring in the Building which are not allocable to any individual users
of such service but are allocable to the Building generally. If Tenant fails to
maintain all telephone cables and related wiring in the Premises and such
failure affects or interferes with the operation or maintenance of any other
telephone cables or related wiring in the Building, Landlord or any vendor hired
by Landlord may enter into and upon the Premises forthwith and perform such
repairs, restorations or alterations as Landlord deems necessary in order to
eliminate any such interference (and Landlord may recover from Tenant all of
Landlord's costs in connection therewith). Upon the Termination Date, Tenant
agrees to remove all telephone cables and related wiring installed by Tenant for
and during Tenant's occupancy, which Landlord shall request Tenant to remove.
Tenant agrees that neither Landlord nor any of its agents or employees shall be
liable to Tenant, or any of Tenant's employees, agents, customers or invitees or
anyone claiming through, by or under Tenant, for any damages, injuries, losses,
expenses, claims or causes of action because of any interruption, diminution,
delay or discontinuance at any time for any reason in the furnishing of any
telephone service to the Premises and the Building.
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6.05 DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord shall not be in breach of this Lease nor be liable
to Tenant for damages or otherwise, for any failure to furnish, or a delay in
furnishing, or a change in the quantity or character of any service when such
failure, delay or change is occasioned, in whole or in part, by repairs,
improvements or mechanical breakdowns by the act or default of Tenant or other
parties not in Landlord's control or by an event of Force Majeure. No such
failure, delay or change shall be deemed to be an eviction or disturbance of
Tenant's use and possession of the Premises, or relieve Tenant from paying Rent
or from performing any other obligations of Tenant under this Lease, without any
deduction or offset; except that if, on account of any such cessation of
service, the Premises are rendered untenantable for a continuous period of more
than three (3) days, then Monthly Base Rent shall be abated for the period of
such untenantability. Failure to any extent to make available, or any slowdown,
stoppage, or interruption of, the specified utility services resulting from any
cause, including, without limitation, changes in service provider or Landlord's
compliance with any voluntary or similar governmental or business guidelines now
or hereafter published or any requirements now or hereafter established by any
governmental agency, board, or bureau having jurisdiction over the operation of
the Building shall not render Landlord liable in any respect for damages to
either persons, property, or business, nor be construed as an eviction of Tenant
or work an abatement of Rent (except as expressly set forth herein), nor relieve
Tenant of Tenant's obligations for fulfillment of any covenant or agreement
hereof. Should any equipment or machinery furnished by Landlord break down or
for any cause cease to function properly, Landlord shall use reasonable
diligence to repair same promptly, but Tenant shall have no claim for abatement
of Rent (except as expressly set forth herein) or damages on account of any
interruption of service occasioned thereby or resulting therefrom.
6.06 CHOICE OF SERVICE PROVIDER
Tenant acknowledges that Landlord may, at Landlord's sole option, to the extent
permitted by applicable law, elect to change, from time to time, the company or
companies which provide services (including, without limitation, electrical
service, gas service, water and technical services) to the Building, the
Premises and/or its occupants. Landlord shall endeavor to give Tenant not less
than thirty (30) days notice of any scheduled change. Notwithstanding anything
to the contrary set forth in this Lease, Tenant acknowledges that Landlord has
not and does not make any representations or warranties concerning the identity
or identities of the company or companies which provide services to the Building
and the Premises or its occupants and Tenant acknowledges that the choice of
service providers and matters concerning the engagement and termination thereof
shall be solely that of Landlord. The foregoing provision is not intended to
modify, amend, change or otherwise derogate any provision of this Lease
concerning the nature or type of service to be provided or any specific
information concerning the amount thereof to be provided. Tenant agrees to
cooperate with Landlord and each of its service providers in connection with
any change in service or provider. Notwithstanding anything herein to the
contrary, Tenant shall have the sole right to choose its telephone and internet
service providers.
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ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
7.01 POSSESSION AND USE OF PREMISES
(a) Tenant shall be entitled to possession of the Premises on the
Commencement Date. Tenant shall occupy and use the Premises only for the uses
specified in Section 1.01(14) to conduct Tenants business. Tenant shall not
occupy or use the Premises (or permit the use or occupancy of the Premises) for
any purpose or in any manner which: (1) is unlawful or in violation of any Law
or Environmental Law; (2) may be dangerous to persons or property or which may
increase the cost of, invalidate, any policy of insurance carried on the
Building or covering its operations; (3) is contrary to or prohibited by the
terms and conditions of this Lease or the rules of the Building set forth in
Article Eighteen; or (4) would tend to create or continue a nuisance.
(b) Tenant and Landlord shall each comply with all Environmental Laws
concerning the proper storage, handling and disposal of any Hazardous Material
with respect to the Property. Tenant shall not generate, store, handle or
dispose of any Hazardous Material in, on, or about the Property without the
prior written consent of Landlord. In the event that Tenant is notified of any
investigation or violation of any Environmental Law arising from Tenant's
activities at the Premises, Tenant shall immediately deliver to Landlord a copy
of such notice. In such event or in the event Landlord reasonably believes that
a violation of Environmental Law exists, Landlord may upon ten (10) days prior
notice to Tenant conduct such tests and studies relating to compliance by Tenant
with Environmental Law or the alleged presence of Hazardous Materials upon the
Premises as Landlord deems desirable, all of which shall be completed at
Tenant's expense. Landlord's inspection and testing rights are for Landlord's
own protection only, and Landlord has not, and shall not be deemed to have
assumed any responsibility to Tenant or any other party for compliance with
Environmental Law, as a result of the exercise, or non-exercise of such rights.
Tenant shall indemnify, defend, protect and hold harmless the Indemnitees from
any and all loss, claim, expense, liability and cost (including attorneys' fees)
arising out of or in any way related to the presence of any Hazardous Material
introduced to the Premises during the Lease Term by Tenant, its employees,
agents, invitees, contractors and licensees. If any Hazardous Material is
released, discharged or disposed of on or about the Property and such release,
discharge or disposal is not caused by Tenant or other occupants of the
Premises, or their employees, agents or contractors, such release, discharge or
disposal shall be deemed casualty damage under Article Fourteen to the extent
that the Premises are affected thereby; in such case, Landlord and Tenant shall
have the obligations and rights respecting such casualty damage provided under
such Article. Any indemnification, exculpation or waiver provision under this
Section 7(b) shall not be deemed to exculpate or indemnify Landlord against its
own negligence or willful misconduct or that of its agents, or servants or
employees.
(c) Landlord and Tenant acknowledge that the Americans With
Disabilities Act of 1990(42 U.S.C. Section 12101 et seq.) and regulations and
guidelines promulgated thereunder, as all of the same may be amended and
supplemented from time to time (collectively referred to herein as the "ADA")
establish requirements for business operations, accessibility and barrier
removal, and that such requirements may or may not apply to the Premises and the
Property depending on, among other
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things: (1) whether Tenant's business is deemed a "public accommodation" or
"commercial facility", (2) whether such requirements arc "readily achievable",
and (3) whether a given alteration affects a "primary function area" or triggers
"path of travel" requirements. The parties hereby agree that: (a) Landlord shall
be responsible for ADA Title III compliance in the Common Areas, except as
provided below, (b) Tenant shall be responsible for ADA Title III compliance
within the Premises, including any leasehold improvements or other work to be
performed by or on behalf of Tenant in the Premises under or in connection with
this Lease, (c) Landlord may perform, or require that Tenant perform, and Tenant
shall be responsible for the cost of, ADA Tide III "path of travel" requirements
triggered by alterations in the Premises by or on behalf of Tenant; and (d)
Landlord may perform, or require Tenant to perform, and Tenant shall be
responsible for the cost of, ADA Title III compliance in the Common Areas
necessitated by the Building being deemed to be a "public accommodation" instead
of a "commercial facility" as a result of Tenant's use of the Premises. Tenant
shall be solely responsible for requirements under Title I of the ADA relating
to Tenant's employees.
7.02 LANDLORD ACCESS TO PREMISES; APPROVALS
(a) Tenant shall permit Landlord to erect, use and maintain pipes,
ducts, wiring and conduits in and through the Premises, so long as Tenant's use,
layout or design of the Premises is not materially affected or altered. Landlord
or Landlord's agents shall have the right to enter upon the Premises in the
event of an emergency, or upon prior notification (which may be by telephone) to
inspect the Premises, to perform janitorial and other services, to conduct
safety and other testing in the Premises and to make such repairs, alterations,
improvements or additions to the Premises or the Building or other parts of the
Property as Landlord may deem necessary or desirable (including, without
limitation, all alterations, improvements and additions in connection with a
change in connection with a change in service provider or providers). Janitorial
and cleaning services shall be performed after normal business hours. Any entry
or work by Landlord may be after normal business hours or (unless such entry
or work, due to its nature, will be unreasonably disruptive of the conduct of
Tenant's business within the Premises) during normal business hours, and
Landlord shall use reasonable efforts to ensure that any entry or work shall not
materially interfere with Tenant's occupancy of the Premises.
