LEASE
_______________________
ZFO Properties, LLC, a Delaware limited liability company,
Landlord
and
ACE HARDWARE CORPORATION, a Delaware corporation,
Tenant
TABLE OF CONTENTS
ARTICLE PAGE
1. USE AND RESTRICTIONS ON USE 1
2. TERM. 1
3. RENT. 1
4. TAXES 2
5. SECURITY DEPOSIT 2
6. ALTERATIONS 2
7. REPAIR 3
8. LIENS 4
9. ASSIGNMENT AND SUBLETTING 4
10. INDEMNIFICATION 5
11. INSURANCE 5
12. WAIVER OF SUBROGATION 6
13. SERVICES AND UTILITIES. 6
14. HOLDING OVER 6
15. SUBORDINATION 6
16. REENTRY BY LANDLORD 6
17. DEFAULT 7
18. REMEDIES 7
19. TENANT'S BANKRUPTCY OR INSOLVENCY 9
20. QUIET ENJOYMENT 9
21. DAMAGE BY FIRE, ETC 10
22. EMINENT DOMAIN 10
23. SALE BY LANDLORD 11
24. ESTOPPEL CERTIFICATES 11
25. SURRENDER OF PREMISES. 11
26. NOTICES 11
27. TAXES PAYABLE BY TENANT 11
28. DEFINED TERMS AND HEADINGS 12
29. TENANT'S AUTHORITY 12
30. COMMISSIONS 12
31. TIME AND APPLICABLE LAW 12
32. SUCCESSORS AND ASSIGNS 12
33. ENTIRE AGREEMENT 12
34. EXAMINATION NOT OPTION 12
35. RECORDATION 12
36. TERMINATION OPTION 13
37. RENT SCHEDULE 13
38. DATA TUBES 13
39. PRIVATE DRIVEWAY 13
40. LIMITATION OF LANDLORD'S LIABILITY 15
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - LOCATION OF DATA TUBES
SINGLE TENANT INDUSTRIAL LEASE
REFERENCE PAGE
LOCATION OF BUILDINGS: 1220 and 0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
LANDLORD: ZFO Properties, LLC, a
Delaware limited liability
company
LANDLORD'S ADDRESS: 000 Xxxxxx Xxxxx, Xxxxx X,
Xxxxxxxxxx, XX 00000
LEASE REFERENCE DATE: Xxxxx 0, 0000
XXXXXX: Ace Hardware Corporation, a
Delaware corporation
TENANT'S ADDRESS: 0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
BUILDINGS RENTABLE AREA: Approximately 70,508 sq. ft.
USE: General Offices (with personal
computer set-up and
configuration)
COMMENCEMENT DATE: Date on which Landlord
acquires the Buildings
TERMINATION DATE: September 30, 2009
TERM OF LEASE Approximately nine (9) years,
beginning on the Commencement
Date and ending on the
Termination Date (unless
sooner terminated pursuant to
the Lease)
INITIAL ANNUAL RENT (Article 3): $951,858.00
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (Article 3): $79,321.50
ASSIGNMENT/SUBLETTING FEE $500.00
SECURITY DEPOSIT: $0.00
REAL ESTATE BROKER DUE COMMISSION: None
The Reference Page information is incorporated into and made a
part of the Lease. In the event of any conflict between any
Reference Page information and the Lease, the Lease shall
control. This Lease includes Exhibits A and C, all of which are
made a part of this Lease.
LANDLORD: TENANT:
ZFO PROPERTIES, LLC, a ACE HARDWARE CORPORATION, a
Delaware limited liability Delaware corporation
company
666 PARTNERS, L.L.C., an
Illinois limited
liability company, its
Member By: XXXXX X. XXXXXX
Title: President and CEO
By:
Xxxxxxx X. Xxxxx, Dated: July 31, 2000
Managing Member
Dated: 7/26 , 2000
LEASE
By this Lease Landlord leases to Tenant and Tenant leases
from Landlord two (2) office buildings, containing approximately
70,508 square feet (collectively referred to herein as the
"Building" or the "Premises") depicted in Exhibit A attached
hereto. The Reference Page, including all terms defined thereon,
is incorporated as part of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes stated
on the Reference Page. Tenant shall not do or permit anything to
be done in or about the Premises which will in any way obstruct
or interfere with the rights of other tenants or occupants of the
Building or injure, annoy, or disturb them or allow the Premises
to be used for any improper, immoral, unlawful, or objectionable
purpose. Tenant shall not do, permit or suffer in, on, or about
the Premises the sale of any alcoholic liquor without the written
consent of Landlord first obtained, or the commission of any
waste. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Premises
and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and
abatement of any violations in or upon, or in connection with,
the Premises, all at Tenant's sole expense. Tenant shall not do
or permit anything to be done on or about the Premises or bring
or keep anything into the Premises which will in any way increase
the rate of, invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its
contents by fire or other casualty or against liability for
damage to property or injury to persons in or about the Building
or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any
of its agents, contractors, employees, licensees or invitees to at any
time handle, use, manufacture, store or dispose of in or about the
Premises or the Building any (collectively "Hazardous Materials")
flammables, explosives, radioactive materials, hazardous wastes or
materials, toxic wastes or materials, or other similar substances,
petroleum products or derivatives or any substance subject to regulation
by or under any federal, state and local laws and ordinances relating to
the protection of the environment or the keeping, use or disposition of
environmentally hazardous materials, substances, or wastes,
presently in effect or hereafter adopted, all amendments to any
of them, and all rules and regulations issued pursuant to any of
such laws or ordinances (collectively "Environmental Laws"), nor
shall Tenant suffer or permit any Hazardous Materials to be used
in any manner not fully in compliance with all Environmental
Laws, in the Premises or the Building and appurtenant land or
allow the environment to become contaminated with any Hazardous
Materials. Notwithstanding the foregoing, and subject to
Landlord's prior consent, Tenant may handle, store, use or
dispose of products containing small quantities of Hazardous
Materials (such as aerosol cans containing insecticides, toner
for copiers, paints, paint remover and the like) to the extent
customary and necessary for the use of the Premises for general
office purposes; provided that Tenant shall always handle, store,
use, and dispose of any such Hazardous Materials in a safe and
lawful manner and never allow such Hazardous Materials to
contaminate the Premises, Building and appurtenant land or the
environment. Tenant shall protect, defend, indemnify and hold
Landlord harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney's fees)
incurred by reason of any actual or asserted failure of Tenant to
fully comply with all applicable Environmental Laws, or the
presence, handling, use or disposition in or from the Premises of
any Hazardous Materials (even though permissible under all
applicable Environmental Laws or the provisions of this Lease),
or by reason of any actual or asserted failure of Tenant to keep,
observe, or perform any provision of this Section 1.2.
2. TERM. The Term of this Lease shall begin on the
Commencement Date as shown on the Reference Page. Landlord shall
tender possession of the Premises with all the work, if any, to
be performed by Landlord pursuant to Exhibit B to this Lease
substantially completed. Landlord and Tenant shall execute a
memorandum setting forth the actual Commencement Date and
Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect
from time to time by paying the Monthly Installment of Rent then
in effect on or before the first day of each full calendar month
during the Term, except that the first month's rent shall be paid
upon the execution of this Lease. The Monthly Installment of
Rent in effect at any time shall be one-twelfth of the Annual
Rent in effect at such time. Rent for any period during the Term
which is less than a full month shall be a prorated portion of
the Monthly Installment of Rent based upon a thirty (30) day
month. Said rent shall be paid to Landlord, without deduction or
offset and without notice or demand, at the Landlord's address,
as set forth on the Reference Page, or to such other person or at
such other place as Landlord may from time to time designate in
writing.
3.2 Tenant recognizes that late payment of any rent or other sum
due under this Lease will result in administrative expense to Landlord,
the extent of which additional expense is extremely difficult and
economically impractical to ascertain. Tenant therefore agrees that if
rent or any other sum is not paid when due and payable pursuant to this
Lease, a late charge shall be imposed in an amount equal to the greater
of: (a) Fifty Dollars ($50.00), or (b) a sum equal to five percent (5%)
per month of the unpaid rent or other payment. The amount of the late
charge to be paid by Tenant shall be reassessed and added to Tenant's
obligation for each successive monthly period until paid. The
provisions of this Section 3.2 in no way relieve Tenant of the
obligation to pay rent or other payments on or before the date on
which they are due, nor do the terms of this Section 3.2 in any
way affect Landlord's remedies pursuant to Article 18 in the
event said rent or other payment is unpaid after date due.
