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EXHIBIT 10.31
LEASE
LANDLORD: American National Bank and Trust Company of Chicago, not
individually but solely as Trustee under Trust Agreement dated
December 28, 1988 and known as Trust Number 106990-07
TENANT: Motorola, Inc., a Delaware corporation
DATE OF LEASE: October 27th, 1989
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TABLE OF CONTENTS
Article Page
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I GRANT AND TERM........................................ 1
II CONSTRUCTION OF IMPROVEMENTS.......................... 1
III RENT.................................................. 5
IV USE................................................... 6
V POSSESSION............................................ 7
VI TAXES................................................. 9
VII INSURANCE............................................. 11
VIII UTILITIES............................................. 13
IX REPAIRS............................................... 14
X COMPLIANCE WITH LAWS AND ORDINANCES................... 15
XI MECHANIC'S LIENS AND OTHER LIENS...................... 16
XII LANDLORD'S RIGHT TO CURE DEFAULT...................... 17
XIII DEFAULTS OF TENANT.................................... 17
XIV DESTRUCTION AND RESTORATION........................... 22
XV CONDEMNATION.......................................... 23
XVI ASSIGNMENT AND SUBLETTING............................. 25
XVII SUBORDINATION, NONDISTURBANCE,
NOTICE TO MORTGAGEE AND ATTORNMENT.................... 27
XVIII SIGNS................................................. 28
XIX REPORTS BY TENANT..................................... 28
XX CHANGES AND ALTERATIONS............................... 28
XXI SURRENDER............................................. 29
XXII ENVIRONMENTAL......................................... 30
XIII CANCELLATION OPTION................................... 34
XIV RENEWAL OPTION........................................ 34
XV PURCHASE OPTION....................................... 35
XXVI INTENTIONALLY DELETED................................. 38
XXVII MISCELLANEOUS PROVISIONS.............................. 38
XXVIII EXCULPATORY PROVISIONS................................ 43
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LEASE
THIS LEASE ("Lease") is made as of the 27th day of October 1989, by and
between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not individually
but solely as Trustee under Trust Agreement dated December 28, 1988 and known
as Trust Number 106990-07 ("Landlord"), and MOTOROLA, INC., a Delaware
corporation ("Tenant").
ARTICLE I
GRANT AND TERM
1.1 Landlord, for and in consideration of the rents herein reserved and
of the covenants and agreements herein contained on the part of Tenant to be
performed, hereby leases to Tenant, and Tenant hereby leases from Landlord,
that certain parcel of real estate (the "Land") which consists of all of Lots
40, 41 and 42 and a portion of Xxx 00 xx Xxxxxxxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XxXxxx Xxxxxx, Xxxxxxxx (the "Center"), legally described on
Exhibit A attached hereto and made a part hereof and any and all improvements
(the "Improvements") now existing or to be constructed thereon. The Land
comprises approximately 7.72 acres. The Land and the Improvements are
collectively referred to as the "Premises". The structure located upon the Land
and forming a part of the Improvements which is constructed for human occupancy
or for the storage of goods, merchandise, equipment or other personal property
is referred to as the "Building". The Building currently consists of
approximately 99.551 square feet of office, light manufacturing, assembly and
warehouse space (the "Existing Building"), with approximately 10,512 square
feet of additional space (the "Addition") to be built, all of which shall be
improved in accordance with final plans and specifications to be agreed upon by
Landlord and Tenant (collectively the "Improved Space").
1.2. The term hereof (the "Term") shall commence on the day that
construction of the improvements to the office area (the "Office Area") of the
Existing Building have been substantially completed in accordance with the
Final Plans (as defined herein), subject to normal "punch list items" (the
"Commencement Date"), as evidenced by the issuance of a conditional certificate
of occupancy for the Office Area, and shall expire on the day immediately
preceding the tenth (10th) anniversary of the first (1st) day of the first
(1st) full calendar month of the Term (the "Expiration Date").
If Tenant takes possession of the Premises prior to the Commencement
Date, all terms and provisions of this Lease shall apply, including the
obligation for the payment of Base Rent and Additional Rent (as said terms are
defined herein). In the event any such pre-Term possession of the Office Area
by Tenant commences on a date other than the first day of the calendar month,
Tenant shall pay Base Rent on a per diem basis, prorated on a three hundred
sixty five (365) day basis, at the monthly rate set forth herein, in advance,
for such partial month, as well as any Additional Rent for such partial month.
Landlord and Tenant shall, within thirty (30) days after, respectively,
(a) the commencement of the Term, and (b) the expiration of the Term, or any
earlier termination of this Lease, confirm in writing by an instrument in
recordable form that, respectively, such commencement or such expiration or
termination has occurred, setting forth therein the Commencement Date and the
Expiration Date.
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS
2.1 Subject to the terms and conditions set forth in this Article II,
Landlord shall cause to be performed the work provided for in the Final Plans.
Landlord hereby agrees to provide Tenant with a "Construction Allowance" in an
amount equal to Two Million Seven Hundred Fifty One Thousand Five Hundred
Seventy-Five Dollars ($2,751,575.00), to be applied toward the Costs (as
defined herein) of the Improved Space. Additionally, Landlord covenants and
agrees that (i) the cost of mechanical, structural and electrical design work
shall not exceed Eighty Eight Thousand Dollars ($88,000.00), which design work
cost is not part of the Construction Allowance, and (ii) the cost of the
architectural design work shall not exceed One Hundred Thirty Two Thousand
Dollars ($132,000.00), which design work cost is not part of the Construction
Allowance, both of said costs to be paid for by Landlord. In the event the
Construction Allowance exceeds the Costs as conclusively determined in good
faith by Landlord,
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Tenant shall receive a credit against the first installment(s) of Monthly Base
Rent (as defined herein) due and payable hereunder in an amount equal to $0.01
per square foot of the Building Area for each Ten Thousand Dollars ($10,000.00)
of unused Construction Allowance. In the event the Costs, as conclusively
determined in good faith by Landlord, exceed the Construction Allowance, Tenant
shall reimburse said excess amount to Landlord as follows:
(a) The amount of such excess up to and including One Million
Four Hundred Thirty Thousand Eight Hundred Nineteen Dollars
($1,430,819.00) [the product obtained by multiplying 110,063 square
feet by $13.00 per square foot] shall, at Tenant's option, either (i)
be paid by Tenant to Landlord in cash within thirty (30) days after the
Contractor or the Architect (as said terms are defined herein)
certifies to Landlord and Tenant in writing that the construction of
the Improved Space has been substantially completed; or (ii) be
amortized at the rate of twelve percent (12%) per annum over the Term
and paid by Tenant to Landlord in equal monthly installments, in
advance, on each date that Monthly Base Rent is due hereunder, subject,
however, to the terms and provisions of Article XXIII below; and
(b) That portion, if any, of the excess which is greater than One
Million Four Hundred Thirty Thousand Eight Hundred Nineteen Dollars
($1,430,819.00) shall, at Tenant's option, either (i) be paid by
Tenant to Landlord in cash within thirty (30) days after the Contractor
or the Architect certifies to Landlord and Tenant in writing that the
construction of the Improved Space has been substantially completed; or
(ii) be amortized over five (5) years at the rate of twelve percent
(12%) per annum and paid by Tenant to Landlord in equal monthly
installments, in advance, on each date that Monthly Base Rent is due
hereunder, subject, however, to the terms and provisions of Article
XXIII below.
2.2. Landlord agrees to furnish all of the material, labor and
equipment for the construction of the Improved Space specified on the Space
Plan, the Site Plans, the Design and Construction Schedule and the Outline
Plans and Specifications collectively attached hereto as Exhibit B and by this
reference made a part hereof. The Improved Space shall be constructed in a good
and workmanlike manner in accordance with final plans and specifications (the
"Final Plans"). Tenant shall cause EDI, Inc., its design firm, to (i) prepare
the Final Plans in accordance with Exhibit B attached hereto, and (ii) deliver
the Final Plans to Landlord and Tenant on or before November 20, 1989. Tenant
shall cause EDI, Inc., to indemnify and hold harmless Landlord, Landlord's
beneficiary, Contractor, Architect and all Mortgagees (as defined herein) from
and against any and all errors, omissions, loss, damage, expenses, fees,
penalties, costs and judgments all or any of the indemnitees may suffer as a
result of EDI, Inc.'s design work in connection with the Improvements, Tenant
hereby acknowledging that none of said indemnitees shall have any liability to
either Tenant or EDI, Inc. in connection therewith. Tenant and Landlord shall
each approve or disapprove of the Final Plans in writing on or before November
27, 1989; Landlord and Tenant each agreeing that it shall not withhold its
approval thereof except for reasonable cause and that it shall not act in an
arbitrary or capricious manner with respect thereto. If Tenant or Landlord
fails to disapprove of the Final Plans by November 27, 1989, said party shall
be deemed to have approved same. The Final Plans shall be (a) subject to the
approval of any local governmental agencies having jurisdiction over the
construction of the Improved Space, and (b) revised, and the Improved Space
shall be modified, to incorporate any revisions thereto required by any local
governmental agency.
2.3. "Changes" shall mean any revisions to the Improved Space or the
Final Plans after they are approved, or deemed to be approved, by Landlord and
Tenant which are (a) requested by Tenant including, without limitation, changes
from the Outline Plans and Specifications which are incorporated into the Final
Plans after the initial preparation thereof, or (b) required by any local
governmental agency in order to comply with any applicable statutes, ordinances,
regulations or codes.
2.4. If Landlord approves Changes requested by Tenant, or if Changes
are required by any local governmental agency, Landlord shall determine any
changes in the Costs of the Improved Space and deliver to Tenant a pricing
schedule (the "Pricing Schedule") setting forth a schedule of the Costs of the
Improved Space. Landlord shall revise the Pricing Schedule from time to time to
reflect any further Changes since the prior Pricing Schedule. Tenant shall
approve or disapprove in writing the costs shown in the Pricing Schedule or any
revised Pricing Schedule within seven (7) business days after Landlord submits
the revised Pricing Schedule to Tenant. If such approval is not received by
Landlord within the applicable seven (7) business day period, (a) if Tenant
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has requested Changes, Tenant shall be deemed to have abandoned its request for
same, or (b) if Changes were required by a local governmental agency. Tenant
shall be deemed to have approved such costs. If Landlord approves Changes
requested by Tenant (which approval shall not be unreasonably withheld or
delayed), and Tenant approves the revised Pricing Schedule, the work to be
performed by Landlord shall include the revisions to the Improved Space shown
in the revised Final Plans and the total cost of such revisions to the Improved
Space and the Final Plans requested by Tenant shall be included in the Costs of
Improved Space. The Costs of Changes required by any local governmental agency,
including the cost of revisions of the Final Plans required as a result
thereof, shall be added to and included in the Costs of Improved Space.
2.5. Landlord, at its option, may substitute for items or materials
provided for in the Final Plans, as revised from time to time, other items or
materials of comparable kind and quality if the use of the items or materials
provided for in the Final Plans would cause delay in the completion of
construction of the Improved Space; provided, however, that any such
substitutions shall not materially and adversely affect Tenant's use and
occupancy of the Premises for its intended purpose. Landlord shall notify
Tenant, by written notice, when and to the extent Landlord is required to
utilize substitutes for the items or materials provided for in the Final
Plans, as revised as aforesaid.
2.6. As used herein, the term "Costs" shall mean and refer to all costs
expended by Landlord relative to the construction of the Improved Space, which
shall include, without limitation, the costs of equipment, material and labor,
contractor's field overhead and fees, architectural design and engineering
fees, fees and expenses of architects and other professionals for
presentations to governmental agencies, fees and expenses incurred in the
preparation of space studies and working drawings, governmental agency fees,
sales and use taxes (but not real property taxes), fees for permits and other
costs directly related to the construction of the Improved Space.
2.7. Landlord shall contribute the Construction Allowance towards the
Costs of the work provided for in the Final Plans. Tenant shall pay the amount
of any net increases in the Costs due to Changes (the "Net Costs of Changes")
to the extent the Net Costs of Changes, when aggregated with the Costs, exceed
the sum of the Construction Allowance, when and as provided in Section 2.1
above.
2.8. (In the event Tenant desires to inspect the Premises prior to the
time the Building is substantially complete, Tenant shall so notify Landlord
thereof and Landlord shall attempt to schedule the desired inspection with
Landlord's general contractor (the "Contractor") or Landlord's architect (the
"Architect"), provided that in no event shall Tenant's inspection interrupt or
interfere with any work then being performed by Landlord or its contractors or
agents at the time of such inspection.
2.9. Landlord shall diligently complete as soon as reasonably possible
any items of work and adjustment (including "punch list items") not completed
on the Commencement Date, and in connection therewith, Landlord may enter into
the Building to complete same. Such entry by Landlord, its agents, employees,
contractors or representatives for such purpose shall not constitute an actual
or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Base Rent or Additional Rent, or relieve Tenant
from any of its obligations hereunder, or impose any other liability on
Landlord, its agents, employees, contractors or representatives; provided,
however, that all such work and adjustments shall be completed in a manner so
as not to unreasonably interfere with Tenant's use and occupancy of the
Premises. Subject to Tenant's obligation to pay any Costs, including any Net
Costs of Changes, which exceed the Construction Allowance, when and as provided
in Section 2.1 above, to which payment obligations Tenant has agreed, Landlord
shall hold Tenant harmless from and against any and all liens filed in
connection with the construction of the Improvements (including the Improved
Space), other than those arising out of or through Tenant's acts or contracts
relating to construction or installation of any improvements or fixtures in the
Improvements by Tenant, including, without limitation, Tenant's contract with
EDI, Inc., or any alterations to the Improvements undertaken by Tenant, all in
accordance with the terms and conditions of this Lease. Landlord shall
substantially complete the punch list items within ninety (90) days after
receipt of such punch list from Tenant. In the event Landlord has not
substantially completed the punch list items within such ninety (90) day
period, as extended for any Force Majeure Event, Tenant shall have the option,
upon written notice to Landlord, to complete any incomplete item from the punch
list and offset the cost of completion against the next Rent payment then due.
2.10. Landlord shall assign to Tenant all assignable warranties and
guarantees that Landlord receives that relate to the construction of the
Building or the Improved
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Space and any fixtures installed in connection therewith at such times, and
from time to time, when Landlord's maintenance obligations with respect to
particular components of the work expire. Tenant shall reassign any such
assignable warranties and guarantees to Landlord upon the expiration of the
Term or any earlier termination thereof (except in the event of Tenant's
acquisition of the Premises, in which event Tenant shall be entitled to retain
all such warranties and guarantees).
2.11. Except as may be expressly provided in this Lease and in lieu of
all other warranties and liability by reason of the construction of the
improvements (including the Improved Space), Landlord shall (a) cause Contractor
to warrant, for a period of one (1) year from the Commencement Date, that the
Building shall be free from all defects in materials or workmanship, including
latent defects, and (b) cause Contractor to correct such defects without any
cost or expense to Tenant upon receiving written notice thereof from Tenant
during the aforesaid one (1) year period. Landlord's liability hereunder shall
be limited to the cost of correcting such defects, but Tenant shall be entitled
to the benefits of any insurance which Tenant may carry reason of damages
sustained to property of Tenant or to Tenant's business, and any insurance so
carried by Tenant shall expressly provide that the insurer shall not be
subrogated to any rights against Landlord.
2.12. Landlord warrants and agrees that the Office Area will, as of the
Commencement Date, comply with and conform to all lawful requirements, rules,
regulations, laws and ordinances of all legally constituted authorities
relating thereto. If it becomes necessary to obtain any governmental permit or
approval (other than the customary building permit) in order to construct the
Improvements, Tenant agrees to cooperate fully with Landlord in all respects in
order to obtain the same; provided, however, that Tenant shall not be obligated
to pay any fees, costs or expenses to obtain any such permit or approval.
2.13. Promptly after all construction work on the Building is
completed, Landlord shall deliver copies of the Final Plans to Tenant.
2.14. Notwithstanding anything contained within this Article II to the
contrary, in the event Landlord shall fail to substantially complete the
construction of the Improved Space as required pursuant to this Article II,
Tenant, upon written notice to Landlord and expiration of the cure period
provided for in Section 27.24 below, shall have the right to complete the
construction of the Improved Space, whereupon Tenant shall be entitled to
deduct from the installment(s) of Monthly Base Rent next due and owing all
reasonable costs and expenses Tenant incurs in completing said construction in
accordance with the Final Plans; provided, however, that in no event shall
Tenant be entitled to deduct an aggregate amount in excess of the difference
between (a) the sum of the Construction Allowance and any additional costs and
expenses reasonably incurred by Tenant as a result of Landlord's failure to
perform, and (b) the Costs expended to date by Landlord with respect to the
construction of the Improved Space.
2.15. Tenant hereby acknowledges that with regard to the construction
of the Addition and the Tenant finish work to be included within the Improved
Space, Landlord shall employ XxXxxxx Builders, Inc. as the Contractor. The
Contractor shall be obligated to obtain not less than three (3) competitive
bids for each subcontract to be let for work done other than by XxXxxxx
Builders, Inc.
2.16. Landlord acknowledges that the Final Plans shall provide for
space for parking not less than three hundred fifty (350) cars [with room for
expansion to three hundred eighty (380) cars], exclusive of any parking in the
rear of the Building on a paved and striped parking lot. Tenant acknowledges
that the paving and striping of the parking lot shall not be completed by April
2, 1990, Tenant hereby agreeing to cooperate with Landlord and Contractor to
effectuate said paving and striping.
2.17. Landlord, at its sole cost, shall provide the following:
(a) landscaping to screen the dock wall from the main corporate
entrance:
(b) landscaping to screen the parking area and east side of the
Building from the retail development planned for the property adjacent
to the Land, if and when developed; and
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(c) construction of a concrete slab on grade in the northeast
corner of the Building and installation of four (4) interior truck docks
with levelators in the southeast corner of the Building, and 2 600 Amp
480 volt electric services.
2.18. Landlord, at its sole cost, shall direct the Contractor to stub
telephone conduits to the interior wall of the Building.
ARTICLE III
RENT
3.1. Tenant covenants to pay annual base rent ("Base Rent") during the
Term in equal monthly installments ("Monthly Base Rent") in the amounts set
forth below, in advance on the first day of each and every calendar month
during the Term, and at the same rate prorated for fractions of a month if the
Commencement Date occurs on any day other than the first day of a calendar
month or the Term ends on any day other than the last day of a calendar month.
Base Rent shall be payable in the following amounts:
Months Monthly Base Rent Annual Base Rent
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1 through 24 $72,641.58 $ 871,698.96
25 through 48 $77,777.85 $ 933,334.20
49 through 84 $83,372.71 $1,000,472.60
85 through 120 $92,452.92 $1,109.435.00
3.2 (a) This Lease is what is commonly called a "net lease", it being
understood that Landlord shall receive the Monthly Base Rent set forth
in Paragraph 3.1 hereof free and clear of any and all other impositions,
taxes (excluding, however, any income or franchise tax levied or
assessed against Landlord or its beneficiary), assessments, liens,
charges or expenses of any nature whatsoever in connection with the
ownership, maintenance, repair and operation of the Premises (other than
with respect to Landlord's obligations set forth in Article IX below).
In addition to the Monthly Base Rent, Tenant shall, except as otherwise
expressly set forth herein, pay to Landlord, or the other persons or
entities respectively entitled thereto, all impositions, taxes,
assessments, insurance premiums, operating charges, maintenance charges
and any other charges, costs and expenses which arise or may be
contemplated under any provisions of this Lease during the Term. All or
such charges, costs and expenses, when due, shall constitute additional
rent ("Additional Rent"), and upon the failure of Tenant to pay any of
such costs, charges or expenses, Landlord shall have the same rights and
remedies as otherwise provided in this Lease for the failure of Tenant
to pay Base Rent. Base Rent, Additional Rent and all other sums payable
hereunder by Tenant (collectively, "Rent") shall be paid without notice
or demand and without setoff, counterclaim, abatement, suspension,
deduction or defense, except as otherwise expressly provided elsewhere
in this Lease.
(b) Except as otherwise expressly provided herein, this Lease
shall not terminate, nor shall Tenant have any right to terminate this
Lease, nor shall Tenant be entitled to any abatement or reduction of
Base Rent hereunder, nor shall the obligations of the Tenant hereunder
be affected, by reason of (i) any damage to or the destruction of all or
any part of the Premises whatever cause; (ii) the taking of a portion of
the Premises by condemnation, requisition or otherwise as provided in
Article XV below; or (iii) any other cause beyond Landlord's reasonable
control, whether similar or dissimilar to the foregoing, any present or
future laws to the contrary notwithstanding. It is the intention of the
parties hereto that the obligations of Tenant hereunder shall be
separate and independent covenants and agreements, that the Base Rent,
the Additional Rent and all other sums Tenant covenants to pay hereunder
shall continue to be payable in all events and that the obligations of
Tenant hereunder shall continue unaffected, unless the requirement to
pay or perform the same shall have been terminated pursuant to an
express provision of this Lease. Nothing herein shall preclude Tenant
from pursuing or realizing upon its other remedies at law or in equity
by reason of any default hereunder by Landlord.
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(c) Subject to federal bankruptcy laws and other applicable
statutes, laws, regulations and orders, Tenant agrees that it will
remain obligated under this Lease in accordance with its terms, and that
it will not take any action to terminate, rescind or avoid this Lease,
notwithstanding (i) the bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Landlord or any assignee of Landlord in any such
proceeding, and (ii) any action with respect to the Lease which may be
taken by any trustee or receiver of Landlord or any assignee of Landlord
in any such proceeding, or by any court in any such proceeding provided
that this Lease is not effectively disaffirmed in such proceedings and
Tenant receives reasonable assurance thereof within a reasonable period
of time following the commencement of such proceedings.
(d) Tenant waives all rights which may now or hereafter be
conferred by law (i) to quit, terminate or surrender this Lease or the
Premises, or any part thereof, or (ii) to any abatement, suspension,
deferment or reduction of Base Rent, Additional Rent or any other sums
payable under this Lease, except as otherwise expressly provided herein
or as determined by a final judicial determination by a court of
competent jurisdiction.
3.3. Rent shall be paid to or upon the order of Landlord at Landlord's
address set forth herein or as otherwise designated in writing by Landlord.
