Exhibit 10.33
STANRD VER. 9/99
VERSION: 24 April 2000
Duplicate Original
LEASE AGREEMENT
(Office Lease)
between
P & S, LTD. PARTNERSHIP,
an Illinois limited partnership,
LANDLORD
and
E-COMMERCE EXCHANGE, Inc
a _________________________,
TENANT
Lease Dated: _____ April 2000
PAGE 1
LEASE AGREEMENT
(OFFICE SPACE)
1. BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS
1.01 Basic Lease Provisions
A. BUILDING AND ADDRESS:
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000
B. LANDLORD AND ADDRESS:
P & S, LTD. PARTNERSHIP,
an Illinois limited partnership
Office of the Building:
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
C. TENANT AND CURRENT ADDRESS:
E-COMMERCE EXCHANGE, _________.
a ______________________
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(312) ___-____
D. LEASE TERM: 1 May 2000 THROUGH AND INCLUDING
31 January 2004
OPTION TERM: none
E. KEY DATES:
1. Date of Lease: _____ April 2000
2. Possession Date: 1 May 2000
3. Lease Commencement: 1 May 2000
4. Rent Commencement: 1 May 2000
5. Lease Expiration: 31 January 2004
PAGE 2
6. Option Period Commencement: none
7. Option Period Termination: none
F. BASE RENT
1. Annual Base Rent (Commencement): $125,697.00
Monthly Installment: $ 10,474.75
2. Annual Base Rent Escalation: as scheduled infra
3. Base Rent Schedule:
MONTHLY ANNUAL
LEASE YEAR CALENDAR PERIOD BASE RENT BASE RENT
---------- ----------------------- ----------- ----------
1* 01-May-00 to 31-Jan-01 $125,697.00 $10,474.75
2 01-Feb-01 to 31-Jan-02 128,920.00 10,743.33
3 01-Feb-02 to 31-Jan-03 132,143.00 11,011.92
4 01-Feb-03 to 31-Jan-04 135,366.00 11,280.50
*: The first lease year is for a partial calendar period of nine
(9) full months; the Annual Base Rent is expressed in annualized
term.
G. ADDITIONAL RENT:
Allocable proportionate share above Base Year.
1. Base Year: 1998
2. Tenant's Proportionate Share: 1.2205%
H. DESCRIPTION OF LEASED PREMISES
Approximately 6,446 rentable square feet of space located on the 13th
floor of the Building, as depicted on Exhibit "A" attached hereto and
made a part hereof.
I. SECURITY DEPOSIT: $20,949.50
J. PERMITTED USE OF PREMISES: General Office Use
K. BROKER: Xxxxx Realty, LP
000 Xxxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
L. SPECIAL PROVISIONS: None
PAGE 3
1.02 Enumeration of Exhibits
The Exhibits set forth below and attached to this Lease are
incorporated in this Lease by this reference:
EXHIBIT A. Plan of Leased Premises
EXHIBIT A-1. Legal Description of Building
------------------------------------------
PAGE 4
2. LEASED PREMISES, TERM AND FAILURE TO GIVE POSSESSION
2.01 Lease of Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the premises (the "Leased Premises") shown on Exhibit A which are or will be
contained in the office building (the "Building") located at 000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxx, for the term and upon the conditions
provided in this Lease.
2.02 Term
The term of this Lease ("Term") shall commence on the date
("Commencement Date") specified in 1.01.E.3. The term shall expire on the date
("Expiration Date") specified in 1.01.E.5, unless sooner terminated as
otherwise provided elsewhere in this Lease.
2.03 Failure to Give Possession
If Landlord shall be unable to give possession of the Leased Premises on
the date specified in Section 1.01.E.2 ("Possession Date") by reason of any of
the following: (i) Landlord has not completed its preparation of the Leased
Premises, (ii) Landlord is unable to give possession of the Leased Premises by
reason of the holding over or retention of possession of any tenant, tenants or
occupants, or (iii) for any other reason, Landlord shall not be subject to any
liability for the failure to give possession on said date. Under such
circumstances the Monthly Base Rent reserved and covenanted to be paid herein
shall not commence until three days after the Leased Premises are available for
occupancy by Tenant (which date shall then be the Lease Commencement Date and
Rent Commencement Date, amending the dates specified in subsections 1.01.E.3
through 7 to provide full term; in such instance, the Parties shall execute an
addendum ("Commencement Date Addendum," setting forth said Lease Commencement
Date and Rent Commencement Date), and no such failure to give possession on the
specified Possession Date shall affect the validity of this Lease or the
obligations of Tenant hereunder. In the event that the afore-described delays
occurs, Landlord and Tenant shall memorialize the amended operative dates in an
addendum hereto, nor shall the same be construed to extend the term of this
Lease. If the Leased Premises are ready for occupancy prior to the Possession
Date and Tenant occupies the Leased Premises prior to said date, Tenant shall
pay Monthly Base Rent for the period of occupancy prior to the date specified in
1.01.E.4 ("Rent Commencement Date") on a proportionate per diem basis. The
Leased Premises shall not be deemed to be unready for Tenant's occupancy or
incomplete if only minor insubstantial details of construction, decoration or
mechanical adjustments remain to be done in the Leased Premises or any part
thereof, or if the delay in the availability of the Leased Premises for
occupancy shall be due to special work, changes, alterations or additions
required or made by Tenant in the layout or finish of the Leased Premises or any
part thereof or shall be caused in whole or in part by Tenant through the delay
of Tenant in submitting plans, supplying information, approving plans,
specifications or estimates, giving authorizations or otherwise or shall be
caused in whole or in part by delay and/or default on the part of Tenant and/or
its subtenant or subtenants. In the event of any dispute as to whether the
Leased Premises are ready for Tenant's occupancy, the decision of Landlord's
architect shall be final and binding on the Parties.
3. RENT
3.01 General
(A) Payment Schedule
PAGE 5
(1) Monthly Installment of Annual Base Rent
Tenant shall pay to Landlord as Annual Base Rent for the
Leased Premises from and after the date specified in Section
1.01.E.4 (the "Rent Commencement Date") the sum set forth in
Section 1.01.F, payable in Monthly Installments of Base Rent as
set forth herein, and Additional Rent, as set forth herein, on the
first day of every calendar month, in advance. The provision by
Landlord of monthly statements is a courtesy and shall not create
any liability upon Landlord therefor, or condition Tenant's
obligation to remit Monthly Rent upon receipt thereof.
(2) Additional Rent (Tenant's Proportionate Share of Taxes,
Insurance, and Operating Expenses)
Tenant shall further pay Additional Rent (which is
comprised of Taxes, Insurance, and Operating Expenses, defined
under subsection 3.02(A)), on an annual basis, unless Landlord
provides written notice to Tenant that, pursuant to subsection
3.02(B), monthly installments therefor shall be due. In the
absence of such notice, annual payments shall be due within thirty
(30) days of Tenant's receipt of written invoice therefor.
(3) Additional Rent (Remaining Charges)
Tenant shall pay all other Additional Rent (which is
comprised of all other charges, costs and sums required under the
Lease (e.g. Additional and After-Hours Services) within ten (10)
days of receipt of written invoice therefor.
In the event that the Rent Commencement Date shall occur on a day other
than the first day of the month, the payment of all Rent due for such
partial month shall be adjusted for the proportionate fraction of the
whole month and shall be due and payable on the Commencement Date. All
subsequent Rent payments shall be made and become due and payable, in
advance, on the first day of each calendar month during the term hereof.
Rent shall in same manner be prorated in the event that the date of
termination of the Lease, after either the original term or option
period, shall fall on other than the last day of the month.
(B) In the event of Tenant's failure to remit monies specified in this
section on the date due, certain late payment fees and interest charges,
as specified in subsection 25.01, may apply, in addition to all of
Landlord's other rights and remedies provided under this Lease and by
law.
3.02 Additional Rent
All other charges, costs and sums required to be paid by Tenant to
Landlord under this Lease shall be deemed Additional Rent, and together with
Monthly Installments of Annual Base Rent, shall hereinafter be collectively
called "Rent." Tenant's covenant to pay Rent shall be independent of every
other covenant in this Lease.
(A) Tenant's Obligation.
In addition to Annual Base Rent, Tenant shall reimburse to
Landlord as Additional Rent, Tenant's Proportionate Share, as set forth
in Section 1.01.G.2 hereof, of Taxes, Operating Expenses, and Insurance,
each as hereinafter defined, in excess of Landlord's
PAGE 6
actual expenses for Taxes, Operating Expenses and Insurance paid in the Base
Year.
(1) TAXES.
(a) For purposes hereof, "Taxes' shall mean all real estate taxes,
rates, levies, charges and assessments, general and special, ordinary
and extraordinary, of every kind and nature whatsoever, whether now
known to law or hereafter created, which may be taxed, charged,
assessed or levied or imposed during the term of this Lease, or any
renewal or extensions hereof, upon the Building. Any reasonable cost
incurred by Landlord in an effort to minimize, reduce, protest,
negotiate or otherwise adjust any real estate tax xxxx, tax assessment
or assessed valuation, including the cost of appraisals, witness fees
and attorneys' fees related thereto, shall be included in the
definition of Taxes. With regard to betterments and special
assessments attributable to and levied or assessed against the
Building Landlord and Tenant agree that they shall be paid for over
the maximum period allowed by laws and "Taxes" shall include only of
those installments which fall due during the term of this Lease. In
the event that Landlord secures a refund or reduction in Taxes for a
particular year for which Tenant has paid its share of Taxes
hereunder, Tenant shall be given a credit against Rent for its
proportionate share of such refund or reduction, less the reasonable
costs identified supra. In the event that the term hereunder shall
have ended, Landlord will remit such monies to Tenant in the manner
provided in 3.01(B).
(b) Anything contained in this Lease to the contrary
notwithstanding, Tenant shall not be obligated to pay any capital,
stock, franchise, income, estate, gift, inheritance, excise or other
similar taxes or impositions which may be levied against Landlord or
its successors in title. If however, at any time during the term
hereof, the methods of taxation prevailing at the Commencement Date
shall be altered so that, by virtue of new legislation which either
specifically provides or demonstrates by its legislative history that
the taxes or fees therein levied, assessed or imposed are in lieu of
or a substitute for the whole or any part of the Taxes then levied,
assessed or imposed on the Building, real estate and the improvements
thereon, and through such legislation, there shall be levied, assessed
and imposed(a) a tax, wholly or partially as a capital levy or
otherwise, on the rents received under this Lease or (b) a tax or
license fee measured by the rent payable to Landlord hereunder, then
to the extent that Landlord shall be required to pay such tax which is
attributable to the Leased Premises, Tenant shall pay and discharge
same, (or pay same to Landlord, if collected from Landlord) on the
later of thirty (30) days after being notified of such tax or prior to
delinquency, which ever is later.
(2) INSURANCE.
For purposes hereof, "Insurance" shall mean such insurance that
Landlord if required by this Lease to carry with respect to the Building,
including but not limited
PAGE 7
to, indemnifications, Landlord's fire and extended coverage and all
endorsements thereon, liability insurance incurred in connection with the
Common Areas, rent interruption, and plate glass insurance policies as such
relate to the all or any portion of the Building, underlying Land (as
described in Exhibit A-1), and Landlord's operations. The cost of Insurance
which is apportionable to Tenant shall relate to insurance which a prudent
owner would maintain, in type, amount, and deductible.
(3) OPERATING EXPENSES.
For purposes hereof, "Operating Expenses" shall mean all reasonable costs,
expenses, and disbursements of every kind and nature which Landlord shall
pay or become obligated to pay in connection with the management,
operation, maintenance, alteration, replacement and repair of the Building,
its underlying Land, and of the personal property and fixtures thereof; the
items of Operating Expenses shall be comparable to market rates at the time
at which such were incurred by Landlord.
