Exhibit 10.9
LEASE AGREEMENT
BETWEEN
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership
(Landlord)
AND
INTERACTIVE COUPON MARKETING GROUP, INC.,
a Michigan corporation
(Tenant)
X'Xxxx Plaza II
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx
Dated: February 24, 1997
------------
Section Page
------- ----
21 SECURITY DEPOSIT .................................................... 33
22 BROKERAGE ........................................................... 34
23 OBSERVANCE OF RULES AND REGULATIONS ................................. 34
24 NOTICES ............................................................. 34
25 MISCELLANEOUS ....................................................... 35
26 SUBSTITUTION SPACE .................................................. 39
27 OTHER DEFINITIONS ................................................... 41
28 CANCELLATION ........................................................ 42
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EXHIBITS AND RIDERS
-------------------
The following Exhibits are attached hereto and by this reference made a
part of this Lease:
EXHIBIT A - FLOOR PLAN OF THE PREMISES
EXHIBIT B - THE LAND
EXHIBIT C - BASE RENT SCHEDULE
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - INTENTIONALLY OMITTED
EXHIBIT F - FORM OF COMMENCEMENT NOTICE
iii
INDEX OF DEFINED TERMS
----------------------
Definitions of certain terms used in this Lease are found in the following
sections:
TERM LOCATION OF DEFINITION
---- ----------------------
Additional Rent Section 1.1N
Bankruptcy Code Section 8.6
Base Rent Section 1.1M
Basic Lease Information and Certain Definitions Article 1
Broker Section 1.1W
Building Section 1.1B
Building Standard Article 27
Business Days Article 27
Central Article 27
Commencement Date Section 1.1F
Common Areas Article 27
days Article 27
Events of Default Section 13.1
Expiration Date Section 1.1G
herein, hereof, hereby, hereunder and words of similar import Article 27
include and including Article 27
Interest Rate Section 4.2
Land Section 1.1C
Landlord Preamble
Landlord's Address for Notice Section 1.1T
Landlord's Address for Payment Section 1.1U
Landlord's Operating Costs Estimate Section 5.1A
Net Rentable Area of the Building Section 1.1J
Net Rentable Area of the Premises Section 1.11
Parking Facility Section 1.1D
Parking Permits Section 1.1P
Project Section 1.1E
Premises Section 1.1A
Reference to Landlord as having "no liability
to Tenant" or being "without liability to
Tenant" or words of like import Article 27
Rent Section 1.1L
repair Article 27
Security Deposit Section 1.1R
Successor Landlord Section 18.2
Taxes Section 5.2
iv
Tenant Preamble & Article 27
Tenant Delay Exhibit C
Tenant's Address for Notice Section 1.1V
Tenant's Permitted Uses Section 1.1Q
Tenant's Property Section 14.1A(a)
Tenant's Share Section 1.1K
Term Section 1.1H
termination of this Lease and words of like import Article 27
terms of this Lease Article 27
this Lease Preamble
year Article 27
v
LEASE AGREEMENT
THIS LEASE AGREEMENT ("this Lease") is made and entered into by and between
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware limited partnership
("Landlord") and INTERACTIVE COUPON MARKETING GROUP, INC.. d/b/a Interactive
Coupon Network, a Michigan corporation ("Tenant"). upon all the terms set forth
in this Lease and in all Exhibits hereto, to each and all of which terms
Landlord and Tenant hereby mutually agree, and in consideration of One Dollar
($l.0O) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and of the rents, agreements and benefits flowing
between the parties hereto, as follows:
ARTICLE 1
---------
BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS
-----------------------------------------------
Section 1.1 Each reference in this Lease to information and definitions
contained in the Basic Lease Information and Certain Definitions and each use of
the terms capitalized and defined in this Section 1.1 shall be deemed to refer
to, and shall have the respective meaning set forth in, this Section 1.1.
A. Premises: The portion of the 1st floor of the Building,
presently known as Suite No. 100. as said space is
identified by diagonal lines or shaded area on the
floor plan attached hereto as Exhibit A.
B. Building: The building on that portion of the Land generally
located at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
and being known as X'Xxxx Plaza II.
C. Land: Those certain parcels of land described under the
caption "Land" in Exhibit B hereof.
D. Parking Facility: The multi-level parking garage which is located
adjacent to the Building and the surface parking
adjacent to the Building.
E. Project: The Land and all improvements thereon,
including the Building, the Parking
Facility, and all Common Areas.
F. Commencement Date: That certain date on which the Term
shall commence, as determined pursuant
to the provisions of Article 3 hereof.
G. Expiration Date: The day before the 5th anniversary of
the Commencement Date.
H. Term: Five (5) years, beginning on the
Commencement Date and ending at 11:59
p.m. on the Expiration Date, unless this
Lease is sooner terminated as provided
herein.
I. Net Rentable Area of the Premises: Approximately 3,252 square feet.
J. Net Rentable Area of the Building: Approximately 232,943 square feet.
K. Tenant's Share: 1.396%, representing a fraction, the
numerator of which is the Net Rentable
Area of the Premises and the denominator
of which is the Net Rentable Area of the
Building, subject to future adjustment
pursuant to the provisions of Section
5.4 hereof.
L. Rent: The Base Rent and the Additional Rent.
M. Base Rent: The Base Rent shall be the amounts set
forth on the Base Rent Schedule attached
hereto as Exhibit C, subject to such
increases as may be provided herein.
Base Rent includes Base Year Operating
Costs.
N. Additional Rent: The Additional Rent shall be all other
sums due and payable by Tenant under the
Lease, including, but not limited to,
Tenant's Share of Operating Costs and
Tenant's Share of Electrical Costs.
O. Base Year Operating Costs: The actual grossed up Operating Costs
for the first full or partial calendar
year of the Term.
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P. Parking Permits: Tenant shall be entitled to, at no
charge during the initial Term, 10
Parking Permits for unassigned parking
spaces to be used in common with others
in the Parking Facility
Q. Tenant's Permitted Uses: Tenant may use the Premises for
executive and administrative offices for
the conduct of Tenant's business and for
no other purpose.
R. Security Deposit: $11,999.88, which may be reduced to
$5,999.94 after the third (3rd)
anniversary of the Commencement Date as
more fully provided for in Article 21
below.
S. Brokers: Xxxxxxxx Properties Limited, Inc. and
Xxxxxx X. Xxxxxxx, Inc.
T. Landlords Address for Notice: Xxxxxxxx Properties Acquisition
Partners, L.P.
0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. August
With a copy to:
Xxxxxxxx Properties Acquisition
Partners, L.P.
c/o Prentiss Properties Management, L.P.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
U. Landlord's Address for Payment: Xxxxxxxx Properties Acquisition
Partners, L. P.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
V. Tenant's Address for Notice: Interactive Coupon Marketing Group, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
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with a copy to:
Xxxxxxx Xxxxxx, Esq.
000 Xxxxx Xxxxxx Centre
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ARTICLE 2
---------
PREMISES AND QUIET ENJOYMENT
----------------------------
Section 2.1 Landlord hereby leases the Premises to Tenant, and Tenant
hereby rents and hires the Premises from Landlord for the Term. During the Term,
Tenant shall have the right to use, in common with others and in accordance with
the Rules and Regulations (as set forth in Exhibit D attached hereto), the
Common Areas. Tenant shall be subject to the terms, conditions and provisions of
any and all ground leases, deeds to secure debt, mortgages, restrictive
covenants, easements and other encumbrances now or hereafter affecting the
Premises or the Project, including, without limitation, all Declarations of
Covenants, Conditions and Restrictions (collectively, the "Declarations") which
may now, or in the future may, be filed of record against all or any portion of
the Project in the Recorder's Office of Xxxx County, Illinois, including any
amendments to any of the foregoing documents.
Section 2.2 Provided that Tenant fully and timely performs all the terms of
this Lease on Tenant's part to be performed, including payment by Tenant of all
Rent, Tenant shall have, hold and enjoy the Premises during the Term without
hindrance or disturbance from or by Landlord or any parties or persons claiming
by, through or under Landlord.
ARTICLE 3
---------
TERM; COMMENCEMENT DATE;
------------------------
DELIVERY AND ACCEPTANCE OF PREMISES
-----------------------------------
Section 3.1 The Commencement Date shall be the earlier of (a) the date the
Premises are deemed available for occupancy pursuant to Section 3.2 hereof or
(b) the date Tenant, or anyone claiming by, through or under Tenant, occupies
any portion of the Premises for the purpose of the conduct of Tenant's (or such
other person's) business therein.
Section 3.2 The Premises shall be deemed available for occupancy as soon as
Landlord has delivered possession of the Premises to Tenant. After delivery of
possession of the Premises to Tenant. Tenant intends on repainting the office
areas of the Premises and cleaning the existing carpeting in the office areas of
the Premises. Landlord shall reimburse Tenant up to $6,504 for
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the cost of such repainting and carpet cleaning incurred by Tenant within thirty
(30) days after delivery by Tenant to Landlord of paid invoices for such work.
In no event shall Tenant be entitled to any credit for any unused portion of
said amount. Landlord shall endeavor to give Tenant prior notice of when the
Premises will be available for occupancy.
Section 3.3 The Net Rentable Area of the Premises and the Building are as
stated in Sections 1.1I and J, respectively. By written instrument
substantially in the form of Exhibit F attached hereto, Landlord shall notify
Tenant of the Commencement Date, the Net Rentable Area of the Premises and all
other matters stated therein. Such Commencement Notice shall be conclusive and
binding on Tenant as to all matters set forth therein, unless within ten (10)
days following delivery of such Commencement Notice. Tenant contests any of the
matters contained therein by notifying Landlord in writing of Tenant's
objections. The foregoing notwithstanding, Landlord's failure to deliver any
Commencement Notice to Tenant shall not affect Landlord's determination of the
Commencement Date.
Section 3.4 Tenant may not enter or occupy the Premises prior to the
Commencement Date without Landlord's express written consent and any entry by
Tenant shall be subject to all of the terms of this Lease; provided however,
that no such early entry shall change the Commencement Date or the Expiration
Date.
Section 3.5 Occupancy of the Premises or any portion thereof by Tenant or
anyone claiming through or under Tenant for the conduct of Tenant's, or such
other person's business therein shall be conclusive evidence that Tenant and all
parties claiming through or under Tenant (a) have accepted the Premises or such
portion as suitable for the purposes for which the Premises are leased
hereunder, (b) have accepted the Common Areas as being in a good and
satisfactory condition and (c) have waived any defects in the Premises and the
Project. Landlord shall have no liability, except for gross negligence or
willful misconduct, to Tenant or any of Tenant's agents, employees, licensees,
servants or invitees for any injury or damage to any person or property due to
the condition or design of, or any defect in, the Premises or the Project,
including any electrical, plumbing or mechanical systems and equipment of the
Premises or the Project and the condition of or any defect in the Land; and
Tenant, for itself and its agents and employees and all other parties claiming
by, through or under Tenant, hereby releases Landlord and its agents and
employees from any, and all claims relating to injury or damage to person or
property, either proximate or remote, resulting from the condition of the
Premises or the Project. In the event of any conflict between the foregoing
release and the waiver of subrogation agreement set forth in Section 14.4 below,
the terms and provisions of Section 14.4 shall control.
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ARTICLE 4
---------
RENT
----
Section 4.1 Tenant shall pay to Landlord, without notice, demand, offset
or deduction, in lawful money of the United States of America, at Landlord's
Address for Payment, or at such other place as Landlord shall designate in
writing from time to time: (a) the Base Rent in equal monthly installments, in
advance, on the first day of each calendar month during the Term, and (b) the
Additional Rent, at the respective times required hereunder. The first monthly
installment of Base Rent and the Additional Rent payable under Article 5 hereof
shall be paid in advance on the date of Tenant's execution of this Lease and
applied to the first installments of Base Rent and such Additional Rent coming
due under this Lease. Payment of Rent shall begin on the Commencement Date:
provided, however, that, if either the Commencement Date or the Expiration Date
falls on a date other than the first day of a calendar month, the Rent due for
such fractional month shall be prorated on a per diem basis between Landlord and
Tenant so as to charge Tenant only for the portion of such fractional month
falling within the Term.
Section 4.2 All past due installments of Rent shall be subject to a late
charge of five percent (5%) of the amount of the late payment and shall further
bear interest until paid at a rate per annum (the "Interest Rate") equal to the
greater of fifteen percent (15%) or four percent (4%) above the prime rate of
interest from time to time publicly announced by The First National Bank of
Chicago, a national banking association, or any successor thereof: provided,
however, that, if at the time such interest is sought to be imposed, the rate of
interest exceeds the maximum rate permitted under federal law or under the laws
of the State of Illinois, the rate of interest on such past due installments of
Rent shall be the maximum rate of interest then permitted by applicable law.
ARTICLE 5
---------
OPERATING COSTS
---------------
Section 5.1 Tenant shall pay to Landlord as Additional Rent, for each year
or fractional year during the Term, an amount ("Tenant's Operating Costs
Payment") of money equal to Tenant's Share of Operating Costs, for such year in
excess of Tenant's Share of Base Year Operating Costs, such amount to be
calculated and paid as follows:
A. Beginning on January 1st of the year following the year in which the
Commencement Date occurs, and on the first day of January of each year during
the Term thereafter, or as soon thereafter as is practicable, Landlord shall
furnish Tenant with a statement ("Landlord's Operating Costs Estimate") setting
forth Landlord's reasonable estimate of grossed up (as provided in Section 5.3
below) Operating Costs for the forthcoming year and Tenant's Operating Costs
Payment for such year. On the first day of each calendar month during such
6
year. Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant's Operating
Costs Payment as estimated on Landlord's Operating Costs Estimate. If for any
reason Landlord has not provided Tenant with Landlord's Operating Costs Estimate
on the first day of January of any year during the Term, then (a) until the
first day of the calendar month following the month in which Tenant is given
Landlord's Operating Costs Estimate. Tenant shall continue to pay to Landlord on
the first day of each calendar month the sum, if any, payable by Tenant under
this Section 5.1 for the month of December of the preceding year, and (b)
promptly after Landlords' Operating Costs Estimate is furnished to Tenant.
