Exhibit 99.1
LEASE
by and between
SMII OAK CREEK/LP, L.P.,
a Delaware limited partnership
("Landlord")
--------
and
XXXXXX.XXX, INC.,
a Delaware corporation
("Tenant")
------
Dated as of
December 21, 2006
LEASE
-----
THIS LEASE is made between SMII OAK CREEK/LP, L.P., a Delaware limited
partnership ("Landlord"), and the Tenant described in Item 1 of the Basic Lease
Provisions.
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to all of the terms and conditions set forth herein, those
certain premises (the "Premises") described in Item 3 of the Basic Lease
Provisions and as shown in the drawing attached hereto as Exhibit A-1. The
Premises are located in the Building described in Item 2 of the Basic Lease
Provisions. The Building is located on that certain land (the "Land") more
particularly described on Exhibit A-2 attached hereto, which is also improved
with landscaping, parking facilities and other improvements, fixtures and common
areas and appurtenances now or hereafter placed, constructed or erected on the
Land (sometimes referred to herein as the "Project").
BASIC LEASE PROVISIONS
1. Tenant: Xxxxxx.xxx, Inc., a Delaware
corporation ("Tenant")
2. Building: Darien Business Center
0000 X. Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
3. Description of Premises: Suite(s): 101
Rentable Area: 18,780 square feet
4. Tenant's Proportionate Share: 31.9388% (18,780 rsf /
58,800 rsf) (See Paragraph 3)
5. Basic Annual Rent: (See Paragraph 2)
Months 1 to 4, inclusive:
Monthly Installment: $0.00 (Basic Annual Rent is
abated)
Months 5 to 12, inclusive:
Monthly Installment: $17,230.65 ($11.01/square foot
of Rentable Area/annum)
Months 13 to 14, inclusive:
Monthly Installment: $0.00 (Basic Annual Rent is
abated)
Months 15 to 24, inclusive:
Monthly Installment: $17,747.10 ($11.34/square foot
of Rentable Area/annum)
Months 25 to 26, inclusive:
Monthly Installment: $0.00 (Basic Annual Rent is
abated)
Months 27 to 36, inclusive:
Monthly Installment: $18,279.20 ($11.68/square foot
of Rentable Area/annum)
Months 37 to 48, inclusive:
Monthly Installment: $18,826.95 ($12.03/square foot
of Rentable Area/annum)
Months 49 to 60, inclusive:
Monthly Installment: $19,390.35 ($12.39/square foot
of Rentable Area/annum)
Months 61 to 72, inclusive:
Monthly Installment: $19,969.40 ($12.76/square foot
of Rentable Area/annum)
Months 73 to 84, inclusive:
Monthly Installment: $20,564.10 ($13.14/square foot
of Rentable Area/annum)
6. Installment Payable Upon Execution: $17,230.65 (to be applied to the
monthly installment due for
Month 5 of the Initial Term)
7. Existing Security Deposit Held by
Landlord: $1,799.17 (See Paragraph 2(c))
8. [Intentionally Deleted] [Intentionally Deleted]
9. Initial Term: Eighty-four (84) months,
commencing on the Commencement
Date and ending on the day
immediately preceding the
eighty-fourth (84th) month
anniversary of the Commencement
Date (See Paragraph 1)
10. Commencement Date: January 1, 2007
11. Termination Date: December 31, 2013
12. Broker(s) (See Paragraph 19(k)):
Landlord's Broker: The Alter Group, Ltd.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Tenant's Broker: Staubach Midwest, LLC
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
13. Number of Parking Spaces: Ninety-four (94) uncovered,
unreserved parking spaces at no
additional charge to Tenant
throughout the Initial Term (See
Paragraph 18)
14. Addresses for Notices:
To: TENANT: To: LANDLORD:
------ --------
Prior to occupancy of the Premises: Project Management Office:
The Alter Group, Ltd.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
2
After occupancy of the Premises: With a copy to:
Xxxxxx.xxx, Inc. KBS Realty Advisors, LLC
0000 X. Xxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000 Suite 1300 Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx, Senior
Vice President
15. Place of Payment All payments payable under
this Lease shall be sent
to Landlord at the
Project Management
Office at the address
specified in Item 14 or
to such other address as
Landlord may designate
in writing.
16. Guarantor: None
17. Date of this Lease: See cover page
18. Additional TI Allowance: Up to $104,000.00
(See Exhibit B-2)
19. The "State" is the State of Illinois.
This Lease consists of the foregoing introductory paragraphs and Basic Lease
Provisions, the provisions of the Standard Lease Provisions (the "Standard Lease
Provisions") (consisting of Paragraphs 1 through 19 which follow) and Exhibits
A-1 through A-2 and Exhibits B through Exhibit G, and the following Addenda:
Addendum One (One Renewal Option at Market); Addendum Two (Right of First
Offer); Addendum Three (Cancellation Option); and Addendum Four (Signage
Rights), all of which are incorporated herein by this reference. In the event of
any conflict between the provisions of the Basic Lease Provisions and the
provisions of the Standard Lease Provisions, the Standard Lease Provisions shall
control.
3
STANDARD LEASE PROVISIONS
1. TERM
----
(a) The Initial Term of this Lease and the Rent (defined below) shall
commence on January 1, 2007 (the "Commencement Date"). Unless
earlier terminated in accordance with the provisions hereof, the
Initial Term of this Lease shall be the period shown in Item 9 of
the Basic Lease Provisions. As used herein, "Lease Term" shall
mean the Initial Term referred to in Item 9 of the Basic Lease
Provisions, subject to any extension of the Initial Term hereof
exercised in accordance with the terms and conditions expressly
set forth herein. This Lease shall be a binding contractual
obligation effective upon execution hereof by Landlord and Tenant,
notwithstanding the later commencement of the Initial Term of this
Lease. The terms "Tenant Improvements" and "Substantial
Completion" or "Substantially Completed" are defined in the
attached Exhibit B Work Letter. "Tenant Delays" consist of those
delays defined in Exhibit B.
(b) The Premises are occupied by Tenant prior to the Commencement Date
under that certain Prior Lease (defined in Article 19(z).
(c) Upon Substantial Completion of the Tenant Improvements, Landlord
shall prepare and deliver to Tenant, Tenant's Initial Certificate
in the form of Exhibit F attached hereto (the "Certificate") which
Tenant shall acknowledge by executing a copy and returning it to
Landlord.
2. BASIC ANNUAL RENT AND SECURITY DEPOSIT
--------------------------------------
(a) Tenant agrees to pay during each month of the Lease Term as Basic
Annual Rent ("Basic Annual Rent") for the Premises the sums shown
for such periods in Item 5 of the Basic Lease Provisions.
(b) Except as expressly provided to the contrary herein, Basic Annual
Rent shall be payable in equal consecutive monthly installments,
in advance, without demand, deduction or offset, commencing on the
Commencement Date and continuing on the first day of each calendar
month thereafter until the expiration of the Lease Term. The first
full monthly installment of Basic Annual Rent shall be payable
upon Tenant's execution of this Lease. The obligation of Tenant to
pay Rent and other sums to Landlord and the obligations of
Landlord under this Lease are independent obligations. If the
Commencement Date is a day other than the first day of a calendar
month, or the Lease Term expires on a day other than the last day
of a calendar month, then the Rent for such partial month shall be
calculated on a per diem basis. In the event Landlord delivers
possession of the Premises to Tenant prior to the Commencement
Date, Tenant agrees it shall be bound by and subject to all terms,
covenants, conditions and obligations of this Lease during the
period between the date possession is delivered and the
Commencement Date, other than the payment of Basic Annual Rent, in
the same manner as if delivery had occurred on the Commencement
Date.
(c) Landlord acknowledges that Tenant has paid Landlord the security
deposit (the "Security Deposit") in Item 7 of the Basic Lease
Provisions as security for the performance of the provisions
hereof by Tenant. Landlord shall not be required to keep the
Security Deposit separate from its general funds and Tenant shall
not be entitled to interest thereon.
If Tenant is in Default after all applicable cure periods, with respect
to any provision of this Lease, including, without limitation, the provisions
relating to the payment of Rent or the cleaning of the Premises upon the
termination of this Lease, Landlord may, but shall not be required to, use,
apply or retain all or any part of the Security Deposit (i) for the payment of
any Rent or any other sum in default, (ii) for the payment of any other amount
which Landlord may spend or become obligated to spend by reason of Tenant's
default hereunder, or (iii) to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's default hereunder, including,
without limitation, costs and reasonable attorneys' fees incurred by Landlord to
recover possession of the Premises following a default by Tenant hereunder. If
any portion of the Security Deposit is so used or applied, Tenant shall, upon
demand therefor, deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to the appropriate amount, as determined hereunder. If
Tenant shall fully perform every provision of this Lease to be performed by it,
the Security Deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder) within
thirty (30) days following the expiration of the Lease Term; provided, however,
that Landlord may retain the Security Deposit until such time as any amount due
from Tenant in accordance with Paragraph 3 below has been determined and paid to
Landlord in full.
4
(d) The parties agree that for all purposes hereunder the Premises
shall be stipulated to contain the number of square feet of
Rentable Area described in Item 3 of the Basic Lease Provisions.
3. ADDITIONAL RENT
---------------
(a) "Tenant's Share of Real Estate Taxes", it is further agreed
between the parties hereto that in addition to the rental provided
for herein that Tenant will also pay during the term of this
Lease, as additional rent, an amount equal to Tenant's Share of
the Real Estate Taxes.
(b) "Tenant's Proportionate Share of Operating Costs", it is further
agreed between the parties hereto that in addition to the rental
provided for herein that Tenant shall also pay during the term of
this Lease, as additional rent, an amount equal to Tenant's
Proportionate Share of the Operating Costs, unless abated as
expressly set forth in this Lease.
(c) "Tenant's Proportionate Share" is, subject to the provisions of
Paragraph 18, the percentage number described in Item 4 of the
Basic Lease Provisions. Tenant's Proportionate Share represents,
subject to the provisions of Paragraph 18, a fraction, the
numerator of which is the number of square feet of Rentable Area
in the Premises and the denominator of which is the number of
square feet of Rentable Area in the Project, as determined by
Landlord pursuant to Paragraph 18.
(d) The term "Real Estate Taxes" means any and all taxes of every kind
and nature whatsoever which Landlord shall pay or become obligated
to pay during a calendar year (regardless of whether such taxes
were assessed or became a lien during, prior or subsequent to the
calendar year of payment) because of or in connection with the
ownership, leasing and operation of the Project, including without
limitation, real estate taxes, personal property taxes, sewer
rents, water rents, special assessments, transit taxes, legal fees
and court costs charged for the protest or reduction of property
taxes and/or assessments or an increase therein in connection with
the Premises including the Building, any tax or excise on rent or
any other tax (however described) on account of rental received
for use and occupancy of any or all of the Building and/or the
Premises, whether any such taxes are imposed by the United States,
the state or other local governmental municipality, authority or
agency or any political subdivision of any thereof in the
jurisdiction in which the Project is located. Real Estate Taxes
shall not include any estate, inheritance successor, transfer,
gift, franchise, corporation, income or profit tax imposed by the
State or federal government on Landlord unless such income,
franchise, transfer or profit taxes are in substitution for any
Real Estate Taxes payable hereunder; and
(e) "Operating Costs" means all costs, expenses and obligations
incurred or payable by Landlord in connection with the operation,
ownership, management, repair or maintenance of the Building and
the Project during or allocable to the Lease Term, including
without limitation, the following:
(i) The cost of utilities (including taxes and other charges incurred
in connection therewith) provided to the Premises, the Building or
the Project, fuel, supplies, equipment, tools, materials, service
contracts, janitorial services, waste and refuse disposal,
gardening and landscaping; insurance, including, but not limited
to, public liability, fire, property damage, flood, rental loss,
rent continuation, boiler machinery, business interruption,
contractual indemnification and All Risk coverage insurance for up
to the full replacement cost of the Project and such other
insurance as is customarily carried by operators of other similar
class buildings in the city in which the Project is located, to
the extent carried by Landlord in its discretion, and the
deductible portion of any insured loss otherwise covered by such
insurance); the cost of compensation, including employment,
welfare and social security taxes, paid vacation days, disability,
pension, medical and other fringe benefits of all persons
(including independent contractors)
5
who perform services connected with the operation, maintenance,
repair or replacement of the Project; personal property taxes on
and maintenance and repair of equipment and other personal
property used in connection with the operation, maintenance or
repair of the Project; repair and replacement of window coverings
provided by Landlord in the premises of tenants in the Project;
such reasonable auditors' fees and legal fees as are incurred in
connection with the operation, maintenance or repair of the
Project; reasonable costs incurred for administration and
management of the Project; the maintenance of any easements or
ground leases benefitting the Project, whether by Landlord or by
an independent contractor; a reasonable allowance for depreciation
of personal property used in the operation, maintenance or repair
of the Project; license, permit and inspection fees; all costs and
expenses required by any governmental or quasi-governmental
authority or by applicable law, for any reason, including capital
improvements, whether capitalized or not, and the cost of any
capital improvements made to the Project by Landlord that improve
life-safety systems or reduce operating expenses (such costs to be
amortized over such reasonable periods as Landlord shall
reasonably determine); the cost of air conditioning, heating,
ventilating, plumbing, elevator maintenance, and repair (to
include the replacement of components) and other mechanical and
electrical systems repair and maintenance; sign maintenance; and
Common Area (defined below) repair, resurfacing, operation and
maintenance; and the cost of providing security services, if any,
deemed appropriate by Landlord.
The following items shall be excluded from Operating Costs:
(A) leasing commissions, attorneys' fees, costs and disbursements and
other expenses incurred in connection with leasing, renovating or
improving vacant space in the Project for tenants or prospective
tenants of the Project;
(B) costs (including permit, license and inspection fees) incurred in
renovating or otherwise improving or decorating, painting or
redecorating space for tenants, Tenant or vacant space or space in
the Building which would normally be occupied by tenants;
(C) Landlord's costs of any services sold to tenants or Tenant for
which Landlord is entitled to be reimbursed by such tenants as an
additional charge or rental over and above the Basic Annual Rent
and Operating Costs payable under the lease with such tenant or
Tenant or other occupant;
(D) any depreciation or amortization of the Project except as
expressly permitted herein;
(E) costs incurred due to a violation of Law (defined below) by
Landlord relating to the Project;
(F) interest on debt or amortization payments on any mortgages or
deeds of trust or any other debt for borrowed money;
(G) all items and services for which Tenant or other tenants reimburse
Landlord outside of Operating Costs;
(H) repairs or other work under Paragraph 10 of this Lease paid for
through condemnation proceeds;
(I) repairs resulting from any defect in the original design or
construction of the Project;
(J) Costs of repairs, replacements, or other work occasioned by fire,
windstorm or other casualty to the extent that Landlord is
reimbursed by insurance proceeds (except any deductible Landlord
is required to pay with respect to any of the foregoing shall be
included in Operating Costs);
(K) Leasing commissions and attorneys' fees incurred in connection
with negotiations or disputes with tenants of the Building;
6
(L) Landlord's costs of electricity and other services sold or
provided to tenants in the Building and for which Landlord is
reimbursed by such tenants or Tenant as a separate additional
charge and above the base rent or additional rent payments payable
under the lease with such tenant or Tenant;
(M) All items and services for which Tenant or any other tenant
reimburses Landlord for or with respect to which Landlord provides
without reimbursement selectively to one or more tenants or
occupants of the Project other than Tenant as a separate
additional charge and above the base rent or additional rent
payments payable under the lease with such tenant or occupants;
(N) Costs (limited to adjudicated penalties or fines and associated
legal expenses) incurred due to violation by Landlord of the terms
and conditions of any lease or rental arrangement covering space
in the Building;
(O) Payment of principal and/or interest on debt or amortization
payments of any mortgage or mortgages executed by Landlord
covering the Building (or any portion thereof), and rental
payments under any ground or underlying lease or leases;
(P) Landlord's general corporate overhead and all general
administrative overhead expenses for services not specifically
performed for the Building, except to the extent same result in a
reduction of Operating Costs with respect to the Building;
(Q) Advertising and promotional expenditures except for (i) the
Building directory and interior signs identifying retail use
tenants and signage for various equipment room and common areas,
and (ii) costs of signs in, on, or outside the Building
identifying the owner or any tenant of the Building;
(R) Penalties and interest due to a violation of law by Landlord
relating to the Building (but this provision does not relieve
Tenant of liability for penalties or interest incurred due to
violations of Law by Tenant);
(S) Salaries or other compensation paid to employees of Landlord above
the grade of asset manager, and the salary and compensation of the
asset manager shall be prorated over the portfolio of buildings in
the greater Metropolitan area being managed by an asset manager;
(T) The costs incurred in connection with correcting defects in the
initial construction of the Building (except the conditions
resulting from ordinary wear and tear and use shall not be deemed
defects for purposes of this category) to the extent that such
defects are covered by a warranty and occur during the six (6)
months prior to the given year in which the Operating Cost is
being charged, and costs of repair or replacement for any item
covered by a warranty to the extent covered by such warranty;
(U) The cost of any capital improvements except as otherwise set forth
in Paragraph 3(d)(ii) above;
(V) Any ground lease rents;
(W) Any cost for the remediation of Hazardous Materials from the
Project; and
(X) Interest and penalties due to late payments of taxes and utility
bills so long as such penalties or interest do not result from
Tenant's breach of this Lease or Tenant's failure to make timely
payment of any sum due under this Lease; and
(f) Operating Costs for any calendar year during which actual
occupancy of the Project is less than ninety-five percent (95%) of
the Rentable Area of the Project shall be appropriately adjusted
to reflect ninety-five percent (95%) occupancy of the existing
Rentable Area of the Project during such period. In determining
Operating Costs, if any services or utilities are separately
charged to tenants of the Project or others, Operating Costs shall
be adjusted by Landlord to reflect the amount of expense which
would have been incurred for such services or utilities on a full
time basis for normal Project operating hours. In the event (i)
the Commencement Date shall be a date other than January 1, (ii)
the date fixed for the expiration of the Lease Term shall be a
date other than December 31, (iii) of any early termination of
this Lease, or (iv) of any increase or decrease in the size of the
Premises, then in each such event, an appropriate adjustment in
the application of this Paragraph 3 shall, subject to the
provisions of this Lease, be made to reflect such event on a basis
determined by Landlord to be consistent with the principles
underlying the provisions of this Paragraph 3.