(a) Such Operating Expenses shall include, but are not limited to,
expenditures or obligations relating to:
(i) gross salaries and wages, benefits, payroll taxes, social
security, insurance, and other payments made with respect to
employees of Landlord and independent contractors engaged in the
maintenance and/or operation of the Building, except as
hereinafter provided;
(ii) maintenance and repair of Building facia, curtain wall,
elevators, machinery, equipment, control systems, sprinklers and
fire control systems, plumbing systems, heating systems,
ventilating and cooling systems, general systems, and apparatus
located in or used in connection with such functions for the
Building, the foregoing shall not include costs attendant to
replacement of complete systems, elevators, Building facia, or
curtain wall;
(iii) reasonable administrative costs of Landlord for
bookkeeping, telephone, and other ordinary office expenses
incurred in operating the Office of the Building, except as
hereinafter provided;
(iv) janitorial, security, gardening, and utility expenses,
except as hereinafter provided;
(v) cost of charges for gas, electricity, air conditioning,
water, sewer, other utilities, refuse and rubbish removal,
exterminator services;
(vi) legal, accounting, and related professional expenses,
except as hereinafter provided;
(vii) current amortization expenses of capital improvements
reasonably necessary to reduce the costs of the operation and
maintenance of the Building. As a limitation to the foregoing
sentence, the maximum amount of items which may be
PAGE 8
included in Operating Expenses shall be the lesser of (x) the
reasonable amortization, in the manner Landlord has calculated such
amortization in the past, of the capital expense incurred to reduce
said costs of operation and maintenance and (y) the actual savings
caused by such capital expenditure. The current amortization program
concerning certain elevator renovations in the Building may be
included in Operating Expenses in accordance with generally accepted
accounting principals;
(viii) any taxes or government surcharges imposed on items allowed
under this subsection 3.02(A)(3)(a); and
(ix) any management fees, which shall be market competitive.
(b) Exclusions. Notwithstanding anything to the contrary herein,
Operating Expenses shall not include the following:
(i) cost of improvement of the Leased Premises and the premises of
other tenants of the Building;
(ii) interest and principal payments on mortgages and other debt
expenses, ground rental payments. With regard to the sale or other
transfer of the Building, any and all governmental transfer taxes,
charges, and levies, financing costs, and income taxes, including but
not limited to tax on capital gains;
(iii) real estate brokerage and leasing commissions or other
compensation, advertising expenses or any other expenses incurred in
leasing or selling the Building or any portion of the Building,
including attorneys' fees;
(iv) expenses incurred in enforcing obligations of other tenants of
the Building, including but not limited to Attorneys' fees;
(v) cost, including without limitation, any damages, awards, fines
or penalties incurred by reason of violation of Landlord or any tenant
of the Building, of any lease, contractual obligation or applicable
law or regulation;
(vi) salaries and other compensation of executive officers or
managers senior to the individual building manager;
(vii) any expenditures to the extent for which Landlord has been
paid or reimbursed (other than pursuant to rent adjustment and
escalation provision provided in leases which do not attribute such
adjustments and escalations to such expenditures and other than
pursuant to other provisions in other leases requiring payment of a
portion of such costs by other tenants);
(viii) the cost of relocating other tenants of the Building;
(ix) expenses incurred solely in connection with the organization
or internal operation of any partnership or corporations which may be
the Landlord or beneficiary of the Landlord;
(x) capital improvement to the Building or adjacent areas, costs
of maintenance programs for, or removal of hazardous materials,
PAGE 9
including without limitation, asbestos and asbestos containing
materials; costs or repairs or restoration of any portion of the
Building damaged by fire or other casualty;
(xi) costs of repairs, alterations, or replacements made as a result
of the exercise of any right of eminent domain; specific costs
attributable solely to other tenant space in the Building, or for
services provided to retail tenants but not office tenants; charitable
or political contributions;
(xii) any cost or expense applicable to or incurred in connection
with operation of a parking garage facility in or associated with the
Building; costs (other than costs to maintain) of paintings,
sculptures and other artwork within the Building; any compensation
paid to any person or entity controlled directly or indirectly by
Landlord or any principal of Landlord but only to the extent such
compensation exceeds that which would have been paid had such
services, supplies or material been provided on a competitive basis;
(xiii) costs incurred by Landlord for correcting any construction
design or construction defects to any Building structural elements,
common Building systems, and exterior walls and glass, except that
conditions resulting from ordinary wear and tear with respect to the
foregoing shall not be deemed defects and provided that normal costs
of maintenance shall not be excluded, to the extent that such items
are characterized as "non-capital" under generally accepted accounting
principles; costs of janitorial services or utilities, except with
regard solely to Common Areas; costs made necessary by non-compliance
with governing codes, by-laws, regulations, laws and ordinances, in
the event that the Landlord has purposefully caused such
non-compliance and in all other circumstances when the item is
determined under generally accepted accounting principles to be
capital in nature;
(xiv) Taxes and Insurance (addressed above). If any Operating
Expense or Insurance Expense passthrough paid in one year, relates to
more than one calendar year or to a different calendar year, such
expense shall be proportionately allocated among such calendar years,
or to such different calendar year, as may be appropriate, except that
notwithstanding anything to the contrary herein, Taxes shall be
allocated to the calendar year in which payment is due, without regard
to whether Taxes are paid in arrears.
(4) Partial Occupancy
For purposes of determining adjustments to Operating Expenses for any
Adjustment Year if the Building is not fully rented during all or a portion of
any year subsequent to the Base Year, the Landlord may elect to make an
appropriate adjustment of portions of the Operating Expenses for such year
employing sound accounting and management principles, to determine the amount of
the Operating Expenses that would have been paid or incurred by the Landlord
had the Building
PAGE 10
been fully occupied and which vary with such occupancy (i.e. cleaning and
management fees), and the amount so determined shall be deemed to have been
the amount of Operating Expenses for such year. The Base Year shall be
adjusted to comport with full occupancy in the same manner as provided
supra. Landlord agrees to adjust Operating Expenses based on partial
occupancy in a consistent manner from year to year. In no event shall
Landlord collect more than its actual expenditure for Operating Expenses by
means of this Sub-section 3.01(A)(3).
(a) "Adjustment Year" means the Calendar Year or any portion thereof
after the Commencement Date of this Lease for which a Rent Adjustment
computation is being made.
(B) Method of Payment of Additional Rent.
Taxes, Insurance and Operating Expenses are herein collectively referred to
as "Additional Rent Items." On the first day of each month from and after the
Rent Commencement Date, Tenant shall pay to Landlord, together with Tenant's
Monthly Installment of Annual Base Rent, a sum equal to one-twelfth (1/12) of
Landlord's reasonable estimate of Tenant's anticipated Proportionate Share for
that calendar year, as described in subsection 3.02(A), supra. Such monthly
payments shall be applied toward Tenant's Proportionate Share of the actual
Additional Rent Items for the current calendar year, when determined, over the
Base Year.
Within thirty (30) days after the end of each calendar year Landlord shall
notify Tenant in writing of its actual expenses for the Additional Rent Items
for such calendar year and Tenant's Proportionate Share with a statement in
reasonable detail showing such annual expenses and the amount chargeable to
Tenant, subtracting therefrom the monthly payments made by Tenant for the
calendar year. In the event that Tenant shall have paid to Landlord as
Additional Rent an amount greater than Tenant's Proportionate Share of
Additional Rent Items, Landlord shall credit such excess to Tenant's account for
purposes of Additional Rent for the succeeding calendar year. In the event that
Tenant shall have paid less than Tenant's Proportionate Share of Additional Rent
Items, Tenant shall remit to Landlord such deficiency within thirty (30) days
after receipt of Landlord's invoice and statement therefor. In the event that
Tenant has paid an amount in excess of that due as of the end of the Lease term,
Landlord shall refund such excess to Tenant within thirty (30) days after the
later of (1) the final calculation of actual Operating Expenses for the
applicable year, which will be provided on or about 1 April of the following
year or (2) Tenant fully vacating the Leased Premises. If Annual Base Rent is
abated or apportioned for any reason, the amounts due pursuant to this Section
shall similarly xxxxx or be apportioned. For the calendar years which include
the Rent Commencement Date and the end of the term, Tenant's Proportionate Share
of Additional Rent Items, if any, and its monthly payments therefor, shall be
prorated based upon the number of days after the Rent Commencement Date during
the term within such calendar month, or days prior to the end of the terms
within such month.
(C) Audit Provisions.
Tenant reserves the right, upon reasonable notice to Landlord, to make an
audit of all of Landlord's bills and records relating to the Base Year and
Tenant's Proportionate Share of Additional Rent Items and any other charge or
item Tenant is liable for under this Lease. If
PAGE 11
such audit discloses a discrepancy between the amounts actually payable by
Tenant and the amounts that Tenant has been charged or billed, Tenant
shall be allowed to deduct the overpayment from the next succeeding
minimum Rent payments. In the event that the term has expired, Landlord
shall refund such to Tenant within thirty (30) days after the later of (1)
the final calculation of actual Operating Expenses for the applicable
year, which will be provided on or about 1 April of the following year, or
as soon as practicable after the close of the previous year, or (2) Tenant
fully vacating the Leased Premises. If such audit discloses a discrepancy
in excess of five percent (5%), Landlord shall be obligated to pay all
reasonable cost actually incurred by Tenant with respect to the audit, the
cost of which is not to exceed that sum found discrepant by Tenant of its
proportion.
(D) Billing Procedure.
All billing statements concerning Additional Rent Items shall be
sent to Tenant at its address indicated in Section 1.01.C.; the Parties
acknowledge that Landlord is not obligated to provide statements for Base
Rent.
4. SECURITY DEPOSIT
4.01 General
As security for the performance of its obligations under this Lease and
the Workletter, Tenant upon its execution of this Lease shall pay to Landlord a
security deposit ("Security Deposit") in the amount specified in Section
1.01.I. The Security Deposit may be applied by Landlord to cure any default of
Tenant under this Lease, and upon notice by Landlord of such application,
Tenant shall replenish the Security Deposit in full by promptly paying to
Landlord the amount so applied. The Security Deposit may be commingled with
Landlord's other funds and Landlord shall not pay any interest on the Security
Deposit. In the event that the Security Deposit has not been paid by the Tenant
to the Landlord as of the Commencement Date of this Lease, Tenant shall be
prohibited from taking occupancy and or use of the Leased premises; there shall
be no other agreements or promises to the contrary binding upon Landlord unless
such are in writing and executed by the parties hereto. However, the Lease will
remain in effect and all obligations for any Rent obligations will continue.
Within 45 days after the Expiration Date, provided Tenant has vacated the
Leased Premises, Landlord shall return to Tenant the Security Deposit, less any
monetary damages caused by Tenant's default, expenses incurred due to damage to
the Leased Premises or the Building, and such other deductions as may be
provided under this Lease. The Security Deposit shall not be deemed an advance
payment of Rent or measure of damages for any default by Tenant under this
Lease, nor shall it be a bar or defense of any action which Landlord may at any
time commence against Tenant.
4.02 Tendering of Security Deposit and First Month's Rent, and Certain
Information
Notwithstanding any provision in this Lease to the contrary, Landlord
shall not be obligated under any covenant or agreement under the Lease until
such time that Tenant has tendered the Security Deposit and the first payment of
monthly Base Rent. Tenant must tender such within seven (7) calendar days after
the execution of the Lease. In the event that Tenant fails to so tender payment,
without notice required of Landlord to Tenant, such failure shall be an Event of
Default under Section 12.01 and Tenant shall be prohibited from taking occupancy
or commencing use of the Leased Premises. However, the Lease will remain in
effect and all Rent obligations will continue.
PAGE 12
5. SERVICES
5.01 Landlord's General Services
Landlord, as long as Tenant is not in default under any of the covenants
of this Lease, shall provide the following services:
(A) Heating and air-conditioning in the Leased Premises, Monday through
Friday from 8:00 a.m. to 6:00 p.m. and Saturdays from 8:00 a.m. to 1:00
p.m., excluding National Holidays, as defined infra, to the extent
necessary for the comfortable occupancy of the Leased Premises (subject
to all applicable voluntary and mandatory regulations and laws) under
normal business operations.