Notwithstanding the foregoing, Tenant shall be entitled, not more
than once per calendar year, to a five-day grace period before a
late charge may be assessed.
4. TAXES.
4.1 Tenant shall pay as additional rent all Taxes incurred on
the Building which accrue during the Term. Tenant acknowledges
and agrees that Taxes are payable on an accrual basis and,
accordingly, Tenant shall be liable for all taxes which accrue
from and after the Commencement Date and thereafter throughout
the Term of this Lease, without regard to the date or dates on
which installments for Taxes may, in fact, be due. Taxes shall
be defined as real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the
land appurtenant to the Building, or with respect to any
improvements, fixtures and equipment or other property of
Landlord, real or personal, located in the Building and used in
connection with the operation of the Building and said land, any
payments to any ground lessor in reimbursement of tax payments
made by such lessor; and all fees, expenses and costs incurred by
Landlord in investigating, protesting, contesting or in any way
seeking to reduce or avoid increase in any assessments, levies or
the tax rate pertaining to any Taxes to be paid by Landlord in
any Lease Year. Taxes shall not include any corporate franchise,
or estate, inheritance or net income tax, or tax imposed upon any
transfer by Landlord of its interest in this Lease or the
Building.
4.2 Prior to the actual determination thereof, Landlord may from
time to time estimate Tenant's liability for Taxes under Section 4.1,
Article 6 and Article 27 for the lease year or portion thereof. Landlord
will give Tenant written notification of the amount of such estimate and
Tenant agrees that it will pay, by increase of its Monthly Installments of
Rent due in such lease year, additional rent in the amount of such estimate.
Any such increased rate of Monthly Installments of Rent pursuant to this
Section 4.2 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.3 When the above mentioned actual determination of Tenant's
liability for Taxes is made in any lease year and when Tenant is
so notified in writing, then:
4.3.1 If the total additional rent Tenant actually paid
pursuant to Section 4.2 is less than Tenant's liability for
Taxes, then Tenant shall pay to Landlord as additional rent in
one lump sum within thirty (30) days of receipt of Landlord's
xxxx therefor such deficiency; and
4.3.2 If the total additional rent Tenant actually paid
pursuant to Section 4.2 is more than Tenant's liability for
Taxes, then Landlord shall credit the difference against the then
next due payments to be made by Tenant under this Article 4.
4.4 If the Commencement Date is other than January 1 or if the
Termination Date is other than December 31, Tenant's liability
for Taxes for the year in which said Date occurs shall be
prorated based upon a three hundred sixty-five (365) day year.
4.5 Even though the Term has expired and Tenant has vacated the
premises, when the final determination is made of Tenant's liability for
Taxes for the year in which the Lease terminated, Tenant shall pay any
difference due over the estimated Taxes paid; and conversely any
overpayment, less any amounts due Landlord under this Lease, shall be
rebated to Tenant.
5. SECURITY DEPOSIT. Intentionally Deleted.
6. ALTERATIONS.
6.1 Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the
attachment of any fixtures or equipment in, on, or to the
Premises or any part thereof or the making of any improvements as
required by Article 7, without the prior written consent of
Landlord. When applying for such consent, Tenant shall, if
requested by Landlord, furnish complete plans and specifications
for such alterations, additions and improvements. Landlord's
consent shall not be required (but Tenant shall notify Landlord)
with respect to alterations which (i) are not structural in
nature, (ii) are not visible from the exterior of the Building,
and (iii) do not affect or require modification of the Building's
electrical, mechanical, plumbing, HVAC or other systems.
6.2 In the event Landlord consents to the making of any such
alteration, addition or improvement by Tenant, the same shall be
made using a contractor reasonably approved by Landlord, at
Tenant's sole cost and expense. If Tenant shall employ any
Contractor other than Landlord's Contractor and such other
Contractor or any Subcontractor of such other Contractor shall
employ any non-union labor or supplier, Tenant shall be
responsible for and hold Landlord harmless from any and all
delays, damages and extra costs suffered by Landlord as a result
of any dispute with any labor unions concerning the wage, hours,
terms or conditions of the employment of any such labor. In any
event Landlord may charge Tenant a reasonable charge to cover its
actual out of pocket expenses as it relates to such proposed
work.
6.3 All alterations, additions or improvements proposed by
Tenant shall be constructed in accordance with all government
laws, ordinances, rules and regulations and Tenant shall, prior
to construction, provide the additional insurance required under
Article 11 in such case, and also all such assurances to
Landlord, including but not limited to, waivers of lien, surety
company performance bonds and personal guaranties of individuals
of substance as Landlord shall require to assure payment of the
costs thereof and to protect Landlord and the Building and
appurtenant land against any loss from any mechanic's,
materialmen's or other liens.
6.4 All alterations, additions, and improvements in, on, or to
the Premises made or installed by Tenant after the Commencement
Date, including carpeting, and the Data Tubes (as defined in
Section 38) shall be and remain the property of Tenant during the
Term but, excepting furniture, furnishings, movable partitions of
less than full height from floor to ceiling and other trade
fixtures, shall become a part of the realty and belong to
Landlord without compensation to Tenant upon the expiration or
sooner termination of the Term, at which time title shall pass to
Landlord under this Lease as by a xxxx of sale, unless Landlord
elects otherwise. Upon such election by Landlord, Tenant shall
upon demand by Landlord, at Tenant's sole cost and expense,
forthwith and with all due diligence remove the Data Tubes and
any such alterations, additions or improvements which are
designated by Landlord to be removed, and Tenant shall forthwith
and with all due diligence, at its sole cost and expense, repair
and restore the Premises to their original condition, reasonable
wear and tear and damage by fire or other casualty excepted.
6.5 Tenant shall pay in addition to any sums due pursuant to
Article 4, any increase in real estate taxes attributable to any
such alteration, addition or improvement for so long, during the
Term, as such increase is ascertainable; at Landlord's election
said sums shall be paid in the same way as sums due under Article
4.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises. By taking
possession of the Premises, Tenant accepts them as being in good
order, condition and repair and in the condition in which
Landlord is obligated to deliver them. It is hereby understood
and agreed that no representations respecting the condition of
the Premises or the Building have been made by Landlord to
Tenant. Landlord shall not be liable for any failure to make any
repairs or to perform any maintenance.
7.2 Tenant shall at its own cost and expense keep and maintain
all parts of the Premises in good condition, promptly making all
necessary repairs and replacements, ordinary or extraordinary,
with materials and workmanship of the same character, kind and
quality as the original (including, but not limited to, repair
and replacement of all fixtures installed by Tenant, water
heaters serving the Premises, windows, glass and plate glass,
doors, exterior stairs, skylights, roof of the Building, any
special office entries, interior walls and finish work, floors
and floor coverings, heating and air conditioning systems,
electrical systems and fixtures, Data Tubes, sprinkler systems,
dock boards, truck doors, dock bumpers, parking lots, driveways,
landscaping, tuckpointing, rail tracks serving the Premises,
plumbing work and fixtures, and performance of regular removal of
trash and debris). Tenant, as part of its obligations hereunder,
shall keep the Premises in a clean and sanitary condition.
Tenant will keep all such parts of the Premises from
deterioration due to ordinary wear and from falling temporarily
out of repair, and upon termination of this Lease in any way
Tenant will yield up the Premises to Landlord in good condition
and repair, loss by fire or other casualty excepted (but not
excepting any damage to glass). Notwithstanding the above,
Tenant shall not be required to repair or replace any portion of
the foundation or structural elements of the Building except that
Tenant shall be required to repair the roof; if Landlord
determines that any repair to the foundation or structural
elements of the Building is required, Landlord shall perform and
pay for such repair. Tenant shall repair (but not be required to
replace) the roof, parking lot, driveways or major components of
the heating and air conditioning systems. If Landlord determines
that the roof, parking lot, driveways or a major component of the
heating and air conditioning requires replacement, Landlord shall
perform and pay for such replacement except that the cost of such
replacement shall be amortized on a straight line basis over the
useful life of the replacement (pursuant to generally accepted
accounting principles) with interest at nine percent (9%) per
annum and one twelfth of such annual amount shall be paid by
Tenant to Landlord, as additional rent, concurrently with the
payment of Base Rent. In no event will Landlord have any
responsibility for the maintenance, repair or replacement of the
Data Tubes.