7
(g) Prior to the commencement of each calendar year of the Lease Term
following the Commencement Date, Landlord shall have the right to
give to Tenant a written estimate of Tenant's Proportionate Share
of the projected excess, if any, of the Operating Costs for the
Project for the ensuing year. Tenant shall pay such estimated
amount to Landlord in equal monthly installments, in advance on
the first day of each month. Within a reasonable period after the
end of each calendar year, Landlord shall furnish Tenant a
statement indicating in reasonable detail the excess of Operating
Costs for such period, if any, and the parties shall, within
thirty (30) days thereafter, make any payment or allowance
necessary to adjust Tenant's estimated payments to Tenant's actual
share of such excess as indicated by such annual statement. Any
payment due Landlord shall be payable by Tenant on demand from
Landlord. Any amount due Tenant shall be credited against
installments next becoming due under this Paragraph 3(f) or
refunded to Tenant, if requested by Tenant.
(h) [Intentionally Deleted]
(i) Tenant shall pay ten (10) days before delinquency, all taxes and
assessments (i) levied against any personal property, tenant
improvements or trade fixtures of Tenant in or about the Premises
and (ii) based upon this Lease or any document to which Tenant is
a party creating or transferring an interest in this Lease or an
estate in all or any portion of the Premises. If any such taxes or
assessments are levied against Landlord or Landlord's property or
if the assessed value of the Project is increased by the inclusion
therein of a value placed upon such personal property or trade
fixtures, Tenant shall upon demand reimburse Landlord for the
taxes and assessments so levied against Landlord, or such taxes,
levies and assessments resulting from such increase in assessed
value.
(j) Any delay or failure of Landlord in (i) delivering any estimate or
statement described in this Paragraph 3, or (ii) computing or
billing Tenant's Proportionate Share of excess Operating Costs
shall not constitute a waiver of its right to require an increase
in Rent, or in any way impair, the continuing obligations of
Tenant under this Paragraph 3. In the event of any dispute as to
any Additional Rent due under this Paragraph 3, an officer of
Tenant or Tenant's certified public accountant (but in no event
shall Tenant's certified public accountant be paid on a
contingency fee basis) shall have the right after reasonable
notice and at reasonable times to inspect Landlord's accounting
records at Landlord's accounting office. If after such inspection,
Tenant still disputes such Additional Rent, upon Tenant's written
request therefor, a certification as to the proper amount of
Operating Costs and the amount due to or payable by Tenant shall
be made by an independent certified public accountant mutually
agreed to by Landlord and Tenant. If Landlord and Tenant cannot
mutually agree to an independent certified public accountant, then
the parties agree that Landlord shall choose an independent
certified public accountant to conduct the certification as to the
proper amount of Tenant's Proportionate Share of Operating Costs
due by Tenant for the period in question; provided, however, such
certified public accountant shall not be the accountant who
conducted Landlord's initial calculation of Operating Costs to
which Tenant is now objecting. Such certification shall be final
and conclusive as to all parties. If the certification reflects
that Tenant has overpaid Tenant's Proportionate Share of Operating
Costs for the period in question, then Landlord shall credit such
excess to Tenant's next payment of Operating Costs or, at the
request of Tenant, promptly refund such excess to Tenant and
conversely, if Tenant has underpaid Tenant's Proportionate Share
of Operating Costs, Tenant shall promptly pay such additional
Operating Costs to Landlord. Tenant agrees to pay the cost of such
certification and the investigation with respect thereto and no
adjustments in Tenant's favor shall be made unless it is
determined that Landlord's original statement was in error in
Landlord's favor by more than three percent (3%). Tenant waives
the right to dispute any matter relating to the calculation of
Operating Costs or Additional Rent under this Paragraph 3 if any
claim or dispute is not asserted in writing to Landlord within one
hundred eighty (180) days after delivery to Tenant of the original
billing statement with respect thereto.
8
(k) Even though the Lease Term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's
Proportionate Share of excess Operating Costs for the year in
which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated Operating Costs paid, and
conversely, any overpayment made by Tenant shall be promptly
refunded to Tenant by Landlord.
(l) All Operating Costs and Real Estate Taxes and any other sums
payable by Tenant to Landlord under this Lease (except Basic
Annual Rent) shall be "Additional Rent". The Basic Annual Rent, as
adjusted pursuant to Paragraphs 2, 3 and 7, and other amounts
required to be paid by Tenant to Landlord hereunder, are sometimes
collectively referred to as, and shall constitute, "Rent".
(m) Tenant shall not be obligated to pay for Controllable Operating
Costs in any year to the extent they have increased by more than
five percent (5%) per annum, compounded annually on a cumulative
basis from the first calendar year during the Lease Term. For
purposes of this Lease, Controllable Operating Costs shall mean
all Operating Costs except for Taxes, insurance premiums and
utility costs and all costs and expenses for security for the
Building and the Project. Controllable Operating Costs shall be
determined on an aggregate basis and not on an individual basis,
and the cap on Controllable Operating Costs shall be determined on
Operating Costs as they have been adjusted for vacancy or usage
pursuant to the terms of the Lease.
(n) Notwithstanding anything in this Lease to the contrary, Additional
Rent shall be abated in full for months: one (1) through four (4),
thirteen (13) through fourteen (14), and twenty-five (25) through
twenty-six (26) of the lease term.
4. IMPROVEMENTS AND ALTERATIONS
----------------------------
(a) Landlord's sole construction obligation under this Lease is set
forth in the Work Letter attached hereto as Exhibit B.
(b) Any alterations, additions, or improvements made by or on behalf
of Tenant to the Premises made on or after the Commencement Date
("Alterations") shall be subject to Landlord's prior written
consent which shall not be unreasonably withheld or delayed.
Cosmetic Alterations that do not affect the building mechanical or
electrical systems and do not exceed $50,000 in the aggregate,
shall not require Landlord consent. Tenant shall cause, at its
sole cost and expense, all Alterations to comply with insurance
requirements and with Laws and shall construct, at its sole cost
and expense, any alteration or modification required by Laws as a
result of any Alterations. All Alterations shall be constructed at
Tenant's sole cost and expense and in a good and workmanlike
manner by contractors reasonably acceptable to Landlord and only
good grades of materials shall be used. All plans and
specifications for any Alterations shall be submitted to Landlord
for its approval, which approval will not be unreasonably
withheld, delayed or conditioned. Landlord may monitor
construction of the Alterations. Landlord's right to review plans
and specifications and to monitor construction shall be solely for
its own benefit, and Landlord shall have no duty to see that such
plans and specifications or construction comply with applicable
laws, codes, rules and regulations. Landlord shall have the right,
in its sole discretion, to instruct Tenant to remove those
improvements or Alterations from the Premises which (i) were not
approved in advance by Landlord, (ii) were not built in material
conformance with the plans and specifications approved by
Landlord, or (iii) Landlord specified during its review of plans
and specifications for Alterations would need to be removed by
Tenant upon the expiration of this Lease. If Landlord approved the
construction of Alterations, then Tenant shall not be obligated to
remove such Alterations at the expiration of this Lease. Landlord
shall not unreasonably withhold or delay its approval with respect
to what improvements or Alterations Landlord may require Tenant to
remove at the expiration of the Lease. If upon the termination of
this Lease Landlord requires Tenant to remove any or all of such
Alterations from the Premises, then Tenant, at Tenant's sole cost
and expense, shall promptly remove such Alterations and
improvements and Tenant shall repair and restore the Premises to
its original condition as of the Commencement Date, reasonable
wear and tear excepted. Any Alterations remaining in the Premises
following the expiration of the Lease Term or following the
surrender of the Premises from Tenant to Landlord, shall become
the property of Landlord unless Landlord notifies Tenant
otherwise. Tenant shall provide Landlord with the identities and
mailing addresses of all persons performing work or supplying
materials, prior to beginning such construction, and Landlord may
post on and about the Premises notices of non-responsibility
pursuant to applicable law. Tenant shall assure payment for the
completion of all work free and clear of liens and shall provide
certificates of insurance for worker's compensation and other
coverage in amounts and from an insurance company reasonably
satisfactory to Landlord protecting Landlord against liability for
bodily injury or property damage during construction. Upon
completion of any Alterations and upon Landlord's reasonable
request, Tenant shall deliver to Landlord sworn statements setting
forth the names of all contractors and subcontractors who did work
on the Alterations and final lien waivers from all such
contractors and subcontractors.
9
(c) Tenant shall keep the Premises, the Building and the Project free
from any and all liens arising out of any Alterations, work
performed, materials furnished, or obligations incurred by or for
Tenant. In the event that Tenant shall not, within ten (10) days
following the imposition of any such lien, cause the same to be
released of record by payment or posting of a bond in a form and
issued by a surety acceptable to Landlord, Landlord shall have the
right, but not the obligation, to cause such lien to be released
by such means as it shall deem proper (including payment of or
defense against the claim giving rise to such lien); in such case,
Tenant shall reimburse Landlord for all amounts so paid by
Landlord in connection therewith, together with all of Landlord's
costs and expenses, with interest thereon at the Default Rate
(defined below) and Tenant shall indemnify each and all of the
Landlord Indemnitees (defined below) against any damages, losses
or costs arising out of any such claim. Tenant's indemnification
of Landlord contained in this Paragraph shall survive the
expiration or earlier termination of this Lease. Such rights of
Landlord shall be in addition to all other remedies provided
herein or by law.
5. REPAIRS
-------
(a) Landlord shall keep the Common Areas of the Building and the
Project in a clean and neat condition. Subject to subparagraph (b)
below, Landlord shall make all necessary repairs, within a
reasonable period following receipt of notice of the need therefor
from Tenant, to the exterior walls, exterior doors, exterior locks
on exterior doors and windows of the Building, and to the Common
Areas and to public corridors and other public areas of the
Project not constituting a portion of any tenant's premises and
shall use reasonable efforts to keep all Building standard
equipment used by Tenant in common with other tenants in good
condition and repair and to replace same at the end of such
equipment's normal and useful life, reasonable wear and tear and
casualty loss excepted. Except as expressly provided in Paragraph
9 of this Lease, there shall be no abatement of Rent and no
liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Premises,
the Building or the Project.
(b) Tenant, at its expense, (i) shall keep the Premises and all
fixtures contained therein in a safe, clean and neat condition,
and (ii) shall bear the cost of maintenance and repair, by
contractors selected by Landlord, of all facilities which are not
expressly required to be maintained or repaired by Landlord and
which are located in the Premises, including, without limitation,
lavatory, shower, toilet, wash basin and kitchen facilities, and
supplemental heating and air conditioning systems (including all
plumbing connected to said facilities or systems installed by or
on behalf of Tenant or existing in the Premises at the time of
Landlord's delivery of the Premises to Tenant). Tenant shall make
all repairs to the Premises not required to be made by Landlord
under subparagraph (a) above with replacements of any materials to
be made by use of materials of equal or better quality. Tenant
shall do all decorating, remodeling, alteration and painting
required by Tenant during the Lease Term. Tenant shall pay for the
cost of any repairs to the Premises, the Building or the Project
made necessary by any negligence or willful misconduct of Tenant
or any of its assignees, subtenants, employees or their respective
agents, representatives, contractors, or other persons permitted
in or invited to the Premises or the Project by Tenant. If Tenant
fails to make such repairs or replacements within thirty (30) days
after written notice from Landlord, Landlord may at its option
make such repairs or replacements, and Tenant shall upon demand
pay Landlord for the cost thereof.
10
(c) Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Premises in a safe, clean and neat condition,
normal wear and tear excepted. Except as otherwise set forth in
Paragraph 4(b) of this Lease, Tenant shall remove from the
Premises all trade fixtures, furnishings and other personal
property of Tenant and all computer and phone cabling and wiring
from the Premises, shall repair all reasonable damage caused by
such removal. In addition to all other rights Landlord may have,
in the event Tenant does not so remove any such fixtures,
furnishings or personal property, Tenant shall be deemed to have
abandoned the same, in which case Landlord may store the same at
Tenant's expense, appropriate the same for itself, and/or sell the
same in its discretion.
6. USE OF PREMISES
---------------
(a) Tenant shall use the Premises only for general office uses and a
call center and shall not use the Premises or permit the Premises
to be used for any other purpose. Landlord shall have the right to
deny its consent to any change in the permitted use of the
Premises in its sole and absolute discretion.
(b) Tenant shall not at any time use or occupy the Premises, or permit
any act or omission in or about the Premises in violation of any
law, statute, ordinance or any governmental rule, regulation or
order (collectively, "Law" or "Laws") and Tenant shall, upon
written notice from Landlord, discontinue any use of the Premises
which is declared by any governmental authority to be a violation
of Law. If any Law shall, by reason of the nature of Tenant's use
or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to (i) modification or other maintenance of
the Premises, the Building or the Project, or (ii) the use,
alteration or occupancy thereof, Tenant shall comply with such Law
at Tenant's sole cost and expense. This Lease shall be subject to
and Tenant shall comply with all financing documents encumbering
the Building or the Project and all covenants, conditions and
restrictions affecting the Premises, the Building or the Project,
including, but not limited to, Tenant's execution of any
subordination agreements requested by a mortgagee of the Premises,
the Building or the Project.
(c) Tenant shall not at any time use or occupy the Premises in
violation of the certificates of occupancy issued for or
restrictive covenants pertaining to the Building or the Premises,
and in the event that any architectural control committee or
department of the State or the city or county in which the Project
is located shall at any time contend or declare that the Premises
are used or occupied in violation of such certificate or
certificates of occupancy or restrictive covenants, Tenant shall,
upon reasonable notice from Landlord or any such governmental
agency, immediately remedy such violation. The failure by Tenant
to discontinue such use shall be considered a default under this
Lease and Landlord shall have the right to exercise any and all
rights and remedies provided herein or by Law. Any statement in
this Lease of the nature of the business to be conducted by Tenant
in the Premises shall not be deemed or construed to constitute a
representation or guaranty by Landlord that such business will
continue to be lawful or permissible under any certificate of
occupancy issued for the Building or the Premises, or otherwise
permitted by Law.
(d) Tenant shall not do or permit to be done anything which may
invalidate or increase the cost of any fire, All Risk or other
insurance policy covering the Building, the Project and/or
property located therein and shall comply with all rules, orders,
regulations and requirements of the appropriate fire codes and
ordinances or any other organization performing a similar
function. In addition to all other remedies of Landlord, Landlord
may require Tenant, promptly upon demand, to reimburse Landlord
for the full amount of any additional premiums charged for such
policy or policies by reason of Tenant's failure to comply with
the provisions of this Paragraph 6.
11
(e) Tenant shall not in any way interfere with the rights or quiet
enjoyment of other tenants or occupants of the Premises, the
Building or the Project. Tenant shall not use or allow the
Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain, or permit
any nuisance in, on or about the Premises, the Building or the
Project. Tenant shall not place weight upon any portion of the
Premises exceeding the structural floor load (per square foot of
area) which such area was designated (and is permitted by Law) to
carry or otherwise use any Building system in excess of its
capacity or in any other manner which may damage such system or
the Building. Business machines and mechanical equipment shall be
placed and maintained by Tenant, at Tenant's expense, in locations
and in settings sufficient in Landlord's reasonable judgment to
absorb and prevent vibration, noise and annoyance. Tenant shall
not commit or suffer to be committed any waste in, on, upon or
about the Premises, the Building or the Project.
(f) Tenant shall take all reasonable steps necessary to adequately
secure the Premises from unlawful intrusion, theft, fire and other
hazards, and shall keep and maintain any and all security devices
in or on the Premises in good working order, including, but not
limited to, exterior door locks for the Premises and smoke
detectors and burglar alarms located within the Premises and shall
cooperate with Landlord and other tenants in the Project with
respect to access control and other safety matters.
(g) As used herein, the term "Hazardous Material" means any hazardous
or toxic substance, material or waste which is or becomes
regulated by any local governmental authority, the State or the
United States Government, including, without limitation, any
material or substance which is (A) defined or listed as a
"hazardous waste," "pollutant," "extremely hazardous waste,"
"restricted hazardous waste," "hazardous substance" or "hazardous
material" under any applicable federal, state or local Law or
administrative code promulgated thereunder, (B) petroleum, or (C)
asbestos, except those minor amounts relating to typical office
supplies such as toner.
(i) Tenant agrees that all operations or activities upon, or any use
or occupancy of the Premises, or any portion thereof, by Tenant,
its assignees, subtenants, and their respective agents, servants,
employees, representatives and contractors (collectively referred
to herein as "Tenant Affiliates"), throughout the term of this
Lease, shall be in all respects in compliance with all federal,
state and local Laws then governing or in any way relating to the
generation, handling, manufacturing, treatment, storage, use,
transportation, release, spillage, leakage, dumping, discharge or
disposal of any Hazardous Materials.
(ii) Tenant agrees to indemnify, defend and hold Landlord and its
Affiliates (defined below) harmless for, from and against any and
all claims, actions, administrative proceedings (including
informal proceedings), judgments, damages, punitive damages,
penalties, fines, costs, liabilities, interest or losses,
including reasonable attorneys' fees and expenses, court costs,
consultant fees, and expert fees, together with all other costs
and expenses of any kind or nature that arise during or after the
Lease Term directly or indirectly from or in connection with the
presence, suspected presence, or release of any Hazardous Material
in or into the air, soil, surface water or groundwater at, on,
about, under or within the Premises, or any portion thereof caused
by Tenant or Tenant Affiliates.