(B) Hot and cold water for use in lavatories Landlord installs for use
in common with other tenants (hot water is furnished Monday through
Friday from 8:00 a.m. to 6:00 p.m. and Saturdays from 8:00 a.m. to 1:00
p.m., excluding National Holidays). If Tenant desires water for human
consumption in the Leased Premises, cold water only shall be supplied
from the City of Chicago mains drawn through a line, meter and fixtures
installed by Tenant, at Tenant's expense, with Landlord's consent. In the
event that Tenant desires water for use within a condenser loop, subject
to Landlord's determination of availability and capacity, or purposes
other than human consumption, such shall be separately metered, such
installation and usage at Tenant's expense. Tenant shall pay Landlord as
Additional Rent, at reasonable rates fixed by Landlord, charges for all
water furnished to the Leased Premises.
(C) Customary cleaning and janitorial services in the Leased Premises,
in a manner consistent with buildings of similar quality located in the
xxxxxxx xxxxxxxx xxxxxxxx xx Xxxxxxx ("Xxxx" xxxx), Monday through
Friday, excluding National Holidays. Tenant shall contract with
Landlord's contractor for any above-standard national holidays.
(D) Washing of windows in the Leased Premises, inside and outside on a
quarterly basis.
(E) Automatic passenger elevator service in common with other tenants of
the Building and freight elevator service subject to scheduling by
Landlord.
The term National Holidays as used in this Section 5.01 shall include New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day, and such other holidays recognized by the Landlord and unions
servicing the Building in accordance with their respective contracts. Tenant
shall have access to the Leased Premises on a twenty-four hour basis, 365 days
per year, subject to the provisions under this Lease regarding causes
diminishing or precluding access beyond Landlord's reasonable control, due to
fault of Tenant or its agents, or in the event of any Tenant default hereunder.
5.02 Electrical Services
Electricity for the Leased Premises shall not be furnished by Landlord,
but shall be furnished by the approved electric utility company servicing the
area. Landlord shall permit the Tenant to receive such service direct from such
public utility company at Tenant's cost, and shall permit
PAGE 13
Landlord's wire and conduits, to the extent available, suitable and safety
capable, to be used for such purposes. Tenant shall make all necessary
arrangements with the local utility company for metering and paying for electric
current furnished by it to Tenant and Tenant shall pay for all charges for
electric current consumed on the Leased Premises during the Term of this Lease.
Tenant shall make no alterations or additions to the electric equipment and/or
appliances without the prior written consent of the Landlord in each instance.
Tenant also agrees to purchase from the Landlord all lamps, bulbs, ballast and
starters used in the Leased Premises after the installation thereof at
Landlord's then current prices, which shall be comparable to market prices.
Tenant covenants and agrees that at all times its use of electric current shall
never exceed the capacity of the feeders to the Building or the risers or wiring
installation.
5.03 Communication and Data Services
(A) Landlord Consent Required. In the event that Tenant wishes to
utilize the services of a telephone or telecommunications provider whose
equipment is not servicing the Building as of the date of Tenant's
execution of this Lease ("Provider"), no such Provider shall be permitted
to install its lines or other equipment within the Building without first
securing the prior written consent of Landlord, which consent shall not
be unreasonably withheld.
(B) Conditions to Consent. Unless all of the following conditions are
satisfied to Landlord's reasonable satisfaction, based upon a written
agreement between Provider and Landlord or by any other means acceptable
to Landlord, Landlord may refuse its consent:
(1) No Expense. Landlord shall incur no expense whatsoever with
respect to any aspect of Provider's provision of its services,
including without limitation, the costs of installation, materials,
and service;
(2) Financial Statements and Other Items. Prior to commencement of
any work in or about the Building by Provider, Provider shall supply
Landlord with such written indemnities, insurance verifications,
financial statements, and such other items as Landlord reasonably
deems to be necessary to protect its financial interests and the
interest of the Building relating to the proposed activities of the
Provider;
(3) Building Rules. Prior to the commencement of any work in or
about the Building by the Provider, the Provider shall agree to
abide by such rules and regulations, job site rules, and such other
requirements as reasonably determined by Landlord to be necessary to
protect the interest of the Building, the tenants in the Building,
and the Landlord, which may include without limitation, providing
security in such form and amount as determined by Landlord, the
requirement that said Provider enter into Landlord's
Telecommunications License Agreement and utilization of Landlord's
existing or future infrastructure;
(4) Sufficient Space. Landlord, at its sole discretion, shall
determine if there is adequate or sufficient space available in the
Building for the placement of all of the Provider's equipment and
materials. Tenant's equipment and materials must be located within
Leased premises;
PAGE 14
(5) Provider's Good Standing. The Provider is licensed, reputable,
and provides written evidence of insurance and otherwise comports with
Building requirements.
(6) Compensation for Space. Provider agrees to compensate Landlord
the reasonable amount determined by Landlord for space used in the
Building for the storage and maintenance of the Provider's equipment
and for all costs that may be incurred by Landlord in arranging for:
access by the Provider's personnel, security for Provider's equipment,
and any other such costs as Landlord may expect to incur.
(C) Consent is Not Landlord Warranty. Landlord's consent under this
section shall not be deemed any kind of warranty or representation by
Landlord, including without limitation, any warranty or representation as
to the suitability, competence, or financial strength of Provider.
(D) Tenant Pays Expenses. Tenant acknowledges and agrees that all
telephone and telecommunications services desired by Tenant shall be
ordered and utilized at the sole expense of Tenant.
(E) Tenant Responsible for Service Interruptions. Tenant agrees that to
the extent service by Provider is interrupted, curtailed, or discontinued,
Landlord shall have no obligation or liability with respect thereto and it
shall be the sole obligation of Tenant at its expense to obtain substitute
service.
(F) Landlord's Refusal to Consent. Notwithstanding any provision herein
to the contrary, the refusal of Landlord to consent to any prospective
Provider shall not be deemed a default or breach by Landlord of its
obligations under this Lease unless and until Landlord is adjudicated in a
final and unappealable court decision to have acted recklessly or
maliciously with respect to its refusal.
(G) No Third Party Rights. The provisions of this clause may be enforced
solely by the Tenant and Landlord, and are not for the benefit of any other
party, specifically, without limitation, no telephone or telecommunications
provider shall be deemed a third party beneficiary of the Lease.
5.04 Additional and After-Hour Services
Landlord shall in no event be obligated to furnish any services or
utilities, other than those specified in Section 5.01 above. If Landlord elects
to furnish services or utilities requested by Tenant in addition to those
specified in Section 5.01, Tenant shall pay Landlord's reasonable administrative
costs, and one hundred twenty percent (120%) of the Landlord's then prevailing
cost for such services and utilities (such cost specifically shall include
amortization of Landlord's equipment), within ten (10) days after receipt of
Landlord's invoices therefor such amount to be Additional Rent hereunder. If
Tenant shall fail to make any such payment Landlord may, without notice to
Tenant and in addition to Landlord's other remedies under this Lease,
discontinue any or all of the additional services.
5.05 Delays in Furnishing Services
PAGE 15
Landlord does not warrant that any of the above services will be free from
interruptions caused by an event of Force Majeure, such term including war,
insurrection, civil commotion, riots, acts of God, or the enemy, governmental
repairs, mechanical breakdown, renewals, improvements, alterations, strikes,
lockouts, picketing, whether legal or illegal, accidents, inability of Landlord
to obtain fuel or supplies or any other cause or causes beyond the reasonable
control of Landlord. No failure or delay in furnishing any service caused in
whole or in part by any one or more of the causes specified hereunder shall
result in any liability of Landlord to Tenant, or be deemed to be an eviction or
disturbance of Tenant's use and possession of the Leased Premises, or relieve
Tenant from its obligation to pay all Rent when due or from any other
obligations of Tenant under this Lease.
6. POSSESSION, USE AND ENJOYMENT OF PREMISES
6.01 Possession, Use, and Occupancy of Leased Premises
Tenant shall use and occupy the Leased Premises only to conduct the
business specified in Section 1.01.J. Tenant shall not use or occupy the Leased
Premises (or permit the use or occupancy of the Leased Premises) for any purpose
or in any manner which:
(A) is unlawful or in violation of any applicable legal, governmental or
quasi-governmental requirement, ordinance or rule (including, but not
limited to the Board of Fire Underwriters, the Illinois Environmental
Protection Agency and the United States Environmental Protection Agency);
(B) may be dangerous to persons or property;
(C) is contrary to or prohibited by the terms and conditions of this
Lease including Section 18, "Rules and Regulations," hereof.
6.02 Landlord's Access to Leased Premises
The Tenant shall permit the Landlord to erect, use and maintain pipes,
ducts, wiring and conduits in and through the Leased Premises, provided such
does not materially interfere with Tenant's business operations therein. The
Landlord or Landlord's agents shall have the right to enter upon the Leased
Premises, to inspect the same, to perform janitorial and cleaning services and
to make such repairs, alterations, improvements or additions to the Leased
Premises or the Building (including, but not limited to, any necessary
alterations to or replacement of freon-containing equipment) as the Landlord may
deem necessary or desirable or as may be required by law, and the Landlord shall
be allowed to take all material into and upon said Leased Premises that are
necessary therefor without the same constituting an eviction of the Tenant in
whole or in part and the Rent shall not xxxxx (except as provided in Section 15,
"Damage by Fire or Other Casualty") while said repairs, alterations, or
additions are being made, by reason of loss or interruption of business of the
Tenant, or otherwise. Unless an emergency exists and for regular cleaning,
Tenant shall be provided forty-eight (48) hours prior written notice for such
access; in the event of an emergency, Landlord will notify any Tenant personnel
present at the Leased Premises, and after access as soon as practicable. Tenant
may have a representative present during any such access; however, failure of
Tenant's representative to appear at the appointed time and date or during
emergencies shall not preclude access. If the Tenant shall not be personally
present to open and permit an entry into said Leased Premises, at any time, when
for any reason an entry therein shall be necessary or
PAGE 16
permissible, the Landlord or Landlord's agents may enter the same by a master
key, or may forcibly enter the same, without rendering the Landlord or such
agents liable therefor (if during such entry Landlord or Landlord's agent shall
accord reasonable care to Tenant's property), and without in any manner
affecting the obligations and covenants of this Lease herein contained,
however, such shall not be deemed or construed to impose upon the Landlord any
obligations, responsibility or liability whatsoever, for the care, supervision
or repair of the Building or any part thereof, other than as herein provided.
The Landlord shall also have the right at any time without the same
constituting an actual or constructive eviction and without incurring any
liability to the Tenant therefor, to change the arrangements and/or location of
entrances or passageways doors and doorways, and corridors, elevators, stairs,
toilets of public parts of the Building, and to close entrances, doors,
corridors, elevators or other facilities, to the extent the foregoing comprise
the common areas of the Building, and to alter and/or replace Building systems.
Except where Landlord is performing such activity, it shall not be liable to
the Tenant for any expense, injury, loss or damage result from work done in or
upon, or the use of, any adjacent or nearby building, land, street or alley.
Such work performed by Landlord shall be at its expense. Landlord shall
exercise reasonable efforts to minimize disruptions to Tenant's operations and
conduct such work during other than regular business hours.
6.03 Tenant's Quiet Enjoyment
Landlord warrants that it has good and marketable fee simple title to
the Leased Premises and Building, that it has full right and lawful authority
to enter into this Lease for the full term hereof, that Tenant will be put in
possession of the Leased Premises when Tenant desires and is entitled
hereunder, and that Tenant, on paying the rent and performing all of the other
terms, conditions and provisions of the Lease to be performed by Tenant, shall
peaceable and quietly have, hold and enjoy the Leased Premises for the full
term of this Lease provided Tenant is not in default hereunder.
7. CONDITION OF PREMISES
Tenant shall notify Landlord in writing thirty (30) days after Tenant
takes possession of the Leased Premises of any defects in the Leased Premises
claimed by Tenant. Except for defects stated in such notice, Tenant shall be
conclusively deemed to have accepted the Leased Premises in the condition
existing on the date Tenant first takes possession, and to have waived all
claims period of one year from the earlier of (a) conclusion of Landlord's
construction, if any, of the improvements to the Leased Premises or (b)
Tenant's occupancy of the Leased Premises. No agreement of Landlord to alter,
remodel, decorate, clean or improve the Leased Premises or the Building and no
representation regarding the condition of the Leased Premises or the Building
has been made by or on behalf of Landlord to Tenant except as stated in this
Lease.