Landlord may change its address by notice to Tenant of such change pursuant to
Paragraph 27.4 below.
3.4. In the event Tenant fails to pay Rent within five (5) days after
same is due and payable and, as a result thereof, Landlord is required to pay a
late charge or delinquency fee to Mortgagee (as defined herein), Tenant
covenants to pay Landlord a "Late Charge" in an amount equal to the lesser of
(a) the late charge or delinquency fee required to be paid by Landlord to
Mortgagee, or (b) four percent (4%) of the installment of Rent that Tenant has
failed to pay in a timely manner. The Late Charge shall be remitted by Tenant
to Landlord on the first (1st) day of the calendar month immediately following
Tenant's receipt of a copy of the paid invoice for said late charge or
delinquency fee that Landlord receives from Mortgagee.
3.5. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have no obligation to pay that portion of the Monthly Base Rent
equal to Six Thousand Nine Hundred Thirty Seven and 92/100 Dollars ($6,937.92)
[which represents the portion of Monthly Base Rent attributable to the
Addition] until such time as the Addition has been substantially completed in
accordance with the Final Plans, subject to normal punch list items, as
evidenced by the issuance of a conditional certificate of occupancy for the
Addition.
ARTICLE IV
USE
4.1. The Premises shall be used and occupied by Tenant solely as a
general office, warehouse, distribution facility, research and development
facility and for light manufacturing and assembly, or any combination thereof,
all in connection with the operation of Tenant's customary business, and for no
other purposes whatsoever.
4.2. Tenant shall not use or permit the Premises to be used in any
manner other than the permitted uses set forth in Paragraph 4.1, including,
without limitation, heavy manufacturing, public warehousing or any other use
inconsistent with the quality of uses contemplated hereby. Notwithstanding
anything contained in this Lease to the contrary, Tenant shall not use or permit
the Premises to be used in any manner which would (a) be contrary to any
statute, rule, order, ordinance, requirement or regulation applicable thereto;
(b) violate any certificate of occupancy affecting the Premises; (c) cause
injury to the improvements; (d) cause the value or usefulness of the Premises or
any part thereof to diminish; (e) constitute a public or private nuisance or
waste; or (f) render the insurance on the Premises void or the insurance risk
more hazardous, or create any defense to payment, and Tenant agrees that it will
promptly, upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use.
4.3. Tenant shall not use, suffer or permit the Premises, or any
portion thereof, to be used by Tenant, any third party or the public, as such,
without restriction or in such a manner as might reasonably tend to impair
Landlord's title to the Premises,
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or any portion thereof, or in such a manner as might reasonably make possible a
claim or claims of adverse usage or adverse possession by the public, as such,
or third persons, or of implied dedication of the Premises, or any portion
thereof. Nothing contained herein and no action or inaction by Landlord shall
be deemed or construed to mean that Landlord has granted to Tenant any right,
power or permission to do any act or make any agreement that may create, or
give rise to or be the foundation for any such right, title, interest, lien,
charge or other encumbrance upon the estate of Landlord in the Premises.
4.4. Notwithstanding anything contained in this Lease to the contrary,
in the event the Premises can no longer be utilized for the permitted uses set
forth in Paragraph 4.1 above, this Lease shall terminate as of the day said
uses are no longer permitted.
4.5. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have the right, subject to the prior written approval of the
Village of Bloomingdale, Illinois, as evidenced by the issuance of all required
permits, to install an antenna tower not exceeding one hundred (100) feet in
height on the Land provided that Tenant delivers to Landlord evidence that such
tower complies with all applicable government rules and regulations.
4.6. Provided there exists no uncured Event of Default, Landlord shall,
subject to the terms and provisions of Paragraph 5.1 below, take no action
which will deny access by Tenant to the Land or Building at any time during the
Term.
ARTICLE V
POSSESSION
5.1. Except as otherwise expressly provided herein (or by written
instrument signed subsequent to the date hereof by Landlord and Tenant),
Landlord shall deliver possession of the components of the Building pursuant
to the following schedule:
A. Landlord shall deliver possession of the Office Area to
Tenant by March 2, 1990, subject, however, to delays caused by:
(i) the failure the Village of Bloomingdale, Illinois
to issue a building permit relating to the
construction activities to be undertaken pursuant
to this Lease by November 27, 1989;
(ii) Tenant's failure to approve of the Final Plans by
November 27, 1989, with no Tenant requested
Changes;
(iii) Tenant's failure to meet all deadlines required of
Tenant as set forth on the Design and Construction
Schedule attached hereto as Exhibit B; and
(iv) Force Majeure Events (as defined in Paragraph 27.22
below);
B. Landlord shall deliver possession of the "Production Area"
to Tenant by April 2, 1990, subject, however, to delays caused by:
(i) the failure of the Village of Bloomingdale, Illinois
to issue a building permit relating to the
construction activities to be undertaken pursuant
to this Lease by November 27, 1989;
(ii) Tenant's failure to approve of the Final Plans by
November 27, 1989, with no Tenant requested
Changes;
(iii) Tenant's failure to meet all deadlines required of
Tenant as set forth on the Design and Construction
Schedule attached hereto as Exhibit B; and
(iv) Force Majeure Events; and
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C. Landlord shall deliver possession of the Addition to Tenant by
July 1, 1990, subject, however, to delays caused by:
(i) the failure of the Village of Bloomingdale, Illinois to
issue a building permit relating to the construction
activities to be undertaken pursuant to this Lease by
November 27, 1989;
(ii) Tenant's failure to approve of the Final Plans by November
27, 1989 with no Tenant requested Changes;
(iii) Tenant's failure to meet all deadlines required of Tenant
as set forth on the Design and Construction Schedule
attached hereto as Exhibit B; and
(iv) Force Majeure Events.
In the event that Landlord shall be unable to deliver possession of the three
(3) components of the Building pursuant to the preceding provisions of this
Paragraph 5.1. Landlord shall-not be subject to any liability for the failure
to so deliver possession by any of said dates, nor shall the validity of this
Lease or the obligations of Tenant hereunder be in any way affected; provided,
however, that (a) in the event of any such delay in delivering possession of
the Office Area for any reason other than as set forth in paragraph 5.1A above
beyond March 2, 1990, the Term shall be extended for the same number of days as
the length of such delay, so as to result in a Term of ten (10) years; (b) in
the event of any such delay in delivering possession of the Office Area, the
Production Area or the Addition, respectively, beyond the dates set forth above
for any reason other than as set forth above, Tenant shall not be obligated to
remit any Base Rent or Additional Rent during such period of delay; and (c) in
the event of any such delay in delivering possession of the Office Area, the
Production Area or the Addition, respectively, beyond the dates set forth above
for any reason other than as set forth above. Landlord shall credit, first, to
any COSTS Tenant is obligated to pay pursuant to Paragraph 2.1(a) above, and
second, to installments of Rent next due and payable by Tenant, the sum of One
Thousand Dollars ($1,000) per day for each day that delivery of possession of
the three (3) components of the Building is delayed; provided further, however,
that the foregoing clauses (a), (b) and (c) shall not apply if any such delay
in delivering possession of all or any component of the Building is caused by
any act or omission of Tenant (including, without limitation, any Changes
requested by Tenant). In the event Tenant causes any delay(s) which results in
Landlord being delayed in delivering possession of the Office Area by March 2,
1990 and/or the Addition by July 1, 1990, Tenant's obligation to pay Rent
with respect to the Existing Building and/or the Addition shall commence as of
March 2, 1990 and/or as of July 1, 1990, as applicable. Taking possession of
all or any portion of the Existing Building by Tenant shall be conclusive
evidence as against Tenant that the completed portion of the Existing Building
is in satisfactory condition on the date of taking possession, subject to
normal "punch list items" and subject to Section 2.11 above. The failure of
Tenant to take possession of the Existing Building by the Commencement Date
shall not affect the liability or Tenant hereunder. Pre-Term access to the
Office Area by Tenant for purposes of installing any fixtures, equipment or
other personality therein shall not constitute possession; provided, however,
that Tenant shall not have any access to the Production Area or the Addition
prior to the delivery of possession thereof to Tenant.
5.2. Landlord shall deliver possession of the Addition to Tenant as
soon as such portion of the Premises has been substantially completed.
Possession of the Addition shall be delivered to Tenant by July 1, 1990,
subject, however, to the terms of Paragraph 5.1 above; provided that if the
Addition is substantially completed prior to July 1, 1990. Tenant shall be
entitled to take possession at said time, in which event all of Tenant's
obligations hereunder, including the obligation to pay Rent, shall commence.
5.3. Notwithstanding anything contained in this Lease to the contrary,
the Term shall not be extended, nor shall the Commencement Date be delayed due
to Landlord's failure to pave the parking areas prior to March 2, 1990,
provided that (a) parking is permitted by local Governmental Authorities
on the gravel area on the north side of the Building, or (b) Landlord provides
reasonable alternative parking to Tenant within walking distance of the
Building.
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ARTICLE VI
TAXES
6.1 "Taxes" shall mean real estate taxes, assessments (general or
special), sewer rents, rates and charges, taxes based upon leases or 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
or any other taxes imposed upon or measured by Landlord's or its beneficiary's
income or profits), which may now or hereafter be levied, assessed or imposed
against the Premises or any portion thereof or interest therein. Notwithstanding
anything contained in the foregoing definition to the contrary:
(a) If at any time the method of taxation then prevailing shall
be altered so that any new or additional tax, assessment, levy,
imposition or charge, or any part thereof, shall be imposed in place or
partly in place of any Taxes or contemplated increase therein, or in
addition to Taxes, and shall be measured by or be based in whole or in
part upon the Premises, the rents or other income therefrom or any
leases of any part thereof, 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, assessed or
imposed against the Premises to the extent that such items would be
payable if the Premises were the only property of Landlord subject
thereto and the income received by Landlord from the Premises 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 assessments
which may be payable in installments, the amount of each installment,
plus any interest payable thereon, payable during any year shall be
considered Taxes assessed and levied for that year, and (ii) if any
taxes or assessments payable during any year shall be computed with
respect to a period in excess of twelve (12) calendar months, then taxes
or assessments applicable to the excess period shall be considered Taxes
assessed and levied for that year, but only if such excess period falls
within the Term. Except as provided in the preceding sentence, all
references to Taxes assessed, levied, confirmed or imposed during a
particular year shall be deemed to refer to Taxes levied, assessed or
otherwise imposed during such year without regard to when such Taxes are
payable. Landlord has received no written notice of special assessments
affecting the Premises as of the date hereof.
(c) Taxes shall also include personal property taxes (if any)
imposed upon the furniture, fixtures, machinery, equipment, apparatus,
systems or appurtenances used in connection with the Premises or the
operation thereof.
(d) Landlord represents that (i) it has no current knowledge
that any special assessments have been levied against the Premises which
are currently in effect, and (ii) the Premises are not subject to any
outstanding obligations pursuant to any so-called "Recapture
Agreements." If any special assessments have previously been assessed
against the Premises and are currently in effect and/or if the Premises
are currently subject to any outstanding obligations pursuant to any
Recapture Agreements, Landlord shall pay all assessments, fees and
charges in connection therewith.
(e) Notwithstanding anything contained herein to the contrary,
Taxes shall not include any income or franchise taxes imposed upon or
measured by Landlord's or its beneficiary's income or profits.
6.2 Tenant shall pay, before any fine, penalty, interest or cost is
incurred, all Taxes which are assessed, levied, confirmed, imposed or which
become a lien upon the Premises with respect to any period of time within the
Term. Anything herein to the contrary notwithstanding, Landlord shall pay that
portion of the real estate taxes and installments of special assessments for the
year the Term commences (subject to the terms and provisions of Paragraph 6.5
below) and the year in which the Term expires by lapse of time which the number
of days in said year not within the Term bears to 363, and Tenant shall pay the
balance of said real estate taxes and installments of special assessments.
6.3 Tenant shall have the right, at its own cost and expense, to
contest the amount or validity, in whole or in part, of any Tax by appropriate
proceedings diligently conducted in good faith, but only after payment of such
Tax, unless such payment, or a
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payment thereof under protest, would operate as a bar to such contest or
interfere materially with the prosecution thereof, in which event,
notwithstanding the provisions of Paragraph 6.2 hereof, Tenant may postpone or
defer payment of such Tax if (i) neither the Premises nor any portion thereof
would, by reason of such postponement or deferment, be in danger of being
forfeited or lost, and (ii) Tenant shall have deposited with Landlord in an
escrow account cash or a certificate of deposit payable to Landlord issued by a
national bank or Federal savings and loan association reasonably acceptable to
Landlord in the amount of the Tax so contested and unpaid, together with all
interest and penalties which may accrue in Landlord's reasonable judgment in
connection therewith, and all charges that may or might be assessed against or
become a charge on the Premises, or any portion thereof, during the pendency of
such proceedings, or such other form of security reasonably satisfactory to
Landlord. Tenant shall have the right, subject to Landlord's reasonable
approval, to select the counsel to be retained in connection with the
prosecution of any such proceedings. If, during the continuance of such
proceedings, Landlord shall, from time to time, reasonably deem the amount
deposited, as aforesaid, insufficient, Tenant shall, upon demand of Landlord,
make additional deposits of such additional sums of money or such additional
certificates of deposit as Landlord may reasonably request. Upon failure of
Tenant to make such additional deposits, the amount theretofore deposited may
be applied by Landlord to the payment, removal and discharge of such Tax and
any interest, fines and penalties incurred or imposed in connection therewith,
and any costs, fees (including attorneys' fees) and other liability (including
costs incurred by Landlord) accruing in any such proceedings. Upon the
termination of any such proceedings, Tenant shall pay the amount of such Tax or
part thereof, if any, as finally determined in such proceedings, the payment of
which may have been deferred during the prosecution of such proceedings,
together with any costs, fees, including attorneys' fees, interest, penalties,
fines and other liability incurred or imposed in connection therewith, and upon
such payment Landlord shall return all amounts or certificates deposited with
it with respect to the contest of such Tax, as aforesaid, or, at the written
direction of Tenant, Landlord shall make such payment out of the funds on
deposit with Landlord and the balance, if any, shall be returned to Tenant.
Tenant shall be entitled to the refund of any Tax, penalty, fine and interest
thereon received by Landlord which have been paid by Tenant or which have been
paid by Landlord but for which Landlord has been previously reimbursed in full
by Tenant. Landlord shall not be required to join in any proceedings referred
to in this Paragraph 6.3 unless the provisions of any law, rule or regulation
at the time in effect shall require that such proceedings be brought by or in
the name of Landlord, in which event Landlord shall join in such proceedings or
permit the same to be brought in Landlord's name upon compliance with such
conditions as Landlord may reasonably require. Landlord shall not ultimately be
subject to any liability for the payment of any fees, including attorneys'
fees, costs and expenses incurred or imposed in connection with such
proceedings. Tenant agrees to pay all such fees (including reasonable
attorneys' fees), costs and expenses, or, on demand, to make reimbursement to
Landlord for such payment. During the time when any such certificate of deposit
is on deposit with Landlord, and prior to the time when the same is returned to
Tenant or applied against the payment, removal or discharge of Taxes, as
above provided, Tenant shall be entitled to receive all interest paid
thereon; but Tenant shall bear the expense of any early withdrawal penalties.
Cash deposits shall bear interest at then current money market rates.
6.4. Tenant covenants to furnish Landlord with official receipts of
the appropriate taxing authority, or other appropriate proof reasonably
satisfactory to Landlord, evidencing the payment of any tax or other tax,
assessment, levy or charge that is payable by Tenant pursuant to the terms of
this Lease within ten (10) days of Tenant's receipt thereof. The certificate,
advice or xxxx of the appropriate official designated by law to make or issue
the same or to receive payment of any Tax or other tax, assessment, levy or
charge may be relied upon by Landlord as sufficient evidence that such Tax or
other tax, assessment, levy or charge is due and unpaid at the time of the
making or issuance of such certificate, advice or xxxx.
6.5. Attached hereto as Exhibit C and by this reference made a part
hereof are the 1988 notices of assessed valuation (the "Notices") with respect
to each of the Lots comprising the Premises, the Notices being issued by the
Supervisor of Assessments of DuPage County, Illinois. Notwithstanding anything
contained within this Article VI to the contrary, Landlord's obligation with
respect to the payment of real estate taxes levied against the Premises for the
first year of the Term shall be limited to Landlord's pro-rata share, determined
on a per diem basis, of the product obtained by multiplying (a) the assessed
valuation of the respective Lots, as indicated on Exhibit C, by (b) the tax rate
in effect during said year.
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6.6. If the Premises and any other property are covered by a single tax
xxxx, Landlord shall cause the Premises to be assessed separately from such
other property.
6.7. Intentionally Omitted.
ARTICLE VII
INSURANCE
7.1. Tenant, at its sole cost and expense, shall obtain and
continuously maintain in full force and effect during the Term "all risks"
property and casualty insurance covering the Building and the Improvements for
the benefit of Landlord, its beneficiaries, managing agents and Mortgagees, as
their respective interest may appear, as the named insured, against (i) loss or
damage by fire; (ii) loss or damage from such other risks or hazards now or
hereafter embraced by an "all risks" policy, including, but not limited to,
windstorm, hail, explosion, vandalism, riot and civil commotion, damage from
vehicles, smoke damage, water damage and debris removal; (iii) loss for flood if
the Premises is in a designated flood or floodinsurance area in an amount not
in excess of any limitations prescribed by federal law; (iv) loss from so-called
explosion, collapse and underground hazards; and (v) loss or damage from such
other risks or hazards of a similar or dissimilar nature which are now or may
hereafter be customarily insured against with respect to improvements similar in
construction, design, general location, use and occupancy to the Improvements.
At all times, such insurance coverage shall be in an amount equal to one hundred
percent (100%) of the then "Full Replacement Cost" of the Building and the
Improvements and shall include a so-called "Agreed Value Endorsement." Full
Replacement Cost shall be interpreted to mean the cost of replacing the Building
and the Improvements without deduction for depreciation or wear and tear, and it
shall include a reasonable sum for architectural, engineering, legal,
administrative and supervisory fees in connection with the restoration or
replacement of the Building and the Improvements in the event of damage thereto
or destruction thereof. Landlord and Tenant hereby acknowledging and agreeing
for purposes hereof that the Full Replacement Cost of the Building, following
completion of the construction of the Improved Space, shall be Eight Million
Five Hundred Thousand Dollars ($8,500,000.00). Full Replacement Cost shall be
determined from time to time (but not more frequently than once in any twelve
(12) month period), at the request of Landlord or its Mortgagee, by an
appraiser, engineer, architect or contractor designated and paid by Landlord. No
omission on the part of Landlord to request any such determination shall relieve
Tenant of any of its obligations under this Paragraph 7.1, nor shall any
acceptance or acquiescence by Landlord in any amount of insurance tendered or
offered to Landlord by Tenant relieve Tenant of any of its obligations in this
Lease. If a sprinkler system shall be located in the Improvements, sprinkler
leakage insurance in form and amount reasonably satisfactory to Landlord shall
be procured and continuously maintained by Tenant at Tenant's sole cost and
expense. For the period prior to the earlier of the Commencement Date or the
date when the Improved Space has been substantially completed, Landlord, at its
sole cost and expense, shall maintain in full force and effect, on a completed
value basis, insurance coverage on the Building or Builder's Risk or other
comparable coverage, and in connection therewith, Landlord shall, promptly after
the date hereof, furnish Tenant with a certificate of insurance evidencing such
coverage.
7.2. During the Term, Tenant, at its sole cost and expense, but for the
mutual benefit of Landlord and Tenant, shall obtain and continuously maintain in
full force and effect the following insurance coverage:
(a) Commercial general liability insurance against any loss,
liability or damage on, about or relating to the Premises, or any
portion thereof, with limits of not less than Five Million Dollars
($5,000,000.00) single limit coverage on an occurrence basis. Any such
insurance obtained and maintained by Tenant shall name Landlord,
Landlord's beneficiaries, managing agents and Mortgagees as additional
insureds therein. Such insurance shall contain a contractual liability
endorsement consistent with Tenant's obligations under Paragraph 27.3
hereof.
(b) Such other insurance, and in such amounts as may from time
to time be reasonably required by Landlord, against other insurable
hazards which at the time are commonly insured against in the case of
premises and/or buildings or improvements similar in construction,
design, general location, use and occupancy to those on or appurtenant
to the Premises.
The insurance set forth in this Paragraph 7.2 shall be maintained by Tenant at
not less than the limits set forth herein until reasonably required to be
changed from time to
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time by Landlord, in writing, whereupon Tenant covenants to obtain and maintain
thereafter such protection in the amount or amounts so required by Landlord.
7.3. All policies of insurance required by Paragraph 7.1 shall provide
that the proceeds thereof shall be payable to Landlord, and if Landlord so
requests, shall also be payable to any contract purchaser of the Premises and
any Mortgagee, as the interest of such purchaser or Mortgagee appears pursuant
to a standard named insured or mortgagee clause. Tenant shall not, on Tenant's
own initiative or pursuant to request or requirement of any third party, take
out separate insurance concurrent in form or contributing in the event of loss
with that required in Paragraph 7.1, unless Landlord and its beneficiaries,
managing agents and Mortgagees are included therein as additional insureds with
loss payable as in Paragraph 7.1. Tenant shall immediately notify Landlord in
writing whenever any such separate insurance is taken out and, notwithstanding
anything contained within this Lease to the contrary, Tenant shall deliver to
Landlord original certificates of insurance evidencing all insurance policies
Tenant is to obtain and maintain hereunder. All such policies of insurance that
Tenant is obligated to obtain and maintain shall provide that any loss shall be
payable to Landlord notwithstanding any act or omission or Tenant which might
otherwise result in a forfeiture or reduction of such insurance.
Each policy required under this Article VII shall not be cancelled or
materially changed without at least thirty (30) days' prior written notice to
Landlord, and shall have attached thereto an endorsement to the effect that the
insurance as to the interest of Landlord, its beneficiary, managing agents and
Mortgagees shall not be invalidated by any act or neglect of any person. All
policies of insurance shall be written in companies reasonably satisfactory
to Landlord and licensed in the State of Illinois, and shall be written in such
form and shall be distributed in such companies as shall be reasonably
satisfactory to Landlord. Such certificates of insurance acceptable to Landlord
shall be delivered to Landlord endorsed "Premium Paid" by the company or agent
issuing the same or accompanied by other evidence satisfactory to Landlord that
the premiums thereon have been paid. Such certificates of insurance acceptable
to Landlord and evidence of payment shall be delivered to Landlord upon
commencement of the Term; and prior to expiration of any policy required to be
maintained by Tenant hereunder, Tenant shall deliver new certificates of
insurance evidencing same to Landlord.