(iii) In the event any investigation or monitoring of site conditions
or any clean-up, containment, restoration, removal or other
remedial work (collectively, the "Remedial Work") is required
under any applicable federal, state or local Law,
by any judicial order, or by any governmental entity as the result
of operations or activities upon, or any use or occupancy of any
portion of the Premises by Tenant or Tenant Affiliates, Landlord
shall perform or cause to be performed the Remedial Work in
compliance with such Law or order at Tenant's sole cost and
expense. All Remedial Work shall be performed by one or more
contractors, selected and approved by Landlord, and under the
supervision of a consulting engineer, selected by Tenant and
approved in advance in writing by Landlord. All costs and expenses
of such Remedial Work shall be paid by Tenant, including, without
limitation, the charges of such contractor(s), the consulting
engineer, and Landlord's reasonable attorneys' fees and costs
incurred in connection with monitoring or review of such Remedial
Work.
12
(iv) Each of the covenants and agreements of Tenant set forth in this
Paragraph 6(g) shall survive the expiration or earlier termination
of this Lease.
7. UTILITIES AND SERVICES
----------------------
(a) Provided that Tenant is not in Default hereunder, beyond all
applicable cure rights, Landlord shall furnish, or cause to be
furnished to the Premises, the utilities and services described in
Exhibit C attached hereto, subject to the conditions and in
accordance with the standards set forth therein and in this Lease.
(b) Tenant agrees to cooperate fully at all times with Landlord and to
comply with all regulations and requirements which Landlord may
from time to time prescribe for the use of the utilities and
services described herein and in Exhibit C. Landlord shall not be
liable to Tenant for the failure of any other tenant, or its
assignees, subtenants, employees, or their respective invitees,
licensees, agents or other representatives to comply with such
regulations and requirements.
(c) Electricity shall not be furnished by Landlord, but except as
otherwise hereinafter provided, shall be furnished by the approved
electric utility company serving the area ("Electric Service
Provider"). Landlord shall permit the Tenant to receive such
service direct from such public utility company at Tenant's cost,
and shall permit Landlord's wire and conduits, to the extent
available, suitable and safely capable, to be used for such
purposes. Tenant shall make all necessary arrangements with the
local utility company for metering and paying for electric current
furnished by it to Tenant and Tenant shall pay for all charges for
electric current consumed on the Premises during Tenant's
occupancy thereof. The electricity used during the performance of
janitorial service, the making of alterations or repairs in the
Premises, and for the operation of the Premises' air conditioning
system at times other than as provided herein; or the operation of
any special air conditioning systems which may be required for
data processing equipment or for other special equipment or
machinery installed by Tenant, shall be paid for by Tenant. Tenant
shall make no alterations or additions to the electric equipment
and/or appliances without the prior written consent of the
Landlord in each instance, which consent shall not be unreasonably
withheld. Tenant also agrees to purchase from the Landlord or its
agent all lamps, bulbs after the initial installation thereof,
ballasts and starters used in the Premises, provided however that
the availability, quality, and cost of any such items shall be
comparable to that available to Tenant from other suppliers.
Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installed thereon. Tenant will
not, without the written consent of Landlord, use any apparatus or
device in the Premises to connect to electric current (except
through existing electrical outlets in the Premises) or water
pipes, any apparatus or device for the purpose of using electric
current or water. If Tenant shall require water or electric
current in excess of that which is respectively obtainable from
existing water pipes or electrical outlets and normal for use of
the Premises as general office space, Tenant shall first procure
the consent of Landlord, which Landlord may not unreasonably
refuse. If Landlord consents to such excess water or electric
requirements, Tenant shall pay all costs including but not limited
to meter service and installation of facilities necessary to
furnishing such excess capacity.
(d) Landlord has advised Tenant that presently Electric Service
Provider is the utility company selected by Landlord to provide
electricity service for the Building. Notwithstanding the
foregoing, to the extent permitted by law, Landlord shall have the
right at any time and from time to time during the Lease Term to
either contract for service from a different company or companies
providing electricity service (each such company hereinafter
described as an "Alternate Service Provider") or continued to
contract for service from the Electric Service Provider.
(e) Tenant shall cooperate with Landlord, the Electric Service
Provider, and any Alternate Service Provider at all times, and as
reasonably necessary, shall allow Landlord, Electric Service
Provider and any alternate Service Provider reasonable access to
the Building's electric lines, feeders, risers, writing, and any
other machinery within the Premises.
13
(f) Landlord shall not be liable for, and Tenant shall not be entitled
to, any damages, abatement or reduction of Rent, or other
liability by reason of any failure to furnish any services or
utilities described herein or in Exhibit C for any reason (other
than Landlord's gross negligence or willful misconduct),
including, without limitation, when caused by accident, breakage,
repairs, Alterations or other improvements to the Project,
strikes, lockouts or other labor disturbances or labor disputes of
any character, governmental regulation, moratorium or other
governmental action, inability to obtain electricity, water or
fuel, or any other cause beyond Landlord's control. Landlord shall
be entitled to cooperate with the energy conservation efforts of
governmental agencies or utility suppliers. No such failure,
stoppage or interruption of any such utility or service shall be
construed as an eviction of Tenant, nor shall the same relieve
Tenant from any obligation to perform any covenant or agreement
under this Lease. In the event of any failure, stoppage or
interruption thereof, Landlord shall use reasonable efforts to
attempt to restore all services promptly. No representation is
made by Landlord with respect to the adequacy or fitness of the
Building's ventilating, air conditioning or other systems to
maintain temperatures as may be required for the operation of any
computer, data processing or other special equipment of Tenant.
(g) Landlord reserves the right from time to time to make reasonable
and nondiscriminatory modifications to the above standards
(including, without limitation, those described in Exhibit C) for
utilities and services.
8. NON-LIABILITY AND INDEMNIFICATION OF LANDLORD; INSURANCE
--------------------------------------------------------
(a) Landlord shall not be liable for any injury, loss or damage
suffered by Tenant or to any person or property occurring or
incurred in or about the Premises, the Building or the Project
from any cause, EVEN IF SUCH LIABILITIES ARE CAUSED SOLELY OR IN
PART BY THE NEGLIGENCE OF ANY LANDLORD INDEMNITEE (DEFINED BELOW),
BUT NOT TO THE EXTENT SUCH LIABILITIES ARE CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH LANDLORD INDEMNITEE
(DEFINED BELOW). Without limiting the foregoing, neither Landlord
nor any of its partners, officers, trustees, affiliates,
directors, employees, contractors, agents or representatives
(collectively, "Affiliates") shall be liable for and there shall
be no abatement of Rent (except in the event of a casualty loss or
a condemnation as set forth in Paragraphs 9 and 10 of this Lease)
for (i) any damage to Tenant's property stored with or entrusted
to Affiliates of Landlord, (ii) loss of or damage to any property
by theft or any other wrongful or illegal act, or (iii) any injury
or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water or rain which may
leak from any part of the Building or the Project or from the
pipes, appliances, appurtenances or plumbing works therein or from
the roof, street or sub-surface or from any other place or
resulting from dampness or any other cause whatsoever or from the
acts or omissions of other tenants, occupants or other visitors to
the Building or the Project or from any other cause whatsoever,
(iv) any diminution or shutting off of light, air or view by any
structure which may be erected on lands adjacent to the Building,
whether within or outside of the Project, or (v) any latent or
other defect in the Premises, the Building or the Project. Tenant
shall give prompt notice to Landlord in the event of (i) the
occurrence of a fire or accident in the Premises or in the
Building, or (ii) the discovery of a defect therein or in the
fixtures or equipment thereof. This Paragraph 8(a) shall survive
the expiration or earlier termination of this Lease.
(b) Tenant hereby agrees to indemnify, protect, defend and hold
harmless Landlord and its designated property management company,
and their respective partners, members, affiliates and
subsidiaries, and all of their respective officers, directors,
shareholders, employees, servants, partners, representatives,
insurers and agents (collectively, "Landlord Indemnitees") for,
from and against all liabilities, claims, fines, penalties, costs,
damages or injuries to persons, damages to property, losses,
liens, causes of action, suits, judgments and expenses (including
court costs, attorneys' fees, expert witness fees and costs of
investigation), of any nature, kind or description of any person
or entity, directly or indirectly arising out of, caused by, or
resulting from (in whole or part) (1) Tenant's construction of or
use, occupancy or enjoyment of the Premises, (2) any activity,
work or other things done, permitted or suffered by Tenant and its
agents and employees in or about the Premises, (3) any breach or
default in the performance of any of Tenant's obligations under
this Lease, (4) any act, omission, negligence or willful
misconduct of Tenant or any of its agents, contractors, employees,
business invitees or licensees, or (5) any damage to Tenant's
property, or the property of Tenant's agents, employees,
contractors, business invitees or licensees, located in or about
the Premises (collectively, "Liabilities"); EVEN IF SUCH
LIABILITIES ARE CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF ANY
LANDLORD INDEMNITEE, BUT NOT TO THE EXTENT SUCH LIABILITIES ARE
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SUCH
LANDLORD INDEMNITEE. This Paragraph 8(b) shall survive the
expiration or earlier termination of this Lease.
14
(c) Tenant shall promptly advise Landlord in writing of any action,
administrative or legal proceeding or investigation as to which
this indemnification may apply, and Tenant, at Tenant's expense,
shall assume on behalf of each and every Landlord Indemnitee and
conduct with due diligence and in good faith the defense thereof
with counsel reasonably satisfactory to Landlord; provided,
however, that any Landlord Indemnitee shall have the right, at its
option, to be represented therein by advisory counsel of its own
selection and at its own expense. In the event of failure by
Tenant to fully perform in accordance with this Paragraph,
Landlord, at its option, and without relieving Tenant of its
obligations hereunder, may so perform, but all costs and expenses
so incurred by Landlord in that event shall be reimbursed by
Tenant to Landlord, together with interest on the same from the
date any such expense was paid by Landlord until reimbursed by
Tenant, at the rate of interest provided to be paid on judgments,
by the law of the jurisdiction to which the interpretation of this
Lease is subject. The indemnification provided in Paragraph 8(b)
shall not be limited to damages, compensation or benefits payable
under insurance policies, workers' compensation acts, disability
benefit acts or other employees' benefit acts.
(d) Insurance.
(i) Tenant at all times during the Lease Term shall, at its own
expense, keep in full force and effect (A) commercial general
liability insurance providing coverage against bodily injury and
disease, including death resulting therefrom, bodily injury and
property damage to a combined single limit of $3,000,000 to one or
more than one person as the result of any one accident or
occurrence, which shall include provision for contractual
liability coverage insuring Tenant for the performance of its
indemnity obligations set forth in this Paragraph 8 and in
Paragraph 6(g)(ii) of this Lease, (B) worker's compensation
insurance to the statutory limit, if any, and employer's liability
insurance to the limit of $500,000 per occurrence, (C) All Risk or
Causes of Loss - Special Form property insurance covering full
replacement value of all of Tenant's personal property, trade
fixtures and improvements in the Premises and (D) flood insurance
covering full replacement value of all of Tenant's personal
property, trade fixtures and improvements in the Premises.
Landlord and its designated property management firm shall be
named an additional insured on each of said policies (excluding
the worker's compensation policy) and said policies shall be
issued by an insurance company or companies authorized to do
business in Illinois and which have policyholder ratings not lower
than "A-" and financial ratings not lower than "VII" in Best's
Insurance Guide (latest edition in effect as of the Date of Lease
and subsequently in effect as of the date of renewal of the
required policies). EACH OF SAID POLICIES SHALL ALSO INCLUDE A
WAIVER OF SUBROGATION PROVISION OR ENDORSEMENT IN FAVOR OF
LANDLORD, AND AN ENDORSEMENT PROVIDING THAT LANDLORD SHALL RECEIVE
THIRTY (30) DAYS PRIOR WRITTEN NOTICE OF ANY CANCELLATION OF,
NONRENEWAL OF, REDUCTION OF COVERAGE OR MATERIAL CHANGE IN
COVERAGE ON SAID POLICIES. Tenant hereby waives its right of
recovery against any Landlord Indemnitee of any amounts paid by
Tenant or on Tenant's behalf to satisfy applicable worker's
compensation laws. The policies or duly executed certificates
showing the material terms for the same, together with
satisfactory evidence of the payment of the premiums therefor,
shall be deposited with Landlord on the date Tenant first occupies
the Premises and upon renewals of such policies not less than
fifteen (15) days prior to the expiration of the term of such
coverage. If certificates are supplied rather than the policies
themselves, Tenant shall allow Landlord, at all reasonable times,
to inspect the policies of insurance required herein.
15
(ii) It is expressly understood and agreed that the coverages required
represent Landlord's minimum requirements and such are not to be
construed to void or limit Tenant's obligations contained in this
Lease, including without limitation Tenant's indemnity obligations
hereunder. Neither shall (A) the insolvency, bankruptcy or failure
of any insurance company carrying Tenant, (B) the failure of any
insurance company to pay claims occurring nor (C) any exclusion
from or insufficiency of coverage be held to affect, negate or
waive any of Tenant's indemnity obligations under this Paragraph 8
and Paragraph 6(g)(ii) or any other provision of this Lease. With
respect to insurance coverages, except worker's compensation,
maintained hereunder by Tenant and insurance coverages separately
obtained by Landlord, all insurance coverages afforded by policies
of insurance maintained by Tenant shall be primary insurance as
such coverages apply to Landlord, and such insurance coverages
separately maintained by Landlord shall be excess, and Tenant
shall have its insurance policies so endorsed. The amount of
liability insurance under insurance policies maintained by Tenant
shall not be reduced by the existence of insurance coverage under
policies separately maintained by Landlord. Tenant shall be solely
responsible for any premiums, assessments, penalties, deductible
assumptions, retentions, audits, retrospective adjustments or any
other kind of payment due under its policies.
(iii) Tenant's occupancy of the Premises without delivering the
certificates of insurance shall not constitute a waiver of
Tenant's obligations to provide the required coverages. If Tenant
provides to Landlord a certificate that does not evidence the
coverages required herein, or that is faulty in any respect, such
shall not constitute a waiver of Tenant's obligations to provide
the proper insurance.
(iv) Throughout the Lease Term, Landlord agrees to maintain (i) fire
and extended coverage insurance on the insurable portions of
Building and the remainder of the Project in an amount not less
than the fair replacement value thereof, subject to reasonable
deductibles (ii) boiler and machinery insurance amounts and with
deductibles that would be considered standard for similar class
building in Chicago, Illinois metropolitan area and (iii)
commercial general liability insurance with a combined single
limit coverage of at least $1,000,000.00 per occurrence. All such
insurance shall be obtained from insurers Landlord reasonably
believes to be financially responsible in light of the risks being
insured. The premiums for any such insurance shall be a part of
Operating Costs.
(e) Mutual Waivers of Recovery. Landlord, Tenant, and all parties
claiming under them, each mutually release and discharge each
other from responsibility for that portion of any loss or damage
paid or reimbursed by an insurer of Landlord or Tenant under any
fire, extended coverage or other property insurance policy
maintained by Tenant with respect to its Premises or by Landlord
with respect to the Building or the Project (or which would have
been paid had the insurance required to be maintained hereunder
been in full force and effect), no matter how caused, including
negligence, and each waives any right of recovery from the other
including, but not limited to, claims for contribution or
indemnity, which might otherwise exist on account thereof. Any
fire, extended coverage or property insurance policy maintained by
Tenant with respect to the Premises, or Landlord with respect to
the Building or the Project, shall contain, in the case of
Tenant's policies, a waiver of subrogation provision or
endorsement in favor of Landlord, and in the case of Landlord's
policies, a waiver of subrogation provision or endorsement in
favor of Tenant, or, in the event that such insurers cannot or
shall not include or attach such waiver of subrogation provision
or endorsement, Tenant and Landlord shall obtain the approval and
consent of their respective insurers, in writing, to the terms of
this Lease. Tenant agrees to indemnify, protect, defend and hold
harmless each and all of the Landlord Indemnitees from and against
any claim, suit or cause of action asserted or brought by Tenant's
insurers for, on behalf of, or in the name of Tenant, including,
but not limited to, claims for contribution, indemnity or
subrogation, brought in contravention of this paragraph. The
mutual releases, discharges and waivers contained in this
provision shall apply EVEN IF THE LOSS OR DAMAGE TO WHICH THIS
PROVISION APPLIES IS CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF
LANDLORD OR TENANT.
(f) Business Interruption. Landlord shall not be responsible for, and
Tenant releases and discharges Landlord from, and Tenant further
waives any right of recovery from Landlord for, any loss for or
from business interruption or loss of use of the Premises suffered
by Tenant in connection with Tenant's use or occupancy of the
Premises, EVEN IF SUCH LOSS IS CAUSED SOLELY OR IN PART BY THE
NEGLIGENCE OF LANDLORD.
16
(g) Adjustment of Claims. Tenant shall cooperate with Landlord and
Landlord's insurers in the adjustment of any insurance claim
pertaining to the Building or the Project or Landlord's use
thereof.
(h) Increase in Landlord's Insurance Costs. Tenant agrees to pay to
Landlord any increase in premiums for Landlord's insurance
policies resulting from Tenant's use or occupancy of the Premises.