8. ASSIGNMENT AND SUBLETTING
8.01 Consent Required
Without prior written consent of Landlord, Tenant may not sublease,
assign, mortgage, pledge, hypothecate or otherwise transfer or permit the
transfer of this Lease or the interest of Tenant in this Lease, in whole or in
part, by operation of law or otherwise. The withholding or granting of any such
consent shall be in the sole discretion of the Landlord. If Tenant desires to
enter into any
PAGE 17
sublease or assignment of the Leased Premises, Tenant shall deliver written
notice thereof to Landlord, together with financial and other information
sufficient for Landlord to make an informed judgment with respect to such
proposed subtenant or assignee and a copy of the proposed sublease or assignment
agreement at least 20 days prior to the commencement date of the term of the
proposed sublease or assignment. In making its determination of whether to
consent to any proposed sublease or assignment, Landlord may take into
consideration the business reputation and credit worthiness of the proposed
subtenant or assignee; the intended use of the Leased Premises by the proposed
subtenant or assignee; the estimated pedestrian and vehicular traffic in the
Leased Premises and to the Building which would be generated by the proposed
subtenant or assignee; and any other factors which Landlord shall deem relevant;
provided, that Landlord shall in no event be obligated to consider a consent to
any proposed sublease or assignment of the Leased Premises if Tenant is then in
default under this Lease. The withholding or granting of any such consent shall
be in the sole discretion of Landlord. Any approved sublease or assignment shall
be expressly subject to the terms and conditions of this Lease. In the event
that the premises or any portion thereof are sublet or assigned at a rate that
is greater than the Monthly Base Rent set forth herein (the monies collected
from sublessee or assignee in excess of Monthly Base Rent hereinafter "Net
Profits") Tenant shall, on the first day of each month during the term of such
sublease or assignment, pay to Landlord, in addition to the Monthly Installment
of Annual Base Rent due under this Lease, all of the Net Profits due from
assignee or subtenant for each month.
8.02 Exclusion from Lease
In the event Tenant desires to enter into any sublease or assignment
of the Leased Premises, Landlord shall have the option to exclude from the
Leased Premises covered by this Lease, the space proposed to be sublet or
assignment by Tenant, effective as of the proposed commencement date of
sublease or assignment of said space by Tenant. Landlord may exercise said
option by giving Tenant written notice thereof within forty-five (45) days after
receipt by Landlord of Tenant's notice of the proposed sublease or assignment.
In the event Landlord exercises said option, Tenant shall surrender possession
of the proposed space subject to sublease or assignment to Landlord on the
effective date of exclusion of said space from the Leased Premises covered by
this Lease, and neither party hereto shall have any further rights or
liabilities with respect to said space under this Lease. Effective as of the
date of exclusion of any portion of the Leased Premises covered by this Lease
pursuant to this paragraph, (i) the Monthly Installments of Annual Base Rent
specified in subsection 1.01.F shall be reduced in the same proportion as the
number of square feet of rentable area contained in the portion of the Leased
Premises so excluded bears to the number of square feet of rentable area
contained in the Leased Premises prior to such exclusion, and (ii) the rentable
area of the Leased Premises specified in subsection 1.01.H and Tenant's
Proportionate Share specified in subsection 1.01.G.2. shall be decreased in the
same proportion that the Leased Premises has been decreased, for all purposes
under this Lease.
8.03 No Release
In the event of any approved sublease or assignment, Tenant shall not
be released or discharged from any liability, whether past, present or future,
under this Lease, including any renewal term of this Lease. For purposes of
this Section 8, an assignment shall be deemed to include a change in the
majority control of Tenant, if Tenant is a partnership or a corporation whose
shares of stock are not traded publicly. If Landlord grants consent to such
sublease or assignment, Tenant shall pay all of the reasonable attorneys' fees
of Landlord incurred with respect to such assignment
PAGE 18
or sublease. In addition, if Tenant has any options to extend the term of this
Lease such, options shall not be available to any subtenant, directly or
indirectly.
9. MAINTENANCE
9.01 Landlord's Maintenance
Landlord shall maintain and make necessary repairs to foundations, roofs,
exterior walls, marquees, and the structural elements of the Building, and,
subject to the provisions of Section 15, the electrical, plumbing, heating,
ventilation and air conditioning systems of the Building and the public
corridors, washrooms and lobby of the Building, except that:
(A) Landlord shall not be responsible for the maintenance or repair of any
such systems which are located within the Leased Premises or which are
supplemental or special to the Building's standard systems or floor or
wall coverings or fixtures in the Leased Premises; and
(B) the cost of performing any of said maintenance or repairs caused by
the negligence of Tenant, its employees, agents, servants, licensees,
subtenants, contractors or invitees, shall be paid by Tenant, except to
the extent of insurance proceeds, if any, actually collected by Landlord,
as Additional Insured, with regard to the damage necessitating such
repairs. As used in this Section 9.01, the "exterior walls" do not include
interior glass, windows, doors, window sashes or frames, door frames or
office fronts of the Leased Premises.
9.02 Tenant's Maintenance
Tenant, at its expense, shall keep and maintain the Leased Premises in
good order, condition and repair and in accordance with all applicable legal,
governmental and quasi-governmental statutes, requirements, ordinances and
rules, including but not limited to the Board of Fire Underwriters and the
Americans with Disabilities Act, as such may be amended or replaced from time to
time. Tenant shall promptly and adequately, under the control and supervision of
Landlord as provided under Article 10, infra, (A) repair all damage to the
Leased Premises, (B) replace or repair all damaged or broken glass in the
interior of the Leased Premises, fixtures or appurtenances, and (C) repair all
damage to the Building caused by Tenant's employees, contractors, invitees, or
agents. If Tenant fails to perform any of its obligations set forth in this
Section 9.02, Landlord may, in its sole discretion, perform the same, and Tenant
shall pay to Landlord the cost thereof upon demand. In the event that Landlord
provides its approval, if required or volunteered, such shall create no
responsibility or liability on the part of the Landlord for the completeness,
design, sufficiency, or compliance with the afore-mentioned laws, regulations,
and requirements.
10. ALTERATIONS AND IMPROVEMENTS
10.01 Tenant's Alterations
Tenant shall not, without the prior written consent of Landlord, make or
cause to be made any alterations, improvements, additions, installations, or
decorations in or to the Leased Premises. If Landlord so consents, before
commencement of any such work or delivery of any materials to the Leased
Premises or the Building, Tenant shall furnish to Landlord for approval:
architectural plans and specifications, names and addresses of all contractors
and subcontractors, copies of all contracts,
PAGE 19
affidavits from engineers acceptable to Landlord stating that the alterations
will not in any way adversely affect the mechanical, heating, ventilation, air
conditioning, and the electrical systems in the Building, necessary permits and
licenses, certificates of insurance and instruments of indemnification against
any and all claims, costs expenses, damages and liabilities which may arise in
connection with such work, and such other documents reasonably requested by
Landlord, all in such form and amount as may be satisfactory to Landlord.
Landlord shall respond in writing to Tenant within fifteen (15) days after
receipt of any information necessitating the consent or approval of Landlord,
indicating reasons for its refusal to consent. In addition, prior to
commencement of any such work or delivery of any materials into the Leased
Premises, Tenant shall provide Landlord with appropriate evidence of Tenant's
ability to pay for such work and materials in full, and if requested by
Landlord, shall deposit with Landlord at such time such security for the
payment of said work and materials as Landlord may require. Whether or not
Tenant furnishes the foregoing, Tenant agrees to indemnify, defend and hold
Landlord, the beneficiaries of Landlord, the parties of such beneficiaries, any
mortgage of the building, the Manager and their respective directors, offices,
agents and employees (hereinafter for convenience sometimes collectively
referred to as the "Landlord Indemnitees") harmless against all claims and
liabilities of every kind, nature and description which may arise out of or in
any way be connected with such work, including, but not limited to,
environmental related claims and/or liabilities. All such work shall be done
only by contractors or mechanics approved by the Landlord and at such time and
in such manner as Landlord may from time to time designate. Tenant shall pay
the cost of all such work and the cost of decorating the Leased Premises and
the Building occasioned thereby. Upon completion of such work, Tenant shall
furnish Landlord with Contractors' affidavits and full and final waivers of
lien and receipted bills covering all labor and materials expended and used in
connection therewith together with any governmental acceptances required by
applicable law. All such work shall be performed and completed in accordance
with all applicable legal, governmental and quasi-governmental statutes,
requirements, ordinances and rules, including but not limited to the Board of
Fire Underwriters, federal and state EPA, ADA, and all requirements of
applicable insurance companies, as such may be amended or replaced from time to
time. In the event that Landlord provides its approval, if required or
volunteered, such shall create no responsibility or liability on the part of
the Landlord for the completeness, design, sufficiency, or compliance with the
afore-mentioned laws, regulations, and requirements. All such work shall be
done in a good and workmanlike manner and with the use of good grades of
materials. Tenant shall pay Landlord a fee based on a fifteen percent (15%)
xxxx-up of the cost of the work to be completed for coordinating and
supervising construction operations in connection with such work. In no event
shall such supervision by Landlord nor shall any approvals given by Landlord
under this Lease constitute any warranty by Landlord to Tenant of the adequacy
of the design, workmanship of quality of such work or materials for Tenant's
intended use or impose any liability upon Landlord in connection with the
performance of such work. All alterations, improvements, temporary or
permanent, additions and installations to or on the Leased Premises, whether
placed there by Landlord or Tenant, shall, unless Landlord requests their
removal, become part of the Leased Premises at the time of their installation
and shall remain in the Leased Premises at the expiration or termination of
this Lease, or termination of Tenant's right of possession of the Leased
Premises, without compensation or credit to Tenant.
10.02 Liens
Tenant shall not permit any lien or claim for lien of any mechanic, labor
or supplier or any other lien to be filed against the Building, the Land (as
hereinafter defined), the Leased Premises, or
PAGE 20
any part thereof arising out of work performed, or alleged to have been
performed by, or at the direction of, or on behalf of Tenant. If any such lien
or claim for lien is filed, Tenant within 14 days after notice of such lien or
claim for lien, shall have such lien or claim for lien released of record or
shall deliver to Landlord either:
(A) a bond in form, content, amount and issued by surety, satisfactory to
Landlord, indemnifying Landlord, the Indemnitees and others designated by
Landlord against all costs and liabilities resulting from such lien or
claim for lien and the foreclosure or attempted foreclosure thereof, or
(B) endorsements to the title policies of Landlord and Landlord's
mortgagee "insuring over" such liens satisfactory to Landlord and
Landlord's mortgagee, respectively.
If Tenant fails to have such lien or claim for lien so released or to deliver
such bond or title endorsement to Landlord, the Landlord, without investigating
the validity of such lien, may pay or discharge the same, and Tenant shall
reimburse Landlord upon demand for the amount so paid by Landlord, including
Landlord's expenses and attorneys' fees.
10.03 Landlord's Work
It is further agreed that this Lease is made by the Landlord and accepted
by the Tenant with the distinct understanding and agreement that the Landlord
shall have the right and privilege to make and build additions to the Building
of which the Leased Premises are a part, and make such installations,
alterations (which alterations may include alteration or replacement of
freon-based HVAC equipment), replacements and repairs (including the erection of
scaffolding and barricades) to said Building interior and exterior as it may
deem wise and advisable without any liability to the Tenant therefor. During any
disruption caused by Landlord's work, this Lease and all obligations, including
the obligation to pay Rent, shall continue in full force and effect. In no event
shall any Landlord Indemnitee be liable for any loss, cost, expense, demand,
damage or injury to or suffered by Tenant, its employees, agents, invitees,
representatives, heirs, successors, assigns, or any other person or entity
claiming by, through or under the foregoing, or any property, real or person,
owned by any of the foregoing, in connection with such alteration, installation,
repairing and/or replacement of Building systems and or any asbestos removal,
abatement or containment occasioned thereby. Such work performed by Landlord
shall be at its expense. Landlord shall exercise reasonable efforts to minimize
disruptions to Tenant's operations and conduct such work during other than
regular business hours.