Landlord shall give notice to Tenant stating whether the installments of
Tenant's Operating Costs Payments previously made for such year were greater or
less than the installments of Tenant's Operating Costs Payments to be made for
such year. and (i) if there shall be a deficiency, Tenant shall pay the amount
thereof to Landlord within ten (10) days after the delivery of Landlord's
Operating Costs Estimate, or (ii) if there shall have been an overpayment,
Landlord shall apply such overpayment as a credit against the next accruing
monthly installment(s) of Tenant's Operating Costs Payment due from Tenant until
fully credited to Tenant, and (iii) on the first day of the calendar month
following the month in which Landlord's Operating Costs Estimate is given to
Tenant and on the first day of each calendar month throughout the remainder of
such year, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th)
of Tenant's Operating Costs Payment.
B. On the first day of March of each year during the Term (beginning on the
first day of March of the second year following the year in which the
Commencement Date occurs), or as soon thereafter as is practicable, Landlord
shall furnish Tenant with a statement of the actual grossed up Operating Costs
for the preceding year. Within thirty (30) days after Landlord's giving of such
statement, Tenant shall make a lump sum payment to Landlord in the amount, if
any, by which Tenant's Operating Costs Payment for such preceding year as shown
on such Landlord's statement, exceeds the aggregate of the monthly installments
of Tenant's Operating Costs Payments paid during such preceding year. If
Tenant's Operating Costs Payment, as shown on such Landlord's statement, is less
than the aggregate of the monthly installments of Tenant's Operating Costs
Payment actually paid by Tenant during such preceding year, then Landlord shall
apply such amount to the next accruing monthly installment(s) of Tenant's
Operating Costs Payment due from Tenant until fully credited to Tenant or, if
the Term has expired, Landlord shall pay such difference to Tenant within
forty-five (45) days after such final reconciliation. Notwithstanding the
foregoing, Tenant acknowledges that because of the current method of billing for
real estate taxes in Xxxx County, Illinois, Landlord will not know the actual
amount of the real estate tax component of Operating Costs until approximately
August of the following year. Accordingly, Tenant acknowledges and agrees that
Landlord may issue a separate statement for the real estate tax component of
Operating Costs later in the following year and may separately reconcile
Tenant's Operating Cost Payments for such real estate tax component of Operating
Costs, making an appropriate allocation of Tenant's Operating Costs Payment for
real estate taxes.
C. If the Term ends on a date other than the last day of December, the
actual Operating Costs for the year in which the Expiration Date occurs, shall
be prorated so that
7
Tenant shall pay that portion of Tenant's Operating Costs Payment for such year
represented by a fraction, the numerator of which shall be the number of days
during such fractional year falling within the Term, and the denominator of
which is 365 (or 366, in the case of a leap year). The provisions of this
Section 5.1 shall survive the Expiration Date or any sooner termination provided
for in this Lease.
Section 5.2 A. For purposes of this Lease, the term "Operating Costs" shall
mean any and all expenses, costs and disbursements of every kind which Landlord
pays, incurs or becomes obligated to pay in connection with the operation,
management, repair and maintenance of all or any portion of the Project. All
Operating Costs shall be determined according to generally accepted accounting
principles which shall be consistently applied. Operating Costs include, without
limitation, the following: (a) Wages, salaries, benefits and fees (including all
reasonable education, travel and professional fees) of all personnel or entities
engaged in the operation, repair, maintenance, management, or safekeeping of the
Project, including taxes, insurance and benefits relating thereto and the costs
of all supplies and materials (including work clothes and uniforms) used in the
operation, repair, maintenance and security of the Project; (b) Cost of
performance by Landlord's personnel of, or of all service agreements for,
maintenance, janitorial services, access control, alarm service, window
cleaning, elevator maintenance and landscaping for the Project. Such cost shall
include the rental of personal property used by Landlord's personnel in the
maintenance and repair of the Project: (c) Cost of utilities for the Project,
including water, sewer, gas, fuel and Common Area power, electricity, lighting
and air-conditioning, heating and ventilating, with Tenant to directly pay the
utility provider for separately metered electrical costs for the Premises; (d)
Cost of all insurance, including casualty and liability insurance, applicable to
the Project and to Landlord's equipment, fixtures and personal property used in
connection therewith, business interruption or rent insurance against such
perils as are commonly insured against by prudent landlords, such other
insurance as may be required by any lessor or mortgagee of Landlord, and such
other insurance which Landlord considers reasonably necessary in the operation
of the Project, together with all appraisal and consultant's fees in connection
with such insurance; (e) All Taxes, For purposes hereof, the term "Taxes" shall
mean, all taxes, assessments, and other governmental charges, applicable to or
assessed against the Project or any portion thereof, or applicable to or
assessed against Landlord's personal property used in connection therewith,
whether federal, state, county, or municipal and whether assessed by taxing
districts or authorities presently taxing the Project or the operation thereof
or by other taxing authorities subsequently created, or otherwise, and any other
taxes and assessments attributable to or assessed against all or any part of the
Project or its operation, including any reasonable expenses, including fees and
disbursements of attorneys, tax consultants, arbitrators, appraisers, experts
and other witnesses, incurred by Landlord in contesting any taxes or the
assessed valuation of all or any part of the Project. Tenant acknowledges that
Taxes "for" a given calendar year are those Taxes assessed against the Project
even if payable in a subsequent calendar year. If at any time during the Term
there shall be levied, assessed, or imposed on Landlord or all or any part of
the Project by any governmental entity any general or special ad valorem or
other charge or tax directly upon rents received under leases, or if any fee,
tax, assessment, or other charge is imposed which is
8
measured by or based, in whole or in part, upon such rents, or if any charge or
tax is made based directly or indirectly upon the transactions represented by
leases or the occupancy or use of the Project or any portion thereof, such
taxes, fees, assessments or other charges shall be deemed to be Taxes.
Notwithstanding the foregoing, any (A) franchise, corporation, income or net
profits tax, unless substituted for real estate taxes or imposed as additional
charges in connection with the ownership of the Project, which may be assessed
against Landlord or the Project or both, (B) transfer taxes assessed against
Landlord or the Project or both, (C) penalties or interest on any late payments
of Landlord, (D) personal property taxes of Tenant or other tenants in the
Project and (E) special assessments for any so-called "public sector financing"
for an expansion of the Project by Landlord, as opposed to any special
assessments for new or replacement services for the existing Project, shall be
excluded from Taxes. If any or all of the Taxes paid hereunder are by law
permitted to be paid in installments, notwithstanding how Landlord pays the
same, then, for purposes of calculating Operating Costs, such Taxes shall be
deemed to have been divided and paid in the maximum number of installments
permitted by law, and there shall be included in Operating Costs for each year
only such installments as are required by law to be paid within such year,
together with interest thereon and on future such installments as provided by
law; (f) Legal and accounting costs incurred by Landlord or paid by Landlord to
third parties (exclusive of legal fees with respect to disputes with individual
tenants, negotiations of tenant leases, or with respect to the ownership rather
than the operation of the Project), appraisal fees, consulting fees, all other
professional fees and disbursements and all association dues: (g) Cost of non-
capitalized repairs and general maintenance for the Project (excluding repairs
and general maintenance paid by proceeds of insurance or by Tenant, other
tenants of the Project or other third parties); (h) Amortization of the cost of
improvements or equipment which are capital in nature and which (i) are for the
purpose of reducing Operating Costs for the Project, up to the amount saved as a
result of the installation thereof, as reasonably estimated by Landlord, or (ii)
enhance the Project for the general benefit of tenants or occupants thereof, or
(iii) are required by any governmental authority (provided, however, that
notwithstanding the foregoing, Landlord shall not pass through to Tenant the
cost of correcting any violations of applicable laws. ordinances or codes which
Landlord has been given notice of prior to the date of this Lease). All such
costs, including interest thereon, shall be amortized on a straight-line basis
over the useful life of the capital investment items, as reasonably determined
by Landlord, but in no event beyond the reasonable useful life of the Project as
a first class office project; (i) the Project management office rent or rental
value; (j) a management fee (whether or not Landlord engages a manager for the
Project or manages the Project with Landlord's personnel) and all items
reimbursable to the Project manager, if any, pursuant to any management contract
for the Project. The management fee shall be three percent (3%) of the gross
receipts from the operation of the Project; and (k) any and all amounts payable
pursuant to Declaration, which may now, or in the future, affect the Project, as
amended from time to time.
B. "Operating Costs" shall not include (a) specific costs for any capital
repairs, replacements or improvements, except as provided above; (b) expenses
for which Landlord is reimbursed or indemnified (either by an insurer,
condemnor, tenant, warrantor or otherwise) to
9
the extent of funds received by Landlord: (c) expenses incurred in leasing or
procuring tenants (including lease commissions, advertising expenses and
expenses of renovating space for tenants): (d) payments for rented equipment,
the cost of which would constitute a capital expenditure not permitted pursuant
to the foregoing if the equipment were purchased: (e) interest or amortization
payments on any mortgages: (f) net basic rents under ground leases: (g) costs
representing an amount paid to an affiliate of Landlord which is in excess of
the amount which would have been paid in the absence of such relationship: or
(h) costs specially billed to and paid by specific tenants. There shall be no
duplication of costs or reimbursements.
Section 5.3 If the Building is not fully occupied (meaning one-hundred
percent (100%) of the Net Rentable Area of the Building) during any full or
fractional year of the Term, components of the actual Operating Costs which vary
with the level of occupancy shall be adjusted for such year to an amount which
Landlord estimates would have been incurred in Landlord's reasonable judgment
had the Building been fully occupied. The foregoing adjustment is to fully
reimburse Landlord for Operating Costs incurred by Landlord, but is not intended
to result in a profit to Landlord.
Section 5.4 If during the Term any change occurs in either the number of
square feet of the Net Rentable Area of the Premises or of the Net Rentable Area
of the Building, each as reasonably determined by Landlord. Tenant's Share of
Operating Costs shall be adjusted, effective as of the date of any such change.
Landlord shall promptly notify Tenant in writing of such change and the reason
therefor. Any changes made pursuant to this Section 5.4 shall not alter the
computation of Operating Costs as provided in this Article 5, but, on and after
the date of any such change, Tenant's Operating Costs Payment pursuant to
Section 5. lA shall be computed upon Tenant's Share thereof, as adjusted. If
such estimated payments of Tenant's Share are so adjusted during a year. a
reconciliation payment for Tenant's Share of Operating Costs pursuant to this
Article 5 for the calendar year in which such change occurs shall be computed
pursuant to the method set forth in Section 0.xX, such computation to take into
account the daily weighted average of Tenant's Share of Operating Costs during
such year.
ARTICLE 6
---------
PARKING
-------
Section 6.1 Landlord hereby grants to Tenant a license to use in common
with other tenants and with the public the Parking Facility and shall issue
Parking Permits for such use. Each such Parking Permit shall entitle Tenant to
one (1) unassigned parking space in the Parking Facility. The number of Parking
Permits to be issued to Tenant is set forth in Section 1.1P. Landlord shall not
be obligated to provide Tenant with any additional Parking Permits. If Tenant
fails to observe the Rules and Regulations with respect to the Parking Facility,
then Landlord, at its option, shall have the right to treat such failure as a
default under this Lease and to terminate Tenant's Parking Permits, without
legal process, and to remove Tenant. Tenant's
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vehicles and those of its employees, licensees or invitees and all of Tenant's
personal property from the Parking Facility.
Section 6.2 If all or any portion of the Parking Facility shall be damaged
or rendered unusable by fire or other casualty or any taking pursuant to eminent
domain proceeding (or deed in lieu thereof). and as a result thereof Landlord or
the garage operator is unable to make available to Tenant the parking provided
for herein, then the number of cars which Tenant shall be entitled to park
hereunder shall be proportionately reduced so that the number of cars which
Tenant may park in the Parking Facility after the casualty or condemnation in
question shall bear the same ratio to the total number of cars which can be
parked in the Parking Facility at such time as the number of cars Tenant had
the right to park in the Parking Facility prior to such casualty or condemnation
bore to the aggregate number of cars which could be parked therein at that time.
Notwithstanding anything contained herein to the contrary, and in particular
notwithstanding anything in Article 15 and 16 below to the contrary, in the
event the Parking Facility shall be damaged or rendered unusable by fire or
other casualty or any taking pursuant to eminent domain proceedings (or deed in
lieu thereof), and if as a result thereof there is insufficient parking
available to satisfy applicable governmental requirements, and if Landlord does
not provide substitute parking within a reasonable period of time, then Tenant's
Rent obligations hereunder shall xxxxx by an amount equal to the percentage that
the available parking fails to satisfy applicable governmental requirements
until such time, if any, as Landlord provides substitute parking satisfying
applicable governmental requirements. Further, notwithstanding anything
contained herein to the contrary, if Landlord does not provide substitute
parking within one hundred twenty (120) days after the casualty or taking
pursuant to eminent domain proceedings (or deed in lieu thereof) sufficient to
satisfy applicable governmental requirements, then Tenant shall have the right
to terminate this Lease by written notice given to Landlord within fifteen (15)
days after expiration of said one hundred twenty (120) day period.