7.4. Landlord agrees that Tenant may cause to be inserted in the policy
or policies of insurance required by Paragraph 7.1 hereof a so-called "Waiver of
Subrogation Clause." Landlord shall cause all policies of insurance carried by
Landlord to contain a "Waiver of Subrogation Clause."
7.5. Tenant shall maintain insurance coverage (including loss of use
and business interruption coverage of at least 12 months) upon Tenant's
business and upon all personal property of Tenant or the personal property of
others kept, stored or maintained on the Premises against loss or damage by
fire, windstorm or other casualties or causes for such amount as Tenant may
desire, and Tenant agrees that such policies shall contain a waiver of
subrogation clause as to Landlord and its beneficiaries. Tenant hereby waives,
releases and discharges Landlord, its beneficiaries, managing agents and
Mortgagees from all claims whatsoever arising out of loss, claim, expense or
damage to or destruction of any such personal property or to Tenant's business
notwithstanding that such loss, claim, expense or damage may have been caused
by Landlord, its agents or employees, and Tenant agrees to look to the
insurance coverage only in the event of such loss. Landlord hereby waives,
releases and discharges Tenant from all claims whatsoever arising out of loss,
claim, expense or damage to Landlord's personal property or business
notwithstanding that such loss, claim, expense or damage may have been caused
by Tenant, its agents or employees, and Landlord agrees to look to the
insurance coverage only in the event of such loss.
7.6. Nothing in this Article shall prevent Tenant from taking out
insurance of the kind and in the amount provided for under the preceding
paragraphs of this Article under a blanket insurance policy or policies
(certificates thereof reasonably satisfactory to Landlord shall be delivered to
Landlord) which may cover other properties owned or operated by Tenant as well
as the Premises; provided, however, that any such policy of blanket insurance
of the kind provided for shall (i) specify therein the amounts thereof
exclusively allocated to the Premises or Tenant shall furnish Landlord and any
Mortgagee with a written statement from the insurers under such policies
specifying the amounts of the total insurance exclusively allocated to the
Premises, and (ii) not contain any clause which would result in the insured
thereunder being required to carry any insurance with respect to the property
covered thereby in an amount not less than any specific percentage of the Full
Replacement Cost of such property in order to prevent
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the insured therein named from becoming a co-insurer of any loss with the
insurer under such policy; and further provided, however, that such policies of
blanket insurance shall, as respects the Premises, contain the various
provisions required of such an insurance policy by the foregoing provisions of
this Article VII.
7.7. Tenant shall conform with all applicable fire codes of any
governmental authority, and with the rules and regulations of Landlord's fire
underwriters and their fire protection engineers, including, without limitation,
the installation of adequate fire extinguishers. If Landlord is providing a
sprinkler monitoring system with a direct connection to the local fire
department or monitoring service, then Tenant shall pay any monitoring service
charge and maintain such system in good working order. If the Premises are
served by a sprinkler system, but are not served by a sprinkler monitoring
system with direct connection to the local fire department or a monitoring
service, then Tenant shall, at its sole cost and expense, install such a
monitoring system, cause it to be connected to the local fire department or to a
qualified monitoring service approved by Landlord and maintain the same in
effect at all times during the Term.
7.8. Notwithstanding any other provision of this Lease to the contrary,
and without limitation of the provisions of Paragraph 7.5, whenever (a) any
loss, cost, damage or expense resulting from fire, explosion or any other
casualty or occurrence is incurred by either of the parties hereto, or anyone
claiming by, through, or under it in connection with the Premises, and (b) such
party is then covered in whole or in part by insurance with respect to such
loss, cost, damage or expense or is required under this Lease to be so insured,
then the party so insured (or so required) hereby waives any claims against and
releases the other party from any liability said other party may have on account
of such loss, cost, damage or expense to the extent of any amount recovered by
reason of such insurance (or which could have been recovered had such insurance
been carried as so required); provided that such waiver of claims or release of
liability shall not be operative in any case where the effect thereof is to
invalidate such insurance coverage.
ARTICLE VIII
UTILITIES
8.1. During the Term, Tenant will pay, when due, all charges for
utilities furnished to the Premises or chargeable against the Premises,
including all charges for water, sewage, heat, gas, light, garbage,
electricity, telephone, steam, power or other public or private utility
services. Prior to the commencement of the Term, Tenant and Landlord, as
applicable, shall each pay for all utilities or services at the Premises used
by it or its agents, employees, or contractors. To the extent any utility fees
payable by Landlord prior to the commencement of the Term relate specifically
to Landlord's construction obligations with respect to the Improved Space, said
fees shall be credited against the Construction Allowance, and all other
utility fees payable by Landlord prior to the commencement of the Term shall
not be credited against the Construction Allowance.
8.2. In the event that any charge or fee is required by the State of
Illinois, or by any agency, subdivision or instrumentality thereof, or by any
utility company furnishing services or utilities to the Premises, as a
condition precedent to furnishing or continuing to furnish utilities or
services to the Premises during the Term, such charge or fee shall be deemed to
be a utility charge payable by Tenant. The provisions of this paragraph shall
include, but not be limited to, any charges or fees for present or future water
or sewer capacity to serve the Premises, any charges for the underground
installation of gas or other utilities or services, and other charges relating
to the extension of or change in the facilities necessary to provide the
Premises with adequate utility services to the extent such installations or
extensions are not reflected in the Final Plans or any Changes relating
thereto. In the event that Landlord has paid any such charge or fee prior to
the date hereof and same relates specifically to Landlord's construction
obligations with respect to the Improved Space, said charge or fee shall be
credited against the Construction Allowance, and all other charges or fees
payable by Landlord prior to the commencement of the Term shall not be credited
against the Construction Allowance.
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ARTICLE IX
REPAIRS
9.1. At its sole cost and expense throughout the Term, Tenant shall,
(a) take good care of the Premises (including any Improvements now or hereafter
erected or installed on the Land); (b) keep the same in good order and
condition of repair; and (c) make and perform all maintenance thereof and all
necessary structural and non-structural repairs thereto, interior and exterior,
ordinary and extraordinary, foreseen and unforeseen, of every nature, kind and
description. When used in this Article IX, "repairs" shall include all
necessary replacements, renewals, alterations, additions and betterments. All
repairs made by Tenant shall be at least equal in quality and cost to the
original work performed in constructing the Improvements and shall be made by
Tenant in accordance with all laws, ordinances and regulations whether
heretofore or hereafter enacted. The necessity for or adequacy of maintenance
and repairs shall be measured by the standards which are appropriate for
improvements of similar construction and class, provided that Tenant shall in
any event make all repairs necessary to avoid any structural damage or other
damage or injury to the Improvements.
9.2. At its sole cost and expense throughout the Term, Tenant shall
take good care of and maintain all driveways, pathways, roadways, sidewalks,
curbs, spur tracks, parking areas, loading areas, landscaped areas, ponds,
entrances and passageways in good order and condition of repair and shall
promptly remove all accumulated snow, ice and debris from any and all
driveways, pathways, roadways, sidewalks, curbs, parking areas, loading areas,
entrances and passageways, and keep all portions of the Premises, including
areas appurtenant thereto, in a clean and orderly condition free of snow, ice,
dirt, rubbish, debris and unlawful obstructions.
9.3. Landlord shall not be required to furnish any services or
facilities or to make any repairs or alterations in, about or to the Premises
or any improvements now or hereafter erected thereon. Landlord agrees to
cooperate with Tenant in the enforcement by Tenant, at Tenant's sole cost and
expense, of any express warranties or guarantees of workmanship or materials
given by manufacturers, contractors, subcontractors or materialmen whether or
not assignable by Landlord to Tenant, which guarantee or warrant against
defective workmanship or materials, and to cooperate with Tenant in the
enforcement by Tenant, at Tenant's sole cost and expense, of any service
contracts that provide service, repair or maintenance to any item incorporated
within the Building. Tenant hereby assumes the full and sole responsibility for
the condition, operation, repair, replacement, maintenance and management of
the Premises and all improvements now or hereafter erected thereon.
9.4. Tenant shall not do or suffer any waste or damage, disfigurement
or injury to the Premises, or any Improvements now or hereafter erected
thereon, or to the fixtures or equipment therein, or permit or suffer any
overloading of the floors or other use of the Improvements that would place an
undue stress on the same or any portion thereof beyond that for which the same
was designed.
9.5. Tenant acknowledges that the Premises shall be subject to a
declaration of covenants, conditions and restrictions to be recorded in the
Office of the Recorder of Deeds of DuPage County, Illinois in the form attached
hereto as Exhibit D (hereinafter, as the same may be modified, amended or
supplemented from time to time, referred to as the "Declaration"), Tenant
shall, at Tenant's sole cost and expense, maintain the Premises in accordance
with the Declaration and comply with all requirements, perform all obligations
and obtain all approvals imposed on or as required of the owner, tenant or
occupant of the Premises by the Declaration (specifically including the
restrictions set forth in the Declaration regarding the exterior of the
Improvements and the provisions regarding outdoor maintenance). Tenant shall
also pay, as Additional Rent, all amounts imposed on the owner, tenant or
occupant of the Premises by the Declaration, including, without limitation, any
business park association dues and the proportion of costs of maintenance of
and taxes on common areas which is allocable to the Premises pursuant to the
Declaration. In the event of any conflict between the obligations of Tenant set
forth elsewhere in this Lease and the obligations hereby assumed by Tenant
under the Declaration, the more restrictive shall control. Landlord reserves to
itself all voting rights to which it is entitled pursuant to the Declaration.
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ARTICLE X
COMPLIANCE WITH LAWS AND ORDINANCES
10.1. Tenant shall, at its sole cost and expense throughout the Term,
promptly comply or cause compliance with or remove or cure any violation of any
and all present and future laws, ordinances, orders, rules, regulations and
requirements of all federal, state, municipal and other governmental bodies
having jurisdiction over the Premises and the appropriate departments,
commissions, boards and officers thereof, and the orders, rules and regulations
of the Board of Fire Underwriters where the Premises are situated, or any other
body now or hereafter constituted exercising lawful or valid authority over the
Premises, or any portion thereof, or the sidewalks, curbs, roadways, alleys,
entrances or railroad track facilities adjacent or appurtenant thereto, or
exercising authority with respect to the use or manner of use of the
Premises, or such adjacent or appurtenant facilities, and whether the
compliance, curing or removal of any such violation and the costs and expenses
necessitated thereby shall have been foreseen or unforeseen, ordinary or
extraordinary, and whether or not the same shall be presently within the
contemplation of Landlord or Tenant or shall involve any change of governmental
policy, or require structural or extraordinary repairs, alterations or
additions by Tenant and irrespective of the costs thereof; provided, however,
that notwithstanding anything contained in this Article X to the contrary, in
the event that (a) any compliance action is required by any such governmental
bodies having jurisdiction over the Premises; (b) the estimated costs of any
such required compliance action exceeds One Hundred Thousand Dollars
($100,000.00); and (c) the required compliance action relates specifically to
the Premises, Landlord shall pay all reasonable costs and expenses incurred in
effectuating the required compliance action, and in consideration thereof,
Tenant shall pay to Landlord, as Additional Rent hereunder throughout the Term
(including any Renewal Term), an amount equal to twelve percent (12%) per annum
of all such costs and expenses incurred by Landlord in completing the required
compliance action, on a monthly basis, in the manner and at the time monthly
installments of Base Rent are payable pursuant to the provisions of Article III
above.
10.2. At its sole cost and expense throughout the Term, Tenant shall
comply with all agreements, contracts, easements, restrictions, reservations or
covenants, if any, set forth in Exhibit A attached hereto, and with all
agreements, contracts, easements, restrictions, reservations or covenants
hereafter created, provided those hereafter created do not unreasonably
interfere with Tenant's on-going business operations at the Premises and are
otherwise reasonably acceptable to Tenant. Tenant shall also comply with,
observe and perform all provisions and requirements of all policies of insurance
at any time in force with respect to the Premises and required to be obtained
and maintained under this Lease and shall comply with all development permits
issued by governmental authorities issued in connection with development of the
Premises.
10.3. Notwithstanding that it may be usual and customary for Landlord
to assume responsibility and performance of any or all of the obligations set
forth in this Article X, and notwithstanding any order, rule or regulation
directed to Landlord to perform. Tenant hereby assumes, subject to the
provisions of Paragraph 10.1 above, such obligations because, by nature of this
Lease, the rents and income derived from this Lease by Landlord are net rentals
not to be diminished by any expense incident to the ownership, occupancy, use,
leasing, or possession of the Premises or any portion thereof.
10.4. After prior written notice to Landlord, Tenant shall, at its sole
cost and expense without cost or expense to Landlord, have the right to contest
the validity or application of any law or ordinance referred to in this Article
X in the name of Tenant or Landlord, or both, by appropriate legal proceedings
diligently conducted, but only if, by the terms of any such law or ordinance,
compliance therewith pending the prosecution of any such proceeding may legally
be delayed without the incurrence of any lien, charge or liability of any kind
against the Premises, or any portion thereof, and without subjecting Landlord or
Tenant to any liability, civil or criminal, for failure to so comply therewith
until the final determination of such proceeding; provided, however, if any
lien, charge or civil liability would be incurred by reason of any such delay,
Tenant nevertheless, with the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed, may contest as aforesaid and
delay as aforesaid, provided that such delay would not subject Tenant or
Landlord to criminal liability and Tenant (a) furnishes Landlord security,
reasonably satisfactory to Landlord, against any loss or injury by reason of any
such contest or delay; (b) prosecutes the contest with due diligence and in good
faith; and (c) agrees to indemnify, defend and hold harmless Landlord, its
beneficiaries, managing agents, Mortgagees and the Premises from any charge,
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liability or expense whatsoever. The security furnished to Landlord by Tenant
shall be in the form of a cash deposit, a certificate of deposit issued by a
national bank or Federal savings and loan association reasonably satisfactory
to Landlord and payable to Landlord or other security reasonably satisfactory
to Landlord. Said deposit shall be held in escrow, administered and distributed
in accordance with the provisions of Paragraph 6.3 hereof relating to the
contest of the amount of validity of any Tax.
If necessary or proper to permit Tenant to so contest the validity or
application of any such law or ordinance, Landlord shall, at Tenant's sole cost
and expense, including reasonable attorneys' fees incurred by Landlord, execute
and deliver any appropriate papers or other documents.
ARTICLE XI
MECHANIC'S LIENS AND OTHER LIENS
11.1. Tenant shall not suffer or permit any mechanic's lien or other
lien to be filed against the Premises, or any portion thereof, by reason of
work, labor, skill, services, equipment or materials supplied or claimed to have
been supplied to the Premises at the request of Tenant, or anyone holding the
Premises, or any portion thereof, by, through or under Tenant. If any such
mechanic's lien or other lien shall at any time be filed against the Premises,
or any portion thereof, Tenant shall cause the same to be discharged of record
within thirty (30) days after the date of filing the same. If Tenant shall fail
to discharge such mechanic's lien or liens or other lien within such period,
then, in addition to any other right or remedy of Landlord, Landlord may, but
shall not be obligated to, discharge the same by paying to the claimant the
amount claimed to be due or by procuring the discharge of such lien as to the
Premises by deposit of a cash sum or a bond or other security, or in such other
manner as is now or may in the future be provided by present or future law for
the discharge of such lien as a lien against the Premises. Any amount paid by
Landlord, or the value of any deposit so made by Landlord, together with all
costs, fees and expenses in connection therewith (including reasonable
attorneys' fees), together with interest thereon at the Maximum Rate of Interest
(as defined herein), shall be repaid by Tenant to Landlord on demand as
Additional Rent. Tenant shall indemnify and defend Landlord, its beneficiaries,
managing agents and Mortgagees against and save Landlord, its beneficiaries,
managing agents, Mortgagees, and the Premises (and any portion thereof),
harmless from all losses, costs, damages, expenses, liabilities, suits,
penalties, claims, demands and obligations, including, without limitation,
reasonable attorneys' fees, resulting from the assertion, filing, foreclosure or
other legal proceedings with respect to any such mechanic's lien or other lien.
11.2. The provisions of Paragraph 11.1 shall not apply to any
mechanic's lien or other lien for labor, services, materials, supplies,
machinery, fixtures or equipment furnished to the Premises in the performance
of Landlord's obligations to construct the Improved Space required by the
provisions of Article II, or otherwise arising from any act or omission of
Landlord, its beneficiary or managing agent, and Landlord does hereby agree to
indemnify and defend Tenant against and hold Tenant harmless from all losses,
costs, damages, expenses, liabilities and obligations, including, without
limitation, reasonable attorneys' fees, resulting from the assertion, filing,
foreclosure or other legal proceedings with respect to any such mechanic's lien
or other lien.
11.3. Tenant shall not create, permit or suffer, and shall promptly
discharge and satisfy of record, any other lien, encumbrance, charge, security
interest or other right or interest which shall be or become a lien,
encumbrance, charge or security interest upon the Premises, or any portion
thereof, or the income therefrom, or on the interest of Landlord, its
beneficiaries, Mortgagees or Tenant in the Premises, or any portion thereof,
save and except for those liens, encumbrances, charges, security interests, or
other rights or interests consented to in writing or created by Landlord or
covered by Paragraph 11.2 above, or those mortgages, assignments of rents,
assignments of leases and other mortgage documentation placed thereon by
Landlord in financing or refinancing the Premises or otherwise.
11.4. Tenant shall have the right to contest the validity or amount of
any mechanic's lien or other lien filed against the Premises, or any portion
thereof. Any such contest shall be undertaken by Tenant in accordance with the
provisions of Paragraph 6.3 above.
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ARTICLE XII
LANDLORD'S RIGHT TO CURE DEFAULT
12.1. If Tenant shall at any time fail to (a) pay any Tax in accordance
with the provisions of this Lease; (b) obtain, pay for, maintain and deliver any
of the insurance policies or certificates of insurance provided for in this
Lease; (c) make any other payment or perform any other act on its part to be
made or performed, and if any such failure is not cured within fifteen (15) days
after receipt by Tenant of written notice thereof from Landlord (or without
notice in case of an emergency) or if such failure cannot be cured within
fifteen (15) days, the extension of time provisions of Paragraph 13.1(c) shall
apply, then Landlord, without waiving or releasing Tenant from any obligation of
Tenant contained in this Lease, may, but shall be under no obligation to do so,
(i) pay any Tax payable by Tenant pursuant to the provisions of this Lease; (ii)
obtain, pay for and maintain any of the insurance policies provided for in this
Lease; or (iii) make any other payment or perform any other act on Tenant's part
to be paid or performed as provided in this Lease, and Landlord may enter upon
the Premises for any such purpose and take all such action therein or thereon as
may be necessary therefor. Nothing herein contained shall be deemed as a waiver
or release of Tenant from any obligation of Tenant contained in this Lease.
12.2. All sums so paid by Landlord and all reasonable costs and
expenses, including reasonable attorneys' fees, incurred by Landlord in
connection with the performance of any such act, together with interest thereon
at the Maximum Rate of Interest from the respective dates of Landlord's making
of each payment of such cost and expense, shall be deemed Additional Rent
hereunder and shall be paid by Tenant to Landlord within ten (10) days after
receipt by Tenant of Landlord's written demand. Landlord shall have, in addition
to any other right or remedy of Landlord, the same rights and remedies in the
event of nonpayment thereof by Tenant as in the case of default by Tenant in the
payment of Base Rent. Landlord shall not be limited in the proof of any damages
which Landlord may claim against Tenant arising out of or by reason of Tenant's
failure to provide and keep in force insurance as aforesaid, to the amount of
the insurance premium or premiums not paid or not incurred by Tenant, and which
would have been payable upon such insurance, but Landlord shall also be
entitled to recover as damages for such breach the uninsured amount of any loss
(to the extent of any deficiency between the dollar limits of insurance
required by the provisions of this Lease and the dollar limits of the insurance
actually carried by Tenant), damages, costs and expenses of suit, including
reasonable attorneys' fees, suffered or incurred by reason of damage to or
destruction of the Premises or any portion thereof, or other damage or loss
which Tenant is required to insure against hereunder, occurring during any
period when Tenant shall have failed or neglected to provide insurance as
aforesaid. If Tenant shall fail to perform any act required of it, Landlord may
perform the same, but shall not be required to do so, in such manner and to
such extent as Landlord may deem necessary or desirable, and in exercising any
such right to employ counsel and to pay necessary and incidental costs and
expenses, including reasonable attorneys' fees.
ARTICLE XIII
DEFAULTS OF TENANT
13.1. The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(a) If default shall be made by Tenant under the provisions of
this Lease relating to assignment, sublease, mortgage or other transfer
of Tenant's interest in this Lease or in the Premises or in the income
arising therefrom;
(b) If default shall be made in the due and punctual payment of
any Base Rent or Additional Rent or in the payment of any other amount
to be paid by Tenant, when and as the same shall become due and payable,
and such default shall continue for a period of ten (10) days after the
receipt by Tenant of written notice thereof from Landlord;
(c) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease, other than those
referred to in subparagraphs (a) and (b) of this Paragraph 13.1, which
do not expose Landlord to criminal liability, and such default shall
continue for a period of thirty (30) days
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after written notice thereof given by Landlord to Tenant, or in the
event such a default cannot, with due diligence and in good faith, be
cured within thirty (30) days, and Tenant fails to proceed promptly and
with due diligence and in good faith to commence the cure of same within
said thirty (30) day period and thereafter to prosecute the curing of
such default with due diligence and in good faith, it being intended
that in connection with a default which does not expose Landlord to
criminal liability, not susceptible of being cured with due diligence
and in good faith within thirty (30) days, that the time allowed Tenant
within which to cure the same shall be extended for such period as may
be reasonably necessary for the curing thereof promptly with due
diligence and in good faith;
(d) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease, other than those
referred to in subparagraphs (a), (b) and (c) of this Paragraph 13.1,
and which exposes Landlord to criminal liability, and such default shall
continue for a period of fifteen (15) days after written notice thereof
given by Landlord to Tenant, it being intended that in connection with a
default which exposes Landlord to criminal liability, that Tenant shall
proceed immediately to cure or correct such condition with continuity
and with all due diligence and in good faith; or
(e) Subject to the federal bankruptcy laws and other applicable
statutes, laws, regulations and orders, if (i) Tenant shall make an
assignment for the benefit of creditors; (ii) a voluntary petition is
filed by Tenant under any law having for its purpose the adjudication of
Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to an
involuntary petition in bankruptcy; (iii) proceedings are initiated to
appoint a receiver for the property of Tenant which proceeding are not
dismissed within thirty (30) days following filing; or (iv) any
department of the State of Illinois or the Federal government, or any
officer thereof duly authorized, shall take possession of the business
or property of Tenant.