11. WAIVER OF CLAIMS AND INDEMNITY
11.01 Tenant
(A) Waiver of Claims
To the extent permitted by law, Tenant releases the Landlord
Indemnitees from, and waives all claims for, damage to property sustained
by the Tenant or any occupant of the Leased Premises resulting from any
act or neglect of Landlord or its employees, agents or servants. The
foregoing waiver of claims by Tenant in favor of Landlord shall be limited
to the greater of (1) the extent insurance coverage is maintained by
Tenant or (2) the insurance coverage which would be maintained by a
reasonably prudent person in the position of
PAGE 21
Tenant.
(B) Indemnification
Tenant agrees to indemnify and hold the Landlord
Indemnities harmless against any and all claims, demands, costs and expenses for
injury to person or property, including reasonable attorney's fees for the
defense thereof, arising from Tenant's occupation of the Leased Premises or from
any breach or default on the part of Tenant in the performance of any covenant
or agreement on the part of Tenant to be performed pursuant to the terms of this
Lease, or from any act of negligence of Tenant, its agents, servants, employees
or invitees, in or about the Building, Leased Premises, or at other locations,
subject to the waiver provision infra. In case of any action or proceeding
brought against the Indemnitees by reason of such claim, upon notice from
Landlord, Tenant covenants to defend such action or proceeding by counsel
reasonably satisfactory to Landlord.
11.02 Landlord Indemnification
Landlord agrees to indemnify and hold the Tenant Indemnitees
harmless against any and all claims, demands, costs and expenses for injury to
person or property, including reasonable attorney's fees for the defense
thereof, arising from any breach or default on the part of Landlord in the
performance of any covenant or agreement on the part of Landlord to be
performed pursuant to the terms of this lease, or from any act of negligence of
Landlord, its agents, servants, employees or invitees, in or about the Building
or at other locations, subject to the waiver provision supra. In case of any
action or proceeding brought against the Indemnitees by reason of any such
claim, upon notice from Tenant, Landlord covenants to defend such action or
proceeding by counsel reasonably satisfactory to Tenant.
12. LANDLORD'S REMEDIES
12.01 Events of Default
Each of the following shall constitute a breach of this Lease by
Tenant and, in the event that Tenant fails to cure said breach within the
applicable period, if any, an Event of Default by Tenant:
(A) Tenant fails to pay any Monthly Installment of Annual Base
Rent or other payment of Rent when due;
(B) Tenant fails to observe or perform any of the other
covenants, conditions or provisions of this Lease or under the Workletter to be
observed or performed by Tenant and fails to cure such default within the time
periods provided in this Lease or, if not so provided, within fifteen (15) days
after written notice thereof to Tenant.
(C) the interest of Tenant in this Lease is levied upon under
execution or other legal process and such action is not dismissed within
fifteen (15) days thereof;
(D) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any Chapter
of the Bankruptcy Act, or any amendment, replacement or substitution therefor,
or to delay payment of, reduce or modify Tenant's debts, or any petition is
filed or other action taken to reorganize or modify Tenant's
PAGE 22
capital structure or upon the dissolution of Tenant, and such action is not
dismissed within fifteen (15) days thereof;
(E) Tenant is declared insolvent by law or any assignment of Tenant's
property is made for the benefit of creditors;
(F) a receiver is appointed for Tenant of Tenant's property, and such
action is not dismissed within fifteen (15) days thereof; or
(G) Tenant abandons the Leased Premises.
12.02 Landlord's Remedies
In the event of any default under this Lease by Tenant, Landlord, at
its option, without further notice or demand to Tenant, may, in addition to all
other rights and remedies provided in this Lease, at law or in equity exercise
the following rights:
(A) Landlord shall have the immediate right of re-entry and may
remove all persons and property from the Leased Premises and such property may
be removed and stored in a public warehouse at the cost of, and for the account
of Tenant, after service of notice and resort to legal process but without
being deemed guilty of trespass, or becoming liable for any loss or damages
which may be occasioned thereby;
(B) Landlord may, from time to time, without terminating this Lease,
and without releasing Tenant in whole or part from Tenant's obligation to pay
Rent and perform any of the covenants, conditions and agreements to be
performed by Tenant as provided in this Lease, make such alterations and
repairs as may be necessary in order to relet the Leased Premises. Landlord
shall exercise reasonable business judgment, including but not limited to
consideration of market conditions and the type and reputation of the proposed
replacement tenant to relet the Leased Premises or any part thereof for such
period (which may be for a term extending beyond the Term of this Lease), at
such rental rates, and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable; upon each such reletting all rent received
by the Landlord from such reletting shall be applied first, to the payment of
any indebtedness other than the Rent due hereunder from Tenant to Landlord,
including but not limited late fees and interest; second, to the payment of any
costs and expenses of such reletting, including brokerage fees and attorneys'
fees and of costs of such alterations and repairs; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future Rent as the same may become due and
payable hereunder. If such rent payments received form reletting during any
month be less than that to be paid during that month hereunder, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. Landlord may apply its reasonable criteria as to the
acceptability of a prospective tenant for said relet, including but not limited
to its financial status, business reputation and activity, proposed use of the
premises, violation of exclusive rights granted others at the time, and
character of tenant population. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach;
PAGE 23
(C) Landlord may terminate this Lease in which event it may recover
from Tenant all damages it may incur by reason of such breach, including the
cost of recovering the Leased Premises, reasonable attorneys' fees, and the
amount of Rent and charges equivalent to Rent reserved in this Lease for the
remainder of the stated Term, all of which amounts shall be immediately due and
payable from Tenant to Landlord. Landlord shall use good faith efforts to
mitigate damages in the event of Tenant's default.
The Landlord's re-entry, demand for possession, a notice that the
tenancy hereby created will be terminated on the date therein named, institution
of an action of forcible detainer or ejectment or the entering of a judgment
for possession in such action, or any other act or acts resulting in the
termination of Tenant's right to possession of the Leased Premises shall not
relieve Tenant from Tenant's obligation to pay the Rent hereunder during the
balance of the Term or any extension thereof, except as herein expressly
provided. The Landlord may collect and receive any Rent due from Tenant, and
the payment thereof shall not constitute a waiver of default or affect any
notice or demand given, suit instituted or judgment obtained by Landlord, or be
held to waive, affect, change, modify or alter the rights or remedies which
Landlord has in equity or at law or by virtue of this Lease.
12.03 Waiver of Notice
Tenant hereby expressly waives the service of any notice of any
election of remedies made by Landlord under this Section 12, demand for payment
of Rent or for possession, except any form of demand and notice (including, but
not limited to a five-day notice) prescribed by any applicable statute or other
law.
13. SURRENDER OF PREMISES
13.01 General
Upon expiration or termination of this Lease or termination of Tenant's right
of possession of the Leased Premises, or any part thereof, for any reason
whatsoever, Tenant shall surrender and vacate the Leased Premises immediately
and deliver possession thereof to Landlord in a clean, good and tenantable
condition, ordinary wear and tear excepted, including removal of all personal
property not permanently affixed. For purposes hereof, the term "personal
property" shall include, but is not limited to, office furniture and equipment,
safes, and supplies, all such personal property not being affixed to the
ceiling, floor, or walls of the Leased Premises. With regard to any
improvements which were not authorized by Landlord, at Landlord's option,
Tenant shall remove such improvements and return the Leased Premises to their
original condition, ordinary wear and tear excepted, or abandon such leasehold
improvements to Landlord, title thereto passing to Landlord. For purposes
hereof, the term "leasehold improvements" shall include, but is not limited to,
original build-out, Landlord-authorized Tenant's subsequent improvements,
unauthorized improvements, and Landlord work performed at Tenant's request. In
the event that Tenant fails to remove all personal property, Landlord may
remove such at Tenant's expense; in such circumstance, Tenant abandons such
personal property to Landlord, title thereto passing to Landlord free and clear
of all encumbrances and Tenant indemnifying Landlord therefor. Tenant shall
additionally comply with such Rules and Regulations as may apply to moving out
of the Leased Premises and Building.
13.02 Removal of Certain Chemicals and Related Equipment
PAGE 24
(A) In addition, upon termination of this Lease or Tenant's right of
possession of the Leased Premises, whether by lapse or time or
otherwise, Tenant shall remove any and all equipment situated on the
Leased Premises, which Tenant has installed therein (regardless of
Landlord's prior written consent therefor), which contain or use freon,
chlorofluorocarbons, or any material which is deemed hazardous or
regulated under applicable municipal ordinances and state and federal
statutes, regulations, or other governmental restrictions. Such removal
shall be done in accordance with all legal requirements and industry
practices by a qualified contractor, and the procedures of Section
10.01 hereof with respect to alterations shall apply. Specifically, but
without limitation, all plans and drawings for removal of such equipment
and/or materials and all contractors to be employed in connection
therewith shall be approved by Landlord, the work shall proceed
expeditiously and in good and workmanlike manner, and Landlord and its
representatives shall have full and unlimited access to the Leased
Premises to ensure that all proper procedures for removal of such
materials and/or equipment are being followed and to assure that the
Building and Building systems are not being affected and no asbestos
problem is being created as a result of such removal.
(B) Tenant, at its sole cost and expense, shall be required to repair
and restore the Leased Premises and the Building and any part thereof
which may be damaged as a result of the removal of the items described
in subsection 13.02(A), no matter how extensive such damage may be
including, but not limited to, any asbestos abatement, containment or
removal which may be necessitated as a result of such work. Tenant
agrees to indemnify, defend and hold harmless the Indemnitees from and
against any and all losses, costs, expenses, damages, liability, claims,
demands, causes of action and fees (including, but not limited to, any
asbestos abatement, containment or removal which may be necessitated as
a result of such work). Tenant agrees to indemnify, defend and hold
harmless the Indemnitees from and against any and all losses, costs,
expenses, damages, liability, claims, demands, causes of action and fees
(including, but not limited to, reasonably attorneys' fees) of whatever
nature which may arise from or be attributable to the work required to
be done hereunder, including, but not limited to, tenant losses for
business interruption and contamination cleanup. In the event Tenant
fails or refuses, for any reason whatsoever, to perform or cause to be
performed the aforesaid removal, Landlord shall be entitled to cause
such work to be done without affecting or waiving any liability or
responsibility of Tenant therefor.
13.03. Personal Property
Upon any termination which occurs other than by reason of Tenant's
default, Tenant shall be entitled to remove from the Leased Premises all movable
personal property of Tenant, provided Tenant immediately shall repair all damage
resulting from such removal and shall restore the Leased Premises to a
tenantable condition. In the event possession of the Leased Premises is not
immediately delivered to Landlord or if Tenant shall fail to remove all of
Tenant's movable personal property, as aforesaid, Landlord may remove any of
such property therefrom without any liability to Tenant. Landlord shall give
written notice to Tenant of the existence of such personal property and Tenant
shall retrieve such from Landlord, wherever located, within thirty (30) days
thereafter. All movable personal property which may be removed from the Leased
Premises by Landlord shall be conclusively presumed to have been abandoned by
Tenant and title thereto shall pass to Landlord,
PAGE 25
free and clear of all encumbrances and Tenant indemnifying Landlord therefor,
without any cost or credit therefor and Landlord may, at its option and at
Tenant's expense, store and/or dispose of such property.
14. HOLDING OVER
If Tenant retains possession of the Leased Premises after the Expiration
Date of the Term set forth in Section 1.01.E.5, or the termination or
expiration of this Lease for any other reason, Tenant shall pay Landlord double
the Monthly Base Rent, for the final month of the Term for each month or
partial month after the expiration or termination of this Lease. The provisions
of this Article shall not constitute a waiver by Landlord or any re-entry rights
of Landlord hereinbefore or by law provided. Payment by Tenant of monies
pursuant to this Article shall not be construed as liquidated damages or a
limitation upon Landlord's remedies in the event that Landlord is reasonably
unable to consummate a transaction with a third party prospective tenant due to
Tenant's unauthorized holdover.
15. DAMAGE BY FIRE OR OTHER CASUALTY
15.01 Substantial Untenantability.
If the Building or the Leased Premises are made substantially
untenantable by fire or other casualty, Landlord may elect either to:
(A) terminate this Lease as of the date of the fire or other casualty
by giving Tenant written notice thereof within ninety (90) days after
said date; or
(B) proceed to repair or restore the Building or the Leased Premises,
other than leasehold improvements and personal property paid for or
installed by Tenant, and this Lease shall remain in full force and
effect.