(i) Failure to Maintain Insurance. Any failure of Tenant to obtain and
maintain the insurance policies and coverages required hereunder
or failure by Tenant to meet any of the insurance requirements of
this Lease shall constitute an event of default hereunder, and
such failure shall entitle Landlord to pursue, exercise or obtain
any of the remedies provided for in Paragraph 12(b), and Tenant
shall be solely responsible for any loss suffered by Landlord as a
result of such failure. In the event of failure by Tenant to
maintain the insurance policies and coverages required by this
Lease or to meet any of the insurance requirements of this Lease,
Landlord, at its option, and without relieving Tenant of its
obligations hereunder, may obtain said insurance policies and
coverages or perform any other insurance obligation of Tenant, but
all costs and expenses incurred by Landlord in obtaining such
insurance or performing Tenant's insurance obligations shall be
reimbursed by Tenant to Landlord, together with interest on same
from the date any such cost or expense was paid by Landlord until
reimbursed by Tenant, at the rate of interest provided to be paid
on judgments, by the law of the jurisdiction to which the
interpretation of this Lease is subject.
9. FIRE OR CASUALTY
----------------
(a) Subject to the provisions of this Paragraph 9, in the event the
Premises, or access thereto, is wholly or partially destroyed by
fire or other casualty, Landlord shall (to the extent permitted by
Law and covenants, conditions and restrictions then applicable to
the Project) rebuild, repair or restore the Premises and access
thereto to substantially the same condition as existing
immediately prior to such destruction and this Lease shall
continue in full force and effect. Notwithstanding the foregoing,
(i) Landlord's obligation to rebuild, repair or restore the
Premises shall not apply to any personal property, above-standard
tenant improvements or other items installed or contained in the
Premises, and (ii) Landlord shall have no obligation whatsoever to
rebuild, repair or restore the Premises with respect to any damage
or destruction occurring during the last twelve (12) months of the
term of this Lease or any extension of the term.
(b) Landlord may elect to terminate this Lease in any of the following
cases of damage or destruction to the Premises, the Building or
the Project: (i) where the cost of rebuilding, repairing and
restoring (collectively, "Restoration") of the Building or the
Project, would, regardless of the lack of damage to the Premises
or access thereto, in the reasonable opinion of Landlord, exceed
twenty percent (20%) of the then replacement cost of the Building;
(ii) where, in the case of any damage or destruction to any
portion of the Building or the Project by uninsured casualty, the
cost of Restoration of the Building or the Project, in the
reasonable opinion of Landlord, exceeds $500,000; or (iii) where,
in the case of any damage or destruction to the Premises or access
thereto by uninsured casualty, the cost of Restoration of the
Premises or access thereto, in the reasonable opinion of Landlord,
exceeds twenty percent (20%) of the replacement cost of the
Premises. Any such termination shall be made by thirty (30) days'
prior written notice to Tenant given within sixty (60) days of the
date of such damage or destruction. If this Lease is not
terminated by Landlord and as the result of any damage or
destruction, the Premises, or a portion thereof, are rendered
untenantable, the Basic Annual Rent shall xxxxx reasonably during
the period of Restoration (based upon the extent to which such
damage and Restoration materially interfere with Tenant's business
in the Premises). This Lease shall be considered an express
agreement governing any case of damage to or destruction of the
Premises, the Building or the Project.
17
Notwithstanding the foregoing, Tenant shall have the right to terminate
this Lease if (i) more than fifty percent (50%) of the Premises are rendered
untenantable for a period of one hundred eighty (180) days after the date of
damage or destruction (the "180 Day Period"), by delivering written notice to
Landlord of its intent to terminate this Lease after the 180 Day Period but
prior to the substantial completion of the Restoration of the Building, or (ii)
a material casualty occurs in the last twelve (12) months of the Lease Term, by
delivering written notice to Landlord of its intent to terminate this Lease
within thirty (30) days after such casualty.
10. EMINENT DOMAIN
--------------
In the event the whole of the Premises, the Building or the Project
shall be taken under the power of eminent domain, or sold to prevent the
exercise thereof (collectively, a "Taking"), this Lease shall automatically
terminate as of the date of such Taking. In the event a Taking of a portion of
the Project, the Building or the Premises shall, in the reasonable opinion of
Landlord, substantially interfere with Landlord's operation thereof, Landlord
may terminate this Lease upon thirty (30) days' written notice to Tenant given
at any time within sixty (60) days following the date of such Taking. For
purposes of this Lease, the date of Taking shall be the earlier of the date of
transfer of title resulting from such Taking or the date of transfer of
possession resulting from such Taking. In the event that a portion of the
Premises is so taken and this Lease is not terminated, Landlord shall, with
reasonable diligence, use commercially reasonable efforts to proceed to restore
(to the extent permitted by Law and covenants, conditions and restrictions then
applicable to the Project) the Premises (other than Tenant's personal property
and fixtures, and above-standard tenant improvements) to a complete, functioning
unit. In such case, the Basic Annual Rent shall be reduced proportionately based
on the portion of the Premises so taken. If all or any portion of the Premises
is the subject of a temporary Taking, this Lease shall remain in full force and
effect and Tenant shall continue to perform each of its obligations under this
Lease; in such case, Tenant shall be entitled to receive the entire award
allocable to the temporary Taking of the Premises. Except as provided herein,
Tenant shall not assert any claim against Landlord or the condemning authority
for, and hereby assigns to Landlord, any compensation in connection with any
such Taking, and Landlord shall be entitled to receive the entire amount of any
award therefor, without deduction for any estate or interest of Tenant. Nothing
contained in this Paragraph 10 shall be deemed to give Landlord any interest in,
or prevent Tenant from seeking any award against the condemning authority for
the Taking of personal property, fixtures, above standard tenant improvements of
Tenant or for relocation or moving expenses recoverable by Tenant from the
condemning authority. This Paragraph 10 shall be Tenant's sole and exclusive
remedy in the event of a Taking.
11. ASSIGNMENT AND SUBLETTING
-------------------------
(a) Tenant shall not directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, assign, sublet,
mortgage, hypothecate or otherwise encumber all or any portion of
its interest in this Lease or in the Premises or grant any license
in or suffer any person other than Tenant or its employees to use
or occupy the Premises or any part thereof without obtaining the
prior written consent of Landlord, which consent shall not be
unreasonably withheld. Any such attempted assignment, subletting,
license, mortgage, hypothecation, other encumbrance or other use
or occupancy without the consent of Landlord shall be null and
void and of no effect. Any mortgage, hypothecation or encumbrance
of all or any portion of Tenant's interest in this Lease or in the
Premises and any grant of a license or sufferance of any person
other than Tenant or its employees to use or occupy the Premises
or any part thereof shall be deemed to be an "assignment" of this
Lease. In addition, as used in this Paragraph 11, the term
"Tenant" shall also mean any entity that has guaranteed Tenant's
obligations under this Lease, and the restrictions applicable to
Tenant contained herein shall also be applicable to such
guarantor. Landlord's agreement to not unreasonably withhold its
consent shall only apply to the first assignment or sublease under
the Lease. Provided no event of default has occurred and is
continuing under this Lease, upon thirty (30) days prior written
notice to Landlord, Tenant may, without Landlord's prior written
consent, assign this Lease to (i) an entity into which Tenant is
merged or consolidated or to an entity to which substantially all
of Tenant's assets are transferred, or (ii) to an entity to which
all or substantially all of Tenant's assets are transferred to its
parent or an entity controlled by or is commonly controlled with
Tenant (collectively "Affiliates"), provided such merger,
consolidation, or transfer of assets is for a good business
purpose and not principally for the purpose of transferring
Tenant's leasehold estate. The term "controlled by" or "commonly
controlled with" shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of such controlled person or entity; the ownership,
directly or indirectly, of at least fifty-one percent (51%) of the
voting securities of, or possession of the right to vote, in the
ordinary direction of its affairs, at least fifty-one percent
(51%) of the voting interest in, any person or entity shall be
presumed to constitute such control.
18
(b) No permitted assignment or subletting shall relieve Tenant of its
obligation to pay the Rent and to perform all of the other
obligations to be performed by Tenant hereunder. The acceptance of
Rent by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision of this Lease or to be a
consent to any subletting or assignment. Consent by Landlord to
one subletting or assignment shall not be deemed to constitute a
consent to any other or subsequent attempted subletting or
assignment. If Tenant desires at any time to assign this Lease or
to sublet the Premises or any portion thereof, it shall first
notify Landlord of its desire to do so and shall submit in writing
to Landlord all pertinent information relating to the proposed
assignee or sublessee, all pertinent information relating to the
proposed assignment or sublease, and all such financial
information as Landlord may reasonably request concerning the
proposed assignee or subtenant. Any approved assignment or
sublease shall be expressly subject to the terms and conditions of
this Lease.
(c) At any time within thirty (30) days after Landlord's receipt of
the information specified in subparagraph (b) above, Landlord may
by written notice to Tenant approve or disapprove its Consent to
Sublease. If Landlord has not given written disapproval of the
sublease within such thirty (30) days, the sublease shall be
deemed to be approved.
(d) Tenant acknowledges that it shall be reasonable for Landlord to
withhold its consent to a proposed assignment or sublease in any
of the following instances:
(i) The assignee or sublessee is not, in Landlord's reasonable
opinion, sufficiently creditworthy to perform the obligations such
assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is
not the same as set forth in this Lease or otherwise reasonably
satisfactory to Landlord;
(iii) The intended use of the Premises by the assignee or sublessee
would materially increase the pedestrian or vehicular traffic to
the Premises or the Building;
(iv) Occupancy of the Premises by the assignee or sublessee would, in
the good faith judgment of Landlord, violate any agreement binding
upon Landlord, the Building or the Project with regard to the
identity of tenants, usage in the Building, or similar matters;
(v) The assignee or sublessee is then negotiating with Landlord or has
negotiated with Landlord within the previous three (3) months, or
is a current tenant or subtenant within the Building or Project;
(vi) The identity or business reputation of the assignee or sublessee
will, in the good faith judgment of Landlord, tend to damage the
goodwill or reputation of the Building or Project; or
(vii) In the case of a sublease, the subtenant has not acknowledged
that the Lease controls over any inconsistent provision in the
sublease.
The foregoing criteria shall not exclude any other reasonable basis for Landlord
to refuse its consent to such assignment or sublease.
19
(e) Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall
at all times during the initial term and any subsequent renewals
or extensions remain fully responsible and liable for the payment
of the rent and for compliance with all of Tenant's other
obligations under this Lease. In the event that the Rent due and
payable by a sublessee or assignee (or a combination of the rental
payable under such sublease or assignment, plus any bonus or other
consideration therefor or incident thereto) exceeds the Rent
payable under this Lease, then Tenant shall be bound and obligated
to pay Landlord, as additional rent hereunder, 50% of the excess
Rent that exceeds Tenant's expenses and concessions relative to
such assignment of sublease within thirty (30) days following
receipt thereof by Tenant.
(f) If this Lease is assigned or if the Premises is subleased (whether
in whole or in part), or in the event of the mortgage, pledge, or
hypothecation of Tenant's leasehold interest, or grant of any
concession or license within the Premises, or if the Premises are
occupied in whole or in part by anyone other than Tenant, then
upon a default by Tenant hereunder Landlord may collect Rent from
the assignee, sublessee, mortgagee, pledgee, party to whom the
leasehold interest was hypothecated, concessionee or licensee or
other occupant and, except to the extent set forth in the
preceding paragraph, apply the amount collected to the next Rent
payable hereunder; and all such Rent collected by Tenant shall be
held in deposit for Landlord and immediately forwarded to
Landlord. No such transaction or collection of Rent or application
thereof by Landlord, however, shall be deemed a waiver of these
provisions or a release of Tenant from the further performance by
Tenant of its covenants, duties, or obligations hereunder.
(g) Should Tenant request of Landlord the right to assign or sublet,
Landlord shall charge its direct fees for such review but in no
event an amount more than Seven Hundred Fifty and No/100 Dollars
($750.00).
(h) Notwithstanding any provision of this Lease to the contrary, in
the event this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or
other consideration payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute the property of Tenant or Tenant's estate
within the meaning of the Bankruptcy Code. All such money and
other consideration not paid or delivered to Landlord shall be
held in trust for the benefit of Landlord and shall be promptly
paid or delivered to Landlord.
12. DEFAULT
-------
(a) Events of Default. The following events shall be deemed to be
events of default (herein so called) by Tenant under this Lease:
(i) Tenant shall fail to pay Rent or any other rental or sums
payable by Tenant hereunder within five (5) days after Landlord
notifies Tenant of such nonpayment; provided, however, Landlord
shall only be obligated to provide such written notice to Tenant
one (1) time within any Lease Year and in the event Tenant fails
to timely pay Rent or any other sums for a second time during any
Lease Year, then Tenant shall be in default for such late payment
and Landlord shall have no obligation or duty to provide notice of
such non-payment to Tenant prior to declaring an event of default
under this Lease; (ii) Tenant shall fail to comply or commence to
comply with or observe any other provision of this Lease and such
failure shall continue for thirty (30) days after written notice
to Tenant (or, in the case of Tenant's failure to comply with or
observe any other single provision of this Lease more than three
(3) times during the Lease Term, upon the occurrence of the fourth
and all subsequent such failures, without notice from Landlord);
(iii) Tenant or any guarantor of Tenant's obligations hereunder
shall make a general assignment for the benefit of creditors; (iv)
any petition shall be filed by or against Tenant or any guarantor
of Tenant's obligations hereunder under the United States
Bankruptcy Code, as amended, or under any similar law or statute
of the United States or any state thereof, and such petition shall
not be dismissed within sixty (60) days of filing, or Tenant or
any guarantor of Tenant's obligations hereunder shall be adjudged
bankrupt or insolvent in proceedings filed thereunder; (v) a
receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of Tenant's
obligations hereunder, and such appointment shall not be vacated
or otherwise terminated, and the action in which such appointment
was ordered dismissed, within 90 days of filing; (vi) Tenant shall
fail to take possession of or shall desert, or abandon the
Premises without paying rent; (vii) the occurrence of an event
described in clause (iv) or (v) of this Paragraph (without regard
to any cure periods contained therein), and the failure thereafter
of Tenant (A) to timely and fully make any payment of Rent or any
other sum of money due hereunder or (B) to perform or observe any
other covenant, condition or agreement to be performed or observed
by it hereunder.
20
(b) Remedies. Upon the occurrence of any event of default specified in
this Lease, Landlord shall have the option to pursue any (i) one
or more of the following remedies without any notice or demand
whatsoever and without releasing Tenant from any obligation under
this Lease; or (ii) other remedy offered Landlord in law or in
equity:
(i) Tenant hereby waives all claims for damages which may be caused by
the re entry of Landlord and taking possession of the Premises or
removing or storing the furniture and property as herein provided,
and will save Landlord harmless from any loss, costs, or damages
occasioned Landlord thereby, and no such re entry shall be
considered or construed to be a forcible entry.
(ii) Should Landlord elect to re enter, as herein provided, or should
it take possession pursuant to legal proceedings or pursuant to
any notice provided for by law; it may either terminate this Lease
or it may from time to time, without terminating this Lease, re
let the Premises or any part thereof for such terms and at such
rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable, with the right
to make alterations and repairs to the Premises.
(iii) Landlord may elect to apply rentals received by it (i) to the
payment of any indebtedness, other than rent, due hereunder from
Tenant to Landlord; (ii) to the payment of any cost of such re
letting including but not limited to any broker's commissions or
fees in connection therewith; (iii) to the payment of the cost of
any alterations and repairs to the Premises; (iv) to the payment
of rent due and unpaid hereunder; and the residue, if any, shall
be held by Landlord and applied in payment of future rent as the
same may become due and payable hereunder. Should such rentals
received from such re letting after application by Landlord to the
payments described in foregoing clauses (i) through (iv) during
any month be less than that agreed to be paid during that month by
Tenant hereunder, then Tenant shall pay such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly on
demand by Landlord.
(iv) In lieu of electing to receive and apply rentals as provided in
the immediately preceding paragraph, Landlord may elect to receive
from Tenant as and for Landlord's liquidated damages for Tenant's
default, an amount equal to the present value of the entire amount
of Basic Annual Rent provided for in this Lease for the remainder
of the Lease Term, which amount shall be forthwith due and payable
by Tenant upon its being advised of such election by Landlord.
(v) No such re entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this
Lease unless a written notice of same is given to Tenant or unless
the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such re letting without
termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach.
(vi) Nothing herein contained shall limit or prejudice the right of
Landlord to provide for and obtain as damages by reason of any
such termination of this Lease or of possession an amount equal to
the maximum allowed by any statute or rule of law in effect at the
time when such termination takes place, whether or not such amount
be greater, equal to or less than the amounts of damages which
Landlord may elect to receive as set forth above. Notwithstanding
anything to the contrary herein contained or any other rights
exercised by Landlord hereunder, upon the occurrence of an event
of a monetary or material default by Tenant under the terms of
this Lease, rent which otherwise would be due or would have been
due except for any abatement provided for in this Lease shall be
immediately due and payable.
21
(c) No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy, and each
and every right and remedy shall be cumulative and in addition to
any other right or remedy given hereunder or now or hereafter
existing by agreement, applicable law or in equity. In addition to
other remedies provided in this Lease, Landlord shall be entitled,
to the extent permitted by applicable law, to injunctive relief in
case of the violation, or attempted or threatened violation, of
any of the covenants, agreements, conditions or provisions of this
Lease, or to a decree compelling performance of any of the other
covenants, agreements, conditions or provisions of this Lease, or
to any other remedy allowed to Landlord at law or in equity.
Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.
(d) Effect of Suit or Partial Collection. Institution of a forcible
detainer action to re-enter the Premises shall not be construed to
be an election by Landlord to terminate this Lease. Landlord may
collect and receive any Rent due from Tenant and the payment
thereof shall not constitute a waiver of or affect any notice or
demand given, suit instituted or judgment obtained by Landlord, or
be held to waive or alter the rights or remedies which Landlord
may have at law or in equity or by virtue of this Lease at the
time of such payment.
(e) Remedies Cumulative. All rights and remedies of Landlord herein or
existing at law or in equity are cumulative and the exercise of
one or more rights or remedies shall not be taken to exclude or
waive the right to the exercise of any other.
