LEASE
BY AND BETWEEN
CHICAGO MIDWAY JOINT VENTURE,
Landlord
AND
XXXXXXXXX XXXXX CORPORATION
Tenant
TABLE OF CONTENTS
1. REFERENCE DATA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DESCRIPTION OF DEMISED PREMISES . . . . . . . . . . . . . . . . . . . . . 1
2.1 Demised Premises . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Appurtenant Rights . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. TERM OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. CONDITION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4.1 "As-Is" Condition. . . . . . . . . . . . . . . . . . . . . . . . . . 1
4.2 Tenant Payments of Construction Cost . . . . . . . . . . . . . . . . 1
5. USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5.1 Permitted Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5.2 Prohibited Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5.3 Licenses and Permits . . . . . . . . . . . . . . . . . . . . . . . . 2
6. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6.1 Payment of Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6.2 Late Payment by Tenant . . . . . . . . . . . . . . . . . . . . . . . 3
7. SERVICES FURNISHED BY LANDLORD. . . . . . . . . . . . . . . . . . . . . . 3
7.1 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7.2 Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7.3 Repairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7.4 Interruption or Curtailment of Services. . . . . . . . . . . . . . . 4
8. ESCALATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8.2 Tenant's Operating Expenses. . . . . . . . . . . . . . . . . . . . . 7
8.3 Tenant's Real Estate Taxes . . . . . . . . . . . . . . . . . . . . . 7
8.4 Part Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. CHANGES OR ALTERATIONS BY LANDLORD. . . . . . . . . . . . . . . . . . . . 8
10. FIXTURES, EQUIPMENT AND IMPROVEMENTS--REMOVAL BY TENANT . . . . . . . . . 8
11. ALTERATIONS AND IMPROVEMENTS BY TENANT. . . . . . . . . . . . . . . . . . 9
12. TENANT'S CONTRACTORS--MECHANICS' AND OTHER LIENS--
STANDARD OF TENANT'S PERFORMANCE-COMPLIANCE WITH LAWS . . . . . . . . . .10
13. REPAIRS BY TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
14. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION . . . . . . . . .11
14.1 General Liability Insurance. . . . . . . . . . . . . . . . . . . . .11
14.2 Certificates of Insurance. . . . . . . . . . . . . . . . . . . . . .11
14.3 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
14.4 Property of Tenant . . . . . . . . . . . . . . . . . . . . . . . . .12
14.5 Bursting of Pipes, etc . . . . . . . . . . . . . . . . . . . . . . .13
14.6 Repairs and Alterations-No Diminution of Rental Value. . . . . . . .13
15. ASSIGNMENT, MORTGAGING AND SUBLETTING . . . . . . . . . . . . . . . . . .13
15.1 Covenant Against Subleases and Assignment. . . . . . . . . . . . . .13
15.2 Assignment of Equity Interest in Tenant. . . . . . . . . . . . . . .13
15.3 Assignment by Merger . . . . . . . . . . . . . . . . . . . . . . . .14
15.4 Offerback. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
15.5 Tenant Partnerships. . . . . . . . . . . . . . . . . . . . . . . . .15
15.6 Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . .16
16. MISCELLANEOUS COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . .17
16.1 Rules and Regulations. . . . . . . . . . . . . . . . . . . . . . . .17
16.2 Access to Premises-Shoring . . . . . . . . . . . . . . . . . . . . .17
16.3 Accidents to Sanitary and Other Systems. . . . . . . . . . . . . . .18
16.4 Signs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
16.5 Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . .19
16.6 Odors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
16.7 Requirements of Law -- Fines and Penalties . . . . . . . . . . . . .19
16.8 Tenant's Acts -- Effect on Insurance . . . . . . . . . . . . . . . .19
16.9 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
17. DAMAGE BY FIRE, ETC.. . . . . . . . . . . . . . . . . . . . . . . . . . .20
18. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . .21
19. CONDEMNATION - EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . .22
20. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
20.1 Conditions of Limitation - Re-entry - Termination. . . . . . . . . .23
20.2 Damages - Assignment for Benefit of Creditors. . . . . . . . . . . .24
20.3 Damages - Termination. . . . . . . . . . . . . . . . . . . . . . . .24
20.4 Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . .26
20.5 Waiver of Redemption . . . . . . . . . . . . . . . . . . . . . . . .26
20.6 Landlord's Remedies Not Exclusive. . . . . . . . . . . . . . . . . .26
20.7 Grace Period . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
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21. END OF TERM - ABANDONED PROPERTY. . . . . . . . . . . . . . . . . . . . .27
22. SUBORINDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
23. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