13.2. If an Event of Default occurs, 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 to remedy allowed it at law or in equity or elsewhere in this Lease;
(a) Landlord may terminate this Lease by giving Tenant written
notice of its election to do so, in which event the Term shall end and
all right, title and interest of Tenant hereunder shall expire on the
date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any
part thereof shall cease on the date stated in such notice; and
(c) Landlord may seek to enforce the provisions of this Lease
and may seek to enforce and protect the rights of Landlord hereunder by
a suit or suits in equity or at law for the specific performance of any
covenant or agreement contained herein, and for the enforcement of any
other appropriate legal or equitable remedy, including, without
limitation, injunctive relief, and for recovery of all moneys due or to
become due from Tenant under any of the provisions of this Lease.
13.3. If Landlord exercises either of the remedies provided for in
Paragraphs 13.2(a) and (b), Tenant shall surrender possession of and vacate the
Premises and immediately deliver possession thereof to Landlord, and Landlord
may re-enter and take complete and peaceful possession of the Premises, with
process of law, full and complete license so to do being hereby granted to
Landlord, by lawful means, and Landlord may remove all occupants and property
therefrom, as permitted by law, 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
law or in equity.
13.4. If Landlord terminates Tenant's right to possess the Premises
without terminating this Lease, as provided for in Paragraph 13.2(b) above,
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 the
aggregate amount of the Rent (based on the latest applicable rate of Base Rent
and the rate of the latest determined Additional
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Rent) for the period from the date stated in the notice terminating possession
to the stated end of the Term discounted at a present value rate of six percent
(6%) per annum from the date of said notice shall be immediately due and payable
by Tenant to Landlord, together with any other moneys due hereunder, and
Landlord shall have the right to immediate recovery of all such amounts. In
addition, Landlord shall have the right, from time to time, to recover from
Tenant, and Tenant shall remain liable for, all Rent not theretofore accelerated
and paid pursuant to the foregoing sentence 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, Landlord shall, in good faith, use reasonable efforts to relet the
Premises or any part thereof for the account of Tenant for such reasonable rent,
on a net rent basis as provided herein, for such time (which may be for a term
extending beyond the Term) and upon such reasonable terms as Landlord, in
Landlord's reasonable commercial judgment, shall determine, and Landlord shall
be required to accept any tenant having a net worth in excess of Fifty Million
Dollars ($50,000,000.00) offered by Tenant but shall not be required to observe
any instructions given by Tenant relative to such reletting. Also, in any such
case, Landlord may make reasonable repairs, alterations and additions in or to
the Premises to the extent deemed by Landlord necessary or desirable, and in
connection therewith, Landlord may change the locks to the Premises and Tenant
shall, upon written demand, pay the cost thereof together with Landlord's
expenses of reletting. Landlord shall collect the rents from any such reletting
and apply the same first to the payment of the expenses of re-entry, repair and
alterations and the expenses of reletting and second to the payment of Rent
herein provided to be paid by Tenant, and any excess or residue shall operate
only as an offsetting credit against the amount of Rent due and owing or paid
as a result of acceleration or 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 Event
of Default occurred. No such re-entry, repossession, repairs, alterations,
additions or reletting shall be construed as an eviction or ouster of Tenant or
as an election on Landlord's part to terminate this Lease, unless a written
notice of such intention is given to Tenant, or shall operate to release Tenant,
in whole or in part, from any of Tenant's obligations hereunder, and Landlord
may, at any time and from time to time, xxx for any deficiencies from time to
time remaining after the application from time to time of the proceeds of any
such reletting. In the event Landlord obtains a judgment against Tenant for an
amount attributable in part to the loss of future payments of Rent as provided
in this Paragraph 13.4 or Paragraph 13.5 below and Landlord collects the full
amount of such judgment from Tenant, from and after the date of receipt of such
funds Landlord will credit Tenant with rent payable as a result of any reletting
of the Premises (minus costs of reletting and collection) through the expiration
of the period of acceleration used in the determination of the amount of said
judgment (but in no event beyond the expiration of the Term). Landlord's
obligation to so reimburse Tenant shall survive the entry of the foregoing
judgment. Notwithstanding anything contained in Paragraphs 13.4 or 13.5 or
elsewhere in this Lease to the contrary, if an Event of Default occurs
hereunder, Landlord shall use commercially reasonable efforts to relet the
Premises for the highest rent obtainable, on a net rent basis as provided in
this Lease, and on reasonable terms and conditions.
13.5. In the event of the termination of this Lease by Landlord as
provided for by Paragraph 13.2(a), 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
accrued sums payable by Tenant, or for which Tenant is liable or with respect
to 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, without limitation, court costs and reasonable 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: (a) 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 annual rates for the remainder of the Term as provided
for in 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 value to
be computed in each case on the basis of a six percent (6%) per annum discount
from the respective dates upon which such rentals would have been payable
hereunder had this Lease not been terminated; and (b) any damages in addition
thereto (but which are not included in the above calculation), including
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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.
13.6. All property removed from the Premises by Landlord pursuant to
any provisions of this Lease or by law may be handled, removed or stored by
Landlord at the cost and expense of Tenant, and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof, except for
loss, damage or destruction resulting from Landlord's fault or negligence.
Tenant shall pay Landlord, within ten (10) days of Landlord's written demand
therefor, for all expenses incurred by Landlord in such removal and for storage
charges for such property so long as the same shall be in Landlord's possession
or under Landlord's control. All such property not removed from the Premises or
retaken from storage by Tenant within thirty (30) days after the end of the
Term, however terminated, shall, at Landlord's option, 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.
13.7. Tenant shall pay all of Landlord's costs, charges and expenses,
including, without limitation, court costs and reasonable attorneys' fees,
incurred in enforcing Tenant's obligations under this Lease or incurred by
Landlord in any litigation, negotiation or transaction in which Tenant causes
Landlord, without Landlord's fault or negligence, to become involved or
concerned.
13.8. Landlord shall pay all of Tenant's costs, charges and expenses,
including, without limitation, court costs and reasonable attorneys' fees,
incurred in enforcing Landlord's obligations under this Lease or incurred by
Tenant in any litigation, negotiation or transaction in which Landlord causes
Tenant, without Tenant's fault or negligence, to become involved or concerned.
13.9. Except to the extent otherwise required under federal bankruptcy
laws, rules or orders or by a court of competent jurisdiction in the event a
petition is filed by or against Tenant under the federal bankruptcy laws now in
effect or as amended from time to time (the "Bankruptcy Code");
(1) Tenant, as debtor and debtor in possession, and any
trustee who may be appointed, agree to adequately
protect Landlord as follows: (a) to pay monthly in
advance on the first day of each month as reasonable
compensation for use and occupancy of the Premises an
amount equal to all Rent due pursuant to this Lease; (b)
to perform each and every obligation of Tenant under
this Lease until such time as this Lease is either
rejected or assumed by order of a court of competent
jurisdiction; (c) to determine within sixty (60) days
after filing of such petition whether to assume or
reject this Lease; (d) to give Landlord at least thirty
(30) days prior written notice, unless a shorter notice
period is agreed to in writing by the parties, of any
proceeding relating to any assumption or rejection of
this Lease; (e) to give at least thirty (30) days prior
written notice of any vacation or abandonment of the
Premises, any such vacation or abandonment to be deemed
a rejection of this Lease; and (f) to do all other
things of benefit to Landlord otherwise required under
the Bankruptcy Code. Tenant shall be deemed to have
rejected this Lease in the event of the failure to
comply with any of the above.
(ii) If Tenant or a trustee elects to reject this Lease
subsequent to the filing of a petition under the
Bankruptcy Code, or if this Lease is otherwise rejected,
Tenant shall immediately vacate and surrender possession
of the Premises.
(iii) If Tenant or a trustee elects to assume this Lease
subsequent to the filing of a petition under the
Bankruptcy Code, Tenant, as debtor and as debtor in
possession and any trustee who may be appointed agrees
as follows: (a) to cure each and every existing breach
by Tenant within not more than ninety (90) days of
assumption of this Lease; (b) to compensate Landlord for
any actual pecuniary loss resulting from any existing
breach, including without limitation, Landlord's
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reasonable costs, expenses and attorneys' fees
incurred as a result of the breach, as determined
by a court of competent jurisdiction, within ninety
(90) days of assumption of this Lease; (c) in the
event of an existing breach, to provide adequate
assurance of Tenant's future performance, including
without limitation (i) the deposit of an additional
sum equal to three months' Rent to be held (without
any allowance for interest thereof) to secure
Tenant's obligations under the Lease; (ii) the
production to Landlord of written documentation
establishing that Tenant has sufficient present and
anticipated financial ability to perform each and
every obligation of Tenant under this Lease; and
(iii) assurances, in form acceptable to Landlord,
as may be required under any applicable provision
of the Bankruptcy Code; (d) the assumption will not
breach any provision of this Lease; (e) the
assumption will be subject to all of the provisions
of this Lease unless the prior written consent of
Landlord is obtained; and (f) the prior written
consent to the assumption of any Mortgagee or
ground lessor to which this Lease has been assigned
as collateral security is obtained.
(iv) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of the
Bankruptcy Code to any person or entity who shall
have made a bona fide offer to accept an assignment
of this Lease on terms acceptable to Tenant, the
notice of such proposed assignment, setting forth
(a) the name and address of such person; (b) all
the terms and conditions of such offer; and (c) the
adequate assurance to be provided Landlord to
assure such person's future performance under the
Lease, including without limitation, the assurances
referred to in any applicable provision of the
Bankruptcy Code, shall be given to Landlord by
Tenant no later than twenty (20) days after receipt
by Tenant, but in any event no later than ten (10)
days prior to the date that Tenant shall make
application to a court of competent jurisdiction
for authority and approval to enter into such
assignment and assumption, and Landlord shall
thereupon have the prior right and option, to be
exercised by notice to Tenant given at any time
prior to the effective date of such proposed
assignment, to accept an assignment of this Lease
upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions
which may be payable out of the consideration to be
paid by such person for the assignment of this
Lease. The adequate assurance to be provided
Landlord to assure the assignee's future
performance under the Lease shall include without
limitation; (d) the deposit of a sum equal to three
months' Rent to be held (without any allowance for
interest thereon) as security for performance
hereunder; (e) a written demonstration that the
assignee meets all reasonable financial and other
criteria of Landlord as did Tenant and its business
at the time of execution of this Lease, including
the production of the most recent audited financial
statement of the assignee prepared by a certified
public accountant; (f) the assignee's use of the
Premises will be in form acceptable to Landlord, as
to all matters identified in any applicable
provision of the Bankruptcy Code.
(v) Neither Tenant nor any trustee who may be appointed
in the event of the filing of a petition under the
Bankruptcy Code shall conduct or permit the conduct
of any "fire," "bankruptcy," "going out of
business" or auction sale in or from the Premises.
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ARTICLE XIV
DESTRUCTION AND RESTORATION
14.1. Subject to the terms and provisions of any security documents
evidencing any first mortgage financing encumbering the Land, Tenant covenants
and agrees that in case of damage or destruction of the improvements after the
Commencement Date by fire or otherwise, Tenant, at its sole cost and expense,
shall restore, repair, replace and rebuild the same as nearly as possible to
the condition that the same were in immediately prior to such damage or
destruction with such changes or alterations (made in conformity with Article
XX hereof) as may be reasonably acceptable to Landlord or required by law;
provided, however, that Tenant's obligations set forth in this Paragraph 14.1
shall be expressly conditioned upon the net amount of insurance proceeds being
made available to Tenant for the Restoration, and if such net amount is not
made available, Tenant shall have the right to terminate this Lease, Tenant
shall give Landlord written notice of such damage or destruction promptly after
the occurrence thereof and specify in such notice, in reasonable detail, the
extent thereof. Such restoration, repairs, replacements, rebuilding, changes
and alterations, including the cost of temporary repairs for the protection of
the Premises, or any portion thereof, pending completion thereof, are sometimes
hereinafter referred to as the "Restoration." The Restoration shall be carried
on and completed in accordance with the provisions and conditions of Paragraph
14.2 and Article XX hereof. If the net amount of the insurance proceeds (after
deduction of all costs, expenses and fees related to recovery of the insurance
proceeds) recovered by all named insureds and loss payees and made available to
Tenant is insufficient to complete the Restoration of such improvements
(exclusive of Tenant's personal property and trade fixtures which shall be
restored, repaired or rebuilt out of Tenant's separate funds if Tenant so
elects), Tenant shall, upon request of Landlord or Mortgagee, deposit with
Landlord or Mortgagee a cash deposit equal to the reasonable estimate of the
amount necessary to complete the Restoration of such improvements less the
amount of such insurance proceeds available.
14.2. All insurance monies recovered on account of such damage or
destruction, less the costs, if any, of such recovery, plus the amount of any
funds deposited by Tenant with Landlord or Mortgagee pursuant to Paragraph
14.1, shall be applied by Landlord to the payment of the costs of the
Restoration and shall be paid out from time to time as the Restoration
progresses upon the written request of Tenant, accompanied by a certificate of
the architect or a qualified professional engineer in charge of the Restoration
stating that as of the date of such certificate (a) the sum requested is justly
due to the contractors, subcontractors, materialmen, laborers, engineers,
architects, or persons, firms or corporations furnishing or supplying work,
labor, services or materials for such Restoration, or is justly required to
reimburse Tenant for any expenditures made by Tenant in connection with such
Restoration, and when added to all sums previously paid out by Landlord or
Mortgagee, does not exceed the value of the Restoration performed to the date
of such certificate by all or said parties; (b) except for the amount, if any,
stated in such certificates to be then due as of the date of the applicable
certificate for work, labor, services or materials, there is no outstanding
indebtedness known to the person signing such certificate, after due inquiry,
which is then due for work, labor, services or materials in connection with
such Restoration, which, if unpaid, might become the basis of a mechanic's lien
or similar lien with respect to the Restoration or a lien upon the Premises, or
any portion thereof; and (c) the costs, as estimated by the person signing such
certificate, of the completion of the Restoration required to be done
subsequent to the date of such certificate in order to complete the Restoration
do not exceed the sum of the remaining insurance moneys, plus the amount
deposited by Tenant, if any, remaining in the hands of Landlord or Mortgagee
after payment of the sum requested in such certificate.
Tenant shall furnish Landlord or Mortgagee at the time of any such
payment with partial or final (as the case may be) waivers of lien and such
other evidence that there are no unpaid bills with respect to any work, labor,
services or materials performed, furnished or supplied in connection with such
Restoration as Landlord or Mortgagee may reasonably request. Landlord or
Mortgagee shall not be required to pay out any insurance moneys where Tenant
fails to supply satisfactory evidence of the payment for work, labor, services
or materials performed, furnished or supplied, as aforesaid.
If the insurance moneys in the hands of Landlord or Mortgagee, and such
other sums, if any, deposited with Landlord or Mortgagee pursuant to Paragraph
14.1 hereof, shall be insufficient to pay the entire costs of the Restoration,
Tenant shall pay any deficiency to Landlord or Mortgagee within ten (10) days
after receipt of Landlord's or
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Mortgagee's written demand. Upon completion of the Restoration and payment in
full thereof by Tenant, Landlord or Mortgagee's shall, within a reasonable
period of time thereafter, turn over to Tenant any insurance moneys or other
moneys then remaining upon submission of proof reasonably satisfactory to
Landlord or Mortgagee that the Restoration has been paid for in full and the
damaged or destroyed Building and other improvements repaired, restored or
rebuilt as nearly as possible to the condition they were in immediately prior
to such damage or destruction, or with such changes or alterations as may be
made in conformity with Paragraph 14.1 and Article XX hereof.
14.3. No destruction of or damage to the Premises, or any portion
thereof, by fire, casualty or otherwise shall permit Tenant to surrender this
Lease or shall relieve Tenant from its liability to pay to Landlord the Base
Rent and Additional Rent payable under this Lease or from any of its other
obligations under this Lease.
14.4. The foregoing provisions of this Article XIV apply only to damage
or destruction of the improvements by fire, casualty or other cause occurring
after the Commencement Date (or any pre-Term occupancy of the Premises by
Tenant pursuant to Paragraph 1.2 above, if applicable). Any such damage or
destruction occurring prior to such time shall be restored, repaired, replaced
and rebuilt by Landlord and during such period of construction, Landlord shall
obtain and maintain the builder's risk insurance coverage referred to in
Paragraph 7.1 hereof. All moneys received by Landlord under its builder's risk
insurance coverage shall be applied by Landlord to complete the Restoration of
such damage or destruction and if such insurance proceeds are insufficient,
Landlord shall provide all additional funds necessary to complete the
Restoration of the Improvements.
ARTICLE XV
CONDEMNATION
15.1. If, during the Term, the entire Premises shall be taken as the
result of the exercise of the power of eminent domain or conveyed under threat
thereof (hereinafter referred to as the "Proceedings"), this Lease and all
right, title and interest of Tenant hereunder shall terminate on the earlier of
taking of possession by the condemning authority or the date of vesting of title
pursuant to such Proceedings, and Landlord shall be entitled to and shall
receive the total award made in such Proceedings (except for any separate award
relating to Tenant's trade fixtures or other personal property, which separate
award shall be paid to Tenant), Tenant hereby assigning any interest in such
award, damages, consequential damages and compensation to Landlord, and Tenant
hereby waiving any right Tenant has now or may have under present or future law
to receive any separate award of damages for its interest in the Premises, or
any portion thereof, or its interest in this Lease.
15.2. If, during the Term, a portion of the Premises shall be taken in
any such Proceeding and as a result thereof, (i) Tenant is deprived of access to
the loading dock facilities at the Premises; (ii) Tenant is deprived of ingress
to or egress from the Premises; or (iii) there shall no longer be an adequate
number of parking spaces available at the Premises to support the business of
Tenant, and as a result of any said items delineated in clauses (i) through
(iii) above, (A) the business of Tenant conducted in the portion of the Premises
taken cannot reasonably be carried on with substantially the same utility and
efficiency in the remainder of the Premises (or any substitute space as referred
to in clause (B) hereof), and (B) substantially similar space to the space so
taken cannot be constructed on the remaining portion of the Premises, Tenant
may, at its option, terminate this Lease as to the remainder of the Premises.
Additionally, if, during the Term, less than the entire Premises, but more than
ten percent (10%) of the floor area of the Building, or more than ten percent
(10%) of the area of the Land, shall be taken in any such Proceedings, this
Lease shall, upon the earlier of taking of possession by the condemning
authority or vesting of title in the Proceedings, terminate as to the portion
of the Premises so taken, and Tenant may, at its option, terminate this Lease
as to the remainder of the Premises if, but only if, (a) the business of Tenant
conducted in the portion of the Premises taken cannot reasonably be carried on
with substantially the same utility and efficiency in the remainder of the
Premises (or any substitute space securable by Landlord pursuant to clause (b)
hereof) and (b) Landlord cannot construct or secure substantially similar space
to the space so taken on the remainder of the Premises. Either such termination
as to the remainder of the Premises shall be effected by notice in writing
given not more than sixty (60) days after the date of vesting of title in such
Proceedings, and shall specify a date not more than sixty (60) days after the
giving of such notice as the date for such termination. Upon the date
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specified in such notice, the Term, and all right, title and interest of Tenant
hereunder shall cease and terminate. If this Lease is terminated as provided in
this Xxxxxxxxx 00.0, Xxxxxxxx shall be entitled to and shall receive the total
award made in such Proceedings (except for any separate award relating to
Tenant's trade fixtures or other personal property, which separate award shall
be paid to Tenant). Tenant hereby assigning any interest in such award, damages,
consequential damages and compensation to Landlord, and Tenant hereby waiving
any right Tenant has now or may have under present or future law to receive any
separate award of damages for its interest in the Premises, or any portion
thereof, or its interest in this Lease. The right of Tenant to terminate this
Lease as provided in this Paragraph 15.2 shall be exercisable only upon the
condition that Tenant is not then in default in the performance or any of the
terms, convenants or conditions of this Lease on its part to be performed, and
such termination upon Tenant's part shall become effective only upon compliance
by Tenant with all such terms, covenants and conditions to the date of such
termination; provided, however, that if Tenant is then in default in the
performance of any of the terms, covenants or conditions of this Lease but
Tenant is prosecuting the curing of said default in accordance with the
applicable provisions of this Lease, Tenant shall have the right, within thirty
(30) days after completion of said cure, to terminate this Lease in accordance
with this Paragraph 15.2. In the event that Tenant elects not to terminate this
Lease as to the remainder of the Premises, the rights and obligations of
Landlord and Tenant shall be governed by the provisions of Paragraph 15.3
hereof.
15.3. If a portion of, but not the entire Premises is taken in any
Proceeding, but this Lease remains in effect, this Lease shall, upon the
earlier of taking of possession by the condemning authority or vesting of title
in the Proceedings, terminate as to the parts so taken, and Tenant shall have
no claim or interest in the award, damages, consequential damages and
compensation, or any part thereof (except for any separate award relating to
Tenant trade fixtures or personal property, which separate award shall be
payable to Tenant). Landlord shall be entitled to and shall receive the total
award made in such Proceedings (except for any separate award relating to
Tenant's trade fixtures or other personal property, which separate award shall
be payable to Tenant), Tenant hereby assigning any interest in such award,
damages, consequential damages and compensation to Landlord and Tenant hereby
waiving, except as expressly provided herein, any right Tenant has now or may
have under present or future law to receive any separate award of damages for
its interest in the Premises, or any portion thereof, or its interest in this
Lease. If any portion of, but not the entire Premises is taken but this lease
remains in effect, Landlord shall, within two hundred seventy (270) days of its
receipt of the award made in such Proceeding, but subject to Force Majeure
Events, promptly restore that portion of the Improvements on the Premises not
so taken to a complete architectural and mechanical unit for the use and
occupancy of Tenant. In the event that the amount of the award that may be
received by Landlord in any such Proceedings for physical damage to the
Improvements as a result of such partial taking is insufficient to pay all costs
of such restoration work, such additional sum shall be funded by Landlord.
