SUBLEASE AGREEMENT
This Sublease Agreement is made this 29th day of August 2001, by and between
ICON InfoSystems, Inc., an Illinois corporation (hereinafter referred to as
"Tenant" or "Sub-Landlord") and BioSante Pharmaceuticals, Inc., a Delaware
corporation ("Sub-Tenant").
RECITALS
A. Sub-Landlord currently occupies Suite 280 of the building commonly
known as 000 Xxxxxxx Xxxxxxxxx Xxxxxxxx in Lincolnshire Corporate
Center, Lincolnshire, Illinois, pursuant to that certain Office Lease
Agreement dated February 11, 1998 by and between Tenant and American
National Bank and Trust Company of Chicago, as Trustee under Trust No.
113370-03 (now LaSalle Bank N.A., as successor trustee aforesaid, being
hereafter referred to as "Landlord"), which was amended by the same
parties by a First Amendment to Lease dated October 1, 1999, and be a
Second Amendment to Lease dated December 23, 1999 (said Lease, as
amended, being hereafter referred to as "Prime Lease").
B. Sub-Tenant desires to Sublease said Suite 280 from Sub-Lessor upon the
terms and conditions set forth below.
Therefore, in consideration of the mutual undertakings hereinafter set
forth and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby as follows:
1. DEFINITIONS:
For the purpose of this Sublease Agreement, the following terms shall
have the following meanings:
a. SUBLEASED PREMISES: Xxxxx 000, 000 Xxxxxxx Xxxxxxxxx Xxxxxxxx
in the Lincolnshire Corporate Center referred to in the Prime
Lease and shown on Exhibit A attached hereto.
b. SUBLEASE TERM: A period of time beginning on the Sublease
Commencement Date and ending on the Expiration Date.
c. SUBLEASE COMMENCEMENT DATE: September 1, 2001. Notwithstanding
anything contained herein to the contrary, the Sublease
Commencement Date shall not be deemed to occur unless and
until: (a) this Sublease has been fully executed by all
parties hereto, and (b) the Landlord consents to same in
writing.
d. RENT PAYMENT COMMENCEMENT DATE: The Sublease Commencement
Date.
e. EXPIRATION DATE: December 31, 2003.
f. RENT: $6,219.08 per month, gross.
g. SUBLEASE PAYMENT ADDRESS: ICON InfoSystems, Inc., Xxxxx 000,
000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
h. USE: The Subleased Premises may be used for general business
offices.
i. SUBLEASE: This Sublease Agreement.
2. SUBLEASED PREMISES:
Sub-Landlord does hereby sublease to Sub-Tenant and Sub-Tenant hires
and takes from Sub-Landlord the Subleased Premises as defined in
Section l.a.
3. SUBLEASE TERM:
The Sublease Term shall be as described in Section 1.b.
4. PRIME LEASE:
Sub-Landlord represents that a true and complete copy of the Prime
Lease is attached hereto as Exhibit B and such Prime Lease has not been
further amended or modified and remains in full force and effect. All
terms, covenants and conditions of the Prime Lease are incorporated
herein by reference, with the same force and effect as if set forth at
length herein, and shall be binding upon both Sub-Landlord and
Sub-Tenant. This sublease and all of the rights of Sub-Tenant hereunder
with respect to the Premises are subject to the terms, conditions and
provisions of the Prime Lease. Sub-Tenant hereby assumes and agrees to
perform faithfully and be bound by all of Sub-Landlord's obligations,
covenants, agreements and liabilities under the Prime Lease (except
that Sub-Tenant shall not be obligated to pay any Base Rent or
Additional Rent under Sections 1 or 2 of the Prime Lease); provided,
however in no event shall Sub-Tenant be responsible for the restoration
of the Premises to any condition other than the condition same is on
Sublease Commencement date; normal wear and tear and damage and/or loss
by casualty or condemnation excepted..
(A) Without limitation of the foregoing:
(i) Sub-Tenant shall not make any changes, alterations or
additions in or to the Premises except as otherwise
expressly provided herein;
(ii) If Sub-Tenant desires to take any other action and
the Prime Lease would require that Sub-Landlord
obtain the consent of Landlord before undertaking any
action of the same kind, Sub-Tenant shall not
undertake the same without the prior written consent
of Sub-Landlord. Sub-Landlord may condition its
consent on the consent of Landlord being obtained and
may require Sub-Tenant to contact Landlord directly
for such consent; provided, however, where consent is
so required, Sub-Landlord will not unreasonably
withhold, condition, or delay its consent, and
Sub-Landlord will reasonably assist Sub-Tenant in
pursuing such consent from the Landlord.
(iii) Sub-Landlord shall have all other rights, and all
privileges, options, reservations and remedies,
granted or allowed to, or held by, Landlord
under the Prime Lease; and Sub-Tenant shall be
entitled to all of Sub-Landlord's rights and benefits
as "Tenant" under the Prime Lease, except as
otherwise stated herein.
(iv) Sub-Tenant shall not do anything or suffer or permit
anything to be done which could result in a default
under the Prime Lease or permit the Prime Lease to be
cancelled or terminated.
(v) Sub-Tenant shall not assign, mortgage, pledge,
hypothecate or otherwise transfer or permit the
transfer of this Sublease or any interest of
Sub-Tenant in this Sublease, by operation of law or
otherwise, or permit the use of the Premises or any
part thereof by any persons other than Sub-Tenant and
Sub-Tenant's employees, or sublet the Premises or any
part thereof,
(vi) Neither rental nor other payments hereunder shall
xxxxx by reason of any damage to or destruction of
the Premises, the premises subject to the Prime
Lease, or the Building or any part thereof, unless,
and then only to the extent that, rental and such
other payments actually xxxxx under the Prime Lease
with respect to the Premises on account of such
event.
(vii) In the event of any conflict between the terms,
conditions and provisions of the Prime Lease and of
this Sublease, the terms, conditions and provisions
of this Sublease shall, in all instances, govern and
control; with respect to Sub-Tenant's and
Sub-Landlord's relationship hereunder.
Notwithstanding anything contained herein to the
contrary, Sub-Tenant shall not be responsible for any
of Sub-Landlord's financial or other obligations
arising before the Sublease Term, except as otherwise
stated herein.
(B) It is expressly understood and agreed that Sub-Landlord does
not assume and shall not have any of the obligations or
liabilities of Landlord under the Prime Lease and that
Sub-Landlord is not making the representations or warranties,
if any, made by Landlord in the Prime Lease. With respect to
work, services, repairs and restoration or the performance of
other obligations required of Landlord under the Prime Lease,
Sub-Landlord's sole obligation with respect thereto shall be
to request the same, upon written request from Sub-Tenant, and
to use reasonable efforts to obtain the same from Landlord.
Sub-Landlord shall not be liable in damages, nor shall rent
xxxxx hereunder, for or on account of any failure by Landlord
to perform the obligations and duties imposed on it under the
Prime Lease. In the event Sub-Landlord is entitled to any
abatement, offset, or the like under the Lease, Sublandlord
shall be entitled to same as to this Sublease.
5. RENT PAYMENT:
Sub-Tenant shall pay to Sub-Landlord during the Sublease Term, Rent as
defined in Section 1.f. Rent shall be paid monthly in advance. The
payment for the first month of the Sublease Term shall be due five days
prior to the Sublease Commencement Date; and
subsequent payments shall be due on the fifth day prior to the first
day of each month thereafter during the Sublease Term.
6. UTILITIES:
Electricity is currently separately metered and Sub-Tenant shall
promptly pay all charges for electricity used during the Sublease Term.
7. INSURANCE:
Sub-Landlord agrees to maintain the insurance of the kinds and amounts
required to be maintained by Sub-Landlord as tenant under Prime Lease
and that it shall name Sub-Tenant as an additional named insured.
Sub-Landlord will provide Sub-Tenant with copies of the policies or
certificates evidencing that such insurance is in full force and effect
and stating the terms thereof.
8. DESTRUCTION OR CONDEMNATION:
In the event that the Subleased Premises are (a) damaged or destroyed
by fire, explosion or any other casualty or taken by eminent domain (or
by deed in given lieu of condemnation), and (b) as a result cannot be
reasonably used by Sub-Tenant, Sub-Tenant may terminate the Sublease by
giving written notice thereof to Sub-Landlord within thirty (30) days
of the occurrence of either such event. In no event, however, shall
tenant share in any award whatsoever.
9. DEFAULT BY SUB-TENANT:
a. Upon the happening of any of the following:
(i) Sub-Tenant fails to pay any Base Rent or Additional
Rent within five (5) days after the date it is due
except that no more frequently than twice in any
calendar year, Tenant shall be entitled to 5 days'
prior notice of non-payment during which time it may
cure such non-payment;
(ii) Sub-Tenant fails to pay any other amount due from
Sub-Tenant hereunder and such failure continues for
five (5) days after notice thereof from Sub-Landlord
to Sub-Tenant;
(iii) Sub-Tenant fails to perform or observe any other
covenant or agreement set forth in this Sublease and
such failure continues for thirty (30) days after
notice thereof from Sub-Landlord to Sub-Tenant;
(iv) any other event occurs which results from the action
or failure to act by Sub-Tenant (as opposed to
Sub-Landlord) which would constitute a Default (which
is defined in the Prime Lease as a default after the
expiration of applicable cure periods) under the
Prime Lease if it involved Sub-Landlord or the
premises covered by the Prime Lease:
Sub-Tenant shall be deemed to be in default hereunder, and Sub-Landlord may
exercise, without limitation of any other rights and remedies available to it
hereunder or at law or in equity, any
and all rights and remedies of Landlord set forth in the Prime Lease in the
event of a default by Sub-Landlord thereunder, but only to the extent applicable
hereunder.
b. In the event Sub-Tenant fails or refuses to make any payment
or perform any covenant or agreement to be performed hereunder
by Sub-Tenant, Sub-Landlord may make such payment or undertake
to perform such covenant or agreement (but shall not have any
obligation to Sub-Tenant to do so). In such event, amounts so
paid and amounts expended in undertaking such performance,
together with all direct, actual, and reasonable costs,
expenses and attorneys' fees incurred by Sub-Landlord in
connection therewith, shall be additional rent hereunder.
10. WAIVER OF CLAIMS AND INDEMNITY:
a. Sub-Tenant hereby releases and waives any and all claims
against Landlord and Sub-Landlord and each of their respective
officers directors, partners, agents and employees for injury
or damage to person, property or business sustained in or
about the Building, the premises subject to the Prime Lease,
or the Premises by Sub-Tenant other than by reason of gross
negligence or willful misconduct and except in any case which
would render this release and waiver void under law.
b. Sub-Landlord hereby releases and waives any and all claims
against Sub-Tenant and its officers, directors, partners,
agents and employees for injury or damage to person, property
or business sustained in or about the Building, the premises
subject to the Prime Lease, or the Premises by Sub-Landlord
other than by reason of gross negligence or willful misconduct
and except in any case which would render this release and
waiver void under law.
c. Sub-Tenant agrees to indemnify, defend and hold harmless
Landlord and its beneficiaries, Sub-Landlord and the managing
agent of the Building and each of their respective officers,
directors, partners, agents and employees, from and against
any and all claims, demands, costs and expenses of every kind
and nature, including attorneys' fees and litigation expenses,
arising from Sub-Tenant's specific use of the Premises,
Sub-Tenant's construction of any leasehold improvements in the
Premises or from any breach or default on the part of
Sub-Tenant in the performance of any agreement or covenant of
Sub-Tenant to be performed or performed under this Sublease or
pursuant to the terms of this Sublease, or from any negligence
or willful misconduct of Sub-Tenant or its agents, officers,
employees, guests, servants, invitees or customers in or about
the Premises. In case any such proceeding, as aforesaid, is
brought against any of said indemnified parties. Sub-Tenant
covenants, if requested by Sub-Landlord, to defend such
proceeding at its sole cost and expense by legal counsel
reasonably satisfactory to Sub-Landlord.
11. SECURITY DEPOSIT:
Sub-Tenant shall deposit with Sub-Landlord no later than August 29,
2001, Eighteen Thousand Six Hundred Fifty-seven and 25/100 Dollars
($18,657.25) as security for the full and faithful performance of every
provision of this Sublease to be performed by Sub-
Tenant. If Sub-Tenant defaults with respect any provision of this
Sublease, including, but not limited to, the provisions relating to the
payment of rent, Sub-Landlord may use, apply or retain all or any part
of said security deposit for the payment of any rent and any other sum
in default, or for the payment of any other amount which Sub-Landlord
may spend or become obligated to spend by reason of Sub-Tenant's
default or to compensate Sub-Landlord for any other direct and actual
loss or damage which Sub-Landlord may suffer by reason of Sub-Tenant's
default. If Sub-Tenant shall fully and faithfully perform every
provision of this Sublease to be performed by it, said security deposit
or any balance thereof shall be returned to Sub-Tenant within thirty
(30) days after the expiration of the term and Sub-Tenant's vacation of
the Premises. Nothing herein shall be construed to limit the amount of
damages recoverable by or any other remedy to Sub-Landlord. Tenant may
substitute a Letter of Credit for the Security Deposit (in which event
the Sub-Landlord, upon receipt of the Letter of Credit shall return the
cash security deposit to Sub-Tenant), provided that the expiration date
thereof is no later earlier than 30 days following the expiration of
the Sublease Term, is in the face amount of $18,657.25, is a "clean"
letter of credit payable to Sub-Landlord on demand and in form and
drawn on a bank reasonably acceptable to Sub-Landlord. Failure to
deposit the Security Deposit (or Letter of Credit) by August 29, 2001
shall constitute Sub-Tenant's default hereunder and Tenant shall not be
permitted to occupy the Premises.
12. PARKING:
Sub-Tenant shall be permitted exclusive use of two (2) of the exterior
reserved parking spaces so allocated to Sub-Landlord under the Prime
Lease. Sub-Tenant shall promptly pay all costs for signage and
installation.
13. BROKERS:
The parties warrant to each other that neither has used the services of
any broker in connection with this Sub-Lease except for Van Vlissingen
and Co. Sub-Landlord shall pay all of Van Vlissingen's commissions in
connection with this Sub-Lease per Sub-Landlord's contract with Van
Vlissingen and Co. Each of the parties ("Indemnifying Party") shall
indemnify the other party and shall hold said other party harmless
against any and all other claims for brokerage commissions claimed to
have arisen through the dealings or activities of said Indemnifying
Party.
14. RECITALS: The Recitals set forth above are incorporated in and made
apart of this Sublease.
15. LANDLORD'S CONSENT: This Sublease is subject to and contingent upon the
Landlord Consenting hereto as provided in paragraph 13 of the Prime
Lease.
16. REPRESENTATIONS AND WARRANTIES OF SUB-LANDLORD. In addition to the
other representations and warranties of Sub-Landlord hereunder,
Sub-Landlord represents and warrants to Sub-Tenant that: (a) neither
Sub-Landlord nor, to the best of Sub-Landlord's knowledge, Landlord is
in default under the terms of the Lease; and (b) there is no known
circumstances existing under which Sub-Landlord or Landlord may be
deemed in default pursuant to the Lease merely upon the service of
notice or passage of time, or both.
17. COVENANT OF QUIET ENJOYMENT. So long as Sub-Tenant is not in default
under this Sublease beyond all applicable cure periods, Sub-Landlord
shall not interfere with Sub-Tenant's uses and enjoyment of, or access
to, the Premises.
18. NOTICES. Notices and communications ("Notices") required or permitted
to be given shall be mailed, by certified mail or registered United
State mail, postage prepaid; sent via facsimile followed by submission
of the original; or delivered (either personal delivery or delivery by
private express courier service such as Federal Express).
Address for Notices:
SUB-LANDLORD:
ICON InfoSystems, Inc.
Xxxxx 000
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
SUB-TENANT
BioSante Pharmaceuticals, Inc.
Xxxxx 000
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
with a copy to:
Xxxx X. Xxxxxxxxxx
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
The addresses for Notices for a party may be changed by that party by written
notice to the other party in accordance with this Paragraph. Notices sent in
accordance with this Paragraph shall be deemed effective upon receipt or on the
date of first refusal to accept delivery of such notice.
Agreed by the Parties:
BIOSANTE PHARMACEUTICALS, INC. ICON INFOSYSTEMS, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxx
---------------------------------- -------------------------------
By: Xxxxxxx X. Xxxxx Xxxxxxx Xxxxxxx
Its: President & CEO Its: President
Received and Approved: Van Vlissingen and Co.
By:
-------------------------------
EXHIBIT A
SUBLEASED PREMISES
EXHIBIT B
PRIME LEASE
CONSENT TO SUBLEASE
This Agreement, made this 29th day of August, 2001 by and among
LaSalle Bank National Association, not personally but as Successor Trustee to
American National Bank and Trust Company of Chicago under Trust Agreement
dated January 1, 1991 and known as Trust No. 00-0000-00 ("Landlord"), ICON
InfoSystems, Inc., an Illinois corporation ("Tenant") and Biosante
Pharmaceuticals, Inc., a Delaware corporation ("Subtenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to a written lease dated
February 11, 1998, as amended (the lease as heretofore amended herein called
the "Lease"), under which Lease Landlord demised to Tenant certain premises
known as Suites 280 and 110 in the building located at 000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxxx (the "Premises"); and
WHEREAS, Tenant and Subtenant have entered into the sublease (the
"Sublease") attached hereto as Exhibit A for Suite 280 of the Premises
(herein called the "Subleased Premises") and have requested Landlord's
consent to the Sublease; and
WHEREAS, Landlord is willing to consent to the Sublease on the terms
and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto agree as follows.
1. CONSENT. Landlord hereby consents to the Sublease subject to
the terms and conditions of this Agreement all of which shall to the extent
not otherwise reflected in the Sublease, be deemed incorporated in the
Sublease.
2. USE OF SUBLEASED PREMISES. Subtenant will use and occupy the
Premises for the purposes set forth in the Lease and shall not use or occupy,
or permit the use or occupancy of, the Subleased Premises or any part
thereof, for any purpose other than such purpose or in any manner which, in
Landlord's reasonable judgment, materially adversely shall affect or
interfere with any services required to be furnished by Landlord or Tenant or
with the proper and economical rendition of any such service.
3. SUBTENANT ALTERATIONS. No alterations shall be made by
Subtenant in the Subleased Premises without the prior written consent of
Landlord pursuant to and in accordance with the provisions of the Lease.
4. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY SUBTENANT.
a. To the extent not expressly prohibited by law,
Subtenant releases Landlord and its beneficiaries, and their agents,
servants, and employees, from and waives all claims for damages to
person or property sustained by the Subtenant or by any occupant of
the Subleased Premises, or by any other person, resulting directly
or indirectly from fire or other casualty, cause, or any existing or
future condition, defect, matter, or thing in or about the Subleased
Premises, or any part of it, or from any equipment or
appurtenance therein, or from any accident in or about the Subleased
Premises, or from any act or neglect of any tenant or other occupant
of the building located on the Subleased Premises or any part
thereof or of any other person. The foregoing release shall not
operate as a release of Landlord from liability for the negligent or
intentionally wrongful conduct of Landlord or its agent or
employees. This Paragraph shall apply especially, but not
exclusively, to damage caused by water, snow, frost, steam,
excessive heat or cold, sewerage, gas, odors, or noise, or the
bursting or leaking of pipes or plumbing fixtures, broken glass,
sprinkling or air conditioning devices or equipment, or flooding of
basements, and shall apply without distinction as to the person
whose act or neglect was responsible for the damage and whether the
damage was due to any of the acts specifically enumerated above, or
from any other thing or circumstance, whether of a like nature or of
a wholly different nature. Subject to Section 5(a), if any damage to
the Subleased Premises or any equipment or appurtenance therein,
whether belonging to Landlord or to other tenants or occupants or
otherwise, results from any negligent or wrongful acts of the
Subtenant, its employees, agents, or invitees, Subtenant shall be
liable therefor and Landlord may, at its option, repair such damage
and Subtenant shall upon demand by Landlord reimburse Landlord for
all reasonable costs of such repairs and damages in excess of
amounts, if any, paid to Landlord under insurance covering such
damages. All personal property belonging to the Subtenant or any
occupant of the Subleased Premises that is in the Subleased Premises
shall be there at the risk of the Subtenant or other person only and
Landlord shall not be liable for damage thereto or theft or
misappropriation thereof
b. To the extent not expressly prohibited by law, Subtenant
agrees to hold Landlord and its beneficiaries, and their agents,
servants, and employees, harmless and to indemnify each of them
against claims and liabilities, including reasonable attorneys'
fees, for injuries to all persons and damage to or theft or
misappropriation or loss of property occurring in or about the
Subleased Premises arising from Subtenant's negligence or wrongful
acts or from any breach or default on the part of Subtenant in the
performance of any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Agreement or the Sublease or
due to any other act or omission of the Subtenant, its agents, or
employees.
5. SUBROGATION AND INSURANCE.
a. Landlord and Subtenant agree to have all physical damage or
material damage insurance which may be carried by either of them,
and Subtenant agrees to have all business interruption insurance
which it carries, if any, endorsed to provide that any release from
liability of, or waiver of claim for, recovery from the other party
entered into in writing by the insured thereunder prior to any loss
or damage shall not affect the validity of said policy or the right
of the insured to recover thereunder and providing further that the
insurer waives all rights of subrogation which such insurer might
have against the other party. Without limiting any release or waiver
of liability or recovery contained in any other section of this
Agreement, but rather in confirmation and furtherance thereof, each
of the parties hereto waives all claims for recovery from the other
party for any loss or damage to any of its property or damages as a
result of business interruption. Notwithstanding the foregoing or
anything contained in this
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Agreement to the contrary, any release and any waiver of claims
shall not be operative, nor shall the foregoing endorsements be
required, in any case where the effect of such release and waiver is
to invalidate insurance coverage or increase the cost thereof
(provided that, in the case of increased cost, the other party shall
have the right, within ten (10) days following written notice, to
pay such increased cost keeping such release and waiver in full
force and effect).
b. Subtenant shall carry insurance during the entire term of
the Sublease insuring Subtenant and Landlord and Landlord's agents
and beneficiaries with terms, coverages, and in companies reasonably
satisfactory to Landlord and with such commercially reasonable
increases in limits as Landlord may reasonably from time to time
request, but initially Subtenant shall maintain the coverages
required of Tenant under the Lease. The foregoing insurance may be
provided by a company-wide blanket insurance policy or policies
maintained by or on behalf of Subtenant, provided that the same is
reasonably satisfactory to Landlord.
c. Subtenant shall, prior to the commencement of the term of
the Sublease and thereafter during said term, furnish to Landlord
certificates issued by the respective carriers evidencing such
coverage or replacements and renewals thereof, which policies or
certificates shall state that the insurance agents shall endeavor
not to change or cancel such policies without at least ten (10)
days' prior written notice to Landlord and Subtenant. Each insurance
policy carried by Subtenant shall contain, where appropriate, a
clause stating that such policy will be considered as primary
insurance for Landlord and its agents and beneficiaries and not call
into contribution any other insurance that may be available to
Landlord.
6. RETURN OF SUBLEASED PREMISES. If for any reason, at any time
prior to the expiration date of the Sublease, the term of the Lease shall
terminate or be terminated by operation of any provisions of the Lease or of
law, the Sublease and the term thereby granted shall terminate, and, on or
prior to the date of such termination of the Sublease, Subtenant, at
Subtenant's sole cost and expense, (i) shall quit and surrender the Subleased
Premises to Landlord, broom clean and in good order and condition, ordinary
wear excepted, (ii) shall remove all of Subtenant's property and all other
property and effects of Subtenant and all persons claiming through or under
Subtenant from the Subleased Premises, and (iii) shall repair all damage to
the Subleased Premises occasioned by such removal. Landlord shall have the
right to retain any property and effects which shall remain in the Subleased
Premises after such termination, and any net proceeds from the sale thereof,
without waiving Landlord's rights with respect to any default by Subtenant
under the foregoing provisions of this paragraph. If the date of such
termination shall fall on a Sunday or holiday, then Subtenant's obligations
under the first sentence of this paragraph shall be performed on or prior to
the Saturday or business day immediately preceding such Sunday or holiday.
Subtenant's obligations under this paragraph shall survive the expiration or
sooner termination of the terms of the Lease and Sublease. The foregoing
provisions of this paragraph notwithstanding, if Subtenant shall be required
to attorn pursuant to the provisions of Paragraph 9 of this Agreement, the
foregoing provisions of this Paragraph shall have no force or effect.
Notwithstanding anything contained herein or in the Lease to the contrary,
Subtenant shall only be required to return possession to the Premises in the
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condition same was in as of the date of full execution of this Agreement,
normal wear and tear, and loss or damage by casualty or condemnation excepted.
7. EMINENT DOMAIN. Subtenant shall not seek or accept, and
Subtenant shall have no right to, any condemnation or eminent domain proceeds
or awards made with respect to the Subleased Premises, or any interest
therein, except to the extent permitted of Tenant under the Lease.
Notwithstanding the foregoing, Subtenant may make a separate claim for trade
fixtures taken and moving expenses if separately allocated.
8. SUBTENANT ASSIGNMENT AND SUBLETTING. Subtenant for itself, its
heirs, distributees, executors, administrators, legal representatives,
successors and assigns, covenants that without the prior written consent of
Landlord in each instance as provided for and in accordance with the Lease,
it shall not (i) assign, mortgage or encumber its interest in the Sublease,
or (ii) sublet or permit the subletting of, the Subleased Premises or any
part thereof, or (iii) permit the Subleased Premises or any part thereof to
be occupied, or used for desk space, mailing privileges or otherwise, by any
person other than Subtenant, employees and usual and customary business
guests and invitees.
9. ATTORNMENT. If for any reason the term of the Lease shall
terminate or be terminated by operation of any provisions of the Lease or of
law prior to the Lease Expiration Date, Subtenant agrees, at the election and
upon demand of Landlord or any other owner of the Leased Premises or of the
holder of any mortgage in possession of the Leased Premises or of any lessee
under any lease to which the Sublease shall be subject and subordinate, to
attorn, from time to time, to Landlord or any such owner, holder or lessee,
upon the then executory terms and conditions set forth in the Sublease. The
foregoing provisions of this Paragraph shall inure to the benefit of any such
owner, holder or lessee, shall apply notwithstanding that, as a matter of
law, the Sublease may terminate upon the termination of the Lease, shall be
self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Upon demand of Landlord or any
such owner, holder or lessee, Subtenant agrees, however, to execute, from
time to time, instruments in confirmation of the foregoing provisions of this
paragraph, satisfactory to Landlord or any such owner, holder or lessee, in
which Subtenant shall acknowledge such attornment and shall set forth the
terms and conditions of its tenancy. Nothing contained in this Paragraph
shall be construed to impair any right otherwise exercisable by Landlord or
any such owner, holder or lessee. Upon request of Landlord or any such owner,
holder or lessee, whether made prior or subsequent to such termination,
Tenant and Subtenant shall deliver an executed counterpart of the Sublease to
Landlord.
10. MISCELLANEOUS.
a. The Sublease is subject and subordinate in all respects to
the Lease and to all of the terms, covenants and conditions thereof.
b. Subtenant shall not violate or permit the violation of any
of the terms, covenants and conditions of the Lease including, but
not limited to, any rules and regulations applicable to the
Subleased Premises.
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c. Subtenant shall not pay to Tenant any advance rent in an
amount greater than one (1) month's rent.
d. The Sublease shall not be modified without the prior
written consent of Landlord.
e. If Tenant shall terminate or shall give any notice to
Subtenant terminating the Sublease, Tenant shall promptly notify
Landlord thereof.
f. Notices and demands required or permitted to be given by
any party shall be in writing and shall be given in accordance with
the terms of the Lease. Any party may change its address for receipt
of notices by giving notice to the other parties.
g. Tenant agrees to pay to Landlord, upon demand, as
additional rent, Landlord's reasonable counsel fees incurred in
connection with the preparation and execution of this Agreement.
h. All capitalized terms used herein shall have the same
meanings as in the Lease unless otherwise defined herein.
11. PAYMENT OF RENT UPON DEFAULT. Notwithstanding anything in the
Sublease to the contrary, if Tenant is in default under the Lease, upon
written notice from Landlord to Tenant and Subtenant, Subtenant shall
thereafter make all rent payments under the Sublease directly to Landlord,
and Tenant hereby releases Subtenant from any and all payments due Tenant
under the Sublease and so made to Landlord pursuant to Landlord's notice.
12. NO RELEASE OF TENANT LIABILITY. Neither this Agreement, nor the
Sublease, nor any acceptance of rent by Landlord from Subtenant shall operate
to waive, modify, release or in any manner affect Tenant's liability under
the Lease. No other or further sublease of all or of any part of the Premises
shall be made by Tenant without the prior written approval of the Landlord
pursuant to and in accordance with the provisions of the Lease.
13. CONFLICTING PROVISIONS. In the event that there shall be any
conflict between the terms, covenants and conditions of this Agreement and
the terms, covenants arid conditions of the Sublease as same relate to the
Landlord's and Subtenant's relationship (but not the Tenant's and Subtenant's
relationship), then the terms, covenants and conditions of this Agreement
shall prevail in each instance, and any conflicting terms, covenants or
conditions of the Sublease shall be deemed modified to conform with the
terms, covenants and conditions of this Agreement.
14. REAL ESTATE BROKERS. Tenant and Subtenant shall jointly and
severally indemnify and hold Landlord harmless from all damages, liability,
and expense (including reasonable attorneys' fees) arising from any claims or
demands of any broker or brokers or finders other than Van Vlissingen and Co.
for any commission alleged to be due such broker or brokers in connection
with the Sublease.
15. ESTOPPEL. Tenant hereby acknowledges that as of the date
hereof, Tenant has no claims arising under the Lease against Landlord, its
agents or beneficiaries, or any one or
5
more of the foregoing, and that Tenant knows of no default or failure on the
part of Landlord to keep or perform any covenant, condition or undertaking to
be kept or performed by it under the Lease. Tenant hereby releases Landlord
from any liability arising under the Lease prior to the date hereof.
16. EXCULPATION. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants,
undertakings, and agreements herein made on the part of any Landlord while in
form purporting to be the representations, warranties, covenants,
undertakings, and agreements of such Landlord are nevertheless each and every
one of them made and intended, not as personal representations, warranties,
covenants, undertakings, and agreements by such Landlord or for the purpose
or with the intention of binding such Landlord personally, but are made and
intended for the purpose only of subjecting such Landlord's interest in the
Subleased Premises to the terms of this Agreement and for no other purpose
whatsoever, and in case of default hereunder by any Landlord (or default
through, under, or by any of its beneficiaries, or agents or representatives
of said beneficiaries), the Tenant shall look solely to the interests of such
Landlord in the Subleased Premises; that Landlord nor any of its
beneficiaries or their partners, shareholders, directors, officers, agents,
employees, legal representatives, successors, or assigns shall have any
personal liability to pay any indebtedness accruing hereunder or to perform
any covenant, either express or implied, herein contained and no liability or
duty shall rest upon any Landlord which is a land trust to sequester the
rents, issues, and profits arising from the trust estate, or the proceeds
arising from any sale or other disposition thereof; that no personal
liability or personal responsibility of any sort is assumed by, nor shall at
any time be asserted or enforceable against, Landlord, LaSalle Bank National
Association, individually or personally, but only as trustee under the
provisions of a Trust Agreement dated January 1, 1991, and known as its Trust
No. 00-0000-00 or against any of the beneficiaries under the said Trust No.
00-0000-00 or any beneficiaries under any land trust which may become the
owner of the Subleased Premises, on account of this Agreement or on account
of any representation, warranty, covenant, undertaking, or agreement of
Landlord in this Agreement contained, either express or implied, all such
personal liability, if any, being expressly waived and released by Tenant and
by all persons claiming by, through, or under Tenant; and that this Agreement
is executed and delivered by the undersigned Landlord not in its own right,
but solely in the exercise of the powers conferred upon it as such Trustee.
6
IN WITNESS WHEREOF, the parties hereto shall be deemed to have executed
this Consent to Sublease on the date first above written.
LANDLORD:
LASALLE BANK NATIONAL
ASSOCIATION, not personally, but as
Trustee aforesaid
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Title: President
----------------------------
Van Vlissingen and Co.
Its Duly Authorized Agent
TENANT:
ICON INFOSYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Title: President
----------------------------
SUBTENANT:
BIOSANTE PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: CFO
----------------------------
7
EXHIBIT A
SUBLEASE
8
000 XXXXXXX XXXXXXXXX
XXXXXXXXXXXX CORPORATE CENTER
OFFICE LEASE
BETWEEN
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as Trustee under
Trust Agreement dated January 1, 1991
and known as Trust No. 113370-03
LANDLORD
AND
ICON INFOSYSTEMS, INC.
TENANT
FOR
XXXXX
000
DATED: February 11th, 1998
TABLE OF CONTENTS
SCHEDULE OF SIGNIFICANT TERMS..............................................i
1. Base Rent.........................................................1
2. Additional Rent...................................................1
3. Use of Premises...................................................9
4. Prior Occupancy..................................................10
5. Delivery of Possession...........................................10
6. Alterations......................................................11
7. Services.........................................................12
8. Condition and Care of Premises...................................15
9. Return of Premises...............................................16
10. Holding Over.....................................................17
11. Rules and Regulations............................................17
12. Rights Reserved to Landlord......................................17
13. Assignment and Subletting........................................19
14. Waiver of Certain Claims; Indemnity by Tenant....................22
15. Damage or Destruction by Casualty................................23
16. Eminent Domain...................................................25
17. Default; Landlord's Rights and Remedies..........................25
18. Subordination....................................................29
19. Mortgagee Protection.............................................30
20. Default Under Other Leases.......................................31
21. Subrogation and Insurance........................................31
22. Nonwaiver........................................................32
23. Estoppel Certificate.............................................32
24. Tenant Authority to Execute Lease................................33
25. Real Estate Brokers..............................................33
26. Notices..........................................................33
27. Miscellaneous....................................................34
28. Landlord's Authority and Quiet Enjoyment.........................35
29. Landlord.........................................................35
30. Title and Covenant Against Liens.................................36
31. Relocation of Tenant.............................................36
32. Parking..........................................................36
33. Security Deposit.................................................37
LEASE WITH ICON INFOSYSTEMS, INC. ("TENANT")
on Premises at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx Corporate Center
Lincolnshire, Illinois
This Lease, made as of the Date of Lease set forth in the following
Schedule (the "Schedule"), by and between American National Bank and Trust
Company of Chicago as Trustee under Trust No. 113370-03 ("Landlord"), and the
Tenant identified immediately above.
SCHEDULE OF SIGNIFICANT TERMS
For purposes of this Lease, the terms set forth below shall have the
meanings or be assigned the amounts as follows:
DATE OF LEASE: February 11, 1998
BASE RENT (annual amount): 3/1/98 - 2/28/99 $53,058.04
3/1/99 - 2/29/00 $54,649.78
3/1/00 - 2/28/01 $56,289.27
MONTHLY BASE RENT: 3/1/98 - 2/28/99 $4,421.50
3/1/99 - 2/29/00 $4,554.15
3/1/00 - 2/28/01 $4,690.77
COMMENCEMENT DATE: March 1, 1998, subject to the
provisions of Section 5 of the
Lease
EXPIRATION DATE: February 28, 2001, or such
earlier date as this Lease is
terminated as provided herein.
BUILDING: The improvements commonly known
as 000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx.
PREMISES: Those certain premises outlined
on the floor plan attached hereto
as Exhibit A, on the second floor
of the Building, known as Suite
280, and containing approximately
4,034 square feet.
TENANT'S PROPORTIONATE SHARE: 5.16%
BASE CPI AMOUNT: N/A
EXPENSE STOP AMOUNT: $-0-
TAX STOP AMOUNT: $-0-
CPI ADJUSTMENT DATES: N/A
Security Deposit: $7,010.42
EXTERIOR PARKING SPACES (MAXIMUM): 15 (2 of which shall be
identified as reserved parking)
BROKER: Van Vlissingen and Co. and Xxxxx
& Xxxxx
TENANT'S ADDRESS FOR NOTICES:
--------------------------------
--------------------------------
--------------------------------
TENANT'S AUTHORIZED REPRESENTATIVE:
--------------------------------
GUARANTOR (if any):
--------------------------------
ATTACHMENTS TO LEASE (check if applicable):
Guaranty
------
Workletter
------
Attachment(s) to Workletter
------
Rider A: X (Rules and Regulations)
------
Rider B: X (Cleaning Schedule)
------
2
SUPPLEMENTAL PROVISIONS
S.1 OPTION TO EXTEND. If Tenant shall timely and faithfully perform all of the
terms, covenants and conditions of this Lease, and provided that Tenant (and not
a sublessee or assignee, other than under an assignment made pursuant to Section
13 hereof) shall then be in occupancy of all or substantially all of the Leased
Premises, Tenant shall have the right, exercisable by giving written notice
thereof to Landlord at least nine (9) months prior to the expiration of the
original term of this Lease, to extend the term of this Lease for an additional
term of two (2) years, upon all of the terms, covenants and conditions contained
in this Lease, except that the Base Rent during the additional term shall be as
follows:
Monthly
Period Annual Rent Installments
03/1/01 - 02/28/02 $57,977.95 $4,831.50
03/1/02 - 02/29/03 $59,717.29 $4,976.44
S.2 ICO LEASE TERMINATION CONTINGENCY. Notwithstanding anything set forth
herein, this Lease is expressly conditioned upon receipt by Landlord of a lease
termination agreement (the "Termination") between Landlord and ICO Services,
Inc., effective February 28, 1998, with respect to the Premises, in form and
content acceptable to Landlord. If the Termination is not received by Landlord
on or before February 28, 1998, then this Lease shall terminate in its entirety.