(b) If Tenant shall no be personally present to permit an entry into
the Premises when for any reason an entry therein shall be necessary or
permissible, Landlord (or Landlord's agents), after attempting to notify Tenant
(unless Landlord believes an emergency situation exists), may enter the Premises
without rendering Landlord or its agents liable therefor (if during such entry
Landlord or Landlord's agent shall accord reasonable care to Tenant's property),
and without relieving Tenant of any obligations under this Lease.
(c) Landlord may, upon prior notification (which may be by telephone),
enter the Premises for the purpose of conducting such inspections, tests and
studies as Landlord may deem desirable or necessary to confirm Tenant's
compliance with all Laws and Environmental Laws or for other purposes necessary
in Landlord's reasonable judgment to ensure the sound condition of the Property
and the systems serving the Property. Landlord's rights under this Section
7.02(c) are for Landlord's own protection only, and Landlord has not, and shall
not be deemed to have assumed any responsibility to Tenant or any other party
as a result of the exercise or non-exercise of such rights, for compliance with
Laws or Environmental Laws.
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(d) Landlord may do any of the foregoing, or undertake any of the
inspection or work described in the preceding paragraph without such action
constituting an actual or constructive eviction of Tenant, in whole or in part,
or giving rise to an abatement of Rent by reason of loss or interruption of
business of the Tenant, or otherwise.
7.03 QUIET ENJOYMENT
Landlord covenants that so long as Tenant is in compliance with the covenants
and conditions sot forth in this Lease, Tenant shall have the right to quiet
enjoyment of the Premises without hindrance or interference from Landlord or
those claiming through Landlord, and subject to the rights of any Mortgagee or
ground lessor.
ARTICLE EIGHT
MAINTENANCE
8.01 LANDLORD'S MAINTENANCE
Subject to the provisions of Article Fourteen, Landlord shall diligently
maintain and make necessary repairs to the foundations, roofs, exterior walls,
and the structural elements of the Building, the electrical, plumbing, heating,
ventilating and air-conditioning, mechanical, communication, security and the
fire and life safety systems of the Building and those corridors, washrooms and
lobbies which are Common Areas of the Building, except that: (a) Landlord shall
not be responsible for the maintenance or repair of any floor or wall coverings
in the Premises or any of such systems which are located within the Premises and
are supplemental or special to the Building's standard systems and which are for
the sole and exclusive use of Tenant; and (b) the cost of performing any of said
maintenance or repairs whether to the Premises or to the Building caused by the
negligence of Tenant, its employees, agents, servants, licensees, subtenants,
contractors or invitees, shall be paid by Tenant, subject to the waivers set
forth in Section 16.04. Landlord shall not be liable to Tenant for any expense,
injury, loss or damage resulting from work done in or upon, or in connection
with the use of, any adjacent or nearby building, land, street or alley.
8.02 TENANT'S MAINTENANCE
Subject to the provisions of Article Fourteen, Tenant, at its expense, shall
keep and maintain the Premises and all Tenant Alterations in good order,
condition and repair and in accordance with all Laws and Environmental Laws.
Tenant shall not permit waste and shall promptly and adequately repair all
damages to the Premises and replace or repair all damaged or broken glass in the
interior of the Promises, fixtures or appurtenances. Any repairs or maintenance
shall be completed with materials of similar quality to the original materials,
all such work to be completed under the supervision of Landlord. Any such
repairs or maintenance shall be performed only by contractors or mechanics
approved by Landlord, which approval shall not be unreasonably withheld, and
whose work will not cause or threaten to cause disharmony or interference with
Landlord or other tenants in the Building and their respective agents and
contractors performing work in or about the Building. If Tenant fails to perform
any of its obligations set forth in this Section 8.02, Landlord may, in its sole
discretion and upon five (5) days prior notice to Tenant (except without notice
in the
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case of emergencies), perform the same, and Tenant shall pay to Landlord any
reasonable costs or expenses incurred by Landlord upon demand.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
9.01 TENANT'S ALTERATIONS
(a) The following provisions shall apply to the completion of any
Tenant Alterations:
(1) Tenant shall not, except as provided herein, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
make or cause to be made any Tenant Alterations in or to the Premises
(except for non-structural Alterations within the Premises costing less
than $5,000 and non requiring any building permits) or to any Property
systems or structural elements or utilities serving the Premises. Prior
to making any Tenant Alterations, Tenant shall give Landlord ten (10)
days prior written notice (or such earlier notice as would be necessary
pursuant to applicable law) to permit Landlord sufficient time to post
appropriate notices of non-responsibility. Subject to all other
requirements of this Article Nine, Tenant may undertake Decoration work
without Landlord's prior written consent. Tenant shall furnish Landlord
with the names and addresses of all contractors and subcontractors and
copies of all contracts. All Tenant Alterations shall be completed at
such time and in such manner as Landlord may from time to time
reasonably designate, and only by contractors or mechanics approved by
Landlord, which approval shall not be unreasonably withheld, and whose
work will not cause or threaten to cause disharmony or interference
with Landlord or other tenants in the Building and their respective
agents and contractors performing work in or about the Building.
Landlord may further condition its consent upon Tenant furnishing to
Landlord and Landlord approving prior to the commencement of any work
or delivery of materials to the Premises related to the Tenant
Alterations such of the following as specified by Landlord:
architectural plans and specifications, opinions from engineers
reasonably acceptable to Landlord stating that the Tenant Alterations
will not in any way adversely affect the Building's systems, including,
without limitation, the mechanical, heating, plumbing, security,
ventilating, air-conditioning, electrical, and the fire and life safety
systems in the Building, necessary permits and licenses, certificates
of insurance, and such other documents in such form reasonably
requested by Landlord. Landlord may, in the exercise of reasonable
judgment request that Tenant provide Landlord with appropriate evidence
of Tenant's ability to complete and pay for the completion of the
Tenant Alterations such as a performance bond or letter of credit. Upon
completion of the Tenant Alterations, Tenant shall deliver to Landlord
an as-built mylar and (if available) a digitized, to a standard and
quality reasonably acceptable to Landlord, set of plans and
specifications for the Tenant Alterations.
(2) Tenant shall pay the cost of all Tenant Alterations and the cost of
decorating the Premises and any work to the Property occasioned
thereby. In connection with completion of any Tenant Alterations,
Tenant shall pay Landlord a construction fee and all elevator and
hoisting charges at Landlord's then standard rate (as available from
time to time at Landlord's management office). Upon completion of
Tenant Alterations, Tenant shall
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furnish Landlord with contractors' affidavits and full and final
waivers of lien and receipted bills covering all labor and materials
expended and used in connection therewith and such other documentation
reasonably requested by Landlord or Mortgagee.
(3) Tenant agrees to complete all Tenant Alterations (i) in accordance with
all Laws, Environmental Laws, all requirements of applicable insurance
companies and in accordance with Landlord's standard construction rules
and regulations, and (ii) in a good and workmanlike manner with the use
of good grades of material. Tenant shall notify Landlord immediately if
Tenant receives any notice of violation of any Law in connection with
completion of any Tenant Alterations and shall immediately take such
steps as are necessary to remedy such violation. In no event shall such
supervision or right to supervise by Landlord nor shall any approvals
given by Landlord under this Lease constitute any warranty by Landlord
to Tenant of the adequacy of the design, workmanship or quality of such
work or materials for Tenant's intended use or of compliance with the
requirements of Section 9.01(a)(3)(i) and (ii) above or impose any
liability upon Landlord in connection with the performance of such
work.
(b) All Tenant Alterations, shall without compensation or credit to
Tenant, become part of the Premises and the Property of Landlord at the time of
their installation and shall remain in the Premises, unless pursuant to Article
Twelve, Tenant may remove them or is required to remove them at Landlord's
request.