24. ENTIRE AGREEMENT - WAIVER - SURRENDER . . . . . . . . . . . . . . . . . .30
24.1 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .30
24.2 Waiver by Landlord . . . . . . . . . . . . . . . . . . . . . . . . .30
24.3 Surrender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
25. INABILITY TO PERFORM - EXCULPATORY CLAUSE . . . . . . . . . . . . . . . .31
26. BILLS AND NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
27. PARTIES BOUND - SEIZEN OF TITLE . . . . . . . . . . . . . . . . . . . . .32
28. HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
29. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
29.1 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
29.2 Captions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . .35
29.3 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
29.4 Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . .36
29.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . .36
29.6 Assignment of Rents. . . . . . . . . . . . . . . . . . . . . . . . .36
29.7 Representation of Authority. . . . . . . . . . . . . . . . . . . . .36
29.8 Expenses Incurred by Landlord Upon Tenant Requests . . . . . . . . .36
29.9 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
EXHIBITS
Exhibit 1 Reference Data
Exhibit 2 Lease Plan
Exhibit 3 Legal Description
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MAP
EXHIBIT 1, SHEET 1
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
("the Building")
REFERENCE DATA
Execution Date: April 17, 1997
---------------
Tenant: Xxxxxxxxx Xxxxx Corporation
----------------------------------------------------------------
(name)
an Illinois corporation
----------------------------------------------------------------
(description of business organization)
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, XX 00000
----------------------------------------------------------------
(principal place of business-mailing address)
Landlord: CHICAGO MIDWAY JOINT VENTURE, an Illinois general partnership by
and between Beacon Midway, L.P., a Delaware limited partnership,
and Chicago Industrial RPF Limited Partnership, an Illinois
limited partnership.
Common Areas: The portion of the driveways, parking lot, sidewalks and
landscaped areas in the Complex, as the same may be changed by
Landlord, from time to time, which Landlord designates, from time
to time, for the use of all tenants in the Complex.
Complex: The buildings and land known as the Midway Business Center,
located at Cicero, South Xxxxxx and Xxxxx Xxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxx. The legal description of the land is attached
to the Lease as Exhibit 3.
Building: The building in the Complex known as and numbered 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
Art. 2.1 Premises: An area containing 112,222 square feet of Rentable Area
in the Building, substantially as shown on Lease Plan,
Exhibit 2
Art. 3.1 Term Commencement Date: July 1, 1997
Art. 3.1 Termination Date: June 30, 2000
Art. 5 Use of Premises: Storage and distribution of candy
products
EXHIBIT 1, SHEET 2
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
("the Building")
Tenant: Xxxxxxxxx Xxxxx Corporation
---------------------------
Execution Date: April 17, 1997
--------------
Art. 6 Yearly Rent:
Rental Period Yearly Rent Monthly Payment
------------- ----------- ---------------
July 1, 1997 - $0 $0
August 31, 1997
September 1, 1997 - $235,666.20 $19,638.85
June 30, 1998
July 1, 1998 - $241,277.28 $20,106.44
June 30, 1999
July 1, 1999 - $252,499.56 $21,041.63
June 30, 2000
Art. 8 Escalation:
Tenant's Proportionate Complex Share: 8.66%
Tenant's Proportionate Building Share: 10.40%
Art. 28(f) Hazardous Materials to be brought
into Premises by Tenant: None
Art. 29.3 Broker: None
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EXHIBIT 1, SHEET 3
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
("the Building")
Tenant: Xxxxxxxxx Xxxxx Corporation
---------------------------
Execution Date: April 17, 1997
--------------
Exhibit Dates: Lease Plan, Exhibit 2, dated April 17, 1997
LANDLORD: TENANT:
CHICAGO MIDWAY JOINT VENTURE XXXXXXXXX XXXXX CORPORATION
By: Beacon Midway, L.P., Operating
Partner
By: Beacon Midway Corporation,
its General Partner
By:/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------ ------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Vice President Vice President
Hereunto Duly Authorized Hereunto Duly Authorized
Date Signed: May 6, 1997 Date Signed: April 22, 1997
------------------------- -----------------
Landlord's Notice Address: Tenant's Notice Address:
c/o The Beacon Companies Xxxxxxxxx Xxxxx Corporation
Two Xxxxxx Street 0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: General Partner
with a copy to:
Goulston & Storrs, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
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THIS INDENTURE OF LEASE made and entered into on the Execution Date as
stated in Exhibit 1 and between the Landlord and the Tenant named in Exhibit
1.