S.3 REPAIRS. Notwithstanding anything set forth in Section 5 of this Lease to
the contrary, Landlord shall perform the following repairs to the Premises, at
its sole cost and expense:
(a) interior painting of the Premises;
(b) repair of the scratch in the glass; and
(c) removal of the visible pipes from the conference room.
3
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby accepts the
Premises, for a term (herein called the "Term") commencing on the commencement
Date and ending on the Expiration Date, paying as rent therefor the sums
hereinafter provided, without any setoff, abatement, counterclaim, or deduction
whatsoever, except as herein expressly provided.
IN CONSIDERATION THEREOF, THE PARTIES HERETO COVENANT AND AGREE:
1. BASE RENT. Subject to periodic adjustment as hereinafter provided,
Tenant shall pay an annual base rent (herein called "Base Rent") to Landlord for
the Premises in the amount stipulated in the Schedule, payable in monthly
installments (herein called "Monthly Base Rent") in the amount stipulated in the
Schedule, in advance on the first day of the first full calendar month and on
the first day of each calendar month thereafter of the Term, and at the same
rate prorated for fractions of a month if the Term shall begin on any date
except the first day, or shall end on any day except the last day of a calendar
month. Base Rent, Additional Rent (as hereinafter defined), Additional Rent
Progress Payment (as hereinafter defined) and all other amounts becoming due
from Tenant to Landlord herein (herein collectively called the "Rent") shall be
paid in lawful money of the United States to One Overlook Point at its office as
designated in Section 26 hereof, or as otherwise designated from time to time by
written notice from Landlord to Tenant. The obligation to pay Rent hereunder is
independent of each and every other covenant and agreement contained in this
Lease.
2. ADDITIONAL RENT. In addition to paying the Base Rent specified in
Section 1 hereof, Tenant shall pay as additional rent the amounts determined in
accordance with the following provisions of this Section 2 (herein called
"Additional Rent"):
(a) DEFINITIONS. As used in this Lease:
(i) "Adjustment Date" shall mean the first day of the
Term and each January 1 thereafter falling within the Term.
(ii) "Adjustment Year" shall mean each calendar year
during which an Adjustment Date falls.
(iii) "Expenses" shall mean and include those costs
and expenses paid or incurred by Landlord in connection with
the ownership, operation, management, and maintenance of the
Building and the land on which the Building is situated in a
manner deemed reasonable by Landlord and appropriate and for
the best interests of the Building and the tenants in the
Building, including, but not limited to, the following:
(A) All costs and expenses directly related
to the Building for operating and cleaning tenant,
common and public areas, for utilities, for the
payment of salaries and fringe benefits for personnel
of the grade of building manager and below, for
removing snow, ice, and debris, and costs of
property, liability, rent loss, and other insurance;
1
(B) All costs and expenses of replacing
paving, curbs, walkways, landscaping (including
replanting and replacing flowers and other
plantings), common and public parking and lighting
facilities in the Building and the areas immediately
adjacent thereto;
(C) Electricity for lighting the common and
public areas and for running the elevators and other
building equipment and systems, fuel and water used
in heating, ventilating, and air-conditioning of the
Building and water for drinking, lavatory and toilet
purposes;
(D) Maintenance of mechanical and electrical
equipment, including heating, ventilating and
air-conditioning equipment in the Building, but
excluding capital expenditures (except as set forth
in (H) below) which under generally accepted
accounting principles are required to be capitalized;
(E) Window cleaning and janitor and cleaning
service, including janitor and cleaning equipment and
supplies for tenant, common and public areas;
(F) Maintenance of elevators, alarm, and
security systems, rest rooms, sprinklers, and
plumbing systems, lobbies, hallways, and other common
and public areas of the Building;
(G) A management fee for the managing agent
of the Building at actual cost not to exceed four
percent (4%) of Landlord's gross receipts from
operation of the Building;
(H) The cost of any capital improvement made
at any time, whether before or after the Date of
Lease, which reduces some of the costs included
within Expenses or which is required under any
governmental laws, regulations, or ordinances which
were not applicable to the Building at any time prior
to the Commencement Date, amortized on an annual
basis to the extent of the annual savings effected by
such capital improvement or equipment (as reasonably
determined by Landlord); and
(I) Legal and other professional expenses
incurred in respect of the operation, use,
occupation, or maintenance of the Building and in
seeking or obtaining reductions in and refunds of
Taxes, but excluding legal costs in leasing space or
incurred in disputes with tenants.
(J) Common area maintenance and other costs
allocable to the Building under the Declaration of
Protective Covenants for Lincolnshire Corporate
Center (Unit III) applicable to the Building.
(K) Expenses shall not include the
following: costs or other items included within the
meaning of the term "Taxes" (as hereinafter defined);
costs of capital improvements to the Building (except
as set forth
2
in H above); depreciation; expenses incurred in
leasing or procuring tenants (including, without
limitation, lease commissions, advertising expenses,
and expenses of renovating apace for tenants);
interest or amortization payments on any mortgage or
mortgages; rental under any ground or underlying
lease or leases; wages, salaries, or other
compensation paid to any executive employees above
the grade of building manager; wages, salaries, or
other compensation paid for clerks or attendants in
concessions or newsstands operated by the Landlord;
the cost of correcting defects (latent or otherwise)
which arise within one (1) year after initial
construction of the Building in the construction of
the Building, except that conditions (not occasioned
by construction defects) resulting from ordinary wear
and tear shall not be deemed defects; the cost of
installing, operating, and maintaining a specialty
improvement, including, without limitation, an
observatory, or broadcasting, cafeteria, or dining
facility, or athletic, luncheon, or recreational
club; any cost or expense representing an amount paid
to a related entity which is in excess of the amount
which would be paid in the absence of such
relationship; and any expenditures for which Landlord
has been reimbursed (other than pursuant to rent
adjustment, escalation, or additional rent provisions
in leases).
Notwithstanding the foregoing provisions of this
Section 2(a)(iii), for any Adjustment Year in which
the aggregate usable office space of the Building has
not been one hundred percent (100%) occupied during
the entire Adjustment Year, Expenses shall include
any expenses which Landlord shall reasonably
determine would have been incurred had the Building
been one hundred percent (100%) occupied.
(iv) "Taxes" shall mean all real estate taxes,
assessments (whether they be general or special), sewer rents,
rates and charges, transit taxes, taxes based upon the receipt
of rent, and any other federal, state or local governmental
charge, general, special, ordinary or extraordinary (but not
including income or franchise taxes (other than personal
property replacement income taxes) or any other taxes imposed
upon or measured by Landlord's income or profits, unless the
same shall be imposed in lieu of the real estate taxes or
other ad valorem taxes), which may now or hereafter be levied,
imposed or assessed against the Building or the land on which
the Building is located (the "Land"), or both. The Building
and the Land are herein collectively called the "Real
Property."
Notwithstanding the foregoing provisions of this Section 2
(a)(iv):
(A) If at any time during the Term of this
Lease the method of taxation then prevailing shall be
altered so that any new tax, assessment, levy,
imposition or charge or any part thereof shall be
imposed upon Landlord in addition to, or in place or
partly in place of any such Taxes, or contemplated
increase therein, and shall be measured by or be
based in whole or in part upon the Real Property or
the rents or other income
3
therefrom, then all such new taxes, assessments,
levies, impositions or charges or part thereof, to
the extent that they are so measured or based, shall
be included in Taxes levied, imposed, or assessed
against real property to the extent that such items
would be payable if the Real Property were the only
property of Landlord subject thereto and the income
received by Landlord from the Real Property were the
only income of Landlord.
(B) Notwithstanding the year for which any
such taxes or assessments are levied, (i) in the case
of special taxes or special assessments which may be
payable in installments, the amount of each
installment, plus any interest payable thereon (but
not including penalty interest), paid during a
calendar year shall be included in Taxes for that
year and (ii) if any taxes or assessments payable
during any calendar year shall be computed with
respect to a period in excess of twelve calendar
months, but not to exceed thirteen calendar months,
then taxes or assessments applicable to the excess
period shall be included in Taxes for that year.
Except as provided in the preceding sentence, for
purposes of this Section 2, all references to Taxes
"for" a particular year shall be deemed to refer to
taxes levied, assessed or otherwise imposed for such
year without regard to when such taxes are payable.
(C) Taxes shall also include any personal
property taxes (attributable to the calendar year in
which paid) imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems and
appurtenances used in connection with the Real
Property or the operation thereof and located at the
Building.
(v) "Tenant's Proportionate Share" shall mean the
percentage stipulated in the Schedule which is the percentage
obtained by dividing the Rentable Area of the Premises by the
Rentable Area of the Building.
(vi) Intentionally Deleted.
(vii) Intentionally Deleted.
(viii) Intentionally Deleted.
(ix) Intentionally Deleted.
(x) Intentionally Deleted.
(xi) "Additional Rent" shall mean all amounts
determined pursuant to this Section 2, including any amounts
payable by Tenant to Landlord on account thereof.
(b) COMPUTATION OF ADDITIONAL RENT. Tenant shall pay
Additional Rent for each Adjustment Year determined as hereinafter set
forth. Additional Rent payable by
4
Tenant with respect to each Adjustment Year during which an Adjustment Date
falls shall include the following amounts:
(i) the amount by which Tenant's Proportionate Share,
multiplied by the Expenses for such Adjustment Year exceeds the Expense
Stop Amount stipulated in the Schedule (said excess being called the
"Expense Adjustment"); plus
(ii) the amount by which Tenant's Proportionate Share,
multiplied by the Taxes for such Adjustment Year exceeds the Tax Stop
Amount stipulated in the Schedule (said excess being called the "Tax
Adjustment"); plus
(iii) Intentionally Deleted.
(c) PAYMENTS OF ADDITIONAL RENT; PROJECTIONS. Tenant shall pay
Additional Rent to Landlord in the manner hereinafter provided.
(i) EXPENSE ADJUSTMENT AND TAX ADJUSTMENT. Tenant shall
make payments on account of the Expense Adjustment and Tax Adjustment
(the aggregate of such payments with respect to any Adjustment Year
being called "Additional Rent Progress Payment") effective as of the
Adjustment Date for each Adjustment Year as follows:
(A) Landlord may, prior to each Adjustment Date
or from time to time during the Adjustment Year in which such
Adjustment Date falls, deliver to Tenant a written notice or
notices ("Projection Notice") setting forth (1) Landlord's
reasonable estimates, forecasts or projections (collectively,
the "Projections") of Taxes and Expenses for such Adjustment
Year based on Landlord's budgets of Expenses and estimate of
Taxes, and (2) Tenant's Additional Rent Progress Payment with
respect to each component of Additional Rent for such
Adjustment Year based upon the Projections. Landlord's budgets
of Expenses and the Projections based thereon shall assume
full occupancy and use of the Building and may be revised by
Landlord from time to time based on changes in rates and other
criteria which are components of budget items.
(B) Until such time as Landlord furnishes a
Projection Notice for an Adjustment Year, Tenant shall, at the
time of each payment of Monthly Base Rent, pay to Landlord a
monthly installment of Additional Rent Progress Payment with
respect to each component of Additional Rent equal to the
greater of the latest monthly installment of Additional Rent
Progress Payment or one-twelfth (1/12) of Tenant's latest
determined Expense Adjustment and Tax Adjustment. On or before
the first day of the next calendar month following Landlord's
service of a Projection Notice, and on or before the first day
of each month thereafter, Tenant shall pay to Landlord
one-twelfth (1/12) of the Additional Rent Progress Payments
shown in the Projection Notice. Within thirty (30) days
5
following Landlord's service of a Projection Notice, Tenant
shall also pay Landlord a lump sum equal to the Additional
Rent Progress Payment shown in the Projection Notice less (1)
any previous payments on account of Additional Rent Progress
Payment made during such Adjustment Year and (2) monthly
installments on account of Additional Rent Progress Payment
due for the remainder of such Adjustment Year.
(ii) CPI ADJUSTMENT. Intentionally Deleted.
(d) READJUSTMENTS. The following readjustments with regard to the
Tax Adjustment and Expense Adjustment shall be made by Landlord and Tenant:
(i) Following the end of each Adjustment Year and after
Landlord shall have determined the amounts of Expenses to be used in
calculating the Expense Adjustment for such Adjustment Year, Landlord
shall notify Tenant in writing ("Landlord's Statement") of such
Expenses for such Adjustment Year. If the Expense Adjustment owed for
such Adjustment Year exceeds the Expense Adjustment component of the
Additional Rent Progress Payment paid by Tenant during such Adjustment
Year, then Tenant shall, within thirty (30) days after the date of
Landlord's Statement, pay to Landlord an amount equal to the excess of
the Expense Adjustment over the Expense Adjustment component of the
Additional Progress Payment paid by Tenant during such Adjustment Year.
If the Expense Adjustment component of the Additional Rent Progress
Payment paid by Tenant during such Adjustment Year exceeds the Expense
Adjustment owed for such Adjustment Year, then Landlord shall credit
such excess to Rent payable after the date of Landlord's Statement, or
may, at its option, credit such excess to any Rent then due and owing,
until such excess has been exhausted. If the Expiration Date shall
occur prior to full application of such excess, Landlord shall pay to
Tenant the balance thereof not theretofore applied against Rent and not
reasonably required for payment of Additional Rent for the Adjustment
Year in which the Expiration Date occurs, within thirty (30) days after
the Expiration Date.
(ii) Following the end of each Adjustment Year and after
Landlord shall have determined the actual amounts of Taxes to be used
in calculating the Tax Adjustment for such Adjustment Year, Landlord
shall notify Tenant in writing ("Landlord's Statement") of such Taxes
for such Adjustment Year. If the Tax Adjustment owed for such
Adjustment Year exceeds the Tax Adjustment component of the Additional
Rent Progress Payment paid by Tenant during such Adjustment Year, then
Tenant shall, within thirty (30) days after the date of Landlord's
Statement, pay to Landlord an amount equal to the excess of the Tax
Adjustment over the Tax Adjustment component of the Additional Rent
Progress Payment paid by Tenant during such Adjustment Year. If the Tax
Adjustment component of the Additional Rent Progress Payment paid by
Tenant during such Adjustment Year exceeds the Tax Adjustment owed for
such Adjustment Year, then Landlord shall credit such excess to Rent
payable after the date of Landlord's Statement, or may, at its
election, credit such excess to any Rent then due and
6
owing, until such excess has been exhausted. If the Expiration Date
shall occur prior to full application of such excess, Landlord shall
pay to Tenant the balance thereof not theretofore applied against Rent
and not reasonably required for payment of Additional Rent for the
Adjustment Year in which the Expiration Date occurs, within thirty (30)
days after the Expiration Date.
(iii) No interest or penalties shall accrue on any amounts
which Landlord is obligated to credit or pay to Tenant by reason of
this Section 2(d).
(e) BOOKS AND RECORDS. Landlord shall maintain books and records
showing Expenses and Taxes in accordance with sound accounting and
management practices. Tenant and its employees and accountants and
attorneys shall have the right to examine Landlord's books and records
showing Expenses and Taxes upon five (5) days prior written notice and
during normal business hours within forty-five (45) days following the
furnishing by the Landlord to the Tenant of Landlord's Statement provided
for in Section 2(d). The results of such examination shall be for the
benefit of Landlord and Tenant only, shall be maintained in confidence by
Tenant and Tenant's employees, accountants and attorneys and shall not be
disseminated or furnished to any other person or entity. No person retained
by Tenant to conduct such review shall be compensated on a contingency
basis. Unless the Tenant shall take written exception to any item within
sixty (60) days after the furnishing of the Landlord's Statement containing
said item, such Landlord's Statement shall be considered as final and
accepted by the Tenant. If Tenant takes exception to any item in Landlord's
Statement within the applicable time period and if Landlord and Tenant are
unable to agree on the correctness of said item, then either party may
refer the decision of said issue to a reputable firm of independent
certified public accountants designated by Landlord and the decision of
said accountants shall be conclusively binding on the parties. The party
required to make payment under such adjustment shall pay all fees and
expenses involved in such decision unless the payment represents five
percent (5%) or less of the annual Expense Adjustment shown on Landlord's
Statement, in which case Tenant shall bear all such fees and expenses.
(f) PRORATION AND SURVIVAL. With respect to any Adjustment Year
which does not fall entirely within the term, Tenant shall be obligated to
pay as Additional Rent for such adjustment year only a pro rata share of
Additional Rent as hereinabove determined, based upon the number of days of
the Term falling within the Adjustment Year. Following expiration or
termination of this Lease, Tenant shall pay any Additional Rent due to the
Landlord within thirty (30) days after the date of Landlord's Statement
sent to Tenant. Without limitation on other obligations of Tenant which
shall survive the expiration of the Term, the obligations of Tenant to pay
Additional Rent provided for in this Section 2 shall survive the expiration
or termination of this Lease.
(g) NO DECREASE IN BASE RENT. In no event shall any Additional
Rent result in a decrease of the Base Rent payable hereunder as set forth
in Section 1 hereof.
(h) ADDITIONAL RENT. All amounts payable by Tenant as or on
account of Additional Rent shall be deemed to be additional rent becoming
due under this Lease.
7
(i) ADJUSTMENT OF TENANT'S PROPORTIONATE SHARE. If at any time in
the future the number of rentable square feet of office space in the
Building is reduced, by reason of change in the Building structure or by
reason of the separation of ownership of a portion of the Building by a
device such as vertical subdivision or submission of the Building to a
condominium form of ownership, with the result that Tenant's Proportionate
Share no longer reflects the percentage of office space in the Building for
which Landlord is responsible for Taxes and Expenses, then Landlord shall
be entitled to make an equitable adjustment in Tenant's Proportionate Share
to reflect the change in such circumstances.
3. USE OF PREMISES.
(a) Tenant shall use and occupy the Premises for Tenant's
executive and general offices and for such related purposes as are
described in subsection (b) of this Section 3 and for no other purpose. For
the purposes of this Section 3, Tenant shall be deemed to include Tenant's
permitted subtenants, assigns, and occupants.