ARTICLE 7
---------
SERVICES OF LANDLORD
--------------------
Section 7.1 A. During the Term, Landlord shall furnish Tenant with the
following services: (a) hot and cold water in Building Standard bathrooms and
chilled water in Building Standard drinking fountains; (b) permit Tenant to use
Central systems, such as then-existing feeders and risers, to obtain electrical
power from the public utility sufficient for lighting the Premises and for the
operation therein of typewriters. voicewriters, calculating machines,
wordprocessing equipment, photographic reproduction equipment, copying machines,
personal computers and similar items of business equipment which consume, in the
aggregate, less than five (5) xxxxx per square foot of Net Rentable Area of the
Premises and require a voltage of 120 volt single phase or less: (c) heating,
ventilating or air-conditioning, as appropriate, to the Common Areas of the
Project, during Business Hours at such temperatures and in such amounts
11
as customarily and seasonally provided to tenants occupying comparable space in
first-class office buildings in the Chicago suburban area: (d) electric lighting
for the Common Areas of the Project: (e) passenger elevator service, in common
with others, for access to and from the Premises twenty-four (24) hours per day,
seven (7) day per week: provided, however, that Landlord shall have the right to
limit the number of (but not cease to operate all) elevators to be operated
after Business Hours and on Saturdays, Sundays and Holidays: (f) janitorial
cleaning services; (g) facilities for Tenant's loading, unloading, delivery and
pick-up activities, including access thereto during Business Hours, subject to
the Rules and Regulations, the type of facilities, and other limitations of such
loading facilities; and (h) replacement, as necessary, of all Building Standard
lamps and ballasts in Building Standard light fixtures within the Premises, with
Tenant to pay for all bulbs and ballasts and to purchase such bulbs and ballasts
solely from Landlord. All services referred to in this Section 7.1A shall be
provided by Landlord and paid for by Tenant as part of Tenant's Operating Costs
Payment.
B. If Tenant requires services, including cleaning services, routinely
supplied by Landlord for hours or days in addition to the hours and days
specified in Section 7.1A, Landlord shall make reasonable efforts to provide
such additional service after reasonable prior written request therefor from
Tenant, and Tenant shall reimburse Landlord for the cost of such additional
service, including a fifteen percent (15%) markup for Landlord's overhead;
provided however, that, if any other tenants in the Building served by the
equipment providing such additional service to the Premises request that
Landlord concurrently provide such service to such other tenants, the cost of
Landlord's providing such additional and concurrent service shall be prorated
among all of the tenants requesting such service. Landlord shall have no
obligation to provide any additional service to Tenant at any time Tenant is in
default under this Lease unless Tenant pays to Landlord, in advance, the cost of
such additional service. If any machinery or equipment which generates abnormal
heat or otherwise creates unusual demands on the air-conditioning or heating
system serving the Premises is used in the Premises and if Tenant has not,
within five (5) days after demand from Landlord, taken such steps, at Tenant's
expense, as shall be necessary to cease such adverse affect on the
air-conditioning or heating system. Landlord shall have the right to install
supplemental air-conditioning or heating units in the Premises, and the full
cost of such supplemental units (including the cost of acquisition,
installation, operation, use and maintenance thereof) shall be paid by Tenant to
Landlord in advance or on demand.
C. If Tenant's requirements for or consumption of electricity exceed the
capacities specified in clause (b) of Section 7.1A hereof. Landlord shall, at
Tenant's sole cost and expense, make reasonable efforts to supply such service
through the then-existing feeders and risers serving the Building and the
Premises and shall xxxx Tenant periodically for such additional service. At no
time shall use of electricity in the Premises exceed the capacity of existing
feeders and risers to or wiring in the Premises. Any risers or wiring to meet
Tenant's excess electrical requirements shall, upon Tenant's written request, be
installed by Landlord, at Tenant's sole cost, if, in Landlord's reasonable
judgment, the same are necessary and shall not (i) cause permanent damage or
injury to the Project, the Building or the Premises, (ii) cause or
12
create a dangerous or hazardous condition, (iii) entail excessive or
unreasonable alterations, repairs or expenses or (iv) interfere with or disturb
other tenants or occupants of the Building.
Section 7.2 Although Landlord permits Tenant to use the Central systems as
more fully provided in Section 0.xX above. Landlord shall not be obligated to
furnish electrical services to the Premises. Tenant shall make all necessary
arrangements with the public utility supplying electric or other utility service
directly to the Building to furnish electric or other utility service to the
Premises, and, shall be subject to the rules and regulations of the supplier of
such electricity services and the rules and regulations of any municipal or
other governmental authority regulating the business of providing electricity
services. Tenant shall be responsible for contracting promptly and directly with
such public utility supplying such electrical service and for paying all
deposits for, and all costs relating to, such electrical service, so that
electrical services are available to the Premises for Tenant's use on the
Commencement Date.
Section 7.3 No failure to furnish, or any stoppage of, the services
referred to in this Article 7 resulting from any cause shall make Landlord
liable in any respect for damages to any person, property or business, or be
construed as an eviction of Tenant, or entitle Tenant to any abatement of Rent
or other relief from any of Tenant's obligations under this Lease. Should any
malfunction of any systems or facilities occur within the Project or should
maintenance or alterations of such systems or facilities become necessary,
Landlord shall repair the same promptly and with reasonable diligence, and
Tenant shall have no claim for rebate, abatement of Rent, or damages because of
malfunctions or any such interruptions in service. Notwithstanding the
foregoing, in the event any such failure or delay of such services is caused by
the negligence or wilful misconduct of Landlord and causes the Premises to be
untenantable and, as a result thereof. Tenant in fact ceases to use the Premises
for the conduct of business (which Landlord acknowledges does not include
continued operation of the computers located in the Premises) for a period in
excess of seven (7) consecutive days, then commencing on the eighth (8th)
consecutive day of such untenantability and non-use. Rent payable by Tenant
shall be abated until the earliest to occur of (a) the date such failure or
delay is remedied, (b) the date the Premises are again tenantable or (C) the
date Tenant resumes use of the Premises for the conduct of business.
ARTICLE 8
---------
ASSIGNMENT AND SUBLETTING
-------------------------
Section 8.1 Except as hereinafter specifically permitted under Section 8.3,
neither Tenant nor its legal representatives or successors in interest shall, by
operation of law or otherwise, assign, mortgage, pledge, encumber or otherwise
transfer this Lease or any part hereof, or the interest of Tenant under this
Lease, or in any sublease or the rent thereunder. The Premises or any part
thereof shall not be sublet, occupied or used for any purpose by anyone other
than Tenant, without Tenant's obtaining in each instance the prior written
consent of Landlord in the
13
manner hereinafter provided, which shall not be unreasonably withheld as more
fully provided in Section 8.4 below and which shall be provided, or withheld,
within the time periods required under this Article 8. Tenant shall not modify,
extend or amend a sublease previously consented to by Landlord without obtaining
Landlord's prior written consent thereto, which consent shall not be
unreasonably withheld.
Section 8.2 An assignment of this Lease shall be deemed to have occurred
(a) if in a single transaction or in a series of transactions more than 50% in
interest in Tenant, any guarantor of this Lease, or any subtenant (whether
stock, partnership, interest or otherwise) is transferred, diluted, reduced or
otherwise affected with the result that the present holder or owners of Tenant,
such guarantor, or such subtenant have less than a 50% interest in Tenant, such
guarantor or such subtenant, or (b) if Tenant's obligations under this Lease are
taken over or assumed in consideration of Tenant leasing space in another office
building. The transfer of the outstanding capital stock of any corporate Tenant,
guarantor or subtenant through the "over-the-counter" market or any recognized
national securities exchange (other than by persons owning 5% or more of the
voting calculation of such 50% interest of clause 8.2(a) above), including an
initial public offering, shall not be included in the calculation of such 50%
interest in clause (a) above.
Section 8.3 Notwithstanding anything to the contrary in Section 8.1, Tenant
shall have the right, upon ten (10) days' prior written notice to Landlord, to
(a) sublet all or part of the Premises to any related corporation or other
entity which controls Tenant, is controlled by Tenant or is under common control
with Tenant; or (b) assign this Lease to a successor corporation or other entity
into which or with which Tenant is merged or consolidated (including through any
related series of transactions) or which acquired substantially all of Tenant's
stock or assets and property; or (c) assign this Lease as a part of a sale of a
majority ownership interest in Tenant in connection with the new issuance of
stock of Tenant; provided that in all cases (i) such successor corporation
assumes substantially all of the obligations and liabilities of Tenant and shall
have assets, capitalization and net worth at least equal to the assets,
capitalization and net worth of Tenant as of the date of this Lease as
determined by generally accepted accounting principles, and (ii) Tenant shall
provide in its notice to Landlord the information required in Section 8.4. For
the purpose hereof "control" shall mean ownership of not less than 50% of all
the voting stock or legal and equitable interest in such corporation or entity.
Section 8.4 If Tenant should desire to assign this Lease or sublet the
Premises (or any part thereof), Tenant shall give Landlord written notice no
later than the time required for notice under Section 8.3 in the case of an
assignment or subletting to a related or successor entity as more fully provided
under Section 8.3, or thirty (30) days in advance of the proposed effective date
of any other proposed assignment or sublease, specifying (a) the name, current
address and business of the proposed assignee or sublessee, (b) the amount and
location of the space within the Premises proposed to be so subleased, (c) the
proposed effective date and duration of the assignment or subletting, and (d)
the proposed rent or consideration to be paid to Tenant by such
14
assignee or sublessee. Tenant shall promptly supply Landlord with financial
statements and other information as Landlord may request to evaluate the
proposed assignment or sublease. For assignments and sublettings other than
those permitted by Section 8.3, Landlord shall have thirty (30) days following
receipt of such notice and other information requested by Landlord within which
to notify Tenant in writing that Landlord elects: (i) to terminate this Lease as
to the space so affected as of the proposed effective date set forth in Tenant's
notice, in which event Tenant shall be relieved of all further obligations
hereunder as to such space, except for obligations under Articles 17 and 22 and
all other provisions of this Lease which expressly survive the termination
hereof: or (ii) to permit Tenant to assign or sublet such space: provided,
however, that, if the rent rate agreed upon between Tenant and its proposed
subtenant is greater than the rent rate that Tenant must pay Landlord hereunder
for that portion of the Premises, or if any consideration shall be promised to
or received by Tenant in connection with such proposed assignment or sublease
(in addition to rent), then 80% of such excess rent and other consideration
received by Tenant shall be considered Additional Rent owed by Tenant to
Landlord (less brokerage commissions, attorneys' fees and other disbursements
reasonably incurred by Tenant for such assignment and subletting if acceptable
evidence of such disbursements is delivered to Landlord), and shall be paid by
Tenant to Landlord, in the case of excess rent, in the same manner that Tenant
pays Base Rent and, in the case of any other consideration, within ten (10)
Business Days after receipt thereof by Tenant: or (iii) to refuse, in Landlord's
reasonable discretion, to consent to Tenant's assignment or subleasing of such
space and to continue this Lease in full force and effect as to the entire
Premises. The parties agree that Landlord may reasonably refuse to consent to an
assignment or subletting if the proposed assignee or subtenant is not
financially creditworthy, is a governmental authority or agency, an organization
or person enjoying sovereign or diplomatic immunity, a medical or dental
practice or a user that will attract a volume, frequency or type of visitor or
employee to the Building which is not consistent with the standards of a high
quality office building or that will impose an excessive demand on or use of the
facilities or services of the Building. It shall also be reasonable for Landlord
to refuse to consent to any assignment or subletting if (i) Tenant is then in
default under this Lease, or (ii) such assignment of subletting would cause a
default under another lease in the Building or under any ground lease, deed of
trust, mortgage, restrictive covenant, easement or other encumbrance affecting
the Project. If Landlord should fail to notify Tenant in writing of such
election within the aforesaid thirty (30) day period, Landlord shall be deemed
to have elected option (iii) above. Tenant agrees to reimburse Landlord for
legal fees and any other reasonable costs incurred by Landlord in connection
with any proposed assignment or subletting and such payment shall not be
deducted from the Additional Rent, if any, owed to Landlord pursuant to
subsection (ii) above. Tenant shall deliver to Landlord copies of all documents
executed in connection with any permitted assignment or subletting, which
documents shall be in form and substance reasonably satisfactory to Landlord and
which shall require any assignee to assume performance of all terms of this
Lease to be performed by Tenant or any subtenant to comply with all the terms of
this Lease to be performed by Tenant. No acceptance by Landlord of any Rent or
any other sum of money from any assignee, sublessee or other category of
transferee shall be deemed to constitute Landlord's consent to any assignment,
sublease, or transfer. Unless otherwise agreed to in
15
writing by Landlord, no such permitted assignment or sublease shall release
Tenant from any of its obligations under this Lease.
Section 8.5 Any attempted assignment or sublease by Tenant in violation of
the terms and provisions of this Article 8 shall be void and shall constitute a
material breach of this Lease. In no event, shall any assignment, subletting
or transfer, whether or not with Landlord's consent, relieve Tenant of its
primary liability under this Lease for the entire Term, and Tenant shall in no
way be released from the full and complete performance of all the terms hereof.
If Landlord takes possession of the Premises before the expiration of the Term
of this Lease, Landlord shall have the right, at its option, to terminate all
subleases, or to take over any sublease of the Premises or any portion thereof
and such subtenant shall attorn to Landlord, as its landlord, under all the
terms and obligations of such sublease occurring from and after such date, but
excluding previous acts, omissions, negligence or defaults of Tenant and any
repair or obligation in excess of available net insurance proceeds or
condemnation award.
Section 8.6 A. Tenant acknowledges that this Lease is a lease of
nonresidential real property and therefore agrees that Tenant, as the debtor in
possession, or the trustee for Tenant (collectively the "Trustee") in any
proceeding under Title 11 of the United State Bankruptcy Code relating to
Bankruptcy, as amended (the "Bankruptcy Code"), shall not seek or request any
extension of time to assume or reject this Lease or to perform any obligations
of this Lease.