9.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or
supplier or any other lien to be filed against the Building, the Land, the
Premises, or any other part of the Property arising out of work performed, or
alleged to have been performed by, or at the direction of, or on behalf of
Tenant. If any such lien or claim for lien is filed, Tenant shall within ten
(10) days of receiving notice of such lien or claim (a) have such lien or claim
for lien released of record or (b) deliver to Landlord a bond in form, content,
amount, and issued by surety, satisfactory to Landlord, indemnifying,
protecting, defending and holding harmless the Indemnitees against all costs
and liabilities resulting from such lien or claim for lien and the foreclosure
or attempted foreclosure thereof. If Tenant fails to take any of the above
actions, Landlord, in addition to its rights and remedies under Article Eleven,
without investigating the validity of such lien or claim for lien, may pay or
discharge the same and Tenant shall, as payment of additional Rent hereunder,
reimburse Landlord upon demand for the amount so paid by Landlord, including
Landlord's expenses and attorney's fees.
9.03 TENANT ALLOWANCE
Tenant anticipates remodeling and redecorating the Premises during the first two
(2) Lease Years of the Term hereof, which remodeling and redecorating shall be
subject to the provisions applicable to Tenant Alterations set forth in this
Lease. Landlord agrees to provide Tenant with an allowance for the reimbursement
of the costs of such remodeling and redecorating up to the amount set forth as
the Tenant Allowance in Section 1.01(15) of the Basic Lease Provisions at any
time during the first two (2) Lease Years hereof, upon delivery to Landlord of
paid invoices, together with sworn statements
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and final lien waivers for the costs of any such remodeling and redecorating. In
addition, at any time during the first two (2) Lease Years hereof, Tenant may
elect, upon written notification to Landlord, to apply any undisbursed portion
of the Tenant Allowance against Tenant's obligation for Base Rent due or to
become due during said first two (2) Lease Years, up to a maximum of one-half
(1/2) of the Tenant Allowance specified in Section 1.01(15) [that is, up to a
maximum credit of $26,841.00]. Any Tenant Allowance not applied for the costs of
Tenant remodeling or credited toward Base Rent as herein provided during the
first two (2) Lease Years shall be forfeited, and Landlord shall have no further
obligation for payment or disbursement of the Tenant Allowance.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
10.01 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord, Tenant may not
sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit
the transfer of this Lease or the encumbering of Tenant's interest therein in
whole or in part, by operation of law or otherwise or permit the use or
occupancy of the Premises, or any part thereof, by anyone other than Tenant or
Tenant's Affiliate. If Tenant desires to enter into any sublease of the Premises
or assignment of this Lease, Tenant shall deliver written notice thereof to
Landlord ("Tenant's Notice"), together with the identity of the proposed
subtenant or assignee and the proposed principal terms thereof and financial and
other information sufficient for Landlord to make an informed judgment with
respect to such proposed subtenant or assignee at least thirty (30) business
days prior to the commencement date of the term of the proposed sublease or
assignment. If Tenant proposes to sublease less than all of the Rentable Area of
the Premises, the space proposed to be sublet and the space retained by Tenant
must each be a marketable unit as reasonably determined by Landlord and
otherwise in compliance with all Laws. Landlord shall notify Tenant in writing
of its approval or disapproval of the proposed sublease or assignment or its
decision to exercise its rights under Section 10.02 within thirty (30) days
after receipt of Tenant's Notice (and all required information). In no event may
Tenant sublease any portion of the Premises or assign the Lease to any other
tenant of the Building (except for an Affiliate of Tenant). Tenant shall submit
for Landlord's approval (which approval shall not be unreasonably withheld) any
advertising which Tenant or its agents intend to use with respect to the space
proposed to be sublet.
(b) With respect to Landlord's consent to an assignment or sublease,
Landlord may take into consideration any factors which Landlord may deem
relevant, and the reasons for which Landlord's denial shall be deemed to be
reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed
assignee is not acceptable to Landlord; or
(ii) in Landlord's reasonable judgment the proposed assignee or
sublessee would diminish the value or reputation of the Building or Landlord; or
(iii) any proposed assignee's or sublessee's use of the Premises would
violate Section 7.01 of the Lease or would violate the provisions of any other
leases of tenants in the Building;
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(iv) the proposed assignee or sublessee is either a governmental
agency, a school or similar operation, or a medical related practice; or
(v) the proposed sublessee or assignee is a bona fide prospective
tenant of Landlord in the Building as demonstrated by a written proposal dated
within ninety (90) days prior to the date of Tenant's request; or
(vi) the proposed sublessee or assignee would materially increase the
estimated pedestrian and vehicular traffic to and from the Premises and the
Building.
In no event shall Landlord be obligated to consider a consent to any proposed
(i) sublease of the Premises or assignment of the Lease if a Default then exists
under the Lease, or a fact or condition exists, which but for the giving of
notice or the passage of time would constitute a Default, or (ii) assignment of
the Lease which would assign less than the entire Premises. In the event
Landlord wrongfully withholds its consent to any proposed sublease of the
Premises or assignment of the Lease, Tenant's sole and exclusive remedy
therefore shall be to seek specific performance of Landlord's obligations to
consent to such sublease or assignment.
(c) If Landlord chooses not to recapture the space proposed to be
subleased or assigned as provided in Section 10.02, Landlord shall not
unreasonably withhold its consent to a subletting or assignment under this
Section 10.01. Any approved sublease or assignment shall be expressly subject to
the terms and conditions of this Lease. Any such subtenant or assignee shall
execute such documents as Landlord may reasonably require to evidence such
subtenant or assignee's assumption of such obligations and liabilities. Tenant
shall deliver to Landlord a copy of all agreements executed by Tenant and the
proposed subtenant and assignee with respect to the Premises. Landlord's
approval of a sublease or assignment shall not constitute a waiver or Tenant's
obligation to obtain Landlord's consent to further assignments or subleases.
(d) For purposes of this Article Ten, an assignment shall be deemed to
include a change in the majority control of Tenant, resulting from any transfer,
sale or assignment of shares of stock of Tenant occurring by operation of law or
otherwise if Tenant is a corporation whose shares of stock are not traded
publicly. If Tenant is a partnership, any change in the partners shall be deemed
to be an assignment, unless such change is to or with respect to Affiliated
entities of Tenants or it general partners of which Tenant shall have given
Landlord prior notice and copies of such documentation as Landlord may
reasonably require evidencing such change or transfer.
(e) Notwithstanding anything to the contrary contained in this Article
Ten, Tenant shall have the right, without the prior written consent of Landlord,
to sublease the Premises to an Affiliate or to assign this Lease to an
Affiliate, but (i) no later than fifteen (15) days prior to the effective date
of the assignment or sublease, the assignee or sublessee shall execute documents
satisfactory to Landlord to evidence such subtenant or assignee's assumption of
the obligations and liabilities of Tenant under this Lease, except in the case
of any assignment which occurs by operation of law (and without a written
assignment) as a consequence of merger, consolidation or non-bankruptcy
reorganization; (ii) within ten (10) days after the effective date of such
assignment or sublease, give notice to Landlord which notice shall include the
full name and address of the assignee or subtenant, and a copy of all agreements
executed between Tenant and the assignee or subtenant with respect to
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the Premises; and (iii) within fifteen (15) days after Landlord's request, such
documents or information which Landlord reasonably requests for the purpose of
substantiating whether or not the assignment or sublease is to an Affiliate.
10.02 RECAPTURE
Except as provided in Section 10.01(e) and except for a sublease or assignment
to an Affiliate of Tenant, Landlord shall have the option to exclude from the
Premises covered by this Lease ("recapture"), the space proposed to be sublet or
subject to the assignment, effective as of the proposed commencement date of
such sublease or assignment. If Landlord elects to recapture, Tenant shall
surrender possession of the space proposed to be subleased or subject to the
assignment to Landlord on the effective date of recapture of such space from the
Premises such date being the Termination Date for such space. Effective as of
the date of recapture of any portion of the Premises pursuant to this section,
the Monthly Base Rent, Rentable Area of the Premises and Tenant's Share shall be
adjusted accordingly.
10.03 EXCESS RENT
Tenant shall pay Landlord on the first day of each month during the term of the
sublease or assignment, fifty percent (50%) of the amount by which the sum of
all rent and other consideration (direct or indirect) due from the subtenant or
assignee for such month exceeds: (i) that portion of the Monthly Base Rent and
Rent Adjustments due under this Lease for said month which is allocable to the
space sublet or assigned; and (ii) the following costs and expenses for the
subletting or assignment of such space: (1) brokerage commissions and attorneys'
fees and expenses, (2) advertising for subtenants or assignees; (3) the actual
costs paid in making any improvements or substitutions in the Premises required
by any sublease or assignment, and (4) "free rent" periods, costs of any
inducements or concessions given to subtenant or assignee, moving costs, and
other amounts in respect of such subtenant's or assignee's other leases or
occupancy arrangements. All such costs will be amortized over the term of the
sublease or assignment pursuant to sound accounting principles.