7.3 Except as provided in Article 21, there shall be no
abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any
portion of the Building, the Data Tubes or the Premises or to
fixtures, appurtenances and equipment in the Building.
7.4 Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with
a maintenance contractor approved by Landlord for the servicing
of all heating and air conditioning systems, equipment serving
the Premises and the roof of the Premises, if necessary (and a
copy of all such contracts shall be furnished to Landlord). Each
service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and
must become effective within thirty (30) days of the date Tenant
takes possession of the Premises. Landlord may, upon notice to
Tenant, enter into such a maintenance/service contract on behalf
of Tenant, or perform the work and in either case, charge Tenant
the cost thereof along with a reasonable amount for Landlord's
overhead.
7.5 Landlord shall, at the sole cost and expense of Tenant,
have the right to inspect the Premises on a semi-annual basis to
confirm that Tenant is complying with the maintenance, repair and
replacement obligations set forth in this Section 7
(collectively, the "Obligations"). Tenant shall reimburse
Landlord for any reasonable fees attributable to the cost of the
inspection of the Premises, which costs will be immediately due
after presentation of appropriate bills and back-up
documentation. During the inspection, Landlord or Landlord's
representative will make a list of all the Obligations, if any,
which, in the reasonable discretion of Landlord, Tenant has
failed to fully perform. Within thirty (30) days after written
notice to Tenant of such Obligations, Tenant must promptly and
professionally complete said Obligations (unless the performance
of the Obligations cannot be completed in said time period, in
which event Tenant must have commenced the Obligations during
such period and diligently pursue the same). If Tenant fails to
promptly commence and perform the Obligations, Landlord may (but
shall not be required to) perform the same on behalf of Tenant
and Tenant must reimburse Landlord for all of the costs and
expenses therefor immediately after presentation of appropriate
bills and back-up documentation.
8. LIENS. Tenant shall keep the Premises, the Building and
appurtenant land and Tenant's leasehold interest in the Premises
free from any liens arising out of any services, work or
materials performed, furnished, or contracted for by Tenant, or
obligations incurred by Tenant. In the event that Tenant shall
not, within ten (10) days following the imposition of any such
lien, either cause the same to be released of record or provide
Landlord with insurance against the same issued by a major title
insurance company or such other protection against the same as
Landlord shall accept, Landlord shall have the right to cause the
same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All
such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be considered additional rent and
shall be payable to it by Tenant on demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this
Lease or to sublet the whole or any part of the Premises whether
voluntarily or by operation of law, or permit the use or
occupancy of the Premises by anyone other than Tenant, and shall
not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, not to
be unreasonably withheld, and said restrictions shall be binding
upon any and all assignees of the Lease and subtenants of the
Premises. In the event Tenant desires to sublet, or permit such
occupancy of, the Premises, or any portion thereof, or assign
this Lease, Tenant shall give written notice thereof to Landlord
at least thirty (30) days but no more than one hundred eighty
(180) days prior to the proposed commencement date of such
subletting or assignment, which notice shall set forth the name
of the proposed subtenant or assignee, the relevant terms of any
sublease or assignment and copies of financial reports and other
relevant financial reports and other relevant financial
information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or
otherwise, Tenant shall at all times remain directly, primarily
and fully responsible and liable for the payment of the rent
specified in this Lease and for compliance with all of its other
obligations under the terms, provisions and covenants of this
Lease. Upon the occurrence of an Event of Default, if the
Premises or any part of them are then assigned or sublet,
Landlord, in addition to any other remedies provided in this
Lease or provided by law, may, at its option, collect directly
from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent
against any sums due to Landlord from Tenant under this Lease,
and no such collection shall be construed to constitute a
novation or release of Tenant from the further performance of
Tenant's obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant
or assignee, Landlord shall have the option, in its sole
discretion, in the event of any proposed subletting or
assignment, to terminate this Lease, or in the case of a proposed
subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the
subletting or assignment is to be effective. The option shall be
exercised, if at all, by Landlord giving Tenant written notice
given by Landlord to Tenant within thirty (30) days following
Landlord's receipt of Tenant's written notice as required above.
If this Lease shall be terminated with respect to the entire
Premises pursuant to this Section, the Term of this Lease shall
end on the date stated in Tenant's notice as the effective date
of the sublease or assignment as if that date had been originally
fixed in this Lease for the expiration of the Term. If Landlord
recaptures under this Section only a portion of the Premises, the
rent to be paid from time to time during the unexpired Term shall
xxxxx proportionately based on the proportion by which the
approximate square footage of the remaining portion of the
Premises shall be less than that of the Premises as of the date
immediately prior to such recapture. Tenant shall, at Tenant's
own cost and expense, discharge in full any outstanding
commission obligation on the part of Landlord with respect to
this Lease, and any commissions which may be due and owing as a
result of any proposed assignment or subletting, whether or not
the Premises are recaptured pursuant to this Section 9.3 and
rented by Landlord to the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or
transfers this Lease, Tenant shall pay to Landlord as additional
rent an amount equal to fifty percent (50%) of any Increased Rent
(as defined below) when and as such Increased Rent is received by
Tenant. As used in this Section, "Increased Rent" shall mean the
excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment
or other transfer of this Lease less Tenant's reasonable costs of
assignment or subletting (e.g., leasing commissions and
remodeling), over (ii) the rent otherwise payable by Tenant under
this Lease at such time. For purposes of the foregoing, any
consideration received by Tenant in form other than cash shall be
valued at its fair market value as determined by Landlord in good
faith.
9.5 Notwithstanding any other provision hereof, Tenant shall
have no right to make (and Landlord shall have the absolute right
to refuse consent to) any assignment of this Lease or sublease of
any portion of the Premises if at the time of either Tenant's
notice of the proposed assignment or sublease or the proposed
commencement date thereof, there shall exist any uncured default
of Tenant or matter which will become a default of Tenant with
passage of time unless cured; or if the proposed assignee or
sublessee is an entity: (a) with which Landlord is already in
negotiation as evidenced by the issuance of a written proposal;
(b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant;
(c) is a governmental agency; (d) is incompatible with the
character of occupancy of the Building; or (e) would subject the
Premises to a use which would: (i) involve increased personnel
or wear upon the Building; (ii) violate any exclusive right
granted to another tenant of the Building; (iii) require any
addition to or modification of the Premises or the Building in
order to comply with building code or other governmental
requirements; or, (iv) involves a violation of Section 1.2.
Tenant expressly agrees that Landlord shall have the absolute
right to refuse consent to any such assignment or sublease and
that for the purposes of any statutory or other requirement of
reasonableness on the part of Landlord such refusal shall be
reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to
Landlord the Assignment/Subletting Fee plus, on demand, a sum
equal to all of Landlord's costs, including attorney's fees,
incurred in investigating and considering any proposed or
purported assignment or pledge of this Lease or sublease of any
of the Premises, regardless of whether Landlord shall consent to,
refuse consent, or determine that Landlord's consent is not
required for, such assignment, pledge or sublease. Any purported
sale, assignment, mortgage, transfer of this Lease or subletting
which does not comply with the provisions of this Article 9 shall
be void.
9.7 If Tenant is a corporation, partnership or trust, any
transfer or transfers of or change or changes within any twelve
month period in the number of the outstanding voting shares of
the corporation, the general partnership interests in the
partnership or the identity of the persons or entities
controlling the activities of such partnership or trust resulting
in the persons or entities owning or controlling a majority of
such shares, partnership interests or activities of such
partnership or trust at the beginning of such period no longer
having such ownership or control shall be regarded as equivalent
to an assignment of this Lease to the persons or entities
acquiring such ownership or control and shall be subject to all
the provisions of this Article 9 to the same extent and for all
intents and purposes as though such an assignment.