B. The Trustee shall have the right to assume or assign Tenant's rights and
obligations under this Lease only if the Trustee: (a) promptly cures or provides
adequate assurance that the Trustee will promptly cure any default under the
Lease; (b) compensates or provides adequate assurance that the Trustee will
promptly compensate Landlord for any actual pecuniary loss incurred by Landlord
as a result of Tenant's default under this Lease; and (c) provides adequate
assurance of future performance under the Lease. All payments of Rent required
of Tenant under this Lease, whether or not expressly denominated as such in this
Lease, shall constitute rent for the purposes of Title 11 of the Bankruptcy
Code.
Section 8.7 The term "Landlord," as used in this Lease, so far as covenants
or obligations on the part of Landlord are concerned, shall be limited to mean
and include only the owner or owners, at the time in question, of the fee title
to, or a lessee's interest in a ground lease of, the Land or the Building. In
the event of any transfer, assignment or other conveyance or transfers of any
such title or interest, Landlord herein named (and in case of any subsequent
transfers or conveyances of any such title or interest, the then grantor) shall
be automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and, without further agreement, the transferee of
such title or interest shall be deemed to have assumed and agreed to observe and
perform any and all obligations of Landlord hereunder, during its ownership of
the Project. Landlord may transfer its interest in the Project, or portions
thereof or interest thereon, without the consent of
16
Tenant and such transfer or subsequent transfer shall not be deemed a violation
on Landlord's part of any of the terms of this Lease.
ARTICLE 9
---------
REPAIRS
-------
Section 9.1 Except for ordinary wear and tear and except as otherwise
provided in Section 9.2. Landlord shall perform all maintenance and make all
repairs and replacements to the Premises. Tenant shall pay to Landlord the
actual cost (including a fee equal to fifteen percent (15%) of actual costs to
cover Landlord's overhead and a fee for Landlord's agent or manager) for (a) all
maintenance, repairs and replacements within the Premises, other than (i)
repairs and replacements necessitated by the willful misconduct or gross
negligence of Landlord or its agents, employees, contractors, invitees or
licensees to the extent the cost thereof is not collectible under Tenant's
insurance, or, if Tenant is not carrying all of the insurance described in
Section 14.1A. to the extent such cost would not be covered by the insurance
described in Section 14.1A, if the same were in effect. (ii) maintenance,
repairs and replacements to the Central systems of the Building located within
the Premises; and (iii) services of Landlord described under Article 7 above to
the extent the costs of such services are included within Operating Costs; and
(b) all repairs and replacements necessitated by damage to the Project
(including the Building structure and the Central systems of the Building within
the Premises) caused by the negligence or willful misconduct of Tenant or its
agents, contractors, invitees and licensees but only to the extent the cost
thereof is not collectible under Landlord's insurance, or, if Landlord is not
carrying all of the insurance described in Section 14.2, to the extent that such
cost would not be covered by the insurance described in Section 14.2 if the same
were in effect. Amounts payable by Tenant pursuant to this Section 9.1 shall be
payable on demand after receipt of an invoice therefor from Landlord. Landlord
has no obligation and has made no promise to maintain, alter, remodel, improve,
repair, decorate or paint the Premises or any part thereof, except as
specifically set forth in this Lease, including as specifically set forth in
Article 7 above. In no event shall Landlord have any obligation to maintain,
repair or replace any furniture, furnishings, fixtures or personal property of
Tenant.
Section 9.2 Tenant shall keep the Premises in good order and in a safe,
neat and clean condition. No representations respecting the condition of the
Premises or the Building or the other portions of the Project have been made by
Landlord to Tenant except as specifically set forth in this Lease. Except as
provided in Section 10.1 or specifically consented to by Landlord. Tenant shall
not perform any maintenance or repair work or make any replacement in or to the
Premises but rather shall promptly notify Landlord of the need for such
maintenance, repair or replacement so that Landlord may proceed to perform the
same pursuant to the provisions of Section 9.1. In the event Landlord
specifically consents to the performance of any maintenance or the making of
any repairs or replacements by Tenant and Tenant fails to promptly commence and
diligently pursue the performance of such maintenance or the making of such
repairs or
17
replacements, then Landlord, at its option, may perform such maintenance or make
such repairs and Tenant shall reimburse Landlord, on demand after Tenant
receives an invoice therefor, the cost thereof plus a fee equal to fifteen
percent (15%) of the actual costs to cover overhead and a fee for Landlord's
agent or manager.
Section 9.3 All repairs made by Tenant pursuant to Section 9.2 shall be
performed in a good and workmanlike manner by contractors or other repair
personnel selected by Tenant from an approved list of contractors and repair
personnel maintained by Landlord in the Project's management office; provided,
however, that neither Tenant nor its contractors or repair personnel shall be
permitted to do any work affecting the Central systems of the Building. In no
event shall such work be done for Landlord's account or in a manner which allows
any liens to be filed in violation of Article 11. To the extent any repairs
involve the making of alterations to the Premises, Tenant shall comply with the
provisions of Article 10.
Section 9.4 Subject to the other provisions of this Lease imposing
obligations regarding repair upon Tenant. Landlord shall repair all machinery
and equipment necessary to provide the services of Landlord described in Article
7 (provided that Tenant shall pay the costs of any repair to such systems or any
part thereof damaged by Tenant and Tenant's employees, customers, clients,
agents, licensees and invitees) and for repair of all portions of the Project
which do not comprise a part of the Premises and are not leased to others.
ARTICLE 10
----------
ALTERATIONS
-----------
Section 10.1 Tenant shall not at any time during the Term make any
alterations to the Premises without first obtaining Landlord's written consent
thereto, which consent Landlord shall not unreasonably withhold or delay;
provided, however, that Landlord shall not be deemed unreasonable by refusing to
consent to any alterations which are visible from the exterior of the Building
or the Project, which will or are likely to cause any weakening of any part of
the structure of the Premises, the Building or the Project or which will or are
likely to cause damage or disruption to the Central Building systems or which
are prohibited by any underlying ground lease or mortgage or the Declarations.
Should Tenant desire to make any alterations to the Premises, Tenant shall
submit all plans and specifications for such proposed alterations to Landlord
for Landlord's review before Tenant allows any such work to commence, and
Landlord shall promptly approve or disapprove such plans and specifications for
any of the reasons set forth in this Section 10.1 or for any other reason
reasonably deemed sufficient by Landlord. Tenant shall select and use only
contractors, subcontractors or other repair personnel from those listed on
Landlord's approved list maintained by Landlord in the Project management office
or such other contractor as may be approved in writing by Landlord. Upon
Tenant's receipt of written approval from Landlord and any required approval of
any mortgagee or lessor of Landlord, and upon Tenant's payment to Landlord of
(a) a reasonable fee prescribed by
18
Landlord for the work of Landlord and Landlord's employees and representatives
in reviewing and approving such plans and specifications and (b) the fees, if
any charged by any mortgagee or lessor of Landlord for such review and approval.
Tenant shall have the right to proceed with the construction of all approved
alterations, but only so long as such alterations are in strict compliance with
the plans and specifications so approved by Landlord and with the provisions of
this Article 10 Landlord. All alterations shall be made at Tenant's sole cost
and expense, either by Tenant's contractors or, at Tenant's option, by Landlord
on terms reasonably satisfactory to Tenant, including a fee of fifteen percent
(15%) of the actual costs of such work to cover Landlord's overhead and a fee
for Landlord's agent or manager in supervising and coordinating such work. If
Tenant's contractor performs such work, a fee of seven and one-half percent
(7.5%) of the actual costs of such work fee for Landlord's agent or manager in
supervising and coordinating such work to cover overhead and a fee for
Landlord's agent or manager for supervising and coordinating such work. In no
event, however, shall anyone other than Landlord or Landlord's employees or
representatives perform work to be done which affects the Central systems of the
Building.
Section 10.2 All construction, alterations and repair work done by or for
Tenant shall (a) be performed in such a manner as to maintain harmonious labor
relations: (b) not adversely affect the safety of the Project, the Building or
the Premises or the systems thereof and not affect the Central systems of the
Building; (c) comply with all building, safety, fire, plumbing, electrical and
other codes and governmental and insurance requirements: (d) not result in any
usage in excess of Building Standard of water, electricity, gas, or other
utilities or of heating, ventilating or air-conditioning (either during or after
such work) unless prior written arrangements satisfactory to Landlord are made
with respect thereto; (e) be completed promptly and in a good and workmanlike
manner and in compliance with, and subject to, all of Landlord's reasonable
rules and regulations pertaining to construction activities in the Building: and
(f) not disturb Landlord or other tenants in the Building. After completion of
any alterations to the Premises, Tenant will deliver to Landlord a copy of "as
built" plans and specifications depicting and describing such alterations.
Section 10.3 All leasehold improvements, alterations and other physical
additions made to or installed by or for Tenant in the Premises shall be and
remain Landlord's property (except for Tenant's furniture, personal property and
movable trade fixtures) and shall not be removed without Landlord's written
consent. Tenant agrees to remove, at its sole cost and expense, all of Tenant's
furniture, personal property and movable trade fixtures, and, if directed to or
permitted to do so by Landlord in writing, all, or any part of the leasehold
improvements, alterations and other physical additions made by Tenant to the
Premises, on or before the Expiration Date or any earlier date of, termination
of this Lease. Tenant shall repair, or promptly reimburse Landlord for the cost
of repairing, all damage done to the Premises or the Building by such removal.
Any leasehold improvements, alterations or physical additions made by Tenant
which Landlord does not direct or permit Tenant to remove at any time during or
at the end of the Term shall become the property of Landlord at the end of the
Term without any payment to Tenant. If Tenant fails to remove any of Tenant's
furniture, personal property or
19
movable trade fixtures by the Expiration Date or any sooner date of termination
of the Lease or, if Tenant fails to remove any leasehold improvements,
alterations and other physical additions made by Tenant to the Premises which
Landlord has in writing directed Tenant to remove. Landlord shall have the
right, on the fifth (5th) day after Landlord's delivery of written notice to
Tenant, to deem such property abandoned by Tenant and to remove, store, sell,
discard or otherwise deal with or dispose of such abandoned property in a
commercially reasonable manner. Tenant shall be liable for all costs of such
disposition of Tenant's abandoned property and Landlord shall have no liability
to Tenant in any respect regarding such property of Tenant. The provisions of
this Section 10.3 shall survive the expiration or any earlier termination of
this Lease.
ARTICLE 11
----------
LIENS
-----
Section 11.1 Tenant shall keep the Project, the Building and the Premises
and Landlord's interest therein from any liens arising from any work performed,
materials furnished, or obligations incurred by, or on behalf of Tenant. Notice
is hereby given that neither Landlord nor any mortgagee or lessor of Landlord
shall be liable for any labor or materials furnished to Tenant. If any lien is
filed for such work or materials, such lien shall encumber only Tenant's
interest in leasehold improvements on the Premises. Within ten (10) days after
Tenant learns of the filing of any such lien, Tenant shall notify Landlord of
such lien and shall either discharge and cancel such lien of record or post a
bond sufficient under the laws of the State of Illinois to cover the amount of
the lien claim plus any penalties, interest, attorneys' fees, court costs, and
other legal expenses in connection with such lien. If Tenant fails to so
discharge or bond such lien within ten (10) calendar days after written demand
from Landlord, Landlord shall have the right, at Landlord's option, to pay the
full amount of such lien without inquiry into the validity thereof, and Landlord
shall be promptly reimbursed by Tenant, as Additional Rent, for all amounts so
paid by Landlord, including expenses, interest, and attorneys' fees.
ARTICLE 12
----------
USE AND COMPLIANCE WITH LAWS
----------------------------
Section 12.1 The Premises shall be used only for executive and
administrative offices for the conduct of Tenant's business limited to the uses
specifically set forth in Section 1.1Q and for no other purposes whatsoever.
Tenant shall use and maintain the Premises in a clean, careful, safe, lawful and
proper manner and shall not allow within the Premises, any offensive noise,
odor, conduct or private or public nuisance or permit Tenant's employees,
agents, licensees or invitees to create a public or private nuisance or act in a
disorderly manner within
20
the Building or in the Project. Any statement as to the particular nature of the
business to be conducted by Tenant in the Premises and uses to be made thereof
by Tenant as set forth in Section 1.lQ hereof shall not constitute a
representation or warranty by Landlord that such business or uses are lawful or
permissible under any certificate or occupancy for the Premises or the Building
or are otherwise permitted by law. Landlord does, however, represent that any
certificate of occupancy issued with respect to the Premises shall allow use for
executive and administrative offices.
Section 12.2 Tenant shall, at Tenant's sole expense, (a) comply with all
laws, orders, ordinances, and regulations of federal, state, county, and
municipal authorities having jurisdiction over the Premises, (b) comply with any
directive, order or citation made pursuant to law by any public officer
requiring abatement of any nuisance or which imposes upon Landlord or Tenant any
duty or obligation arising from Tenant's occupancy or use of the Premises or
from conditions which have been created by or at the request or insistence of
Tenant, or required by reason of a breach of any of Tenant's obligations
hereunder or by or through other fault of Tenant, (c) comply with all insurance
requirements applicable to the Premises and (d) indemnify and hold Landlord
harmless from any loss, cost, claim or expense which Landlord incurs or suffers
by reason of Tenant's failure to comply with its obligations under clauses (a),
(b) or (c) above. If Tenant receives notice of any such directive, order
citation or of any violation of any law, order, ordinance, regulation or any
insurance requirement, Tenant shall promptly notify Landlord in writing of such
alleged violation and furnish Landlord with a copy of such notice.