10.04 TENANT LIABILITY
In the event of any sublease or assignment, whether or not with Landlord's
consent, Tenant shall not be released or discharged from any liability, whether
past, present or future, under this Lease, including any liability arising from
the exercise of any renewal or expansion option, to the extent expressly
permitted by Landlord. Tenant's liability shall remain primary, and in the event
of default by any subtenant, assignee or successor of Tenant in performance or
observance of any of the covenants or conditions of this Lease, Landlord may
proceed directly against Tenant without the necessity of exhausting remedies
against said subtenant assignee or successor. If Landlord grants consent to such
sublease or assignment, Tenant shall pay all reasonable attorneys' fees and
expenses incurred by Landlord with respect to such assignment or sublease. In
addition, if Tenant has any options to extend the term of this Lease or to add
other space to the Premises, such options shall not be available to any
subtenant or assignee, directly or indirectly without Landlord's express written
consent, which may be withheld in Landlord's sole discretion.
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10.05 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee shall
expressly assume all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord not later than
fifteen (15) business days prior to the effective date of the assignment. If
Tenant shall sublease the Premises as permitted herein, Tenant shall, at
Landlord's option, within fifteen (15) business days following any request by
Landlord, obtain and furnish to Landlord the written agreement of such subtenant
to the effect that the subtenant will attorn to Landlord and will pay all
subrent directly to Landlord.
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall constitute
a "Default" by Tenant under this Lease:
(i) Tenant fails to pay any installment or other payment of Rent
including Rent Adjustment Deposits or Rent Adjustments within ten (10)
days after written notice of such failure from Landlord;
(ii) Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease and fails to cure such default
within thirty (30) after written notice thereof to Tenant (unless the
default involves a hazardous condition, which shall be cured forthwith,
or unless the failure to perform is a Default for which this Lease
specifies there is no cure or grace period);
(iii) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(iv) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any
Chapter of the Bankruptcy Act, or any amendment, replacement or
substitution therefor, or to delay payment of, reduce or modify
Tenant's debts, which in the case of an involuntary action is not
discharged within thirty (30) days;
(v) Tenant is declared insolvent by law or any assignment of Tenant's
property is made for the benefit of creditors;
(vi) a receiver is appointed for Tenant or Tenant's property, which
appointment is not discharged within thirty (30) days;
(vii) any action taken by or against Tenant to reorganize or modify
Tenant's capital structure in a materially adverse way which in the
case of an involuntary action is not discharged within thirty (30)
days;
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(viii) upon the dissolution of Tenant; or
(ix) upon the third occurrence within any Lease Year that Tenant fails
to pay Rent within ten (10) days of the date when due or has breached a
particular covenant of this Lease (whether or not such failure or
breach is thereafter cured within any stated cure or grace period or
statutory period).
11.02 LANDLORD'S REMEDIES
(a) If a Default occurs, Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct and cumulative: (i) Landlord may
terminate this Lease by giving Tenant notice of Landlord's election to do so, in
which event, the term of this Lease shall end and all of Tenant's rights and
interests shall expire on the date stated in such notice; (ii) Landlord may
terminate Tenant's right of possession of the Premises without terminating this
Lease by giving notice to Tenant that Tenant's right of possession shall end on
the date specified in such notice; or (iii) Landlord may enforce the provisions
of this Lease and may enforce and protect the rights of the Landlord hereunder
by a suit or suits in equity or at law for the specific performance of any
covenant or agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all monies due or
to become due for the balance of the Term from Tenant under any of the
provisions of this Lease.
(b) In the event that Landlord terminates the Lease, Landlord shall be
entitled to recover as damages for loss of the bargain and not as a penalty,
Rent for the balance of the Term, plus all Landlord's expenses of reletting,
including without limitation, repairs, alterations, improvements, additions,
decorations, legal fees and brokerage commissions (collectively, the "Reletting
Expenses").
(c) In the event Landlord proceeds pursuant to subparagraph (a)(ii)
above, Landlord may, but shall not be obligated to (except as may be required by
law), relet the Premises; or any part thereof for the account of Tenant, for
such rent and term and upon such terms and conditions as are reasonably
acceptable to Landlord. For purposes of such reletting, Landlord is authorized
to decorate, repair, alter and improve the Premises to the extent reasonably
necessary or desirable. If the Premises are relet and the consideration realized
therefrom after payment of all Landlord's Reletting Expenses, is insufficient to
satisfy the payment when due of Rent reserved under this Lease for any monthly
period, then Tenant shall pay Landlord upon demand any such deficiency monthly.
If such consideration is greater than the amount necessary to pay the full
amount of the Rent, the full amount of such excess shall be retained by Landlord
and shall in no event be payable to Tenant. Tenant agrees that Landlord may file
suit to recover any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder shall not be any
defense to any subsequent action brought for any amount not theretofore reduced
to judgment in favor of Landlord.
(d) In the event a Default occurs, Landlord may, at Landlord's option,
enter into the Premises, remove Tenant's property, fixtures, furnishings, signs
and other evidences of tenancy, and take and hold such property; provided,
however, that such entry and possession shall not terminate this Lease or
release Tenant, in whole or in part, from Tenant's obligation to pay the Rent
reserved
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hereunder for the full Term or from any other obligation of Tenant under this
Lease. Any and all property which may be removed from the Premises by Landlord
pursuant to the authority of the Lease or law, to which Tenant is or may be
entitled, may be handled, removed or stored by Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay Landlord, upon demand, any
and all expenses incurred in such removal and all storage charges against such
property so long as the same shall be in the Landlord's possession or under the
Landlord's control. Any such property of Tenant not retaken from storage by
Tenant within sixty (60) days after the Termination Date, shall be conclusively
presumed to have been conveyed by Tenant to Landlord under this Lease as a xxxx
of sale without further payment or credit by Landlord to Tenant.
11.03 ATTORNEY'S FEES
Tenant shall pay upon demand, all costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in enforcing the Tenant's performance of
its obligations under this Lease, or resulting from Tenant's Default, or
incurred by Landlord in any litigation, negotiation or transaction in which
Tenant causes Landlord, without Landlord's fault, to become involved or
concerned. In the event Tenant institutes legal proceedings against the Landlord
for breach of Landlord's obligations or covenants under this Lease, and if a
final judgment is entered in favor of Tenant, Landlord shall reimburse Tenant
for all reasonable costs and expenses incurred by Tenant, including reasonable
attorneys' fees and court costs.
11.04 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy
Code where the trustee of Tenant elects to assume this Lease for the purposes of
assigning it, such election or assignment, may only be made upon compliance with
the provisions of (b) and (c) below, which conditions Landlord and Tenant
acknowledge to be commercially reasonable. In the event the trustee elects to
reject this Lease then Landlord shall immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the
Bankruptcy Code by Tenant as debtor-in-possession or by Tenant's trustee (the
"Electing Party") must provide for:
The Electing Party to cure or provide to Landlord adequate assurance
that it will cure all monetary defaults under this Lease within fifteen (15)
days from the date of assumption and it will cure all nonmonetary defaults under
this Lease within thirty (30) days from the date of assumption. Landlord and
Tenant acknowledge such condition to be commercially reasonable.
(c) If the Electing Party has assumed this Lease or elects to assign
Tenant's interest under this Lease to any other person, such interest may be
assigned only if the intended assignee has provided adequate assurance of future
performance (as herein defined), of all of the obligations imposed on Tenant
under this Lease.
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For the purposes hereof, "adequate assurance of future performance"
means that Landlord has ascertained that each of the following
conditions has been satisfied:
(i) The assignee has submitted a current financial statement, certified
by its chief financial officer, which shows a net worth and working
capital in amounts sufficient to assure the future performance by the
assignee of Tenant's obligations under this Lease; and
(ii) Landlord has obtained consents or waivers from any third parties
which may be required under a lease, mortgage, financing arrangement,
or other agreement by which Landlord is bound, to enable Landlord to
permit such assignment.
(d) Landlord's acceptance of rent or any other payment from any
trustee, receiver, assignee, person, or other entity will not be deemed to have
waived, or waive, the requirement of Landlord's consent, Landlord's right to
terminate this Lease for any transfer of Tenant's interest under this Lease
without such consent, or Landlord's claim for any amount of Rent due from
Tenant.