(b) Landlord agrees that, in connection with and incidental to
Tenant's use of the Premises for the office purposes set forth in
subsection (a) of this Section 3, provided Tenant, at Tenant's sole cost
and expense, obtains any special amendments to the certificate of occupancy
for the Premises and any other permits required by any governmental
authority having jurisdiction thereof, if any, Tenant may use portions of
the Premises for (i) the preparation and service of food and beverages from
a pantry kitchen or lounge all for the exclusive use by officers, employees
and business guests of Tenant (but not for use as a public restaurant or by
other tenants of the Building), (ii) the operation of vending machines for
the exclusive use of officers, employees and business guests of Tenant,
provided that each vending machine, where necessary, shall have a
waterproof pan thereunder and be connected to a drain, and (iii) the
installation, maintenance and operation of electronic data processing
equipment, computer processing facilities and business machines, provided
that such equipment is contained within the Premises and does not cause
vibrations, noise electrical interference or other disturbance to other
tenants of the Building or the elevators or other equipment in the
Building. With respect to any use permitted under this Section 3, any such
use shall not violate any laws or requirements of public authorities,
constitute a public or private nuisance, interfere with or cause physical
discomfort to any of the other tenants or occupants of the Building,
interfere with the operation of the Building or the maintenance of same as
a first-class office building, or violate any of Tenant's other obligations
under this Lease.
(c) Tenant hereby represents, warrants, and agrees that Tenant's
business is not and shall not be photographic, multilith, or multigraph
reproductions or offset printing. Anything contained herein to the contrary
notwithstanding, Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used, (i) for the business of
photographic, multilith, or multigraph reproductions or offset printing,
(ii) for a retail banking, trust company, depository, guarantee, or safe
deposit business open to the general public, (iii) as a savings bank, a
savings and loan association, or as a loan company open to the general
public, (iv) for the sale to the general public of travelers checks, money
orders, drafts, foreign exchange or letters of credit or for the
8
receipt of money for transmission, (v) as a stock broker's or dealer's
office or for the underwriting or sale of securities open to the general
public, (vi) except as provided in subsection (b) of this Section 3, as a
restaurant or bar or for the sale of confectionery, soda, beverages,
sandwiches, ice cream, or baked goods or for the preparation, dispensing,
or consumption of food or beverages in any manner whatsoever, (vii) as a
news or cigar stand, (viii) as an employment agency, labor union office,
physician's or dentist's office, dance, or music studio, school (except for
the training of employees of Tenant), (ix) as a travel agency, or (x) as a
xxxxxx shop or beauty salon. Nothing in this subsection (c) shall preclude
Tenant from using any part of the Premises for photographic, multilith, or
multigraph reproductions in connection with, either directly or indirectly,
its own business or activities.
4. PRIOR OCCUPANCY. Landlord may authorize Tenant to take possession of
all or any part of the Premises prior to the beginning of the Term or
substantial completion of any work to be performed by Landlord pursuant to the
Workletter, if any, attached hereto. If Tenant does take possession pursuant to
authority so given, all of the covenant 3 and conditions of this Lease shall
apply to and shall control such occupancy. Rent for such occupancy shall be paid
upon occupancy and on the first of each calendar month thereafter at the rate
set forth in Section 1 and Section 2 hereof. If the Premises are occupied for a
fractional month, Rent shall be prorated on a per diem basis. Notwithstanding
the foregoing, if Landlord gives possession prior to the Commencement Date to
enable Tenant to fit the Leased Premises to its use, such occupancy shall be
subject to all the terms and conditions of this Lease (except that Tenant shall
not be required to pay rent during such occupancy).
5. DELIVERY OF POSSESSION. Landlord shall deliver possession of the
Premises to Tenant in its current "as-is" condition (reasonable wear and tear
excepted). If the Landlord shall be unable to give possession of the Premises on
the Commencement Date set forth in the Schedule of Significant Terms for any
reason, Landlord shall not be subject to any liability for failure to give
possession. Under such circumstances the Rent reserved and covenanted to be paid
herein shall commence on the date provided in the Workletter attached hereto, if
any, for the commencement of Rent, or if no such Workletter is attached, then on
the date possession is delivered to Tenant or would have been delivered to
Tenant but for Tenant de1ays described in the Workletter attached hereto, if
any, or otherwise due in whole or in part, to any delay or fault on the part of
Tenant. No such failure to give possession on the Commencement Date shall affect
either the validity of this Lease or the obligations of the Tenant or Landlord
hereunder, and the same shall not be construed to extend the Term.
Notwithstanding the foregoing, if Landlord has not delivered possession of the
Premises to Tenant by April 1, 1998, Tenant shall have the right to terminate
the Lease, by written notice thereof to Landlord on or before April 6, 1998.
6. ALTERATIONS. Tenant shall not, without the prior written consent of
Landlord in each instance, make any alterations, improvements, or additions to
the Premises, except for those which do not require a building permit and cost
less than $10,000.00. If Landlord consents to alterations, improvements, or
additions requiring Landlord's consent, it may impose such conditions with
respect thereto as Landlord deems appropriate, including, without limitation,
requiring Tenant to furnish Landlord with security for the payment of all costs
to be incurred in connection with such work, insurance against liabilities which
may arise out of such work, plans and specifications and permits necessary for
such work. The work necessary to make any
9
alterations, improvements, or additions to the Premises shall be done at
Tenant's expense by employees of, or contractors hired by, Landlord, except to
the extent Landlord gives its prior written consent to Tenant's hiring
contractors. Tenant shall promptly pay to Landlord or to Tenant's contractors,
as the case may be, when due, the cost of all such work and of all decorating
required by reason thereof. Tenant will also pay to Landlord an amount equal to
ten percent (10%) of all of the costs of such work to reimburse Landlord for its
overhead and construction management services allocable to such work. Upon
completion, Tenant shall deliver to Landlord, if payment is made directly to
contractors, evidence of payment, contractors' affidavits and full and final
waivers of all liens for labor, services or materials. Tenant shall defend and
hold Landlord and the holder of any legal or beneficial interest in the land or
Building harmless from all costs, damages, liens, and expenses related to such
work. All work done by Tenant or its contractors pursuant to Sections 6 or 11
hereof shall be done in a first-class workmanlike manner using only good grades
of materials and shall comply with all insurance requirements and all applicable
laws and ordinances and rules and regulations of governmental departments or
agencies and the rules and regulations adopted by the Landlord for the Building.
Within thirty (30) days after substantial completion of any such work by Tenant
or its contractors, Tenant shall furnish to Landlord "as built" drawings of such
work.
7. SERVICES.
(a) The Landlord, as long as the Tenant is not in default under
any of the covenants of this Lease, shall furnish:
(i) Air-conditioning and heat when necessary to provide a
temperature condition required, in Landlord's judgment, for
comfortable occupancy of the Premises under normal business
operations, daily from 8:00 a.m. to 6:00 p.m. (Saturdays 8:00 a.m. to
1:00 p.m.), Sundays and holidays (as hereinafter defined) excepted.
The term "holidays" as used herein shall mean New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day. Landlord's agreements hereunder are subject to
Presidential and governmental restrictions on energy use;
(ii) Cold water in common with other tenants from Village of
Lincolnshire mains for drinking, lavatory, and toilet purposes drawn
through fixtures installed by the Landlord, or by Tenant in the
Premises with Landlord's written consent, and hot water in common
with other tenants for lavatory purposes from regular Building
supply. Tenant shall pay Landlord as additional rent at rates fixed
by Landlord for water furnished for any other purpose. Tenant shall
pay Landlord the coat of any meters or submeters installed to measure
Tenant's water usage for such other purposes. The Tenant shall not
waste or permit the waste of water;
(iii) Janitor service and customary cleaning provided nightly
in and about the Premises, Saturdays, Sundays, and holidays excepted,
in accordance with the cleaning schedule attached hereto as Rider B.
The Tenant shall not provide any janitor services or cleaning without
the Landlord's written consent, and then only subject to supervision
of Landlord and at Tenant's sole
10
responsibility and cost (and without compensation to Tenant or
reduction in Rent) and by a janitor or cleaning contractor or
employees at all times satisfactory to Landlord;
(iv) Passenger elevator service in common with Landlord and
other tenants, daily from 8:00 a.m. to 8:00 p.m. (Saturdays from 8:00
a.m. to 1:00 p.m.), Sundays and holidays excepted, and freight
elevator service in common with Landlord and other tenants, daily
from 7:00 a.m. to 3:30 p.m., Saturdays, Sundays, and holidays
excepted. Such normal elevator service, passenger or freight, if
furnished at other times shall be optional with Landlord and shall
never be deemed a continuing obligation. The Landlord, however, shall
provide limited passenger elevator service daily at all times such
normal passenger service is not furnished. Operatorless automatic
elevator service shall be deemed "elevator service" within the
meaning of this paragraph;
(v) Electricity shall not be furnished by Landlord, but
shall be furnished by an approved electric utility company serving
the Building. Landlord shall permit the Tenant to receive such
service direct from such 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 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 janitor service, the making of alterations
or repairs in the Premises, the operation of the Buildings HVAC
System at times other than as provided in Section 7(a) (i) 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 or
appliances installed by Tenant 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 at competitive prices all lamps, bulbs,
ballasts, and starters used in the Premises during the Term hereof.
The electrical feeder or riser capacity serving the Premises on the
Commencement Date shall be adequate to provide Building Standard
electrical loads. Any additional feeders or risers to supply Tenant's
additional electrical requirements, and all other equipment proper
and necessary in connection with such feeders or risers, shall be
installed by Landlord upon Tenant's request, at the sole cost and
expense of Tenant, provided that, in Landlord's judgment, such
additional feeders or risers are necessary and are permissible under
applicable laws and insurance regulations and the installation of
such feeders or risers will not cause permanent damage or injury to
the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations
or interfere with or disturb other tenants or occupants or the
Building and Tenant deposits with Landlord funds or other security
acceptable to Landlord in the estimated amount of the cost of such
installation, as determined by Landlord. Tenant covenants and agrees
that at all
11
times its use of electric current shall never exceed the capacity of
the feeders to the Building or the risers or wiring installed
thereon;
(vi) Landlord shall cause the Building and adjacent walkways
and parking areas to be maintained in operating condition and
reasonably free from debris, snow, and ice consistent with the
operation of a first-class office building in the North Suburban
Chicago area.
(vii) Landlord shall provide such extra or additional
services as it is reasonably possible for the Landlord to provide,
and as the Tenant may from time to time request, within a reasonable
period after the time such extra or additional services are
requested. Tenant shall, for such extra or additional cervices, pay
at Landlord's scheduled rates therefor; such amount to be considered
additional rent hereunder. All charges for such extra or additional
services shall be due and payable at the same time as the installment
of Base Rent with which they are billed. Any such xxxxxxxx for extra
or additional services shall include an itemization of the extra or
additional services rendered, and the charge for each such service.
Landlord's applicable schedule of charge rates for certain extra or
additional services will be published from time to time by Landlord
and made available to tenant at its request. Such schedule shall be
subject to change during the Term from time to time.
(b) Failure by Tenant to promptly pay Landlord's proper charges
for water (other than for drinking, lavatory, and toilet purposes) or other
services shall give Landlord, upon not less than ten (10) days' notice, the
right to discontinue furnishing the services, and no such discontinuance
shall be deemed an eviction or disturbance of Tenant's use of the Premises
or render Landlord liable for damages or relieve Tenant from performance of
Tenant's obligations under this Lease.
(c) Tenant agrees that Landlord and its beneficiaries and their
agents shall not be liable in damages, by abatement of Rent or otherwise,
for failure to furnish or delay in furnishing any service when such failure
or delay is occasioned, in whole or in part, by repairs, renewals, or
improvements, by any strike, lockout, or other labor trouble, by inability
to secure electricity, gas, water, or other fuel at the Building after
reasonable effort so to do, by any accident or casualty whatsoever, by the
act or default of Tenant or other parties including without limitation
Tenant's failure to maintain the Premises in good condition and repair, or
by any cause beyond the reasonable control of Landlord; and such failures
or delays shall never be deemed to constitute an eviction or disturbance of
the Tenant's use and possession of the Premises or relieve the Tenant from
paying Rent or performing any of its obligations under this Lease. Tenant
shall notify Landlord if any service shall be stopped, whereupon Landlord
will proceed diligently to restore such service as soon as reasonably
possible.
(d) Tenant agrees to cooperate fully, at all times, with Landlord
in abiding by all reasonable regulations and requirements which Landlord
may prescribe for the proper functioning and protection of all utilities
and services reasonably necessary for the operation of the Premises and the
Building.
12
(e) Landlord, throughout the Term of this Lease, shall have free
access to any and all mechanical installations, and Tenant agrees that
there shall be no construction of partitions or other obstructions which
might interfere with the moving of the servicing equipment of Landlord to
or from the enclosures containing said installations. Tenant further agrees
that neither Tenant, nor its servants, employees, agents, visitors,
licensees, or contractors shall at any time tamper with, adjust, or
otherwise in any manner affect Landlord's mechanical installations.
(f) Tenant shall make arrangements directly with the telephone
company servicing the Building for such telephone service in the Premises
as may be desired by Tenant. If Tenant desires telegraphic, telephonic,
burglar alarm, computer installations or signal service (which service
shall be installed and maintained at Tenant's sole expense), Landlord
shall, upon request, direct where and how all connections and wiring for
such service shall be introduced and run. Landlord additionally shall have
the right to approve or disapprove all plans and specifications for such
service prior to any installation and to refuse permission for such
installation if Landlord determines same could adversely affect an existing
system. In the absence of such directions, Tenant shall make no borings or
cutting or install any wires or cables in or about the Premises and/or the
Building.
8. CONDITION AND CARE OF PREMISES.
(a) Tenant's taking possession of the Premises shall be conclusive
evidence against Tenant, and upon said taking of possession Tenant shall
execute an agreement with Landlord stating that the Premises were then in
good order and satisfactory condition, except for any so-called "punchlist"
items detailed in said agreement and latent defects attendant to Landlord's
Work under any Workletter attached hereto and made a part hereof, and upon
completion of any punchlist items, Tenant shall also execute a supplement
to said agreement accepting completion of the punchlist items. No promises
of the Landlord to alter, remodel, improve, repair, decorate, or clean the
Premises or any part thereof have been made, and no representation
respecting the condition of the Premises, the Building, or the Land, has
been made to Tenant by or on behalf of Landlord except to the extent
expressly set forth herein, or in the aforesaid Workletter. This Lease does
not grant any rights to light or air over or about the property of
Landlord.
(b) Except for any damage resulting from any wanton or negligent
act of Landlord or its employees and agents, and subject to the provisions
of Section 15 hereof, Tenant shall, at its own expense, keep the Premises
in good repair and condition and shall promptly and adequately repair all
damage to the Premises caused by Tenant or any of its employees, agents, or
invitees, including replacing or repairing all damaged or broken glass,
fixtures, and appurtenances resulting from any such damage, under the
supervision and with the approval of Landlord and within any reasonable
period of time specified by Landlord. Tenant's obligation to maintain and
repair the Premises, shall include but is not limited to, all electrical,
plumbing and mechanical systems serving the Premises from the point said
systems connect to the Premises. Landlord shall be responsible for the
maintenance and repair of said systems from the point said systems connect
to the base building systems on each floor to the Premises. If Tenant does
not do so promptly and
13
adequately, Landlord may, but need not, make such repairs and replacements
and Tenant shall pay Landlord the cost thereof on demand. Tenant shall take
special care to keep all areas of the Premises which are visible by or
accessible to the public, such as elevator lobbies and corridors, in good
order and appearance consistent with the high standards and quality of a
first-class office building.
(c) Whenever, in Landlord's opinion, Tenant's use or occupation of
the Premises, including lighting, personnel, heat generating machines, or
equipment, individually or cumulatively, causes the design loads for the
system providing heat and air-cooling to be exceeded, to affect the
temperature or humidity otherwise maintained by the heating, ventilating,
and air conditioning system in the Premises or Building, Landlord may, but
shall not be obligated to, temper such excess loads by installing
supplementary heating or air-conditioning units in the Premises or
elsewhere where necessary. In such event, the cost of such units and the
expense of installation, including, without limitation, the cost of
preparing working drawings and specifications, shall be paid by Tenant as
additional rent within ten (10) days after Landlord's demand therefor.
Alternatively, Landlord may require Tenant to install such supplementary
heating or air-conditioning unit at Tenant's sole expense. Landlord may
operate and maintain any such supplementary units, but shall have no
continuing obligation to do so or liability in connection therewith. The
expense resulting from the operation and maintenance of any such
supplementary heating or air conditioning units, including rent for space
occupied by any supplementary heating or air conditioning units installed
outside the Premises, shall be paid by Tenant to Landlord as additional
rent at rates fixed by Landlord. Alternatively, Landlord may require Tenant
to operate and maintain any such supplementary units, also at Tenant's sole
expense.
9. RETURN OF PREMISES.
(a) At the termination of this Lease by lapse of time or otherwise
or upon termination of Tenant's right of possession without terminating
this Lease, Tenant shall surrender possession of the Premises to Landlord
and deliver all keys and access cards to the Building, the premises and
the Building garage to Landlord and make known to the Landlord the
combination of all locks of vaults then remaining in the Premises, and
shall (subject to the provisions of Sections 9(b) and 9(c) below) return
the Premises and all equipment and fixtures of the Landlord therein to
Landlord in as good condition as when Tenant originally took possession,
ordinary wear, loss or damage by fire or other insured casualty, damage
resulting from the wanton or negligent act of Landlord or its employees and
agents excepted, failing which Landlord may restore the Premises and such
equipment and fixtures to such condition and Tenant shall pay the cost
thereof to Landlord on demand.
(b) All installations, additions, partitions, hardware, light
fixtures, supplementary heat or air-conditioning units, non-trade fixtures
and improvements, temporary or permanent, except movable furniture, movable
partitions and equipment belonging to Tenant, in or upon the Premises,
whether placed there by Tenant or Landlord, shall be Landlord's property
and shall remain upon the Premises, all without compensation, allowance or
credit to Tenant; provided, however, that if Landlord directs
14
that Tenant remove any of said items at the end of the Term, then Tenant
(unless prior to installation, Tenant has received Landlord's written
agreement that Landlord will not require removal thereof at the end of the
Term), at Tenant' s sole cost and expense, shall promptly remove such of
the installations, additions, partitions, hardware, light fixtures,
non-trade fixtures, and improvements placed in the Premises by or on behalf
of Tenant as are so designated by Landlord and repair any damage to the
Premises caused by such removal, failing which Landlord may remove the same
and repair the Premises and Tenant shall pay the cost thereof to Landlord
on demand.
(c) At the sole option of Landlord, Tenant shall leave in place
any floor covering without compensation to Tenant, or Tenant shall remove
any floor covering and all fastenings, paper, glue, bases, or other
vestiges and restore the floor surface to its previous condition. Tenant
shall remove Tenant's furniture, machinery, safes, trade fixtures, and
other items of movable personal property of every kind and description from
the Premises prior to the expiration of the Term or ten (10) days following
termination of this Lease or Tenant's right of possession, whichever might
be earlier, failing which Landlord may do so and thereupon the provisions
of Section 17(f) shall apply.