Landlord does hereby demise and lease to Tenant, and Tenant does hereby hire
and take from Landlord, the premises hereinafter mentioned and described
(hereinafter referred to as "premises"), upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease for the term
hereinafter stated:
1. REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in
any Exhibit attached to this Lease shall be deemed and construed to
incorporate the data stated under that term or title in such Exhibit.
2. DESCRIPTION OF DEMISED PREMISES
2.1 DEMISED PREMISES. The premises are a portion of the Building,
substantially as shown hatched or outlined on the Lease Plan (Exhibit 2)
hereto attached and incorporated by reference as a part hereof. Landlord
reserves the right, at its own cost and expense, to require Tenant, upon not
less than thirty (30) days' notice, to relocate its premises elsewhere in the
Building or Complex of which the Building is a part, to an area of
substantially equivalent size, construction and finish as designated by
Landlord.
2.2 APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the
premises, right to use the Common Areas, for the purposes for which they were
intended to be used in common, with others entitled thereto, subject to
reasonable rules from time to time made by Landlord of which Tenant is given
notice; and no other appurtenant rights or easements.
3. TERM OF LEASE
TO HAVE AND TO HOLD the premises for a term of years commencing on the
Term Commencement Date and ending on the Termination Date, both as stated in
Exhibit 1 or on such earlier date upon which said term may expire or be
terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law (which date for the termination
of the terms hereof will hereafter be called "Termination Date").
4. CONDITION OF PREMISES
4.1 "AS-IS" CONDITION. Tenant acknowledges and agrees that it has had
an opportunity to inspect the premises and that it is taking the premises
"as-is", without any obligation on the part of Landlord to prepare or
construct the premises for Tenant's occupancy. Tenant further acknowledges
and agrees that Landlord has made no representation as to the condition of
the premises and that it is relying upon its own inspection of the premises
in entering into this Lease.
4.2 TENANT PAYMENTS OF CONSTRUCTION COST. Landlord shall have the same
rights and remedies which Landlord has upon the nonpayment of Yearly Rent and
other charges due under this
Lease for nonpayment of any amounts which Tenant is required to pay to
Landlord or Landlord's contractor in connection with any construction in the
premises performed for Tenant by Landlord or Landlord's contractor, which
amounts shall be considered additional rent.
5. USE OF PREMISES
5.1 PERMITTED USE. Tenant shall continuously during the term hereof
occupy and use the premises only for the purposes as stated in Exhibit 1 and
for no other purposes.
5.2 PROHIBITED USES. Notwithstanding any other provision of this
Lease, Tenant shall not use or suffer or permit the use or occupancy of, or
suffer or permit anything to be done in or anything to be brought into or
kept in or about the premises or the Building or any part thereof (including,
without limitation, any materials used in the construction or other
preparation of the premises and furniture and carpeting): (i) which would
violate any of the covenants, agreements, terms, provisions and conditions of
this Lease or otherwise applicable to or binding upon the premises; (ii) for
any unlawful purposes or in any unlawful manner; (iii) which, in the
reasonable judgment of Landlord shall in any way (a) impair the appearance or
reputation of the Building or (b) impair or interfere with the use or
occupancy of any of the other areas of the Building, or occasion discomfort,
inconvenience or annoyance, or injury or damage to any occupants of the
premises or other tenants or occupants of the Building or (iv) which is
inconsistent with the maintenance of the Building as an industrial building.
Tenant shall not install or use any electrical or other equipment of any kind
which, in the reasonable judgment of Landlord, might overload the electrical
systems of the premises or the Building.
5.3 LICENSES AND PERMITS. If any governmental license or permit shall
be required for the proper and lawful conduct of Tenant's business, and if
the failure to secure such license or permit would in any way affect
Landlord, the premises, the Building or Tenant's ability to perform any of
its obligations under this Lease, Tenant, at Tenant's expense, shall duly
procure and thereafter maintain such license and submit the same to
inspection by Landlord. Tenant, at Tenant's expense, shall at all times
comply with the terms and conditions of each such license or permit. Tenant
shall furnish all data and information to Governmental authorities and
Landlord as required in accordance with legal, regulatory, licensing or other
similar requirements as they relate to Tenant's use or occupancy of the
premises or the Building.