10. INDEMNIFICATION. None of the Landlord Entities (as defined
in Article 28) shall be liable and Tenant hereby waives all
claims against them for any damage to any property or any injury
to any person in or about the Premises by or from any cause
whatsoever (including without limiting the foregoing, rain or
water leakage of any character from the roof, windows, walls,
basement, pipes, plumbing works or appliances, the Premises not
being in good condition or repair, gas, fire, oil, electricity or
theft), except to the extent caused by or arising from the gross
negligence or willful misconduct of Landlord or its agents,
employees or contractors. Tenant shall protect, indemnify and
hold the Landlord Entities harmless from and against any and all
loss, claims, liability or costs (including court costs and
attorney's fees) incurred by reason of (a) any damage to any
property (including but not limited to property of any Landlord
Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises to the extent that
such injury or damage shall be caused by or arise from any actual
or alleged act, neglect, fault, or omission by or of Tenant, its
agents, servants, employees, invitees, or visitors to meet any
standards imposed by any duty with respect to the injury or
damage; (b) the conduct or management of any work or thing
whatsoever done by the Tenant in or about the Premises or from
transactions of the Tenant concerning the Premises; (c) Tenant's
failure to comply with any and all governmental laws, ordinances
and regulations applicable to the condition or use of the
Premises or its occupancy; or (d) any breach or default on the
part of Tenant in the performance of any covenant or agreement on
the part of the Tenant to be performed pursuant to this Lease.
The provisions of this Article shall survive the termination of
this Lease with respect to any claims or liability accruing prior
to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a
Commercial General Liability insurance policy or policies to
protect the Landlord against any liability to the public or to
any invitee of Tenant or a Landlord incidental to the use of or
resulting from any accident occurring in or upon the Premises
with a limit of not less than $1,000,000.00 per occurrence and
not less than $2,000,000.00 in the annual aggregate, or such
larger amount as Landlord may prudently require from time to time
but in no event shall such amount exceed 2,000,000.00 per
occurrence and not less than $5,000,000.00 in the annual
aggregate, covering bodily injury and property damage liability
and $1,000,000 products/completed operations aggregate; (b)
Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident;
(c) insurance protecting against liability under Worker's
Compensation Laws with limits at least as required by statute;
(d) Employers Liability with limits of $500,000 each accident,
$500,000 disease policy limit, $500,000 disease--each employee;
(e) All Risk or Special Form coverage protecting Tenant against
loss of or damage to Tenant's alterations, additions,
improvements, carpeting, floor coverings, panelings, decorations,
fixtures, inventory and other business personal property situated
in or about the Premises to the full replacement value of the
property so insured; and, (f) Leaseholders Interest Endorsement
to Tenant's property insurance policy that will protect Landlord
against loss of rental income for at least six (6) months.
11.2 Tenant shall maintain all insurance policies relating in any
manner to the protection, preservation or operation of the Premises,
including but not limited to, standard fire and extended coverage
insurance covering the Premises in an amount not less than one hundred
percent (100%) of the replacement cost thereof insuring against the
perils of fire and lightning and including extended coverage or, at
Landlord's option, all risk coverage and, if Landlord so elects,
earthquake, flood and wind coverages and rent loss insurance for twelve
(12) months. Such insurance shall be for the sole benefit of Landlord
and under its sole control. Tenant shall not take out separate insurance
concurrent in form or contributing in the event of loss with that
required to be maintained hereunder unless Landlord is included
as a loss payee thereon. Tenant shall immediately notify
Landlord whenever any such separate insurance is taken out and
shall promptly deliver to Landlord the policy or policies of such
insurance.
11.3 Each of the aforesaid policies shall (a) be provided at
Tenant's expense; (b) name the Landlord as additional insured;
(c) be issued by an insurance company with a minimum Best's
rating of "A:VII" during the Term; and (d) provide that said
insurance shall not be canceled unless thirty (30) days prior
written notice (ten days for non-payment of premium) shall have
been given to Landlord; and said policy or policies or
certificates thereof shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to
each renewal of said insurance.
11.4 Whenever Tenant shall undertake any alterations, additions
or improvements in, to or about the Premises ("Work") the aforesaid
insurance protection must extend to and include injuries to persons
and damage to property arising in connection with such Work, without
limitation including liability under any applicable structural work
act, and such other insurance as Landlord shall require; and the
policies of or certificates evidencing such insurance must be
delivered to Landlord prior to the commencement of any such Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers
so permit, Tenant and Landlord hereby mutually waive their
respective rights of recovery against each other for any loss
insured by fire, extended coverage, All Risks or other insurance
now or hereafter existing for the benefit of the respective party
but only to the extent of the net insurance proceeds payable
under such policies. Each party shall obtain any special
endorsements required by their insurer to evidence compliance
with the aforementioned waiver.
13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas
(if any), heat, light, power, telephone, sewer, sprinkler system
charges and other utilities and services used on or from the
Premises, including without limitation, the cost of any central
station signaling system installed in the Premises together with
any taxes, penalties, and surcharges or the like pertaining
thereto and any maintenance charges for utilities. Any such
charges paid by Landlord and assessed against Tenant shall be
immediately payable to Landlord on demand and shall be additional
rent hereunder. Landlord shall in no event be liable for any
services provided to the Premises or for any interruption or
failure of utility services on or to the Premises.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant
retains possession of the Premises or part of them after
termination of this Lease by lapse of time or otherwise at the
rate ("Holdover Rate") which shall be 150% of the amount of the
Annual Rent for the last period prior to the date of such
termination plus all Rent Adjustments under Article 4 prorated on
a daily basis, and also pay all damages sustained by Landlord by
reason of such retention. If Landlord gives notice to Tenant of
Landlord's election to that effect, such holding over shall
constitute renewal of this Lease for a period from month to month
at the Holdover Rate, but if the Landlord does not so elect, no
such renewal shall result notwithstanding acceptance by Landlord
of any sums due hereunder after such termination; and instead, a
tenancy at sufferance at the Holdover Rate shall be deemed to
have been created. In any event, no provision of this Article 14
shall be deemed to waive Landlord's right of reentry or any other
right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional
document being executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and subordinate at all
times to ground or underlying leases and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against
or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however,
that if the lessor, mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in
this Lease be superior to any such instrument, then, by notice to
Tenant, this Lease shall be deemed superior, whether this Lease
was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver
upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by
Landlord. At Tenant's request, Landlord shall request a
reasonable and customary non-disturbance letter from its
mortgagee, but the failure to obtain such non-disturbance letter
shall not be a breach of this Lease.
16. REENTRY BY LANDLORD.
16.1 Landlord reserves and shall at all reasonable times and
except in an emergency, upon prior notice, have the right to re-
enter the Premises to inspect the same, to show said Premises to
prospective purchasers, mortgagees or tenants, and to alter,
improve or repair the Premises and any portion of the Building,
without abatement of rent, and may for that purpose erect, use
and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the
Building and Premises where reasonably required by the character
of the work to be performed, provided entrance to the Premises
shall not be blocked thereby, and further provided that the
business of Tenant shall not be interfered with unreasonably.
16.2 Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss
of occupancy or quiet enjoyment of the Premises, and any other loss
occasioned by any action of Landlord authorized by this Article 16.
Tenant agrees to reimburse Landlord, on demand, as additional rent, for
any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease.
16.3 Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain
entry to any portion of the Premises and the cost of repairing any damage
occurring in doing so shall be borne by Tenant and paid to Landlord as
additional rent upon demand.
17. DEFAULT.
17.1 Except as otherwise provided in Article 19, the following
events shall be deemed to be Events of Default under this Lease:
17.1.1 Tenant shall fail to pay when due any sum of money
becoming due to be paid to Landlord under this Lease, whether such sum
be any installment of the rent reserved by this Lease, any other amount
treated as additional rent under this Lease, or any other payment or
reimbursement to Landlord required by this Lease, whether or not treated
as additional rent under this Lease, and such failure shall continue for
a period of five days after written notice that such payment was not made
when due, but if any such notice shall be given, for the twelve month period
commencing with the date of such notice, the failure to pay within five
days after due any additional sum of money becoming due to be paid to
Landlord under this Lease during such period shall be an Event of Default,
without notice.
17.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith,
if the failure involves a hazardous condition) after written notice of such
failure to Tenant.
17.1.3 Tenant shall fail to vacate the Premises immediately
upon termination of this Lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only.