(d) All obligations of Tenant hereunder shall survive the
expiration of the Term or sooner termination of this Lease.
10. HOLDING OVER. The Tenant shall pay Landlord for each month (or
fraction thereof) Tenant retains possession of the Premises or any part thereof
after termination of this Lease, by lapse of time or otherwise, an amount which
is double the amount of rent for each month based on the annual rate of Rent
applicable under Sections 1 and 2 to the period in which such possession occurs,
and Tenant shall also pay all damages, consequential as well as direct,
sustained by Landlord by reason of such retention. Nothing in this Section
contained, however, shall be construed or operate as a waiver of Landlord's
right of reentry or any other right of Landlord.
11. RULES AND REGULATIONS. Tenant agrees to observe the rights reserved
to Landlord contained in Section 12 hereof and agrees, for itself, its
employees, agents, clients, customers, invitees and guests, to comply with the
rules and regulations set forth in Rider A attached to this Lease and made a
part hereof and such other reasonable rules and regulations as shall be adopted
by Landlord pursuant to Section 12(1) of this Lease. Any violation by Tenant of
any of the rules and regulations contained in Rider A attached to this Lease or
other Section of this Lease, or as may hereafter be adopted by Landlord pursuant
to Section 12(1) of this Lease, may be restrained; but whether or not so
restrained, Tenant acknowledges and agrees that it shall be and remain liable
for all damages, loss, costs and expense resulting from any violation by the
Tenant of any of said rules and regulations. Nothing in this Lease contained
shall be construed to impose upon Landlord any duty or obligation to enforce
said rules and regulations, or the terms, covenants and conditions of any other
lease against any other tenant or any other persons, and Landlord and its
beneficiary shall not be liable to Tenant for violation of the same by any other
tenant, its employees, agents, invitees, or by any other person.
12. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights,
exercisable without notice and without liability to Tenant for damage or injury
to property,
15
person or business and without effecting an eviction or disturbance of Tenant's
use or possession or giving rise to any claim for setoff or abatement of Rent or
affecting any of Tenant's obligations under this Lease:
(a) To change the name or street address of the Building.
(b) To install and maintain signs on the exterior and interior of
the Building.
(c) To prescribe the location and style of the suite number and
identification sign or lettering for the Premises occupied by the Tenant.
(d) To retain at all times, and to use in appropriate instances,
pass keys to the Premises.
(e) To grant to anyone the right to conduct any business or render
any service in the Building, whether or not it is the same as or similar to
the use expressly permitted to Tenant by Section 3.
(f) To exhibit the Premises during the last nine (9) months of the
Term at reasonable hours, and to decorate, remodel, repair, alter, or
otherwise prepare the Premises for reoccupancy at any time after Tenant
vacates or abandons the Premises.
(g) To enter the Premises at reasonable hours for reasonable
purposes, including inspection and supplying janitor service or other
service to be provided to Tenant hereunder.
(h) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably determine to
identify themselves to watchmen by registration or otherwise, and to
establish their right to enter or leave in accordance with the provisions
of applicable rules and regulations adopted by Landlord. Landlord shall not
be liable in damages for any error with respect to admission to or eviction
or exclusion from the Building of any person. In case of fire, invasion,
insurrection, mob, riot, civil disorder, public excitement or other
commotion, or threat thereof, Landlord reserves the right to limit or
prevent access to the Building during the continuance of the same, shut
down elevator service, activate elevator emergency controls, or otherwise
take such action or preventive measures deemed necessary by Landlord for
the safety of the tenants or other occupants of the Building or the
protection of the Building and the property in the Building. Tenant agrees
to cooperate in any reasonable safety program developed by Landlord.
(i) To control and prevent access to common areas and other
non-general public areas pursuant to the provisions of applicable rules and
regulations adopted by Landlord.
(j) Provided that reasonable access to the Premises shall be
maintained and the business of Tenant shall not be interfered with or
disrupted unreasonably, Landlord reserves the right to relocate, enlarge,
reduce or change lobbies, exits or entrances in or to the Building and to
decorate and to make, at its own expense, repairs, alterations,
16
additions and improvements, structural or otherwise, in or to the Building
or any part thereof, and any adjacent building, land, street or alley,
including for the purpose of connection with or entrance into or use of the
Building in conjunction with any adjoining or adjacent building or
buildings, now existing or hereafter constructed, and may for such purposes
erect scaffolding and other structures reasonably required by the character
of the work to be performed, and during such operations may enter upon the
Premises and take into and upon or through any part of the Building,
including the Premises, all materials that may be required to make such
repairs, alterations, improvements, or additions, and in that connection
Landlord may temporarily close public entry ways, other public spaces,
stairways or corridors and interrupt or temporarily suspend any services or
facilities agreed to be furnished by Landlord, all without the same
constituting an eviction of Tenant in whole or in part and without
abatement of Rent by reason of loss or interruption of the business of
Tenant or otherwise and without in any manner rendering Landlord liable for
damages or relieving Tenant from performance of Tenant's obligations under
this Lease. Landlord may at its option make any repairs, alterations,
improvements and additions in and about the Building and the Premises
during ordinary business hours and, if Tenant desires to have such work
done during other than business hours, Tenant shall pay all overtime and
additional expenses resulting therefrom.
(k) From time to time to make and adopt such reasonable rules and
regulations, in addition to or other than or by way of amendment or
modification of the rules and regulations contained in Rider A attached to
this Lease or other Sections of this Lease, for the protection and welfare
of the Building and its tenants and occupants, as the Landlord may
determine.
13. ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise expressly provided herein, Tenant shall
not, without the prior written consent of Landlord in each instance, (1)
convey, mortgage, pledge, hypothecate, or encumber, or subject to or permit
to exist upon or be subjected to any lien or charge, this Lease or any
interest under it, (ii) allow to exist or occur any transfer of or lien
upon this Lease or the Tenant's interest herein by operation of law, (iii)
assign this Lease or any of Tenant's rights hereunder, (iv) sublet the
Premises or any part thereof, or (v) permit the use or occupancy of the
Premises or any part thereof for any purpose not provided for under Section
3 of this Lease or by anyone other than the Tenant and Tenant's employees.
Landlord has the absolute right to withhold its consent, without giving any
reason whatsoever, except as herein expressly provided to the contrary. The
foregoing prohibitions shall also apply to any assignee or subtenant of
Tenant.
(b) Prior to the Commencement Date, Tenant shall not assign this
Lease or sublet all or any part of the Premises. If, after the Commencement
Date, Tenant has procured an assignee or sublessee, Tenant shall, by
written notice to Landlord, advise Landlord of its intention from, on and
after a stated date (which shall not be less than thirty (30) days after
the date of Tenant's notice) to assign this Lease to such proposed assignee
or sublet any part or all of the Premises to such proposed subtenant for
the balance or any part of the Term. Upon receipt of such notice, Landlord
shall have the right, to be exercised by giving written notice to Tenant
within fifteen (15) days after
17
receipt of Tenant's notice, to cancel the lease in the case of a proposed
assignment of this Lease or a proposed subleasing of all the Premises, or
to cancel the lease with respect to the portion to be so subleased by
notice to Tenant in which latter event the Rent and Tenant's Proportionate
Share as defined herein shall be adjusted on the basis of the number of
square feet of Rentable Area of the Premises retained by Tenant, and this
Lease as so amended shall continue thereafter in full force and effect. If
Landlord wishes to exercise such option to cancel, Landlord shall, within
fifteen (15) days after Landlord's receipt of such notice from Tenant, send
to Tenant a notice so stating and in such notice Landlord shall specify the
date as of which such cancellation is effective, which date shall be not
less than fifteen (15) and not more than thirty (30) days after the date on
which Landlord sends such notice. Tenant's notice given pursuant to this
Section 13(b) shall state the name and address of the proposed subtenant or
assignee, and a true and complete copy of the proposed sublease or
assignment and sufficient information to permit Landlord to determine the
financial responsibility and character of the proposed subtenant or
assignee shall be delivered to Landlord with said notice.
(c) If Landlord, upon receiving Tenant's notice given pursuant to
Section 13(b), shall not exercise its right to cancel, Landlord will not
unreasonably withhold its consent to Tenant's assignment of this Lease or
subletting the space covered by its notice. In each case, such subletting
or assignment shall also be subject to the following conditions:
(i) Tenant is not in default of the lease;
(ii) Tenant has fully complied with the provisions of this
Section 13;
(iii) The assignee or subtenant is not a tenant of the
Lincolnshire Corporate Center or a government (or subdivision or
agency thereof);
(iv) Tenant has furnished Landlord with copies of all
documents relating to the sublease or assignment arrangement between
Tenant and the proposed subtenant or assignee, including financial
statements, if requested by Landlord;
(v) The proposed sublease or proposed assignment does not
extend for a term beyond the initial Term of this Lease, nor does the
sublease or assignment contain any options to extend or renew the
term thereof beyond the initial Term of this Lease;
(vi) The subtenant or assignee is of a character or engaged
in a business which is, and the subtenant's or assignee's proposed
use of the Premises, or portions thereof, is consistent with the
standards of Landlord for the Building and the use permitted
hereunder;
(vii) A subletting will not result in more than two occupants
of the Premises, including Tenant and all subtenants;
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(viii) The space to be subleased and the remaining portion of
the Premises are both legally leasable units and suitable for normal
renting;
(ix) The assignee or subtenant is sufficiently financially
responsible to perform its obligations under the sublease or
assignment; and
(x) The intended use by or business of the proposed
assignee or sublessee will not conflict with any commitment by
Landlord to any other tenant in the Lincolnshire Corporate Center.
Landlord agrees to respond to Tenant's request for approval within thirty
(30) days after submission of all documents.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and
(c) above, Landlord agrees that (1) as to an assignment or transfer by
operation of law, Landlord shall have the right of consent pursuant to
subparagraph (c) above, but shall not have the option to cancel the lease,
provided such assignment or transfer is to a corporation which acquires
substantially all of the stock of the Tenant; and (2) as to an assignment
of the lease to a wholly-owned subsidiary of Tenant, Landlord shall not
have the option to cancel nor shall Landlord have a right of consent.
(e) Consent by Landlord to any assignment, subletting, use, or
occupancy or transfer shall not operate to relieve the Tenant from any
covenant or obligation hereunder, and shall not be deemed to be a consent
to or relieve Tenant, or any subtenant or assignee, from obtaining
Landlord's consent to any subsequent assignment, transfer, lien, charge,
subletting, use, or occupancy. Tenant shall pay all of Landlord's costs,
charges and expenses, including attorneys' fees, incurred in connection
with any assignment, transfer, lien, charge, subletting, use or occupancy
made or requested by Tenant.
(f) If Tenant, having first obtained Landlord's consent to any
sublease or assignment, or if Tenant or a trustee in bankruptcy for Tenant,
pursuant to Section 365 of the Bankruptcy Code, shall assign this Lease or
sublet the Premises, or any part thereof, then in addition to the Rent then
payable hereunder, Tenant shall pay to Landlord, as further additional rent
on the first day of each month during the term of any such assignment or
sublease, one hundred percent (100%) of the amount, if any, by which (x)
the Assigned Area Rent exceeds (y) the product of the Current Monthly Rent
multiplied by the Assigned Area. As used herein:
(i) "Assigned Area" shall mean the number of square feet
of Rentable Area of the Premises (in the case of an assignment or
sublet of the entire Premises) or of the Rentable Area of any space
sublet by Tenant (in the case of a sublet of less than the entire
Premises).
(ii) "Current Monthly Rent" shall mean the aggregate of all
Monthly Base Rent and Additional Rent Progress Payments being paid by
Tenant as of the effective date of an assignment or sublet, divided
by the number of square feet of Rentable Area of the Premises.
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(iii) "Assigned Area Rent" shall mean the current monthly
base rent and other amounts payable by the subtenant or assignee for
the Assigned Area.
(g) If Tenant is a corporation (other than a corporation whose
stock is traded through a national or regional exchange or
over-the-counter), any transaction or series of transactions (including
without limitation any dissolution, merger, consolidation or other
reorganization of Tenant, or any issuance, sale, gift, transfer or
redemption of any capital stock of Tenant, whether voluntary, involuntary
or by operation of law, or any combination of any of the foregoing
transactions) resulting in the transfer of control of Tenant, other than by
reason of death, shall be deemed to be transfer of Tenant's interest under
this Lease for the purpose of Section 13. If Tenant is a partnership, any
transaction or series of transactions (including without limitation any
withdrawal or admittance of a partner or any change in any partners'
interest in Tenant, whether voluntary, involuntary or by operation of law,
or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be
deemed to be a transfer of Tenant's interest under this Lease for the
purpose of Section 13. The term "control" as used in this Section 13(g)
means the power to directly or indirectly direct or cause the direction of
the management or policies of Tenant. If Tenant is a corporation, a change
or series of changes in ownership of stock which would result in direct or
indirect change in ownership by the stockholders or an affiliated group of
stockholders of less than fifty percent (50%) of the outstanding voting
stock of Tenant as of the date of the execution and delivery of this Lease
shall not be considered a change of control.
14. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT.
(a) To the extent not expressly prohibited by law, Tenant releases
Landlord and its beneficiaries, and their agents, servants, and employees,
from and waives all claims for damages to person or property sustained by
the Tenant or by any occupant of the Premises or the Building, or by any
other person, resulting directly or indirectly from fire or other casualty,
cause, or any existing or future condition, defect, matter, or thing in or
about the Premises, the Building or any part of it, or from any equipment
or appurtenance therein, or from any accident in or about the Building, or
from any act or neglect of any tenant or other occupant of the Building or
any part thereof or of any other person. This Section 14(a) shall not
operate as a release of Landlord from liability for the negligent or
intentionally wrongful conduct of Landlord or its agent or employees. This
Section 14 shall apply especially, but not exclusively, to damage caused by
water, snow, frost, steam, excessive heat or cold, sewerage, gas, odors, or
noise, or the bursting or leaking of pipes or plumbing fixtures, broken
glass, sprinkling or air conditioning devices or equipment, or flooding of
basements, and to any damage to automobiles parked in the garage in the
Building or outside the Building and shall apply without distinction as to
the person whose act or neglect was responsible for the damage and whether
the damage was due to any of the acts specifically enumerated above, or
from any other thing or circumstance, whether of a like nature or of a
wholly different nature. If any damage to the Premises or the building or
any equipment or appurtenance therein, whether belonging to Landlord or to
other tenants or occupants of the Building or otherwise, results from any
negligent or wrongful acts of the Tenant, its employees, agents, or
invitees, Tenant shall be liable therefor and Landlord may, at its option,
repair such
20
damage and Tenant shall upon demand by Landlord reimburse Landlord for all
reasonable costs of such repairs and damages in excess of amounts, if any,
paid to Landlord under insurance covering such damages. All personal
property belonging to the Tenant or any occupant of the Premises that is in
the Building or the Premises shall be there at the risk of the Tenant or
other person only and Landlord shall not be liable for damage thereto or
theft or misappropriation thereof. All vehicles parked in the Building's
garage or in the parking lots shall be parked at the sole risk of the
owner, and Landlord assumes no responsibility for any damage to or loss of
vehicles.
(b) To the extent not expressly prohibited by law, Tenant agrees
to hold Landlord and its beneficiaries, and their agents, servants, and
employees, harmless and to indemnify each of them against claims and
liabilities, including reasonable attorneys' fees, for injuries to all
persons and damage to or theft or misappropriation or loss of property
occurring in or about the Premises arising from Tenant's negligence or
wrongful acts or from any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease or due to any other act or
omission of the Tenant, its agents, or employees.
15. DAMAGE OR DESTRUCTION BY CASUALTY.
(a) If the Premises or any part of the Building shall be damaged
by fire or other casualty and if such damage does not render all or a
substantial portion of the Premises or the Building untenantable, then
Landlord shall proceed to repair and restore the same to its prior existing
condition with reasonable promptness, subject to reasonable delays for
insurance adjustments and delays caused by matters beyond Landlord's
control. If any such damage renders all or a substantial portion of the
Premises or the Building untenantable, Landlord shall, with reasonable
promptness after the occurrence of such damage and in good faith, estimate
the length of time that will be required to substantially complete the
repair and restoration of such damage and shall by notice advise Tenant of
such estimate. If it is so estimated that the amount of time required to
substantially complete such repair and restoration will exceed two hundred
seventy (270) days from the date such damage occurred, then either Landlord
or Tenant (but as to Tenant only if all or a substantial portion of the
Premises are rendered untenantable and the estimated time to substantially
complete the repair or restoration of the Premises will exceed such two
hundred seventy (270) days from the date of the fire or other casualty)
shall have the right to terminate this Lease as of the date of such damage
upon giving notice to the other at any time within twenty (20) days after
Landlord gives Tenant the notice containing said estimate (it being
understood that Landlord may, if it elects to do so, also give such notice
of termination together with the notice containing said estimate). Unless
this Lease is terminated as provided in the preceding sentence, Landlord
shall proceed with reasonable promptness and all due diligence to repair
and restore the Premises to its prior existing condition, subject to
reasonable delays for insurance adjustments and delays caused by matters
beyond Landlord's control, and also subject to zoning laws and building
codes then in effect. Landlord shall have no liability to Tenant, and
Tenant shall not be entitled to terminate this Lease (except as hereinafter
provided) if such repairs and restoration are not in fact completed within
the time period estimated by Landlord, as aforesaid, or within said two
hundred seventy (270) days, so long as
21
Landlord shall proceed with reasonable promptness and due diligence.
Notwithstanding anything to the contrary herein set forth: (i) if any such
damage rendering all or a substantial portion of the Premises or Building
untenantable shall occur during the last three (3) years of the Term, then
Landlord shall have the option to terminate this Lease by written notice to
Tenant within thirty (30) days after the date such damage occurred, and if
such option is so exercised, this Lease shall terminate as of the date of
such damage; (ii) Landlord shall have no duty pursuant to this Section 15
to repair or restore any portion of alterations, additions or improvements
made by or on behalf of Tenant in the Premises or improvements which are
not then building standard improvements; (iii) Landlord shall not be
obligated (but may, at its option, so elect) to repair or restore the
Premises or Building if any mortgagee applies proceeds of insurance to
reduce its loan balance and the remaining proceeds, if any, available to
Landlord are not sufficient to pay for such repair or restoration; and (iv)
Tenant shall not have the right to terminate this Lease pursuant to this
Section 15 if the damage or destruction was caused by the intentional or
negligent act of Tenant, its agents or employees.