ARTICLE 13
----------
DEFAULT AND REMEDIES
--------------------
Section 13.1 The occurrence of any one or more of the following events
shall constitute an Event of Default (herein so called) of Tenant under this
Lease: (a) if Tenant fails to pay any Rent hereunder as and when such Rent
becomes due and such failure shall continue for more than five (5) days after
Landlord gives Tenant notice of past due Rent: (b) if Tenant fails to pay Rent
on time more than twice in any period of twelve (12) months, notwithstanding
that such payments have been made within the applicable cure period; (c) if the
Premises become vacant, deserted, or abandoned (provided, however, that Tenant
vacating the Premises temporarily in connection with a remodeling or
construction of alterations shall not be considered a vacation, desertion or
abandonment hereunder) for more than ten (10) consecutive days of if Tenant
fails to take possession of the Premises on the Commencement Date or promptly
thereafter: (d) if Tenant permits to be done anything which creates a lien upon
the Premises and fails to discharge or bond such lien or post such security with
Landlord as is required by Article 11; (e) if Tenant violates the provisions of
Article 8 by attempting to make an unpermitted assignment or sublease; (f) if
Tenant fails to maintain in force all policies of insurance required by this
Lease and such failure shall continue for more than ten (10) days after Landlord
gives Tenant written
21
notice of such failure: (g) if any petition is filed by or against Tenant or any
guarantor of this Lease under any present or future section or chapter of the
Bankruptcy Code, or under any similar law or statute of the United States or any
state thereof (which, in the case of an involuntary proceeding, is not
permanently discharged, dismissed, stayed, or vacated, as the case may be,
within sixty (60) days of commencement), or if any order for relief shall be
entered against Tenant or any guarantor of this Lease in any such proceedings;
(h) if Tenant or any guarantor of this Lease becomes insolvent or makes a
transfer in fraud of creditors or makes an assignment for the benefit of
creditors; (i) if a receiver, custodian, or trustee is appointed for the
Premises or for all or substantially all of the assets of Tenant or of any
guarantor of this Lease, which appointment is not vacated within sixty (60) days
following the date of such appointment; or (j) if Tenant fails to perform or
observe any other terms of this Lease and such failure shall continue for more
than thirty (30) days after Landlord gives Tenant notice of such failure, or, if
such failure cannot be corrected within such thirty (30) day period, if Tenant
does not commence to correct such default within said thirty (30) day period and
thereafter diligently prosecute the correction of same to completion within a
reasonable time and in any event prior to the time a failure to complete such
correction could cause Landlord to be subject to prosecution for violation of
any law, rule, ordinance or regulation or causes, or could cause, a default
under any mortgage, underlying lease, tenant leases or other agreements
applicable to the Project.
Section 13.2 Upon the occurrence of any Event of Default, Landlord shall
have the right, at Landlord's option, to elect to do any one or more of the
following without further notice or demand to Tenant, Tenant hereby expressly
waiving the requirement of service of any statutory notice or demand as a
condition precedent to Landlord's exercising of the following rights: (a)
terminate this Lease, in which event Tenant shall immediately surrender the
Premises to Landlord, and, if Tenant fails to so surrender, Landlord shall have
the right, without notice or demand, to enter upon and take possession of the
Premises and to expel or remove Tenant and its effects without being liable for
prosecution or any claim for damages therefor; and Tenant shall, and hereby
agrees to, indemnify Landlord for all loss and damage which Landlord suffers by
reason of such termination, including damages in an amount equal to the total of
(l) the costs of recovering the Premises and all other expenses incurred by
Landlord in connection with Tenant's default; (2) the unpaid Rent earned as of
the date of termination, plus interest at the Interest Rate; (3) the total Rent
which Landlord would have received under this Lease for the remainder of the
Term, but discounted to the then present value at a rate of eight percent (8%)
per annum, over the fair market rental value on a net basis of the balance of
the Term as of the time of such default, discounted to the then present value at
a rate of eight percent (8%) per annum; and (4) all other sums of money and
damages owing by Tenant to Landlord; or (b) enter upon and take possession of
the Premises without terminating this Lease and without being liable to
prosecution or any claim for damages therefor, and, if Landlord elects, relet
the Premises on such terms as Landlord deems advisable, in which event Tenant
shall pay to Landlord on demand the reasonable cost of repossession, renovating,
repairing and altering the Premises for a new tenant or tenants in a manner and
to a level reasonably necessary to so relet the Premises, which may include
renovating and altering the Premises to the then
22
current Building standard condition, and any deficiency between the Rent payable
hereunder and the rent paid under such reletting; provided, however, that Tenant
shall not be entitled to any excess payments received by Landlord from such
reletting. Landlord's failure to relet the Premises shall not release or affect
Tenant's liability for Rent or for damages; or (c) enter the Premises without
terminating this Lease and without being liable for prosecution or any claim for
damages therefor and maintain the Premises and repair or replace any damage
thereto or do anything for which Tenant is responsible hereunder. Tenant shall
reimburse Landlord immediately upon demand for any expenses which Landlord
incurs in thus effecting Tenant's compliance under this Lease, and Landlord
shall not be liable to Tenant for any damages with respect thereto.
Section 13.3 No agreement to accept a surrender of the Premises and no act
or omission by Landlord or Landlord's agents during the Term shall constitute an
acceptance or surrender of the Premises unless made in writing and signed by
Landlord. No re-entry or taking possession of the Premises by Landlord shall
constitute an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant. No provision of this Lease shall be
construed as an obligation upon Landlord to mitigate Landlord's damages under
the Lease.
Section 13.4 No provision of this Lease shall be deemed to have been waived
by Landlord unless such waiver is in writing and signed by Landlord. Landlord's
acceptance of Rent following an Event of Default hereunder shall not be
construed as a waiver of such Event of Default. No custom or practice which may
grow up between the parties in connection with the terms of this Lease shall be
construed to waive or lessen Landlord's right to insist upon strict performance
of the terms of this Lease, without a written notice thereof to Tenant from
Landlord.
Section 13.5 The rights granted to Landlord in this Article 13 shall be
cumulative of every other right or remedy provided in this Lease or which
Landlord may otherwise have at law or in equity or by statute, and the exercise
of one or more rights or remedies shall not prejudice or impair the concurrent
or subsequent exercise of other rights or remedies or constitute a forfeiture or
waiver of Rent or damages accruing to Landlord by reason of any Event of Default
under this Lease. Tenant agrees to pay to Landlord all costs and expenses
incurred by Landlord in the enforcement of this Lease, including all attorneys'
fees incurred in connection with the collection of any sums due hereunder or the
enforcement of any right or remedy of Landlord.
23
ARTICLE 14
----------
INSURANCE
---------
Section 14.1 A. Tenant, at its sole expense, shall obtain and keep in force
during the Term the following insurance: (a) "All Risk" insurance insuring
Tenant's interest in the Premises and all property located in the Premises,
including furniture, equipment, fittings, installations, fixtures, supplies and
any other personal property, leasehold improvements and alterations ("Tenant's
Property"), in an amount equal to the full replacement value, it being
understood that no lack or inadequacy of insurance by Tenant shall in any event
make Landlord subject to any claim by virtue of any theft of or loss or damage
to any uninsured or inadequately insured property; (b) Business Interruption
insurance in an amount that will reimburse Tenant for direct or indirect loss of
earnings attributable to all perils insured against under Section 14.1(a) or
attributable to the prevention of access to the Premises by civil authority, and
sufficient to reimburse Tenant for Rent in the event of a casualty to, or
temporary taking of, the Building or the Premises; (c) Commercial General Public
Liability insurance including personal injury, bodily injury, broad form
property damage, operations hazard, owner's protective coverage, contractual
liability, with a cross liability clause and a severability of interests clause
to cover Tenant's indemnities set forth herein, and products and completed
operations liability, in limits not less than $1,000,000.00 inclusive per
occurrence or such higher limits as Landlord may require from time to time
during the Term; (d) Worker's Compensation and Employer's Liability insurance,
with a waiver of subrogation endorsement, in form and amount as required by
applicable law; (e) in the event Tenant performs any repairs or alterations in
the Premises, Builder's Risk insurance on an "All Risk" basis (including
collapse) on a completed value (non-reporting) form for full replacement value
covering all work incorporated in the Building and all materials and equipment
in or about the Premises; (f) Tenant's "All Risk" Legal Liability insurance for
the replacement cost value of the Premises; and (g) any other form or forms of
insurance or any changes or endorsements to the insurance required herein as
Landlord, or any mortgagee or lessor of Landlord may require, from time to time,
in form or in amount.
B. Tenant shall have the right to include the insurance required by Section
00.xX under Tenant's policies of "blanket insurance," provided that no other
loss which may also be insured by such blanket insurance shall affect the
insurance coverages required hereby and further provided that Tenant delivers to
Landlord a certificate specifically stating that such coverages apply to
Landlord, the Premises and the Project. All such policies of insurance or
certificates thereof shall name Tenant and Landlord as named insureds thereunder
and shall name all mortgagees and lessors of Landlord, of which Tenant has been
notified, additional named insureds, all as their respective interest may
appear. All such policies or certificates shall be issued by insurers acceptable
to Landlord and in form satisfactory to Landlord. Tenant shall deliver to
Landlord certificates with copies of policies, together with satisfactory
evidence of payment of premiums for such policies, by the Commencement Date and,
with respect to renewals of such policies, not later than thirty (30) days prior
to the end of the expiring term of coverage. Upon Landlord's request Tenant
shall deliver to Landlord certified copies of such
24
policies. All policies of insurance shall be primary and Tenant shall not carry
any separate or additional insurance concurrent in form or contributing in the
event of any loss or damage with any insurance required to be maintained by
Tenant under this Lease. All such policies and certificates shall contain an
agreement by the insurers that the policies will not be invalidated as they
affect the interests of Landlord and Landlord's mortgagees by reason of any
breach or violation of warranties. representations. declarations or conditions
contained in the policies and that the insurers shall notify Landlord and any
mortgagee or lessor of Landlord in writing, by Registered U.S. mail, return
receipt requested. not less than thirty C30) days before any material change.
reduction in coverage. cancellation, including cancellation for nonpayment of
premium. or other termination thereof or chance therein and shall include a
clause or endorsement denying the insurer any rights or subrogation against
Landlord, if such clause or endorsement is available without additional cost to
Tenant.
Section 14.2 Landlord shall insure the Building against damage with
casualty and commercial general public liability insurance, all in such amounts
and with such deductible as Landlord reasonably deems appropriate.
Notwithstanding any contribution by Tenant to the cost of insurance premiums, as
provided hereinabove. Landlord shall not be required to carry insurance of any
kind on Tenant's Property, and Tenant hereby agrees that Tenant shall have no
right to receive any proceeds from any insurance policies carried by Landlord.
Section 14.3 Tenant shall not conduct or knowingly permit to be conducted
in the Premises any activity, or place any equipment in or about the Premises or
the Building, which will invalidate the insurance coverage in effect or increase
the rate of fire insurance or other insurance on the Premises or the Building,
and Tenant shall comply with all requirements and regulations of Landlord's
casualty and liability insurer. If any invalidation of coverage or increase in
the rate of fire insurance or other insurance occurs or is threatened by any
insurance company due to any act or omission by Tenant, or its agents,
employees, representatives, or contractors, such statement or threat shall be
conclusive evidence that the increase in such rate is due to such act of Tenant
or the contents or equipment in or about the Premises, and, as a result thereof,
Tenant shall be liable for such increase and shall be considered Additional Rent
payable with the next monthly installment of Base Rent due under this Lease. In
no event shall Tenant introduce or permit to be kept on the Premises or brought
into the Building any dangerous, noxious, radioactive or explosive substance.
Section 14.4 Landlord and Tenant each hereby waive any right of subrogation
and right of recovery or cause of action for injury or loss to the extent that
such injury or loss is covered by fire, extended coverage, "All Risk" or similar
policies covering real property of personal property (or which would have been
covered if Tenant or Landlord, as the case may be, was carrying the insurance
required by this Lease). Said waivers shall be in addition to, and not in
limitation or derogation or, any other waiver or release contained in this
Lease. Written notice of the terms of the above mutual waivers shall be given to
the insurance carriers of Landlord and Tenant and the parties' insurance
policies shall be properly endorsed, if necessary, to prevent the invalidation
of said policies by reason of such waivers.
25
ARTICLE 15
----------
DAMAGE BY FIRE OR OTHER CAUSE
-----------------------------
Section 15.1 If the Project or any portion thereof is damaged or destroyed
by any casualty to the extent that, in Landlord's reasonable judgment, (a)
repair of such damage or destruction would not be economically feasible, or (b)
the damage or destruction to the Project cannot be repaired, in Landlord's
reasonable judgement, within one hundred eighty (180) days after receipt of
insurance proceeds relating to such damage or destruction, or (c) if the
proceeds from insurance remaining after any required payment to any mortgagee or
lessor of Landlord are insufficient to repair such damage or destruction,
Landlord shall have the right, at Landlord's option, to terminate this Lease by
giving Tenant notice of such termination, within sixty (60) days after the date
of such damage or destruction and, with respect to damage or destruction
described in clause (b) above, and if such damage or destruction renders the
Premises untenantable, Tenant shall have the right, at Tenant's option, to
terminate this Lease by giving Landlord notice of such termination within sixty
(60) days after the date of such damage or destruction, provided, however, that
if Landlord determines that the Project cannot be rebuilt or made fit for
Tenant's purposes within one hundred and eighty (180) days after the date of
such damage or destruction but does not elect to terminate this Lease as
provided above, then Landlord shall provide Tenant with written notice of such
determination within forty-five (45) days after the date of such damage or
destruction so that Tenant can exercise its termination right within the sixty
(60) day period provided above.
Section 15.2 If the Premises or any portion thereof is damaged or destroyed
by any casualty against which Tenant is required to be insured under Section
14.1, and if, in Landlord's reasonable opinion, the Premises cannot be rebuilt
or made fit for Tenant's purposes within one hundred eighty days (180) after the
date of such damage or destruction, or if the proceeds from the insurance Tenant
is required to maintain pursuant to Article 14 hereof (or the amount of proceeds
which would have been available if Tenant was carrying such insurance) are
insufficient to repair such damage or destruction, then either Landlord or
Tenant shall have the right, at the option of either party, to terminate this
Lease by giving the other written notice, within sixty (60) days after such
damage or destruction.