15.4. In any taking of the Premises or any portion thereof, whether or
not this Lease is terminated as provided herein, Tenant shall have only the
limited right, if then available by law to Tenant, to separately pursue and to
receive any award which may be made for damages to or condemnation of Tenant's
movable trade fixtures and equipment, or for Tenant's moving expenses or
interruption of Tenant's business, provided that no such award shall in any
way diminish the award payable to Landlord as a result of such taking as
provided herein.
15.5. In the event of any termination of this Lease, or any part
thereof, as a result of any such Proceedings, Tenant shall pay to Landlord all
Base Rent and all Additional Rent and other charges payable hereunder with
respect to that portion of the Premises so taken, apportioned to the date of
such termination.
15.6. If Tenant is either not entitled to, or does not elect to,
terminate this Lease in the event of a partial taking of the Building, the Base
Rent payable hereunder during the period from and after the earlier of the
taking of possession by the condemning authority and the date of vesting of
title in such Proceedings to the expiration or termination of this Lease shall
be reduced to a sum equal to the product of the Base Rent provided for herein
multiplied by a fraction, the numerator of which is the number of square feet in
the Building after such taking and after the same has been restored to a
complete architectural unit, and the denominator of which is the number of
square feet in the Building prior to such taking.
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15.7. If a portion of the Land (which does not include any portion of
the Building) is taken and Tenant is either not entitled to, or does not elect
to, terminate this Lease, the Base Rent payable hereunder during the period
from and after the earlier of the taking of possession by the condemning
authority and the date of vesting of title in such Proceedings to the
expiration or earlier termination of the Lease shall be reduced by an amount
equal to ten percent (10%) of the award made in the Proceedings for the taking
of said portion of the Land (net of any portion of said award allocated for
landscaping, paving and/or curbing work).
ARTICLE XVI
ASSIGNMENT AND SUBLETTING
16.1. Tenant shall not, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed (and the consent of
any holder of any first mortgage or trust deed encumbering the Premises, if
required pursuant to the terms thereof), in each instance, either prior or
subsequent to the Commencement Date, (a) assign, transfer, 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; (b) allow to exist or
occur any transfer of or lien upon this Lease or Tenant's interest herein by
operation of law; (c) sublet the Premises or any part thereof; or (d) permit the
use or occupancy of the Premises or any part thereof for any purpose not
provided for under Article IV or by anyone other than the Tenant and Tenant's
employees. In no event shall this Lease be assigned or assignable by voluntary
or involuntary bankruptcy proceedings or otherwise, and in no event shall this
Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency or reorganization proceedings, except as provided by law.
Notwithstanding anything contained within this Paragraph 16.1 to the contrary,
Tenant shall have the right, without the requirement of obtaining Landlord's
prior written consent thereto (but subject to the consent of the holder of any
mortgage or trust deed encumbering the Premises, if required pursuant to the
terms thereof, which consent shall not be unreasonably withheld or delayed), to
enter into an assignment of this Lease or a sublease of the Premises, or any
portion thereof, to the parent corporation of Tenant, any wholly owned
subsidiary corporation of Tenant, any corporation affiliated with Tenant, any
corporation succeeding to substantially all of the assets of Tenant as a result
of a consolidation or merger, or a corporation to which all or substantially all
of the assets of Tenant have been sold (collectively, an "Affiliate"); provided,
however, that the Affiliate shall assume in writing all of Tenant's obligations
hereunder. Notwithstanding any such assignment or sublease, Tenant shall not be
released from, and shall perform all, obligations imposed upon it hereunder to
the extent not performed by the Affiliate.
16.2. Without limiting the generality of the foregoing, Tenant
expressly covenants and agrees not to enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of the Premises
which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises.
16.3. Consent by Landlord to any assignment, subletting, use,
occupancy, transfer or encumbrance shall not operate to relieve Tenant from any
covenant or obligation hereunder except to the extent, if any, expressly
provided for in such consent, or be deemed to be a consent to or relieve Tenant
from obtaining Landlord's consent to any subsequent assignment, subletting, use,
occupancy, transfer or encumbrance by Tenant or anyone claiming by, through or
under Tenant. Tenant shall pay all reasonable fees charged by any Mortgagee
that are incurred in connection with any assignment, subletting, use,
occupancy, transfer or encumbrance made or requested by Tenant.
16.4. Landlord shall not be deemed to have unreasonably withheld its
consent to a proposed assignment of this Lease or to a proposed sublease of all
or part of the Premises if its consent is withheld because: (a) Tenant is then
in default hereunder; (b) any notice of termination of this Lease or
termination of Tenant's possession shall have been given under Article XIII
hereof; (c) either the portion of the Premises which Tenant proposes to
sublease, or the remaining portion of the Premises, or the means of ingress or
egress to either the portion of the Premises which Tenant proposes to sublease
or the remaining portion of the Premises, or the proposed use of the Premises or
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any portion thereof by the proposed assignee or subtenant will violate any
village, city, state or federal law, ordinance or regulation, including,
without limitation, any applicable building code or zoning ordinances; (d) the
proposed use of the Premises by the proposed assignee or subtenant does not
conform with the use set forth in Article IV; (e) in the reasonable judgment of
Landlord, the proposed assignee or subtenant is of a character or is engaged in
a business which would be deleterious to the reputation of the Premises or
Landlord or any surrounding property owned by Landlord, or the proposed
assignee or subtenant is not sufficiently financially responsible or
experienced to perform its obligations under the proposed assignment or
sublease; or (f) the proposed assignee or subtenant is already a tenant at the
Center, except if said tenant is expanding its operations at the Center and
Landlord is unable to provide said tenant with suitable space in accordance
with its expansion requirements, or is a governmental body (or subdivision or
agency thereof); provided, however, that the foregoing are merely examples of
reasons for which Landlord may withhold its consent and shall not be deemed
exclusive of any permitted reasons for reasonably withholding consent, whether
similar or dissimilar to the foregoing examples. Tenant agrees that all
advertising by Tenant or on Tenant's behalf with respect to the assignment of
this Lease or subletting of any part of the Premises must be approved in
writing by Landlord prior to publication.
16.5. If Tenant, having first obtained Landlord's consent to any
assignment or sublease as required hereunder, or if Tenant, as debtor or debtor
in possession, or a trustee in bankruptcy for Tenant pursuant to the Bankruptcy
Code, 11 U.S.C. 101 et seq., as amended from time to time (the "Bankruptcy
Code"), shall assign this Lease or sublet the Premises, or any part thereof, at
a rental or for other consideration in excess of the Rent or prorata portion
thereof due and payable by Tenant under this Lease, then Landlord and Tenant
shall each be entitled to receive fifty percent (50%) of any such excess rent
or other consideration (net of any costs and expenses incurred in connection
therewith), Tenant hereby agreeing to remit Landlord's share thereof to
Landlord within five (5) days of its receipt thereof.
16.6. If Tenant shall assign this Lease as permitted herein, the
assignee shall expressly assume all of the obligations of Tenant hereunder in a
written instrument satisfactory to Landlord which shall be furnished to
Landlord not later than fifteen (15) days prior to the effective date of the
assignment, together with a certified copy of an appropriate corporate
resolution (if the assignee is a corporation) authorizing such assumption. If
Tenant shall sublease the Premises as permitted herein, Tenant shall obtain and
furnish to Landlord, not later than fifteen (15) days prior to the effective
date of such sublease and in form reasonably satisfactory to Landlord, the
written agreement of such subtenant to the effect that the subtenant will
attorn to Landlord, at Landlord's option and written request, in the event this
Lease terminates before the expiration of the sublease.
16.7. Tenant shall provide Landlord with a written notice of intention
to sublease or assign. Such notice shall set forth the name of the proposed
subtenant or assignee and the proposed commencement date of the sublease term
or the effective date of assignment, as applicable. Such notice shall be
delivered at least thirty (30) days prior to the commencement date of the
sublease term or the effective date of assignment, as applicable, and shall
attach a copy of the proposed sublease or the assignment of lease, which shall
have been executed by the proposed sub-tenant or assignee. Landlord shall
respond to Tenant's request for consent within seven (7) business days of
Landlord's receipt of Tenant's written notice and the proposed sublease or
assignment of lease, which proposed sublease or assignment of lease shall have
been executed by the proposed sub-tenant or assignee.
16.8. In all instances other than with respect to an assignment or a
sublease to an Affiliate, Landlord shall have the right, to be exercised by
giving written notice to Tenant within seven (7) business days after Landlord's
receipt of Tenant's written notice, as required by Paragraph 16.7 above,
together with a copy of the proposed sublease or assignment of lease, partially
executed, as aforesaid, to recapture the space to be demised or assigned
pursuant thereto. If such recapture notice is delivered to Tenant, it shall
serve to irrevocably cancel and terminate this Lease with respect to the
proposed sublease space, or the Premises with respect to an assignment of
lease, in either case as of the proposed commencement date of the sublease term
or the proposed effective date of assignment, and as fully and completely as if
said date had been definitely fixed for the expiration date of the Term;
provided, however, that no termination of this Lease with respect to all or any
portion of the Premises shall become effective without the prior written
consent of each Mortgagee, which consent shall not be unreasonably withheld
or delayed.
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ARTICLE XVII
SUBORDINATION, NONDISTURBANCE,
NOTICE TO MORTGAGEE AND ATTORNMENT
17.1. This Lease is and shall be subject and subordinate to the lien of
any mortgage, deed of trust, security instrument or other document of like
nature, hereinafter referred to as "Mortgage", which now or at any time
hereafter may be placed upon the Premises, or any portion thereof or interest
therein, and to all present and future ground or underlying leases of the Land,
and to any replacements, renewals, amendments, modifications, extensions or
refinancing of any of the foregoing, and to each and every advance made under
any Mortgage, unless the holder of any Mortgage or the lessor under any such
ground or underlying lease (such holder or lessor being hereinafter referred to
as a "Mortgagee") requires in writing that this Lease be superior thereto.
Tenant agrees at any time hereafter, and from time to time on demand of
Landlord, to execute and deliver to Landlord any instruments, releases or other
documents that may be reasonably required to effect or confirm the
subordination or superiority of this Lease to the lien of any such Mortgage or
to any such ground or underlying lease. It is agreed, nevertheless, that so
long as Tenant is not in default in the payment of Base Rent and Additional
Rent and the performance and observance of all covenants, conditions,
provisions, terms and agreements to be performed and observed by Tenant under
this Lease, that such subordination, subordination agreement or other
instrument, release or document shall not interfere with, hinder or molest
Tenant's right to quiet enjoyment under this Lease, nor the right of Tenant to
continue to occupy the Premises and all portions thereof, and to conduct its
business thereon in accordance with the covenants, conditions, provisions,
terms and agreements of this Lease. The lien of any such Mortgage shall not
cover Tenant's trade fixtures or other personal property located in or on the
Premises. Upon execution of this Lease, Landlord shall deliver to Tenant a
non-disturbance agreement from each Mortgagee, in form and substance reasonably
satisfactory to Tenant, which provides that Tenant shall have the right to
remain in possession under this Lease and to enforce the option to purchase the
Premises provided for in Article XXV below even if Mortgagee forecloses its
Mortgage or accepts a deed in lieu of foreclosure. Before any additional
Mortgage is placed on the Premises, a similar non-disturbance agreement shall
be obtained from the Mortgagee thereunder and shall be delivered to Tenant.
17.2. In the event of any act or omission of Landlord constituting a
default by Landlord, Tenant agrees to give each Mortgagee, by registered or
certified mail, a copy of any notice or claim of default served upon 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 an assignment of Landlord's
interest in leases, or otherwise) of the address of such Mortgagee. Tenant
further agrees that if Landlord shall have failed to cure such default within
thirty (30) 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 thirty (30) days, and is
diligently pursuing the remedies or steps necessary to cure or correct such
default) then such 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 to
cure or correct such default) before Tenant may exercise any right or remedy
which it may have on account of any such default of Landlord; provided,
however, that the foregoing cure provisions shall not apply if Tenant is
deprived of the use and occupancy of the Premises. Nothing herein contained
shall be construed or interpreted as requiring any Mortgagee to remedy such act
or omission.
17.3. If any Mortgagee shall succeed to the rights of Landlord under
this Lease or to ownership of the Premises, whether through possession or
foreclosure or the delivery of a deed in lieu thereof, then upon the written
request of such Mortgagee, Tenant shall attorn to and recognize such Mortgagee
as Tenant's landlord under this Lease, and shall promptly execute and deliver
any instrument that such Mortgagee may reasonably request to evidence such
attornment. In the event of any other transfer of Landlord's interest
hereunder, upon the written request of the transferee and Landlord, Tenant
shall attorn to and recognize such transferee as Tenant's landlord under this
Lease and shall promptly execute and deliver any instrument that such
transferee and Landlord may reasonably request to evidence such attornment.
17.4. Notwithstanding anything contained herein to the contrary,
Landlord covenants and agrees that at no time during the initial sixty (60)
months of the Term shall the aggregate amount of the Mortgages encumbering the
Premises exceed the sum of
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(a) Eight Million Five Hundred Thousand Dollars ($8,500,000.00) plus (b) the
excess of (i) the costs of the Improved Space over (ii) the Construction
Allowance.
17.5. Tenant agrees to execute and deliver any amendment to this Lease
reasonably required by any Mortgagee provided such amendment does not materially
adversely affect Tenants rights and obligations hereunder.
ARTICLE XVIII
SIGNS
Tenant may erect one (1) sign on the landscaped area adjacent to the
Building, provided that such sign (i) does not violate applicable governmental
laws, ordinances, rules or regulations; (ii) does not violate any covenants,
conditions or restrictions affecting the Premises; (iii) is compatible with the
architecture of the Building and the landscaped area adjacent thereto and of
surrounding properties; and (iv) has received the written approval of Landlord,
which approval shall not be unreasonably withheld or delayed, and in connection
therewith and upon Tenant's request. Tenant shall be solely responsible for the
construction, installation and maintenance of such sign. Tenant shall not erect
or attach any sign to the exterior of the Building. Upon the expiration of the
Term or earlier termination thereof, Tenant shall, at its sole cost and
expense, remove the sign and repair any damage or injury to the Premises caused
thereby.
ARTICLE XIX
REPORTS BY TENANT
Upon the request of Landlord at any time after one hundred thirty five
(135) days following the expiration of the applicable fiscal year of Tenant,
Tenant shall deliver to Landlord (within fifteen (15) days after receipt of
written request) ten (10) copies of Tenant's annual report to stockholders for
such fiscal year.
ARTICLE XX
CHANGES AND ALTERATIONS
20.1. Tenant shall have the right from time to time to make such
changes and alterations, structural or otherwise, to the Building as Tenant
shall deem necessary or desirable in connection with the requirements of its
business, which changes and alterations shall be made in all cases subject to
the following conditions, which Tenant covenants to observe and perform:
(a) No change or alteration shall be undertaken until Tenant
shall have procured and paid for all required permits and authorizations
of the various governmental bodies and departments having jurisdiction
of the Premises.
(b) No change or alteration shall be undertaken until detailed
plans and specifications therefor prepared and approved in writing by a
licensed architect or licensed professional engineer selected and paid
for by Tenant, who shall supervise any such work (the "Alterations
Architect or Engineer"), and of each amendment and change thereto, have
been first submitted to and approved in writing by Landlord, which
approval shall not be unreasonably withheld or delayed (but such consent
may be withheld if the change or alteration would, in the reasonable
judgment of Landlord, impair the value or usefulness of the Land or
Improvements, or any substantial part thereof). Before commencement of
any change, alteration, restoration or construction (hereinafter
sometimes referred to as "Work") involving in the aggregate an estimated
cost of more than Fifty Thousand Dollars ($50,000.00) or which, in
Landlord's reasonable judgment, would materially alter the mechanical,
structural or electrical systems of the Improvements. Tenant shall, in
addition, obtain Landlord's prior written approval, which shall not be
unreasonably withheld or delayed, of all general contractors for the
Work. Notwithstanding anything to the contrary contained herein,
Landlord may require the prior written consent or approval of any
Mortgagee as a condition to granting any consent or approval which
Tenant is required to obtain from Landlord hereunder. Upon completion of
any Work, Tenant shall provide Landlord with such documents as Landlord
or any Mortgagee may
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reasonably require (including, without limitation, sworn statements,
affidavits and waivers of lien) evidencing payment for such work, and
"as-built" plans and specifications. Tenant shall pay all costs and
expenses reasonably incurred by any Mortgagee in reviewing materials
submitted to them for approval for any Work which involves, in the
aggregate, an estimated cost of more than Fifty Thousand Dollars
($50,000.00); provided, however, that said costs and expenses shall not
exceed Five Thousand Dollars ($5,000.00) per occurrence.
(c) Any change or alteration shall, when completed, be of such
character as not to reduce the value or utility of the Premises or the
Building to which such change or alteration is made below its value or
utility thereof immediately prior to such change or alteration, nor
shall such change or alteration reduce the area or cubic content of the
Building, nor change the character of the Premises or the Building as to
use without Landlord's express written consent.
(d) All Work done in connection with any change or alteration
shall be done in a good and workmanlike manner, with new, high-quality
materials, in compliance with all building and zoning laws of the
jurisdiction in which the Premises are situated and with all laws,
ordinances, orders, rules, regulations and requirements of all Federal,
state and municipal governments and appropriate departments,
commissions, boards and officers thereof and in accordance with the
orders, rules and regulations of the Board of Fire Underwriters where
the Premises are located, or any other body exercising similar
functions. The cost of any such change or alteration shall be paid in
cash by arrangements approved in advance by Landlord, which approval
shall not be unreasonably withheld or delayed, so that the Premises and
all portions thereof shall at all times be free of liens for labor and
materials supplied to the Premises or any portion thereof. The Work of
any change or alteration shall be prosecuted with reasonable dispatch,
delays due to strikes, lockouts, acts of God, inability to obtain labor
or materials, governmental restrictions or similar causes beyond the
control of Tenant excepted. Tenant shall obtain and maintain, at its
sole cost and expense, during the performance of the Work, workers'
compensation, comprehensive general liability, and adequacy of design
insurance satisfactory to Landlord, and the fire insurance with "all
risks" endorsement required by Paragraph 7.1 hereof shall be
supplemented with "builder's risk" insurance on a completed value form
or other comparable coverage on the Work. All such insurance shall be
with a company or companies authorized to do business in the State of
Illinois and reasonably satisfactory to Landlord, and all such
certificates of insurance evidencing such coverage shall be delivered to
Landlord endorsed "Premium Paid" by the company or agency issuing the
same, or with other evidence of payment of the premium therefor
reasonably satisfactory to Landlord.
(e) Intentionally Omitted
(f) No change, alteration, restoration or new construction shall
be in or connect the Improvements with any property, building or other
improvement located outside the boundaries of the Land, nor shall the
same obstruct or interfere with any easement.
ARTICLE XXI
SURRENDER
21.1. Surrender; Removal of Tenant's Alterations. Upon the termination
of this Lease, whether by forfeiture, lapse of time or otherwise, or upon
termination of Tenant's right to possession of the Premises, Tenant will at
once surrender and deliver up the Premises, together with all improvements
thereon, to Landlord, in good condition and repair, taking by eminent domain or
condemnation, reasonable wear and tear and loss, damage or destruction caused
by a casualty or condemnation pursuant to which this Lease is terminated in
accordance with the terms and conditions hereof excepted, but without any
so-called deferred maintenance that is necessary under the terms hereof in
order to maintain the quality standards prescribed herein; said improvements
shall include all plumbing, lighting, electrical, heating, cooling and
ventilating fixtures and equipment, and all alterations. Notwithstanding
anything contained in the immediately preceding sentence to the contrary,
concurrently with Tenant's written request for Landlord's consent to any items
of Work as required in Paragraph 20.1(b) above, Tenant shall have the right to
request Landlord's determination as to whether or not Landlord shall require
Tenant to remove said alterations,
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additions and improvements upon the termination of this Lease; Landlord's
written response thereto, which shall be delivered to Tenant within thirty (30)
days of Landlord's receipt of Tenant's written request, shall be binding upon
Landlord and Tenant. Except as expressly provided in the immediately preceding
sentence, all alterations, additions and improvements, temporary or permanent,
made in or upon the Premises by Tenant shall become Landlord's property and
shall remain upon the Premises on any such termination without compensation,
allowance or credit to Tenant: provided, however, that Landlord shall have the
right to require Tenant to remove any alterations, additions and improvements
and to restore the Premises to their condition prior to the making of such
alterations, additions and improvements, repairing any damage occasioned by
such removal and restoration if a determination as to removal or non-removal
has not been previously made by Landlord as provided herein. Said right shall
be exercised by Landlord's giving written notice thereof to Tenant on or before
thirty (30) days after any such termination. If Landlord requires removal of
any alterations, additions and improvements, and Tenant does not make such
removal in accordance with the foregoing at the time of such termination, or
promptly after Landlord's written request, whichever is later, Landlord may
remove the same (and repair any damage occasioned thereby), and dispose
thereof or, at its election, deliver the same to any other place of business of
Tenant or warehouse the same. Tenant shall pay the costs of such removal,
repair, delivery and warehousing to Landlord on demand, together with interest
thereon at the Maximum Rate of Interest. Tenant's obligations hereunder shall
survive the expiration or termination of this Lease.
21.2. Removal of Tenant's Property. Upon the termination of this
Lease, Tenant shall remove Tenant's personal property, trade fixtures and
equipment; provided, however, that Tenant shall repair any injury or damage to
the Premises which may result from such removal, and shall restore the Premises
to the same condition as prior to the installation thereof, ordinary wear and
tear excepted; provided, however, that nothing contained herein shall require
Tenant to repaint the Premises upon the expiration of the Term. If Tenant does
not remove Tenant's personal property, trade fixtures and equipment from the
Premises prior to the expiration or earlier termination of the Term, Landlord
may, at its option, remove the same (and repair any damage occasioned thereby)
and dispose thereof or deliver the same to any other place of business of
Tenant or warehouse the same, and Tenant shall pay the cost of such removal,
repair, delivery and warehousing to Landlord on demand, or Landlord may treat
such personal property as having been conveyed to Landlord with this Lease as a
xxxx of sale, without further payment or credit by Landlord to Tenant. Tenant's
obligations hereunder shall survive the expiration or termination of this Lease.