If Landlord elects to proceed with subsection (B) above, Landlord shall
notify Tenant thereof within ninety (90) days after the date of such fire or
other casualty, which notice shall contain Landlord's reasonable estimate of
the time required to substantially complete such repair or restoration. In the
event such estimate indicates that the time so required will exceed two hundred
fifty (250) days from the date of the casualty, then Tenant shall have the
right to terminate this Lease as of the date of such casualty by giving written
notice thereof to Landlord not later than twenty (20) days after the date of
Landlord's notice. If Landlord's estimate indicates that the repair or
restoration can be substantially completed within said two hundred fifty (250)
days from the date of the casualty, or if Tenant fails to exercise its right to
terminate this Lease, as aforesaid, this Lease shall remain in force and effect.
15.02 Insubstantial Untenantability
If the Leased Premises or the Building are damaged by fire or other
casualty but neither is rendered substantially untenantable, then Landlord
shall proceed to repair and restore the Building or the Leased Premises, other
than the leasehold improvements and personal property paid for or installed by
Tenant, unless such damage occurs during the last twelve (12) months of the
Term, in which event Landlord shall have the right to terminate this Lease as
of the date of such fire or other casualty by giving written notice thereof to
Tenant within thirty (30) days after the date of such fire
PAGE 26
or other casualty.
15.03 Leasehold Improvements
In the event the Leased Premises or the Building are damaged by fire or
other casualty, and this Lease is not terminated, Tenant shall proceed to
repair and restore all leasehold improvements and personal property paid for or
installed by or for the benefit of Tenant, in accordance with the provisions of
Section 10 hereof. In the event such leasehold improvements and/or personal
property use or contained chlorofluorocarbons and substitute or alternative
materials and/or equipment are then commercially available, Tenant shall alter
and/or replace such leasehold improvements and/or personal property in
accordance with the terms and provisions of this Lease.
15.04 Rent Abatement
Except for the negligence or willful act of Tenant or its agents,
employees, contractors or invitees, if all or any part of the Leased Premises
are rendered substantially untenantable by fire or other casualty and this Lease
is not terminated, Monthly Base Rent shall xxxxx for that part of the Leased
Premises which is untenantable on a per diem basis from the date of the fire or
other casualty until Landlord has substantially completed the repair and
restoration work in the Leased Premises which it is required to perform,
provided, that as a result of such fire or other casualty, Tenant does not
occupy the portion of the Leased Premises which is untenantable during such
period.
16. EMINENT DOMAIN
16.01 Taking of Whole or Substantial Part
In the event the whole or any substantial part of the Land, Building or
Leased Premises is taken or condemned by any competent authority for any public
use or purpose (including a deed given in lieu of condemnation), this Lease
shall terminate as of the date title vests in such authority, and Rent shall be
apportioned as of said date.
16.02 Taking of Part
In the event that less than all or a substantial part of the Building or
Leased Premises, or the entirety thereof for a temporary period, is taken or
condemned by any competent authority for any public use or purpose (including a
deed given in lieu of condemnation) and this Lease is not terminated pursuant to
Section 16.01, the Lease shall be amended to reduce Rent, and otherwise reflect
the decrease in space within the Leased Premises, in the same ratio as the
number of square feet of rentable area in the Leased Premises so taken or
condemned bears to the number of square feet of rentable area then leased by
Tenant. Landlord, upon receipt and to the extent of the award in condemnation or
proceeds of sale, shall make necessary repairs and restorations (exclusive of
Tenant's leasehold improvements and personal property paid for or installed by
or for the benefit of Tenant, which shall be restored in accordance with the
provisions of Section 15.03 hereof) to restore the Leased Premises remaining to
as near its former condition as circumstances will permit, and to the Building
to the extent necessary to constitute the portion of the Building not so taken
or condemned as a complete architectural unit. In the event of a partial taking
or condemnation of the Leased Premises and/or the Building as herein described,
the rentable area of the Leased Premises then leased by Tenant and/or the
rentable area of the Building as specified in this Lease, respectively, shall be
reduced for all purposes under this Lease by the number of square feet of
rentable area of the Leased Premises and/or the Building as specified in this
Lease, respectively, so
PAGE 27
taken or condemned. Notwithstanding the foregoing, if as a result of any taking
including a governmental order that the grade of any street or alley adjacent to
the Building is to be changed and such taking or change of grade makes it
necessary or desirable to substantially remodel and restore the Building,
Landlord shall have the right to terminate this Lease upon 90 days prior written
notice.
16.03 Compensation
Landlord shall be entitled to receive the entire price or award from any
such sale, taking or condemnation without any payment to Tenant, and Tenant
hereby assigns to Landlord Tenant's interest, if any, in such award; provided,
however, Tenant shall have the right separately to pursue against the condemning
authority an award in respect of the loss, if any, to leasehold improvements
paid for by Tenant without any credit or allowance from Landlord or deduction
from the Landlord's award.
17. TENANT'S INSURANCE
17.01 Minimum Insurance
Tenant, at Tenant's expense, agrees to maintain in force during the Term:
(A) Comprehensive General Liability Insurance on an occurrence basis with
minimum limits of liability in an amount of One Million Dollars
($1,000,000) for bodily injury, personal injury or death to any one person
and Three Million Dollars ($3,000,000) for bodily injury, personal injury
or death to more than one person and Five Hundred Thousand Dollars
($500,000) with respect to damage to property, including water and
sprinkler damage; and
(B) Fire Insurance, with extended coverage, vandalism and malicious
mischief endorsements, in an amount adequate to cover the full replacement
value of all leasehold improvements and all fixtures, contents and wall
and floor coverings in the Leased Premises.
17.02 Additional Insureds; Endorsements
The policy referred to in 17.01 shall name the Landlord Indemnitees as
additional insureds and shall not provide for deductible amounts in excess of
One Thousand Dollars ($1,000). Each policy referred to in 17.01 shall be issued
by one or more responsible insurance companies licensed to do business in
Illinois and reasonably satisfactory to Landlord and shall contain the following
provisions and endorsements:
(A) that such insurance may not be canceled or amended without thirty
(30) days' prior written notice to the Landlord;
(B) an express waiver of any right of subrogation by the insurance
company against the Landlord Indemnitees; and
(C) that the policy shall not be invalidated should the insured waive in
writing prior to a loss, any or all rights of recovery against any party
for losses covered by such policies.
17.03 Certificates
Tenant shall deliver to Landlord, certificates of insurance of all
policies and renewals thereof
PAGE 28
to be maintained by Tenant hereunder, not less than ten (10) days prior to the
Commencement Date and not less than ten (10) days prior to the expiration date
of each policy.
17.04 Waiver of Subrogation
Notwithstanding any provision in this Lease to the contrary, but subject to
Article IX concerning Tenant's maintenance and repair obligations, the parties
release each other, and their respective authorized representatives, from any
claims for damage to any person or to the Leased Premises and the Building, and
to the fixtures, personal property, Tenant's improvements, and alterations of
either Landlord or Tenant in or on the Leased Premises and the Building that are
caused by or result from risks insured against under any insurance policies
carried by the parties and in force at the time of any such damage.
Since this mutual waiver will preclude the assignment of any such claim by
subrogation (or otherwise) to an insurance company (or any other person),
Landlord and Tenant each agree to give each insurance company which has issued,
or in the future may issue, its policies of fire, extended coverage or material
damage insurance written notice of the terms of this mutual waiver, and to have
such insurance policies properly endorsed if necessary, to prevent the
invalidation of any of the coverage provided by such insurance policies by
reason of such mutual waiver.
18. RULES AND REGULATIONS
18.01 General
Tenant agrees for itself and for its subtenants, employees, agents, and
invitees to comply with the following rules and regulations and with all
reasonable modifications and addition thereto which Landlord may make time to
time, which shall neither conflict with an express provision hereof, materially
interfere with Tenant's business operations, nor materially increase Tenant's
monetary costs; Landlord shall give Tenant written notice of any changes to
Rules and Regulations;
(A) Move-in, Move-out Rules.
Tenant shall, fifteen (15) days prior thereto, provide written notice
to the Landlord by hand delivery, facsimile, or regular mail, of its
intention to move into, or out of, the Leased Premises and comply with the
following:
(1) Move-ins.
Tenant may not move into its Leased Premises until the Security
Deposit and first month's installment of Base Rent are remitted to the
Landlord.
(2) Move-outs.
Tenant may not schedule a move-out unless it has a fully funded
Security Deposit; if no Security Deposit is required under the Lease,
then Tenant shall pre-pay additional costs (if any) for extra-hours
elevator use and other Landlord services, and shall guarantee the
payment of any other items which Landlord may reasonably charge.
Tenant shall schedule with the Office of the Building the date and
time period. Tenant acknowledges that while Landlord will cooperate to
effect the move efficiently and speedily, use of elevators and other
services may be interrupted in unavoidable
PAGE 29
circumstances.
Tenant shall tender to the Landlord a Certificate of Insurance, or
shall have previously tendered a Certificate currently in force.
Further, Tenant shall tender a Certificate for each Tenant contractor
retained regarding such move-in or move-out, in amounts then reasonably
required by the Landlord.
(B) Any sign, lettering, picture, notice or advertisement installed
within the Leased Premises which is visible from the public corridors
within the Building shall be installed in such manner and be of such
character and style as Landlord shall approve in writing.
(C) Tenant will not make or permit to be made any use of the Leased
Premises which, directly or indirectly is forbidden hereunder or by
public law, ordinance or governmental regulation or which may be
dangerous to persons or property, or which may invalidate or increase
the premium cost of any policy of insurance carried on the Building or
covering its operations. Tenant shall not do, or permit to be done, any
act or thing upon the Leased Premises which will be in conflict with
fire insurance policies covering the Building or which the Leased
Premises form a part. Tenant, at its sole expense, shall comply with all
rules, regulations or requirements of the Illinois Inspection and Rating
Bureau, or any other similar body, and shall not do, or permit anything
to be done upon said Leased Premises, or bring or keep anything thereon
in violation of rules, regulations or requirements of the Fire
Department, Illinois Inspection and Rating Bureau, Fire Insurance Rating
Organization or other authority having jurisdiction and then only in
such quantity and manner of storage as not to increase the rate of fire,
or other insurance applicable to the Building. In any event, any article
which is explosive or inherently dangerous is not allowed in the
Building;
(D) Tenant shall not use any picture or likeness of the Building in any
circulars, notices, advertisements or correspondence;
(E) Tenant shall not represent itself as being associated with any
company or corporation by which the Building may be known or named;
(F) Sidewalks, entrances, passages, courts, corridors, halls, elevators
and stairways in and about the Leased Premises shall not be obstructed
nor shall objects be placed against glass partition, doors or windows
which would be unsightly from the Building's corridors or from the
exterior of the Building;
(G) No animals (other than seeing eye dogs), pets, bicycles or other
vehicles shall be brought or permitted to be in the Building or the
Leased Premises;
(H) Room to room canvasses to solicit business from other tenants of
the Building are not permitted; Tenant shall not advertise the business,
profession or activities of Tenant conducted in the Building in any
manner which violates the letter or spirit of any code of ethics by any
recognized association or organization pertaining to such business,
profession or activities;
(I) Tenant shall not waste electricity, water or air conditioning and
shall cooperate fully
PAGE 30
with Landlord to assure the most effective and efficient operation of the
Building's heating and air conditioning systems. All controls shall be
adjusted only by authorized building personnel; Tenant shall lower and
adjust the venetian blinds on the windows in the Leased Premises, if such
lowering and adjustment reduces the sun load;
(J) No locks or similar devices shall be attached to any door except by
Landlord and Landlord shall have the right to retain a key to all such
locks;
(K) Tenant assumes full responsibility of protecting the Leased Premises
from theft, robbery and pilferage; the Indemnitees shall not be liable for
damage thereto or theft or misappropriation thereof. Tenant hereby
acknowledges and agrees that security services contracted and/or devices
installed or otherwise effected by Landlord are for the sole purpose of
safeguarding Landlord's property and interests and neither Tenant nor any
other person shall be deemed a beneficiary thereof or to rely thereon.