Section 15.3 In the event of partial destruction or damage to the Building
or the Premises which is not subject to Section 15.1 or 15.2. but which renders
the Premises partially but not wholly untenantable, this Lease shall not
terminate and Rent shall be abated in proportion to the area of the Premises
which, in Landlord's reasonable opinion, cannot be used or occupied by Tenant as
a result of such casualty. Landlord shall in such event, within a reasonable
time after the date of such destruction or damage, subject to force majeure (as
defined in Section 25.6) or to Tenant caused delay and to the extent and
availability of insurance proceeds, restore the Premises to as near the same
condition as existed prior to such partial damage or destruction, provided that
Tenant pays to Landlord Tenant's insurance proceeds as required in
26
Section 15.5 In no event shall Rent xxxxx or shall any termination occur if
damage to or destruction of the Premises is the result of the gross negligence
or willful act of Tenant, or Tenant's agents, employees, representatives,
contractors, successors, assigns, licensees or invitees.
Section 15.4 If the Building or the Premises or any portion thereof is
destroyed by fire or other causes at any time during the last year of the Term,
then either Landlord or Tenant shall have the right, at the option of either
party, to terminate this Lease by giving written notice to the other within
sixty (60) days after the date of such destruction.
Section 15.5 Landlord shall have no liability to Tenant for inconvenience,
loss of business, or annoyance arising from any repair of any portion of the
Premises or the Project. If Landlord is required by this Lease or by any
mortgagee or lessor of Landlord to repair or if Landlord undertakes to repair,
Tenant shall pay to Landlord that amount of Tenant's insurance proceeds (or the
amount which would have been received by Tenant if Tenant was carrying the
insurance required by this Lease) which insures such damage to the Premises or
Building as a contribution towards such repair, and Landlord shall use
reasonable efforts to have such repairs made promptly and in a manner which will
not unnecessarily interfere with Tenant's occupancy.
Section 15.6 In the event of termination of this Lease pursuant to Sections
15.1, 15.2, or 15.4, then all Rent shall be apportioned and paid to the date on
which possession is relinquished or the date of such damage, whichever last
occurs, and Tenant shall immediately vacate the Premises according to such
notice of termination: provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
ARTICLE 16
----------
CONDEMNATION
------------
Section 16.1 In the event the whole or substantially the whole of the
Building or the whole or any portion of the Premises are taken or condemned by
eminent domain or by any conveyance in lieu thereof (such taking, condemnation
or conveyance in lieu thereof being hereinafter referred to as "condemnation"),
the Term shall cease and this Lease shall terminate on the earlier of the date
the condemning authority takes possession or the date title vests in the
condemning authority.
Section 16.2 In the event any portion of the Building shall be taken by
condemnation (whether or not such taking includes any portion of the Premises),
which taking, in Landlord's reasonable judgment, is such that the Building
cannot be restored in an economically feasible manner for use substantially as
originally designed, then Landlord shall have the right, at
27
Landlord's option, to terminate this Lease, effective as of the date specified
by Landlord in a written notice of termination from Landlord to Tenant.
Section 16.3 In the event any portion of the Parking Facility shall be
taken by condemnation, which taking in Landlord's judgment is such that the
Parking Facility cannot be restored in an economically feasible manner for use
substantially as originally designed including in such consideration the
possible use of additional Parking Facility in the vicinity of the Building,
then Landlord shall have the right, at Landlord's option, to terminate this
Lease, effective as of the date specified by Landlord in a written notice of
termination from Landlord to Tenant.
Section 16.4 In the event that a portion. but less than substantially the
whole, of the Premises shall be taken by condemnation, then this Lease shall be
terminated as of the date of such condemnation as to the portion of the Premises
so taken, and unless Landlord exercises its option to terminate this Lease
pursuant to Section 16.2, this Lease shall remain in full force and effect as to
the remainder of the Premises.
Section 16.5 In the event of termination of this Lease pursuant to the
provisions of Section 16.1, 16.2, or 16.3, the Rent shall be apportioned as of
such date of termination: provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
Section 16.6 All compensation awarded or paid upon a condemnation of any
portion of the Project shall belong to and be the property of Landlord without
participation by Tenant. Nothing herein shall be construed, however, to preclude
Tenant from prosecuting any claim directly against the condemning authority for
loss of business, loss of good will, moving expenses, damage to, and cost of
removal of, trade fixtures, furniture and other personal property belonging to
Tenant: provided, however, that Tenant shall make no claim which shall diminish
or adversely affect any award claimed or received by Landlord.
Section 16.7 Except as otherwise provided herein, if any portion of the
Project other than the Building is taken by condemnation or if the temporary use
or occupancy of all or any part of the Premises shall be taken by condemnation
during the Term, this Lease shall be and remain unaffected by such condemnation,
and Tenant shall continue to pay in full the Rent payable hereunder. In the
event of any such temporary taking for use or occupancy of all or any part of
the Premises, Tenant shall be entitled to appear, claim, prove and receive the
portion of the award for such taking that represents compensation for use or
occupancy of the Premises during the Term and Landlord shall be entitled to
appear, claim, prove and receive the portion of the award that represents the
cost of restoration of the Premises and the use or occupancy of the Premises
after the end of the Term hereof. In the event of any such condemnation of any
portion of the Project other than the Building, Landlord shall be entitled to
appear, claim, prove and receive all of that award.
28
ARTICLE 17
----------
INDEMNIFICATION
---------------
Section 17.1 Tenant hereby waives all claims against Landlord for damage
to any property or injury to, or death of, any person in, upon, or about the
Project, including the Premises, arising at any time and from any cause other
than the negligence or willful misconduct of Landlord, its agents, employees,
representatives, or contractors. Tenant shall, and hereby agrees to, indemnify
and hold Landlord harmless from any damage to any property or injury to, or
death of, any person arising from the use or occupancy of the Common Areas and
the Premises by Tenant, its agents, employees, representatives, contractors,
successors, assigns, licensees, or invitees, except to the extent such damage is
caused by the negligence or willful misconduct of Landlord, its agents,
employees, representatives, or contractors and except, with respect to the
Common Areas only. Tenant's indemnification set forth above shall not include
any such damage caused by other tenants of the Building or other third parties.
Without limiting the generality of the foregoing, Landlord shall not be liable
for any injury or damage to persons or property resulting from the condition or
design of, or any defective, Building or its mechanical systems or equipment
which may exist or occur or from any fire, explosion, falling plaster, steam,
gas, electricity, water, rain, flood, snow, or leaks from any part of the
Premises or from the pipes, appliances, plumbing works, roof, or subsurface of
any floor or ceiling, or from the street or any other place, or by dampness or
by any other similar cause, except to the extent caused by the negligence or
willful misconduct of Landlord, its agents, employees, representatives or
contractors. Landlord shall not be liable for any such damage caused by other
tenants or persons in the Building or by occupants of adjacent property thereto,
or by the public, or caused by construction (except to the extent caused by the
negligence or willful misconduct of Landlord) or by any private, public or
quasi-public work. Tenant, for itself and its agents, employees,
representatives, contractors, successors, assigns, invitees and licensees,
expressly assumes all risks of injury or damage to person or property, whether
proximate or remote, resulting from the condition of the Project or any part
thereof, except to the extent caused by the negligence or willful misconduct of
Landlord. Tenant's foregoing indemnity shall include attorneys' fees,
investigation costs, and all other reasonable costs and expenses incurred by
Landlord in any connection therewith. The provisions of this Article 17 shall
survive the expiration or termination of this Lease with respect to any damage,
injury, or death occurring before such expiration or termination. If Landlord is
made a party to any litigation commenced by or against Tenant or relating to
this Lease or to the Premises, and provided that in any such litigation Landlord
is not finally adjudicated to be solely at fault, then Tenant shall pay all
costs and expenses, including attorneys' fees and court costs, incurred by or
imposed upon Landlord because of any such litigation, and the amount of all such
costs and expenses, including attorneys' fees and court costs, shall be a demand
obligation owing by Tenant to Landlord. Notwithstanding anything in this Article
17 to the contrary, Landlord shall not be liable to Tenant for any claims
resulting from the negligence or willful misconduct of Landlord, its agents,
employees, representatives, or contractors to the extent such claims are covered
by the types of insurance Tenant is to maintain pursuant to Section 00.xX.
29
Section 17.2 Landlord shall, and hereby agrees to, indemnify and hold
Tenant harmless from any damages in connection with loss of life, bodily or
personal injury or property damage arising from any occurrence in the Common
Areas of the Project, except to the extent the result of the negligence or
willful misconduct of Tenant and to the extent not covered by Tenant's
insurance.
ARTICLE 18
----------
SUBORDINATION AND ESTOPPEL CERTIFICATES
---------------------------------------
Section 18.1 This Lease and all rights of Tenant hereunder are subject and
subordinate to all underlying leases now or hereafter in existence, and to any
supplements, amendments, modifications, and extensions of such leases heretofore
or hereafter made and to any deeds to secure debt, mortgages, or other security
instruments which now or hereafter cover all or any portion of the Project or
any interest of Landlord therein, and to any advances made on the security
thereof, and to any increases, renewals, modifications, consolidations,
replacements, and extensions of any of such mortgages. This provision is
declared by Landlord and Tenant to be self-operative and no further instrument
shall be required to effect such subordination of this Lease. Upon demand,
however, Tenant shall execute, acknowledge, and deliver to Landlord any further
instruments and certificates evidencing such subordination as Landlord, and any
mortgagee or lessor of Landlord shall reasonably require, and if Tenant fails to
so execute, acknowledge and deliver such instruments within ten (10) days after
Landlord's request, Landlord is hereby empowered to do so in Tenant's name and
on Tenant's behalf; Tenant hereby irrevocably appoints Landlord as Tenant's
agent and attorney-in-fact for the purpose of executing, acknowledging, and
delivering any such instruments and certificates. Tenant shall not unreasonably
withhold, delay, or defer its written consent reasonable modifications in this
Lease which are a condition of any construction, interim or permanent financing
for the Project or any reciprocal easement agreement with facilities in the
vicinity of the Building, provided that such modifications do not increase the
obligations of Tenant hereunder or materially and adversely affect Tenant's use
and enjoyment of the Premises. This Lease is further subject and subordinate to:
(a) all applicable ordinances of any government authority having jurisdiction
over the Project, relating to easements, franchises, and other interests or
rights upon, across, or appurtenant to the Project; and (b) all utility
easements and agreements, now or hereafter created for the benefit of the
Project.
Section 18.2 Notwithstanding the generality of the foregoing provisions of
Section 18.1, any mortgagee or lessor of Landlord shall have the right at any
time to subordinate any such mortgage or underlying lease to this Lease, or to
any of the provisions hereof, on such terms and subject to such conditions as
such mortgagee or lessor of Landlord may consider appropriate in its discretion.
At any time, before or after the institution of any proceedings for the
foreclosure of any such mortgage, or the sale of the Building under any such
mortgage, or the termination of any underlying lease, Tenant shall, upon request
of such mortgagee or any person
30
or entities succeeding to the interest of such mortgagee or the purchaser at any
foreclosure sale ("Successor Landlord"), automatically become the Tenant (or if
the Premises has been validly subleased, the subtenant) of the Successor
Landlord, without change in the terms or other provisions of this Lease (or, in
the case of a permitted sublease, without change in this Lease or in the
instrument setting forth the terms of such sublease); provided, however, that
the Successor Landlord shall not be (i) bound by any payment made by Tenant of
Rent or Additional Rent for more than one (1) month in advance, except for a
Security Deposit previously paid to Landlord (and then only if such Security
Deposit has been deposited with and is under the control of the Successor
Landlord), (ii) bound by any termination, modification, amendment or surrender
of the Lease done without the consent of the mortgagee or ground lessor, if any,
at the time of such termination, modification, amendment or surrender. (iii)
liable for any damages or subject to any offset or defense by Tenant to the
payment of Rent by reason of any act or omission of any' prior landlord
(including Landlord), or (iv) personally or corporately liable, in any event,
beyond the limitations on landlord liability set forth in Section 25.5 of this
Lease. This agreement of Tenant to attorn to a Successor Landlord shall survive
any such foreclosure sale, trustee's sale conveyance in lieu thereof or
termination of any underlying lease. Tenant shall upon demand at any time,
before or after any such foreclosure or termination execute, acknowledge, and
deliver to the Successor Landlord any written instruments and certificates
evidencing such attornment as such Successor Landlord may reasonably require:
provided, however, that Landlord shall use its reasonable efforts to require
that such agreement provide that upon such attornment as long as Tenant is not
in default hereunder, Tenant's possession of the Premises under this Lease shall
not be disturbed.
Section 18.3 Tenant shall, from time to time, within ten (10) days after
request from Landlord, or from any mortgagee or lessor of Landlord, execute,
acknowledge and deliver in recordable form a certificate certifying, to the
extent true, that this Lease is in full force and effect and unmodified (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications); that the Term has commenced and the
full amount of the Rent then accruing hereunder; the dates to which the Rent has
been paid; that Tenant has accepted possession of the Premises and that any
improvements required by the terms of this Lease to be made by Landlord have
been completed to the satisfaction of Tenant; the amount, if any, that Tenant
has paid to Landlord as a Security Deposit; that no Rent under this Lease has
been paid more than thirty (30) days in advance of its due date (or, if there
has been such a prepayment, the amount of such prepayment); that the address for
notices to be sent to Tenant is as set forth in this Lease (or has been changed
by notice duly given and is as set forth in the certificate); that Tenant, as
of the date of such certificate, has no charge, lien, or claim of offset under
this Lease or otherwise against Rent or other charges due or to become due
hereunder: that, to the knowledge of Tenant, Landlord is not then in default
under this Lease; and such other matters as may be reasonably requested by
Landlord or any mortgagee or lessor of Landlord. Any such certificate may be
relied upon by Landlord, any Successor Landlord, or any mortgagee or lessor of
Landlord. Landlord agrees periodically to furnish, when reasonably requested in
writing by Tenant, certificates signed by Landlord containing information
similar to the foregoing information.