(f) Late Payment Charge and Interest Payable. Landlord may, without
further notice to Tenant, impose a late payment charge equal to
five percent (5%) of any amount due if any amount due under this
Lease is not paid within five (5) days from the date Tenant
receives written notice from Landlord of such amount being due;
provided, however, Landlord shall only be obligated to provide
such written notice to Tenant two (2) times within any Lease Year
and in the event Tenant fails to timely pay Basic Annual Rent for
a third time during any Lease Year, then, Landlord may, without
further notice to Tenant, impose a late payment charge equal to
five percent (5%) of any amount due under this Lease. In addition,
any payment due under this Lease not paid within ten (10) days
after the date herein specified to be paid shall bear interest
from the date such payment is due to the date of actual payment at
the rate of eighteen percent (18%) per annum or the highest lawful
rate of interest permitted by Illinois or federal law, whichever
rate of interest is lower.
(g) Cashier's Check. If Tenant fails to timely make two (2)
consecutive payments of Basic Annual Rent or any two (2) such
payments are returned for insufficient funds, then, in addition to
any other remedy Landlord may have, Landlord may require that all
future payments be made by cashier's check or money order.
13. ACCESS; CONSTRUCTION
--------------------
Landlord reserves the right to use the roof and exterior walls of the
Premises and the area beneath, adjacent to and above the Premises, together with
the right to install, use, maintain, repair, replace and relocate equipment,
machinery, meters, pipes, ducts, plumbing, conduits and wiring through the
Premises, which serve other portions of the Building or the Project in a manner
and in locations which do not unreasonably interfere with Tenant's use of the
Premises. In addition, Landlord shall have free access to any and all mechanical
installations of Landlord or Tenant, including, without limitation, machine
rooms, telephone rooms and electrical closets. Tenant agrees that there shall be
no construction of partitions or other obstructions which materially interfere
with or which threaten to materially interfere with Landlord's free access
thereto, or materially interfere with the moving of Landlord's equipment to or
from the enclosures containing said installations. Upon at least twenty-four
(24) hours' prior notice (except in the event of an emergency, when no notice
shall be necessary), Landlord reserves and shall at any time and all times have
the right to enter the Premises to inspect the same, to provide services
required pursuant to the Lease, to exhibit the Premises to prospective
purchasers, lenders or tenants, (only the right to show tenants within the last
6 months of the term) to post notices of non-responsibility pursuant to an Event
of Default as required per Illinois Law, without being deemed guilty of an
eviction of Tenant and without liability for abatement of Rent or otherwise. For
such purposes, Landlord may also erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed. Landlord shall conduct all such inspections and/or improvements,
alterations and repairs so as to minimize, to the extent reasonably practical
and without additional expense to Landlord, any interruption of or interference
with the business of Tenant. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of such purposes, Landlord shall at all times have and retain
a key with which to unlock all of the doors in, upon and about the Premises
(excluding Tenant's vaults and safes, access to which shall be provided by
Tenant upon Landlord's reasonable request). Landlord shall have the right to use
any and all means which Landlord may deem proper in an emergency in order to
obtain entry to the Premises or any portion thereof, and Landlord shall have the
right, at any time during the Lease Term, to provide whatever access control
measures it deems reasonably necessary to the Project, without any interruption
or abatement in the payment of Rent by Tenant. Any entry into the Premises
obtained by Landlord by any of such means shall not under any circumstances be
construed to be a forcible or unlawful entry into, or a detainer of, the
Premises, or any eviction of Tenant from the Premises or any portion thereof. No
provision of this Lease shall be construed as obligating Landlord to perform any
repairs, Alterations or decorations to the Premises or the Project except as
otherwise expressly agreed to be performed by Landlord pursuant to the
provisions of this Lease.
22
14. BANKRUPTCY
----------
(a) If at any time on or before the Commencement Date there shall be
filed by or against Tenant in any court, tribunal, administrative
agency or any other forum having jurisdiction, pursuant to any
applicable law, either of the United States or of any state, a
petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver, trustee or conservator of all or a
portion of Tenant's property, or if Tenant makes an assignment for
the benefit of creditors, this Lease shall ipso facto be canceled
and terminated and in such event neither Tenant nor any person
claiming through or under Tenant or by virtue of any applicable
law or by an order of any court, tribunal, administrative agency
or any other forum having jurisdiction, shall be entitled to
possession of the Premises and Landlord, in addition to the other
rights and remedies given by Paragraph 12 hereof or by virtue of
any other provision contained in this Lease or by virtue of any
applicable law, may retain as damages any Rent, Security Deposit
or moneys received by it from Tenant or others on behalf of
Tenant.
(b) If, after the Commencement Date, or if at any time during the term
of this Lease, there shall be filed against Tenant in any court,
tribunal, administrative agency or any other forum having
jurisdiction, pursuant to any applicable law, either of the United
States or of any state, a petition in bankruptcy or insolvency or
for reorganization or for the appointment of a receiver, trustee
or conservator of all or a portion of Tenant's property, and the
same is not dismissed after sixty (60) calendar days, or if Tenant
makes an assignment for the benefit of creditors, this Lease, at
the option of Landlord exercised within a reasonable time after
notice of the happening of any one or more of such events, may be
canceled and terminated and in such event neither Tenant nor any
person claiming through or under Tenant or by virtue of any
statute or of an order of any court shall be entitled to
possession or to remain in possession of the Premises, but shall
forthwith quit and surrender the Premises, and Landlord, in
addition to the other rights and remedies granted by Paragraph 12
hereof or by virtue of any other provision contained in this Lease
or by virtue of any applicable law, may retain as damages any
Rent, Security Deposit or moneys received by it from Tenant or
others on behalf of Tenant.
(c) In the event of the occurrence of any of those events specified in
this Paragraph 14, if Landlord shall not choose to exercise, or by
applicable law, shall not be able to exercise, its rights
hereunder to terminate this Lease upon the occurrence of such
events, then, in addition to any other rights of Landlord
hereunder or by virtue of applicable law, (i) Landlord shall not
be obligated to provide Tenant with any of the utilities or
services specified in Paragraph 7, unless Landlord has received
compensation in advance for such utilities or services, and the
parties agree that Landlord's reasonable estimate of the
compensation required with respect to such services shall control,
and (ii) neither Tenant, as debtor-in-possession, nor any trustee
or other person (hereinafter collectively referred to as the
"Assuming Tenant") shall be entitled to assume this Lease unless
on or before the date of such assumption, the Assuming Tenant (x)
cures, or provides adequate assurance that the latter will
promptly cure, any existing default under this Lease, (y)
compensates, or provides adequate assurance that the Assuming
Tenant will promptly compensate Landlord for any pecuniary loss
(including, without limitation, attorneys' fees and disbursements)
resulting from such default, and (z) provides adequate assurance
of future performance under this Lease, it being covenanted and
agreed by the parties that, for such purposes, any cure or
compensation shall be effected by the immediate payment of any
monetary default or any required compensation, or the immediate
correction or bonding of any nonmonetary default. For purposes of
this Lease, (i) any "adequate assurance" of such cure or
compensation shall be effected by the establishment of an escrow
fund for the amount at issue or by the issuance of a bond, and
(ii) "adequate assurance" of future performance shall be effected
by the establishment of an escrow fund for the amount at issue or
by the issuance of a bond.
23
15. SUBSTITUTION OF PREMISES -- Intentionally Deleted.
----------------------------------------------------
16. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES
------------------------------------------------
(a) Tenant agrees that this Lease and the rights of Tenant hereunder
shall be subject and subordinate to any and all deeds of trust,
security interests, mortgages, master leases, ground leases or
other security documents and any and all modifications, renewals,
extensions, consolidations and replacements thereof (collectively,
"Security Documents") which now or hereafter constitute a lien
upon or affect the Project, the Building or the Premises. Such
subordination shall be effective without the necessity of the
execution by Tenant of any additional document for the purpose of
evidencing or effecting such subordination. In addition, Landlord
shall have the right to subordinate or cause to be subordinated
any such Security Documents to this Lease and in such case, in the
event of the termination or transfer of Landlord's estate or
interest in the Project by reason of any termination or
foreclosure of any such Security Documents, Tenant shall,
notwithstanding such subordination, attorn to and become the
Tenant of the successor in interest to Landlord at the option of
such successor in interest. Furthermore, Tenant shall within
thirty (30) days of demand therefor execute any instruments or
other documents which may be required by Landlord or the holder of
any Security Document and specifically shall execute, acknowledge
and deliver within thirty (30) days of demand therefor a
subordination of lease or subordination of deed of trust, in the
form required by the holder of the Security Document requesting
the document; the failure to do so by Tenant within such time
period shall be a material default hereunder; provided, however,
the new landlord or the holder of any Security Document shall
agree that Tenant's quiet enjoyment of the Premises shall not be
disturbed as long as Tenant is not in default under this Lease.
Upon Tenant's request, Landlord shall have the current mortgagee
provide to Tenant such mortgagee's current form of SNDA.
(b) If any proceeding is brought for default under any ground or
master lease to which this Lease is subject or in the event of
foreclosure or the exercise of the power of sale under any
mortgage, deed of trust or other Security Document made by
Landlord covering the Premises, at the election of such ground
lessor, master lessor or purchaser at foreclosure, Tenant shall
attorn to and recognize the same as Landlord under this Lease,
provided such successor expressly agrees in writing to be bound to
all future obligations by the terms of this Lease, and if so
requested, Tenant shall enter into a new lease with that successor
on the same terms and conditions as are contained in this Lease
(for the unexpired term of this Lease then remaining).
(c) In addition to any statutory lien for Rent in Landlord's favor,
Landlord (the secured party for purposes hereof) shall have and
Tenant (the debtor for purposes hereof) hereby grants to Landlord,
an express contract lien and a continuing security interest to
secure the payment of all Rent due hereunder from Tenant, upon all
goods, wares, equipment, fixtures, furniture, inventory and other
personal property of Tenant (and any transferees or other
occupants of the Premises) presently or hereafter situated on the
Premises and upon all proceeds of any insurance which may accrue
to Tenant by reason of damage or destruction of any such property.
In the event of a default under this Lease, Landlord shall have,
in addition to any other remedies provided herein or by law, all
rights and remedies under the Uniform Commercial Code of the state
in which the Premises is located, including without limitation the
right to sell the property described in this paragraph at public
or private sale upon ten (10) days' notice to Tenant, which notice
Tenant hereby agrees is adequate and reasonable. Tenant hereby
agrees to execute such other instruments necessary or desirable in
Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for Rent is not hereby waived, the
express contractual lien herein granted being in addition and
supplementary thereto. Landlord and Tenant agree that this Lease
and the security interest granted herein serve as a financing
statement, and a copy or photographic or other reproduction of
this paragraph of this Lease may be filed of record by Landlord
and have the same force and effect as the original. Tenant
warrants and represents that the collateral subject to the
security interest granted herein is not purchased or used by
Tenant for personal, family or household purposes. Tenant further
warrants and represents to Landlord that the lien granted herein
constitutes a first and superior lien and that Tenant will not
allow the placing of any other lien upon any of the property
described in this paragraph without the prior written consent of
Landlord.
24
(d) Tenant shall, upon not less than fifteen (15) days' prior notice
by Landlord, execute, acknowledge and deliver to Landlord a
statement in writing certifying to those facts for which
certification has been requested by Landlord or any current or
prospective purchaser, holder of any Security Document, ground
lessor or master lessor, including, but without limitation, that
(i) this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and
effect as modified and stating the modifications), (ii) the dates
to which the Basic Annual Rent, Additional Rent and other charges
hereunder have been paid, if any, and (iii) whether or not to the
best knowledge of Tenant, Landlord is in default in the
performance of any covenant, agreement or condition contained in
this Lease and, if so, specifying each such default of which
Tenant may have knowledge. The form of the statement attached
hereto as Exhibit E is hereby approved by Tenant for use pursuant
to this subparagraph (d); however, at Landlord's option, Landlord
shall have the right to use other forms for such purpose. Tenant's
failure to execute and deliver such statement within such time
shall, at the option of Landlord, constitute a material default
under this Lease and, in any event, shall be conclusive upon
Tenant that this Lease is in full force and effect without
modification except as may be represented by Landlord in any such
certificate prepared by Landlord and delivered to Tenant for
execution. Any statement delivered pursuant to this Paragraph 16
may be relied upon by any prospective purchaser of the fee of the
Building or the Project or any mortgagee, ground lessor or other
like encumbrancer thereof or any assignee of any such encumbrance
upon the Building or the Project.
17. SALE BY LANDLORD; TENANT'S REMEDIES; NONRECOURSE LIABILITY
----------------------------------------------------------
(a) In the event of a sale or conveyance by Landlord of the Building
or the Project, Landlord shall be released from any and all
liability under this Lease, provided that the purchaser of the
Building assumes the Lease. If the Security Deposit has been made
by Tenant prior to such sale or conveyance, Landlord shall
transfer the Security Deposit to the purchaser, and upon delivery
to Tenant of notice thereof, Landlord shall be discharged from any
further liability in reference thereto.
(b) Landlord shall not be in default of any obligation of Landlord
hereunder unless Landlord fails to perform any of its obligations
under this Lease within thirty (30) days after receipt of written
notice of such failure from Tenant; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30)
days are required for its performance, Landlord shall not be in
default if Landlord commences to cure such default within the
thirty (30) day period and thereafter diligently prosecutes the
same to completion. All obligations of Landlord under this Lease
will be binding upon Landlord only during the period of its
ownership of the Premises and not thereafter. All obligations of
Landlord hereunder shall be construed as covenants, not
conditions; and, except as may be otherwise expressly provided in
this Lease, Tenant may not terminate this Lease for breach of
Landlord's obligations hereunder.
(c) Any liability of Landlord for a default by Landlord under this
Lease, or a breach by Landlord of any of its obligations under the
Lease, shall be limited solely to its interest in the Project, and
in no event shall any personal liability be asserted against
Landlord in connection with this Lease nor shall any recourse be
had to any other property or assets of Landlord. Tenant's sole and
exclusive remedy for a default or breach of this Lease by Landlord
shall be either (i) an action for damages, or (ii) an action for
injunctive relief; Tenant hereby waiving and agreeing that Tenant
shall have no offset rights or right to terminate this Lease on
account of any breach or default by Landlord under this Lease.
Under no circumstances whatsoever shall Landlord ever be liable
for punitive, consequential or special damages under this Lease
and Tenant waives any rights it may have to such damages under
this Lease in the event of a breach or default by Landlord under
this Lease.
25
(d) As a condition to the effectiveness of any notice of default given
by Tenant to Landlord, Tenant shall also concurrently give such
notice under the provisions of Paragraph 17(b) to each beneficiary
under a Security Document encumbering the Project of whom Tenant
has received written notice (such notice to specify the address of
the beneficiary). In the event Landlord shall fail to cure any
breach or default within the time period specified in subparagraph
(b), then prior to the pursuit of any remedy therefor by Tenant,
each such beneficiary shall have an additional thirty (30) days
within which to cure such default, or if such default cannot
reasonably be cured within such period, then each such beneficiary
shall have such additional time as shall be necessary to cure such
default, provided that within such thirty (30) day period, such
beneficiary has commenced and is diligently pursuing the remedies
available to it which are necessary to cure such default
(including, without limitation, as appropriate, commencement of
foreclosure proceedings).
18. PARKING; COMMON AREAS
---------------------
(a) Tenant shall have the right to the nonexclusive use of the number
of parking spaces located in the parking areas of the Project
specified in Item 13 of the Basic Lease Provisions for the parking
of operational motor vehicles used by Tenant, its officers and
employees only. Landlord reserves the right, at any time upon
written notice to Tenant, to designate the location of Tenant's
parking spaces as determined by Landlord in its reasonable
discretion. The use of such spaces shall be subject to the rules
and regulations adopted by Landlord from time to time for the use
of the parking areas. Landlord further reserves the right to make
such changes to the parking system as Landlord may deem necessary
or reasonable from time to time; i.e., Landlord may provide for
one or a combination of parking systems, including, without
limitation, self-parking, single or double stall parking spaces,
and valet assisted parking. Tenant shall pay such reasonable
amounts as may be charged by Landlord to Tenant for such right of
use from time to time. Tenant agrees that Tenant, its officers and
employees shall not be entitled to park in any reserved or
specially assigned areas designated by Landlord from time to time
in the Project's parking areas. Landlord may require execution of
an agreement with respect to the use of such parking areas by
Tenant and/or its officers and employees in form satisfactory to
Landlord as a condition of any such use by Tenant, its officers
and employees. A default by Tenant, its officers or employees in
the payment of such charges, the compliance with such rules and
regulations, or the performance of such agreement(s) shall
constitute a material default by Tenant hereunder. Tenant shall
not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's officers, employees, suppliers, shippers,
customers or invitees to be loaded, unloaded or parked in areas
other than those designated by Landlord for such activities. If
Tenant permits or allows any of the prohibited activities
described in this Paragraph, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that
it may have, to remove or tow away the vehicle involved and charge
the cost to Tenant, which cost shall be immediately payable upon
demand by Landlord.
(b) Subject to subparagraph (c) below and the remaining provisions of
this Lease, Tenant shall have the nonexclusive right, in common
with others, to the use of such entrances, lobbies, restrooms,
elevators, ramps, drives, stairs, and similar access ways and
service ways and other common areas and facilities in and adjacent
to the Building and the Project as are designated from time to
time by Landlord for the general nonexclusive use of Landlord,
Tenant and the other tenants of the Project and their respective
employees, agents, representatives, licensees and invitees
("Common Areas"). The use of such Common Areas shall be subject to
the rules and regulations contained herein and the provisions of
any covenants, conditions and restrictions affecting the Building
or the Project. Tenant shall keep all of the Common Areas free and
clear of any obstructions created or permitted by Tenant or
resulting from Tenant's operations, and shall use the Common Areas
only for normal activities, parking and ingress and egress by
Tenant and its employees, agents, representatives, licensees and
invitees to and from the Premises, the Building or the Project.