(b) In the event any such fire or casualty damage not caused by
the intentional or negligent act of Tenant, its agents or employees,
renders the Premises substantially untenantable and Tenant is not occupying
the Premises and if this Lease shall not be terminated pursuant to the
foregoing provisions of Section 15 by reason of such damage, then Rent
shall xxxxx during the period beginning with the date of such damage and
ending with the date when Landlord substantially completes its repair and
restoration work. Such abatement shall be in an amount bearing the same
ratio to the total amount of Rent for such period as the portion of the
Premises being repaired and restored by Landlord and not heretofore
delivered to Tenant from time to time bears to the entire Premises. In the
event of termination of this Lease pursuant to this Section 15, Rent shall
be apportioned on a per diem basis and be paid to the date of such fire or
other casualty.
(c) In the event of any such fire or other casualty, and if the
lease is not terminated pursuant to the foregoing provisions of this Lease,
Tenant shall repair and restore any portion of alterations, additions or
improvements made by or on behalf of Tenant in the Premises, and during any
such period of Tenant's repair and restoration following substantial
completion of Landlord's repair and restoration work, Rent shall be payable
as if said fire or other casualty had not occurred.
16. EMINENT DOMAIN. If all or a substantial part of the Building, or any
part thereof which includes all or a substantial part of the Premises, shall be
taken or condemned by any competent authority for any public or quasi-public use
or purpose, the Term of this Lease shall end upon and not before the date when
the possession of the part so taken shall be required for such use or purpose,
and without apportionment of the award to or for the benefit of Tenant. If any
condemnation proceeding shall be instituted in which it is sought to take or
damage any part of the Building, the taking of which would, in Landlord's
opinion, prevent the economical operation of the Building, or if the grade of
any street or alley adjacent to the Building is changed by any competent
authority, and such taking or damage or change of grade makes it necessary or
desirable to remodel the Building to conform to the taking or damage, Landlord
shall have the right to terminate this Lease upon not less than ninety (90)
days' notice prior to the date of termination designated in the notice. In
either of the events above referred to, Rent shall
22
be apportioned as of the date of the termination. No money or other
consideration shall be payable by the Landlord to the Tenant for the right of
termination, and the Tenant shall have no right to share in the condemnation
award or in any judgment for damages caused by such taking or the change of
grade; provided, however, that Tenant shall have the right to pursue separately
against the condemning authority any award available separately to Tenant for
Tenant's moving and relocation expenses.
17. DEFAULT; LANDLORD'S RIGHTS AND REMEDIES.
(a) The occurrence of any one or more of the following matters
constitutes a Default by Tenant under this Lease:
(i) Failure by Tenant to pay Rent or any installment
thereof when due;
(ii) Failure by Tenant to pay when due any other moneys
required to be paid by Tenant under this Lease;
(iii) Failure by Tenant to observe or perform any of the
covenants in respect of assignment and subletting set forth in
Section 13;
(iv) Failure by Tenant to cure forthwith, immediately
after receipt of notice from Landlord, any hazardous condition which
Tenant has created in violation of law or of this Lease;
(v) Failure by Tenant to observe or perform any other
covenant, agreement, condition or provision of this Lease, if such
failure shall continue for thirty (30) days after notice thereof from
Landlord to Tenant, provided, however, that Tenant shall not be in
default with respect to matters which cannot reasonably be cured
within thirty (30) days so long as within such thirty (30) day period
Tenant commences such cure and diligently proceeds to complete the
same at all times thereafter;
(vi) The levy upon or under execution or the attachment by
legal process of the leasehold interest of Tenant, or the filing or
creation of a lien in respect of such leasehold interest, which lien
shall not be released or discharged within thirty (30) days from the
date of such filing;
(vii) Tenant vacates or abandons the Premises or fails to
take possession of the Premises when available for occupancy (the
transfer of a substantial part of the operations, business and
personnel of Tenant to some other location being deemed, without
limiting the meaning of the term "vacates or abandons", to be a
vacation or abandonment within the meaning of this clause (vii)),
whether or not Tenant thereafter continues to pay Rent due under this
Lease;
(viii) Tenant becomes insolvent or bankrupt or admits in
writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors, or applies for or consents
to the appointment of a trustee or receiver for Tenant or for the
major part of his property;
23
(ix) A trustee or receiver is appointed for the Tenant or
for the major part of its property and is not discharged within
thirty (30) days after such appointment; and
(x) Bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings for relief under any
bankruptcy law, or similar law for the relief of debtors, are
instituted by or against Tenant, and, if instituted against Tenant,
are allowed against it or are consented to by it or are not dismissed
within sixty (60) days after such institution.
(b) If a Default occurs which has not been cured or remedied
during the applicable grace period, Landlord shall have the rights and
remedies hereinafter set forth, which shall be distinct, separate and
cumulative and shall not operate to exclude or deprive Landlord of any
other right or remedy allowed it by law:
(i) Landlord may terminate this Lease by giving to Tenant
written notice of the Landlord's election to do so, in which event
the Term of this Lease shall end, and all right, title and interest
of the Tenant hereunder shall expire, on the date stated in such
notice;
(ii) Landlord may terminate the right of the Tenant to
possession of the Premises' without terminating this Lease by giving
written notice to Tenant that Tenant's right of possession shall end
on the date stated in such notice, whereupon the right of the Tenant
to possession of the Premises or any part thereof shall cease on the
date stated in such notice; and
(iii) Landlord may enforce the provisions of this Lease and
may enforce and protect the rights of the Landlord hereunder by a
suit or suits in equity or at law for the specific performance of any
covenant or agreement contained herein, or for the enforcement of any
other appropriate legal or equitable remedy, including recovery of
all moneys due or to become due from the Tenant under any of the
provisions of this Lease.
Any notice required to be given by Landlord pursuant to this Section
17(b) may be given concurrently with a notice of default pursuant to
Section 17(a).
(c) If Landlord exercises either the remedies provided for in
subparagraphs (i) or (ii) of the foregoing Section 17(b), Tenant shall
surrender possession and vacate the Premises immediately and deliver
possession thereof to the Landlord, and Landlord may then or at any time
thereafter re-enter and take complete and peaceful possession of the
Premises, with or without process of law, full and complete license to do
so being hereby granted to the Landlord, and Landlord may remove all
occupants and property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass, eviction or forcible
entry and detainer and without relinquishing Landlord' s right to rent or
any other right given to Landlord hereunder or by operation of law.
(d) If Landlord, pursuant to the provisions of Section 17(b)(ii)
hereof, terminates the right of the Tenant to possession of the Premises
without terminating this
24
Lease, such termination of possession shall not release Tenant, in whole or
in part, from Tenant's obligation to pay the Rent hereunder for the full
Term, and Landlord shall have the right to immediate recovery of all
amounts then due hereunder. In addition, Landlord shall have the right,
from time to time, to recover from the Tenant, and the Tenant shall remain
liable for, all Rent and any other sums thereafter accruing as they become
due under this Lease during the period from the date of such notice of
termination of possession to the stated end of the Term. In any such case,
the Landlord may, but shall be under no obligation to (except to the extent
required by law), relet the Premises or any part thereof for the account of
the Tenant for such rent, for such time (which may be for a term extending
beyond the Term of this Lease) and upon such terms as the Landlord in the
Landlord's sole discretion shall determine, and the Landlord shall not be
required to accept any tenant offered by the Tenant or to observe any
instructions given by the Tenant relative to such reletting. Landlord
shall, however, cooperate with Tenant in order to relet the Premises and
minimize Tenant's damages, but this obligation shall not require Landlord
to divert any prospective tenants from any other portion of the Building.
Also in any such case the Landlord may make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent
deemed by the Landlord necessary or desirable and in connection therewith
change the locks to the Premises, and the Tenant shall upon demand pay the
cost thereof together with the Landlord's expenses of reletting. Landlord
may collect the rents from any such reletting and apply the same first to
the payment of the expenses of reentry, redecoration, repair and
alterations and the expenses of reletting and second to the payment of Rent
herein provided to be paid by the Tenant, and any excess or residue shall
operate only as an offsetting credit against the amount of Rent as the same
thereafter becomes due and payable hereunder, but the use of such
offsetting credit to reduce the amount of Rent due Landlord, if any, shall
not be deemed to give Tenant any right, title or interest in or to such
excess or residue and any such excess or residue shall belong to Landlord
solely; provided that in no event shall Tenant be entitled to a credit on
its indebtedness to Landlord in excess of the aggregate sum (including Base
Rent and Additional Rent) which would have been paid by Tenant for the
period for which the credit to Tenant is being determined, had no Default
occurred. No such re-entry or repossession, repairs, alterations and
additions, or reletting shall be construed as an eviction or ouster of the
Tenant or as an election on Landlord's part to terminate this Lease unless
a written notice of such intention be given to Tenant or shall operate to
release the Tenant in whole or in part from any of the Tenant's obligations
hereunder, and the Landlord may, at any time and from time to time, xxx and
recover judgment for any deficiencies from time to time remaining after the
application from time to time of the proceeds of any such reletting.
(e) In the event of the termination of this Lease by Landlord as
provided for by subparagraph (i) of Section 17(b), Landlord shall be
entitled to recover from Tenant all the fixed dollar amounts of Rent
accrued and unpaid for the period up to and including such termination
date, as well as all other additional sums payable by the Tenant, or for
which Tenant is liable or in respect of which Tenant has agreed to
indemnify Landlord under any of the provisions of this Lease which may be
then owing and unpaid, and all costs and expenses, including court costs
and attorneys' fees incurred by Landlord in the enforcement of its rights
and remedies hereunder, and in addition Landlord shall be entitled to
recover as damages for loss of the bargain and not as a penalty (x) the
25
unamortized cost to the Landlord, computed and determined in accordance
with generally accepted accounting principles, of the tenant improvements
and alterations, if any, paid for and installed by Landlord pursuant to
this Lease, and (y) the aggregate sum which at the time of such termination
represents the excess, if any, of the present value of the aggregate rents
at the same annual rate for the remainder of the Term as then in effect
pursuant to the applicable provisions of Sections 1 and 2 of this Lease,
over the then present value of the then aggregate fair rental value of the
Premises for the balance of the Term, such present worth to be computed in
each case on the basis of a per annum discount at one-half (1/2) of the
corporate base rate of interest then in effect at the First National Bank
of Chicago from the respective dates upon which such rentals would have
been payable hereunder had this Lease not been terminated, and (z) any
damages in addition thereto, including reasonable attorneys' fees and court
costs, which Landlord shall have sustained by reason of the breach of any
of the covenants of this Lease other than for the payment of rent.
(f) All property removed from the Premises by Landlord pursuant to
any provision of this Lease or of law may be handled, removed or stored by
Landlord at the cost and expense of the Tenant, and the Landlord shall in
no event be responsible for the value, preservation or safekeeping thereof.
Tenant shall pay Landlord for all expenses incurred by Landlord in such
removal and storage charges against such property so long as the same shall
be in Landlord's possession or under Landlord's control. All property not
removed from the Premises or not retaken from storage by Tenant within
thirty (30) days after the end of the Term, however terminated, shall be
conclusively deemed to have been conveyed by Tenant to Landlord as by xxxx
of sale without further payment or credit by Landlord to Tenant.
(g) If any action for breach of or to enforce any provision of
this Lease is commenced, the court in such action shall award to the party
in whose favor judgment is entered, a reasonable sum as attorneys' fees,
which attorneys' fees shall be paid by the losing party in such action.
Tenant shall pay all of Landlord's costs, charges, and expenses, including
court costs and reasonable attorneys' fees, incurred by Landlord in any
litigation in which Tenant causes the Landlord, without Landlord's fault,
to become involved or concerned.
(h) In the event that Tenant shall file for protection under any
Chapter of the Bankruptcy Code now or hereafter in effect, Landlord and
Tenant agree, to the extent permitted by law, to request that the
debtor-in-possession or trustee-in-bankruptcy, if one is appointed, assume
or reject this Lease within sixty (60) days thereafter.
18. SUBORDINATION.
(a) Landlord may have heretofore or may hereafter encumber with a
mortgage or trust deed the Building, the Land, the Real Property or any
interest therein, and may have heretofore and may hereafter sell and lease
back the Land, or any part of the Real Property, and may have heretofore or
may hereafter encumber the leasehold estate under such lease with a
mortgage or trust deed (any such mortgage or trust deed is herein called a
"Mortgage" and the holder of any such mortgage or the beneficiary under any
such trust
26
deed is herein called a "Mortgagee". Any such lease of the underlying land
is herein called a "Ground Lease", and the lessor under any such lease is
herein called a "Ground Lessor". Any Mortgage which is a first lien against
the Building, the Land, the Real Property, the leasehold estate under a
Ground Lease or any interest therein is herein called a "First Mortgage"
and the holder or beneficiary of any First Mortgage is herein called a
"First Mortgagee"). If requested by the Mortgagee or Ground Lessor, Tenant
will either (a) subordinate its interest in this Lease to said Mortgage,
and to any and all advances thereunder and to the interest thereon, and all
renewals, replacements, amendments, modifications, and extensions thereof,
or to said Ground Lease, or to both, or (b) make Tenant's interest in this
Lease or certain of Tenant's rights hereunder superior thereto; and Tenant
will promptly execute and deliver such agreement or agreements as may be
reasonably required by the Mortgagee or by any such Ground Lessor; provided
that Tenant covenants it will not subordinate this Lease to any Mortgage
other than a First Mortgage without the prior written consent of the First
Mortgagee.
(b) It is further agreed that (a) if any Mortgage shall be
foreclosed, or if any ground or underlying lease be terminated, (i) the
liability of the mortgagee or trustee hereunder or purchaser at such
foreclosure sale or the liability of a subsequent owner designated as
Landlord under this Lease shall exist only so long as such trustee,
mortgagee, purchaser, or owner is the owner of an interest in the Building
or Land and such liability shall not continue or survive after further
transfer of ownership; and (ii) upon request of the mortgagee or trustee,
if any Mortgage shall be foreclosed, Tenant will attorn, as Tenant under
this Lease, to the purchaser at any foreclosure sale under any Mortgage, or
upon request of the Ground Lessor, if any Ground Lease shall be terminated,
Tenant will attorn as Tenant under this Lease to the Ground Lessor, and
Tenant will execute such instruments as may be necessary or appropriate to
evidence such attornment; and (b) this Lease may not be modified or amended
so as to reduce the rent or shorten the term provided hereunder, or so as
to adversely affect in any other respect to any material extent the rights
of the Landlord, nor shall this Lease be canceled or surrendered, without
the prior written consent, in each instance, of the First Mortgagee and of
any Ground Lessor.
(c) Should any prospective First Mortgagee or Ground Lessor
require a modification or modifications of this Lease, which modification
or modifications will not cause an increase in the Rent stipulated
hereunder or in any other way materially and adversely change the rights
and obligations of Tenant hereunder, then and in such event, Tenant agrees
that this Lease may be so modified and agrees to execute whatever documents
are required therefor and deliver the same to Landlord within ten (10) days
following the request therefor. Should any Landlord or prospective
Mortgagee or Ground Lessor require execution of a short form of lease for
recording (containing the names of the parties, a description of the
Premises, and the term of this Lease) or a certification from the Tenant
concerning the lease in such form as may be required by a prospective
mortgagee or ground lessor, Tenant agrees to execute such short form of
lease or certificate and deliver the same to Landlord within ten (10) days
following the request therefor.
27
19. MORTGAGEE PROTECTION. Tenant agrees to give the First Mortgagee, by
registered or certified mail, a copy of any notice of default served upon the
Landlord by Tenant, provided that, prior to such notice, Tenant has been
notified in writing (by way of service on Tenant of a copy of assignment of
rents and leases, or otherwise) of the address of such First Mortgagee. Tenant
further agrees that if Landlord shall have failed to cure such default within
twenty (20) days after such notice to Landlord (or if such default cannot be
cured or corrected within that time, then such additional time as may be
necessary if Landlord has commenced within such twenty (20) days and is
diligently pursuing the remedies or steps necessary to cure or correct such
default), then the First Mortgagee shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
the First Mortgagee has commenced within such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the First Mortgagee to cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
20. DEFAULT UNDER OTHER LEASES. If the term of any lease, other than this
Lease, heretofore or hereafter made by Tenant for any space in the Building
shall be terminated or terminable after the making of this Lease because of any
default by Tenant under such other lease, such fact shall empower Landlord, at
Landlord's sole option, to terminate this Lease by notice to Tenant or to
exercise any of the rights or remedies set forth in Section 17.
21. SUBROGATION AND INSURANCE.
(a) Landlord and Tenant agree to have all physical damage or
material damage insurance which may be carried by either of them, and
Tenant agrees to have all business interruption insurance which it carries,
endorsed to provide that any release from liability of, or waiver of claim
for, recovery from the other party entered into in writing by the insured
thereunder prior to any loss or damage shall not affect the validity of
said policy or the right of the insured to recover thereunder and providing
further that the insurer waives all rights of subrogation which such
insurer might have against the other party. Without limiting any release or
waiver of liability or recovery contained in any other section of this
Lease, but rather in confirmation and furtherance thereof, each of the
parties hereto waives all claims for recovery from the other party for any
loss or damage to any of its property or damages as a result of business
interruption. Notwithstanding the foregoing or anything contained in this
Lease to the contrary, any release and any waiver of claims shall not be
operative, nor shall the foregoing endorsements be required, in any case
where the effect of such release and waiver is to invalidate insurance
coverage or increase the cost thereof (provided that, in the case of
increased cost, the other party shall have the right, within ten (10) days
following written notice, to pay such increased cost keeping such release
and waiver in full force and effect).
(b) Tenant shall carry insurance during the entire Term hereof
insuring Tenant and Landlord and Landlord's agents and beneficiaries and
mortgagees with terms, coverages, and in companies satisfactory to Landlord
and with such commercially reasonable increases in limits as Landlord may
from time to time request, but initially Tenant shall maintain the
following coverages in the following amounts:
28
(i) Comprehensive general liability insurance, including
contractual liability insuring the indemnification provisions
contained in this Lease, in an amount not less than $2,000,000.00
combined single limit per occurrence;
(ii) "All risk" physical damage insurance, including
sprinkler leakage, for the full replacement cost of all additions,
improvements, and alterations to the Premises and of all office
furniture, trade fixtures, office equipment, merchandise, and all
other items of Tenant's property on the Premises; and
The foregoing insurance may be provided by a company-wide blanket
insurance policy or policies maintained by or on behalf of Tenant,
provided that the same is reasonably satisfactory to Landlord.
(c) Tenant shall, prior to the commencement of the Term and
thereafter during the Term, furnish to Landlord policies or certificates
issued, by the respective carriers evidencing such coverage or replacements
and renewals thereof, which policies or certificates shall state that such
insurance coverage may not be changed or cancelled without at least thirty
(30) days' prior written notice to Landlord and Tenant.
(d) Tenant shall comply with all applicable laws and ordinances,
all orders and decrees of court and all requirements of other governmental
authority and all requirements of Landlord's insurance companies, and shall
not directly or indirectly make any use of the Premises which may thereby
be prohibited or be dangerous to person or property or which may jeopardize
any insurance coverage, or may increase the cost of insurance or require
additional insurance coverage. In the event of such increase in the cost of
insurance or such requirement for additional insurance coverage, Tenant
shall reimburse Landlord for the cost thereof.