31
Section 18.4 No act or failure to act on the part of Landlord which would
entitle Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease, shall result in a
release of such obligations or a termination of this Lease unless (a) Tenant has
given notice by registered or certified mail to any mortgagee or lessor of
Landlord whose address shall have been furnished to Tenant, and (b) Tenant
offers such mortgagee or lessor of Landlord a reasonable opportunity with due
diligence to cure the default, including time to obtain possession of the
Premises by power of sale or judicial foreclosure, if such should prove
necessary to effect a cure.
ARTICLE 19
----------
SURRENDER OF THE PREMISES
-------------------------
Section 19.1 Upon the Expiration Date or earlier termination of this Lease,
or upon any re-entry of the Premises by Landlord without terminating this Lease
pursuant to Section 13.2(b), Tenant, at Tenant's sole cost and expense, shall
peacefully vacate and surrender the Premises to Landlord in good order, broom
clean and in the same condition as at the beginning of the Term or as the
Premises may thereafter have been improved by Landlord or Tenant (provided that
Tenant's improvements were made with Landlord's consent), reasonable use and
wear thereof and repairs which are Landlord's obligations under Articles 9, 15
and 16 only excepted, and Tenant shall remove all of Tenant's Property and turn
over all keys for the Premises to Landlord. Should Tenant continue to hold the
Premises after the expiration or earlier termination of this Lease, such holding
over, unless otherwise agreed to by Landlord in writing, shall constitute and be
construed as a tenancy at sufferance at monthly installments of Rent equal the
greater of to two hundred percent (200%) of the monthly portion of Rent in
effect as of the date of expiration or earlier termination or two hundred
percent (200%) of the fair market rental value of the Premises, and subject to
all of the other terms, charges and expenses set forth herein except any right
to renew this Lease or to expand the Premises or any right to additional
services. Tenant shall also be liable to Landlord for all damage which Landlord
suffers because of any holding over by Tenant, and Tenant shall indemnify
Landlord against all claims made by any other tenant or prospective tenant
against Landlord resulting from delay by Landlord in delivering possession of
the Premises to such other tenant or prospective tenant. The provisions of this
Article 19 shall survive the expiration or earlier termination of this Lease.
ARTICLE 20
----------
LANDLORD'S RIGHT TO INSPECT
---------------------------
Section 20.1 Landlord shall retain duplicate keys, cards, access codes or
other access means to all doors of the Premises. Tenant shall provide Landlord
with new keys should Tenant
32
receive Landlord's consent to change the locks. Landlord shall have the right to
enter the Premises at reasonable hours (or, in the event of an emergency, at any
hour) (a) to exhibit the same to present to prospective mortgagees, lessors or
purchasers during the Term and to prospective tenants during the last year of
the Term. (b) to inspect the Premises. (c) to confirm that Tenant is complying
with all of Tenant's covenants and obligations under this Lease. (d) to clean or
make repairs required of Landlord under the terms of this Lease. (e) to make
repairs to areas adjoining the Premises, and (f) to repair and service utility
lines or other components of the Building; provided, however, Landlord shall use
reasonable efforts to minimize interference with Tenant's business. Landlord
shall not be liable to Tenant for the exercise of Landlord's rights under this
Article 20 and Tenant hereby waives any claims for damages for any injury,
inconvenience or interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby.
ARTICLE 21
----------
SECURITY DEPOSIT
----------------
Section 21.1 Tenant's Security Deposit shall be held by Landlord, without
liability for interest except to the extent required by law, as security for the
performance of Tenant's obligations under this Lease. Unless required by
applicable law, Landlord shall not be required to keep the Security Deposit
segregated from other funds of Landlord. Tenant shall not assign or in a any way
encumber the Security Deposit. Upon the occurrence of any Event of Default by
Tenant, Landlord shall have the right, without prejudice to any other remedy, to
use the Security Deposit, or portions thereof, to the extent necessary to pay
any arrearages in Rent, and any other damage, injury or expense. Following any
such application of all or any portion of the Security Deposit, Tenant shall pay
to Landlord, on demand, the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, any remaining balance of the Security Deposit shall be promptly
returned to Tenant, provided that Tenant surrenders the Premises without damage
pursuant to Article 19 hereof. If Landlord transfers its interest in the
Premises during the Term, Landlord shall assign the Security Deposit to the
transferee, and thereafter Landlord shall have no further liability to Tenant
for the Security Deposit. Notwithstanding anything contained herein to the
contrary, after the third (3rd) anniversary of the Commencement Date, Tenant may
request that Landlord decrease the amount of Security Deposit to S5,999,94.
Landlord will agree to such decrease so long as Tenant has not been in default
under this Lease during the preceding three (3) years.
33
ARTICLE 22
----------
BROKERAGE
---------
Section 22.1 Tenant and Landlord each represent and warrant to the other
that it has not entered into any agreement with, or otherwise had any dealings
with, any broker or agent in connection with the negotiation or execution of
this Lease which could form the basis of any claim by any such broker or agent
for a brokerage fee or commission, finder's fee, or any other compensation of
any kind or nature in connection herewith, other than with Brokers, and each
party shall, and hereby agrees to, indemnify and hold the other harmless from
all costs (including court costs, investigation costs, and attorneys' fees),
expenses, or liability for commissions or other compensation claimed by any
broker or agent with respect to this Lease which arise out of any agreement or
dealings, or alleged agreement or dealings, between the indemnifying party and
any such agent or broker, other than with Brokers. Landlord is responsible for
paying the Brokers pursuant to separate agreements with the Brokers. This
provision shall survive the expiration or earlier termination of this Lease.
ARTICLE 23
----------
OBSERVANCE OF RULES AND REGULATIONS
-----------------------------------
Section 23.1 Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with all Rules and
Regulations (herein so called) attached to this Lease as such Rules and
Regulations may be changed from time to time. Landlord shall at all times have
the right to make reasonable changes in and additions to such Rules and
Regulations: provided Landlord gives Tenant prior notice of such changes and
provided that such new rules and regulations or changes in existing rules and
regulations do not conflict with this Lease, and do not materially interfere
with the lawful conduct of Tenant's business in the Premises. Any failure by
Landlord to enforce any of the Rules and Regulations now or hereafter in effect,
either against Tenant or any other tenant in the Building, shall not constitute
a waiver of any such Rules and Regulations. Landlord shall not be liable to
Tenant for the failure or refusal by any other tenant, guest, invitee, visitor,
or occupant of the Building to comply with any of the Rules and Regulations.
ARTICLE 24
----------
NOTICES
-------
Section 24.1 All notices, consents, demands, requests, documents, or other
communications (other than payment of Rent) required or permitted hereunder
(collectively,
34
"notices") shall be deemed given, whether actually received or not, upon
delivery by hand or delivery by air express courier (with signed receipts) to
the other party, or on the second Business Day after deposit in the United
States mail, postage prepaid, certified, return receipt requested, except for
notice of change of address which shall be deemed given only upon actual
receipt. The addresses of the parties for notices are set forth in Article 1, or
any such other addresses subsequently specified by each party in notices given
pursuant to this Section 24.1.
ARTICLE 25
----------
MISCELLANEOUS
-------------
Section 25.1 Professional Fees. In any action or proceeding brought by
-----------------
either party against the other under this Lease, the prevailing party shall be
entitled to recover from the other party its professional fees for attorneys,
appraisers and accountants, its investigation costs, and any other legal
expenses and court costs incurred by the prevailing party in such action or
proceeding.
Section 25.2 Reimbursements. Wherever the Lease requires Tenant to
--------------
reimburse Landlord for the cost of any item, such costs will be the reasonable
and customary charge periodically established by Landlord for such item.
Landlord shall keep in its on-site manager's office a schedule of such charges
(which Landlord may periodically change) for Tenant's examination. The schedule
of charges may include, at the discretion of Landlord, a reasonable allocation
of overhead, administrative, and related costs and a reasonable fee for
Landlord's agent or manager who performs such services or arranges for
performance of such services. All such charges shall be payable upon demand as
Additional Rent.
Section 25.3 Severability. Every agreement contained in this Lease is, and
------------
shall be construed as, a separate and independent agreement. If any term of this
Lease or the application thereof to any person or circumstances shall be
invalid or unenforceable, the remaining agreements contained in this Lease shall
not be affected.
Section 25.4 Non-Merger. There shall be no merger of this Lease with any
----------
ground leasehold interest or the fee estate in the Project or any part thereof
by reason of the fact that the same person may acquire or hold, directly or
indirectly, this Lease or any interest in this Lease as well as any ground
leasehold interest or fee estate in the Project or any interest in such fee
estate.
Section 25.5 Landlord's Liability. Anything contained in this Lease to the
--------------------
contrary notwithstanding, Tenant agrees that Tenant shall look solely to the
estate and property of Landlord in the Project, including all applicable
insurance proceeds, for the collection of any judgment or other judicial process
requiring the payment of money by Landlord for any default
35
or breach by Landlord under this Lease, subject, however, to the prior rights of
any mortgagee or lessor of the Project. No other assets of Landlord or any
partners, shareholders, or other principals of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim.
Section 25.6 Force Majeure. Whenever the period of time is herein
-------------
prescribed for action to be taken by Landlord or Tenant, Landlord or Tenant
shall not be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to force majeure, which
term shall include strikes, riots, acts of God, shortages of labor or materials,
war, governmental approvals, laws, regulations, or restrictions, or any other
cause of any kind whatsoever which is beyond the reasonable control of Landlord
or Tenant. Force Majeure shall not excuse or delay Tenant's obligation to Rent
or any other amount due under this Lease.
Section 25.7 Headings. The article headings contained in this Lease are for
--------
convenience only and shall not enlarge or limit the scope or meaning of the
various and several articles hereof. Words in the singular number shall be held
to include the plural, unless the context otherwise requires. All agreements and
covenants herein contained shall be binding upon the respective heirs, personal
representatives, and successors and assigns of the parties thereto.
Section 25.8 Successors and Assigns. All agreements and covenants herein
----------------------
contained shall be binding upon the respective heirs, personal representatives,
successors and assigns or the parties hereto. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several. If
there is a guarantor of Tenant's obligations hereunder, Tenant's obligations
shall be joint and several obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant hereunder before proceeding
against such guarantor, and any such guarantor shall not be released from its
guarantee for any reason, including any amendment of this Lease, any forbearance
by Landlord or waiver of any of Landlord's rights, the failure to give Tenant or
such guarantor any notices, or the release of any party liable for the payment
or performance of Tenant's obligations hereunder. Notwithstanding the foregoing,
nothing contained in this Section 25.8 shall be deemed to override Article 8.
Section 25.9 Landlord's Representations. Neither Landlord nor Landlord's
--------------------------
agents or brokers have made any representations or promises with respect to the
Premises, the Building, the Parking Facility, the Land, or any other portions of
the Project except as herein expressly set forth and all reliance with respect
to any representations or promises is based solely on those contained herein. No
rights, easements, or licenses are acquired by Tenant under this Lease by
implication or otherwise except as, and unless, expressly set forth in this
Lease.
Section 25.10 Entire Agreement: Amendments. This Lease and the Exhibits and
----------------------------
Riders attached hereto set forth the entire agreement between the parties and
cancel all prior negotiations, arrangements, brochures, agreements, and
understandings, if any, between
36
Landlord and Tenant regarding the subject matter of this Lease. No amendment or
modification of this Lease shall be binding or valid unless expressed in writing
executed by both parties hereto and, as more fully provided under Section 18.2
above, shall not be binding without the consent of any then existing mortgagee
or ground lessor.
Section 25.11 Tenant's Authority. If Tenant signs as a corporation,
------------------
execution hereof shall constitute a representation and warranty by Tenant that
Tenant is a duly organized and existing corporation, that Tenant has been and is
qualified to do business in the State of Illinois and in good standing with the
State of Illinois, that the corporation has full right and authority to enter
into this Lease, and that all persons signing on behalf of the corporation were
authorized to do so by appropriate corporate action. If Tenant signs as a
partnership, trust, or other legal entity, execution hereof shall constitute a
representation and warranty by Tenant that Tenant has complied with all
applicable laws, rules, and governmental regulations relative to Tenant's right
to do business in the State of Illinois, that such entity has the full right and
authority to enter into this Lease, and that all persons signing on behalf of
Tenant were authorized to do so by any and all necessary or appropriate
partnership, trust, or other actions.
Section 25.12 Governing Law. This Lease shall be governed by and construed
-------------
under the laws of the State of Illinois. Any action brought to enforce or
interpret this Lease shall be brought in the court of appropriate jurisdiction
in Xxxx County, Illinois. Should any provision of this Lease require judicial
interpretation, Landlord and Tenant hereby agree and stipulate that the court
interpreting or considering same shall not apply the presumption that the terms
hereof shall be more strictly construed against a party by reason of any rule or
conclusion that a document should be construed more strictly against the party
who itself or through its agents prepared the same, it being agreed that all
parties hereto have participated in the preparation of this Lease and that each
party had full opportunity to consult legal counsel of its choice before the
execution of this Lease.
Section 25.13 Tenant's Use of Name of the Building. Tenant shall not,
------------------------------------
without the prior written consent of Landlord, use the name of the Building for
any purpose other than as the address of the business to be conducted by Tenant
in the Premises, and Tenant shall not do or permit the doing of anything in
connection with Tenant's business or advertising (including brokers' flyers
promoting sublease space) which in the reasonable judgment of Landlord may
reflect unfavorably on Landlord or the Building or confuse or mislead the public
as to any apparent connection or relationship between Tenant and Landlord, the
Building, or the Land.