11.05 LANDLORD'S DEFAULT
Landlord shall be in default hereunder in the event Landlord has not begun and
pursued with reasonable diligence the cure of any failure of Landlord to meet
its obligations hereunder within thirty (30) days of the receipt by Landlord of
written notice from Tenant of the alleged failure to perform. In no event shall
Tenant have the right to terminate or rescind this Lease as a result of
Landlord's default as to any covenant or agreement contained in this Lease.
Tenant hereby waives such remedies of termination and rescission and hereby
agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement shall be limited to a suit for damages and/or injunction.
In addition, Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the Mortgagees holding mortgages on the Building notice
and a reasonable time to cure any default by Landlord.
ARTICLE TWELVE
SURRENDER OF PREMISES
12.01 IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate the Premises
immediately and deliver possession thereof to Landlord in a broom clean, good
and tenantable condition, ordinary wear and tear, and damage caused by Landlord
excepted. Tenant shall deliver to Landlord all keys to the Premises. Tenant
shall remove from the Premises all movable personal property of Tenant and
Tenant's trade fixtures, including, subject to Section 6.04, cabling for any of
the foregoing. Tenant shall be entitled to remove such Tenant Alterations which
at the time of their installation Landlord and Tenant and may be removed by
Tenant. Tenant shall also remove such other Tenant Alterations as required by
Landlord, including, any Tenant Alterations containing Hazardous Materials.
Tenant immediately shall repair all damage resulting from removal of any of
Tenant's property, furnishings or Tenant Alterations, shall close all floor,
ceiling and roof openings and shall restore the Premises to a tenantable
condition as reasonably determined by Landlord. If any of the Tenant Alterations
which were installed by Tenant involved the lowering of ceilings, raising of
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floors or the installation of specialized wall or floor coverings or lights,
then Tenant shall also be obligated to return such surfaces to their condition
prior to the commencement of this Lease. Tenant shall also be required to close
any staircases or other openings between floors, In the event possession of the
Premises is not delivered to Landlord when required hereunder, or if Tenant
shall fail to remove those items described above, Landlord may, (but shall not
be obligated to), at Tenant's expense, remove any of such property and store,
sell or otherwise deal with such property as provided in Section 11.02(b),
including the waiver and indemnity obligations provided in that Section, and
undertake, at Tenant's expense, such restoration work as Landlord deems
necessary or advisable.
12.02 LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord shall be
conclusively presumed to have been abandoned by Tenant and Landlord may deal
with such property as provided in Section 11.02(d). Tenant shall also reimburse
Landlord for all costs and expenses incurred by Landlord in removing any of
Tenant Alterations and in restoring the Premises to the condition required by
this Lease at the Termination Date.
ARTICLE THIRTEEN
HOLDING OVER
Tenant shall pay Landlord the greater of (i) one hundred fifty percent (150%) of
the monthly Rent payable for the month immediately preceding the holding over
(including increases for Rent Adjustments which Landlord may reasonably
estimate) or, (ii) one hundred fifty percent (150%) of the fair market rental
value of the Premises as reasonably determined by Landlord for each month or
portion thereof that Tenant retains possession of the Premises, or any portion
thereof, after the Termination Date (without reduction for any partial month
that Tenant retains possession). Tenant shall also pay all damages sustained by
Landlord by reason of such retention of possession. The provisions of this
Article shall not constitute a waiver by Landlord of any re-entry rights of
Landlord and Tenant's continued occupancy of the Premises shall be as a tenancy
in sufferance.
ARTICLE FOURTEEN
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 SUBSTANTIAL UNTENANTABILITY
(a) If any fire or other casualty (whether insured or uninsured)
renders all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, with reasonable promptness alter the occurrence of
such damage, estimate the length of time that will be required to substantially
complete the repair and restoration and shall by notice advise Tenant of such
estimate ("Landlord's Notice"). If Landlord estimates that the amount of time
required to substantially complete such and restoration will exceed one hundred
eighty (180) days from the date such damage occurred, then Landlord, or Tenant
if all or a substantial portion of the Premises is rendered untenantable, shall
have the right to terminate this Lease as of the date of such damage upon giving
written notice to the other at any time within twenty (20) days after delivery
of Landlord's Notice,
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provided that if Landlord so chooses, Landlord's Notice may also constitute such
notice of termination.
(b) Unless this Lease is terminated as provided in the preceding
subparagraph, Landlord shall proceed with reasonable promptness and diligence to
repair and restore the Premises and the Building to its condition as existed
prior to such casualty, subject to reasonable delays for insurance adjustments
and Force Majeure delays, and also subject to zoning laws and building codes
then in effect. Landlord shall have no liability to Tenant, and Tenant shall not
be entitled to terminate this Lease if such repairs and restoration are not in
fact completed within the time period estimated by Landlord so long as Landlord
shall proceed with reasonable diligence to complete such repairs and
restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage, whether carried by Landlord or Tenant, for
damages to the Premises, except for those proceeds of Tenant's insurance of its
own personal property, equipment and improvements paid for by Tenant which would
be removable by Tenant at the Termination Date. All such insurance proceeds
shall be payable to Landlord whether or not the Premises are to be repaired and
restored.
(d) Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section to repair or restore any
portion of any Tenant Alterations or to expend for any repair or restoration of
the Premises or Building amounts in excess of insurance proceeds paid to
Landlord and available for repair or restoration; and (ii) Tenant shall not have
the right to terminate this Lease pursuant to this Section if any damage or
destruction was caused by the act or neglect of Tenant, its agent or employees.
(e) Any repair or restoration of the Premises performed by Tenant shall
be in accordance with the provisions of Article Nine hereof.
14.02 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but neither is rendered
substantially untenantable and Landlord estimates that the time to substantially
complete the repair or restoration will not exceed one hundred eighty (180) days
from the date such damage occurred, then Landlord shall proceed to repair and
restore the Building or the Premises other than Tenant Alterations, with
reasonable promptness and diligence, unless such damage is to the Premises and
occurs during the last twelve (12) months of the Term, in which event either
Tenant or Landlord shall have the right to terminate this Lease as of the date
of such casualty by giving written notice thereof to the other within twenty
(20) days after the date of such casualty. Notwithstanding the aforesaid,
Landlord's obligation to repair and restore shall be limited in accordance with
the provisions of Section 14.01 (d)(i) above.
14.03 RENT ABATEMENT
Except for the negligence or wilful act of Tenant or its agents, employees,
contractors or invitees, if all or any part of the Premises are rendered
untenantable by fire or other casualty and this Lease is
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not terminated, Monthly Base Rent and Rent Adjustments shall xxxxx for that part
of the Premises which is untenantable on a per diem basis from the date of the
casualty until Landlord has substantially completed the repair and restoration
work in the Premises which it is required to perform, provided, that as a result
of such casualty, Tenant does not occupy the portion of the Premises which is
untenantable during such period. The rent abatement provided for in this
paragraph shall be Tenant's sole remedy against Landlord for such
untenantability.
ARTICLE FIFTEEN
EMINENT DOMAIN
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building or of the
Premises is taken or condemned by any competent authority for any public use or
purpose (including a deed given in lieu of condemnation) and is thereby rendered
untenantable, this Lease shall terminate as of the date title vests in such
authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of
the Termination Date. Notwithstanding anything to the contrary herein set forth,
in the event the taking is temporary (for less than the remaining term of the
Lease), Landlord may elect either (i) to terminate this Lease or (ii) permit
Tenant to receive the entire award with respect to the Premises in which case
Tenant shall continue to pay Rent and this Lease shall not terminate.
15.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by any
competent authority (or a deed is delivered in lieu of condemnation) and this
Lease is not terminated, the Lease shall be amended to reduce or increase, as
the case may be, the Monthly Base Rent and Tenant's Proportionate Share to
reflect the Rentable Area of the Premises or Building, as the case may be,
remaining after any such taking or condemnation. Landlord, upon receipt and to
the extent of the award in condemnation (or proceeds of sale) shall make
necessary repairs and restorations to the Premises (exclusive of Tenant
Alterations unless expressly included in the award) and to the Building to the
extent necessary to constitute the portion of the Building not so taken or
condemned as a complete architectural and economically efficient unit.
Notwithstanding the foregoing, if as a result of any taking, or a governmental
order that the grade of any street or alley adjacent to the Building is to be
changed and such taking or change of grade makes it necessary or desirable to
substantially remodel or restore the Building or prevents the economical
operation of the Building, Landlord shall have the right to terminate this Lease
upon ninety (90) days prior written notice to Tenant.
15.03 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale proceeds) from
any such taking, condemnation or sale without any payment to Tenant, and Tenant
hereby assigns to Landlord Tenant's interest, if any, in such award; provided,
however, Tenant shall have the right separately to pursue against the condemning
authority a separate award in respect of the loss, if any, to Tenant Alterations
paid for by Tenant without any credit or allowance from Landlord so long as
there is no diminution of Landlord's award as a result.
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ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company or
companies reasonably acceptable to Landlord, during the Term: (a) Commercial
General Liability Insurance on a primary basis and without any right of
contribution from any insurance carried by Landlord covering the Premises on an
occurrence basis against all claims for personal injury, bodily injury, death
and property damage, including contractual liability covering the
indemnification provisions in this Lease, subject to terms and conditions of
such insurance policy. Such insurance shall be for such limits that are
reasonably required by Landlord from time to time but not less than a combined
single limit of Five Million and No/100 Dollars ($5,000,000.00); (b) Statutory
Workers' Compensation and Employers' Liability Insurance for an amount of not
less than One Million and No/100 Dollars ($1,000,000.00), both in accordance
with the laws of the State of
Illinois; (c) "All Risks" property insurance in an
amount adequate to cover the full replacement cost of all of Tenant's equipment,
installations, fixtures and contents of the Premises in the event of loss and
any such policy shall contain a provision requiring the insurance carriers to
waive their rights of subrogation against Landlord; (d) In the event a motor
vehicle is to be used by Tenant in connection with its business operation from
the Premises, Business Automobile Liability Insurance coverage with limits of
not less than Three Million and No/100 Dollars ($3,000,000.00) combined single
limit coverage against bodily injury liability and property damage liability
arising out of the use by or on behalf of Tenant, its agents and employees in
connection with this Lease, of any owned, non-owned or hired motor vehicles; and
(e) such other insurance or coverages as Landlord reasonably requires, it being
understood and agreed that Tenant shall have the right to self-insure such
additional requirements after Tenant's written request therefor to Landlord
together with financial statements of Tenant reasonably satisfactory to
Landlord. Tenant may satisfy the foregoing limits of liability required
hereunder with a combination of primary and excess liability insurance.
16.02 FORM OF POLICIES
Each policy referred to in 16.01 shall satisfy the following requirements. Each
policy shall (i) name Landlord and the Indemnitees as additional insureds with
respect to liability arising from Tenant's operations for which Tenant has
assumed responsibility herein (except Workers' Compensation and Employers'
Liability Insurance and "all-risk" property insurance), (ii) be issued by one or
more responsible insurance companies licensed to do business in the State of
Illinois reasonably satisfactory to Landlord, (iii) where applicable, provide
for deductible amounts reasonably satisfactory to Landlord and not permit
co-insurance, (iv) shall provide that such insurance may not be canceled or
amended without thirty (30) days' prior written notice to the Landlord, and (v)
shall provide that the policy shall not be invalidated should the insured waive
in writing prior to a loss, any or all rights of recovery against any other
party for losses covered by such policies. Tenant shall deliver to Landlord,
certificates of insurance and at Landlord's request, copies of all policies and
renewals thereof to be maintained by Tenant hereunder, not less than thirty (30)
days prior to the Commencement Date and not less than ten (10) days prior to the
expiration date of each policy. The certificate shall acknowledge that any
insurance policy evidenced thereby shall not be canceled or amended without
thirty (30) days prior written notice to Landlord.
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16.03 LANDLORD'S INSURANCE
Landlord agrees to purchase and keep in full force and effect during the Term
hereof, including any extensions or renewals thereof, insurance under policies
issued by insurers of recognized responsibility, qualified to do business in the
State of
Illinois on the Building in amounts not less than the greater of eighty
(80%) percent of the then full replacement cost (without depreciation) of the
Building (above foundations) or an amount sufficient to prevent Landlord from
becoming a co-insurer under the terms of the applicable policies, against fire
and such other risks as may be included in standard forms of all risk coverage
insurance reasonably available from time to time. Landlord agrees to maintain in
force during the Term, Commercial General Liability Insurance covering the
Building on an occurrence basis against all claims for personal injury, bodily
injury, death and property damage. Such insurance shall be for a combined single
limit of Five Million and No/100 Dollars ($5,000,000.00). Neither Landlord's
obligation to carry such insurance nor the carrying of such insurance shall be
deemed to be an indemnity by Landlord with respect to any claim, liability,
loss, cost or expense due, in whole or in part, to Tenant's negligent acts or
omissions or willful misconduct.
16.04 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable at no, or minimal, additional
cost, and so long as the same is permitted under the laws of the Stare of
Illinois, it will include in its "All Risks" property insurance policies
appropriate clauses pursuant to which the insurance companies (i) waive all
right of subrogation against Tenant with respect to losses payable under such
policies and/or (ii) agree that such policies shall not be invalidated should
the insured waive in writing prior to a loss any or all right of recovery
against any party for losses covered by such policies.
(b) Tenant agrees to include, if obtainable at no, or minimal,
additional cost, and so long as the same is permitted under the laws of the
State of
Illinois, in its "All Risks" property insurance policy or policies on
its furniture, furnishings, fixtures and other property removable by Tenant
under the provisions of this Lease appropriate clauses pursuant to which the
insurance company or companies (i) waive the right of subrogation against
Landlord and/or any tenant of space in the Building with respect to losses
payable under such policy or policies and/or (ii) agree that such policy or
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policy or policies. If Tenant is unable to obtain in such policy or policies
either of the clauses described in the preceding sentence, Tenant shall, if
legally possible and without necessitating a change in insurance carriers, have
Landlord named in such policy or policies as an additional insured. If Landlord
shall be named as an additional insured in accordance with the foregoing,
Landlord agrees to endorse promptly to the order of Tenant, without recourse,
any check, draft, or order for the payment of money representing the proceeds of
any such policy or representing any other payment growing out of or connected
with said policies, and Landlord does hereby irrevocably waive any and all
rights in and to such proceeds and payments.
(c) Provided that Landlord's right of full recovery under its policy or
policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or
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damage occurring to the Building and the fixtures, appurtenances and equipment
therein, to the extent the same is covered by Landlord's insurance,
notwithstanding that such loss or damage may result from the negligence or fault
of Tenant, its servants, agents or employees. Provided that Tenant's right of
full recovery under its aforesaid policy or policies is not adversely affected
or prejudiced thereby, Tenant hereby waives any and all right of recovery which
it might otherwise have against Landlord, its servants, and employees and
against every other tenant in the Building who shall have executed a similar
waiver as set forth in this Section 16.04(c) for loss or damage to Tenant's
furniture, furnishings, fixtures and other property removable by Tenant under
the provisions hereof to the extent that same is covered or converable by
Tenant's insurance required under this Lease, notwithstanding that such loss or
damage may result from the negligence or fault of Landlord, its servants, agents
or employees, or such other tenant and the servants, agents or employees
thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if
the clauses to be included in their respective insurance policies pursuant to
subparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore
provided and thereafter to furnish the other with a certificate of insurance or
copy of such policies showing the naming of the other as an additional insured,
as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly
of any cancellation or change of the terms of any such policy which would affect
such clauses or naming. All such policies which name both Landlord and Tenant as
additional insured shall, to the extent obtainable, contain agreements by the
insurers to the effect that no act or omission of any additional insured will
invalidate the policy as to the other additional insured.
16.05 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the Premises
promptly after Tenant is aware of such event.
ARTICLE SEVENTEEN
WAIVER OF CLAIMS AND INDEMNITY
17.01 WAIVER OF CLAIMS
To the extent permitted by law, Tenant releases the Indemnitees from, and waives
all claims for, damage to person or property sustained by the Tenant or any
occupant of the Premises or the Property resulting directly or indirectly from
any existing or future condition, defect, matter or thing in and about the
Premises or the Property or any part of either or any equipment or appurtenance
therein, or resulting from any accident in or about the Premises or the
Property, or resulting directly or indirectly from any act or neglect of any
tenant or occupant of the Property or of any other person; including Landlord's
agents and servants, except to the extent caused by the negligent or willful and
wrongful act of any of the Indemnitees. To the extent permitted by law, Tenant
hereby waives any consequential damages, compensation or claims for
inconvenience or loss of business, rents, or profits as a result of such injury
or damage except to the extent caused by the negligent, willful or wrongful act
of any of the Indemnitees. If any such damage, whether to the Premises or the
Property or any part of either, or whether to Landlord or to other tenants in
the Property, results from any act or neglect of Tenant, its employees,
servants, agents, contractors, invitees or customers,
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Tenant shall be liable therefor and Landlord may, at Landlord's option, repair
such damage and Tenant shall, upon demand by Landlord, as payment of additional
Rent hereunder, reimburse Landlord within ten (10) days of demand for the total
cost of such repairs, in excess of amounts, if any, paid to Landlord under
insurance covering such damages. Tenant shall not be liable for any such damage
caused by its acts or neglect if Landlord or a tenant has recovered the full
amount of the damage from proceeds of insurance policies and the insurance
company has waived its right of subrogation against Tenant.