26
If, in the reasonable opinion of Landlord, unauthorized persons
are using the Common Areas by reason of the presence of Tenant in
the Premises, Tenant, upon demand of Landlord, shall correct such
situation by appropriate action or proceedings against all such
unauthorized persons. Nothing herein shall affect the rights of
Landlord at any time to remove any such unauthorized persons from
said areas or to prevent the use of any of said areas by
unauthorized persons. Landlord reserves the right to make such
changes, alterations, additions, deletions, improvements, repairs
or replacements in or to the Building, the Project (including the
Premises) and the Common Areas as Landlord may reasonably deem
necessary or desirable, including, without limitation,
constructing new buildings and making changes in the location,
size, shape and number of driveways, entrances, parking spaces,
parking areas, loading areas, landscaped areas and walkways;
provided, however, that there shall be no unreasonable permanent
obstruction of access to or use of the Premises resulting
therefrom. In the event that the Project is not completed on the
date of execution of this Lease, Landlord shall have the sole
judgment and discretion to determine the architecture, design,
appearance, construction, workmanship, materials and equipment
with respect to construction of the Project. Notwithstanding any
provision of this Lease to the contrary, the Common Areas shall
not in any event be deemed to be a portion of or included within
the Premises leased to Tenant and the Premises shall not be deemed
to be a portion of the Common Areas. This Lease is granted subject
to the terms hereof, the rights and interests of third parties
under existing liens, ground leases, easements and encumbrances
affecting such property, all zoning regulations, rules,
ordinances, building restrictions and other laws and regulations
now in effect or hereafter adopted by any governmental authority
having jurisdiction over the Project or any part thereof.
(c) Notwithstanding any provision of this Lease to the contrary,
Landlord specifically reserves the right to redefine the term
"Project" for purposes of allocating and calculating Operating
Costs so as to include or exclude areas as Landlord shall from
time to time determine or specify (and any such determination or
specification shall be without prejudice to Landlord's right to
revise thereafter such determination or specification). In
addition, Landlord shall have the right to contract or otherwise
arrange for amenities, services or utilities (the cost of which is
included within Operating Costs) to be on a common or shared basis
to both the Project (i.e., the area with respect to which
Operating Costs are determined) and adjacent areas not included
within the Project, so long as the basis on which the cost of such
amenities, services or utilities is allocated to the Project is
determined on an arms-length basis or some other basis reasonably
determined by Landlord. In the case where the definition of the
Project is revised for purposes of the allocation or determination
of Operating Costs, Tenant's Proportionate Share shall be
appropriately revised to equal the percentage share of all
Rentable Area contained within the Project (as then defined)
represented by the Premises. Notwithstanding the foregoing,
Landlord agrees that in no event shall Tenant's Proportionate
Share of Operating Costs increase due to Landlord redefining the
term "Project." Landlord shall have the sole right to determine
which portions of the Project and other areas, if any, shall be
served by common management, operation, maintenance and repair.
Landlord shall also have the right, in its sole discretion, to
allocate and prorate any portion or portions of the Operating
Costs on a building-by-building basis, on an aggregate basis of
all buildings in the Project, or any other reasonable manner, and
if allocated on a building-by-building basis, then Tenant's
Proportionate Share shall, as to the portion of the Operating
Costs so allocated, be based on the ratio of the Rentable Area of
the Premises to the Rentable Area of the Building.
19. MISCELLANEOUS
-------------
(a) Attorneys' Fees. In the event of any legal action or proceeding
brought by either party against the other arising out of this
Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs (including, without
limitation, court costs and expert witness fees) incurred in such
action. Such amounts shall be included in any judgment rendered in
any such action or proceeding.
(b) Waiver. No waiver by Landlord of any provision of this Lease or of
any breach by Tenant hereunder shall be deemed to be a waiver of
any other provision hereof, or of any subsequent breach by Tenant.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval under this Lease shall not be
deemed to render unnecessary the obtaining of Landlord's consent
to or approval of any subsequent act of Tenant. No act or thing
done by Landlord or Landlord's agents during the term of this
Lease shall be deemed an acceptance of a surrender of the
Premises, unless in writing signed by Landlord. The delivery of
the keys to any employee or agent of Landlord shall not operate as
a termination of the Lease or a surrender of the Premises. The
acceptance of any Rent by Landlord following a breach of this
Lease by Tenant shall not constitute a waiver by Landlord of such
breach or any other breach unless such waiver is expressly stated
in a writing signed by Landlord.
27
(c) Notices. Any notice, demand, request, consent, approval,
disapproval or certificate ("Notice") required or desired to be
given under this Lease shall be in writing and given by certified
mail, return receipt requested, by personal delivery or by Federal
Express or a similar nationwide overnight delivery service
providing a receipt for delivery. Notices may not be given by
facsimile. The date of giving any Notice shall be deemed to be the
date upon which delivery is actually made by one of the methods
described in this Section 19(c) (or attempted if said delivery is
refused or rejected). If a Notice is received on a Saturday,
Sunday or legal holiday, it shall be deemed received on the next
business day. All notices, demands, requests, consents, approvals,
disapprovals, or certificates shall be addressed at the address
specified in Item 14 of the Basic Lease Provisions or to such
other addresses as may be specified by written notice from
Landlord to Tenant and if to Tenant, at the Premises. Either party
may change its address by giving reasonable advance written Notice
of its new address in accordance with the methods described in
this Paragraph; provided, however, no notice of either party's
change of address shall be effective until fifteen (15) days after
the addressee's actual receipt thereof.
(d) Access Control. Landlord shall be the sole determinant of the type
and amount of any access control or courtesy guard services to be
provided to the Project, if any. IN ALL EVENTS, LANDLORD SHALL NOT
BE LIABLE TO TENANT, AND TENANT HEREBY WAIVES ANY CLAIM AGAINST
LANDLORD, FOR (I) ANY UNAUTHORIZED OR CRIMINAL ENTRY OF THIRD
PARTIES INTO THE PREMISES, THE BUILDING OR THE PROJECT, (II) ANY
DAMAGE TO PERSONS, OR (III) ANY LOSS OF PROPERTY IN AND ABOUT THE
PREMISES, THE BUILDING OR THE PROJECT, BY OR FROM ANY UNAUTHORIZED
OR CRIMINAL ACTS OF THIRD PARTIES, REGARDLESS OF ANY ACTION,
INACTION, FAILURE, BREAKDOWN, MALFUNCTION AND/OR INSUFFICIENCY OF
THE ACCESS CONTROL OR COURTESY GUARD SERVICES PROVIDED BY
LANDLORD.
(e) Intentionally deleted.
(f) Holding Over. If Tenant retains possession of the Premises after
the termination of the Lease Term, unless otherwise agreed in
writing, such possession shall be subject to immediate termination
by Landlord at any time, and all of the other terms and provisions
of this Lease (excluding any expansion or renewal option or other
similar right or option) shall be applicable during such holdover
period, except that Tenant shall pay Landlord from time to time,
upon demand, as Basic Annual Rent for the holdover period, an
amount equal to One Hundred Fifty percent (150%) the Basic Annual
Rent in effect on the termination date, computed on a monthly
basis for each month or part thereof during such holding over. All
other payments shall continue under the terms of this Lease. In
addition, Tenant shall be liable for all damages incurred by
Landlord as a result of such holding over. No holding over by
Tenant, whether with or without consent of Landlord, shall operate
to extend this Lease except as otherwise expressly provided, and
this Paragraph shall not be construed as consent for Tenant to
retain possession of the Premises.
(g) Condition of Premises. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS LEASE, LANDLORD HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY THAT THE PREMISES ARE SUITABLE FOR
TENANT'S INTENDED PURPOSE OR USE, WHICH DISCLAIMER IS HEREBY
ACKNOWLEDGED BY TENANT. THE TAKING OF POSSESSION BY TENANT SHALL
BE CONCLUSIVE EVIDENCE THAT TENANT:
(i) ACCEPTS THE PREMISES, THE BUILDING AND LEASEHOLD IMPROVEMENTS AS
SUITABLE FOR THE PURPOSES FOR WHICH THE PREMISES WERE LEASED;
28
(ii) ACCEPTS THE PREMISES AND PROJECT AS BEING IN GOOD AND SATISFACTORY
CONDITION;
(iii) WAIVES ANY DEFECTS IN THE PREMISES AND ITS APPURTENANCES EXISTING
NOW OR IN THE FUTURE, EXCEPT THAT TENANT'S TAKING OF POSSESSION
SHALL NOT BE DEEMED TO WAIVE LANDLORD'S COMPLETION OF MINOR FINISH
WORK ITEMS THAT DO NOT INTERFERE WITH TENANT'S OCCUPANCY OF THE
PREMISES; AND
(iv) WAIVES ALL CLAIMS BASED ON ANY IMPLIED WARRANTY OF SUITABILITY OR
HABITABILITY.
(h) Quiet Possession. Upon Tenant's paying the Rent reserved hereunder
and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed
hereunder, Tenant shall have quiet possession of the Premises for
the term hereof without hindrance or ejection by any person
lawfully claiming under Landlord, subject to the provisions of
this Lease and to the provisions of any (i) covenants, conditions
and restrictions, (ii) master lease, or (iii) Security Documents
to which this Lease is subordinate or may be subordinated.
(i) Matters of Record. Except as otherwise provided herein, this Lease
and Tenant's rights hereunder are subject and subordinate to all
matters affecting Landlord's title to the Project recorded in the
Real Property Records of the County in which the Project is
located, prior to and subsequent to the date hereof, including,
without limitation, all covenants, conditions and restrictions.
Tenant agrees for itself and all persons in possession or holding
under it that it will comply with and not violate any such
covenants, conditions and restrictions or other matters of record.
Landlord reserves the right, from time to time, to grant such
easements, rights and dedications as Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and
covenants, conditions and restrictions affecting the Premises, the
Building or the Project, as long as such easements, rights,
dedications, maps, and covenants, conditions and restrictions do
not materially interfere with the use of the Premises by Tenant.
At Landlord's request, Tenant shall join in the execution of any
of the aforementioned documents.
(j) Successors and Assigns. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this
Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, personal
representatives, successors and assigns. Tenant shall attorn to
each purchaser, successor or assignee of Landlord.
(k) Brokers. Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this
Lease, excepting only the brokers named in Item 12 of the Basic
Lease Provisions and that it knows of no other real estate broker
or agent who is or might be entitled to a commission in connection
with this Lease. Tenant hereby agrees to indemnify, defend and
hold Landlord harmless for, from and against all claims for any
brokerage commissions, finders' fees or similar payments by any
persons other than those listed in Item 12 of the Basic Lease
Provisions and all costs, expenses and liabilities incurred in
connection with such claims, including reasonable attorneys' fees
and costs.
(l) Name. Landlord shall have the exclusive right at all times during
the Lease Term to change, modify, add to or otherwise alter the
name, number, or designation of the Building and/or the Project,
and Landlord shall not be liable for claims or damages of any kind
which may be attributed thereto or result therefrom.
(m) Examination of Lease. Submission of this instrument for
examination or signature by Tenant does not constitute a
reservation of or option for lease, and it is not effective as a
lease or otherwise until execution by and delivery to both
Landlord and Tenant.
(n) Time. Time is of the essence of this Lease and each and all of its
provisions.
29
(o) Defined Terms and Marginal Headings. The words "Landlord" and
"Tenant" as used herein shall include the plural as well as the
singular and for purposes of Articles 5, 7, 13 and 18, the term
Landlord shall include Landlord, its employees, contractors and
agents. If more than one person is named as Tenant the obligations
of such persons are joint and several. The marginal headings and
titles to the articles of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation
of any part hereof.
(p) Conflict of Laws; Prior Agreements; Separability. This Lease shall
be governed by and construed pursuant to the laws of the State of
Illinois. This Lease contains all of the agreements of the parties
hereto with respect to any matter covered or mentioned in this
Lease. No prior agreement, understanding or representation
pertaining to any such matter shall be effective for any purpose.
No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their
respective successors in interest. The illegality, invalidity or
unenforceability of any provision of this Lease shall in no way
impair or invalidate any other provision of this Lease, and such
remaining provisions shall remain in full force and effect.
(q) Authority. If Tenant is a corporation, each individual executing
this Lease on behalf of Tenant hereby covenants and warrants that
Tenant is a duly authorized and existing corporation, that Tenant
has and is qualified to do business in the State, that the
corporation has full right and authority to enter into this Lease,
and that each person signing on behalf of the corporation is
authorized to do so. If Tenant is a partnership or trust, each
individual executing this Lease on behalf of Tenant hereby
covenants and warrants that he is duly authorized to execute and
deliver this Lease on behalf of Tenant in accordance with the
terms of such entity's partnership or trust agreement. Tenant
shall provide Landlord on demand with such evidence of such
authority as Landlord shall reasonably request, including, without
limitation, resolutions, certificates and opinions of counsel.
(r) Joint and Several Liability. If two or more individuals,
corporations, partnerships or other business associations (or any
combination of two or more thereof) shall sign this Lease as
Tenant, the liability of each such individual, corporation,
partnership or other business association to pay Rent and perform
all other obligations hereunder shall be deemed to be joint and
several, and all notices, payments and agreements given or made
by, with or to any one of such individuals, corporations,
partnerships or other business associations shall be deemed to
have been given or made by, with or to all of them. In like
manner, if Tenant shall be a partnership or other business
association, the members of which are, by virtue of statute or
federal law, subject to personal liability, then the liability of
each such member shall be joint and several.
(s) Rental Allocation. For purposes of Section 467 of the Internal
Revenue Code of 1986, as amended from time to time, Landlord and
Tenant hereby agree to allocate all Rent to the period in which
payment is due, or if later, the period in which Rent is paid.
(t) Rules and Regulations. Tenant agrees to comply with all rules and
regulations of the Building and the Project imposed by Landlord as
set forth on Exhibit D attached hereto, as the same may be changed
from time to time upon reasonable notice to Tenant. Landlord shall
not be liable to Tenant for the failure of any other tenant or any
of its assignees, subtenants, or their respective agents,
employees, representatives, invitees or licensees to conform to
such rules and regulations.
(u) Joint Product. This Agreement is the result of arms-length
negotiations between Landlord and Tenant and their respective
attorneys. Accordingly, neither party shall be deemed to be the
author of this Lease and this Lease shall not be construed against
either party.
(v) Financial Statements. Upon Landlord's written request, but not
more than one time in a calendar year, as reasonably required for
the lender or prospective purchase, Tenant shall promptly furnish
Landlord the most current audited financial statements prepared in
accordance with generally accepted accounting principles,
certified by Tenant and an independent auditor to be true and
correct, reflecting Tenant's then current financial condition.
30
(w) Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, acts of war, terrorism,
terrorist activities, inability to obtain services, labor, or
materials or reasonable substitutes therefore, governmental
actions, civil commotions, fire, flood, earthquake or other
casualty, and other causes beyond the reasonable control of the
party obligated to perform, except with respect to the obligations
imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease and except as to Tenant's obligations under
Article 6 and Article 8 of this Lease and Section 19(f) of this
Lease and any extension of the Construction Termination Date as
set forth in Paragraph (d) of Exhibit B to this Lease
(collectively, a "Force Majeure"), notwithstanding anything to the
contrary contained in this Lease, shall excuse the performance of
such party for a period equal to any such prevention, delay or
stoppage and, therefore, if this Lease specifies a time period for
performance of an obligation of either party, that time period
shall be extended by the period of any delay in such party's
performance caused by a Force Majeure.
(x) Counterparts. This Lease may be executed in several counterparts,
each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
(y) Building Access Cards. Prior to Commencement Date, Tenant shall
submit to Landlord a list of employees needing Building Access
Cards. Based upon such list, Landlord will provide Tenant a
maximum of one (1) Building Access Card per employee. After the
Commencement Date, any replacement or additional cards will be
furnished at a cost to Tenant of Twenty Dollars ($20.00) per card.
(z) Expiration and Termination of Prior Lease. Landlord and Tenant
acknowledge and agree that Tenant currently occupies the Premises
pursuant to that certain Lease dated August 30, 1994, entered into
by and between Landlord, as successor-in-interest to LaSalle
National Bank not personally but as Successor Trustee Under Trust
Agreement dated March 11, 1988, and Xxxxxx.xxx, Inc., formerly
known as Quotesmith Corporation, as amended, (such Lease, as
amended, the "Prior Lease"), and that such Prior Lease expires on
and as of December 31, 2006 (the "Prior Lease Termination Date").
The effectiveness of this Lease is conditioned upon the expiration
and termination of the Prior Lease on the Prior Lease Termination
Date, and after such Prior Lease Termination Date, Tenant shall
have no rights or interest in or to the Premises pursuant to such
Prior Lease, but shall only have rights to the Premises in
accordance with and subject to the terms and conditions set forth
herein.
[SIGNATURE PAGE TO FOLLOW]
31
SIGNATURE PAGE TO LEASE
BY AND BETWEEN SMII OAK CREEK/LP, L.P., AS LANDLORD,
AND XXXXXX.XXX, INC., AS TENANT
IN WITNESS WHEREOF, the parties have executed this Lease to be effective as of
the Date of this Lease.