Except during Tenant's normal business hours, Tenant shall keep all doors
to the Leased Premises locked and other means of entry to the Leased
Premises closed and secured. All corridor doors shall remain closed at all
times. Tenant shall be solely responsible for the actions of its employees
and independent contractors, and in the event of any intentional harm, or
threat of harm, by an employee or independent contractor of Tenant against
the property of the Landlord or any employee, contractor, or agent of the
Landlord, then Landlord shall have the immediate right, but not the
obligation, without opportunity for cure by Tenant, to exclude the
Tenant's employee or independent contractor from the Building and deny any
and all access thereto to such person. Such right shall be in addition to
any and all rights Landlord may have under this Lease and law;
(L) Only machinery or mechanical devices of a nature directly related to
Tenant's ordinary use of the Leased Premises shall be installed, placed or
used in the Leased Premises. In the event that Tenant desires telegraphic,
telephones, burglar alarms or other electronic mechanical devices, the
Landlord will, upon request, direct where and how connections and all
wiring for such services shall be introduced and run. Without such
directions, no boring, cutting, or installation of machinery, mechanical
devices, wires or cables is permitted and the installation and use of all
such is subject to the other rules contained in this Section 18, general
construction practices and rules of the Building, and the other portions
of this Lease;
(M) Except with the prior approval of Landlord, all cleaning, repairing,
janitorial, decorating, painting or other services and work in and about
the Leased Premises shall be done only by authorized Building personnel;
(N) Safes, furniture, equipment, machines and other large or bulky
articles shall be brought to the Building and into and out of the Leased
Premises at such times and in such manner as the Landlord shall direct
(including the designation of elevator) and at Tenant's sole risk and
cost. Prior to Tenant's removal of any such articles from the Building,
Tenant shall obtain written authorization of the Office of the Building
and shall present such authorization to a designated employee of Landlord;
PAGE 31
(O) Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Leased Premises,
taking into account the capacity of the electric wiring of the Building
and the Leased Premises and the needs of other tenants, and shall not
use more than such safe capacity. Landlord's consent to the installation
of the electrical equipment shall not relieve Tenant from the obligation
not to use more electricity than such safe capacity;
(P) To the extent permitted by law, Tenant shall not permit picketing
or other union activity or distribution of written material involving
its employees in the Building, except in those locations and subject to
time and other limitation as to which Landlord may give prior written
consent;
(Q) Tenant shall not xxxx, otherwise prepare or sell any food or
beverages, including but not limited to vending machines, in or from the
Leased Premises or use the Leased Premises for housing accommodations or
lodging or sleeping purposes, except use of microwave ovens, coffee
makers, and/or warmers in Tenant's kitchen area. Notwithstanding the
foregoing, should Tenant desire vending machines in the Leased Premises,
then Landlord's vendor shall have the option to install and maintain
vending machines in the Leased Premises, subject to Tenant's request for
such, at competitive market rates, and applicable federal contracting
requirements under which Tenant may be obligated. Under all
circumstances, vending machines shall be limited to two (2) in number;
(R) Tenant shall not permit the use of any apparatus for sound
production or transmission in such manner that the sound so transmitted
or produced shall be audible or vibrations therefrom shall be detectable
beyond the Leased Premises; nor shall Tenant permit any noise or odor
that is objectionable to other occupants of the Building to emanate from
the premises, and shall not create or maintain a nuisance thereon, and
shall not do any act tending to injure the reputation of the Building.
(S) Tenant shall not place a load upon any floor of the Leased Premises
exceeding the floor load capacity for which such floor was designed or
allowed by law to carry;
(T) No floor covering shall be affixed to any floor in the Leased
Premises by means of glue of other adhesive without Landlord's prior
written consent.
18.02 Landlord Not Liable for Violations
Landlord shall not be responsible for any violation of the foregoing
rules and regulations by other tenants of the Building and shall have no
obligation to enforce the same against other tenants. Nothing in this Lease
shall be construed to impose upon the Landlord any duty or obligation to enforce
provisions of this Section 18 or any rules and regulations hereafter adopted, or
the terms, covenants or conditions of any other lease as against any other
tenant, and Landlord shall not be liable to the Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees,
unless such violation constitutes a default by Landlord under this Lease.
Notwithstanding the foregoing, Landlord shall take commercially reasonable
efforts to address rules violations by other tenants which substantially
interfere with Tenant's operations.
PAGE 32
18.03 Remedies
In addition to all other liabilities, rights and remedies for breach of
any covenant of this Section 18, the Tenant shall pay to the Landlord all
damages caused by such breach and shall also pay to the Landlord as additional
rent an amount equal to any increase in insurance premium or premiums caused by
such breach. Any violation of this Section 18 may be restrained by injunction.
The Tenant shall be liable to the Landlord for all damages resulting from
violation of any of the provisions of this Section 18, regardless of whether the
Tenant took corrective action during any cure period.
19. LANDLORD'S RIGHTS
Landlord shall have the following rights exercisable without notice
(except as expressly provided to the contrary in this Lease), without liability
to Tenant for damage or injury to persons, property or business and without
being deemed an eviction or disturbance of Tenant's use or possession of the
Leased Premises or giving rise to any claim for setoff or abatement of Rent;
(A) To change Building's name or street address upon thirty (30) days
prior written notice to Tenant;
(B) To install, affix and maintain all signs on the exterior and/or
interior of the Building;
(C) To designate and/or approve prior to installation, all types of
signs, window shades, blinds, drapes, awnings or other similar items, and
all internal lighting that may be visible from the exterior of the Leased
Premises;
(D) To display the Leased Premises to prospective tenants at reasonable
hours during the last twelve (12) months of the Term;
(E) To grant to any party the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right
shall not operate to prohibit Tenant from using the Leased Premises for
the purpose permitted hereunder;
(F) To prohibit the placing of vending or dispensing machines of any kind
in or about the Leased Premises, subject to sub-section 18.01(Q);
(G) To designate all sources furnishing sign painting and lettering, ice,
drinking water, towels, coffee cart service and toilet supplies used on
the Leased Premises;
(H) To have access for Landlord and other tenants of the Building to any
mail chutes and boxes located in or on the Leased Premises according to
the rules of the United States Postal Service;
(I) To close the Building after normal business hours, except that Tenant
and its employees and invitees shall be entitled to admission at all
times, under such regulations as Landlord prescribes for security
purposes which may change from time to time.
PAGE 33
20. ESTOPPEL CERTIFICATE
Within ten (10) days after request therefor by Landlord or any
mortgagee, or prospective mortgagee, Tenant agrees to deliver to Landlord or
prospective owner or mortgagee an Estoppel Certificate in recordable form,
binding upon Tenant, wherein Tenant shall certify and agree that:
(A) The Lease if in full force and effect, if such is the case, and
indicate the Commencement Date of the Lease;
(B) Tenant has no offsets or defenses to its performance of the terms
and conditions of this Lease, including the payment of Rent, if such be
the case, or if there are any such defenses or offsets, specifying the
same;
(C) Tenant is in possession of the Leased Premises if such is the case;
(D) Tenant will not pay rent more than 1 month in advance to the
Landlord;
(E) Tenant will not look to any mortgagee for any security deposits paid
to Landlord hereunder unless such deposits have been received in cash by
such mortgagee;
(F) If any assignment of rents or leases has been served upon the Tenant
by a mortgagee or prospective mortgagee, acknowledging receipt thereof
and agreeing to be bound by the provisions thereof;
(G) Tenant will give to the first mortgagee copies of all notices
required or permitted to be given by Tenant to Landlord; and
(H) Any other reasonable requirements of Landlord or mortgagee.
21. RELOCATION OF TENANT
At any time after the date of this Lease, Landlord may substitute for
the Leased Premises, other premises in the Building (the "New Leased
Premises"), in which event the New Leased Premises shall be deemed to be the
Leased Premises for all purposes under this Lease; provided the substitution
shall be made in order to lease the Leased Premises to a tenant of the Building
or a proposed tenant who as a result of such tenancy will occupy all or a
substantial part of the floor of the Building on which the Leased Premises are
located. If Tenant is then occupying the Leased Premises, Landlord shall pay
the actual reasonable expenses of physically moving Tenant, its property and
equipment to the New Leased Premises; Landlord shall give Tenant not less than
thirty (30) days prior written notice of such substitution; and Landlord, at
its expense, shall improve the New Leased Premises with improvements
substantially similar to those in the Leased Premises at the time of such
substitution. Tenant shall cooperate fully with Landlord in relocating to the
New Leased Premises.
22. REAL ESTATE BROKERS: INDEMNIFICATION
Tenant represents that, except for Xxxxx Realty, LP and the firm, if
any, identified in
PAGE 34
subsection 1.01.K, Tenant has not dealt with any real estate broker, sales
person, or finder in connection with this Lease, and no such person initiated
or participated in the negotiation of this Lease, or showed the Leased Premises
to Tenant. Tenant hereby agrees to indemnify and hold harmless Landlord from
and against any and all liabilities and claims for commissions and fees arising
out of a breach of the foregoing representation. Landlord shall be responsible
for the payment of all commissions to the broker, if any, specified in this
Section 22, based upon the leasing commission policy of Landlord applicable to
the Building and in effect as of the date of this Lease.
23. SUBORDINATION AND ATTORNMENT
23.01 Subordination
(A) This Lease shall be subject and subordinate to the lien of any deed
of trust or mortgage which Landlord may place upon the Leased Premises and
Building, and to any renewals, extensions, modifications or replacements
thereof provided, however, that if the Lease is in full force and effect
and there are no Defaults thereunder on the part of the Tenant the right
of possession of Tenant to the Leased Premises and Tenant's rights arising
out of this Lease shall not be affected or disturbed by any mortgagee, or
any party claiming title through such a mortgagee or deed of trust in the
exercise of any of its rights under a holder of a deed of trust or
mortgage or any note secured thereby, subject to the following, Landlord
agrees to provide Tenant with a Non-Disturbance Agreements reasonably
acceptable to such mortgagee or deed of trust holder and Tenant, covering
any existing lenders or underlying fee owners. Tenant agrees to
subordinate its leasehold estate to future mortgages or encumbrances only
on the condition that the instruments creating such mortgages or
encumbrances contain an apt provision recognizing the existence of this
Lease and agreeing that so long as no Default shall be continuing under
this Lease, this Lease shall not be terminated or otherwise affected in
the event of a foreclosure, sale or default under such mortgages or
encumbrances. In the event that a mortgagee, or any other person, acquires
title to the Leased Premises pursuant to the exercise of any remedy
provided for in the deed of trust or mortgage, this Lease shall not be
terminated or affected by said foreclosure or sale, or any such
proceeding, and said mortgagee shall agree that any sale of the premises
pursuant to the exercise of any rights and remedies under the deed of
trust or mortgage, or otherwise, shall be made subject to this Lease, and
the rights of the Tenant hereunder, provided that Tenant shall attorn to
said mortgagee or such person as its new landlord. Tenant shall sign such
agreements evidencing said subordination as Landlord may reasonably
request, if such form is reasonably acceptable to Tenant in accordance
with the above criteria.
(B) Tenant shall at anytime and from time to time within fifteen (15)
days after written request from Landlord execute and deliver to the
Landlord or any prospective Landlord or mortgagee or prospective mortgagee
a sworn and acknowledged estoppel certificate, settingforth such items as
indicated in Article 20, supra ("Estoppel Certificate"). It is intended
that any such statement delivered pursuant to this subsection may be
relied upon by any prospective purchases or mortgagee and their respective
successors and assigns 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 misstatement contained in such estoppel certificate only to
the extent such statements pertain to this Lease. To the extent Tenant is
required under
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this Lease to provide Landlord with an estoppel certificate, Landlord
shall also be required to provide Tenant with an estoppel certificate
upon Tenant's reasonable request. In either event, the party requesting
the estoppel certificate shall also join in the execution of the
document.