22. NONWAIVER. No waiver of any condition expressed in this Lease shall
be implied by any neglect of either party to enforce any remedy on account of
the violation of such condition whether or not such violation be continued or
repeated subsequently, and no express waiver shall affect any condition other
than the one specified in such waiver and that one only for the time and in the
manner specifically stated. Without limiting the provisions of Section 10, it is
agreed that no receipt of moneys by Landlord from Tenant after the termination
in any way of the Term or of Tenant's right of possession hereunder or after the
giving of any notice shall reinstate, continue or extend the Term or affect any
notice given to Tenant prior to the receipt of such moneys. It is also agreed
that after the service of notice or the commencement of a suit or after final
judgment for possession of the Premises, Landlord may receive and collect any
moneys due, and the payment of said moneys shall not waive or affect said
notice, suit or judgment.
23. ESTOPPEL CERTIFICATE. The Tenant agrees that from time to time upon
not less than ten (10) days' prior request by Landlord, or the holder of any
Mortgage or any ground lessor, the Tenant (or any permitted assignee, subtenant,
licensee, concessionaire, or other occupant of the Premises claiming by,
through, or under Tenant) will deliver to Landlord or to the holder of any
Mortgage or ground lessor, a statement in writing signed by Tenant certifying
(a) that this Lease is unmodified and in full force and effect (or if there have
been modifications,
29
that the lease as modified is in full force and effect and identifying the
modifications); (b) the date upon which Tenant began paying Rent and the dates
to which the Rent and other charges have been paid, Cc) that the Landlord is not
in default under any provision of this Lease, or, if in default, the nature
thereof in detail; (d) that the Premises have been completed in accordance with
the terms hereof and Tenant is in occupancy and paying Rent on a current basis
with no rental offsets or claims; (e) that there has been no prepayment of Rent
other than that provided for in the Lease; (f) that there are no actions,
whether voluntary or otherwise, pending against Tenant under the bankruptcy laws
of the United States or any State thereof, and (g) such other matters as may be
required by Landlord, the holder of any Mortgage or ground lessor.
24. TENANT AUTHORITY TO EXECUTE LEASE. In case Tenant is a corporation,
Tenant (a) represents and warrants that this Lease has been duly authorized,
executed, and delivered by and on behalf of the Tenant and constitutes the valid
and binding agreement of the Tenant in accordance with the terms hereof, (b)
Tenant shall deliver to Landlord or its agent, concurrently with the delivery of
this Lease, executed by Tenant, certified resolutions of the board of directors
(and shareholders, if required) authorizing Tenant's execution and delivery of
this Lease and the performance of Tenant obligations hereunder; and (c) until
Landlord is notified in writing of a substitute therefor, Tenant's Authorized
Representative set forth in the Schedule shall have full power and authority to
take action on behalf of and to bind Tenant with respect to all matters relating
to this Lease and the Premises. In case Tenant is a partnership, Tenant
represents and warrants that all of the persons who are general or managing
partners in said partnership have executed this Lease on behalf of Tenant, or
that this Lease has been executed and delivered pursuant to and in conformity
with a valid and effective authorization therefor by all of the general or
managing partners of such partnership, and is and constitutes the valid and
binding agreement of the partnership and each and every partner therein in
accordance with its terms. It is agreed that each and every present and future
partner in Tenant shall be and remain at all times jointly and severally liable
hereunder and that the death, resignation, or withdrawal of any partner shall
not release the liability of such partner under the terms of this Lease unless
and until the Landlord shall have consented in writing to such release.
25. REAL ESTATE BROKERS. Tenant represents that Tenant has directly dealt
with and only with the real estate broker or brokers disclosed in the Schedule
(whose commission shall be paid by Landlord pursuant to a separate agreement
with each such broker), as broker, in connection with this Lease and agrees to
indemnify and hold Landlord harmless from all damages, liability, and expense
(including reasonable attorneys' fees) arising from any claims or demands of any
other broker or brokers or finders for any commission alleged to be due such
broker or brokers or finders in connection with its participating in the
negotiation with Tenant of this Lease.
26. NOTICES. In every instance where it shall be necessary or desirable
for Landlord to serve any notice or demand upon Tenant, it shall be sufficient
to send a written or printed copy of such notice or demand by United States
registered or certified mail, postage prepaid, addressed to Tenant at the
address set forth in the Schedule, in which event the notice or demand shall be
deemed to have been served at the time the same was posted plus two (2) business
days, or to serve any such notice or demand personally. Any such notice or
demand to be given by Tenant to Landlord shall, until further notice, be served
personally or sent by United States registered or certified mail, postage
prepaid, to Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx
00
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx. Mailed communications to Landlord
shall be deemed to have been served at the time the same were posted plus two
(2) business days. Notwithstanding the foregoing, notices served with respect to
emergency matters may be served personally or by telephone communication. Tenant
is advised and acknowledges that until further notice to Tenant, Van Vlissingen
& Co., the present agent of Landlord, has authority to execute and deliver
notices hereunder to Tenant on behalf of Landlord.
27. MISCELLANEOUS.
(a) Each provision of this Lease shall extend to and shall bind
and inure to the benefit not only of Landlord and Tenant, but also their
respective heirs, legal representatives, successors, and assigns, but this
provision shall not operate to permit any transfer, assignment, mortgage,
encumbrance, lien, charge, or subletting contrary to the provisions of
Section 13.
(b) No modification, waiver, or amendment of this Lease or of any
of its conditions or provisions shall be binding upon Landlord or Tenant
unless in writing and signed by Landlord and Tenant.
(c) Submission of this instrument for examination shall not
constitute a reservation of or option for the Premises or in any manner
bind Landlord and no lease or obligation on Landlord shall arise until this
instrument is signed and delivered by Landlord and Tenant; provided,
however, the execution and delivery by Tenant of this Lease to Landlord or
the agent of Landlord's beneficiary shall constitute an irrevocable offer
by Tenant to lease the Premises on the terms and conditions herein
contained, which offer may not be revoked for thirty (30) days after such
delivery.
(d) The word "Tenant" whenever used herein shall be construed to
mean Tenants or any one or more of them in all cases where there is more
than one Tenant; and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or other organizations,
partnerships, or other entities, or individuals, shall in all cases be
assumed as though in each case fully expressed. In all cases where there is
more than one Tenant, the liability of each shall be joint and several.
(e) Clauses, plats, and riders, if any, signed by Landlord and
Tenant and endorsed on or affixed to this Lease are part hereof and in the
event of variation or discrepancy the duplicate original hereof, including
such clauses, plats, and riders, if any, held by Landlord shall control.
(f) The headings of Sections are for convenience only and do not
limit, expand, or construe the contents of the Sections.
(g) Nothing contained in this Lease shall be deemed or construed
by the parties hereto or by any third party to create the relationship of
principal and agent, partnership, joint venturer, or any association
between Landlord and Tenant, it being expressly understood and agreed that
neither the method of computation of Rent nor any other provisions
contained in this Lease nor any act of the parties hereto shall be deemed
31
to create any relationship between Landlord and Tenant other than the
relationship of landlord and tenant..
(h) Time is of the essence of this Lease and of each and all
provisions thereof.
(i) All amounts (including, without limitation, Base Rent and
Additional Rent) owed by Tenant to Landlord pursuant to any provision of
this Lease shall bear interest at the annual rate of the greater of (i)
fifteen percent (15%) and (ii) four percent (4%) in excess of corporate
base rate of interest then in effect at the First National Bank of Chicago
from the date of the expiration of the applicable required notice period
until paid, unless a lesser rate shall then be the maximum rate permissible
by law with respect thereto, in which event said lesser rate shall be
charged.
(j) The legal invalidity of any provision of this Lease shall not
impair or affect in any manner the validity, enforceability, or effect of
the rest of this Lease.
(k) All understandings and agreements, oral or written, heretofore
made between the parties hereto are merged in this Lease, which alone fully
and completely expresses the agreement between Landlord (and its
beneficiary and their agents) and Tenant.
28. LANDLORD'S AUTHORITY AND QUIET ENJOYMENT. Landlord covenants and
represents that it has full and complete authority to enter into this Lease
under all of the terms, conditions, and provisions set forth herein, and,
subject to the terms, provisions, and conditions hereof, so long as Tenant keeps
and substantially performs each and every term, provision, and condition herein
contained on the part of Tenant to be kept and performed and so long as Tenant
is not in default hereunder, Tenant shall, during the Term hereof, peacefully
and quietly enjoy the Premises without hinderance or molestation by Landlord.
29. LANDLORD. The term "Landlord" as used in this Lease means only the
owner or owners at the time being of the Building so that in the event of any
assignment, conveyance, or sale, once or successively, of the Building, or any
assignment of this Lease by Landlord, said Landlord making such sale,
conveyance, or assignment shall be and hereby is entirely freed and relieved of
all covenants and obligations of Landlord hereunder accruing after such sale,
conveyance, or assignment, and Tenant agrees to look solely to such purchaser,
grantee, or assignee with respect thereto. This Lease shall not be affected by
any such assignment, conveyance, or sale, and Tenant agrees to attorn to the
purchaser, grantee, or assignee.
30. TITLE AND COVENANT AGAINST LIENS. The Landlord's title is and always
shall be paramount to the title of the Tenant and nothing in this Lease
contained shall empower the Tenant to do any act which can, shall, or may
encumber the title of the Landlord. Tenant covenants and agrees not to suffer or
permit any lien of mechanics or materialmen to be placed upon or against the
Real Property, the Land, the Building, or the Premises or against the Tenant's
leasehold interest in the Premises and, in case of any such lien attaching, to
immediately pay and remove same. Tenant has no authority or power to cause or
permit any lien or encumbrance of any kind whatsoever, whether created by act of
Tenant, operation of law, or otherwise, to attach to or be placed upon the Real
Property, Land, Building, or Premises, and any and all liens and
32
encumbrances created by Tenant shall attach only to Tenant's interest in the
Premises. If any such liens so attach and Tenant fails to pay and remove same
within ten (10) days, Landlord, at its election, may pay and satisfy the same
and in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 27(i) hereof for amounts owed Landlord
by Tenant. Such sums shall be deemed to be additional rent due and payable by
Tenant at once without notice or demand.
31. RELOCATION OF TENANT. Intentionally Deleted.
32. PARKING. Tenant shall not use or permit its servants, employees,
customers, invitees and guests to use more than the number of parking spaces set
forth in the Schedule of Significant Terms. Tenant, its servants, employees,
customers, invitees, and guests shall, when using the parking facilities in and
around the Building, observe and obey all signs regarding fire lanes, no parking
zones, driving speed zones and designated reserved, visitor and handicapped
spaces, and when parking, always park between the designated lines. If required
by Landlord, Tenant shall cause its servants, employees, customers, invitees and
guests who utilize the Tenant's allotted parking spaces, to display stickers or
decals provided by Landlord in their vehicles. Landlord reserves the right to
tow away, at the expense of the owner, any vehicle which is improperly parked or
parked in a no parking zone, or designated visitor, reserved or handicapped
area, or any vehich1e that does not display a sticker or decal if required by
Landlord. If Tenant uses parking in excess of that provided for herein, and if
Tenant fails, after written notice from Landlord to reduce its excess use of the
parking areas, then such excess use shall constitute a default under this lease.
All vehicles shall be parked at the sole risk of the owner and Landlord assumes
no responsibility for any damage to or loss of vehicles.
33. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution
of this Lease the Security Deposit stipulated in the Schedule (the "Deposit") as
security for performance of Tenant's duties and obligations hereunder. The
Deposit may be applied, in whole or in part, by Landlord to cure any default or
defaults of Tenant hereunder or to pay any amounts payable by Tenant hereunder,
without limiting, impairing, or being in lieu of any other remedy or remedies
Landlord may have on account of any default by Tenant hereunder. Upon any such
application, Tenant shall immediately, upon demand by Landlord, pay to Landlord
the amount so applied in order that Landlord shall have the full amount of the
Deposit on hand at all times during the Term after the same is deposited. The
Deposit shall in no event be deemed an advance payment of rental or a limitation
upon the damages recoverable by Landlord on account of any default by Tenant
hereunder. Provided that Tenant shall not be in default in the performance of
any of its obligations under this Lease, any balance of the Deposit remaining
unapplied at the termination or expiration of this Lease shall be repaid to
Tenant not later than 30 days after such termination or expiration and Tenant's
vacation of the Premises, without interest except to the extent required by
statute or ordinance. If the Building is conveyed or leased (whether or not
subject to this Lease) by Landlord, upon the transfer of the security deposit,
Landlord shall be released from all liability or obligation to Tenant for return
of the Deposit, and Tenant agrees to look solely to the transferee for return of
the Deposit. The preceding sentence shall apply to each subsequent conveyance or
lease of the Building. The Deposit shall not be assigned or encumbered by
Tenant, and any purported such assignment or encumbrance shall be void.
33
IN WITNESS WHEREOF, the parties the date first above written.
LANDLORD:
ATTEST: AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO AS TRUSTEE UNDER
TRUST NO. 113370-03
/s/ By: /s/
-------------------------- --------------------------------
TENTANT:
ATTEST: ICON INFOSYSTEMS, INC.
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
2-3-98 February 3, 1998
34
RIDER B
CLEANING SPECIFICATIONS
Landlord agrees to perform the following services:
I. GENERAL AND EXECUTIVE OFFICES, LOBBY, LOUNGE, PUBLIC AREAS, ETC.
A. NIGHTLY SCHEDULE (Daily, Monday through Friday except holidays
when building is normally in operation.
1. Empty, clean and replace waste containers.
2. Empty and damp clean ash trays. Wash as required.
3. Dust all furniture, including desks, chairs, tables.
4. Dust all exposed filing cabinets, bookcases, shelves
and counter tops.
5. Dust all telephones.
6. Clean and sanitize drinking fountains.
7. Spot clean desk tops.
S. Spot clean reception lobby glass, including entrance
door.
9. Client papers on desks, tables, filing cabinets,
etc., are not to be disturbed.
10. Clean and service sand urns. Sand and screens to be
furnished by client.
11. Spot clean and remove hand prints, ink marks and
coffee rings from all desks.
12. Damp clean backboards, if required.
13. Spot clean interior partitions, if needed.
14. Remove fingermarks and smudges from surfaces such as
doors, walls, light switches, etc.
15. Spot clean interior glass in partitions and doors.
Cleaning agent is not to remain on partitions and the
like.
16. Dust base of all chairs, stands, coat racks, etc.
B. WEEKLY SCHEDULE
1. Clean and sanitize telephones.
2. Low dust all horizontal surfaces to hand height,
including xxxxx, ledges, moldings, shelves, picture
frames, ducts, radiators.
3. Clean entire desk tops.
4. Clean and polish bright metal to hand heights.
5. Remove dust and cobwebs from ceiling areas and
corners.
C. MONTHLY SCHEDULE
1. High dust above hand height all horizontal surfaces,
including shelves, moldings, ledges, pipes, ducts,
heating outlets, venetian blinds, etc.
2. Wash all wastebaskets if needed.
3. Wash desk tops.
4. Wash all interior partitions; both sides of glass.
5. Wash and sanitize metal partitions.
6. Wash chair mats.
7. Vacuum diffuser outlets.
D. QUARTERLY SCHEDULE
1. Clean and polish furniture including desks, chairs,
cabinets.
E. SEMI-ANNUAL SCHEDULE
1. Oil all wood paneling.
II. WASHROOMS
A. NIGHTLY SCHEDULE
1. Clean, sanitize and polish all vitreous fixtures,
including toilet bowls, urinals, and hand basins.
2. Clean and sanitize all flush rings, drain and
overflow outlets.
3. Clean and polish all chrome fittings.
4. Clean and sanitize toilet seats.
5. Clean and polish all glass and mirrors.
6. Empty all containers and disposals; insert liners as
required.
7. Wash and sanitize exterior of all containers.
8. Empty and sanitize interior of sanitary containers.
9. Wipe toilet stall partitions. Wash as required.
10. Remove spots, stains, splashes from wall area
adjacent to hand basins and towel holders.
11. Refill all dispensers to maximum limits -- napkin,
soap, tissue, towel, liners, seat holders, cups.
Refill with supplies.
12. Remove fingermarks and smudges from surfaces such as
doors, walls, light switches, etc.
13. Sweep and wet mop all floors with disinfectant.
14. Dust and spot clean all chairs, tables and lamps.
B. WEEKLY SCHEDULE
1. Spot clean metal partitions and remove all writing.
2. Low dust all horizontal surfaces to hand height,
including xxxxx, moldings, ledges, shelves, frames,
ducts, heating outlets.
C. MONTHLY SCHEDULE
1. Sanitize metal partitions.
2. High dust above hand height all horizontal surfaces,
including shelves, ledges, moldings, pipes, ducts,
heating outlets.
2
3. Machine scrub tile floors.
4. Flush floor drains with disinfectant.
D. QUARTERLY SCHEDULE
1. Flush soap dispensers.
III. FLOORS - RESILIENT AND HARD
A. NIGHTLY SCHEDULE
1. Dry dust with treated yarn mop and wet mop where
necessary.
B. WEEKLY SCHEDULE
1. Wet mop and machine spray buff open areas, including
kneehole or desks.
2. Scrub to remove scuff and heel marks.
C. MONTHLY SCHEDULE
1. Refinish to maintain adequate protective coating;
removing black heel marks.
D. ANNUAL SCHEDULE
1. Strip, clean, seal and refinish, plus machine polish.
2. Clean, refinish and polish baseboards.
IV. CARPET
A. NIGHTLY SCHEDULE
1. Vacuum open areas.
2. Spot vacuum non-traffic aisles.
B. WEEKLY SCHEDULE
1. Thoroughly vacuum all areas.
C. AS REQUIRED
1. Inspect for spots and stains. Remove is possible.
2. Inspect for rub marks on cove base moldings and
remove same.
3
V. LUNCHROOM
A. NIGHTLY SCHEDULE
1. Wash and sanitize table tops, damp clean seats and
backs of chairs.
2. Clean, polish and refill napkin holders (napkins
supplied by tenant).
3. Empty and damp clean ash trays. Wash as required.
4. Empty all containers and disposals. Sanitize
interior.
5. Wash and sanitize exterior of all containers.
6. Clean and sanitize drinking fountain.
7. Dust mop tile floors, making sure that no paper or
dust is under any table base.
8. Clean table bases as needed.
9. Damp mop all tile floors with a disinfectant.
10. Vacuum carpets.
B. WEEKLY SCHEDULE
1. Wash and sanitize pedestals and legs.
2. Remove fingerprints from doors, frames, light
switches, kick and push plates, and handles.