21.3. Holding Over. Tenant shall have no right to occupy the Premises
or any portion thereof after the expiration or earlier termination of this
Lease or of Tenant's right of possession of the Premises. In the event Tenant
or any party claiming by, through or under Tenant retains possession of the
Premises, or any portion thereof, after the expiration or earlier termination
of this Lease or of Tenant's right of possession of the Premises, Landlord may
exercise any and all remedies available to it at law or in equity to recover
possession of the Premises, and for any actual damages Landlord suffers in the
event Tenant's holding over results in a breach of any obligation of Landlord
to any successor tenant of the Premises or any contract vendee thereof. For
each and every month or partial month that Tenant or any party claiming by,
through or under Tenant remains in occupancy of all or any portion of the
Premises after the expiration or earlier termination of the Lease or Tenant's
right of possession of the Premises, Tenant shall pay Rent on the first day of
each month or portion thereof for which Tenant retains possession of the
Premises at a rate equal to one hundred fifty percent (150%) of the Rent
payable by Tenant hereunder during the last month of the Term or Renewal Term,
as applicable. The acceptance by Landlord of any lesser sum shall be construed
as a payment on account and not in satisfaction of damages for such
holding over.
ARTICLE XXII
ENVIRONMENTAL
22.1. Defined Terms:
(a) "Claim" shall mean and include any demand, cause of action,
proceeding or suit (i) for any and all damages, losses, injuries to person or
property, damages to natural resources, fines, penalties, interest, or
contribution; (ii) for
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the costs of site investigations, feasibility studies, information
requests, health or risk assessments or Response actions; or (iii) for
enforcing this Article XXII.
(b) "Environmental Law" shall mean and include all federal,
state and local statutes, ordinances, regulations and rules relating to
environmental quality, health, safety, contamination and clean-up,
including, without limitation, the Clean Air Act, 42 U.S.C. Section 7401
et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq., and the
Water Quality Act of 1987; the Federal Insecticide, Fungicide, and
Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 et seq.; the Marine
Protection, Research, and Sanctuaries Act, 33 U.S.C. Section 1401 et
seq.; the National Environmental Policy Act, 42 U.S.C. Section 4321 et
seq.; the Noise Control Act, 42 U.S.C. Section 4901 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901
et seq., as amended by the Hazardous and Solid Waste Amendments of 1984;
the Safe Drinking Water Act, 42 U.S.C. Section 3001 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., as amended by the Superfund
Amendments and Reauthorization Act, the Emergency Planning and Community
Right-to-Know Act, and Radon Gas and Indoor Air Quality Research Act;
the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et
seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq., and the
Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and
the Environmental Protection Act of Illinois ("IEPA"), Ill. Rev. Stat.
ch. 111 1/2, par. 1001 et seq., and state lien and superlien and
environmental clean-up statutes, with implementing regulations and
guidelines. Environmental Laws shall also include all state, regional,
county, municipal and other local laws, regulations and ordinances
insofar as they are equivalent or similar to the federal laws recited
above or purport to regulate Hazardous Materials.
(c) "Hazardous Materials" shall mean and include the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under CERCLA;
oil and petroleum products and natural gas, natural gas liquids,
liquefied natural gas and synthetic gas usable for fuel; pesticides
regulated under the FIFRA; asbestos and asbestos-containing materials,
PCBs and other substances regulated under TSCA; source material, special
nuclear material, byproduct material and any other radioactive materials
or radioactive wastes, however produced, regulated under the Atomic
Energy Act or the Nuclear Waste Policy Act; chemicals subject to the
OSHA Hazard Communication Standard, 29 C.F.R. Sec. 1910.1200 et seq.;
and industrial process and pollution control wastes whether or not
hazardous within the meaning of RCRA.
(d) "Manage" means to generate, manufacture, process, treat,
store, use, re-use, refine, recycle, reclaim, blend or burn for energy
recovery, incinerate, accumulate speculatively, transport, transfer,
dispose of or abandon Hazardous Materials.
(e) "Release" or "Released" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing of Hazardous
Materials into the environment, as "environment" is defined in CERCLA.
(f) "Response" or "Respond" shall mean action taken in
compliance with Environmental Laws to correct, remove, remediate,
cleanup, prevent, mitigate, monitor, evaluate, investigate, assess or
xxxxx the Release of a Hazardous Material.
22.2. During the Term (including any Renewal Term), Tenant shall (a) at
its sole cost and expense, comply with all Environmental Laws and permits
issued thereunder; (b) not conduct or authorize the Management of any Hazardous
Materials on the Premises, including installation of any underground storage
tanks, without prior written disclosure to and approval by Landlord, which
approval is hereby given for all Hazardous Materials used in the manufacture of
electronic and electrical products and related activities; (c) not take any
action that would subject the Premises to permit requirements under RCRA for
on-site disposal of Hazardous Materials; (d) not discharge Hazardous Materials
into common drains or sewers except in full compliance with Environmental Laws
and local sewer regulations relating to wastewater discharges; (e) not cause or
allow the Release of any Hazardous Materials on, to or from the Premises.
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except in full compliance with Environmental Laws and permits issued
thereunder; (1) at its sole cost and expense, arrange for the lawful
transportation and off-site disposal of all Hazardous Materials that it
generates; (g) at its sole cost and expense, secure, maintain, and comply with
all permits required by Environmental Laws; and (h) subject to Paragraph 22.9B.
below, not be responsible for any Hazardous Materials whose existence on the
Premises predates the date of this Lease.
22.3. During the Term (including any Renewal Term), Tenant shall
promptly provide Landlord with copies of all summons, citations, directives,
information inquiries or requests, notices of potential responsibility, notices
of violation or deficiency, orders or decrees, Claims, complaints,
investigations, judgments, letters, notices of environmental liens or response
actions in progress, and other communications from the United States
Environmental Protection Agency, Occupational Safety and Health
Administration, Illinois Environmental Protection Agency, or other federal,
state, or local agency or authority, or any other entity or individual,
concerning (a) any Release of a Hazardous Material on, to or from the Premises;
(b) the imposition of any lien on the Premises; or (c) any alleged violation of
or responsibility under Environmental Laws.
22.4. During the Term (including any Renewal Term), Tenant shall not
drill or install monitoring xxxxx, take soil borings or otherwise test, sample
or monitor soil, surface water or groundwater on or under the Premises without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. If Landlord provides such written consent, Tenant shall be
solely responsible for all costs and expenses of such activities, including but
not limited to, costs of installing, maintaining, securing, removing and
closing monitoring xxxxx, repairing any damage to the Premises, restoring the
Premises to their original condition, landscaping and screening well heads.
Responding to any Releases created or aggravated by such activities and
complying with such other reasonable conditions as Landlord may require in
writing pursuant to its consent. This Paragraph 22.4 shall not be construed to
require Tenant to perform any environmental studies or tests of the Premises,
other than as required by Environmental Laws or permits issued thereunder.
22.5. Landlord and Landlord's agents and employees shall have the right
to enter upon the Premises and/or conduct appropriate inspections or tests in
order to determine the condition of the Premises or Tenant's compliance with
Environmental Laws, provided that (a) such inspections and tests shall be
performed at the sole cost and expense of Landlord, unless an Event of Default
has occurred hereunder, in which event Tenant alone shall bear all reasonable
costs and expenses of such inspections and tests; (b) Landlord shall provide
Tenant with written notice not less than five (5) days prior to conducting such
inspections or tests; (c) such tests shall be performed at times reasonably
designated by Tenant, shall not unreasonably interfere with Tenant's business
operations and shall be in compliance with Tenant's reasonable security
procedures; and (d) Landlord shall promptly deliver copies of such test results
to Tenant. Tenant agrees that any documents or information furnished by
Landlord to Tenant under this Article XXII shall be confidential and shall not
be disclosed to any third party without the prior written consent of Landlord
unless required by law, this Lease or the terms of any documents evidencing or
securing Mortgagee's loan encumbering the Premises.
22.6. Upon written request by Landlord, Tenant shall provide Landlord
with lists of raw materials, chemicals, and fuels used by Tenant on the
Premises, with the results of environmental studies, reports and tests,
including those commissioned prior to or during the Term (including any Renewal
Term), with transportation and disposal contracts for Hazardous Materials, with
any permits issued under Environmental Laws and with any other relevant or
applicable documents pertaining to the condition of the Premises or
demonstrating that Tenant complies with this Article XXII and all Environmental
Laws relating to the Premises. Landord agrees that any documents or information
furnished by Tenant to Landlord under this Article XXII shall be confidential
and shall not be disclosed to any third party without the prior written consent
of Tenant unless required by law, this Lease or the terms of any documents
evidencing or securing Mortgagee's loan encumbering the Premises. This
Paragraph 22.6 shall not be construed to require Tenant to perform any
environmental studies or tests of the Premises, other than as required by
Environmental Laws or permits issued thereunder.
22.7. If Tenant's Management of Hazardous Materials at the Premises (a)
results in or causes a Release which is not in compliance with Environmental
Laws or permits issued thereunder; (b) gives rise to liability, a Claim, or a
Response Action under common law or any Environmental Law or permit issued
thereunder; (c) causes a significant
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public health effect; or (d) creates a nuisance, Tenant shall, in any and all
such occurrences, and at its sole cost and expense, promptly take all
applicable action in Response.
22.8. Tenant shall indemnify, defend and hold harmless Landlord, its
beneficiary, managing agents and Mortgagees from all Claims arising from or
attributable to any breach by Tenant of any of its warranties, representations
or covenants in this Article XXII. Tenant's obligations hereunder shall survive
the expiration or earlier termination of this Lease.
22.9. (a) Landlord represents, warrants and covenants to Tenant
that, to the best knowledge of Landlord, (i) before the date of this
Lease, no Hazardous Materials were Released on, to or from the Premises
in violation of Environmental Laws; (ii) the Premises as of the date of
this Lease, do not contain any Hazardous Materials in violation of any
Environmental Laws; and (iii) the Premises were not used before the
date of this Lease as a landfill, a garbage or waste dump, or a
cemetery or burial ground. Landlord further represents, warrants and
covenants that it has no knowledge of any material facts which could
adversely affect the value or Tenant's proposed use of the Premises.
As used herein, the knowledge of Landlord means the knowledge of
Landlord. Landlord's beneficiary or any of the general partners of
Landlord's beneficiary. Landlord further represents, warrants and
covenants that its knowledge is based solely on the report commissioned
by Landlord from Precision Energy Systems, Inc. dated December 20,
1988 and that certain letter from Converse Environmental East dated
November 3, 1988 (collectively the "Report"), as provided to Tenant.
Landlord represents, warrants and covenants that it knows of no
environmental conditions or Hazardous Materials existing on the
Premises as of the date of this Lease, other than those contained
within the Report, or of any facts which would render the Report
unsound, inaccurate or incomplete.
(b) Landlord shall indemnify, defend and hold harmless
Tenant from all Claims (a) arising from or attributable to any breach
by Landlord of any of its representations, warranties or covenants in
this Article XXII, and (b) relating to any Hazardous Material whose
existence on the Premises predates the date of this Lease and which
was defined under Environmental Laws as a Hazardous Material on or
before the date of this Lease: provided, however, that the obligation
for indemnification under this Paragraph 22.9(b) shall not apply to
any Hazardous Material whose existence is disclosed in written
environmental reports and studies (including the Report) provided to or
commissioned by Tenant before the date of this Lease or whose existence
Tenant had actual knowledge of on or before the date of this Lease.
Landlord's obligation for indemnification under this Paragraph 22.9(b)
shall survive expiration or earlier termination of this Lease, but
shall terminate upon Tenant's exercise of its option to purchase the
Premises as provided herein. The general partners of Landlord's
beneficiary shall execute and deliver to Tenant a guarantee of
Landlord's obligations pursuant to this Paragraph 22.9(b) within ten
(10) days from the date of this Lease, which guarantee shall be in form
and content reasonably satisfactory to Tenant.
(c) In the event Tenant does not exercise its option to
purchase the Premises, Landlord shall indemnify, defend and hold
harmless Tenant form all Claims relating to any Hazardous Materials
Released on, to or from the Premises after the expiration or earlier
termination of this Lease by persons other than Tenant or its
employees, agents, contractors or subcontractors. Landlord's obligation
for indemnification under this Paragraph 22.9(c) shall survive
expiration or earlier termination of this Lease. The general partners
of Landlord's beneficiary shall execute and deliver to Tenant a
guarantee of Landlord's obligations pursuant to this Paragraph 22.9(c)
within ten (10) days from the date of this Lease, which guarantee shall
be in form and content reasonably satisfactory to Tenant.
(d) Landlord further represents, warrants and covenants
that its construction activities on the Premises during the Term
(including any Renewal Term) shall be conducted in compliance with
Environmental Laws and that Landlord shall promptly Respond to any
Release by Landlord or its employees, agents, contractors or
subcontractors that is not in compliance with Environmental Laws.
22.10. In the event Tenant exercises its option to purchase the
Premise, Tenant shall indemnify, defend and hold harmless Landlord, its
beneficiary, managing
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agents and Mortgagees from all Claims relating to any Hazardous Materials
Released onto or from the Premises (a) before the commencement of the Term
whose existence was disclosed in written environmental reports and studies
(including the Report) provided to or commissioned by Tenant before the date of
this Lease, or whose existence Tenant had actual knowledge of on or before the
date of this Lease, or (b) after the commencement of the Term (including any
Renewal Term) except for matters for which Landlord is responsible pursuant to
Paragraphs 22.9 (a) and (b).
ARTICLE XXIII
CANCELLATION OPTION
23.1. Tenant shall have the option to cancel and terminate this Lease
as of the last day of the sixtieth (60th) complete calendar month of the
original Term; provided, however, that in order to effectively exercise said
option. Tenant shall (a) deliver written notice thereof to Landlord on or prior
to the last day of the fifty first (51st) complete calendar month of the
original Term; and (b) remit to Landlord on or before the first day of the
sixtieth (60) complete calendar month of the original Term, concurrently with
Tenant's remittance of the installment of Monthly Base Rent and any other sums
due and payable by Tenant on said date, the sum of Seven Hundred Fifty Thousand
Dollars ($750,000.00), and (ii) the unamortized portion of excess Costs payable
by Tenant pursuant to Paragraph 2.1, whereupon this Lease shall terminate.
23.2. Tenant may only exercise said option to cancel and terminate, and
an exercise thereof shall only be effective if, at the time of Tenant's
exercise of the option and as of the proposed termination date, this Lease is
in full force and effect and no event which, with the passage of time or giving
of notice, or both, would constitute an Event of Default, is then outstanding;
provided, however, that Tenant shall have the right to exercise said option if
Tenant is prosecuting the curing of a default in accordance with the applicable
provisions of this Lease.
ARTICLE XXIV
RENEWAL OPTION
24.1. Subject to the provisions hereinafter set forth in this Article
XXIV, Landlord hereby grants Tenant the option to extend the Term on the same
terms, conditions and provisions as contained herein, except as otherwise
provided herein, for two (2) periods of five (5) years each (the "First Renewal
Term" and the "Second Renewal Term", as applicable; collectively, the "Renewal
Terms"). The First Renewal Term shall commence on the day following the last
day of the Term and shall expire on the last day of the sixtieth (60th)
complete calendar month thereafter. The Second Renewal Term shall commence on
the day following the last day of the First Renewal Term and shall expire on
the last day of the sixtieth (60th) complete calendar month thereafter.
24.2. Said options to renew shall be exercisable by written notice from
Tenant to Landlord of Tenant's election to exercise same, given not later than
twelve (12) months prior to the expiration of the original Term or the First
Renewal Term, as applicable. If Tenant fails to exercise its option to renew
for the First Renewal Term in a timely manner, Tenant's rights under this
Article XXIV shall cease and terminate and its rights to occupy and possess the
Premises shall expire on the last day of the original Term; if Tenant fails to
exercise its option to renew for the Second Renewal Term in a timely manner,
Tenant's rights under this Article XXIV shall cease and terminate and its right
to occupy and possess the Premises shall expire on the last day of the First
Renewal Term.
24.3. Tenant may only exercise said options to renew, and an exercise
thereof shall only be effective if, at the time of Tenant's exercise of the
option and on the commencement date of the applicable Renewal Term, this Lease
is in full force and effect and no event which, with the passage of time or
giving of notice, or both, would constitute an Event of Default, is then
outstanding; provided, however, that Tenant shall have the right to exercise
said option if Tenant is prosecuting the curing of a default in accordance with
the applicable provisions of this Lease.
24.4. (a) Base Rent during the Renewal Terms shall be equal to the
greater of (i) the Base Rent in effect during the month immediately preceding
the
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commencement of such Renewal Term and (ii) 95% of the Market Rent in
effect on the commencement date of such Renewal Term. For the purposes
of this Article XXIV, the term "Market Rent" shall mean the average
rental rate being offered by landlords for triple net leases of property
of similar size and utility to the Premises in the general vicinity of
the Premises.
(b) The determination of Base Rent for the Renewal Terms, as
provided herein, shall be effectuated by Landlord, who shall notify
Tenant of same as soon as commercially possible after the Market Rent is
available. The determination shall be subject to verification by Tenant.
24.5. Tenant shall not have any option to extend the term of this Lease
beyond the expiration of the Second Renewal Term.
24.6. All references to the "Term" of this Lease shall be deemed to
include the Renewal Terms, where the context so requires.
ARTICLE XXV
PURCHASE OPTION
25.1. In consideration of the mutual covenants contained herein,
Landlord hereby grants to Tenant the option to purchase the Premises (except
such portion as may theretofore have been taken by eminent domain; the
Premises, less the portion so taken, shall, for purposes of this Article XXV,
be referred to as the "Premises") described on Exhibit A attached hereto,
including the Land, the Building, the Improved Space and all alterations,
additions and improvements, fixtures and equipment as of the last day of the
sixtieth (60th) complete calendar month of the original Term in accordance with
the terms and provisions set forth in this Article XXV. Said option to purchase
shall be exercisable by written notice from Tenant to Landlord of Tenant's
election to exercise same, given not later than the last day of the fifty first
(51st) complete calendar month of the original Term. If Tenant fails to
exercise said option to purchase in a timely manner, Tenant's rights under this
Article XXV shall cease and terminate.
25.2. Tenant may only exercise said option to purchase, and the
exercise thereof shall only be effective if, at the time of Tenant's exercise
of the option and on the closing date of the purchase and sale of the Premises,
this Lease is in full force and effect and no event which, with the passage of
time or the giving of notice, or both, would constitute an Event of Default, is
then outstanding; provided, however, that Tenant shall have the right to
exercise said option if Tenant is prosecuting the curing of a default in
accordance with the applicable provisions of this Lease.
25.3. The purchase price of the Premises shall be Eleven Million Seven
Hundred Fifty Seven Thousand Three Hundred Eighteen Dollars ($11,757,318.00).
Tenant shall have the option to acquire Landlord's interest in the Premises
subject to any Mortgage in existence at such time, subject to the prior written
consent of, and in accordance with any requirements of, the respective
Mortgagees, in which event Tenant shall receive a credit against the purchase
price payable at closing in the amount of the outstanding principal balance and
any accrued and unpaid interest under such Mortgage as of the date of closing.
25.4. Except as provided in Paragraph 25.6 or Paragraph 25.7(b) below
for termination of the option to purchase, Tenant's notice of exercise of the
option to purchase the Premises shall constitute the binding and irrevocable
commitment of Tenant to purchase the Premises and Landlord shall thereby become
irrevocably bound to sell the Premises to Tenant.
25.5. The closing shall take place at the offices of the Title Company
(as defined herein) or at any other location mutually agreeable to the parties.
The sale shall be closed through an escrow with the Title Company, and the
parties shall cause standard deed and money escrow instructions to be issued to
the Title Company, with such additional terms as are necessary to consummate
the contemplated sale and which are reasonably satisfactory to Landlord and
Tenant. As a condition precedent to Tenant's acquisition of the Premises,
Tenant shall satisfy in full any and all monetary obligations then due and
owing by Tenant to landlord hereunder.
25.6. The purchase price shall be payable to Landlord at the closing by
wire transfer of federal funds, upon delivery of the deed to Tenant (or its
designee or
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assignee) and performance of Landlord's other obligations set forth herein. The
conveyance of the Premises shall be made by a recordable Trustee's Deed which
shall convey good and marketable title thereto in fee simple to Tenant (or its
designee or assignee), subject only to (i) covenants, conditions, building
lines and restrictions of record; (ii) private, public and utility easements
and roads and highways, if any; (iii) general real estate taxes and special
assessments; (iv) liens and encumbrances existing on the date hereof or caused,
created or consented to by Tenant or made pursuant to the provisions of this
Lease; (v) liens and encumbrances not caused or created by Landlord which are
reasonably acceptable to Tenant; (vi) intentionally omitted; (vii) any on-going
condemnation proceedings or takings by governmental authority; provided,
however, that if the ultimate resolution thereof would entitle Tenant to
terminate this Lease pursuant to Article XV above, Tenant shall have the right
to rescind its election to purchase the Premises upon written notice thereof to
Landlord within fifteen (15) days of its receipt of notification of said
proceedings, in which event Tenant's rights under this Lease shall be governed
by the terms and provisions of this Lease other than this Article XXV; (viii)
intentionally omitted; or (ix) liens, encumbrances and other matters of title
over which the title insurer is willing to insure at standard rates
(collectively, the "Permitted Title Exceptions").
25.7. If the option is exercised by Tenant as aforesaid, Landlord shall
deliver to Tenant, not later than forty five (45) days after Landlord's receipt
of Tenant's written notice as required in Paragraph 25.1 above, as evidence of
Landlord's good and marketable title in and to the Premises, a commitment for
an owner's title insurance policy (the "Title Commitment") in the aggregate
amount of the purchase price from a title insurance company (the "Title
Company") reasonably acceptable to Tenant which insures against marketability
of title, together with an extended coverage endorsement, the cost of said
endorsement to be paid for by Tenant. The Title Commitment shall name Tenant as
the proposed insured, subject only to (i) the Permitted Title Exceptions; and
(ii) other title exceptions pertaining to liens or encumbrances of a definite
or ascertainable amount which may be removed at the closing by the payment of
money and which Landlord shall so remove or cause to be removed concurrently
with the closing.