"LANDLORD" "TENANT"
-------- ------
SMII OAK CREEK/LP, L.P., XXXXXX.XXX, INC.,
a Delaware limited partnership a Delaware corporation
By: KBS Realty Advisors, LLC,
a Delaware limited liability company,
as agent
By: By:
---------------------- -----------------------
Xxxx Xxxxxxxx, Name: Xxxxxxx X. Xxxxxxx
Senior Vice President Title: Senior Vice President
32
EXHIBIT A-1
FLOOR PLAN OF THE PREMISES
--------------------------
A-1--1
EXHIBIT A-2
LEGAL DESCRIPTION OF THE PROJECT
--------------------------------
A-2--1
EXHIBIT B
WORK LETTER
-----------
THIS WORK LETTER is attached as Exhibit B to the Lease between SMII OAK
CREEK/LP, L.P., a Delaware limited partnership, as Landlord, and XXXXXX.XXX,
INC., a Delaware corporation, as Tenant, and constitutes the further agreement
between Landlord and Tenant as follows:
(a) Landlord, at its sole cost and expense, agrees to furnish or
perform those items of construction and those improvements
(the "Tenant Improvements") specified in the plans attached
hereto as Exhibit B-1.
(b) If Tenant shall desire any changes, Tenant shall so advise
Landlord in writing and Landlord shall determine whether such
changes can be made in a reasonable and feasible manner. Any
and all costs of reviewing any requested changes, and any and
all costs of making any changes to the Tenant Improvements
which Tenant may request and which Landlord may agree to
shall be at Tenant's sole cost and expense and shall be paid
to Landlord upon demand and before execution of the change
order.
(c) Landlord shall proceed with and complete the construction of
the Tenant Improvements. As soon as such improvements have
been substantially completed, Landlord shall notify Tenant in
writing of the date that the Tenant Improvements were
Substantially Completed. The Tenant Improvements shall be
deemed substantially completed ("Substantially Completed")
when, in the opinion of the construction manager (whether an
employee or agent of Landlord or a third party construction
manager), the Premises are substantially completed except for
punch list items which do not prevent in any material way the
use of the Premises for the purposes for which they were
intended. Upon Landlord's request following the date the
Tenant Improvements are Substantially Completed, Tenant
shall, upon demand, execute and deliver to Landlord a letter
of acceptance of delivery of the Premises.
(d) The failure of Tenant to take possession of or to occupy the
Premises shall not serve to relieve Tenant of obligations
arising on the Commencement Date or delay the payment of rent
by Tenant. Subject to applicable ordinances and building
codes governing Tenant's right to occupy or perform in the
Premises, Tenant shall be allowed to install its tenant
improvements, machinery, equipment, fixtures, or other
property on the Premises during the final stages of
completion of construction provided that Tenant does not
thereby interfere with the completion of construction or
cause any labor dispute as a result of such installations,
and provided further that Tenant does hereby agree to
indemnify, defend, and hold Landlord harmless from any loss
or damage to such property, and all liability, loss, or
damage arising from any injury to the Project or the property
of Landlord, its contractors, subcontractors, or materialmen,
and any death or personal injury to any person or persons
arising out of such installations, whether or not any such
loss, damage, liability, death, or personal injury was caused
by Landlord's negligence. Any such occupancy or performance
in the Premises shall be in accordance with the provisions
governing Tenant-Made Alterations and Trade Fixtures in the
Lease, and shall be subject to Tenant providing to Landlord
satisfactory evidence of insurance for personal injury and
property damage related to such installations and
satisfactory evidence of payment arrangements with respect to
installations permitted hereunder. Delay in putting Tenant in
possession of the Premises shall not serve to extend the term
of this Lease or to make Landlord liable for any damages
arising therefrom.
(e) Except for incomplete punch list items, Tenant upon the
Commencement Date shall have and hold the Premises as the
same shall then be without any liability or obligation on the
part of Landlord for making any further alterations or
improvements of any kind in or about the Premises.
B-1
EXHIBIT B-1
DESCRIPTION OF TENANT IMPROVEMENTS
----------------------------------
B-1-1
EXHIBIT B-2
ADDITIONAL TI ALLOWANCE WORK LETTER
-----------------------------------
THIS ADDITIONAL TI ALLOWANCE WORK LETTER is attached as Exhibit B-2 to
the Lease between SMII OAK CREEK/LP, L.P., a Delaware limited partnership, as
Landlord, and XXXXXX.XXX, INC., a Delaware corporation, as Tenant, and
constitutes the further agreement between Landlord and Tenant as follows:
Subject to the terms of this Exhibit, Landlord agrees to provide Tenant with the
Additional TI Allowance (as set forth in Item 18 of the Basic Lease Provisions)
to be applied toward the cost of certain leasehold improvement to be performed
by Tenant in the Premises (hereinafter referred to as the "Additional Tenant
Improvements"). Landlord is not providing any plans, specifications, or
improvements for the Additional Tenant Improvements; however, Landlord has
agreed, as set forth in this Exhibit, to provide Tenant with the Additional TI
Allowance solely for the purposes hereinafter set forth and Tenant shall use the
Additional TI Allowance to pay for the cost of the Additional Tenant
Improvements only. Tenant shall be permitted to perform and install the
Additional Tenant Improvements only after Tenant has obtained Landlord's written
approval with respect thereto (which approval shall not be unreasonably
withheld, provided the same do not affect the structure of the Building or the
Building systems, and are not visible from the outside of the Premises) and be
made only after Tenant has submitted plans reasonably acceptable to, and
approved by, Landlord, and Tenant shall also obtain Landlord's prior written
approval with respect to the contractors that Tenant engages to perform such
Additional Tenant Improvements; provided, however, that Tenant shall not need to
obtain Landlord's approval as to plans for any re-carpeting or re-painting of
the Premises. Tenant's contractors shall be required to comply with Landlord's
standard insurance and indemnification requirements for third party contractors
performing work at the Building. Landlord shall have no obligation to construct
or to pay for the construction of the Additional Tenant Improvements; however,
Landlord agrees to contribute toward the cost of construction of the Additional
Tenant Improvements the cash sum equal to the Additional TI Allowance.
Notwithstanding anything herein to the contrary, the Additional TI Allowance
shall be used only for the construction of the Additional Tenant Improvements,
and if construction of the Additional Tenant Improvements is not completed
within twelve (12) months of the Date of this Lease ("Construction Termination
Date"), then Landlord's obligation to provide the Additional TI Allowance shall
terminate and become null and void, and Tenant shall be deemed to have waived
its rights in and to said Additional TI Allowance. The Additional TI Allowance
will be reduced by any actual consulting, engineering or architectural fees
incurred by Landlord in reviewing Tenant's proposed Additional Tenant
Improvements (but not with respect to any re-carpeting or repainting of the
Premises). The construction costs that may be reimbursed from the Additional TI
Allowance shall include only the following: costs of labor, equipment, supplies
and materials furnished for construction of the Additional Tenant Improvements;
governmental fees and charges for required permits, plan checks, and inspections
for the Additional Tenant Improvements; charges of Tenant's design
professionals; and actual charges of Landlord's design professionals for review
of plans and monitoring of construction or installation of the Additional Tenant
Improvements. No other costs, fees or expenses of the Additional Tenant
Improvements shall be reimbursable out of the Additional TI Allowance.
Landlord's payment of the Additional TI Allowance, or such portion thereof as
Tenant may be entitled to, shall be made within thirty (30) days after each and
all of the following conditions shall have been satisfied: (i) the Additional
Tenant Improvements shall have been completed in accordance with the plans, to
the extent required, submitted by Tenant and approved by Landlord; (ii) Tenant
shall have delivered to Landlord satisfactory evidence that all mechanics' lien
rights of all contractors, suppliers, subcontractors, or materialmen furnishing
labor, supplies or materials in the construction or installation of the
Additional Tenant Improvements have been unconditionally waived, released, or
extinguished; (iii) Tenant shall have delivered to Landlord paid receipts or
other written evidence satisfactorily substantiating the actual amount of the
construction costs of the Additional Tenant Improvements; (iv) Tenant shall have
delivered to Landlord a final certificate of occupancy for the Premises, if
applicable; and (v) Tenant shall not then be in default of any of the provisions
of the Lease. If the actual cost of the Additional Tenant Improvements is less
than the Additional TI Allowance, then Tenant shall not receive any credit
whatsoever for the difference between the actual cost of the Additional Tenant
Improvements and Additional TI Allowance. Notwithstanding the foregoing, Tenant
shall comply with all of the terms and provisions of the Lease including,
without limitation, the alterations and insurance provisions of the Lease.
Further, Tenant shall have no authority to place any lien upon the Premises, or
the Building, or any portion thereof and any attempt to do so shall be void and
of no effect and such lien shall be removed at Tenant's sole cost and expense.
Additionally, any approval given by Landlord with respect to the Additional
Tenant Improvements and/or any monitoring of the construction of the Additional
Tenant Improvements by Landlord shall not make Landlord liable or responsible in
any way for the condition, quality or function of such matters or constitute any
undertaking, warranty or representation by Landlord with respect to any such
matters.
B-2-1
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
------------------------------------
The following are the Project Standards for Utilities and Services.
Landlord reserves the right to adopt such reasonable, nondiscriminatory
modifications and additions hereto as it deems appropriate.
1. As long as Tenant is not in default under any of the terms,
covenants, conditions, provisions or agreements of this Lease, Landlord shall,
subject to the limitations and provisions hereinafter set forth in this Exhibit
C:
(a) [Intentionally Deleted]
(b) Provide to the Premises, during Business Hours (and at other
times for an additional charge to be fixed by Landlord),
heating, ventilation, and air conditioning (HVAC), when and
to the extent, in the judgment of Landlord, any of such
services may be required for the comfortable occupancy of the
Premises for general office purposes. Landlord shall not be
responsible for room temperatures and conditions in the
Premises if the lighting and receptacle load for Tenant's
equipment and fixtures exceed those listed in paragraph (c)
hereof, if the Premises are used for other than general
office purposes or if the Building standard blinds or
curtains in the Premises are not closed so as to screen the
sun's rays.
(c) Provide janitorial services to the Premises Monday through
Friday (except state and federal holidays), provided the same
are used exclusively for the uses permitted under the
foregoing Lease, and are kept reasonably in order by Tenant.
Tenant shall pay to Landlord the cost of removal of any of
Tenant's refuse and rubbish, to the extent that the same
exceeds the refuse and rubbish which generally would be
produced by the use of the Premises for general office
purposes.
2. No data processing equipment, other special electrical equipment
(excluding personal computers utilizing 110 volt electric power), air
conditioning or heating units, or plumbing additions shall be installed, nor
shall any changes to the Building HVAC, electrical or plumbing systems be made
without the prior written consent of Landlord, which consent shall be subject to
Landlord's sole and absolute discretion. In the case of any such change,
Landlord reserves the right to designate and/or approve the contractor to be
used. Any permitted installations shall be made under Landlord's supervision.
3. Landlord shall not provide reception outlets or television or radio
antennas for television or radio broadcast reception, and Tenant shall not
install any such equipment without prior written approval from Landlord.
4. Tenant will not, without the prior written consent of Landlord, use
any apparatus, machine or device in the Premises, including, without limitation,
duplicating machines, electronic data processing machines, punch card machines
and machines using current in excess of 110 volts, which will in any way
increase the amount of electricity or water usually furnished or supplied for
use of the Premises as general office space, nor connect with electric current,
except through existing electrical outlets in the Premises, any apparatus or
device for the purpose of using electric current in excess of that usually
furnished or supplied for use of the Premises as general office space.
5. Tenant agrees to cooperate fully at all times with Landlord, and to
abide by all regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the Building HVAC, electrical, plumbing and
other systems. Tenant shall comply with all laws, statutes, ordinances and
governmental rules and regulations now in force or which may hereafter be
enacted or promulgated in connection with Building services furnished to the
Premises, including, without limitation, any governmental rule or regulation
relating to the heating and cooling of the Building.
C-1
EXHIBIT D
BUILDING RULES AND REGULATIONS
------------------------------
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways and corridors of halls shall not be obstructed or used for any purpose
other than ingress and egress. The halls, passages, entrances, elevators,
stairways, balconies and roof are not for the use of the general public, and the
Landlord shall in all cases retain the right to control and prevent access
thereto of all persons whose presence, in the judgment of the Landlord, shall be
prejudicial to the safety, character, reputation and interests of the Building
and its tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom the Tenant normally deals only for the
purpose of conducting its business in the Premises (such as clients, customers,
office suppliers and equipment vendors, and the like) unless such persons are
engaged in illegal activities. No tenant and no employees of any tenant shall go
upon the roof of the Building without the written consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Premises
other than Landlord standard window coverings. All electrical ceiling fixtures
hung in offices or spaces along the perimeter of the Building must be
fluorescent, of a quality, type, design and bulb color approved by Landlord.
Neither the interior nor the exterior of any windows shall be coated or
otherwise sunscreened without the written consent of Landlord. The Building is a
"no smoking building" and Landlord shall have the right to enforce a no smoking
rule within the Building and Project, except that Landlord agrees to designate
certain areas outside the Building, but within the Project, as designated
smoking areas.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Premises, the Building or the Project without the prior written consent of the
Landlord. If the Landlord shall have given such consent at the time, whether
before or after the execution of this Lease, such consent shall in no way
operate as a waiver or release of any of the provisions hereof or of this Lease,
and shall be deemed to relate only to the particular sign, advertisement or
notice so consented to by the Landlord and shall not be construed as dispensing
with the necessity of obtaining the specific written consent of the Landlord
with respect to each and every such sign, advertisement or notice other than the
particular sign, advertisement or notice, as the case may be, so consented to by
the Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove or stop same without any liability, and may charge the
expense incurred in such removal or stopping to such tenant. Interior signs on
doors and the directory tablet shall be inscribed, painted or affixed for each
tenant by the Landlord at Landlord's expense, and shall be of a size, color and
style acceptable to the Landlord. The directory tablet will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom. Nothing may be
placed on the exterior of corridor walls or corridor doors other than Landlord's
standard lettering.
4. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx. Tenant shall
see that the windows, transoms and doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care not to leave
windows open when it rains. Tenant shall exercise extraordinary care and caution
that all water faucets or water apparatus are entirely shut off before Tenant or
Tenant's employees leave the Building, and that all electricity, gas or air
shall likewise be carefully shut off, so as to prevent waste or damage. Tenant
shall cooperate with Landlord in obtaining maximum effectiveness of the cooling
system by closing window coverings when the sun's rays fall directly on the
windows of the Premises. Tenant shall not tamper with or change the setting of
any thermostats or temperature control valves.
5. The toilet rooms, water and wash closets and other plumbing fixtures
shall not be used for any purpose other than those for which they were
considered, and no sweepings, rubbish, rags or other substances shall be thrown
therein. All damages resulting from any misuse of the fixtures shall be borne by
the tenant who, or whose subtenants, assignees or any of their servants,
employees, agents, visitors or licensees shall have caused the same.
D-1
6. No tenant shall xxxx, paint, drill into, or in any way deface any
part of the Premises, the Building or the Project. No boring, cutting or
stringing of wires or laying of linoleum or other similar floor coverings shall
be permitted, except with the prior written consent of the Landlord and as the
Landlord may direct.
7. No bicycles, vehicles, birds or animals of any kind shall be brought
into or kept in or about the Premises, and no cooking shall be done or permitted
by any tenant on the Premises, except that the preparation of coffee, tea, hot
chocolate and similar items (including those suitable for microwave heating) for
tenants and their employees shall be permitted, provided that the power required
therefor shall not exceed that amount which can be provided by a 30 amp circuit.
No tenant shall cause or permit any unusual or objectionable odors to be
produced or permeate the Premises. Smoking or carrying lighted cigars,
cigarettes or pipes in the Building is prohibited.
8. The Premises shall not be used for manufacturing or for the storage
of merchandise except as such storage may be incidental to the permitted use of
the Premises. No tenant shall occupy or permit any portion of the Premises to be
occupied as an office for a public stenographer or typist, or for the
manufacture or sale of liquor, narcotics, or tobacco (except by a cigarette
vending machine for use by Tenant's employees) in any form, or as a medical
office, or as a xxxxxx or manicure shop, or as an employment bureau, without the
express written consent of Landlord. No tenant shall engage or pay any employees
on the Premises except those actually working for such tenant on the Premises
nor advertise for laborers giving an address at the Premises. The Premises shall
not be used for lodging or sleeping or for any immoral or illegal purposes.
9. No tenant shall make, or permit to be made any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in any other way.
No tenant shall throw anything out of doors, windows or skylights or down the
passageways.
10. No tenant, subtenant or assignee nor any of their servants,
employees, agents, visitors or licensees shall at any time bring or keep upon
the Premises any inflammable, combustible or explosive fluid, chemical or
substance.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanisms thereof. Each tenant must, upon the termination of his
tenancy, restore to Landlord all keys of stores, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant and in the event of
the loss of keys so furnished, such tenant shall pay to Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
12. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which Landlord shall determine from time to time, without the express written
consent of Landlord. The moving of safes or other fixtures or bulky matter of
any kind must be done upon previous notice to the Project Management Office and
under its supervision, and the persons employed by any tenant for such work must
be acceptable to the Landlord. Landlord reserves the right to inspect all safes,
freight or other bulky articles to be brought into the Building and to exclude
from the Building all safes, freight or other bulky articles which violate any
of these Rules and Regulations or the Lease of which these Rules and Regulations
are a part. Landlord reserves the right to prescribe the weight and position of
all safes, which must be placed upon supports approved by Landlord to distribute
the weight.
13. No tenant shall purchase spring water, ice, towel, janitorial
maintenance or other similar services from any person or persons not approved by
Landlord.
14. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or the Project or its desirability as an office location, and upon
written notice from Landlord, any tenant shall refrain from or discontinue such
advertising.
D-2
15. Landlord reserves the right to exclude from the Building between
the hours of 6:00 P.M. and 7:00 A.M. and at all hours on Saturday, Sunday and
legal holidays all persons who do not present a pass or card key to the Building
approved by the Landlord. Each tenant shall be responsible for all persons who
enter the Building with or at the invitation of such tenant and shall be liable
to Landlord for all acts of such persons. Landlord shall in no case be liable
for damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of an invasion, mob riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right, without abatement of Rent, to require all persons
to vacate the Building and to prevent access to the Building during the
continuance of the same for the safety of the tenants, the protection of the
Building, and the property in the Building.
16. Any persons employed by any tenant to do janitorial work shall,
while in the Building and outside of the Premises, be subject to and under the
control and direction of the Project Management Office (but not as an agent or
servant of said Office or of the Landlord), and such tenant shall be responsible
for all acts of such persons.
17. All doors opening onto public corridors shall be kept closed,
except when in use for ingress and egress.
18. The requirements of Tenant will be attended to only upon
application to the Project Management Office.
19. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall report and otherwise cooperate to prevent the same.
20. All office equipment of any electrical or mechanical nature shall
be placed by Tenant in the Premises in settings approved by Landlord, to absorb
or prevent any vibration, noise or annoyance.
21. No air conditioning unit or other similar apparatus shall be
installed or used by any tenant without the written consent of Landlord.
22. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks, except those equipped
with rubber tires and rubber side guards.
23. No vending machine or machines of any description shall be
installed, maintained or operated upon the Premises without the written consent
of Landlord.
24. The scheduling of tenant move-ins shall be subject to the
reasonable discretion of Landlord.
25. If the Tenant desires telephone or telegraph connections, the
Landlord will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made without
direction from the Landlord.
26. The term "personal goods or services vendors" as used herein means
persons who periodically enter the Building of which the Premises are a part for
the purpose of selling goods or services to a tenant, other than goods or
services which are used by the Tenant only for the purpose of conducting its
business in the Premises. "Personal goods or services" include, but are not
limited to, drinking water and other beverages, food, barbering services and
shoeshining services. Landlord reserves the right to prohibit personal goods and
services vendors from access to the Building except upon Landlord's prior
written consent and upon such reasonable terms and conditions, including, but
not limited to, the payment of a reasonable fee and provision for insurance
coverage, as are related to the safety, care and cleanliness of the Building,
the preservation of good order thereon, and the relief of any financial or other
burden on Landlord or other tenants occasioned by the presence of such vendors
or the sale by them of personal goods or services to the Tenant or its
employees. If necessary for the accomplishment of these purposes, Landlord may
exclude a particular vendor entirely or limit the number of vendors who may be
present at any one time in the Building.
D-3
EXHIBIT E
FORM ESTOPPEL CERTIFICATE
-------------------------
The undersigned, ________________________, a _____________ ("Tenant"),
the tenant under that certain Lease dated _______________, between Tenant and
_____________, a _________, as landlord ("Landlord") hereby certifies as
follows:
27. The Premises (the "Premises") under the Lease is Suite _____,
____________________________.
28. The Lease is in full force and effect and has not been modified or
amended in any respect except by amendments dated _________________________
(copies of which are attached).
29. The Lease has not been assigned, encumbered, subleased or
transferred in any manner other than:
________________________________________________________________________________
________________________________.
30. The Commencement Date of the Lease is
_______________________________ and the expiration date of the Lease is
_____________. There are no options to extend the term of the Lease beyond such
expiration date other than _________________________.
31. The present monthly rental under the Lease is $_____________. The
sum of $ ___________, representing ___ month's Rent has been paid in advance.
32. The security deposit held by Landlord under the Lease is
$______________.
33. Rent under the Lease has been paid through the month of
_____________. Tenant's estimated share of Operating Costs payments have been
paid through ____________________.
34. The Premises are presently occupied by Tenant.
35. Tenant has accepted the Premises without condition or qualification
under the Lease and Landlord has completed and complied with all conditions of
such acceptance.
36. To the best knowledge of Tenant, neither it nor the Landlord is in
default (or will be in default following the delivery of notice, the passage of
time, or both) or claims a default by the other under the Lease, or has any
claims, defenses, or rights of offset against payment of Rent under the Lease,
except as follows:
37. Tenant acknowledges that Landlord has the right to assign the Lease
and the Rent thereunder and to sell, assign, transfer, mortgage or otherwise
encumber the Project without the consent of Tenant.
38. Tenant makes this statement for the benefit and protection of
______________ with the understanding that _________________ intends to rely on
this statement in connection with ______________.
E-1
IN WITNESS WHEREOF, this certificate has been executed and delivered by
the authorized officers or representatives of the undersigned as of
_______________________.
"TENANT"
------
----------------------------------,
a
---------------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
E-2
EXHIBIT F
TENANT'S INITIAL CERTIFICATE
----------------------------
To: ------------------------ ("Landlord")
Date:
------------------------
Tenant's Initial Certificate
------------------------------
------------------------------
The undersigned, as the Tenant under that certain Lease (the "Lease")
dated ______________, made and entered into between ______________, a
_________________, as Landlord, and the undersigned, as Tenant, hereby certifies
that:
1 The Tenant's Additional Improvements have been Substantially
Completed in accordance with the terms and provisions of the
Lease.
Very truly yours,
----------------------------------,
a
---------------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
F-1
EXHIBIT G
AMERICANS WITH DISABILITIES ACT
-------------------------------
Subject to any changes in the ADA, Tenant agrees to comply with all
requirements of the Americans With Disabilities Act of 1990 (Public Law 101-336
{July 26, 1990}) ("ADA") applicable to the Premises and the Project to
accommodate its employees, invitees and customers. Tenant acknowledges that it
shall be wholly responsible for any accommodations or alterations which need to
be made to the Premises. No provision in this Lease should be construed in any
manner as permitting, consenting to or authorizing Tenant to violate
requirements under the ADA and any provision to the Lease which could arguably
be construed as authorizing a violation of the ADA shall be interpreted in a
manner which permits compliance with the ADA and is hereby amended to permit
such compliance.
G-1
ADDENDUM ONE
ONE RENEWAL OPTION AT MARKET
----------------------------
ATTACHED TO AND A PART OF THE LEASE
BY AND BETWEEN
SMII OAK CREEK/LP, L.P.
and
XXXXXX.XXX, INC.
(a) Provided that as of the time of the giving of the Extension Notice
and the Commencement Date of the Extension Term, (i) Tenant is the Tenant
originally named herein or an Affiliate, (ii) Tenant has not subleased or
assigned the lease to anyone except an Affiliate, and (iii) no Event of Default
exists or would exist but for the passage of time or the giving of notice, or
both; then Tenant shall have the right to extend the Lease Term for an
additional term of five (5) years (such additional term is hereinafter called
the "Extension Term") commencing on the day following the expiration of the
Lease Term (hereinafter referred to as the "Commencement Date of the Extension
Term"). Tenant shall give Landlord notice (hereinafter called the "Extension
Notice") of its election to extend the term of the Lease Term at least nine (9)
months, but not more than twelve (12) months, prior to the scheduled expiration
date of the Lease Term.
(b) The Basic Annual Rent payable by Tenant to Landlord during the
Extension Term shall be the then prevailing market rate for comparable space in
the Project and comparable buildings in the vicinity of the Project, taking into
account the size of the Lease, the length of the renewal term, market
escalations and the credit of Tenant. The Basic Annual Rent shall not be reduced
by reason of any costs or expenses saved by Landlord by reason of Landlord's not
having to find a new tenant for such premises (including, without limitation,
brokerage commissions, costs of improvements, rent concessions or lost rental
income during any vacancy period). In the event Landlord and Tenant fail to
reach an agreement on such rental rate and execute the Amendment (defined below)
at least four (4) months prior to the expiration of the Lease, then Tenant's
exercise of this renewal option shall be deemed withdrawn and the Lease shall
terminate on its original expiration date.
(c) The determination of Basic Annual Rent does not reduce the
Tenant's obligation to pay or reimburse Landlord for Operating Costs and other
reimbursable items as set forth in the Lease, and Tenant shall reimburse and pay
Landlord as set forth in the Lease with respect to such Operating Costs and
other items with respect to the Premises during the Extension Term without
regard to any cap on such expenses set forth in the Lease.
(d) Except for the Basic Annual Rent as determined above, Tenant's
occupancy of the Premises during the Extension Term shall be on the same terms
and conditions as are in effect immediately prior to the expiration of the
initial Lease Term; provided, however, Tenant shall have no further right to any
allowances, credits or abatements or any options to expand, contract, terminate,
renew or extend the Lease.
(e) If Tenant does not give the Extension Notice within the period set
forth in Paragraph (a) above, Tenant's right to extend the Lease Term shall
automatically terminate. Time is of the essence as to the giving of the
Extension Notice.
(f) Landlord shall have no obligation to refurbish or otherwise
improve the Premises for the Extension Term. The Premises shall be tendered on
the Commencement Date of the Extension Term in "as-is" condition.
(g) If the Lease is extended for the Extension Term, then Landlord
shall prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term and the other provisions applicable thereto (the
"Amendment").
(h) If Tenant exercises its right to extend the term of the Lease for
the Extension Term pursuant to this Addendum, the term "Lease Term" as used in
the Lease, shall be construed to include, when practicable, the Extension Term
except as provided in Paragraph (d) above.
1
ADDENDUM TWO
RIGHT OF FIRST OFFER
--------------------
ATTACHED TO AND A PART OF THE LEASE
BY AND BETWEEN
SMII OAK CREEK/LP, L.P.
and
XXXXXX.XXX, INC.
(a) "Offered Space" shall mean any vacant available space in the
Building, subject to the terms of Paragraph (b) below.
(b) Provided that as of the date of the giving of the Offer Notice,
(i) Tenant is the Tenant originally named herein or an Affiliate, (ii) Tenant
has not sublet or assigned this Lease except to an Affiliate, (iii) there is no
current Event of Default then Landlord, before offering such Offered Space to
anyone, other than the tenant then occupying such space (or its affiliates),
shall offer to Tenant the right to include the Offered Space within the Premises
on the same terms and conditions upon which Landlord intends to offer the
Offered Space for lease. Notwithstanding anything to the contrary in the Lease,
the right of first offer granted to Tenant under this Addendum Two shall be
subject and subordinate to (i) the rights of all tenants at the Project under
existing leases, and (ii) the herein reserved right of Landlord to renew or
extend the term of any lease with the tenant then occupying such space (or any
of its affiliates), whether pursuant to a renewal or extension option in such
lease or otherwise.
(c) Such offer shall be made by Landlord to Tenant in a written notice
(hereinafter called the "Offer Notice") which offer shall designate the space
being offered and shall specify the terms which Landlord intends to offer with
respect to any such Offered Space. Tenant may accept the offer set forth in the
Offer Notice by delivering to Landlord an unconditional acceptance (hereinafter
called "Tenant's Notice") of such offer within ten (10) business days after
delivery by Landlord of the Offer Notice to Tenant. Time shall be of the essence
with respect to the giving of Tenant's Notice. If Tenant does not accept (or
fails to timely accept) an offer made by Landlord pursuant to the provisions of
this Addendum Two with respect to the Offered Space designated in the Offer
Notice and execute the Amendment (defined below) within thirty (30) days after
the delivery of the Offer Notice, then Landlord shall be under no further
obligation with respect to such space by reason of this Addendum Two; provided,
that Landlord executes a lease agreement with the Proposed Tenant under
substantially the same terms as contained in the Offer Notice to Tenant within
twelve (12) months following Landlord's receipt of Tenant's Notice. If Landlord
does not execute a lease with the Proposed Tenant within such twelve (12) month
period, then Tenant's right of first offer under this Addendum Two shall apply
once again to the Offered Space.
(d) Tenant must accept all Offered Space offered by Landlord at any
one time if it desires to accept any of such Offered Space and may not exercise
its right with respect to only part of such space. In addition, if Landlord
desires to lease more than just the Offered Space to one tenant, Landlord may
offer to Tenant pursuant to the terms hereof all such space which Landlord
desires to lease, and Tenant must exercise its rights hereunder with respect to
all such space and may not insist on receiving an offer for just the Offered
Space.
(e) In the event that Tenant exercises its rights to any Offered Space
pursuant to this Addendum Two, then Landlord shall prepare, and Tenant shall
execute, an amendment to the Lease which confirms such expansion of the Premises
and the other provisions applicable thereto (the "Amendment").
1
ADDENDUM THREE
CANCELLATION OPTION
-------------------
ATTACHED TO AND A PART OF THE LEASE
BY AND BETWEEN
SMII OAK CREEK/LP, L.P.
and
XXXXXX.XXX, INC.
Provided no Event of Default shall then exist under the Lease, Tenant
shall have the right at any time on or before December 31, 2010 to send Landlord
irrevocable written notice (the "Termination Notice") that Tenant has elected to
terminate this Lease, effective December 31, 2011 ("Termination Date").
If Tenant elects to terminate this Lease pursuant to the immediately
preceding sentence, the effectiveness of such termination shall be conditioned
upon Tenant paying to Landlord, simultaneously with Tenant's delivery of the
Termination Notice to Landlord, a termination fee equal to the sum of Landlord's
unamortized costs and relating to the Premises, including, any rental abatement,
leasing commissions, architectural fees or leasehold improvements for the
Premises, calculated as of the Termination Date (all such amounts being
amortized on a straight-line basis over the initial Lease Term, plus interest on
all such amortized amounts, payable at a rate of eight percent (8%) per annum),
plus three (3) months of rental (Basic Annual Rent and excess Operating Costs)
(collectively the "Termination Fee"). Such Termination Fee is consideration for
Tenant's option to terminate and shall not be applied to Rent or any other
obligation of Tenant. Landlord and Tenant shall be relieved of all obligations
accruing under this Lease after the Termination Date, but not any obligations
accruing under the Lease prior to the effective date of such termination. Both
Landlord and Tenant acknowledge and agree that it would be impracticable or
extremely difficult to affix damages if Tenant terminates this Lease and that
the Termination Fee set forth above represents a reasonable estimate of
Landlord's damages in the event Tenant terminates this Lease under this
Addendum. If Tenant does not timely deliver the Termination Notice or
Termination Fee to Landlord, then this termination option shall become null and
void and the Lease shall continue in full force and effect. Notwithstanding
anything to the contrary contained herein, fifty percent (50%) of the
Termination Fee shall be due on the date Tenant sends the Termination Notice to
Landlord, and the remaining fifty percent (50%) shall be due on the Termination
Date.
1
ADDENDUM FOUR
SIGNAGE RIGHTS
--------------
ATTACHED TO AND A PART OF THE LEASE
BY AND BETWEEN
SMII OAK CREEK/LP, L.P.
and
XXXXXX.XXX, INC.
Provided that (x) Tenant is the Tenant originally named herein or an
Affiliate, (y) Tenant has not sublet any of the Premises (z) Tenant is not in
Default, Landlord, at Landlord's sole cost and expense, shall install one (1)
building sign panel on the building monument sign located off of Cass Avenue
("Tenant's Sign"). Notwithstanding the foregoing sentence, Tenant's Sign shall
be subject to and in compliance with all Laws, applicable conditions, covenants
and restrictions effecting the Building. Tenant shall be solely responsible for
the cost and expense of obtaining and maintaining any necessary permits for
Tenant's Sign and any sign licenses related thereto, and for the cost and
expense of maintenance and utilities for Tenant's Sign (including all metered
electrical usage). Additionally, Tenant shall maintain Tenant's Sign in a first
class manner. Tenant's Sign shall be installed in accordance with all applicable
Laws, codes, ordinances, covenants, conditions and restrictions relating to the
Building. The style, type, color, size, and design of Tenant's Sign and the
means and method of attachment of Tenant's Sign to the retaining wall of the
Building shall be subject to Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed. All rights and remedies of
Landlord under the Lease (including, without limitation, Landlord's self-help
remedies) shall apply in the event Tenant fails to maintain Tenant's Sign as
herein required. Upon the expiration or earlier termination of the Lease, Tenant
shall pay all costs associated with the removal of Tenant's Sign and the
restoration of the exterior of the Building where Tenant's Sign is located to as
near its original condition as may then be reasonably required by Landlord. The
terms and provisions of this Addendum shall survive the expiration or earlier
termination of this Lease.
1
LEASE OF PREMISES....................................................... 1
BASIC LEASE PROVISIONS.................................................. 1
STANDARD LEASE PROVISIONS............................................... 4
1. TERM........................................................... 4
2. BASIC ANNUAL RENT AND SECURITY DEPOSIT......................... 4
3. ADDITIONAL RENT................................................ 5
4. IMPROVEMENTS AND ALTERATIONS................................... 9
5. REPAIRS........................................................ 10
6. USE OF PREMISES................................................ 10
7. UTILITIES AND SERVICES......................................... 13
8. NON-LIABILITY AND INDEMNIFICATION OF LANDLORD; INSURANCE....... 14
9. FIRE OR CASUALTY............................................... 17
10. EMINENT DOMAIN................................................. 17
11. ASSIGNMENT AND SUBLETTING...................................... 17
12. DEFAULT........................................................ 20
13. ACCESS; CONSTRUCTION........................................... 22
14. BANKRUPTCY..................................................... 23
15. SUBSTITUTION OF PREMISES -- Intentionally Deleted............ 23
16. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES............... 23
17. SALE BY LANDLORD; TENANT'S REMEDIES; NONRECOURSE LIABILITY..... 25
18. PARKING; COMMON AREAS.......................................... 25
19. MISCELLANEOUS.................................................. 27
LIST OF EXHIBITS
----------------
Exhibit X-0 Xxxxx Xxxx(x)
Xxxxxxx X-0 Xxxxx Description of the Project
Exhibit B Work Letter
Exhibit B-1 Description of Tenant's Improvements
Exhibit B-2 Additional TI Allowance Work Letter
Exhibit C Utilities and Services
Exhibit D Building Rules and Regulations
Exhibit E Form Estoppel Certificate
Exhibit F Tenant's Initial Certificate
Exhibit G ADA and TABA
Addendum One One Renewal Option at Market
Addendum Two Right of First Offer
Addendum Three Cancellation Option
Addendum Four Signage Rights