23.02 Attornment
In the event of the cancellation or termination of any ground lease,
accordance with its terms or by the surrender thereof, whether voluntary,
involuntary or by operation of law, or by summary proceedings, or the
foreclosure of any such Mortgage by voluntary agreement or otherwise, or the
commencement of any judicial action seeking such foreclosure, or deed in lieu of
foreclosure, Tenant, at the request of the then Landlord, shall attorn to and
recognize such ground lessor, mortgagee or purchaser in foreclosure as Tenant's
Landlord under this Lease. Tenant agrees to execute and deliver at any time upon
request of such ground lessor, mortgagee, purchaser, or their successors, any
instrument to further evidence such attornment. This Lease may be terminated by
the mortgagee or ground lessor if Tenant is named as a party, by other than the
mortgagee or ground lessor, and served with process in any applicable proceeding
and a warrant or judgment for possession of the Premises is issued in such
proceeding or a foreclosure sale is held. However, if Tenant is not named as a
party in such proceedings, then Tenant hereby waives its right, if any, to elect
to terminate this Lease or to surrender possession of the Premises in the event
of any such ground lease termination or mortgage foreclosure.
23.03 Attorney-in-fact
As and for additional security for the performance of its duties
hereunder and to induce Landlord to enter into this Lease, the Tenant shall
execute promptly such instruments or certificates to carry out the intent of
Section 20 and Sections 23.01 and 23.02 above as shall be requested by the
Landlord, or any mortgagee. If within fifteen (15) days after the date of a
written request by Landlord, or any mortgagee to execute such instruments, the
Tenant shall not have executed the same, the Landlord may, at its option,
execute same on behalf of Tenant without incurring any liability on account
thereof.
23.04 Mortgagee Protection
Tenant agrees to give any mortgagees and/or trust deed holders, by
registered or certified mail, a copy of any notice of default served upon the
Landlord by Tenant, provided that prior to such notice Tenant has received
notice (by way of service on Tenant of a copy of an assignment of rents and
leases, or otherwise) of the address of such mortgagees and/or trust deed
holders. Tenant further agrees that if Landlord shall have failed to cure such
default within the time provided for in this Lease, then the mortgagees and/or
trust deed holders shall have an additional thirty days after receipt of notice
thereof within which to cure such default or if such default cannot be cured
within that time, then such additional notice time as may be necessary, if,
within such thirty days, any mortgagee and/or trust deed holder has commenced
and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure). Such period of time shall be extended by any
period within which such mortgagee and/or trust deed holder is prevented from
commencing or pursuing such foreclosure proceedings by reason of Landlord's
bankruptcy. Until the time allowed as aforesaid for mortgagee and/or trust deed
holder to cure such defaults has expired without cure, Tenant shall have no
right to, and shall not, terminate this Lease on account of default. This Lease
PAGE 36
may not be modified or amended so as to reduce the Rent or shorten the term, or
so as to adversely affect in any other respect to any material extent the
rights of the Landlord, nor shall this Lease be canceled or surrendered,
without the prior written consent, in each instance, of the ground lessor or
the mortgagee.
24. NOTICES
All notices required or permitted to be given hereunder shall be in
writing and shall be deemed given and delivered, whether or not received, when
deposited (A) with a reputable commercial courier, by overnight delivery or (B)
in the United States Mail, certified mail, return receipt requested, under
either method, properly addressed and all charges and/or postage paid, at the
following addresses: (Y) To Landlord at the address set forth in Section
1.01.B, or such other address as Landlord shall designate by written notice to
Tenant, and; (Z) To Tenant at the address specified in 1.01.C. prior to the
Commencement Date, and at the Leased Premises after the Commencement Date, or
such other address as Tenant shall designate by written notice to Landlord.
25. MISCELLANEOUS
25.01 Late Fee and Interest Charge
All Rent as defined in Section 3 (unless otherwise provided herein)
owed by the Tenant to the Landlord hereunder shall be paid in a timely manner.
In the event that the Tenant fails to so remit Rent when due:
(A) Late Fee.
A late fee will accrue for all Base Monthly Rent or monthly
Additional Rent if not remitted within ten (10) days of the date due pursuant
to section 3.01. A late fee will accrue if Rent, other than Base Monthly Rent
or monthly Additional Rent (e.g. Landlord's additional or after-hours services)
is not remitted within ten (10) days of the date due, as for Rent, and from the
date the Landlord renders written statements of account therefor, as for
Additional Rent items. Said late fee shall be to help defray the additional cost
to Landlord for processing such late payments and other administrative expenses
caused by the tardy payment.
(B) Interest Charge.
An interest charge will accrue for all Base Monthly Rent or
monthly Additional Rent if not remitted within five (5) days of the date due
pursuant to section 3.01. An interest charge fee will accrue if Rent, other
than Base Monthly Rent or monthly Additional Rent (e.g. Landlord's additional
or after-hours services) is not remitted within five (5) days from the date
due, as for Rent, and the Landlord renders written statements of account
therefor, as for Additional Rent items. Said interest charge shall compensate
Landlord for the time value of monies outstanding.
The afore-mentioned late fee and/or interest charge shall be determined from
the date payment was originally due until the date paid, calculated at the rate
of three percent (3%) per annum above the prime rate of interest in effect at
the First National Bank of Chicago as same may change from time to time, or at
the maximum legal rate of interest allowed by law, if such maximum legal rate is
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applicable and lower.
Such late fee and/or interest charge shall accrue without demand for
payment by Landlord and shall be payable upon written demand, and shall be
Additional Rent hereunder. The failure of Tenant to pay such within twenty (20)
days after written notice of demand shall be an additional event of default
hereunder. The provision for such late fee and interest charge shall be in
addition to all of Landlord's other rights and remedies provided hereunder and
at law and shall not be construed as liquidated damages or a limiting Landlord's
remedies in any manner.
25.02 Entire Agreement
This lease, the Exhibits attached hereto and the Workletter, if
applicable, contain the entire agreement between Landlord and Tenant concerning
the Leased Premises and there are no other agreements, either oral or written.
25.03 No option
The execution of this Lease by Tenant and delivery of same to Landlord or
the Manager does not constitute a reservation of or option for the Leased
Premises or an agreement to enter into a Lease. This Lease shall become
effective only if and when Landlord executes and delivers same to Tenant;
provided, however, the execution and delivery by Tenant of this Lease to
Landlord or the Manager shall constitute an irrevocable offer by Tenant to lease
the Leased Premises on the terms and conditions herein contained, which offer
may not be withdrawn or revoked for thirty days after such execution and
delivery.
25.04 Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any or payment of Rent shall be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or payment of Rent or pursue
any other remedies available to Landlord. No receipt of money by Landlord from
Tenant after the termination of this Lease of Tenant's right of possession of
the Leased Premises shall reinstate, continue or extend the Term.
25.05 Landlord's Obligations on Sale of Building
In any event of any sale or other transfer of the Building, Landlord and
the seller or transferor (and the beneficiaries of any selling or transferring
land trust) shall be entirely freed and relieved of all agreements and
obligations of Landlord hereunder accruing or to be performed after the date of
such sale or transfer, provided said transferee assumes Landlord's obligations
hereunder.
25.06 Binding Effect
This Lease shall be binding upon and inure to the benefit of Landlord and
Tenant and their respective heirs, legal representatives, successors and
permitted assigns.
25.07 Modification of Lease
Should any mortgagee, leasehold or otherwise, require a modification or
modifications of this Lease, which modification or modifications will not bring
about any increased cost or expense to Tenant or in any other way substantially
change the rights and obligations of Tenant hereunder, then
PAGE 38
and in such event, Tenant agrees that this Lease may be so modified.
25.08 Captions
This Section captions in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such Sections.
25.09 Applicable Law
This Lease shall be construed in accordance with the laws of the State of
Illinois. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
item, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
25.10 Time
Time is of the essence of this Lease and the performance of all
obligations hereunder.
25.11 Landlord's Right to Perform Tenant's Duties
If Tenant fails timely to perform any of its duties under this Lease or
the Workletter, Landlord shall have the right, but not the obligation, after the
expiration of any grace period elsewhere under this Lease or the Workletter
expressly granted to Tenant for the performance of such duty, to perform such
duty on behalf, and at the expense of Tenant, without further prior notice to
Tenant, and all sums expended or expenses incurred by Landlord in performing
such duty shall be deemed to be additional Rent under this Lease and shall be
due and payable upon demand by Landlord.
25.12 Riders
All Riders attached hereto and executed both by Landlord and Tenant shall
be deemed to be a part hereof and hereby incorporated herein.
25.13 Beneficiary
The term "Beneficiary" or "Beneficiaries", as used in this Lease, means
the individual or legal entity which from time to time is the beneficial owner
of title to the Real Property. Any liability or obligation of Landlord, where
beneficial ownership resides with any Beneficiary under this Lease shall be
limited to the fee simple estate which Landlord owns in the Leased Premises,
Building, and underlying real property. The parties hereby covenant and
acknowledge that neither the Beneficiary, its general and limited partners,
including any of the Indemnitees as heretofore defined in Section 10.01, nor
their respective officers, employees, and agents shall be individually or
personally liable for any claims arising out of this Lease beyond their
respective interests in the Property. A deficit capital account of any such
partner shall not be deemed an asset or property of said partnership.
25.14 Land Trustee Exculpation
It is expressly understood and agreed that nothing in this Lease
contained shall be construed as creating any liability whatsoever against any
land trustee which may, from time to time, hold legal title to the Building and
underlying real property, or any successor thereof or thereto, without
PAGE 39
limiting the generality of the foregoing, there shall be no personal liability
to pay any indebtedness accruing hereunder or to perform any covenant, either
express or implied, herein contained, or to keep, preserve or sequester any
property of said Trust, and that all personal liability of said Trustee of
every sort, if any, is hereby expressly waived by Tenant, and by every person
now or hereafter claiming any right or security hereunder, and that so far as
the parties hereto are concerned, the owner of any indebtedness or liability
accruing hereunder shall look solely to the Trust Estate from time to time
subject to the provisions of a trust agreement for the payment thereof. It is
further understood and agreed that the said Trustee has no agents or employees
and merely holds naked legal title to the property herein described; that said
Trustee has no control over, and under this Lease, assumes no responsibility
for (1) the management or control of such property, (2) the upkeep, inspection,
maintenance or repair of such property, (3) the collection of rents or the
rental of such property, or (4) the conduct of any business which is carried on
upon such property.
25.15 Authority
Tenant represents and warrants that it is duly formed and in good
standing, and has full corporate or partnership power and authority, as the
case may be, to enter into this Lease and has taken all corporate or
partnership action, as the case may be, necessary to carry out the transaction
contemplated herein, so that when executed, this Lease constitutes a valid and
binding obligation enforceable in accordance with its terms. Tenant shall
provide Landlord with corporate resolutions or other proof in a form acceptable
to Landlord, authorizing the execution of the Lease at the time of such
execution.
25.16 No Presumption Against Drafter
Landlord and Tenant understand, agree, and acknowledge that:
(A) This Lease has been freely negotiated by both parties; and
(B) That, in any controversy, dispute, or contest over the meaning,
interpretation, validity or enforceability of this Lease or any of its
terms or conditions, there shall be no inference, presumption, or
conclusion drawn whatsoever against either party by virtue of that
party having drafted the Lease or any portion thereof.
25.17 Attorney's Fees and Costs
The defaulting Party shall pay, upon demand of the prevailing Party,
all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing Party in enforcing the observance and performance of all covenants,
conditions and provisions of this Lease, or resulting from the Party's default
under this Lease, and pre-judgment interest thereon at the legal prevailing rate
25.18 Duplicate Original Lease
This Lease, including its Exhibits, are executed in duplicate
original form.
IN WITNESS WHEREOF, this Lease has been executed as of the date set
forth in Section 1.01.E.1 hereof.
LANDLORD: TENANT:
P & S LTD PARTNERSHIP, E-COMMERCE EXCHANGE,___________.
PAGE 40
AN ILLINOIS LIMITED PARTNERSHIP a ___________________
By: 000 Xxxx Xxxxxxx, L.L.C.
a Delaware limited liability company
By: ________________________ By: _________________________
Xxxxxxx X. Xxxxxxxx, Xx.
Its: President Its:
