1
EXHIBIT 10.32
▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ OFFICE BUILDING LEASE
Ampersand Medical Corporation, Inc.
2
TABLE OF CONTENTS
OFFICE BUILDING LEASE
Page
Section 1 LEASE OF PREMISES 3
Section 2 DEFINITIONS 3
Section 3 EXHIBITS AND ADDENDA 4
Section 4 DELIVERY OF POSSESSION 4
Section 5 RENT 4
Section 6 INTEREST AND LATE CHARGES 7
Section 7 SECURITY DEPOSIT 7
Section 8 TENANT'S USE OF THE PREMISES 7
Section 9 SERVICES AND UTILITIES 7
Section 10 PREPARATION AND CONDITION OF THE PREMISES 8
Section 11 CONSTRUCTION, REPAIRS AND MAINTENANCE 9
Section 12 ALTERATIONS AND ADDITIONS 9
Section 13 LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY 10
Section 14 CERTAIN RIGHTS RESERVED BY LANDLORD 10
Section 15 ASSIGNMENT AND SUBLETTING 11
Section 16 HOLDING OVER 12
Section 17 SURRENDER OF PREMISES 12
Section 18 DESTRUCTION OR DAMAGE 12
Section 19 EMINENT DOMAIN 13
Section 20 INDEMNIFICATiON 13
Section 21 TENANT'S INSURANCE 13
Section 22 WAIVER OF SUBROGATION 4
Section 23 SUBORDINATION AND ATTORNMENT 4
Section 24 ESTOPPEL CERTIFICATES 15
3
Section 25 TRANSFER OF LANDLORD'S INTEREST 15
Section 26 DEFAULT 15
Section 27 BROKERAGE FEES 17
Section 28 NOTICES 18
Section 29 GOVERNMENT ENERGY OR UTILITY CONTROLS 18
Section 30 INTENTIONALLY OMITTED 18
Section 31 QUIET ENJOYMENT 18
Section 32 OBSERVANCE OF LAW 18
Section 33 FORCE MAJEURE 18
Section 34 SIGN CONTROL 18
Section 35 RULES AND REGULATIONS 19
Section 36 MISCELLANEOUS 21
4
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
OFFICE BUILDING LEASE
This Lease between O.P., L.L.C., an Illinois limited liability company
("Landlord"), and Ampersand Medical Corporation, Inc. ("Tenant"), is dated May
18, 2000.
1. LEASE OF PREMISES.
In consideration of the Rent as defined at Section 5(c)) and the
provisions of this Lease, Landlord leases to Tenant and Tenant leases
from Landlord the Premises shown by diagonal lines on the floor plan
attached hereto as Exhibit "A," and further described at Section 2(h).
The Premises are located within the Building and Project described in
Section 2(i). Tenant shall have the non-exclusive right (unless
otherwise provided herein) in common with Landlord, other tenants,
subtenants and invitees, to use of the Common Areas (as defined at
Section 2(d)).
2. DEFINITIONS.
As used in this Lease, the following terms shall have the following
meanings:
(a) Base Rent: See Base Rent Schedule attached hereto as Exhibit
"E". Base Year: 2000
(b) Broker(s):
Landlord's: Spectrum Real Estate Services, Inc.
Tenants: Ampersand Medical Corporation, Inc.
(c) Commencement Date: June 1 5, 2000
(d) Common Areas: The building lobbies, common corridors and
hallways, restrooms, stairways, elevators and other generally
understood public or common areas. Landlord shall have the
right to regulate or restrict the use of the Common Areas.
(e) Expiration Date: August 30, 2005, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
(f) Landlord's Mailing Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Tenant's Mailing Address: ▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(g) Monthly Installments of Base Rent: See Base Rent Schedule.
(h) Premises: That portion of the Building containing
approximately 3,787 square feet of Rentable Area, shown by
diagonal lines on Exhibit "A," located on the third floor of
the Building and known as Suite 510.
(i) Project: The building of which the Premises are a part (the
"Building") and any other buildings or improvements on the
real property (the "Property") located at ▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and further described on Exhibit "B."
(j) Rentable Area: As to both the Premises and the Project, the
respective measurements of floor area as may from time to
time be subject to lease by Tenant and all tenants of the
Project, respectively, as determined by Landlord and applied
on a consistent basis throughout the Project.
(k) Security Deposit (Section 7):
(I) State: The State of Illinois.
(m) Tenant's Proportionate Share: .02% Such share is a fraction,
the numerator of which is the Rentable Area of the Premises,
and the denominator of which is the Rentable Area of the
2
5
Project, as determined by Landlord from time to time. The
Project consists of one building(s) containing a total
Rentable Area of 186,000 square feet.
(n) Tenant's Use Clause (Section 8): general office use.
(o) Term: The period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
(p) Lease Year: The twelve (12) month period commencing on the
Commencement Date and expiring on the first anniversary
thereof and each subsequent twelve (12) month period during
the Term.
3. EXHIBITS AND ADDENDA.
The exhibits listed below are incorporated by reference in this Lease:
(a) Exhibit "A" - Floor Plan showing the Premises.
(b) Exhibit "B" - Legal Description of Project.
(c) Exhibit "C" - (intentionally omitted).
(d} Exhibit "D" - (intentionally omitted).
(e) Exhibit "E" - Base Rent Schedule.
4. DELIVERY OF POSSESSION.
"As Is"
5. RENT.
(a) Payment of Base Rent. Tenant agrees to pay the Base Rent for the
Premises in accordance with those monthly installments specified on the
Base Rent Schedule. Monthly Installments of Base Rent shall be payable
in advance on the first day of each calendar month of the Term in the
amount specified on the Base Rent Schedule for that particular month. If
the Term begins (or ends) on other than the first (or last) day of a
calendar month, the Base Rent for the partial month shall be prorated on
a per diem basis. Tenant shall pay Landlord the first Monthly
Installment of Base Rent when Tenant executes the Lease.
(b) Project Operating Costs.
(1) In addition to its obligation to pay Monthly Installments of
Base Rent, Tenant shall also be obligated to pay, as Additional
Rent for each Lease Year Tenant's Proportionate Share of Project
Operating Costs (defined below) to the extent such costs exceed
Project Operating Costs for the Base Year. The Additional Rent
payable hereunder for the years in which the Term begins and ends
shall be prorated to correspond to that portion of the applicable
calendar year occurring within the term of this Lease.
(2) The term "Project Operating Costs" shall include all those
items described in the following Sections 5(b)(2)(A) and (B).
(A) All federal, state, county, and local governmental
taxes, assessments, water and sewer charges and other
similar governmental charges of every kind or nature
(collectively, "Taxes"), which Landlord shall pay, or
become obligated to pay, because of, in connection with
the ownership, management, control or operation of the
Building, Property or Project, or of the personal
property, fixtures, machinery, equipment, systems and
apparatus located therein or used in connection therewith,
including, without limitation (i) real property taxes or
assessments levied or assessed against the Building or
Project, (ii) any expenses (including, but not limited to,
legal fees) incurred by Landlord in any contest of real
estate taxes or assessments or the assessed value of the
Building, Property or the Project, however, there shall be
no attorneys' fees charged if there are no savings in
excess of all fees, legal fees and costs expended, (iii)
assessments or charges levied or assessed against the
Building or Project by any redevelopment agency, and (iv)
any tax measured by gross rentals received from the
leasing of the Premises, Building or Project, excluding
any net income, franchise, capital stock, estate or
inheritance taxes imposed by the State or federal
government or their agencies, branches or departments;
provided that if, at any time during the Term, any
governmental entity levies, assesses or imposes on
Landlord any (1) general or special, ad valorem or
specific, excise, capital levy or other tax, assessment,
levy or charge directly on the Rent received under this
Lease or on the rent received under any other leases of
space in the Building or Project, or (2) any license fee,
3
6
excise or franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rent, or (3) any transfer,
transaction, or similar tax, assessment, levy or charge based directly
or indirectly upon the transaction represented by this Lease or such
other leases of space in the Building or Project, or (4) any occupancy,
use, per capita or other tax, assessment, levy or charge based directly
or indirectly upon the use or occupancy of the Premises or other leased
premises within the Building or Project, then any and all of such taxes,
assessments, levies and charges shall be deemed to be included in the
term Project Operating Costs. For purposes hereof, Taxes for any year
shall be Taxes which are due for payment or paid in that year, rather
than Taxes which are assessed or become a lien during such year. If, at
any time during the Term, the assessed valuation of, or taxes on, the
Project are not based on a completed Project having at least eighty-five
percent (85%) of the Rentable Area in the Building occupied, then the
"Taxes" component of Project Operating Costs shall be adjusted by
Landlord to reasonably approximate the taxes which would have been
payable if the Project were completed and at least eighty-five percent
(85%) of the Rentable Area in the Building occupied. However, the taxes
assessed shall be the lesser of the actual taxes assessed and the
adjustment as made by the Landlord above.
(B) Operating costs incurred by Landlord in maintaining and operating
the Building and Project, including without limitation the following:
costs of (1) utilities; (2) supplies; (3) insurance (including, but not
limited to, public liability, property damage, earthquake, and fire and
extended coverage insurance for the full replacement cost of the
Building and Project) as required by Landlord or its lenders for the
Project; (4) services of independent contractors; (5) compensation
(including employment taxes and fringe benefits) of all persons who
perform duties connected with the operation, maintenance, repair or
overhaul of the Building or Project, and equipment, improvements and
facilities located within the Project, including, without limitation,
engineers, janitors, painters, floor waxers, window washers, security
and parking personnel and gardeners (but excluding persons performing
services not uniformly available to or performed for substantially all
Building or Project tenants); (6) operation and maintenance of a room
for delivery and distribution of mail to tenants of the Building or
Project as required by the U.S. Postal Service (including, without
limitation, an amount equal to the fair market rental value of the mail
room premises); (7) management of the Building or Project, whether
managed by Landlord or an independent contractor (including, without
limitation, an amount equal to the fair market rental value of any
on-site manager's office); (8) rental expenses for (or a reasonable
depreciation allowance on) personal property used in the maintenance,
operation or repair of the Building or Project; (9) costs, expenditures
or charges (whether capitalized or not) due to requirements of any
governmental or quasi-governmental authority; (10) amortization of
capital expenses (including financing costs) (i) required by a
governmental entity for energy conservation or life safety purposes, or
(ii) made by Landlord with the reasonable intent to reduce Project
Operating Costs; (11) legal, accounting and other professional fees
incurred in connection with the operation, maintenance and management of
the Building or Project; and (12) any other costs or expenses incurred
by Landlord under this Lease or with respect to the Building or Project
and not otherwise reimbursed by specific tenants of the Project, which
are properly allocable to the operation and maintenance of the Building
or Project in accordance with generally accepted accounting principles.
If at any time during the Term, less than eighty-five percent (85%) of
the Rentable Area of the Project is occupied, the "operating costs"
component of Project Operating Costs shall be adjusted by Landlord to
reasonably approximate the operating costs which would have been
incurred if the Project had been at least eighty-five percent (85%)
occupied.
(3) Estimated Payments and Operating Statements.
(A) Estimated Payments. Landlord or its agent shall furnish to Tenant,
prior to the Commencement Date and prior to the commencement of each
calendar year after the Base Year, a written statement setting forth
Landlord's estimate of Tenant's Proportionate Share of the Project
Operating Costs (the "Estimated Operating Statement") for such ensuing
calendar year. Tenant shall pay to Landlord, on the first day of each
month, as Additional Rent, an amount equal to one-twelfth (1112th) of
Landlord's estimate of Tenant's Proportionate Share of such Project
Operating Costs. If, however, Landlord shall fail to furnish any such
Estimated Operating Statement subsequent to the commencement of any
calendar year during the term of this Lease, then until the first day of
the month following the month in which such Estimated Operating
Statement is furnished to Tenant, Tenant shall pay to Landlord, on the
first day of each month, an amount equal to the monthly installment of
estimated Project Operating Costs payable under this section with
respect to the last month of the immediately preceding calendar year.
Upon furnishing such Estimated Operating Statement to Tenant, Landlord
shall give notice to Tenant stating whether the monthly installments of
Project Operating Costs which Tenant has paid to date during the current
calendar year are more or less than the estimated sums which Tenant
should have been paying to Landlord for the current calendar year, based
on that
4
7
Estimated Operating Statement. In the event there is a deficiency
with respect to the estimated amounts paid by Tenant to date in
the current calendar year, Tenant shall pay the amount of such
deficiency within ten (10) days after demand therefor; in the
event there shall have been an over-payment, Landlord shall
permit Tenant to credit the amount thereof against the subsequent
payments of Additional Rent next due during the calendar year in
which Landlord notifies Tenant of such over-payment. If there
shall be any increase or decrease in the estimated Project
Operating Costs for any Lease Year, whether during or after such
year, Landlord may furnish to Tenant a revised interim Estimated
Operating Statement and the Additional Rent shall be adjusted and
paid, or refunded by way of credits against future payments, as
the case may be, or Landlord may wait and make such adjustments
as per subparagraph (2) below. Notwithstanding the foregoing,
Landlord may adjust its estimate for Taxes at such time as actual
tax bills become available.
(B) Operatinq Statement. Within one hundred twenty (120) days
after the end of each calendar year, or as soon thereafter as
possible, Landlord shall furnish to Tenant a statement pertaining
to the actual payments made by Landlord for Project Operating
Costs for that immediately preceding year (the "Operating
Statement"). If the Operating Statement shows that the sums paid
by Tenant, pursuant to the Estimated Operating Statement, or any
revision thereof, exceed Tenant's Proportionate Share of the
actual Project Operating Costs for the calendar year in question,
Landlord shall permit Tenant to credit the amount of such excess
in installments, against the subsequent payments of Additional
Rent next due during the remainder of the calendar year in which
such Operating Statement is furnished pursuant to this section;
and if such Operating Statement shows that the aggregate amount
of the estimated sums paid by Tenant were less than the Tenant's
Proportionate Share of the actual Project Operating Costs, Tenant
shall pay the amount of such deficiency within thirty (30) days
after demand therefor. Failure of Landlord to submit the written
Operating Statement referred to herein shall not constitute a
waiver of any rights of Landlord.
(C) Disputes. Each Operating Statement given by Landlord shall be
conclusive and binding upon Tenant, unless within thirty (30)
days after the receipt thereof, Tenant shall notify Landlord that
Tenant disputes the accuracy of said Operating Statement,
specifying the particular respects in which the Operating
Statement is claimed to be incorrect. Notwithstanding any such
notice disputing the Operating Statement, any amount due to
Landlord, as shown on any such Operating Statement, shall be paid
by Tenant within thirty (30) days after Landlord's demand, as
provided above, but without prejudice to any such written
objection. Tenant or its authorized representative shall have the
right to examine Landlord's books and records with respect to the
items in the Operating Statement during normal business hours and
upon reasonable notice at any time within forty-five (45) days
following submission of the Operating Statement by Landlord. If,
within twenty-one (21) days after Landlord's receipt of Tenant's
notification of dispute of said Operating Statement, Landlord and
Tenant fail to agree, in writing, upon the actual amount of
Project Operating Costs and Tenant's Proportionate Share thereof,
then Landlord and Tenant shall jointly select an independent,
certified public accountant, licensed in the State of Illinois,
who shall prepare a report addressing the objections raised by
Tenant. The fees and costs of said accountant shall be paid
one-half by Landlord and one-half by Tenant, and the
determination of said accountant shall be conclusive and binding
on Landlord and Tenant. Any sums owed by Landlord to Tenant based
on the accountant's report shall be paid to Tenant in the form of
a credit against those subsequent payments of Additional Rent
next due during the remainder of the calendar year in which the
determination of such overpayment is made.
(c) Definition of Rent. All costs and expenses which Tenant assumes or agrees to
pay to Landlord under this Lease (except with respect to Base Rent) shall be
deemed "Additional Rent" (which, together with the Base Rent, is sometimes
referred to as the "Rent"). The Rent shall be paid to the Building manager (or
other person) and at such place, as Landlord may from time to time designate in
writing, without any prior demand therefor and without deduction or offset, in
lawful money of the United States of America.
(d) Rent Control. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
(e) Taxes Payable by Tenant. In addition to the Rent and any other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for any
and all taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or within
the contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (i) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of
5
8
any leasehold improvements made in or to the Premises by or for Tenant,
other than the Work, regardless of whether title to such improvements is
held by Tenant or Landlord; (ii) the gross or net Rent payable under
this Lease, including, without limitation, any rental or gross receipts
tax levied by any taxing authority with respect to the receipt of the
Rent hereunder; (iii) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (iv) this transaction or any
document to which Tenant is a party creating or transferring an interest
or an estate in the Premises. If it becomes unlawful for Tenant to
reimburse Landlord for any costs as required under this Lease, the Base
Rent shall be revised to net Landlord the same net Rent after imposition
of any tax or other charge upon landlord as would have been payable to
Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges
which Tenant is obligated to pay under the terms of this Lease, the
unpaid amounts shall bear interest at lesser of (i) two percent (2.0%)
in excess of the "prime" or "reference" or "base" rate of interest
announced as such, from time to time, by the First National Bank of
Chicago ("Prime") and (ii) the maximum rate then allowed by law. Tenant
acknowledges that the late payment of any Monthly Installment of Base
Rent will cause Landlord to lose the use of that money and incur costs
and expenses not contemplated under this Lease, including, without
limitation, administrative and collection costs and processing and
accounting expenses, the exact amount of which is extremely difficult to
ascertain. Therefore, in addition to interest (as described above in
this Section 6), if any such installment is not received by Landlord
within ten (10) days from the date it is due, Tenant shall pay Landlord
a late charge equal to ten percent (10%) of such delinquent installment.
Landlord and Tenant agree that this late charge represents a reasonable
estimate of such costs and expenses and is fair compensation to Landlord
for the loss suffered from such nonpayment by Tenant. Acceptance of any
interest or late charge shall not constitute a waiver of Tenant's
default with respect to such nonpayment by Tenant nor prevent Landlord
from exercising any other rights or remedies available to Landlord under
this Lease.
7. SECURITY DEPOSIT.
(a) Tenant agrees to deposit with Landlord the Security Deposit set
forth at Section 2(k) above upon execution of this Lease, as security
for Tenant's faithful performance of its obligations under this Lease.
Landlord and Tenant agree that the Security Deposit may be commingled
with funds of Landlord and Landlord shall have no obligation or
liability for payment of interest on such deposit. Tenant shall not
mortgage, assign, transfer or encumber the Security Deposit without the
prior written consent of Landlord (which may be withheld in Landlord's
sole discretion), and any attempt by Tenant to do so shall be void,
without force or effect and shall not be binding upon Landlord.
(b) If Tenant fails to pay any Rent or other amount when due and payable
under this Lease, or fails to perform any of the terms hereof, Landlord
may appropriate and apply or use all or any portion of the Security
Deposit for Rent payments or any other amount then due and unpaid; for
Payment of any amount for which Landlord has become obligated as a
result of Tenant's default or breach; and for any loss or damage
sustained by Landlord as a result of Tenant's default or breach; and
Landlord may so apply or use this Security Deposit without prejudice to
any other remedy Landlord may have by reason of Tenant's default or
breach. If Landlord so uses any of the Security Deposit, Tenant shall,
within ten (10) days after written demand therefor, restore the Security
Deposit to the full amount originally deposited. Tenant's failure to do
so shall constitute an act of default hereunder and Landlord shall have
the right to exercise any remedy provided for at Section 26 hereof.
Within fifteen (1 5) days after the Term (or any extension thereof) has
expired or Tenant has vacated the Premises, whichever shall last occur,
and provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or, if
Landlord has permitted Tenant to assign its interest under this Lease,
to the last assignee of Tenant. If Landlord sells its interest in the
Premises, Landlord may deliver this Security Deposit to the purchaser of
Landlord's interest and thereupon be relieved of any further liability
or obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in
Tenant's Use Clause. Tenant shall not use or occupy the Premises in
violation of law or any covenant, condition or restriction affecting the
Building or Project or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation of law or
the certificate of occupancy. Tenant, at Tenant's own cost and expense,
shall comply with all laws, ordinances, regulations, rules and/or any
directions of any governmental agencies or authorities having
jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with
respect to the Premises or its use or occupation. A judgment of any
court of competent jurisdiction or the admission by Tenant in any action
or proceeding against Tenant that Tenant has
6
9
violated any such laws, ordinances, regulations, rules and/or directions
in the use of the Premises shall be deemed to be conclusive
determination of that fact as between Landlord and Tenant. Tenant shall
not do, or permit to be done, anything which will invalidate or increase
the cost of any fire, extended coverage or other insurance policy
covering the Building or Project and/or property located therein, and
shall comply with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any other
organization performing a similar function. Tenant shall promptly upon
demand reimburse Landlord for any additional premium charged for such
policy by reason of Tenant's failure to comply with the provisions of
this Section 8. Tenant shall not do, or permit anything to be done, in
or about the Premises which will in any way obstruct or interfere with
the rights of other tenants or occupants of the Building or Project, or
injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in or upon
the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Landlord agrees to
furnish to the -Premises during generally recognized business days, and
during hours determined by Landlord in its sole discretion (which are
presently from 9:00 a.m. to 5:00 p.m. on weekdays and from 9:00 a.m. to
1:00 p.m. on Saturdays, with Sundays and holidays excluded), and subject
to the Rules and Regulations of the Building or Project, heating,
ventilation and air conditioning ("HVAC") as required, in Landlord's
judgment, for the comfortable use and occupancy of the Premises. It is
specifically understood and agreed that Landlord shall cause the
Premises to be separately metered for the provision of electrical
current service, at Landlord's expense, and, if Landlord so requires,
Tenant shall cause the electrical utility to establish a separate
account, in Tenant's name, for the provision of electricity to the
Premises. If Tenant desires HVAC at any other time, Landlord shall use
reasonable efforts to furnish such service upon reasonable notice from
Tenant and Tenant shall pay Landlord's charges therefor on demand.
Landlord shall also maintain and keep lighted the common stairs, common
entries and restrooms in the Building. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting
from, nor shall the Rent be abated by reason of (i) the installation,
use, or interruption of use, of any equipment in connection with the
furnishing of any of the foregoing services; (ii) failure to furnish, or
delay in furnishing, any such services where such failure or delay is
caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs or
improvements to the Premises, Building or Project; or (iii) the
limitation, curtailment or rationing of, or restrictions on, use of
water, electricity, gas or any other form of energy serving the
Premises, Building or Project. Landlord shall not be liable under any
circumstances for a loss of or injury to property or business, however
occurring through or in connection with or incidental to failure to
furnish any such services. If Tenant uses heat generating machines or
equipment in the Premises which affect the temperature otherwise
maintained by the HVAC system, Landlord reserves the right to install
supplementary air conditioning units in the Premises and the costs
thereof, including the cost of installation, operation and maintenance
thereof, shall be paid by Tenant to Landlord upon demand by Landlord.
Tenant shall not, without the written consent of Landlord, use any
apparatus or device in the Premises, including without limitation,
electronic data processing machines, punch card machines or machines
using in excess of 1 20 volts, which consumes more electricity than is
usually furnished or supplied for the use of premises as general office
space, as determined by Landlord. Tenant shall not connect any apparatus
with electric current except through existing electrical outlets in the
Premises. Tenant shall not consume any water or electric current in
excess of that usually furnished or supplied for the use of premises as
general office space (as determined by Landlord), without first
procuring the written consent of Landlord, which Landlord may refuse,
and in the event of consent, Landlord may have installed a water meter
or electrical current meter in the Premises to measure the amount of
water or electric current consumed. The cost of any such meter and of
its installation, maintenance and repair shall be paid for by the Tenant
and Tenant agrees to pay to Landlord promptly upon demand for all such
water and electric current consumed as shown by said meters, at the
rates charged for such services by the local public utility plus any
additional expense incurred in keeping account of the water and electric
current so consumed. If a separate meter is not installed, the excess
cost for such water and electric current shall be established by an
estimate made by a utility company or electrical engineer hired by
Landlord at Tenant's expense.
Landlord shall furnish elevator service, lighting replacement for
building standard lights, restroom supplies, window washing and janitor
services in a manner that such services are customarily furnished to
comparable office buildings in the area.
10. PREPARATION AND CONDITION OF THE PREMISES.
(a) The Work and Workletter Agreement. The Premises is completed
and is prepared for Tenant's occupancy "as is" -
7
10
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
(a) Landlord's Obligations. Landlord shall (maintain in good
order, condition and repair the Building and all other portions
of the Premises not the obligation of Tenant or of any other
tenant in the Building.
(b) Tenant's Obligations.
(1) Tenant, at Tenant's sole expense, shall, except for
services furnished by Landlord pursuant to Section 9
hereof, maintain the Premises in good order, condition and
repair, including, but not limited to, the interior
surfaces of the ceilings, walls and floors, all doors, all
interior windows, all Plumbing, pipes and fixtures,
electrical wiring, switches and fixtures, furnishings that
are part of the Work and special items and equipment
installed by or at the expense of Tenant.
(2) Tenant shall be responsible for all repairs and
alterations in and to the Premises, Building and Project
and the facilities and systems thereof, the need for which
arises out of (i) Tenant's use or occupancy of the
Premises, (ii) the installation, removal, use or operation
of Tenant's Property (as defined in Section 13 below) in
the Premises, (iii) the moving of Tenant's Property into
or out of the Building, or (iv) the act, omission, misuse
or negligence of Tenant, its agents, contractors,
employees or invitees.
(3) If Tenant fails to maintain the Premises in good
order, condition and repair, Landlord shall give Tenant
notice to do such acts as are reasonably required to so
maintain the Premises. If Tenant fails to promptly
commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do such
acts and expend such funds, at the expense of Tenant, as
are reasonably required to perform such work. Any amount
so expended by landlord shall be paid by Tenant promptly
after demand with interest at the rate set forth in
Section 6 above from the date of such work. Landlord shall
have no liability to Tenant for any damage, inconvenience,
or interference with the use of the Premises by Tenant as
a result of performing any such work.
(c) Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of
any public authority relating to their respective maintenance
obligations as set forth herein.
(d) Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by
Landlord's structural engineering shall be paid for by Tenant upon
demand. Tenant shall not install business machines or mechanical
equipment which cause noise or vibration to such a degree as to be
objectionable to Landlord or other Building tenants.
(e) Interference. Except as otherwise expressly provide in this Lease,
Landlord shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any manner
whatsoever, by reason of any inconvenience, annoyance, interruption or
injury to business arising from Landlord's making any repairs or changes
which Landlord is required or permitted by this Lease or by any other
tenant's lease or required by law to make in or to any portion of the
Project, Building or the Premises, including, but not limited to, the
buildout of the remaining tenant space(s) and incomplete base building
areas in the Building. Landlord shall nevertheless use reasonable
efforts to minimize any interference with Tenant's business in the
Premises. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the Building's
mechanical, electrical, plumbing, HVAC or other systems serving, located
in, or passing through the Premises.
(f) Return of Premises. Upon the expiration or earlier termination of
this Lease, Tenant shall return the Premises to Landlord clean and in
the same condition as on the date Tenant took possession, except for
normal wear and tear. Any damage to the Premises, including any
structural damage, resulting from Tenant's use, or from the removal of
Tenant's fixtures, furnishings and equipment pursuant to Section 13(b)
below, shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not make any additions, alterations or improvements to
the Premises without obtaining the prior written consent of Landlord.
Landlord's consent may be conditioned on Tenant's removing any such
additions, alterations or improvements upon the expiration of the Term
and restoring the Premises to the same condition as on the date Tenant
took possession. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work
shall be diligently prosecuted to completion.
8
11
(b) Tenant shall pay the costs of any work done on the Premises pursuant
to Section 12(a) above, and shall keep the Premises, Building and
Project free and clear of liens of any kind or nature. Tenant hereby
indemnifies, defends against and keeps Landlord free and harmless from
and against any and all liability, loss, damage, costs, attorneys' fees
(of counsel selected by Landlord) and any other expense incurred by
Landlord on account of, or as a result of, or due to, claims by any
person performing work or furnishing materials or supplies for Tenant or
any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are, or become, the property of Landlord under this
Lease, free and clear of all attachment or judgment liens. Before the
actual commencement of any work for which a claim or lien may be filed,
Tenant shall give Landlord notice of the intended commencement date a
sufficient time before that date to enable Landlord to post notices of
non-responsibility or any other notices which Landlord deems necessary
for the proper protection of Landlord's interest in the Premises,
Building or the Project, and landlord shall have the right to enter the
Premises and post such notices at any reasonable time.
(c) Landlord may require, at Landlord's sole option, that Tenant provide
to Landlord, at Tenant's expense, a lien and completion bond in an
amount equal to at least one and one-half (1 1/2) times the total
estimated cost of any additions, alterations or improvements to be made
in or to the Premises, to protect Landlord against any liability for
mechanics and materialmen's liens and to insure timely completion of the
work. Nothing contained in this Section 12(c) shall relieve Tenant of
its obligation under Section 12(b) above to keep the Premises, Building
and Project free of all liens.
(d) Unless their removal is required by Landlord, as provided in Section
12(a) above, all additions, alterations and improvements made to the
Premises shall become the property of Landlord and be surrendered with
the Premises upon the expiration of the Term; provided, however,
Tenant's equipment, machinery and trade fixtures which may be removed
without damage to the Premises shall remain the property of Tenant and
may be removed, subject to the provisions of Section 13(b) below.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
(a) All fixtures, equipment, improvements and appurtenances attached to.
or built into, the Premises at the commencement of or during the Term,
whether or not by, or at the expense of, Tenant ("Leasehold
Improvements"), shall be and remain a part of the Premises; shall be the
property of Landlord; and shall not be removed by Tenant, except as
expressly provide in Section 13(b).
(b) All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense
to Landlord, which can be removed without structural damage to the
Building or the Premises, and all furniture, furnishings and other
articles of movable personal property owned by Tenant and located in the
Premises (collectively "Tenant's Property") shall be and shall remain
the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of Tenant's Property is removed, Tenant
shall promptly repair, at its sole cost and expense, and to Landlord's
satisfaction, any and all damage to the Premises or to the Building
resulting from such removal.
14. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to
Tenant for (i) damage or injury to property, person or business, (ii)
causing an actual or constructive eviction from the Premises, or (iii)
disturbing Tenant's use or possession of the Premises:
(a) To name the Building and Project and to change the name or street
address of the Building or Project;
(b) To install and maintain all signs on the exterior and interior of
the Building and Project;
(c) To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
(d) At any time during the Term, and on a reasonable prior notice to
Tenant, to inspect the Premises, and to show the Premises to any
prospective purchaser or mortgagee of the Project, or to any assignee of
any mortgage on the Project, or to others having an interest in the
Project or Landlord, and during the last six (6) months of the Term, to
show the Premises to prospective tenants thereof; and
(e) To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the Premises or the
Building (including, without limitation, checking, calibrating,
adjusting or balancing controls and other parts of the HVAC system), and
to take all steps as may be necessary or desirable for the safety,
protection, maintenance or preservation of the Premises or the Building
or Landlord's interest therein, or as may be necessary
9
12
or desirable for the operation or improvement of the Building or in
order to comply with laws, orders or requirements of governmental or
other authority. Landlord agrees to use its reasonable, good faith
efforts (except in an emergency) to minimize interference with Tenant's
business in the Premises in the course of any such entry.
15. ASSIGNMENT AND SUBLETTING.
Tenant acknowledges that Landlord has entered into this Lease in
reliance on Tenant's creditworthiness, reputation and ability to operate
the Premises for the purposes set forth in Section 8 above. No
assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as specifically provided in this Section 15.
Landlord acknowledges that the Tenant subleases space to several related
companies and shall continue to do so and, as far as this paragraph is
concerned all of these related entities shall be included within the
definition of "Tenant".
(a) Tenant shall not, without the prior consent of Landlord, assign or
hypothecate this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use of the Premises by any party other
than Tenant. Any of the foregoing acts without such consent shall be
void and shall, at the option of Landlord, terminate this Lease. This
Lease shall not, nor shall any interest of Tenant herein, be assignable
by operation of law without the written consent of Landlord.
(b) If, at any time or from time to time during the Term, Tenant desires
to assign this Lease or sublet all or any part of the Premises, Tenant
shall give written notice to Landlord setting forth the terms and
provisions of the proposed assignment or sublease, and the identity of
the proposed assignee or subtenant. Tenant shall promptly supply
Landlord with such information concerning the business background and
financial condition of such proposed assignee or subtenant as Landlord
may reasonably request. Landlord shall have the option, exercisable by
notice given to Tenant within twenty (20) days after Tenant's notice is
given, either to sublet such space from Tenant at the rental and on the
other terms set forth in this Lease for the term set forth in Tenant's
notice, or, in the case of an assignment, to terminate this Lease. If
Landlord does not exercise such option, Tenant may assign the Lease or
sublet such space to such proposed assignee or subtenant on the
following further conditions:
(1) Landlord shall have the right to approve such proposed
assignee or subtenant, which approval shall not be unreasonably
withheld, and Tenant shall furnish sufficient information to
Landlord so that Landlord may make a reasonable determination as
to the creditworthiness and reputation of the proposed assignee
or subtenant;
(2) The assignment or sublease shall be on the same terms set
forth in the notice given to Landlord and true and correct copies
of all documentation proposed to evidence any such assignment or
sublease shall be furnished to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessees shall take possession of the Premises until an
executed counterpart of such assignment or sublease has been
delivered to Landlord;
(4) No assignee or sublessee shall have a further right to assign
or sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant
as a result of such assignment or subletting, however,
denominated under the assignment or sublease, which exceed, in
the aggregate, (i) the total sums which Tenant is obligated to
pay Landlord under this Lease (prorated to reflect obligations
allocable to any portion of the Premises subleased), plus (ii)
any real estate brokerage commissions or fees payable in
connection with such assignment or subletting, shall be paid to
Landlord as Additional Rent under this Lease without affecting or
reducing any other obligations of Tenant hereunder.
(6) Any such assignment or sublease shall be specifically subject
to all of the terms and conditions of this Lease, and, in the
event of an assignment, such assignee shall specifically assume,
in writing and in a form satisfactory to Landlord, all of
Tenant's rights and obligations hereunder.
(c) Notwithstanding the provisions of Sections 1 Sia) and 15(b) above,
Tenant may assign this Lease or sublet the Premises or any portion
thereof, without Landlord's consent and without extending any recapture
or termination option to Landlord (pursuant to Section 1 5(b) above), to
any corporation which controls, is controlled by, or is under common
control with Tenant, or to any corporation resulting from a merger or
consolidation with Tenant, or to any person or entity which acquires all
the assets of Tenant's business as a going concern, provided that (11
the assignee or sublessee assumes, in full, the obligations of Tenant
under this Lease; (21 Tenant remains fully liable under this Lease; (3)
the use of the Premises under Section 8 above remains unchanged; and (4)
any successor to Tenant's interest resulting from merger or
consolidation has a net worth which is equal to, or greater than, that
of the Tenant immediately before such merger or consolidation.
(d) No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter or modify the primary liability of
Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder.
10
13
The acceptance of Rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to
one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by an
assignee or subtenant of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against such
assignee, subtenant or successor. Landlord may consent to subsequent
assignments of the Lease, sublettings or amendments or modifications to
the Lease with assignees of Tenant, without notifying Tenant, or any
successor of Tenant, and without obtaining its or their consent thereto
and any such actions shall not relieve Tenant of liability under this
Lease.
(e) If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting, or if Tenant
requests the consent of Landlord for any act that Tenant proposes to do,
then Tenant shall, upon demand pay Landlord an administrative fee of Two
Hundred Fifty and No/100 Dollars ($250.00), plus any attorneys' fees (of
counsel selected by Landlord), reasonably incurred by Landlord in
connection with such act or request.
16. HOLDING OVER.
If Tenant remains in possession after the Expiration Date hereof or
after any earlier termination date of this Lease or of the Tenant's
right to possession (a) Tenant shall be deemed a tenant at will; (b)
Tenant shall pay two hundred percent (200%) of the Base Rent and
Additional Rent last prevailing hereunder, and also shall pay all
damages sustained by Landlord, consequential as well as direct, by
reason of such remaining in possession after the expiration or
termination of this Lease; (c) there shall be no renewal or extension of
this Lease by operation of law; and (d) the tenancy at will may be
terminated upon thirty (30) days' notice from Landlord; or, at the sole
option of Landlord, expressed by written notice to Tenant, but not
otherwise, such holding over shall constitute a renewal of this Lease
for a period of one (1) year on the same terms and conditions as
provided in this Lease. The provisions of this Section 16 shall not
constitute a waiver by Landlord of any re-entry rights of Landlord
provided hereunder or by law.
17. SURRENDER OF PREMISES.
(a) Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
Tenant took possession, except for (1) reasonable wear and tear, (2) loss
by fire or other casualty, and (3) loss by condemnation. Tenant shall, on
Landlord's request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
(b) If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by .a ▇▇▇▇ of sale. If Landlord
elects to remove all or any part of such Tenant's Property, the cost of
removal, including repairing any damage to the Premises or Building caused
by such removal, shall be paid by Tenant. On the Expiration Date, Tenant
shall surrender all keys to the Premises.
18. DESTRUCTION OR DAMAGE.
(a) If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the
elements or other casualty, Landlord shall, subject to the provisions of
this Section 18, promptly repair the damage, if such repairs can, in
Landlord's opinion, be completed within ninety (90) days of the date on
which such casualty occurred. If Landlord determines that repairs can be
completed within ninety (90) days, this Lease shall remain in full force
and effect, and, provided that such damage is not the result of the
negligence or willful misconduct of Tenant or Tenant's agents,
employees, contractors, licensees or invitees, the Base Rent shall be
abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 18(d) below.
(b) If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety (90) days of the date on which such casualty occurred, Landlord
may elect, upon notice to Tenant given within (30) days after the date
of such fire or other casualty, to repair such damage, in which event
this Lease shall continue in full force and effect, but the Base Rent
shall be partially abated as provided in Section 18(a) above. If
Landlord does not so elect to make such repairs, this Lease shall
terminate as of the date of such fire or other casualty.
(c) If any other portion of the Building or Project is totally destroyed
or damaged to the extent that, in Landlord's opinion, repair thereof
cannot be completed within ninety (90) days of the date on which such
casualty occurred, Landlord may elect, upon notice to Tenant, given
within thirty (30) days after the date of such fire or other casualty,
to repair such damage, in which event this Lease shall continue in full
force and effect, but the Base Rent shall be partially abated as
provided in Section 18(a) above. If Landlord does not elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
11
14
(d) If the Premises are to be repaired under this Section 18, Landlord
shall repair, at its cost, any injury or damage to the Building and the
Work in the Premises, and Tenant shall be responsible, at its sole cost
and expense, for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property. Landlord shall not be
liable for any loss of business, inconvenience or annoyance arising from
any repair or restoration of any portion of the Premises, Building or
Project as a result of any damage from fire or other casualty.
(e) This Lease shall be considered an express agreement governing any
case of damage to or destruction of the Premises, Building or Project by
fire or other casualty, and any present or future law which purports to
govern the rights of Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no application.
19. EMINENT DOMAIN.
(a) If the whole of the Building or Premises is condemned or in any
other manner taken for any public purpose, this Lease shall terminate as
of the date of such condemnation and Rent shall be prorated to such
date. If less than the whole of the Building or Premises is so taken,
this Lease shall be unaffected by such taking, provided that (1) Tenant
shall have the right to terminate this lease by notice to Landlord given
within ninety (90) days after the date of such taking if twenty percent
(20%) or more of the Premises is taken and the remaining area of the
Premises is not reasonably sufficient for Tenant to continue operation
of its business, and (2) Landlord shall have the right to terminate this
Lease by notice to Tenant given within ninety (90) days after the date
of such taking. If either Landlord or Tenant so elects to terminate this
Lease, the Lease shall terminate on the thirtieth (30th) day after
either such notice. The Rent shall be prorated to the date of
termination. If this Lease continues in force upon such partial taking,
the Base Rent and Tenant's Proportionate Share shall be equitably
adjusted according to the remaining Rentable Area of the Premises and
Project.
(b) In the event of any taking, partial or whole, all the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord all of its right, title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall have
the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but not from
Landlord) such compensation as may be recoverable by Tenant in its own
right for relocation expenses and damage to Tenant's Property.
(c) In the event of a partial taking of the Premises which does not
result in a termination of this Lease, Landlord shall restore the
remaining portion of the Premises as nearly as reasonably practicable to
its condition prior to the condemnation or taking, but only to the
extent of the Work. Tenant shall be responsible, at its sole cost and
expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property.
20. INDEMNIFICATION.
(a) Tenant shall and hereby does indemnify, defend and hold Landlord
harmless against and from liability and claims of any kind for loss or
damage to property of Tenant or any other person, or for any injury to
or death of any person, arising out of: (1) Tenant's use and occupancy
of the Premises, or any work, activity or other things allowed or
suffered by Tenant to be done in, on or about the Premises; (2) any
breach or default by Tenant of any of Tenant's obligations under this
Lease; or (3) any negligent or otherwise tortuous act or omission of
Tenant, its agents, employees, invitees or contractors. Tenant shall, at
Tenant's expense, and by counsel selected by Landlord, defend Landlord
in any action or proceeding arising from any such claim and shall, and
hereby does indemnify, defend and hold Landlord harmless from and
against all costs, attorneys' fees, expert witness fees and any other
expenses incurred in such action or proceeding. As a material part of
the consideration for Landlord's execution of this Lease, Tenant hereby
assumes all risk of damage or injury to any person or property in, on or
about the Premises from any cause.
(b) Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees
or customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may
leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures,
whether such damage or injury results from conditions arising upon the
Premises or upon other portions of the Building or Project or from other
sources. Landlord shall not be liable for any damages arising from any
act or omission of any other tenant of the Building or Project.
21, TENANT'S INSURANCE.
(a) All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name Landlord, and, at Landlord's request, any mortgagee of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (1) a cross-liability endorsement, (2)
a provision that such policy and the coverage evidenced thereby shall be
primary and non-contributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be excess
insurance, and (3) a waiver by the insurer of
12
15
any right of subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any payments
under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer evidencing
the existence and amount of each insurance policy required hereunder
shall be delivered to Landlord before the date Tenant is first given the
right of possession of the Premises, and thereafter within thirty (30)
days after any demand by Landlord therefor. Landlord may, at any time
and from time to time, inspect and/or copy any insurance policies
required to be maintained by Tenant hereunder. No such policy shall be
cancellable except after twenty (20) days written notice to Landlord and
Landlord's lender. Tenant shall furnish Landlord with evidence of
renewal of any such policy (together with evidence of the payment of the
premium for such renewal), at least ten (10) days prior to the
expiration thereof. Tenant agrees that if Tenant does not take out and
maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and charge the Tenant the
premiums incurred therefor, together with a twenty-five percent (25%)
handling charge, payable upon demand. Tenant shall have the right to
provide such insurance coverage pursuant to blanket policies obtained by
the Tenant, provided such blanket policies expressly afford coverage to
the Premises, Landlord, Landlord's mortgagee and Tenant as required by
this Lease.
(b) Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration or termination of the Term,
Tenant shall procure, pay for and maintain in effect policies of
casualty insurance covering (1) all Leasehold Improvements (including
any alterations, additions or improvements as may be made by Tenant
pursuant to the provisions of Section 12 above), and (2) trade fixtures,
merchandise and other personal property from time to time in, or about
the Premises, in an amount not less than one hundred percent (100%) of
their actual replacement cost from time to time, providing protection
against any peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism
and malicious mischief. The proceeds of such insurance shall be used for
the repair or replacement of the property so insured. Upon termination
of this lease following a casualty as set forth herein, the proceeds
under (i) shall be paid to Landlord, and the proceeds under (ii) above
shall be paid to Tenant.
(c) Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration or termination of the Term,
Tenant shall procure, pay for and maintain in effect workers'
compensation insurance as required by law and comprehensive public
liability and property damage insurance with respect to the construction
of improvements on the Premises, the use, operation or condition of the
Premises and the operations of Tenant in, on or about the Premises,
providing personal injury and broad form property damage for not less
than One Million and No/100 Dollars ($1,000,000.00) combined single
limit for bodily injury, death and property damage liability.
(d) Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Section 21.
22. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of
the other, on account of loss by, or damage to, the waiving party of its
property or the property of others under its control, to the extent that
such loss or damage is insured against under any fire and extended
coverage insurance policy which either may have in force at the time of
the loss or damage. Tenant shall, upon obtaining the policies of
insurance required under this Lease, give notice to its insurance
carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
23. SUBORDINATION AND ATTORNMENT.
(a) Subordination of Lease. This Lease, and all rights of Tenant
hereunder are and shall be subject and subordinate to all ground leases
of the Property now or hereafter existing and to all mortgages, or trust
deeds in the nature of a mortgage (both collectively referred to
hereafter as "mortgages"), which may now or hereafter affect or
encumber the Property and/or the Building and/or any of such ground
leases (whether or not such mortgages shall also cover other lands
and/or buildings and/or leases). This subordination shall likewise apply
to each and every advance made, or hereafter to be made, under such
mortgages; to all renewals, modifications, replacements and extensions
of such leases and such mortgages; and to spreaders and consolidations
of such mortgages. This Section 23 shall be self-operative and no
further instrument of subordination shall be required. However, in
confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the lessor under
any such ground lease or the holder of any such mortgage (or their
respective successors-in-interest), may request in order to evidence
such subordination. If Tenant fails to execute, acknowledge or deliver
any such instrument within ten (10) days after request therefor, Tenant
hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact, which appointment is agreed to be coupled with an
interest, to execute and deliver any such instruments for and on behalf
of Tenant. Any lease to which this Lease is subject and subordinate is
hereinafter referred to as a "Superior Lease" and the lessor of a
Superior Lease is hereinafter referred to as a "Superior Lessor"; and
any mortgage to which this Lease is subject and subordinate is
hereinafter referred to as a "Superior Mortgage" and the holder of a
Superior Mortgage is hereinafter referred to as a "Superior Mortgagee."
Notwithstanding the foregoing, at Landlord's election, this Lease may be
made senior to the lien of any mortgage, if the mortgagee thereunder so
requests.
13
16
(b) Notice in the Event of Default, Upon any default of Landlord,
including, but not limited to, any act or omission which would give
Tenant any right, immediately or after the lapse of a period of time, to
cancel or terminate this Lease, to claim a partial or total eviction, or
to take any other action hereunder, Tenant shall send, by registered or
certified mail, return receipt requested, written notice of such default
to Landlord and to each Superior Mortgagee and Superior Lessor whose
name and address shall previously have been furnished to Tenant. Tenant
shall not exercise any such right until a thirty (30) day period for
remedying such default shall have elapsed following the giving of such
notice; provided, however, that if such default cannot reasonably be
cured within such thirty (30) day period, then Landlord shall have such
additional time to cure such default as is reasonably necessary under
the circumstances. If Landlord fails to cure such default, within the
time provided in the immediately preceding sentence, then Tenant shall
not exercise any such right until Tenant shall have given, after the
expiration of such time, an additional notice of default in the manner
described in the immediately preceding sentence, to each such Superior
Mortgagee and Superior Lessor, and each such Superior Mortgagee and
Superior Lessor shall have had an additional thirty (30) days after such
additional notice to cure such default; provided that if such default
cannot reasonably be cured within such thirty (30) day period, then such
Superior Mortgagee or Superior Lessor shall have such additional time to
cure such default as is reasonably necessary under the circumstances.
(c) Successor Landlord. If any Superior Lessor or Superior Mortgagee
shall succeed to the rights of Landlord hereunder, whether through
possession or foreclosure action or delivery of a new lease or deed, or
otherwise, then, at the request of such party (hereinafter referred to
as "Successor Landlord"), Tenant shall attorn to, and recognize, each
Successor Landlord as Tenant's landlord under this Lease and shall
promptly execute and deliver any instrument such Successor Landlord may
reasonably request to further evidence such attornment.
24. ESTOPPEL CERTIFICATES.
Each party agrees, at any time and from time to time, as requested by
the other party, to execute and deliver to the other (and to any
existing or prospective mortgage lender, ground lessor, or purchaser
designated by Landlord), within ten (10) days after the written request
therefor, a statement certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the
modifications); certifying the dates to which the Base Rent and
Additional Rent have been paid; stating whether or not the other party
is in default in performance of any of its obligations under this Lease;
and, if so, specifying each such default; and stating whether or not any
event has occurred which, with the giving of notice or passage of time,
or both, would constitute such a default and, if so, specifying each
such event. Any such statement delivered pursuant hereto shall be deemed
a representation and warranty to be relied upon by the party requesting
the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in
any such statements such other information concerning this Lease as
Landlord may reasonably request including, but not limited to, the
amount of Base Rent and Additional Rent under this Lease, and whether
Landlord has completed all improvements to the Premises required under
this Lease. If Tenant fails to execute, acknowledge or deliver any such
statement within ten (10) days after request therefor, Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact (which appointment is agreed to be coupled with an
interest), to execute and deliver any such statements for and on behalf
of Tenant.
25. TRANSFER OF LANDLORD'S 1NTEREST.
In the event of any sale or transfer by Landlord of the Premises,
Building or Project, and assignment of this Lease by Landlord, Landlord
shall be and is hereby entirely freed and relieved of any and all
liability and obligations contained in or derived from this Lease
arising out of any act, occurrence or omission relating to the Premises,
Building, Project or this Lease occurring after the consummation of such
sale or transfer, providing the purchaser shall expressly assume all of
the covenants and obligations of Landlord under this Lease. If any
Security Deposit or prepaid Rent has been paid by Tenant, Landlord may
transfer the Security Deposit or prepaid Rent to Landlord's successor
and upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
26. DEFAULT.
(a) Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
(1) If Tenant abandons or vacates the Premises; or
(2) If Tenant fails to pay any Rent or any other charges required
to be paid by Tenant under this Lease and such failure
continues for five (5) days after such payment is due and
payable; or
(3) If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease and
such failure continues for thirty (30) days after written
notice thereof from Landlord to Tenant; or
14
17
(4)If a writ of attachment or execution is levied on this Lease or on
any of Tenant's Property;
or
(5)If Tenant makes a general assignment for the benefit of creditors; or
(6)If Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed within
sixty (60) days thereafter, or if under the provisions of any law
providing for reorganization or winding up of corporations, any court
of competent jurisdiction assumes jurisdiction, custody or control of
Tenant or any substantial part of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of sixty (60) days; or
(7)If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the
Premises or Tenant's Property (or has the authority to do so) for the
purpose of enforcing a lien against the Premises or Tenant's
Property; or
(B)If Tenant is a partnership or consists of more than one (1) person or
entity, if any general partner of the partnership or other person or
entity is involved in any of the acts or events described in Sections
26(a)(4) through (7) above.
(b) Remedies. In the event of Tenant's default hereunder, then in addition to
any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
(1)Terminate this Lease and Tenant's right to possession of the Premises
and re-enter the Premises and take possession thereof, and Tenant
shall have no further claim to the Premises or under this Lease; or
(2)Continue this Lease in effect, re-enter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other charges
which have or thereafter become due and payable; or
(3)Re-enter the Premises under the provisions of Section 26(b)(2) above,
and thereafter elect to terminate this Lease and Tenant's right to
possession of the Premises.
(4)In addition to (1) through (3) above, Landlord shall also have the
right to collect from Tenant any and all Base Rent that, but for the
existence of the Abatement Period, Tenant would have been required to
pay to Landlord prior to the occurrence of Tenant's default
hereunder.
If Landlord re-enters the Premises under the provisions of Sections 26(b)(2) and
26(b)(3) above, Landlord shall not be deemed to have terminated this Lease or
the obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any re-entry or retaking of possession by landlord,
Landlord shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant. If Landlord elects to relet
the Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due, Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Tenant shall also pay to Landlord, as soon as
determined, any cost and expenses incurred by Landlord in connection with such
reletting or in making alterations and repairs to the Premises, which are not
covered by the rent received from the reletting.
(c) Damages. Should Landlord elect to terminate this Lease under the provisions
of Sections 26(b)(1) or 26(b)(3) above, Landlord may recover as damages from
Tenant the following:
(1)Past Rent. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
(2)Rent Prior to Award. The worth at the time of the award by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided: plus
15
18
(3)Rent After Award. The worth at the time of the award of the
amount by which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of the rental loss
that Tenant proves could be reasonably avoided; plus
(4)Proximately Caused Damages. Any other amount necessary to
compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease
or which, in the ordinary course of things, would be likely to
result therefrom, including, but not limited to, any costs or
expenses (including attorneys' fees), incurred by Landlord in
(i) retaking possession of the Premises, (ii) maintaining the
Premises after Tenant's default, (iii) preparing the Premises
for reletting to a new tenant, including any repairs or
alterations, and (iv) reletting the Premises, including
broker's commissions.
"The worth at the time of the award" as used in Sections 26(c)(1) and
26(c)(2) above, is to be computed by allowing interest at the rate of
Prime plus two percent (2.0%) per annum. "The worth at the time of the
award" as used in Section 26(c)(3) above, is to be computed by
discounting the amount at the discount rate of the Federal Reserve Bank
situated nearest to the Premises at the time of the award plus one
percent (1 %).
(d) Not a Waiver. The waiver by Landlord of any breach of any term,
covenant or condition of this Lease shall not be deemed a waiver of such
term, covenant or condition or of any other breach of the same or any
other term, covenant or condition. Acceptance of Rent by Landlord
subsequent to any breach hereof shall not be deemed a waiver of any
preceding breach other than the failure to pay the particular Rent so
accepted, regardless of Landlord's knowledge of any breach at the time
of such acceptance of Rent. Landlord shall not be deemed to have waived
any term, covenant or condition unless Landlord gives Tenant written
notice of such waiver. No delay or omission in the exercise of any right
or remedy of Landlord upon any default by Tenant shall impair such right
or remedy or be construed as a waiver of such default.
(e) Curing Tenant's Defaults. If Tenant defaults in the performance of
any of its obligations under this Lease, Landlord may (but shall not be
obligated to), without waiving such default, perform the same for the
account and at the expense of Tenant. Tenant shall pay Landlord all
costs of such performance promptly upon receipt of a ▇▇▇▇ therefor,
together with interest at the rate set forth in Section 6 above.
(f) Landlord's Default. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease, subject to the notice
and cure provisions of Section 23(b) above, then Landlord shall be
liable to Tenant for any actual damages sustained by Tenant as a direct
result of Landlord's breach; provided, however, it is expressly
understood and agreed that if Tenant obtains a money judgment against
Landlord resulting from any default or other claim arising under this
Lease, that judgment shall be satisfied only out of the rents, issues,
profits, and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no
other real, personal or mixed property of Landlord (or of any of the
partners which comprise Landlord, if any) wherever situated, shall be
subject to levy to satisfy such judgment, If, after notice by Tenant of
default, as provided in Section 23(b) above, Landlord and each Superior
Mortgagee and Superior lessor fails to cure the default in the time
provided for in Section 23(b) above, then Tenant shall have the right to
cure that default at Landlord's expense. Tenant shall not have the right
to terminate this Lease or to withhold, reduce or offset any amount
against any payments of Rent or any other charges due and payable under
this Lease except as otherwise specifically provided herein.
27. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real
estate broker or agent in connection with this Lease or its negotiation
except for Tenant's Broker, as identified in Section 2(b) above. Tenant
hereby indemnifies, defends and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys'
fee of counsel selected by Landlord) for any compensation, commission or
fees claimed by any other real estate broker or agent in connection with
this Lease or its negotiation by reason of any act of Tenant.
28. NOTICES.
All notices, approvals and demands permitted or required to be given
under this Lease shall be in writing and deemed duly served or given if
personally delivered or sent by certified or registered U.S. mail,
return receipt requested, postage prepaid, and addressed as follows: (a)
if to Landlord, to Landlord's Mailing Address and to the Building
Manager, and (b) if to Tenant, to Tenant's Mailing Address; provided,
however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and Tenant may
from time to time by notice to the other designate another place for
receipt of future notices. If mailed, notices shall be deemed given two
(21 business days after mailing.
29. GOVERNMENT ENERGY OR UTILITY CONTROLS.
16
19
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or consumption
of energy or other utilities during the Term, both Landlord and Tenant
shall be bound thereby. In the event of a difference in interpretation
by Landlord and Tenant of any such controls, the interpretation of
Landlord shall prevail, and Landlord shall have the right to enforce
compliance therewith, including the right of entry into the Premises to
effect compliance.
30. INTENTIONALLY OMITTED
31. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under
this Lease, shall peaceably and quietly enjoy the Premises, subject to
the terms of this Lease and to any mortgage, lease, or other agreement
to which this Lease may be subordinate.
32. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will, in any way, conflict with any law,
statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes, ordinances
and governmental rules, regulations or requirements now in force or
which may hereafter be in force, and with the requirements of any board
of fire insurance underwriters or other similar bodies now or hereafter
constituted, relating to, or affecting the condition, use or occupancy
of the Premises, excluding structural changes not related to or affected
by Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord is a party thereto or not, that Tenant has violated any
law, ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between Landlord and Tenant.
33. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor disputes, inability to obtain
labor, materials, equipment or reasonable substitutes therefor, acts of
God, governmental restrictions or regulations or controls, judicial
orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or other causes beyond the reasonable control of the
party obligated to perform hereunder, shall excuse performance of the
work by that party for a period equal to the duration of that
prevention, delay or stoppage. Nothing in this Section 33 shall excuse
or delay Tenant's obligation to pay Rent or other charges under this
Lease.
34. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Premises,
Building or Project, including without limitation, the inside or outside
of windows or doors, without the written consent of Landlord. Landlord
shall have the right to remove any signs or other matter, installed
without Landlord's permission, without being liable to Tenant by reason
of such removal, and to charge the cost of removal to Tenant as
Additional Rent hereunder, payable within ten (10) days of written
demand by Landlord.
35. RULES AND REGULATIONS.
It is the intention of Landlord that the Building shall be operated at
all times as a first-class office building, and Tenant covenants that it
will not engage in, or permit, any activities which are not consistent
with such standard. In furtherance of this purpose, but not in
limitation thereof, Tenant agrees to abide by the following rules and
regulations, and further agrees that Landlord may make such reasonable
changes or additions to such rules and regulations as it may deem
necessary or advisable so long as such additions or changes do not
discriminate against Tenant, are applied uniformly against all other
tenants of the Building, and a copy of any such changes or additions is
delivered to Tenant:
(a) Any sign, lettering, picture, notice or advertisement installed
within the Premises which is visible from the public corridors within
the Building shall be installed in such manner, and be of such character
and style, as Landlord shall approve, in writing, in its reasonable
discretion. No sign, lettering, picture, notice or advertisement shall
be placed on any outside window or door or in a position to be visible
from outside the Building.
(b) Sidewalks, entrances, passages, courts, corridors, halls, elevators
and stairways in and about the Building shall not be obstructed nor
shall objects be placed against glass partitions, doors or windows which
would be unsightly from the Building's corridors or from the exterior of
the Building.
17
20
(c) Except as otherwise provided herein, no animals, pets, bicycles or any other
vehicles shall be brought, or permitted to be, in the Building or the Premises.
(d) Room to room canvasses to solicit business from other tenants of the
Building are not permitted.
(e) Tenant shall not waste electricity, water or air conditioning. All controls
shall be adjusted only by authorized Building personnel.
(f) Tenant shall not utilize the Premises in any manner which would overload the
standard heating, ventilating or air conditioning systems of the Building.
(g) Tenant shall not Permit the use of any apparatus for sound production or
transmission in such manner that the sound so transmitted or produced shall be
audible or vibrations shall be detectable beyond the Premises,
(h) Tenant shall not utilize any electronic, radiowave, microwave or other
transmitting, receiving or amplification device which would disturb or interfere
with any other tenant of the Building or the operation of the Building
generally.
(i) Tenant shall not utilize any equipment or apparatus in such manner as to
create any magnetic fields or waves which adversely affect or interfere with the
operation of any systems or equipment in the Building.
(j) Tenant shall keep all electrical and mechanical apparatus owned by Tenant
free of vibration, noise and air waves which may be transmitted beyond the
Premises.
(k) All corridor doors shall remain closed at all times.
(l) No locks or similar devices shall be attached to any door except by Landlord
and Landlord shall have the right to retain a key to all such locks.
(m) Except in the case of Landlord's or Landlord's employees', agents', or
contractors' intentional or, to the extent permitted by law, negligent acts or
omissions, Tenant assumes full responsibility of protecting the Premises from
theft, robbery and pilferage. Except during Tenant's normal business hours,
Tenant shall keep all doors to the Premises locked and other means of entry to
the Premises closed and secured.
(n) Only machinery or mechanical devices of a nature directly related to
Tenant's ordinary use of the Premises shall be installed, placed or used in the
Premises and the installation and use of all such machinery and mechanical
devices is subject to the other rules contained in this Lease.
(o) Except with the prior written approval of Landlord, which approval shall not
be unreasonably withheld or delayed, all cleaning, repairing, janitorial,
decorating, painting or other services and work in and about the Premises shall
be performed only by authorized Building personnel.
(p) Except as otherwise specifically provided herein, safes, furniture,
equipment, machines and other large or bulky articles shall be brought to the
Building, and into and out of the Premises, at such times, and in such manner,
as Landlord shall direct (including the designation of elevator), and at
Tenant's sole risk and costs. Prior to Tenant's removal of such articles form
the Building, Tenant shall obtain written authorization of the office of the
Building and shall present such authorization to a designated employee of
Landlord.
(q) Tenant shall not in any manner deface or damage the Building.
(r) Inflammables such as gasoline, kerosene, naphtha and benzene, or explosives
or any other articles of an intrinsically dangerous nature are not permitted in
the Building or the Premises without landlord's prior written consent.
(s) Landlord shall advise the Tenant as to the maximum amount of electrical
current which can safely be used in the Premises, and shall provide Tenant with
a copy of the final electrical drawings for the Premises, taking into account
the capacity of the electrical wiring of Building and the Premises and the needs
of other tenants, and Tenant shall not use more than such safe capacity.
Landlord's consent to the installation of electrical equipment shall, unless
Tenant has actual knowledge to the contrary, be deemed to be a determination
that said equipment is within such safe capacity.
(t) To the extent permitted by law, Tenant shall not permit picketing or other
union activity involving its employees in the Building, except in those
locations and subject to time and other constraints as to which Landlord may
give its prior written consent, which consent may be withheld in Landlord's sole
discretion.
18
21
(u) Tenant shall not enter into or upon the roof or basement of the Building or
any storage, heating, ventilation, air-conditioning, mechanical or elevator
machinery housing areas.
(v) Tenant shall not distribute literature, flyers, handouts or pamphlets of any
type in any of the common areas of the Building.
(w) Tenant shall not ▇▇▇▇, otherwise prepare or sell any food or beverages in or
from the Premises, other than as is reasonably necessary in order to accommodate
Tenant's employees.
(x) Tenant shall not permit objectionable odors or vapors to emanate from the
Premises.
(y) Except as otherwise specifically provided with respect to the Safe, Tenant
shall not place a load upon any floor of the Premises exceeding the floor load
capacity for which such floor was designed or allowed by law to carry.
(z) No floor coverings other than those provided for in the plans and
specifications for the original space improvements, shall be -affixed to any
floor in the Premises by means of glue or other adhesive without Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed.
(aa) The directories of the Building shall be used exclusively for the display
of the flame and suite number of the tenants only and will be provided at the
expense of the Landlord. Additional names requested by Tenant to be displayed in
the directories must be approved by the Landlord and, if approved, will be
provided at the expense of the Landlord. Changes in the directory listings
requested by the Tenant after the Commencement Date will be submitted to the
Landlord for approval, which approval shall not be unreasonably withheld or
delayed, and, if approved, will be provided at the expense of the Tenant.
(bb) Landlord and Tenant shall comply with all applicable laws, ordinances,
governmental orders or regulations and applicable orders or directions from any
public office or body having jurisdiction, with respect to the Premises, the
Building, the Property and their respective use or occupancy thereof. Neither
Landlord nor Tenant shall make or permit any use of the Premises, the Building
or the Property, respectively which is directly or indirectly forbidden by law,
ordinance, governmental regulation or order, or direction of applicable public
authority, or which may be dangerous to person or property.
(cc) Tenant shall not take or permit to be taken in or out of other entrances of
the Building, or take or permit on other elevators, any item normally taken in
or out through service doors or in or on freight elevators; and Tenant shall
not, whether temporarily, accidentally or otherwise, allow anything to remain in
place or store anything in, or obstruct in any way, any sidewalk, court,
passageway, entrance or shipping area. Tenant shall lend its full cooperation to
keep such areas free from all obstruction and in a clean and sightly condition,
and move all supplies, furniture and equipment as soon as received directly to
the Premises, and shall move all such items and waste (other than waste
customarily removed by Building employees) that are at any time being taken from
the Premises directly to the areas designated for disposal, All courts,
passageways, entrances, exits, elevators, escalators, stairways, corridors,
halls and roofs are not for the use of the general public and Landlord shall, in
all cases, retain the right to control and prevent access thereto by all persons
whose presence in the judgment of Landlord shall be prejudicial to the safety,
character, reputation and interests of the Building and its tenants; provided,
however, that nothing herein contained shall be construed to prevent such access
to persons with whom Tenant deals within the normal course of Tenant's business
unless such persons are engaged in illegal activities. Neither Tenant nor any
employee or invitee of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees.
(dd) Service requirements of Tenant will be attended to only upon application at
the office of the Building. Employees of Landlord shall not perform any work or
do anything outside of their duties unless under special instructions from
Landlord.
(ee) The toilet rooms, urinals, wash bowls and other apparatus located in the
Building shall not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by Tenant if Tenant, or its employees or
invitees, shall have caused it.
(ff) Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
(gg) Except for the exclusive use of Tenant, its employees and invitees, no
vending machines of any description shall be installed, maintained or operated
without the written consent of Landlord. Landlord hereby consents to Tenant's
use of a commercial coffee service vendor of its choice.
19
22
36. MISCELLANEOUS.
(a) Accord and Satisfaction: Allocation of Payments. No payment by
Tenant or receipt by Landlord of a lesser amount than the Rent provided
for in this Lease shall be deemed to be other than on account of the
earliest due Rent, nor shall any endorsement or statement on any check
or letter accompanying any check or payment as Rent 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 the Rent or
pursue any other remedy provided for in this Lease. In connection with
the foregoing, Landlord shall have the absolute right, in its sole
discretion, to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
(b) Addenda. If any provision contained in any addendum to this Lease is
inconsistent with any other provision herein, the provision contained in
the addendum shall control, unless otherwise provided in the addendum.
(c) Attorneys' Fees. If any action or proceeding is brought by either
party against the other pertaining to, or arising out of, this Lease,
the finally prevailing party shall be entitled to recover all costs and
expenses, including, but not limited to, reasonable attorneys' fees,
incurred on account of such action or proceeding. -
(d) Captions; Section Numbers. The captions appearing within the body of
this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or
meaning of this Lease. All references to Section numbers refer to
Sections in this Lease.
(e) Changes Requested by Lender. Neither Landlord nor Tenant shall
unreasonably withhold or delay its respective consent to changes or
amendments to this Lease requested by the lender on Landlord's interest,
so long as such changes do not alter the basic business terms of this
Lease or otherwise materially diminish any rights, or materially
increase any obligations, of the party from whom consent to such charge
or amendment is requested.
(f) Choice of Law. This Lease shall be construed and enforced in
accordance with the laws of the State.
(g) Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to any
claim against Landlord for money damages by reason of any refusal,
withholding or delaying by Landlord of any consent, approval or
statement of satisfaction, and in such event, Tenant's only remedies
therefor shall be an action for specific performance, injunction on
declaratory judgment to enforce any right to such consent, approval or
statement of satisfaction.
(h) Corporate Authority. If Tenant is a corporation, each individual
signing this Lease on behalf of Tenant represents and warrants that he
is duly authorized to execute and deliver this Lease on behalf of the
corporation, and that this Lease is binding on Tenant in accordance with
its terms. Tenant shall, at Landlord's request, deliver a certified copy
of a resolution of its board of directors authorizing such execution.
(i) Counterparts. This Lease may be executed in multiple counterparts,
all of which shall constitute one and the same Lease.
(j) Execution of Lease. The submission of this Lease to Tenant shall be
for examination purposes only, and does not and shall not constitute a
reservation, of or option for, Tenant to lease, or otherwise create any
interest of Tenant in the Premises or any other premises within the
Building or Project. Notwithstanding the foregoing, execution of this
Lease by Tenant and its return to Landlord shall be binding upon Tenant
but shall not be binding on Landlord notwithstanding any time interval,
until Landlord has in fact signed and delivered this Lease to Tenant.
(k) Furnishing of Financial Statements; Tenant's Representations. In
order to induce Landlord to enter into this Lease Tenant agrees that it
shall promptly- furnish Landlord, from time to time, upon Landlord's
request, with financial statements reflecting Tenant's current financial
condition. Tenant represents and warrants that all financial statements,
records and information furnished by Tenant to Landlord in connection
with this Lease are true, correct and complete in all material respects.
(l) Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
(m) Prior Agreements; Amendments. This Lease contains all of the
agreements of the parties with respect to any matter covered or
mentioned in this Lease, and no prior agreement or understanding
pertaining to any such matter shall be effective for any purpose. No
provisions of this Lease may be amended or added to except by an
agreement in writing signed by the parties or their respective
successors in interest.
(n) Recording. Tenant shall not record this Lease without the prior
written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for
recording purposes.
20
23
(o) Severability. A final determination by a court of
competent jurisdiction that any provision of this Lease is
invalid shall not affect the validity of any other
provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish
its intended effect.
(p) Successors and Assigns. This Lease shall apply to and
bind the heirs, personal representatives, and permitted
successors and assigns of the parties.
(q) Time of the Essence. Time is of the essence of this
Lease.
(r) Acceptance of Surrender: Consent. No act or conduct of
Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration
of the Term. Only a written notice from Landlord to Tenant
shall constitute acceptance of the surrender of the
Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of, any act by Tenant
requiring Landlord's consent or approval shall not be
deemed to waiver or render unnecessary Landlord's consent
to or approval of any subsequent act by Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Lease as of the day and year first above written.
LANDLORD:
O.P., L.L.C., an Illinois limited
liability company
By: SPECTRUM REAL ESTATE SERVICES, INC.
By:___
Its:
TENANT:
By; Ampersand Medical Corporation, Inc.
Its: ________________________
21
24
EXHIBIT "A"
FLOOR PLAN OF PREMISES
22
25
EXHIBIT "B"
LEGAL DESCRIPTION
Lots 1 5, 1 6, 17, and 1 8 in Block 10 in ▇▇▇▇▇▇▇ Law and Company's Addition to
Chicago, in the East Half of the North West Quarter of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇ of the Third Principal Meridian, in ▇▇▇▇ county, Illinois.
23
26
EXHIBIT "E"
Base Rent and Other Provisions
1. Base Rent schedule shall be as follows:
Monthly
-------
June 15, 2000 -- Aug. 31, 2000 $6,153.87
Sept. 1, 2000 -- Aug. 30, 2001 $6,400.03
Sept. 1, 2001 -- Aug. 30, 2002 $6,656.03
Sept. 1, 2002 -- Aug. 30, 2003 $6,922.27
Sept. 1, 2003 -- Aug. 30, 2004 $7,199.16
Sept. 1, 2004 -- Aug. 30, 2005 $7,487.00