17.1.4 Tenant shall become insolvent, admit in writing its
inability to pay its debts generally as they become due, file a petition
in bankruptcy or a petition to take advantage of any insolvency statute,
make an assignment for the benefit of creditors, make a transfer in fraud
of creditors, apply for or consent to the appointment of a receiver of
itself or of the whole or any substantial part of its property, or file
a petition or answer seeking reorganization or arrangement under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other
applicable law or statute of the United States or any state thereof.
17.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver
of Tenant, or of the whole or any substantial part of its property, without
the consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof,
and such order, judgment or decree shall not be vacated or set aside or
stayed within thirty (30) days from the date of entry thereof.
18. REMEDIES.
18.1 Except as otherwise provided in Article 19, upon the
occurrence of any of the Events of Default described or referred
to in Article 17, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or
demand whatsoever, concurrently or consecutively and not
alternatively:
18.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating
the Lease.
18.1.2 Upon any termination of this Lease, whether by lapse of
time or otherwise, or upon any termination of Tenant's right to possession
without termination of the Lease, Tenant shall surrender possession and
vacate the Premises immediately, and deliver possession thereof to Landlord,
and Tenant hereby grants to Landlord full and free license to enter into
and upon the Premises in such event and to repossess Landlord of the Premises
as of Landlord's former estate and to expel or remove Tenant and any others
who may be occupying or be within the Premises and to remove Tenant's signs,
the Data Tubes and other evidence of tenancy and all other property of
Tenant therefrom without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without incurring any liability
for any damage resulting therefrom, Tenant waiving any right to claim
damages for such re-entry and expulsion, and without relinquishing Landlord's
right to rent or any other right given to Landlord under this Lease or by
operation of law.
18.1.3 Upon any termination of this Lease, whether by lapse of
time or otherwise, Landlord shall be entitled to recover as
damages, all rent, including any amounts treated as additional
rent under this Lease, and other sums due and payable by Tenant
on the date of termination, plus as liquidated damages and not as
a penalty, an amount equal to the sum of: (a) an amount equal to
the then present value of the rent reserved in this Lease for the
residue of the stated Term of this Lease including any amounts
treated as additional rent under this Lease and all other sums
provided in this Lease to be paid by Tenant, minus the fair
rental value of the Premises for such residue; (b) the value of
the time and expense necessary to obtain a replacement tenant or
tenants, and the estimated expenses described in Section 18.1.4
relating to recovery of the Premises, preparation for reletting
and for reletting itself; and (c) the cost of performing any
other covenants which would have otherwise been performed by
Tenant.
18.1.4 Upon any termination of Tenant's right to possession
only without termination of the Lease:
18.1.4.1 Neither such termination of Tenant's right to
possession nor Landlord's taking and holding possession thereof
as provided in Section 18.1.2 shall terminate the Lease or
release Tenant, in whole or in part, from any obligation,
including Tenant's obligation to pay the rent, including any
amounts treated as additional rent, under this Lease for the full
Term, and if Landlord so elects Tenant shall pay forthwith to
Landlord the sum equal to the entire amount of the rent,
including any amounts treated as additional rent under this
Lease, for the remainder of the Term plus any other sums provided
in this Lease to be paid by Tenant for the remainder of the Term.
18.1.4.2 Landlord may, but need not, relet the Premises or any
part thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the premises
for a greater or lesser term than that remaining under this Lease, the
right to relet the Premises as a part of a larger area, and the right to
change the character or use made of the Premises). In connection with
or in preparation for any reletting, Landlord may, but shall not be
required to, make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent Landlord deems necessary or
desirable, and Tenant shall, upon demand, pay the cost thereof,
together with Landlord's expenses of reletting, including, without
limitation, any broker's commission incurred by Landlord. If Landlord
decides to relet the Premises or a duty to relet is imposed upon Landlord
by law, Landlord and Tenant agree that nevertheless Landlord shall at most
be required to use only the same efforts Landlord then uses to lease
premises in the Building generally and that in any case that Landlord
shall not be required to give any preference or priority to the showing or
leasing of the Premises over any other space that Landlord may be leasing
or have available and may place a suitable prospective tenant in any such
other space regardless of when such other space becomes available.
Landlord shall not be required to observe any instruction given by Tenant
about any reletting or accept any tenant offered by Tenant unless such
offered tenant has a credit-worthiness acceptable to Landlord and leases
the entire Premises upon terms and conditions including a rate of rent
(after giving effect to all expenditures by Landlord for tenant
improvements, broker's commissions and other leasing costs) all no less
favorable to Landlord than as called for in this Lease, nor shall
Landlord be required to make or permit any assignment or sublease for
more than the current term or which Landlord would not be required to
permit under the provisions of Article 9.
18.1.4.3 Until such time as Landlord shall elect to terminate
the Lease and shall thereupon be entitled to recover the amounts
specified in such case in Section 18.1.3, Tenant shall pay to
Landlord upon demand the full amount of all rent, including any amounts
treated as additional rent under this Lease and other sums reserved in
this Lease for the remaining Term, together with the costs of repairs,
alterations, additions, redecorating and Landlord's expenses of
reletting and the collection of the rent accruing therefrom (including
attorney's fees and broker's commissions), as the same shall then be
due or become due from time to time, less only such consideration as
Landlord may have received from any reletting of the Premises; and
Tenant agrees that Landlord may file suits from time to time to recover
any sums falling due under this Article 18 as they become due. Any
proceeds of reletting by Landlord in excess of the amount then owed by
Tenant to Landlord from time to time shall be credited against Tenant's
future obligations under this Lease but shall not otherwise be refunded
to Tenant or inure to Tenant's benefit.
18.2 Landlord may, at Landlord's option, enter into and upon the
Premises if Landlord determines in its sole discretion that
Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Tenant is
responsible under this Lease and correct the same, without being
deemed in any manner guilty of trespass, eviction or forcible
entry and detainer and without incurring any liability for any
damage or interruption of Tenant's business resulting therefrom.
If Tenant shall have vacated the Premises, Landlord may at
Landlord's option re-enter the Premises at any time during the
last six months of the then current Term of this Lease and make
any and all such changes, alterations, revisions, additions and
tenant and other improvements in or about the Premises as
Landlord shall elect, all without any abatement of any of the
rent otherwise to be paid by Tenant under this Lease.
18.3 If, on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this
Lease, it shall become necessary or appropriate for Landlord to
employ or consult with an attorney concerning or to enforce or
defend any of Landlord's rights or remedies arising under this
Lease, Tenant agrees to pay all Landlord's attorney's fees so
incurred. Tenant expressly waives any right to: (a) trial by
jury; and (b) service of any notice required by any present or
future law or ordinance applicable to landlords or tenants but
not required by the terms of this Lease.
18.4 Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies provided in this Lease or
any other remedies provided by law (all such remedies being
cumulative), nor shall pursuit of any remedy provided in this
Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord
by reason of the violation of any of the terms, provisions and
covenants contained in this Lease.
18.5 No act or thing done by Landlord or its agents during the
Term shall be deemed a termination of this Lease or an acceptance
of the surrender of the Premises, and no agreement to terminate
this Lease or accept a surrender of said Premises shall be valid,
unless in writing signed by Landlord. No waiver by Landlord of
any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to
constitute a waiver of any other violation or breach of any of
the terms, provisions and covenants contained in this Lease.
Landlord's acceptance of the payment of rental or other payments
after the occurrence of an Event of Default shall not be
construed as a waiver of such Default, unless Landlord so
notifies Tenant in writing. Forbearance by Landlord in enforcing
one or more of the remedies provided in this Lease upon an Event
of Default shall not be deemed or construed to constitute a
waiver of such Default or of Landlord's right to enforce any such
remedies with respect to such Default or any subsequent Default.
18.6 Intentionally Deleted.
18.7 Any and all property which may be removed from the Premises
by Landlord pursuant to the authority of this Lease or of law, to
which Tenant is or may be entitled, may be handled, removed
and/or stored, as the case may be, by or at the direction of
Landlord but at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in such
removal and all storage charges against such property so long as
the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from
storage within thirty (30) days after removal from the Premises
shall, at Landlord's option, be deemed conveyed by Tenant to
Landlord under this Lease as by a xxxx of sale without further
payment or credit by Landlord to Tenant.