3. Low dust all horizontal surfaces to hand height,
including xxxxx, moldings, ledges, shelves, frames,
ducts, and heating outlets.
4. Spot clean the outside glass on showcases.
5. Wash and sanitize chairs.
C. MONTHLY SCHEDULE
1. High dust above hand height all horizontal surfaces,
including shelves, ledges, moldings, pipes, ducts,
heating out lets.
D. AS REQUIRED
1. Clean all plaques, pictures, etc., as needed, so
there are no fingermarks or dust build-up.
VI. STAIRCASES
A. NIGHTLY SCHEDULE
1. Dust and/or wash hand rails.
2. Sweep stairs completely, making sure all corners are
clean. Wet mop when necessary.
4
VII. ELEVATORS
A. NIGHTLY SCHEDULE
1. Keep wall around signal button clean.
2. Dust and rub down elevator doors; inside and outside.
3. Dust and rub down walls, metal work in elevator cabs;
polishing metal surfaces.
4. Vacuum all elevator door tracks and keep surfaces
clean.
5. Properly maintain floors of all elevator cabs.
VIII. TRASH
A. NIGHTLY SCHEDULE.
1. Remove all waste and transport to designated area.
IX. GARAGE AREA, ELEVATOR LOBBY
A. NIGHTLY SCHEDULE
1. Thoroughly vacuum carpet.
2. Spot clean partition glass.
B. MONTHLY SCHEDULE
1. Thoroughly clean partition glass.
X. DOCK AREA
A. NIGHTLY SCHEDULE
1. Police dock xxxxx and floor.
B. WEEKLY SCHEDULE
1. Sweep dock xxxxx and floor
XI. WINDOW CLEANING
A. All windows inside and outside shall be cleaned as follows:
1. Exterior - All outside perimeter and vestibule
windows, inside and out, at least three (3) times
yearly.
5
2. Interior - All interior windows (including lobby
glass inside and outside) three (3) times yearly.
6
RIDER A"
RULES AND REGULATIONS
(1) The sidewalks, walks, entries, corridors, concourses, ramps,
staircases, escalators, and elevators (other than Tenant's freight elevator)
shall not be obstructed or used by Tenant, or the employees, agents,
servants, visitors, or licensees of Tenant for any purpose other than ingress
and egress to and from the Premises. No bicycle or motorcycle shall be
brought into the Building or kept on the Premises without the consent of
Landlord.
(2) No freight, furniture, or bulky matter of any description will
be received into the Building or carried into the elevators (other than
Tenant's freight elevator) except in such a manner, during such hours, and
using such elevators and passageways as may be approved by Landlord, and then
only upon having been scheduled in advance. Any hand trucks, carryalls, or
similar appliances used for the delivery or receipt of merchandise or
equipment shall be equipped with rubber tires, side guards, and such other
safeguards as Landlord shall require.
(3) Tenant, or the employees, agents, servants, visitors, or
licensees of Tenant shall not at any time place, leave, or discard any
rubbish, paper, articles, or objects of any kind whatsoever outside the doors
of the Premises or in the corridors or passageways of the Building. No
animals or birds shall be brought or kept in or about the Building.
(4) Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability for offices, and, upon written notice from
Landlord, Tenant will refrain from or discontinue such advertising. In no
event shall Tenant, without the prior written consent of Landlord, use the
name of the Building or use pictures or illustrations of the Building.
(5) Tenant shall not place, or cause or allow to be placed, any sign
or lettering whatsoever in the windows of the Premises. Unless Tenant leases
an entire floor, Tenant shall not place any sign or lettering in or about the
Premises except in and at such places as may be designated by Landlord and
consented to by Landlord in writing. All lettering and graphics on corridor
doors must be approved in writing by Landlord, such approval not to be
unreasonably withheld.
(6) Canvassing, soliciting, or peddling in the Building is
prohibited and Tenant shall cooperate to prevent same.
(7) Any person in the Building will be subject to identification by
employees and agents of Landlord. All persons in or entering Building shall
be required to comply with the security policies of the Building. Tenant
shall keep doors to unattended areas locked and shall otherwise exercise
reasonable precautions to protect property from theft, loss, or damage.
(8) Except as otherwise explicitly permitted in its lease, Tenant
shall not do any cooking or conduct any restaurant, luncheonette, automat, or
cafeteria for the sale of or permit the delivery of any food or beverage
intended for resale to the Premises, except by such persons delivering the
same as shall be approved by Landlord and only under regulations fixed by
Landlord. Tenant may, however, operate a coffee bar by and for its employees.
(9) Tenant shall not, without Landlord's prior written approval,
bring or permit to be brought or kept in or on the premises any inflammable,
combustible, corrosive, caustic, poisonous, or explosive substance, or cause
or permit any odors to permeate in or emanate from the Premises.
(10) Tenant shall not xxxx, paint, drill into, or in any way deface
any part of the Building or Premises. No boring, driving of nails or screws,
cutting, or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall not
install any resilient tile or similar floor covering in the Premises except
with the prior approval of Landlord.
(11) No additional locks, bolts or other security devices of any
kind shall be placed on any door in the Building or the Premises and no lock
on any door therein shall be changed or altered in any respect without the
consent of Landlord. Landlord shall furnish two keys for each lock on
exterior doors to the Premises and shall, on Tenant's request and at Tenant's
expense, provide additional duplicate keys. All keys and access cards shall
be returned to Landlord upon termination of this Lease. Landlord may at all
times keep a pass key to the Premises. All entrance doors to the Premises
shall be left closed at all times, and left locked when the Premises are not
in use. Tenant shall promptly advise Landlord of any lost keys or access
cards and of any keys or access cards retained by former employees of Tenant.
(12) Tenant shall give immediate notice to Landlord in case of
theft, unauthorized solicitation, or accident in the Premises or in the
Building or of defects therein or in any fixtures or equipment, or of any
known emergency in the Building.
(13) Tenant shall not advertise for laborers giving the Premises as
an address, nor pay such laborers at a location in the Premises.
(14) The requirements of Tenant will be attended to only upon
application at the office of Landlord in the Building. Employees of Landlord
shall not perform any work or do anything outside of their regular duties,
unless under special instructions from the office of Landlord.
(15) No awnings, draperies, shutters, or other interior or exterior
window coverings that are visible from the exterior of the Building or from
the exterior of the Premises within the Building may be installed by Tenant
except as otherwise provided for therein.
(16) No portion of the Premises or any other part of the Building
shall at any time be used or occupied as sleeping or lodging quarters.
(17) Tenant shall at all times keep the Premises neat and orderly.
(18) Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors, any
of which may be offensive to the other tenants and occupants of the Building,
or that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Building or elsewhere
and shall not place or install any projections, antennas, aerials, or similar
devices inside or outside of the Premises or on the Building without
Landlord's prior written approval.
2
(19) The water and wash closets, drinking fountains, and other
plumbing fixtures shall not be used for any purpose other than those for
which they were constructed, and no sweepings, rubbish, rags, coffee grounds,
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 servants,
employees, agents, visitors, or licensees, shall have caused the same. No
person shall waste water by interfering or tampering with the faucets or
otherwise.
(20) Tenant shall not serve, nor permit the serving of alcoholic
beverages in the Premises unless Tenant shall have procured Host Liquor
Liability Insurance, issued by companies and in amounts reasonably
satisfactory to Landlord, naming Landlord, or its agents and mortgagees, as
an additional party insureds.
3
FIRST AMENDMENT TO LEASE
THIS AGREEMENT is made as of the 1st day of October, 1999, between
AMERICAN NATIONAL BANK AND TRUST COMPANY OP CHICAGO, not personally but
solely as Trustee under Trust Agreement dated January 1, 1991 and known as
Trust No. 113370-03 ("Landlord") and ICON INFOSYSTEMS, INC. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to that certain Office
Lease dated February 11, 1998 (herein, the "Lease"), which Lease demised to
Tenant Suite 280 (the "Premises") in the building located 000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx Corporate Center, Lincolnshire, Illinois (the
"Building"); and
WHEREAS, Landlord and Tenant desire to expand the Premises, extend
the term of the Lease and to otherwise amend the Lease in certain respects,
all in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the Lease is hereby amended as follows:
1. DEFINED TERMS. The following terms shall have the respective
meanings set forth below:
First Additional Premises: Suite 110 consisting of approximately
1,877 rentable square feet, as shown
on EXHIBIT "A" attached hereto and
made a part hereof.
First Additional Premises Commencement
Date ("FPCD"): The date upon which Landlord's Work
is substantially completed.
All other capitalized terms used herein shall have the same meaning as
ascribed to them in the Lease, unless otherwise defined herein,
2. FIRST ADDITIONAL PREMISES. Effective as of the First Additional
Premises Commencement Date and for a lease term expiring concurrently with
the Term (as extended hereby), the Premises shall include the First
Additional Premises.
3. TERM EXTENSION. Under the existing terms of the Lease, the Lease
is scheduled to expire on February 28, 2001. The Term of the Lease is hereby
extended for a period commencing on the First Additional Premises
Commencement Date and continuing through the last day of the fourth (4th)
Lease Year (the "First Extended Term"), on all of the same terms and
conditions as are set forth in the Lease except as set forth in this
Agreement. The First Extended Term shall be added to and become part of the
Term for all purposes under the Lease and the last day of the First Extended
Term shall be the Expiration Date for the entire Premises,
4. FIXED MINIMUM RENT. Commencing on the First Additional Premises
Commencement Date arid continuing through the First Extended Term, the annual
Base Rent and Monthly Base Rent payable pursuant to the Schedule of
Significant Terms for the entire Premises shall be as follows;
PERIOD FIXED MINIMUM RENT MONTHLY FIXED RENT
Lease Year l $90,733.85 $7,561.15
Lease Year 2 $93,455.87 $7,787.99
Lease Year 3 $96,259.54 $8,021.63
Lease Year 4 $99,147.33 $8,262.28
"Lease Year" shall mean the period commencing on the First Additional
Premises Commencement Date and ending on the last day of the twelfth (I 2's')
full calendar month following the First Additional Premises Commencement Date
and each succeeding twelve calendar month period. Upon commencement of the
First Extension Term and at the request of either party hereto, Landlord and
Tenant shall enter into a written supplement to the Lease confirming the
terms, conditions and provisions applicable to the First Extension Term as
determined in accordance with the provisions hereof.
5. TENANT'S PROPORTIONATE SHARE. From the First Additional Premises
Commencement Date and continuing through the last day of the First Extended
Term, Tenant's Share shall be increased to 7.56%.
6. SECURITY DEPOSIT. The Security Deposit, as set forth in the
Schedule of significant Terms of the Lease shall be increased
to(pound)11,610.19 upon execution of this Agreement.
7. CONDITION OF THE PREMISES. Tenant agrees (a) to accept possession
of the First Additional Premises in the condition existing on the date hereof
"as is", subject to performance of Landlord's Work, (b) that neither Landlord
nor Landlord's agents have made any representations or warranties with
respect to the Premises or the Building except as expressly set forth herein,
and (c) Landlord has no obligation to perform any work, supply any materials,
incur any expense or make any alterations or improvements to the Premises
except as expressly set forth herein. Notwithstanding the foregoing, Landlord
shall perform the following work in the First Additional Premises
(collectively, "Land1ord's Works") at Landlord's sole cost and expense:
perform the work indicated in the Drawing dated September 28, 1999, a copy of
which is attached hereto as Exhibit A, using building standard materials and
finishes, the colors of the paint and carpeting to be selected by Tenant out
of choices given by Landlord. Tenant shall be responsible for doing all other
work in the First Additional Premises required for Tenant's occupancy
thereof, except for that work which is specifically identified as being
Landlord's Work pursuant to the terms hereof. Tenant's taking possession of
the First Additional Premises shall be conclusive evidence against Tenant
that the First Additional Premises were then in good order and satisfactory
condition.
8. EXTERIOR PARKING SPACES (MAXIMUM). The Maximum Number of Exterior
Parking Spaces shall, effective as of the First Additional Premises
Commencement Date, be increased from 15 to 22.
2
9. OPTION TO EXTEND TERM. Section S.1 of the Supplemental Provisions
of the Lease is hereby deleted in its entirety.
10. REAL ESTATE BROKERS. Landlord has retained Van Vlissingen and
Co. ("Landlord's Agent") as leasing agent in connection with this Amendment
and Landlord will he solely responsible for any fee that may be payable to
Landlord's Agent. Each of Landlord and Tenant represents and warrants to the
other that it has not dealt with any broker in connection with this Amendment
other than Landlord's Agent, and that to the best of its knowledge and
belief, no other broker, finder or like entity procured or negotiated this
Amendment or is entitled to any fee or commission in connection herewith. The
execution and delivery of this Amendment by each party shall he conclusive
evidence that each party has relied upon the foregoing representations and
warranties. Each of Landlord and Tenant shall indemnify, defend, protect and
hold the other party harmless from and against any and all costs expenses,
claims and liabilities (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason of any claim
of or liability to any broker, finder or like agent (other than Landlord's
Agent) arising out of any dealings claimed to have occurred between the
indemnifying party and the claimant in connection with this Amendment, and/or
the above representation being false. The provisions of this paragraph 10
shall survive the expiration or earlier termination of the Term of the Lease.
11. BINDING EFFECT. The Lease, as amended hereby, shall continue in
full force and effect, subject to the terms and provisions thereof In the
event of any conflict between the terms of the Lease and the terms of this
Amendment, the terms of this Amendment shall control. This Amendment shall be
binding upon and inure to the benefit of Landlord, Tenant anti their
respective successors and permitted assigns.
12. SUBMISSION. Submission of this Agreement by Landlord to Tenant
for examination and/or execution shall not in any manner bind Landlord and no
obligations on Landlord shall arise under this Amendment unless and until
this Amendment is fully signed and delivered by Landlord and Xxxxxx,
00. EXCULPATION. The liability of Landlord for Landlord's
obligations under the Lease, as amended by this Amendment (the "Amended
Lease"), shall be limited to Landlord's interest in the Building and the land
thereunder and Tenant shall not look to any other property or assets of
Landlord or the property or assets of any partner, shareholder, director,
officer, principal, employee or agent, directly and indirectly, of Landlord
(collectively, the "Parties") in seeking either to enforce Landlord's
obligations under the Amended Lease or to satisfy a judgment for Landlord's
failure to perform such obligations; and none of the Parties shall be
personally liable for the performance of Landlord's obligations under the
Amended Lease.
3
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Lease to be executed as of the date first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO AS TRUSTEE UNDER TRUST NO. 113370-03
By Van Vlissingen and Co.
Duly Authorized Agent of Beneficiary
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
President
TENTANT:
ICON INFOSYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Its: President
Exhibit A - First Additional Premises
- Drawing
4
EXHIBIT "A" September 28, 1999
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
1,877 Rentable Sq. Ft.
[diagram]
ASSUMPTIONS:
- Install 12 can lights on dimmer in training room.
- New paint and carpet
- Install sink with 8 feet of upper and lower cabinets
- Supply full height refrigerator
- Vinyal tile floor in break room
5
SECOND AMENDMENT TO LEASE
THIS AGREEMENT is made as of the 23rd day of December, 1999, between
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not personally but
solely as Trustee under Trust Agreement dated January 1, 1991 and known as
Trust No. 113370-03 ("Landlord") and ICON IINFOSYS1'EMS, INC. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to that certain Office
Lease dated February 11, 1998 as amended by that certain First Amendment to
Lease dated October 1, 1999 (as heretofore amended, the "Lease"), which Lease
demised to Tenant Suite 280 (the "Premises") in the building located 000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx Corporate Center, Lincolnshire, Illinois (the
"Building"); and
WHEREAS, Landlord and Tenant desire to confirm certain dates set
forth in the Lease and to otherwise amend the Lease in certain respects, all
in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the Lease is hereby amended as follows:
1. DEFINED TERMS. All capitalized terms used herein shall have the
same meaning as ascribed to them in the Lease, unless otherwise defined
herein. The First Additional Premises Commencement Date shall be January 1,
2000 and the First Extended Term shall expire December 31, 2003, such date
being the Expiration Date.
2. FIXED MINIMUM RENT. The annual Base Rent and Monthly Base Rent
payable pursuant to the Schedule of Significant Terms for the entire Premises
shall be as follows:
PERIOD FIXED MINIMUM RENT MONTHLY FIXED RENT
1/1/00--12/31/00 $90,733.85 $7,561.15
1/1/01--12/31/01 $93,455.87 $7,787.99
1/1/02--12/31/02 $96,259.54 $8,021.63
1/1/03--12/31/03 $99,147.33 $8,262.28
3. ESTOPPEL. Tenant represents and warrants that as of the date
hereof: (a) the Lease is in full force and effect, (b) the Lease has not been
assigned or encumbered, (c) Tenant knows of no defense or counterclaim to the
enforcement of the Lease, (d) Tenant is not entitled to any offset, abatement
or reduction of rent under the Lease, (e) Landlord has completed all work to
be performed by Landlord (including Landlord's Work) and paid all
contributions and other sums due to Tenant under the Lease, and (f) neither
Landlord nor Tenant is in default under any of its obligations under the
Lease.
4. BINDING EFFECT. The Lease, as amended hereby, shall continue in
full force and effect, subject to the terms and provisions thereof. In the
event of any conflict between the terms of the Lease and the terms of this
Amendment, the terms of this Amendment shall control.
This Amendment shall be binding upon and inure to the benefit of Landlord,
Tenant and their respective successors and permitted assigns.
5. SUBMISSION. Submission of this Agreement by Landlord to Tenant
for examination and/or execution shall not in any manner bind Landlord and no
obligations on Landlord shall arise under this Amendment unless and until
this Amendment is fully signed and delivered by Landlord and Tenant.
6. EXCULPATION. The liability of Landlord for Landlord's obligations
under the Lease, as amended by this Amendment (the "Amended Lease"), shall be
limited to Landlord's interest in the Building and the land thereunder and
Tenant shall not look to any other property or assets of Landlord or the
property or assets of any partner, shareholder, director, officer, principal,
employee or agent, directly and indirectly, of Landlord (collectively, the
"Parties") in seeking either to enforce Landlord's obligations under the
Amended Lease or to satisfy a judgment for Landlord's failure to perform such
obligations; and none of the Parties shall be personally liable for the
performance of Landlord's obligations under the Amended Lease.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Lease to be executed as of the date first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO AS TRUSTEE UNDER TRUST NO. 113370-03
By Van Vlissingen and Co.
Duly Authorized Agent of Beneficiary
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
President
TENTANT:
ICON INFOSYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Its: President
2
TRAINING ROOM
[diagram]
ATRIUM
[diagram]
XXXXX 000
000 XXXXXXX XXXXXXXXX - XXXXXXXXXXXX CORPORATE CENTER
4,034 RENTABLE SQUARE FEET