(a) At least ten (10) days, but not more than twenty (20) days,
prior to the anticipated closing date, Landlord shall deliver to Tenant
(i) a later dated commitment for an owner's title insurance policy (the
"Date Down Commitment"), in the form required of the original Title
Commitment, effective as of a date not earlier than thirty (30) days
prior to the anticipated closing date, in the form required for the
original Title Commitment, and (ii) a survey of the Premises, dated not
more than thirty (30) days prior to the date of delivery thereof,
complying with Illinois land survey standards, prepared by a licensed
Illinois land surveyor in accordance with the survey standards of the
American Land Title Association, showing the location of all
improvements on the Premises, showing all improvements thereon to be
within the lot lines, showing no encroachment of buildings or other
improvements onto or from adjoining properties, showing compliance with
all set back lines and showing non-interference with all easements of
record.
(b) If the Date Down Commitment, or the recorded documents
referred to therein, disclose defects ("title defects") other than the
exceptions set forth in clauses (i) and (ii) of Paragraph 25.8 above, or
if the Survey discloses matters that render the title unmarketable or
encroachments onto or from adjoining properties or onto easements or set
back lines ("survey defects"), Landlord shall have thirty (30) days
from date of delivery of the Date Down Commitment to cure such title
and/or survey defects or to have the Title Company commit to insure
against loss or damage that may be occasioned by such title and/or
survey defects, and if this is not done, Tenant may terminate the option
to purchase or may elect, upon written notice thereof to Landlord with
ten (10) days after the expiration of the thirty (30) days period, to
take title as it then is with the right to deduct from the purchase
price liens or encumbrances of a definite or ascertainable amount. If
Tenant does not so elect, Tenant's exercise of the option to purchase
shall become null and void and be terminated without further action of
the parties.
(c) At the time of closing, Landlord shall deliver (or cause to
be delivered) to Tenant or Tenant's designee, the following:
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(i) A duly executed, acknowledged, recordable Trustee's Deed
conveying good and marketable title to the Premises to
Tenant.
(ii) A completed Real Estate Transfer Declaration in the form
required by the Illinois Real Estate Transfer Tax Act and
any declaration required to meet other requirements as
established by any county and local ordinance with regard
to a transfer or transaction tax.
(iii) An ALTA Owner's title insurance policy issued by the
Title Company which insures marketability of the title to
the Premises, with extended coverage, in the full amount
of the Purchase Price, subject only to the Permitted
Exceptions.
(iv) ALTA Loan and Extended Coverage Statement.
(v) A Closing Statement in form and substance reasonably
satisfactory to Tenant itemizing the respective credits
and debits to each of the parties.
(vi) An affidavit of compliance with Section 1445 of the U.S.
Internal Revenue Code.
(vii) A "Gap" Undertaking to the Title Company.
(viii) All other documents which may reasonably be required in
order to consummate the sale contemplated by this Lease.
(d) At the time of closing, Tenant shall deliver (or cause to be
delivered) to Landlord, the following documents;
(i) ALTA Loan and Extended Coverage Statement.
(ii) The purchase price by federal funds wire transfer.
(iii) The Real Estate Transfer Declarations.
(iv) The Closing Statement.
(v) A "Gap" Undertaking to the Title Company.
(vi) All other documents which may reasonably be required in
order to consummate the sale contemplated by this Lease.
(e) Landlord shall pay the title insurance policy premium, the
cost of the survey, all transfer taxes, documentary stamps and similar
taxes, excepting only any transfer tax which may be imposed by the
Village of Bloomingdale, one-half of the escrow fees, fees for recording
releases of mortgages and other documents to clear Landlord's title and
the cost of delivering title to the Premises to Tenant in the condition
required by this Article XXV.
(f) Tenant shall pay the cost of any endorsements which Tenant
requests be attached to the title insurance policy (including the cost
of any extended coverage endorsement), any transfer tax which may be
imposed by the Village of Bloomingdale, one-half of the escrow fees and
fees for recording and filing all documents other than those specified
in paragraph (e) above.
(g) Landlord and Tenant shall each be solely responsible for the
fees of their respective attorneys' accountants, consultants and other
professionals.
25.8. Upon conveyance of title and payment of purchase price, as
provided in this Article XXV, this Lease and Tenant's obligations as Tenant
hereunder to Landlord, except obligations which shall have theretofore accrued
and remain unsatisfied, shall
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terminate and Landlord's obligations as Landlord hereunder to Tenant, except
obligations which shall have theretofore accrued and remain unsatisfied, shall
terminate.
25.9. Since, pursuant to the terms and conditions of this Lease, Tenant
is responsible for all Taxes and expenses applicable to the Premises other than
debt service due and payable in accordance with the Mortgage, if any, no
prorations are required or appropriate except for Rent payable hereunder (or
debt service due and payable under any Mortgage. If Tenant purchases the
Premises subject thereto), and which shall be prorated between Landlord and
Tenant as of the date of closing. Additionally, Tenant shall pay to Landlord
at closing all Additional Rent, exclusive of any components thereof which are
paid to third parties by Tenant, that has accrued in accordance with this Lease
and remains unpaid.
25.10. It is understood that the Premises shall be sold in "AS IS"
condition and any and all warranties relating thereto shall be and are hereby
disclaimed by Landlord.
25.11. During the period that the option to purchase remains in effect,
Landlord shall not convey title to any party other than Tenant unless such
conveyance shall be made expressly subject to this option to purchase.
ARTICLE XXVI
INTENTIONALLY DELETED
ARTICLE XXVII
MISCELLANEOUS PROVISIONS
27.1. Upon prior notice to Tenant, Tenant agrees to permit Landlord and
its authorized representatives to enter upon the Premises at all reasonable
times during ordinary business hours, subject to Tenant's security requirements,
for the purpose of inspecting the same and making any necessary repairs to
comply with any laws, ordinances, rules, regulations or requirements of any
public body, or the Board of Fire Underwriters, or any similar body, or pursuant
to Article XII of this Lease. Nothing herein contained shall imply any duty upon
the part of Landlord to do any such work which, under any provision of this
Lease, Tenant may be required to perform and the performance thereof by Landlord
shall not constitute a waiver of Tenant's default in failing to perform the
same. Landlord may, during the progress of any work, keep and store upon the
Premises all necessary materials, tools and equipment, but Landlord shall not
interfere with Tenant's business or Tenant's use, occupancy, possession or
enjoyment of the Premises. Landlord shall not in any event be liable for
inconvenience, annoyance, disturbance, loss of business or other damage to
Tenant (other than as a result of Landlord's negligence or willful misconduct)
by reason of making repairs or the performance of bringing material, supplies
and equipment into, upon or through the Premises during the course thereof, and
the obligations of Tenant under this Lease shall not be thereby affected in any
manner whatsoever.
27.2. Landlord is hereby given the right during usual business hours at
any time during the Term, upon prior notice to Tenant, to enter upon the
Premises, subject to Tenant's security regulations, and to exhibit the same for
the purpose of mortgaging or selling the same. During the final nine (9) months
of the Term, First Renewal Term or Second Renewal Term, as applicable, or when
Tenant is in default, Landlord shall be entitled to display on the Premises, in
such manner as to not unreasonably interfere with Tenant's business, signs
indicating that the Premises are for rent or sale and suitably identifying
Landlord or its agent.
27.3. (a) To the fullest extent allowed by law, Tenant shall at all
times indemnify, defend and hold Landlord, its beneficiaries, managing
agents and Mortgagees harmless from and against any and all claims by or
on behalf of any person or persons, firm or firms, corporation or
corporations, arising from the conduct or management, or from any work
or things whatsoever done upon the Premises (except to the extent
arising out of Landlord's, its beneficiary's or its managing agent's
willful misconduct or negligence), and will further indemnify, defend
and hold Landlord, its beneficiaries, managing agents and Mortgagees
harmless against and from any and all claims arising during the Term
from any condition of the Improvements, except for conditions which are
the responsibility of Landlord, or the Premises, or of any passageways
or space therein, or
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arising from any act or neglect of Tenant, its agents, servants,
employees, licensees, or contractors, or arising from any accident,
injury or damage whatsoever caused to any person, firm or corporation
occurring during the Term upon the Premises, and from and against all
costs, reasonable attorneys' fees, expenses and liabilities incurred in
or about any such claim or action or proceeding brought thereon; and in
case any action or proceeding be brought against Landlord by reason of
any such claim, Tenant, at Landlord's option, covenants to defend such
action or proceeding. Tenant's obligations under this Paragraph 27.3
shall be insured by contractual liability endorsement on Tenant's
policies of insurance required under the provisions of Paragraph 7.2
hereof. Tenant's obligations hereunder shall survive the expiration or
termination of this Lease.
(b) To the fullest extent allowed by law, Landlord shall at all
times indemnify, defend and hold Tenant harmless against and from any
and all claims by and on behalf of any person or persons, firm or firms,
corporation or corporations, for or on account of injury to person,
including death, or damage to property but only if and to the extent
proximately caused by the willful misconduct or negligence of Landlord
or its managing agent, and from and against all costs, reasonable
attorneys' fees, expenses and liabilities incurred in and about any such
claim or action or proceedings brought thereon, and in case any action
or proceeding be brought against Tenant by reason of any such claim,
Landlord, at Tenants option, covenants to defend such action or
proceeding.
27.4. All notices, demands and requests which may be or are required to
be given, demanded or requested by either party to the other shall be in
writing. All notices, demands and requests by Landlord to Tenant shall be
delivered personally or shall be sent by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to:
Corporate Real Estate Department
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
or at such other place as Tenant may from time to time designate by written
notice to Landlord.
All notices, demands and requests by Tenant to Landlord shall be
delivered personally or shall be sent by United States registered or
certified mail, return receipt requested, postage prepaid, addressed to
Landlord in care of:
Hiffman Xxxxxxx Xxxxxxxx, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
With a copy to: Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
or at such other place as Landlord from time to time may designate by written
notice to Tenant. Notice, demands and requests which shall be served upon
Landlord by Tenant, or upon Tenant by Landlord, in the manner aforesaid, shall
be deemed to be sufficiently served or given for all purposes hereunder at the
time such notice, demand or request shall be personally delivered, or if
mailed, within three (3) business days from the date same is deposited with the
United States Postal Service, as evidenced by the postal receipt.
27.5. Landlord covenants and agrees that Tenant, upon paying the Rent
and upon observing and keeping the covenants, agreements and conditions of this
Lease on its part to be kept, observed and performed, shall lawfully and
quietly hold, occupy and enjoy the Premises (subject to the provisions of this
Lease) during the Term without hindrance or molestation by Landlord or by any
person or persons claiming by, through, against or under Landlord.
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27.6. The term "Landlord", as used in this Lease so far as covenants or
obligations on the part of Landlord are concerned shall be limited to mean and
include only the owner or owners at the time in question of the fee of the
Premises, and in the event of any transfer or transfers or conveyance where the
successor to Landlord is bound by the terms of this Lease, the then grantor
shall be automatically freed and relieved from and after the date of such
transfer or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed (provided, however, that no conveyance or transfer
shall relieve or free the then grantor of any liability accrued or existing
prior to or at the time of the transfer or conveyance), provided that any funds
in the hands of such Landlord or the then grantor at the time of such transfer
in which Tenant has an interest shall be turned over to the grantee, and any
amount then due and payable to Tenant by Landlord or the then grantor under any
provision of this Lease shall be paid to Tenant, it being intended hereby that
the covenants and obligations contained in this Lease on the part of
Landlord shall, subject to the aforesaid, be binding on Landlord, its
successors and assigns, only during and in respect of their respective
successive periods of ownership. Nothing herein contained shall be construed as
relieving, or shall relieve, Landlord of its obligations under Article II
above. Landlord covenants that no conveyance, transfer, assignment by or other
change of interest of Landlord in the Premises, whether recorded or unrecorded,
shall be binding upon Tenant unless and until Tenant shall be actually notified
thereof, and, other than as provided elsewhere in this Lease, in no event shall
such conveyance, transfer, assignment or other change of interest affect this
Lease or any renewal or purchase option of Tenant hereunder or any liability of
Landlord accrued prior to or existing at the time of such conveyance, transfer,
assignment or other change of interest.
27.7. Tenant and Landlord (to the extent applicable to Landlord) shall,
each without charge at any time and from time to time, within twenty (20) days
after written request by the other party, certify by written instrument, duly
executed, acknowledged and delivered to any Mortgagee, assignee of a Mortgagee,
proposed Mortgagee, or to any purchaser or proposed purchaser, or to any other
person dealing with Landlord, Tenant or the Premises;
(a) That this Lease is unmodified and in full force and effect,
(or, if there have been modifications, that the same is in full force
and effect, as modified, and stating the modifications);
(b) The dates to which the Base Rent or Additional Rent have
been paid in advance;
(c) Whether or not there are then existing any breaches or
defaults by such party or the other party known by such party under
any of the covenants, conditions, provisions, terms or agreements of
this Lease, and specifying such breach or default, if any, or any
setoffs or defenses against the enforcement of any covenant, condition,
provision, term or agreement of this Lease upon the part of Landlord
or Tenant, as the case may be, to be performed or complied with (and,
if so, specifying the same and the steps being taken to remedy the
same);
(d) Whether or not Tenant has made any advancements to or on
behalf of Landlord for which it has the right to deduct from, or offset
against, future Rent payments;
(e) All Improvements have been completed by Landlord in
accordance with the Final Plans, if such be the fact;
(f) Tenant has accepted the Premises and is in full and
complete possession thereof, if such be the fact; and
(g) Such other factual statements which are within Tenant's
knowledge as Landlord or any Mortgagee may reasonably request.
It is the intention of the parties hereto that any statement delivered pursuant
to this Paragraph 27.7 may be relied upon by any of such parties dealing with
Landlord, Tenant or the Premises.
27.8. Tenant shall, upon the execution and delivery hereof by Tenant,
without charge to Landlord, and from time to time thereafter within thirty (30)
days after
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written request by Landlord, deliver to Landlord, in connection with any
proposed sale or mortgage of the Premises, the following instruments and
documents:
(a) Certificate of Good Standing in the State of Delaware and
in the State of Illinois issued by the appropriate state authority and
bearing a current date.
(b) Intentionally Omitted.
(c) An opinion of Tenant's counsel that this Lease has been
duly authorized and is valid and binding upon Tenant.
(d) Intentionally Omitted.
27.9. Concurrently with the commencement of the Term, the parties
hereto agree to execute and deliver to each other a memorandum of lease, in
recordable form, setting forth the following:
(a) The date of this Lease:
(b) The parties to this Lease;
(c) The Term of this Lease, including the Renewal Terms;
(d) The legal description of the Premises;
(e) Tenant's option to purchase the Premises; and
(f) Such other matters reasonably requested by Landlord or
Tenant to be stated therein.
27.10. If any covenant, condition, provision, term or agreement of
this Lease shall, to any extent, be held invalid or unenforceable, the
remaining covenants, conditions, provisions, terms and agreements of this
Lease shall not be affected thereby, but each covenant, condition, provision,
term or agreement of this Lease shall be valid and in force to the fullest
extent permitted by law; provided, however, that if, as a result of any such
invalidity or unenforceability, Tenant is deprived of any material rights,
benefits, privileges or options hereunder, Landlord and Tenant shall, in good
faith, attempt to negotiate a reasonable resolution with respect to said
deprivation. This Lease shall be construed and be enforceable in accordance
with the laws of the State of Illinois.
27.11. The covenants and agreements herein contained shall be binding
upon and inure to the benefit of Landlord, its successors and assigns, and
Tenant and its permitted successors and permitted assigns.
27.12. The caption of each article of this Lease is for convenience and
reference only, and in no way defines, limits or describes the scope or intent
of such article or of this Lease.
27.13. This Lease does not create the relationship of principal and
agent, or of partnership, joint venture, or of any association or relationship
between Landlord and Tenant, the sole relationship between Landlord and Tenant
being that of landlord and tenant.
27.14. This Lease contains the entire agreement between the parties and
shall not be modified or amended in any manner except by an instrument in
writing executed by duly authorized representatives of the parties hereto.
27.15. There shall be no merger of this Lease or the leasehold estate
created by this Lease with any other estate or interest in the Premises by
reason of the fact that the same person, firm, corporation or other entity may
acquire, hold or own directly or indirectly, (a) this Lease or the leasehold
interest created by this Lease or any interest therein, and (b) any such other
estate or interest in the Premises or any portion thereof. No such merger shall
occur unless and until all persons, firms, corporations or other entities
having an interest (including a security interest) in (1) this Lease or the
leashold estate created hereby, and (2) any such other estate or interest in
the Premises or any portion thereof, shall join in a written instrument
expressly effecting such merger and shall duly record the same.
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27.16. No surrender to Landlord of this Lease or of the Premises, or
any portion thereof, or any interest therein, prior to the expiration of the
Term (or any Renewal Term, if applicable) or other termination shall be valid
or effective unless agreed to and accepted in writing by Landlord and consented
to in writing by all Mortgagees, and no act or omission by Landlord or any
representative or agent of Landlord, other than such a written acceptance by
landlord consented to by all Mortgagees, as aforesaid, shall constitute an
acceptance of any such surrender.
27.17. All obligations of Landlord and Tenant, monetary or otherwise
(together with interest on monetary obligations at the Maximum Rate of interest
accruing prior to the expiration of the Term shall survive the expiration or
earlier termination of this Lease.
27.18. Time is of the essence of this Lease, and all provisions herein
relating thereto shall be strictly construed.
27.19. Each party represents and warrants to the other that it has
directly dealt with and only with Mesirow Realty Brokerage and Hiffman Xxxxxxx
Xxxxxxxx, Inc., Chicago, Illinois (whose commissions shall be paid by Landlord
pursuant to separate agreement) as brokers in connection with this Lease and
agrees to indemnify and hold the other party, its beneficiaries, managing
agents and Mortgagees harmless from all losses, damages and liabilities,
claims, liens, costs and expenses, including, without limitation, reasonable
attorneys' fees, arising from any claims or demands of any other broker or
brokers, salespersons or finders for any commission or fee alleged to be due
such other broker or brokers, salespersons or finders claiming to have dealt
with the indemnifying party in connection with this Lease.
27.20. To the extent either party indemnifies and agrees to defend the
other under the terms of this Lease, the indemnifying party shall have the
right to select counsel to undertake such defense, which counsel shall be
reasonably acceptable to the indemnified party.
27.21. As used herein, the term "Maximum Rate of Interest" shall mean
the annual rate of interest equal to the rate of interest announced from time
to time by The First National Bank of Chicago, Chicago, Illinois, as its
"Corporate Base Rate", plus two percent (2%) (or any successor rate of interest
selected by Landlord), unless a lesser rate shall then be the maximum rate of
interest permissible by law, in which event said lesser rate shall be charged.
27.22. As used herein, the term "Force Majeure Event" shall mean any
event whereby the party hereto who is obligated or required to perform any act
shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reasons of acts of God, strikes, lockouts, labor
troubles, inability to procure construction materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war or other
reasons of a like nature not the fault of the party delayed in performing work
or doing acts required under the terms of this Lease; and in any such event,
the performance of such act shall be excused for the period of delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
27.23. In the event of litigation between Landlord and Tenant to
enforce any provision of this Lease, the unsuccessful party shall pay to the
successful party all costs and expenses incurred in connection with said
litigation, including reasonable attorneys' fees.
27.24. If Landlord shall breach or otherwise fail to perform any term,
covenant, condition or agreement contained in this Lease and if such breach or
failure to perform shall continue for a period of thirty (30) days after the
receipt by Landlord of written notice thereof from Tenant, or in the event such
a breach or failure to perform cannot, with due diligence and in good faith, be
cured within thirty (30) days, and Landlord fails to proceed promptly and with
due diligence and in good faith to commence the cure of same within said thirty
(30) day period and thereafter to prosecute the curing of such default with due
diligence and in good faith, Tenant shall have the right to (a) xxx Landlord
for damages, and (b) pursue any other remedy available at law or in equity.
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ARTICLE XXVIII
EXCULPATORY PROVISIONS
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, environmental indemnities, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, environmental indemnities, covenants,
undertakings and agreements of such Landlord are nevertheless each and every one
of them made and intended, not as personal representations, warranties,
environmental indemnities, 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 Premises to the terms of this Lease and for no other
purpose whatsoever, and in case of default hereunder by such Landlord (or
default through, under or by any of its beneficiaries, or any of the agents or
representatives of said beneficiaries), Tenant shall look solely to the
interests of such landlord in the Premises; and this Lease is executed and
delivered by Landlord not in its own right, but solely in the exercise of the
powers conferred upon it as Trustee; that no Landlord which is a land trust or
any of its beneficiaries 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 trust estate or the rents, issues and
profits arising therefrom, 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, individually or personally, or against any of its
beneficiaries or any of the beneficiaries under any land trust which may become
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the owner of the Premises or any portion thereof or interest therein on account
of this Lease or on account of any representation, warranty, covenant,
undertaking or agreement of Landlord in this Lease contained, either express or
implied, all such personal liability, if any, begin expressly waived and
released by Tenant and by all persons claiming by, through or under Tenant.
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to
be duly executed as of the day and year first above written.
TENANT: LANDLORD:
MOTOROLA, INC., AMERICAN NATIONAL BANK AND
a Delaware corporation TRUST COMPANY OF CHICAGO, not
individually, solely as Trustee as
aforesaid
By: /s/ By: /s/
--------------------------- --------------------------------
Its: Senior Vice President Its: Second Vice President
and General Manager
ATTEST:
By: /s/
---------------------------
Its: Assistant Secretary
(Corporate Seal)
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease (the "First Amendment") is made and
entered into as of this 30th day of June, 1990 by and between American
National Bank and Trust Company of Chicago, not individually, but solely as
Trustee under Trust Agreement dated December 28, 1988 and known as Trust No.