19. TENANT'S BANKRUPTCY OR INSOLVENCY.
19.1 If at any time and for so long as Tenant shall be subjected
to the provisions of the United States Bankruptcy Code or other
law of the United States or any state thereof for the protection
of debtors as in effect at such time (each a "Debtor's Law"):
19.1.1 Tenant, Tenant as debtor-in-possession, and any trustee
or receiver of Tenant's assets (each a "Tenant's Representative")
shall have no greater right to assume or assign this Lease or any
interest in this Lease, or to sublease any of the Premises than
accorded to Tenant in Article 9, except to the extent Landlord
shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without
limitation of the generality of the foregoing, any right of any
Tenant's Representative to assume or assign this Lease or to
sublease any of the Premises shall be subject to the conditions
that:
19.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's
Representative shall have timely exercised and Tenant's
Representative shall have fully cured any default of Tenant under
this Lease.
19.1.1.2 Tenant's Representative or the proposed
assignee, as the case shall be, shall have deposited with Landlord
as security for the timely payment of rent an amount equal to the
larger of: (a) three months' Rent and other monetary charges accruing
under this Lease; and (b) any sum specified in Article 5; and shall
have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this
Lease. Without limitation, such assurances shall include, at
least, in the case of assumption of this Lease, demonstration to
the satisfaction of the Landlord that Tenant's Representative has
and will continue to have sufficient unencumbered assets after
the payment of all secured obligations and administrative
expenses to assure Landlord that Tenant's Representative will
have sufficient funds to fulfill the obligations of Tenant under
this Lease; and, in the case of assignment, submission of current
financial statements of the proposed assignee, audited by an
independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts
determined by Landlord to be sufficient to assure the future
performance by such assignee of all of the Tenant's obligations
under this Lease.
19.1.1.3 The assumption or any contemplated
assignment of this Lease or subleasing any part of the Premises,
as shall be the case, will not breach any provision in any other
lease, mortgage, financing agreement or other agreement by which
Landlord is bound.
19.1.1.4 Landlord shall have, or would have had
absent the Debtor's Law, no right under Article 9 to refuse consent
to the proposed assignment or sublease by reason of the identity or
nature of the proposed assignee or sublessee or the proposed use
of the Premises concerned.
20. QUIET ENJOYMENT. Landlord represents and warrants that it
has full right and authority to enter into this Lease and that
Tenant, while paying the rental and performing its other
covenants and agreements contained in this Lease, shall peaceably
and quietly have, hold and enjoy the Premises for the Term
without hindrance or molestation from Landlord subject to the
terms and provisions of this Lease. Landlord shall not be liable
for any interference or disturbance by other tenants or third
persons, nor shall Tenant be released from any of the obligations
of this Lease because of such interference or disturbance.
21. DAMAGE BY FIRE, ETC.
21.1 In the event the Premises or the Building are damaged by
fire or other cause and in Landlord's reasonable estimation such
damage can be materially restored within one hundred eighty (180)
days, Landlord shall forthwith repair the same and this Lease
shall remain in full force and effect, except that Tenant shall
be entitled to a proportionate abatement in rent from the date of
such damage. Such abatement of rent shall be made pro rata in
accordance with the extent to which the damage and the making of
such repairs shall interfere with the use and occupancy by Tenant
of the Premises from time to time. Within forty-five (45) days
from the date of such damage, Landlord shall notify Tenant, in
writing, of Landlord's reasonable estimation of the length of
time within which material restoration can be made, and
Landlord's determination shall be binding on Tenant. For
purposes of this Lease, the Building or Premises shall be deemed
"materially restored" if they are in such condition as would not
prevent or materially interfere with Tenant's use of the Premises
for the purpose for which it was being used immediately before
such damage.
21.2 If such repairs cannot, in Landlord's reasonable estimation,
be made within one hundred eighty (180) days, Landlord and Tenant
shall each have the option of giving the other, at any time
within sixty (60) days after such damage, notice terminating this
Lease as of the date of such damage. In the event of the giving
of such notice, this Lease shall expire and all interest of the
Tenant in the Premises shall terminate as of the date of such
damage as if such date had been originally fixed in this Lease
for the expiration of the Term. In the event that neither
Landlord nor Tenant exercises its option to terminate this Lease,
then Landlord shall repair or restore such damage, this Lease
continuing in full force and effect, and the rent hereunder shall
be proportionately abated as provided in Section 21.1.
21.3 Landlord shall not be required to repair or replace any
damage or loss by or from fire or other cause to any panelings,
decorations, partitions, additions, railings, ceilings, floor
coverings, office fixtures or any other property or improvements
installed on the Premises or belonging to Tenant. Any insurance
which may be carried by Landlord or Tenant against loss or damage
to the Building or Premises shall be for the sole benefit of the
party carrying such insurance and under its sole control.
21.4 In the event that Landlord should fail to complete such
repairs and material restoration within sixty (60) days after the
date estimated by Landlord therefor as extended by this Section
21.4, Tenant may at its option and as its sole remedy terminate
this Lease by delivering written notice to Landlord, within
fifteen (15) days after the expiration of said period of time,
whereupon the Lease shall end on the date of such notice or such
later date fixed in such notice as if the date of such notice was
the date originally fixed in this Lease for the expiration of the
Term; provided, however, that if construction is delayed because
of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material
or labor shortages, government regulation or control or other
causes beyond the reasonable control of Landlord, the period for
restoration, repair or rebuilding shall be extended for the
amount of time Landlord is so delayed.
21.5 Notwithstanding anything to the contrary contained in this
Article: (a) Landlord shall not have any obligation whatsoever
to repair, reconstruct, or restore the Premises when the damages
resulting from any casualty covered by the provisions of this
Article 21 occur during the last twelve (12) months of the Term
or any extension thereof, but if Landlord determines not to
repair such damages Landlord shall notify Tenant and if such
damages shall render any material portion of the Premises
untenantable Tenant shall have the right to terminate this Lease
by notice to Landlord within fifteen (15) days after receipt of
Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the
Premises or Building requires that any insurance proceeds be
applied to such indebtedness, then Landlord shall have the right
to terminate this Lease by delivering written notice of
termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon this Lease
shall end on the date of such damage as if the date of such
damage were the date originally fixed in this Lease for the
expiration of the Term.
21.6 In the event of any damage or destruction to the Building or
Premises by any peril covered by the provisions of this Article 21, it
shall be Tenant's responsibility to properly secure the Premises and
upon notice from Landlord to remove forthwith, at its sole cost and
expense, such property belonging to Tenant or its licensees from such
portion of the Building or Premises as Landlord shall request.
22. EMINENT DOMAIN. If all or any substantial part of the
Premises shall be taken or appropriated by any public or quasi-
public authority under the power of eminent domain, or conveyance
in lieu of such appropriation, either party to this Lease shall
have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating
this Lease, except that Tenant may only terminate this Lease by
reason of taking or appropriation, if such taking or
appropriation shall be so substantial as to materially interfere
with Tenant's use and occupancy of the Premises. If neither
party to this Lease shall so elect to terminate this Lease, the
rental thereafter to be paid shall be adjusted on a fair and
equitable basis under the circumstances. In addition to the
rights of Landlord above, if any substantial part of the Building
shall be taken or appropriated by any public or quasi-public
authority under the power of eminent domain or conveyance in lieu
thereof, and regardless of whether the Premises or any part
thereof are so taken or appropriated, Landlord shall have the
right, at its sole option, to terminate this Lease. Landlord
shall be entitled to any and all income, rent, award, or any
interest whatsoever in or upon any such sum, which may be paid or
made in connection with any such public or quasi-public use or
purpose, and Tenant hereby assigns to Landlord any interest it
may have in or claim to all or any part of such sums, other than
any separate award which may be made with respect to Tenant's
trade fixtures and moving expenses; Tenant shall make no claim
for the value of any unexpired Term.
23. SALE BY LANDLORD. In event of a sale or conveyance by
Landlord of the Building, the same shall operate to release
Landlord from any future liability upon any of the covenants or
conditions, expressed or implied, contained in this Lease in
favor of Tenant, and in such event Tenant agrees to look solely
to the responsibility of the successor in interest of Landlord in
and to this Lease. Except as set forth in this Article 23, this
Lease shall not be affected by any such sale and Tenant agrees to
attorn to the purchaser or assignee. If any security has been
given by Tenant to secure the faithful performance of any of the
covenants of this Lease, Landlord shall transfer or deliver said
security, as such, to Landlord's successor in interest and
thereupon Landlord shall be discharged from any further liability
with regard to said security.