17.02 INDEMNITY BY TENANT
To the extent permitted by law, Tenant agrees to indemnify, protect, defend and
hold the Indemnitees harmless against any and all actions, claims, demands,
costs and expenses, including reasonable attorney's fees and expenses for the
defense thereof, arising from Tenant's occupancy of the Premises, from the
undertaking of any Tenant Alterations or repairs to the Premises, from the
conduct of Tenant's business on the Premises, or from any breach or default on
the part of Tenant in the performance of any covenant or agreement on the part
of Tenant to be performed pursuant to the terms of this Lease, or from any
willful or negligent act of Tenant, its agents, contractors, servants,
employees, customers or invitees, in or about the Premises, but only to the
extent of Landlord's liability, if any, in excess of amounts, if any, paid to
Landlord under insurance covering such claims or liabilities. In case of any
action or proceeding brought against the Indemnitees by reason of any such
claim, upon notice from Landlord, Tenant covenants to defend such action or
proceeding by counsel reasonably satisfactory to Landlord.
Any indemnification, exculpation or waiver provision under this Article
Seventeen shall not be deemed to exculpate or indemnify Landlord against its own
negligence or that of its agents, or servants or employees.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and invitees
to comply with the rules and regulations listed on Exhibit D attached hereto
and with all reasonable modifications and additions thereto which Landlord may
make from time to time upon at least ten (10) days advance notice thereof to
Tenant.
18.02 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord any duty or
obligation to enforce the rules and regulations as set forth on Exhibit D or as
hereafter adopted, or the terms, covenants or conditions of any other lease as
against any other tenant, and the Landlord shall not be liable to the Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees. Landlord shall use reasonable efforts to enforce the
rules and regulations of the Building in a uniform and non-discriminatory
manner. Tenant shall pay to Landlord all damages caused by Tenant's failure to
comply with the provisions of this Article Eighteen and shall also pay
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to Landlord as additional Rent an amount equal to any increase in insurance
premiums caused by such failure to comply.
ARTICLE NINETEEN
LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to Tenant
and without liability to Tenant for damage or injury to persons, property or
business and without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for offset or abatement
of Rent: (1) to change the Building's name or street address upon thirty (30)
days' prior written notice to Tenant; (2) to install, affix and maintain all
signs on the exterior and/or interior of the Building in accordance with
standards generally applicable to "Class A" buildings within the Building market
area; (3) to designate and/or approve prior to installation, all types of signs,
window shades, blinds, drapes, awnings or other similar items, and all internal
lighting that may be visible from the exterior of the Premises; (4) upon
reasonable prior notification to Tenant (which may be by telephone), to display
the Premises to prospective purchasers or mortgagees at reasonable hours at any
time during the Term and to prospective tenants at reasonable hours during the
last twelve (12) months of the Term or during any period of time when a Default
has occurred and is continuing; (5) to grant to any party the exclusive right to
conduct any business or render any service in or to the Building, provided such
exclusive right shall not operate to prohibit Tenant from using the Premises for
the purpose permitted hereunder, (6) to change the arrangement and/or location
of entrances or passageways, doors and doorways, corridors, elevators, stairs,
washrooms or public portions of the Building, and to close entrances, doors,
corridors, elevators or other facilities, provided that such action shall not
materially and adversely interfere with Tenant's access to the Premises or the
Building; (7) to have access for Landlord and other tenants of the Building to
any mail chutes and boxes located in or on the Premises as required by any
applicable rules of the United States Post Office; and (8) to close the Building
after Standard Operating Hours except that Tenant and its employees and invitees
shall be entitled to admission at all times, under such regulations as Landlord
prescribes for security purposes.
ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL
Within fifteen (15) business days after request therefor by Landlord, Mortgagee
or any prospective mortgagee or owner, Tenant agrees as directed in such request
to execute an Estoppel Certificate in recordable form, binding upon Tenant,
certifying (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that this
Lease as modified is in full force and effect); (ii) the dates to which Rent has
been paid; (iii) that Tenant is in the possession of the Premises if that is the
case; (iv) that Landlord is not in default under this Lease, or, if Tenant
believes Landlord is in default, the nature thereof in detail; (v) that Tenant
has no off-sets or defenses to the performance of its obligations under this
Lease (or if Tenant believes there are any off-sets or defenses, a full and
complete explanation thereof); (vi) that Tenant has accepted the Premises and
the condition thereof and of all improvements thereto and has no claims against
Landlord or any other party with respect thereto; (vii) that if an assignment of
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rents or leases has been served upon the Tenant by a Mortgagee, Tenant will
acknowledge receipt thereof and agree to be bound by the provisions thereof;
(viii) that Tenant will give to the Mortgagee copies of all notices required or
permitted to be given by Tenant to Landlord, and (ix) to any other information
reasonably requested.
20.02 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate as required
herein, then in addition to any other remedy available to Landlord, Landlord may
impose a penalty equal to $250.00 for each day that Tenant fails to deliver an
Estoppel Certificate and Tenant shall be deemed to have irrevocably appointed
Landlord as Tenant's attorney-in-fact to execute and deliver such Estoppel
Certificate.
ARTICLE TWENTY-ONE
RELOCATION OF TENANT
At any time after the date of this Lease, Landlord may substitute for the
Premises, other premises in the Building (the "New Premises"), in which event
the New Premises shall be deemed to be the Premises for all purposes under this
Lease, provided that (i) the New Premises shall be substantially similar to the
Premises in area; (ii) if Tenant is then occupying the Premises, Landlord shall
pay the actual and reasonable expenses of physically moving Tenant, its
property and equipment to the New Premises; (iii) Landlord shall give Tenant not
less than sixty (60) days' prior written notice of such substitution; (iv)
Landlord, at its expense, shall improve the New Premises with improvements
substantially similar to those in the Premises at the time of such substitution,
if the Premises are then improved; and (v) Landlord shall be responsible for all
reasonable costs and expenses directly related to the relocation of Tenant,
provided that Tenant shall have given Landlord reasonable estimates of the
itemized costs thereof prior to commencement of relocation.
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant represents that, except for Xxxxxxx and Xxxxxxxxx of
Illinois, Inc. and
CB Xxxxxxx Xxxxx, Inc., Tenant has not dealt with any real estate broker, sales
person, or finder in connection with this Lease, and no such person initiated
or participated in the negotiation of this Lease, or showed the Premises to
Tenant. Tenant hereby agrees to indemnify, protect, defend and hold Landlord and
the Indemnitees, harmless from and against any and all liabilities and claims
for commissions and fees arising out of a breach of the foregoing
representation. Landlord shall be responsible for the payment of all
commissions to the broker, if any, specified in this Article.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all times to (i)
any ground or underlying lease of the Real Property, now or hereafter existing,
and all amendments, extensions,
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renewals and modifications to any such lease, and (ii) the lien of any mortgage
or trust deed now or hereafter encumbering fee title to the Real Property and/or
the leasehold estate under any such lease, and all amendments, extensions,
renewals, replacements and modifications of such mortgage or trust deed and/or
the obligation secured thereby, unless such ground lease or ground lessor, or
mortgage, trust deed or Mortgagee, expressly provides or elects that the Lease
shall be superior to such lease or mortgage or trust deed. If any such mortgage
or trust deed is foreclosed (including any sale of the Real Property pursuant to
a power of sale), or if any such lease is terminated, upon request of the
Mortgagee or ground lessor, as the case may be, Tenant shall attorn to the
purchaser at the foreclosure sale or to the ground lessor under such lease, as
the case may be, provided, however, that such purchaser or ground lessor shall
agree that Tenant's quiet and peaceful possession of the Premises under this
Lease shall not be disturbed so long as Tenant pays all Rent and other charges
required hereunder and is not in default of any other covenant or obligation of
Tenant hereunder; provided, however, that such purchaser or ground lessor shall
not be (i) bound by any payment of Rent for more than one month in advance
except payments in the nature of security for the performance by Tenant of its
obligations under this Lease; (ii) subject to any offset, defense or damages
arising out of a default of any obligations of any preceding Landlord; or (iii)
bound by any amendment or modification of this Lease made without the written
consent of the Mortgagee or ground lessor; or (iv) liable for any security
deposits not actually received in cash by such purchaser or ground lessor. This
subordination shall be self-operative and no further certificate or instrument
of subordination need be required by any such Mortgagee or ground lessor. In
confirmation of such subordination, however, Tenant shall execute within ten
(10) business days any reasonable certificate or instrument that Landlord,
Mortgagee or ground lessor may request. Upon request by such successor in
interest, Tenant shall execute and deliver reasonable instruments confirming the
attornment provided for herein.
23.02 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or certified
mail, a copy of any notice of default served upon the Landlord by Tenant,
provided that prior to such notice Tenant has received notice (by way of service
on Tenant of a copy of an assignment of rents and leases, or otherwise) of the
address of such Mortgagee or ground lessor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagee or ground lessor shall have an additional thirty
(30) days after receipt of notice thereof within which to cure such default or
if such default cannot be cured within that time, then such additional notice
time as may be necessary, if, within such thirty (30) days, any Mortgagee or
ground lessor has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings or other proceedings to acquire possession of the Real Property, if
necessary to effect such cure). Such period of time shall be extended by any
period within which such Mortgagee or ground lessor is prevented from commencing
or pursuing such foreclosure proceedings or other proceedings to acquire
possession of the Real Property by reason of Landlord's bankruptcy. Until the
time allowed as aforesaid for Mortgagee or ground lessor to cure such defaults
has expired without cure, Tenant shall have no right to, and shall not,
terminate this Lease on account of default. This Lease may not be modified or
amended so as to reduce the rent or shorten the term, or so as to adversely
affect in any other respect to any material extent the rights of the Landlord,
nor shall this Lease be canceled
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or surrendered, without the prior written consent, in each instance, of the
ground lessor or the Mortgagee.
ARTICLE TWENTY-FOUR
NOTICES
(a) All notices, demands or requests provided for or permitted to be
given pursuant to this Lease must be in writing and shall be personally
delivered, sent by Federal Express or other overnight courier service, or
mailed by first class, registered or certified mail, return receipt requested,
postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this Lease
shall be deemed to have been properly given or served by delivering or sending
the same in accordance with this Section, addressed to the parties hereto at
their respective addresses listed below:
(1) Notices to Landlord shall be addressed:
ACG Management Company
00 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx, XX 00000
with a copy to the following:
BB&K/Northwest Point, LLC
c/o Xxxxxx Capital Group, Inc.
00 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
(2) Notices to Tenant shall be addressed:
Concert USA
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Law & Regulatory Affairs
With a copy to the following:
Concert USA
0000 Xxxxx xx Xxxx, Xxxxx 0000-00
Xxxxx Xxxxxx, XX 00000
Attn: Concert Global Real Estate
And to:
Concert USA
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00 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx Xxxxxxx, XX 00000
(c) If notices, demands or requests are sent by registered or certified
mail, said notices, demands requests shall be effective upon being deposited in
the United States mail. However, the time period in which a response to any such
notice, demand or request must be given shall commence to run from the date of
receipt on the return receipt of the notice, demand or request by the addressee
thereof. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed to be
receipt of notice, demand or request sent.
Notices may also be served by personal service upon any officer, director or
partner of Landlord or Tenant or in the case of delivery by Federal Express or
other overnight courier service, notices shall be effective upon acceptance of
delivery by an employee, officer, director or partner of Landlord or Tenant.
(d) By giving to the other party at least thirty (30) days written
notice thereof, either party shall have the right from time to time during the
term of this Lease to change their respective addresses for notices, statements,
demands and requests, provided such new address shall be within the United
States of America.
ARTICLE TWENTY-FIVE
STORAGE SPACE
INTENTIONALLY OMITTED
ARTICLE TWENTY-SIX
MISCELLANEOUS
26.01 LATE CHARGES
All payments required hereunder (other than the Monthly Base Rent, Rent
Adjustments, and Rent Adjustment Deposits, which shall be due as herein before
provided) to Landlord shall be paid within thirty (30) days after Landlord's
written demand therefor. Tenant shall pay to Landlord a late charge equal to
five percent (5%) of any amount payable by Tenant under this Lease (including,
without limitation Monthly Base Rent, Rent Adjustments, and Rent Adjustment
Deposits) remaining unpaid more than ten (10) days alter the payment due date.
In addition, all amounts payable by Tenant under this Lease which are not paid
within ten (10) days of the date due shall bear interest from the date due until
the date paid at the Default Rate in effect on the date such payment was due.
26.02 WAIVER OF JURY TRIAL
As a material inducement to Landlord to enter into this Lease, Tenant hereby
waives its right to a trial by jury of any issues relating to or arising out of
its obligations under this Lease or its occupancy of the Premises. Tenant
acknowledges that it has read and understood the foregoing provision.
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26.03 OPTION
This Lease shall not become effective as a lease or otherwise until executed and
delivered by both Landlord and Tenant. The submission of the Lease to Tenant
does not constitute a reservation of or option for the Premises, except that it
shall constitute an irrevocable offer on the part of Tenant in effect for sixty
(60) days to lease the Premises on the terms and conditions herein contained.
26.04 AUTHORITY
Tenant and Landlord each represent and warrant to the other that it has full
authority and power to enter into and perform its obligations under this Lease,
that the person executing this Lease is fully empowered to do so, and that no
consent or authorization is necessary from any third party.
26.05 ENTIRE AGREEMENT
This Lease and the Exhibits attached hereto contain the entire agreement between
Landlord and Tenant concerning the Premises and there are no other agreements,
either oral or written, and no other representations or statements, either oral
or written, on which Tenant has relied. This Lease shall not be modified except
by a writing executed by Landlord and Tenant.
26.06 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which shall not
result in any increased cost or expense to Tenant or in any other substantial
and adverse change in the rights and obligations of Tenant hereunder, then
Tenant agrees that the Lease may be so modified with Tenant's approval, which
shall not be unreasonably withheld or delayed.
26.07 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and assigns, that
any liability or obligation under this Lease shall only be enforced against
Landlord's equity interest in the Property up to a maximum of Five Million and
No/100 Dollars ($5,000,000.00), and in no event against any other assets of the
Landlord, or Landlord's officers or directors.
26.08 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on
account of the amount due, and no endorsement or statement on any check or any
letter accompanying any check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of Rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term.
26.09 LANDLORD'S OBLIGATIONS ON SALE XX XXXXXXXX
Xxxxxxx XXX Xxxxx 000
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In the event of any sale or other transfer of the Building, Landlord shall be
entirely freed and relieved of all agreements and obligations of Landlord
hereunder accruing or to be performed after the date of such sale or transfer,
provided that all of Landlord's obligations hereunder are specifically assumed
by the buyer or transferee.
26.10 BINDING EFFECT
This Lease shall be binding upon and inure to the benefit of Landlord and Tenant
and their respective heirs, legal representatives, successors and permitted
assigns.
26.11 CAPTIONS
The Article and Section captions in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such Articles and Sections.
26.12 APPLICABLE LAW
This Lease shall be construed in accordance with the laws of the State of
Illinois. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
item, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
26.13 ABANDONMENT
In the event Tenant vacates or abandons the Premises but is otherwise in
compliance with all the terms, covenants and conditions of this Lease, Landlord
shall (i) have the right to enter into the Premises in order to show the space
to prospective tenants, (ii) have the right to reduce the services provided to
Tenant pursuant to the terms of this Lease to such levels as Landlord reasonably
determines to be adequate services for an unoccupied premises and (iii) during
the last six (6) months of the Term, have the right to prepare the Premises for
occupancy by another tenant upon the end of the Term. Tenant expressly
acknowledges that in the absence of written notice pursuant to Section 11.02(a),
hereof, none of the foregoing acts of Landlord or any other act of Landlord
shall constitute a termination of Tenant's right to possession or an acceptance
of Tenant's surrender of the Premises, and the Lease shall continue in effect.
26.14 LANDLORD'S RIGHT TO PERFORM TENANTS DUTIES
If Tenant fails timely to perform any of its duties under this Lease, Landlord
shall have the right (but not the obligation), to perform such duty on behalf
and at the expense of Tenant without prior notice to Tenant, and all sums
expended or expenses incurred by Landlord in performing such duty shall be
deemed to be additional Rent under this Lease and shall be due and payable upon
demand by Landlord.
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IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
Section 1.01(4) hereof.
LANDLORD: TENANT:
BB&K/NORTHWEST POINT, LLC CONCERT USA, a Delaware general
a Delaware limited liability company partnership
By: /s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXXX
------------------------------- --------------------------------
Its: Vice President Its: Vice President
------------------------------ -------------------------------
Its authorized representative
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