J06990-07 ("Landlord"), and Motorola Microwave, a Delaware partnership (the
"Tenant"), successor in interest to Motorola, Inc., a Delaware corporation
("Motorola"):
W I T N E S S E T H:
WHEREAS, Landlord and Motorola entered into that certain Lease dated as
of October 27, 1989 (the "Lease") whereby Landlord agreed to lease to Tenant,
and Tenant agreed to lease from Landlord, that certain parcel of real property
legally described in the Lease (the "Land");
WHEREAS, Motorola assigned, transferred and conveyed to Tenant its
leasehold estate created by and under the Lease pursuant to that certain
Assignment and Assumption Agreement dated December 31, 1989 between Motorola
and Tenant, and consented to by Landlord; and
WHEREAS, Landlord is obtaining a permanent loan (the "Loan") from
Hartford Life Insurance Company, a Connecticut corporation ("Hartford") to be
secured, in part, by a mortgage on the Land;
WHEREAS, pursuant to Section 17.5 of the Lease, Tenant agreed to
execute and deliver any amendment to the Lease reasonably required by
any mortgagee of the Land;
WHEREAS, as a condition to making the Loan, Hartford desires certain
changes to the Lease; and
WHEREAS, Landlord and Tenant desire to enter into this First Amendment
in order to set forth the agreements and understandings of Landlord and Tenant
as set forth hereinbelow.
NOW, THEREFORE, in consideration of the covenants and agreements of the
parties herein set forth and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. The foregoing preambles are hereby incorporated herein by this
reference as it set forth fully herein. All initially capitalized terms not
specifically defined herein shall have the meanings ascribed to said terms in
the Lease.
2. In the tenth (10th) and eleventh (11th) lines of Section 14.1 of
the Lease, the words "if any" are inserted between the words "proceeds" and
"being".
3. In the eleventh (11th) line of Section 14.1 of the Lease, the words
"by Landlord or any Mortgagee" are inserted between the words "available" and
"to".
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4. In the eighth (8th) line of Section 27.24 of the Lease the
following language is inserted between the words "right" and "to":
"subject to its having complied with, and the rights of any
Mortgagee under, Section 17.2 hereof.".
5. This First Amendment may be executed in one or more counterparts
and all such counterparts shall constitute one First Amendment that is binding
on the parties hereto, notwithstanding that all of said parties are not
signatories to the original or same counterpart.
6. Except as specifically amended and modified by this First
Amendment, the Lease shall remain in full force and effect. In the event of any
conflict between the terms of the Lease and the terms of this First Amendment,
the terms of this First Amendment shall govern and control.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, not
individually but solely as Trustee, as
aforesaid
By: /s/
------------------------------------
Name:
-----------------------------
Its:
-----------------------------
TENANT:
MOTOROLA MICROWAVE,
a Delaware partnership
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Its: Vice President and Assistant
General Manager
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SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (the "Second Amendment") is made and
entered into as of this 30th day of June, 1994 by and between American National
Bank and Trust Company of Chicago, not personally, but solely as Trustee under
Trust Agreement dated December 28, 1988 and known as Trust No. 106990-07
("Landlord") and California Microwave-Telecom Transmission Systems, Inc., a
Delaware corporation ("Tenant"), the successor in interest to Telesciences
Transmissions Systems, Inc., a Delaware corporation ("Telesciences"), which
such entity was the successor in interest to Motorola Microwave, a Delaware
partnership ("Motorola Microwave"), which such entity was the successor in
interest to Motorola, Inc., a Delaware corporation ("Motorola").
W I T N E S S E T H:
WHEREAS, Landlord and Motorola, as tenant, entered into that certain
Lease (the "Lease") dated as of October 27, 1989, pursuant to which Landlord
agreed to lease to Motorola and Motorola agreed to lease from Landlord, that
certain parcel of real property consisting of approximately 7.72 acres and
commonly known as 000 Xxxxxxxxx Xxxxx in Xxxxxxxxx Corporate Center,
Bloomingdale, Illinois, as legally described in the Lease and as improved with
a building containing 110,063 square feet of office, light manufacturing,
assembly and warehouse space (the real estate and improvements are collectively
referred to as the "Premises"); and
WHEREAS, Motorola assigned, transferred and conveyed to Motorola
Microwave all of Motorola's leasehold estate created by and under the Lease
pursuant to that certain Assignment and Assumption Agreement dated December 31,
1989 by and between Motorola and Motorola Microwave and consented to by
Landlord; and
WHEREAS, the Lease was amended by that certain First Amendment to Lease
dated as of June 30, 1990 by and between Motorola Microwave and Landlord and
was also modified on August 15, 1990 by that certain letter agreement by such
parties (the Lease, as amended, is collectively referred to as the "Lease"); and
WHEREAS, Telesciences, as successor in interest to Motorola Microwave,
assigned, transferred and conveyed to CMI Sub, Inc., a Delaware corporation
("CMI Sub") all of Telesciences' leasehold estate created by and under the
Lease pursuant to that certain Assignment and Assumption of Lease Agreement
dated October 13, 1993 by and between Telesciences and CMI Sub and consented to
by Landlord; and
WHEREAS, Tenant, as successor in interest to CMI Sub, and Landlord
desire to extend to term of the Lease and to otherwise modify the Lease upon
the terms, provisions and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration the receipt,
adequacy and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. The recitals set forth above are hereby incorporated herein by this
reference as if set forth below in full. Unless otherwise defined
herein, all capitalized terms used in this Second Amendment shall
have the same meanings as are ascribed thereto in the Lease.
2. The first grammatical paragraph of Section 1.2 of the Lease is
hereby deleted in its entirety and the following paragraph is
inserted in lieu thereof:
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"1.2. The term hereof (the "Term") shall commence on July 1, 1994
(the "Commencement Date") and shall expire on June 30, 2009 (the
"Expiration Date")."
3. Article II (Construction of Improvements) of this Lease is hereby
deleted in its entirety.
4. Section 3.1 of the Lease is hereby amended to provide for the
payment of Base Rent and Monthly Base Rent during the Term (as
revised in Paragraph 2 hereinabove of this Second Amendment) of this
Lease and, accordingly, Section 3.1 of the lease is hereby deleted in
its entirety and the following is inserted in lieu thereof:
"3.1. Tenant covenants to pay annual base rent ("Base Rent") during
the Term in equal monthly installments ("Monthly Base Rent") in the
amounts set forth below, in advance on the first day of each and
every calendar month during the Term, and at the same rate prorated
for fractions of a month if the Commencement Date occurs on any day
other than the first day of a calendar month or the Term ends on any
day other than the last day of a calendar month. Base Rent and
Monthly Base Rent shall be payable in the following amounts:
MONTHLY BASE RENT
MONTH BASE RENT (ANNUAL)
----- --------- ---------
1 through 60................ $71,082.35 $ 852,988.25
61 through 120.............. 81,630.06 979,560.70
121 through 180............. 93,553.55 1,122,642.60
Such Base Rent and Monthly Base Rent shall be the only Rent due under
this Lease except for the Additional Rent due thereunder as provided
at Section 3.2(a) of the Lease."
5. Section 23.1 of the Lease is hereby deleted in its entirety and the
following is inserted in lieu thereof:
"23.1. In the event, and only in the event, that Tenant is relocating
its business operations to a location other than the States of
Illinois, Indiana or Wisconsin, Tenant shall have the option to
cancel and terminate this Lease as of the last day of the seventy
second (72nd) complete calendar month of the Term (the "Lease
Cancellation Date") provided, however, that in order to effectively
exercise said option, Tenant shall (a) deliver written notice thereof
to Landlord on or prior to two hundred seventy (270) days prior to
the Lease Cancellation Date, and (b) (i) remit to Landlord on or
before the first day of the seventy second (72nd) complete calendar
month of the Term, concurrently with Tenant's remittance of the
installment of Monthly Base Rent and any other sums due and payable
by Tenant on said date, the sum of Seven Hundred Twenty Five Thousand
Dollars ($725,000.00). In the event that Tenant has not elected to
exercise its option to cause the Lease to be cancelled as of the
Lease Cancellation Date, Tenant shall have the option to cancel and
terminate the Lease as of the last day of the one hundred thirty
second (132nd) complete calendar month of the Term (the "Second Lease
Cancellation Date") provided, however, that in order to effectively
exercise said option, Tenant shall (a) deliver written notice thereof
to Landlord on or prior to two hundred seventy (270) days prior to
the Second Lease Cancellation Date, and (b) remit to Landlord on or
before the first day of the one hundred thirty second (132nd)
complete calendar month of the Term, concurrently with Tenant's
remittance of the installment of Monthly Base Rent and any other sums
due and
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51
payable by Tenant on said date, the sum of Three Hundred Seventy Five
Thousand Dollars ($375,000). Upon payment of the amounts required as
set forth in this Paragraph 23.1, the Lease shall terminate effective
as of the applicable Lease Cancellation Date or Second Lease
Cancellation Date."
6. Section 24.2 of this Lease is hereby amended by deleting the
reference to "twelve (12)" in the second line thereof and inserting
in lieu thereof "nine (9)".
7. Section 24.4 of this Lease is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"24.4. Base Rent for the First Renewal Term shall be equal to
$1,265,724.50 annually (Base Monthly Rent shall be equal to
$105,477.04). Base Rent for the Second Renewal Term shall be equal to
$1,469,341 annually (Base Monthly Rent shall be equal to
$122,445.08)."
8. Article XXV (Purchase Option) of this Lease is hereby deleted in
its entirety.
9. Section 27.4 of this Lease is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"27.4. All notices, demands and requests which may be or are required
to be given, demanded or requested by either party to the other shall
be in writing. All notices, demands and requests by Landlord to
Tenant shall be delivered personally or shall be sent by a nationally
recognized overnight courier service or by United States registered
or certified mail, return receipt requested, postage prepaid,
addressed to:
California Mircrowave-Telecom Transmission
Systems, Inc.
c/o California Microwave, Inc.
000 Xxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
or at such other place as Tenant may from time to time designate by
written notice to Landlord.
All notices, demands and requests by Tenant to Landlord shall be
delivered personally or shall be sent by a nationally recognized
overnight courier service or by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to
Landlord in care of:
Hiffman Xxxxxxx Associates, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx and
Mr. E. Xxxxxx Xxxxxxx, Jr.
With a copy to: The Guardian Life Insurance Company of America
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx XxXxxxxxxx
Real Estate Investment Department
and Xxxxx X. Xxxxxxxxxx, Esq.
Legal Department
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52
or at such other place as Landlord from time to time may designate by
written notice to Tenant. Notices, demands and requests which shall be
served upon Landlord by Tenant, or upon Tenant by Landlord, in the
manner aforesaid, shall be deemed to be sufficiently served or given for
all purposes hereunder at the time such notice, demand or request shall
be personally delivered or delivered by such nationally recognized
courier service, or if mailed, within three (3) business days from the
date same is deposited with the United States Postal Service, as
evidenced by the postal receipt."
10. Tenant and Landlord hereby acknowledge and agree that Tenant's
obligation to pay Rent during the Term and, if applicable, the First
Renewal Term and the Second Renewal Term of this Lease and all other
payments to be made by Tenant under this Lease, as well as the full
performance and observance by Tenant of all the other terms, covenants,
conditions and agreements thereof to be performed and observed by Tenant
shall be absolutely and unconditionally guaranteed by California
Microwave, Inc., a Delaware corporation, as evidenced by the Guaranty
executed by California Microwave, Inc. of even date herewith, an
original counterpart of which is attached hereto and made a part hereof.
11. The Lease is hereby amended by adding the following Article XXIX, Right
of First Refusal, to read as follows:
"Article XXIX
Right of First Refusal
In the event at any time during the Term or the First Renewal Term
or the Second Renewal Term of this Lease Landlord receives and is
prepared to accept a bona fide third party offer (the "Offer") to
purchase the Premises and any other improvements located thereon,
Landlord shall immediately deliver a copy of the Offer to Tenant
("Offeree") at the address set forth in this Lease, or at such other
location designated in writing by Offeree to Landlord. Offeree shall
have the right, exercisable within (a) ten (10) business days
following Offeree's receipt of the Offer to purchase the Premises
identified in the Offer upon the express terms and conditions set
forth therein. In the event Landlord is not notified of Offeree's
exercise of the right described herein upon the expiration of the
applicable time period specified above, or in the event Offeree
notifies Landlord that it does not intend to exercise its rights
hereunder with respect to the Offer, Offeree shall be deemed to have
waived any rights hereunder with respect to the Offer and Landlord
shall thereafter have the right to consummate the sale of the
Premises pursuant to the Offer. In the event Offeree has waived or
is deemed to have waived its rights hereunder but the transaction
contemplated in the Offer is not consummated by Landlord and the
third party offeror, Offeree's rights hereunder shall be reinstated
and shall apply to any subsequent bona fide third party offer
received by Landlord thereafter. Notwithstanding the foregoing,
Tenant acknowledges and agrees that the terms and provisions of this
Article XXIX shall become immediately null and void in the event any
Mortgagee acquires possession of the Premises in conjunction with
proceedings instituted to foreclose its lien, the Premises are sold
to a third party at foreclosure sale, or the Premises are conveyed
to any Mortgagee pursuant to a deed in lieu of foreclosure or
comparable conveyance."
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12. In the event of any conflicts between the terms and provisions of the
Lease and the terms and provisions of this Second Amendment, the terms and
provisions of this Second Amendment shall govern and control.
13. This Second Amendment may be executed in one or more counterparts and all
such counterparts shall constitute one and the same Second Amendment
binding on all parties hereto, notwithstanding that all of said parties
are not signatories to the original or same counterpart.
14. Except as expressly amended or modified herein, all of the terms,
conditions, agreements, covenants, representations, warranties and
indemnities contained in the Lease shall remain in full force and effect.
15. This Second Amendment is binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
16. 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 Landlord, while in form purporting to be the
representations, warranties, covenants, undertakings and agreements of
Landlord, are nevertheless each and every one of them made and intended,
not as personal representations, warranties, covenants, undertakings and
agreements by Landlord or for the purpose or with the intention of binding
Landlord personally, but are made and intended for the purpose only of
subjecting Landlord's interest in the Premises to the terms of the Lease
and this Second Amendment and for no other purpose whatsoever, and in
case of default hereunder by Landlord (or default through, under or by any
of its beneficiaries, or agents and representatives of said
beneficiaries), Tenant shall look solely to the interests of Landlord in
the Premises; that this Second Amendment is executed and delivered by
Landlord not in its own right, but solely in the exercise of the powers
conferred upon it as Trustee; that neither Landlord nor any of Landlord's
beneficiaries 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 Landlord to
sequester the trust estate or the rents, issues and profits arising
therefrom or the proceeds arising from any sale or other disposition
thereof; and that no personal liability or personal responsibility of any
sort is assumed by, nor shall at any time be asserted or enforceable
against, said Landlord, individually or personally, but only as Trustee
under the provisions of the Trust Agreement establishing the Trust, or
against any of the beneficiaries under the Trust Agreement establishing
the Trust on account of the Lease and this Second Amendment or on account
of any representation, warranty, covenant, undertaking or agreement of
Landlord in the Lease or in this Second Amendment 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed as of the date first written above.
LANDLORD:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, not
personally but solely as Trustee as aforesaid
By: /s/
------------------------------------------
Vice President
ATTEST:
/s/
--------------------------
Assistant Secretary
TENANT:
CALIFORNIA MICROWAVE -
TELECOM TRANSMISSION
SYSTEMS, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice-President
ATTEST:
/s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
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GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
American National Bank and Trust Company of Chicago, as Trustee under Trust
Agreement dated December 28, 1988 and known as Trust Number 106990-07, as
Landlord, to enter into the foregoing Lease dated October 27, 1989, as amended
by that certain First Amendment to Lease dated as of June 30, 1990, that
certain letter agreement dated August 15, 1990, and by that certain Second
Amendment to Lease dated as of June 30, 1994 (collectively the "Lease") with
Motorola, Inc., a Delaware corporation, and which such tenant's interest in the
Lease is now held by California Microwave-Telecom Transmission Systems, Inc., a
Delaware corporation, as Tenant, the undersigned hereby absolutely and
unconditionally guarantees to Landlord, its successors and assigns, (i) the
prompt and full payment of all Rent payable throughout the Term of the Lease,
as well as the First Renewal Term and Second Renewal Term, as applicable,
including, without limitation, each installment of Monthly Base Rent and
Additional Rent, and all other payments to be made by Tenant under the Lease,
and the full performance and observance by Tenant of all the other terms,
covenants, conditions and agreements therein provided to be performed and
observed by Tenant, for which the undersigned shall be jointly and severally
liable with Tenant, and (ii) the prompt and full payment of any and all costs
associated with any reletting of the Premises necessitated by an Event of
Default of Tenant under the Lease including, without limitation, any leasing
commissions, tenant improvement costs and reasonable attorneys' fees and
expenses incurred as a result thereof.
The undersigned hereby waives any notice of nonpayment, nonperformance
or nonobservance, or proof of notice or demand. The undersigned agrees that
in the event of an Event of Default by Tenant under the Lease, Landlord may
proceed against the undersigned before, after or simultaneously with
proceedings against Tenant.
This Guaranty shall not be terminated, affected or impaired in any
manner by reason of: (1) the assertion by Landlord against Tenant of any of the
rights or remedies reserved to Landlord pursuant to the provisions of the
Lease; (2) the relief of Tenant from any of Tenant's obligations under the
Lease by operation of law or otherwise; provided, however, that Guarantor shall
have the benefit of and may assert any defenses available to Tenant; (3) the
commencement of summary or other proceedings against Tenant; (4) the failure of
Landlord to enforce any of its rights against Tenant; or (5) the granting by
Landlord of any extensions of time to Tenant; and the undersigned hereby waives
all defenses of suretyship. The undersigned further covenants and agrees that:
(a) the undersigned shall be bound by all the provisions, terms, conditions,
restrictions and limitation contained in the Lease which are to be observed or
performed by Tenant thereunder, the same as if the undersigned were named as
Tenant; and (b) this Guaranty shall be absolute and unconditional and shall be
in full force and effect, notwithstanding any amendment, addition, assignment,
sublease, transfer, renewal, extension or other modification of the Lease,
whether or not the undersigned shall have knowledge or have been notified of or
agreed or consented thereto.
The failure of Landlord to insist in any one or more instances upon the
strict performance or observance of any of the terms, provisions or covenants
of the Lease or to exercise any right therein contained shall not be construed
or deemed to be a waiver or relinquishment for the future of such term,
provision, covenant or right, but the same shall continue and remain in full
force and effect.
If Landlord at any time is compelled to take any action, by legal
proceedings or otherwise, to enforce or compel compliance with the terms of
this Guaranty, the undersigned shall, in addition to any other rights or
remedies to which Landlord may be entitled hereunder or as a matter of law or
in equity, pay to Landlord all costs, including reasonable attorneys' fees,
incurred or expended by Landlord in connection therewith.
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In the event the Lease is disaffirmed by a trustee in Bankruptcy for
Tenant, the undersigned agrees that it shall, at the election of Landlord,
either assume the Lease and perform all of the covenants, terms and conditions
of Tenant thereunder or enter into a new lease, which said new lease shall be
in form and substance identical to the Lease.
The undersigned hereby agrees, as a material inducement to Landlord to
enter into the Lease with Tenant, to furnish to Landlord, immediately upon
written demand by Landlord, copies of its most recent annual reports and 10Q
reports.
This Guaranty shall be construed and interpreted in accordance with and
shall be governed by the laws of the State of Illinois, except to the extent
preempted by United States federal law. Landlord may bring any action or
proceeding to enforce or compel compliance with the terms of this Guaranty or
with respect to any matter arising out of this Guaranty in any court of
competent jurisdiction. If Landlord commences such an action in a court located
in the County of Xxxx, State of Illinois or the United States District Court for
the Eastern Division of the Northern District of Illinois, the undersigned
hereby agrees that it will submit and does hereby irrevocably submit to the
personal jurisdiction of such courts and will not attempt to have such action
dismissed, abated or transferred on the ground of forum non conveniens or
similar grounds; provided, however, that nothing contained herein shall prohibit
the undersigned from seeking, by appropriate motion, to remove an action brought
in a Illinois state court to the United States District Court for the Eastern
Division of the Northern District of Illinois. If such action is so removed,
however, the undersigned shall not seek to transfer such action to any other
district, nor shall the undersigned seek to transfer to any other district any
action which Landlord originally commences in such federal court. Any action or
proceeding brought by the undersigned arising out of this Guaranty shall be
brought solely in a court of competent jurisdiction located in the County of
Xxxx, State of Illinois or in the United States District for the Eastern
Division of the Northern District of Illinois.
The undersigned agrees that a summons and complaint or equivalent
documents commencing an action or proceeding in any court shall be validly and
properly served and shall confer personal jurisdiction over the undersigned if
served to Xxxxxx X. Xxxxxxxx or Xxxxxxx X. Xxxxxx, each of whom the undersigned
hereby designates and appoints as the undersigned's authorized agent to accept
and acknowledge on its behalf service of any and all process which may be served
in such action or proceeding in any such court. The undersigned shall be sent,
by certified mail to the undersigned's notice address as provided herein, a copy
of such summons and complaint at the time of service upon either of such agents;
provided, however, that any such copy shall be sent solely as a courtesy to the
undersigned and the undersigned's failure to receive such copy shall in no way
affect the validity and propriety of the service made on the undersigned through
such agent. The undersigned waives any objection which it may now or hereafter
have to venue of any such action or proceeding and waives any right to seek
removal of any action or proceeding commenced in accordance herewith. The
undersigned agrees that if it desires to make any change in its agents for
service, such change shall be subject to Landlord's written approval, which
approval shall not be unreasonably withheld. The undersigned's notice address is
as follows:
California Microwave, Inc.
000 Xxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
All duties and obligations of the undersigned pursuant to this Guaranty
shall be binding upon the successors and assigns of the undersigned. For
purposes of this Guaranty, the word "Tenant" shall also include the successors
and assigns of Tenant.
All capitalized terms used in this Guaranty shall have the same
meanings as are given to such terms in the Lease, unless otherwise specifically
defined in this Guaranty.
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed as of this 30th day of June, 1994.
CALIFORNIA MICROWAVE, INC., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Its: Vice President
ATTEST: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: XXXXXXX XXXXXX
Its: President, Wireless Products Group
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