24. ESTOPPEL CERTIFICATES. Within ten (10) days following any
written request which Landlord may make from time to time, Tenant
shall execute and deliver to Landlord or mortgagee or prospective
mortgagee a sworn statement certifying: (a) the date of
commencement of this Lease; (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been
modifications to this Lease, that this lease is in full force and
effect, as modified, and stating the date and nature of such
modifications); (c) the date to which the rent and other sums
payable under this Lease have been paid; (d) the fact that there
are no current defaults under this Lease by either Landlord or
Tenant except as specified in Tenant's statement; and (e) such
other matters as may be reasonably requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant
to this Article 24 may be relied upon by any mortgagee,
beneficiary or purchaser and Tenant shall be liable for all loss,
cost or expense resulting from the failure of any sale or funding
of any loan caused by any material misstatement contained in such
estoppel certificate. Tenant irrevocably agrees that if Tenant
fails to execute and deliver such certificate within such ten
(10) day period Landlord or Landlord's beneficiary or agent may
execute and deliver such certificate on Tenant's behalf, and that
such certificate shall be fully binding on Tenant.
25. SURRENDER OF PREMISES.
25.1 Tenant shall, at least thirty (30) days before the last day
of the Term, arrange to meet Landlord for a joint inspection of
the Premises. In the event of Tenant's failure to arrange such
joint inspection to be held prior to vacating the Premises,
Landlord's inspection at or after Tenant's vacating the Premises
shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
25.2 At the end of the Term or any renewal of the Term or other
sooner termination of this Lease, Tenant will peaceably deliver up to
Landlord possession of the Premises, together with all improvements or
additions upon or belonging to the same, by whomsoever made, in the
same conditions received or first installed, broom clean and free of
all debris, excepting only ordinary wear and tear and damage by fire
or other casualty. Tenant may, and at Landlord's request shall, at
Tenant's sole cost, remove upon termination of this Lease, any and all
furniture, furnishings, movable partitions of less than full height
from floor to ceiling, trade fixtures and other property installed by
Tenant, title to which shall not be in or pass automatically to
Landlord upon such termination, repairing all damage caused by such
removal. Property not so removed shall, unless requested to be
removed, be deemed abandoned by the Tenant and title to the same
shall thereupon pass to Landlord under this Lease as by a xxxx of
sale. All other alterations, additions and improvements in, on or
to the Premises shall be dealt with and disposed of as provided in
Article 6.
25.3 All obligations of Tenant under this Lease not fully
performed as of the expiration or earlier termination of the Term
shall survive the expiration or earlier termination of the Term.
In the event that Tenant's failure to perform prevents Landlord
from releasing the Premises, Tenant shall continue to pay rent
pursuant to the provisions of Article 14 until such performance
is complete. Upon the expiration or earlier termination of the
Term, Tenant shall pay to Landlord the amount, as estimated by
Landlord, necessary to repair and restore the Premises as
provided in this Lease and/or to discharge Tenant's obligation
for unpaid amounts due or to become due to Landlord. All such
amounts shall be used and held by Landlord for payment of such
obligations of Tenant, with Tenant being liable for any
additional costs upon demand by Landlord, or with any excess to
be returned to Tenant after all such obligations have been
determined and satisfied.
26. NOTICES. Any notice or document required or permitted to be
delivered under this Lease shall be addressed to the intended
recipient, shall be transmitted personally, by fully prepaid
registered or certified United States Mail return receipt
requested, or by reputable independent contract delivery service
furnishing a written record of attempted or actual delivery, and
shall be deemed to be delivered when tendered for delivery to the
addressee at its address set forth on the Reference Page, or at
such other address as it has then last specified by written
notice delivered in accordance with this Article 26, or if to
Tenant at either its aforesaid address or its last known
registered office, whether or not actually accepted or received
by the addressee.
27. TAXES PAYABLE BY TENANT. In addition to rent and other
charges to be paid by Tenant under this Lease, Tenant shall
reimburse to Landlord, upon demand, any and all taxes payable by
Landlord (other than net income taxes) whether or not now
customary or within the contemplation of the parties to this
Lease: (a) upon, allocable to, or measured by or on the gross or
net rent payable under this Lease, including without limitation
any gross income tax or excise tax levied by the State, any
political subdivision thereof, or the Federal Government with
respect to the receipt of such rent; (b) upon or with respect to
the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy of the Premises or any
portion thereof, including any sales, use or service tax imposed
as a result thereof; (c) upon or measured by the Tenant's gross
receipts or payroll or the value of Tenant's equipment,
furniture, fixtures and other personal property of Tenant or
leasehold improvements, alterations or additions located in the
Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring any interest of Tenant
in this Lease or the Premises. In addition to the foregoing,
Tenant agrees to pay, before delinquency, any and all taxes
levied or assessed against Tenant and which become payable during
the term hereof upon Tenant's equipment, furniture, fixtures and
other personal property of Tenant located in the Premises.
28. DEFINED TERMS AND HEADINGS. The Article headings shown in
this Lease are for convenience of reference and shall in no way
define, increase, limit or describe the scope or intent of any
provision of this Lease. Any indemnification or insurance of
Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, Landlord's
investment manager, and the trustees, boards of directors,
officers, general partners, beneficiaries, stockholders,
employees and agents of each of them. Any option granted to
Landlord shall also include or be exercisable by Landlord's
trustee, beneficiary, agents and employees, as the case may be.
In any case where this Lease is signed by more than one person,
the obligations under this Lease shall be joint and several. The
terms "Tenant" and "Landlord" or any pronoun used in place
thereof shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or corporations,
and their and each of their respective successors, executors,
administrators and permitted assigns, according to the context
hereof. The term "rentable area" shall mean the rentable area of
the Premises or the Building as calculated by the Landlord on the
basis of the plans and specifications of the Building including a
proportionate share of any common areas. Tenant hereby accepts
and agrees to be bound by the figures for the rentable space
footage of the Premises and Tenant's Proportionate Share shown on
the Reference Page.
29. TENANT'S AUTHORITY. If Tenant signs as a corporation each
of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has been and is qualified to
do business in the state in which the Building is located, that
the corporation has full right and authority to enter into this
Lease, and that all persons signing on behalf of the corporation
were authorized to do so by appropriate corporate actions. If
Tenant signs as a partnership, trust or other legal entity, each
of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has complied with all
applicable laws, rules and governmental regulations relative to
its right to do business in the state and that such entity on
behalf of the Tenant was authorized to do so by any and all
appropriate partnership, trust or other actions. Tenant agrees
to furnish promptly upon request a corporate resolution, proof of
due authorization by partners, or other appropriate documentation
evidencing the due authorization of Tenant to enter into this
Lease.
30. COMMISSIONS. Each of the parties represents and warrants to
the other that it has not dealt with any broker or finder in
connection with this Lease, except as described on the Reference
Page.
31. TIME AND APPLICABLE LAW. Time is of the essence of this
Lease and all of its provisions. This Lease shall in all
respects be governed by the laws of the state in which the
Building is located.
32. SUCCESSORS AND ASSIGNS. Subject to the provisions of
Article 9, the terms, covenants and conditions contained in this
Lease shall be binding upon and inure to the benefit of the
heirs, successors, executors, administrators and assigns of the
parties to this Lease.
33. ENTIRE AGREEMENT. This Lease, together with its exhibits,
contains all agreements of the parties to this Lease and
supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease and
its exhibits. This Lease may not be modified except by a written
instrument duly executed by the parties to this Lease.
34. EXAMINATION NOT OPTION. Submission of this Lease shall not
be deemed to be a reservation of the Premises. Landlord shall
not be bound by this Lease until it has received a copy of this
Lease duly executed by Tenant and has delivered to Tenant a copy
of this Lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to
other prospective tenants. Notwithstanding anything contained in
this Lease to the contrary, Landlord may withhold delivery of
possession of the Premises from Tenant until such time as Tenant
has paid to Landlord any security deposit required by Article 5,
the first month's rent as set forth in Article 3 and any sum owed
pursuant to this Lease.
35. RECORDATION. Landlord, at Tenant's request, shall enter
into a memorandum of this Lease prepared by Tenant and reasonably
acceptable to Landlord and its counsel, which memorandum may be
recorded by Tenant at its sole cost and expense, after the
recordation of any financing documents of Landlord's mortgagee.