Section 25.14 Adjacent Lights. Any elimination or shutting off of light,
---------------
air, or view by any structure which may be erected on lands adjacent to the
Building shall in no way affect this Lease and Landlord shall have no liability
to Tenant with respect thereto.
Section 25.15 Chances to Project by Landlord. Landlord shall have the
------------------------------
unrestricted right to make changes to all portions of the Project in Landlord's
reasonable discretion for the
37
purpose of improving access or security to the Project or the flow of pedestrian
and vehicular traffic therein. Landlord shall have the right at any time,
without the same constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor, to change the arrangement or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, bathrooms, or any other Common Areas so long as reasonable access to the
Premises remains available. Landlord shall also have the right to (a) rearrange.
change, expand or contract portions of the Project constituting Common Areas (b)
to use Common Areas while engaged in making improvements, repairs or alterations
to the Project, or any portion thereof, and (c) to do and perform such other
acts and make such other changes in to or with respect to the Project, or any
portion thereof, as Landlord may, in the exercise of sound business judgment,
deem to be appropriate. Landlord shall be entitled to change the name or address
of the Building or the Project. Landlord shall have the right to close, from
time to time, the Common Areas and other portions of the Project for such
temporary periods as Landlord deems legally sufficient to evidence Landlord's
ownership and control thereof and to prevent any claim of adverse possession by,
or any implied or actual dedication to, the public or any party other than
Landlord.
Section 25.16 Time of Essence. Time is of the essence of this Lease.
---------------
Section 25.17 Landlord's Acceptance of Lease. The submission of this Lease
------------------------------
to Tenant shall not be construed as an offer and Tenant shall not have any
rights with respect thereto unless said Lease is consented to by mortgagee, and
any lessor of Landlord, to the extent such consent is required, and Landlord
executes a copy of this Lease and delivers the same to Tenant.
Section 25.18 Performance by Tenant. All covenants and agreements to be
---------------------
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant, at Tenant's sole cost and expense, and without any abatement of Rent. If
Tenant shall fail to pay any Rent, other than Base Rent, required to be paid by
it hereunder or shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for longer than the period of cure,
if any, permitted in Section 13.1, Landlord may, at its option, without waiving
or releasing Tenant from obligations of Tenant, make any such payment or perform
any such other act on behalf of Tenant. All sums so paid by Landlord/and all
necessary incidental costs, together with interest thereon at the Interest Rate,
from the date of such payment by Landlord, shall be payable to Landlord on
demand. Tenant covenants to pay any such sums, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of the non-payment thereof by Tenant as in the case of default by
Tenant in the payment of Rent.
Section 25.19 Financial Statements. At any time during the term of this
--------------------
Lease, Tenant shall, upon twenty (20) days prior written notice from Landlord,
provide Landlord with a current financial statement and financial statements of
the two (2) years prior to the current financial
38
statement year. Such statement shall be prepared in accordance with generally
accepted accounting principles and, if such is the normal practice of Tenant,
shall be audited by an independent certified public accountant.
Section 25.20 Signage. Tenant shall be entitled to Building standard
-------
identification in the Building directory and Building standard identification on
the entrance to the Premises.
ARTICLE 26
----------
SUBSTITUTION SPACE
------------------
Section 26.1 Landlord shall have the right at any time prior to the end of
the Term of this Lease, or any renewal or extension hereof, to substitute,
instead of the Premises, other space within the Building (which space shall have
a Net Rentable Area, as reasonably determined by Landlord, of not less than 90%
of the Net Rentable Area in the Premises as of the date of such substitution)
hereinafter called the "Substitution Space". The Substitution Space shall be in
a commercially reasonable configuration.
Section 26.2 If Landlord desires to exercise such right prior to the
Commencement Date. Landlord shall give written notice thereof to Tenant not
later than thirty (30) days prior to the effective date of such substitution,
which notice shall specify the Substitution Space in question and the
description of the Premises set forth in the Lease shall, without further act on
the part of Landlord or Tenant, be deemed amended so that the Substitution Space
shall, for all purposes, be deemed the Premises hereunder and all of the terms,
covenants, conditions, provisions, and agreements of this lease, including those
agreements to pay Rent, appropriately adjusted based upon the square footage of
the Substitution Space. shall continue in full force and effect and shall apply
to the Substitution Space.
Section 26.3 If Landlord desires to exercise such right after the
Commencement Date. Landlord shall give Tenant at least sixty (60) days' prior
written notice thereof specifying the effective date of such substitution,
whereupon, as of such effective date: (a) the description of the Premises set
forth in this lease shall, without further act on the part of Landlord or
Tenant, be deemed amended so that the Substitution Space shall, for all
purposes, be deemed the Premises hereunder, and all of the terms, covenants,
conditions, provisions, and agreements of this Lease, including those agreements
to pay Rent, shall continue in full force and effect and shall apply to the
Substitution Space. and (b) Tenant shall move from the present Premises into
the Substitution Space and shall vacate and surrender possession to Landlord of
the present Premises. and if Tenant continues to occupy the present Premises
after such effective date, then thereafter, during the period of such holdover
occupancy in the present Premises, Tenant shall pay Rent for the present
Premises as set forth in this Lease. in addition to the Rent for the
Substitution Space at the above-described rates. Tenant shall accept possession
of the
39
Substitution Space in its "as-is" condition as of such effective date, except
that any painted surfaces shall be either cleaned or repainted and any carpeting
shall be either replaced or cleaned so that they are in a similar condition
to the painting and carpeting in the Premises and if the Central systems of the
Building through which Tenant will obtain telephone and electrical services in
the Substitution Space is not capable of providing the same or better services
to the Substitution Space as is provided to the Premises prior to such
relocation. Landlord shall provide such Central systems for telephone and
electrical services to the Substitution Space, including. without limitation,
any so called T-1 communications lines available to the present Premises.
Section 26.4 Notwithstanding the provisions of Section 26.3 above, if
Landlord exercises its right to substitute the Substitution Space for the
Premises after the Commencement Date, then Tenant shall have the option to
require Landlord to alter the Substitution Space in a similar manner as the
present Premises were delivered to Tenant. Such option shall be exercised, if at
all, by notice from Tenant to Landlord within fifteen (15) days after the
aforesaid notice from Landlord to Tenant of such proposed substitution;
otherwise, such option in favor of Tenant shall be null and void. Tenant shall
not have the right to exercise such option at any time when Tenant is in default
under any of the terms, covenants, conditions, provisions, or agreements of this
Lease. If such option is validly so exercised by Tenant: (a) Tenant shall
continue to occupy the present Premises (upon all of the terms, covenants,
conditions, provisions, and agreements of this Lease, including the covenant for
the payment of Rent) until the date on which Landlord shall have substantially
completed such alteration work in the Substitution Space: and (b) Tenant shall
move from the present Premises into the Substitution Space within seven (7) days
after the date of such substantial completion by Landlord and shall vacate and
surrender possession to Landlord of the present Premises after such date, then,
thereafter during the period of such occupancy, Tenant shall pay Rent for the
present Premises as set forth in this lease in addition to the Rent for the
Substitution Space at the above-described rates. With respect to such alteration
work in the Substitution Space, if Tenant requests materials or installations
other than those originally installed by Landlord, or if Tenant shall make
changes in the work (such non-original materials or installations or changes
being subject to Landlord's prior written approval), and if such non-original
materials or installations or changes shall delay the work to be performed by
Landlord, or if Tenant shall otherwise delay the substantial completion of the
work, the occurrence of such delays shall in no event postpone the date for the
commencement of the payment of Rent for such Substitution Space beyond the date
on which such work would have been substantially completed but for such delays,
and in addition, Tenant shall continue to pay Rent for the present Premises as
set forth in this Lease until it vacates and surrenders same as aforesaid.
Landlord at its discretion may substitute materials of like quality for the
materials originally utilized.
Section 26.5 If Landlord exercises this relocation right after the
Commencement Date. Landlord shall reimburse Tenant for Tenant's reasonable
out-of-pocket expenses for moving Tenant's furniture, equipment, supplies and
telephones and telephone equipment and other communications equipment from the
present Premises to the Substitution Space and for reprinting Tenant's
stationery of the same quality and quantity of Tenant's stationery supply on
40
hand immediately prior to Landlord's notice to Tenant of the exercise of this
substitution right.
ARTICLE 27
----------
OTHER DEFINITIONS
-----------------
When used in this Lease, the terms set forth hereinbelow shall have the
following meanings: (a) "Building Standard" means the quality of materials,
finishes and workmanship from time to time specified by Landlord for the
Building. (b) "Business Days" shall mean Monday through Friday (except for
Holidays); "Business Hours" shall mean 8:00 a.m. to 6:00 p.m. on Monday through
Friday and 9:00 a.m. to 1:00 p.m. on Saturdays (except for Holidays); and
"Holidays" shall mean those holidays designated by Landlord, which holidays
shall be consistent with those holidays designated by landlords of other
first-class office buildings in the Chicago suburban area. (c) "Central" shall
be defined as that portion of any Building system or component which is within
the core and/or common to and/or serves or exists for the benefit of other
tenants in the Building. (d) "Common Areas" shall mean those certain areas and
facilities of the Building and the Parking Facility and those certain
improvements to the Land which are from time to time provided by Landlord for
the use of tenants of the Building and their employees, clients, customers,
licensees and invitees or for use by the public, which facilities and
improvements include any and all corridors, elevator foyers, vending areas,
bathrooms, electrical and telephone rooms, mechanical rooms, janitorial areas
and other similar facilities of the Building and of the Parking Facility and any
and all grounds, parks, landscaped areas, outside sitting areas, sidewalks,
walkways, tunnels, pedestrianways, skybridges, and generally all other
improvements located on the Land, or which connect the Land to other buildings.
(e) The words "day" or "days" shall refer to calendar days, except where
"Business Days" are specified. (f) The words "herein", "hereof", "hereby",
"hereunder" and words of similar import shall be construed to refer to this
Lease as a whole and not to any particular Article or Section thereof unless
expressly so stated. (g) The words "include" and "including" shall be construed
as if followed by the phrase "without being limited to." (h) Reference to
Landlord as having "no liability to Tenant" or being "without liability to
Tenant" or words of like import shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of Tenant's other obligations hereunder, or to be compensated
for loss or injury suffered or to enforce any other right or kind of liability
whatsoever against Landlord under or with respect to this Lease or with respect
to Tenant's use or occupancy of the Premises. (i) A "repair" shall be deemed to
include such rebuilding, replacement and restoration as may be necessary to
achieve and maintain good working order and condition. (j) The "termination of
this Lease" and words of like import includes the expiration of the Term or the
cancellation of this Lease pursuant to any of the provisions of this Lease or to
law. Upon the termination of this Lease, the Term shall end at 11:59 p.m. on the
date of termination as if such date were the Expiration Date, and neither party'
shall have any further obligation or liability to the other after
41
such termination except (i) as shall be expressly provided for in this Lease and
(ii) for such obligations as by their nature or under the circumstances can only
be, or by the provisions of this Lease, may be, performed after such termination
and, in any event, unless expressly otherwise provided in this Lease, any
liability for a payment (which shall be apportioned as of the date of such
termination) which shall have accrued to or with respect to any period ending at
the time of termination shall survive the termination of this Lease. (k) The
"terms of this Lease" shall be deemed to include all terms, covenants,
conditions, provisions, obligations, limitations, restrictions, reservations and
agreements contained in this Lease. (l) "Tenant" shall be deemed to include
Tenant's successors and assigns (to the extent permitted by Landlord) and any
and all occupants of the Premises permitted by Landlord and claiming by, through
or under Tenant. (m) A "year" shall mean a calendar year.
ARTICLE 28
----------
CANCELLATION
------------
Tenant shall have the option, to be exercised as hereinafter provided, to
terminate the term of this Lease effective as of the day before the third (3rd)
anniversary of the Commencement Date (the "Termination Date"). Such option shall
be exercised, if at all, time being of the essence, by written notice (the
Termination Notice") given by Tenant to Landlord no later than nine (9) months
prior to the Termination Date, and subject to payment by Tenant to Landlord of
the sum of $12,218.00 (the "Termination Fee"). The Termination Fee shall be paid
by Tenant simultaneously with the giving of the Termination Notice. Tenant may
not, unless Landlord otherwise agrees, exercise its option to terminate this
Lease pursuant to this Article 28 at any time at which a default by Tenant
exists under this Lease, and no such termination shall be effective if such
default exists unless Landlord otherwise agrees. Any notice of exercise of
Tenant's option to terminate the term of this Lease pursuant to this Article 28
shall be irrevocable by Tenant once given. If Tenant so exercises its option to
terminate the term of this Lease and pays to Landlord the Termination Fee as
above provided, then effective as of the Termination Date, this Lease shall be
deemed to have expired by lapse of time as if the Termination Date were the
originally stated Expiration Date, and Tenant shall return the Premises to
Landlord on the Termination Date in accordance with the requirements of this
Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have set their hands and Seals
hereunto and have caused this Lease to be executed by duly authorized officials
thereof, as of the day and year set forth on the cover page hereof.
LANDLORD:
XXXXXXXX PROPERTIES
ACQUISITION PARTNERS, L.P., a
Delaware limited partnership
By: Xxxxxxxx Properties I, Inc..
general partner
By:/s/ L X. Xxxxxxx
-----------------------------
Name: L X. Xxxxxxx
------------------------
Title: EVP
-----------------------
By:/s/ J Xxxxx Xxxxxxx
-----------------------------
Name: J Xxxxx Xxxxxxx
------------------------
Title: Vice President
-----------------------
TENANT:
INTERACTIVE COUPON
MARKETING GROUP, INC., a
Michigan corporation
By:/s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
------------------------
Title: President
-----------------------
43