Tenant shall pay all charges and taxes incident to the recording
of the memorandum. Upon expiration or the earlier termination of
this Lease, Tenant shall release of record such memorandum, and
Tenant irrevocably agrees that if Tenant fails to execute and
deliver such release within ten (10) days after Landlord's
demand, Landlord or Landlord's beneficiary or agent may execute
and deliver such release on Tenant's behalf, and that such
release shall be fully binding on Tenant.
36. TERMINATION OPTION. Provided that Tenant has complied with
all of its covenants and agreements under the Lease (including,
but not limited to, the Termination Requirements (defined in this
Section 36)), the Lease shall terminate as of September 30, 2005
(the "Early Termination Date") in the same manner and with the
same effect as if that date had been originally fixed in the
Lease for the expiration of the Term. The "Termination
Requirements" are defined as the requirements set forth in
Section 36.1 though 36.3 hereof:
36.1 Tenant must deliver written notice to Landlord (the
"Termination Notice") of Tenant's election to terminate the Lease
as of the early Termination Date no later than December 31, 2004;
36.2 The Termination Notice must be accompanied by a wire
transfer to Landlord of immediately available funds in the amount
of $700,000; and
36.3 Tenant must, prior to the Early Termination Date, pay to
Landlord all rent and other charges as specified in the Lease
through the Early Termination Date. Any charges which cannot be
ascertained prior to the Early Termination Date shall be
reasonably estimated by Landlord and Tenant shall pay such
estimated amounts. All such amounts shall be used and held by
Landlord for payment of such obligations of Tenant, with Tenant
being liable for any additional costs upon demand by Landlord, or
with any excess to be returned to Tenant after all such
obligations have been determined and satisfied.
If Tenant fails to comply with any of the Termination
Requirements, Tenant's option to terminate as of the Early
Termination Date shall be null and void and the Lease shall
remain in full force and effect until the Termination Date (as
set forth on the Reference Page). If Tenant validly complies with
all of the Termination Requirements, Tenant must deliver the
Premises to Landlord as of the Early Termination Date free and
clear of all of Tenant's personal property, equipment and trade
fixtures and in broom clean condition and in the condition
required by Tenant as of the normal expiration of the Term of
this Lease; otherwise Landlord's rights and remedies shall be as
set forth in this Lease and Landlord may treat Tenant as a "hold-
over tenant" pursuant to the terms of Section 14.
37. RENT SCHEDULE.
Rentable Rent Per Annual Rent Monthly
Period Square Footage Square Foot Installment
____________ ______________ ___________ ________________ ___________
Commencement Date-09/30/01 70,508 13.50 951,858.00 79,321.50
10/1/2001-09/30/2002 70,508 13.91 980,413.74 81,701.15
10/1/2002-09/30/2003 70,508 14.32 1,009,826.15 84,152.18
10/1/2003-09/30/2004 70,508 14.75 1,040,120.94 86,676.74
10/1/2004-09/30/2005 70,508 15.19 1,071,324.56 89,277.05
10/1/2005-09/30/2006 70,508 15.65 1,103,464.30 91,955.36
10/1/2006-09/30/2007 70,508 16.12 1,136,568.23 94,714.02
10/1/2007-09/30/2008 70,508 16.60 1,170,665.28 97,555.44
10/1/2008-09/30/2009 70,508 17.10 1,205,785.24 100,482.10
38. DATA TUBES. Landlord acknowledges Tenant's exclusive right
to access and utilize two (2) underground PVC data tubes
(collectively, the "Data Tubes"), which connect the Buildings to
Tenant's data center located at 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxx. Tenant represents and warrants that Exhibit C
accurately describes and depicts the location of the Data Tubes.
Landlord will not interfere with or change the location of the
Data Tubes during the term of this Lease. If such interference
or relocation is required by any governmental authority or
because of an emergency (collectively the "Data Tube Issues"),
Landlord will give immediate notice thereof to Tenant, whereupon
Tenant will bear full responsibility for the prompt resolution of
the Data Tube Issues and will indemnify Landlord for any and all
costs borne by Landlord resulting from Tenant's breach of this
obligation. Any such costs shall be immediately due and payable
to Landlord as additional rent under this Lease. However, if
such interference or relocation is requested by Landlord, subject
to Tenant's consent which shall not be unreasonably withheld, for
reasons other than a governmental requirement or an emergency
(the "Landlord Data Tube Issues") and Tenant consents, Tenant
will bear full responsibility for prompt resolution of the
Landlord Data Tube Issues, and Landlord will reimburse Tenant for
any and all costs borne by Tenant in resolving the Landlord Data
Tube Issues.
39. PRIVATE DRIVEWAY. In addition to leasing the Premises,
Tenant is currently leasing the property located to the north of
the Premises (the "Northern Property") pursuant to that certain
lease dated September 30, 1992 (the "Other Lease"). Tenant
hereby acknowledges that Tenant is using a private driveway on
the north end of the Premises (and depicted on Exhibit A attached
hereto) to gain access from the Premises to the Northern Property
(the "Private Driveway"). None of the Landlord Entities shall be
liable and Tenant hereby waives all claims against them for any
damage to any property or any injury to any person in or about
the Premises or the Northern Property by or from any cause
whatsoever relating to the Private Driveway, except to the extent
caused by or arising from the gross negligence or willful
misconduct of Landlord, its agent, employees or contractors.
Furthermore, Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all losses,
claims, liabilities or costs incurred in connection with the
Private Driveway. At the earlier to occur of (a) the end of the
Term or other sooner termination of the Lease, or (b) the end of
the term of the Other Lease or other sooner termination of the
Other Lease, Tenant shall, at Tenant's sole cost and expense,
remove the Private Driveway and close up the shared access point
from the Premises to the Northern Property such that the Private
Driveway will no longer be visible and such closed area shall be
substantially similar to the other curbs enclosing the Premises
(the "Closure of the Private Driveway"). In the event Tenant
does not perform the Closure of the Private Driveway, Landlord
may perform such work and Tenant shall promptly reimburse
Landlord for any and all fees related thereto. Tenant's
obligations set forth in this Section 39 shall survive the
expiration or earlier termination of the Lease.
(THE 1NEXT ARTICLE IS ARTICLE 40)
40. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim
against Landlord under this Lease shall be limited to and
enforceable only against and to the extent of Landlord's interest
in the Building. The obligations of Landlord under this Lease
are not intended to and shall not be personally binding on, nor
shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be,
its investment manager, the general partners thereof, or any
beneficiaries, stockholders, employees, or agents of Landlord or
the investment manager.
LANDLORD: TENANT:
ZFO PROPERTIES, LLC, a ACE HARDWARE CORPORATION, a
Delaware limited liability Delaware corporation
company
666 PARTNERS, L.L.C., an
Illinois limited
liability company, its
Member
By: By: XXXXX X. XXXXXX
Xxxxxxx X. Xxxxx,
Managing Member Title: President and CEO
Dated: 7/26 , 2000 Dated: July 31, 2000
EXHIBIT B
attached to and made a part of Lease bearing the
Lease Reference Date of April 1, 2000 between
ZFO Properties, LLC, as Landlord, and
Ace Hardware Corporation, as Tenant
INITIAL ALTERATIONS
Tenant agrees to accept the Premises in its AS-IS WHERE-IS
condition with no obligation on Landlord to perform any
improvements.
EXHIBIT C
attached to and made a part of Lease bearing the
Lease Reference Date of April 1, 2000 between
ZFO Properties, LLC, as Landlord, and
Ace Hardware Corporation, as Tenant
LOCATION AND DEPICTION OF DATA TUBES
There are two 4" plastic pipes that traverse E/W between the 1220
and 1300 Buildings at the north end of each Building that are
tied into the respective telephone closets within each Building.
These same pipes exit the north end of the 1300 Building via an
underground vault that connects to two additional 4" pipes that
run parallel along the side walk that leads to the service road
at the far north boundary of the property line. These pipes
contain low voltage alarm, video, and communications wiring, plus
several strands of fiber optic cables that provide networking of
all personal computers within both Buildings and Tenant's main
frame computer located within the 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx
xx Xxx Xxxxx, Xxxxxxxx.
_______________________________
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