6. RENT
6.1 PAYMENT OF RENT. During the term of this Lease the Yearly Rent and
other charges at the rate stated in Exhibit 1, shall be payable by Tenant to
Landlord by monthly payments, as stated in Exhibit 1, in advance and without
demand on the first day of each month for and in respect of such month. The
rent and other charges reserved and covenanted to be paid under this Lease
shall commence on the Term Commencement Date. Notwithstanding anything to
the contrary contained in this Lease, Tenant's obligation to pay Yearly Rent,
Tenant's Operating Expenses and Tenant's Real Estate Taxes shall not commence
to accrue until the date (the "Rent Commencement Date") which is two (2)
months after the Term Commencement Date (i.e., September 1, 1997).
2
Notwithstanding the provisions of the next preceding sentence, Tenant shall
pay the first monthly installment of rent on the execution of this Lease.
If, by reason of any provisions of this Lease, the rent reserved hereunder
shall commence or terminate on any day other than the first day of a calendar
month, the rent for such calendar month shall be prorated. The rent shall be
payable to Landlord or, if Landlord shall so direct in writing, to Landlord's
agent or nominee, in lawful money of the United States which shall be legal
tender for payment of all debts and dues, public and private, at the time of
payment, at the office of the Landlord or such place as Landlord may
designate, and the rent and other charge in all circumstances shall be
payable without any setoff or deduction whatsoever.
6.2 LATE PAYMENT BY TENANT. Rental and any other sums due hereunder
not paid within fifteen (15) days after the date due shall bear interest for
each month or fraction thereof from the due date until paid computed at the
annual rate of two percentage points over the so-called Corporate base rate
then currently from time to time charged by The First National Bank of
Chicago, or at any applicable lesser maximum legally permissible rate for
debts of this nature. In addition, Tenant acknowledges that in the event of
late payments by Tenant, Landlord will be incurring administrative costs
which are difficult to ascertain. Therefore, in the event that rental or
other sums due hereunder are not paid within fifteen (15) days after the date
due, Tenant shall pay to Landlord, upon demand, as additional rent, an
administrative fee of five (5%) percent of such past due amount.
7. SERVICES FURNISHED BY LANDLORD
7.1 UTILITIES. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler system charges and other utilities and
services used on or from the premises, including without limitation, Tenant's
proportionate share as determined by Landlord for the use of any central
station signaling system installed in the premises or the Building together
with any taxes, penalties, and surcharges or the like pertaining thereto and
any maintenance charges for utilities. Without limiting the foregoing,
Tenant shall be responsible for bringing telephone lines from the Ameritech
feed connection located in Unit E of the Complex to the premises. Tenant
shall furnish all electric light bulbs, tubes and ballasts. If any such
services are not separately metered to Tenant, Tenant shall pay such
proportion of all charges jointly metered with other premises as determined
by Landlord, in its sole discretion, to be reasonable. Any such charges paid
by Landlord and assessed against Tenant shall be immediately payable to
Landlord on demand and shall be additional rent hereunder.
7.2 COMMON AREAS. Except as otherwise provided in Articles 17 and 19,
Landlord shall provide the following services to the Common Areas:
(a) Landlord shall maintain in good repair exterior lighting,
common sewerage lines, driveways and sidewalks;
(b) Landlord shall perform regular mowing of grass, trimming, weed
removal, and general landscape maintenance as reasonably necessary;
3
(c) Landlord shall coordinate any repairs and other maintenance of
any railroad tracks serving the Building and if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company from time to time
upon demand, as additional rent, for its share of the costs of such repair
and maintenance and any other sums specified in any agreement to which
Landlord or Tenant is a party respecting such tracks, such costs to be borne
proportionately by all tenants in the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant
during each calendar year during the term;
(d) Landlord shall clean and remove snow and ice from the
driveways and sidewalks, as reasonably necessary.
7.3 REPAIRS. Except as otherwise provided in Articles 17 and 19, and
subject to Tenant's obligations in Article 13, Landlord shall keep and
maintain the roof, exterior walls (excluding windows, glass or plate glass,
doors, and special store fronts or office entries), and the foundation of the
Building in good condition and repair, reasonable wear and tear excepted.
7.4 INTERRUPTION OR CURTAILMENT OF SERVICES. When necessary by reason
of accident or emergency, or for repairs, alterations, replacements or
improvements which in the reasonable judgment of Landlord are desirable or
necessary to be made, or of difficulty or inability in securing supplies or
labor, or by reason of strikes, or of any other cause beyond the reasonable
control of Landlord, whether such other cause be similar or dissimilar to
those hereinabove specifically mentioned until said cause has been removed,
Landlord reserves the right to interrupt, curtail, stop or suspend any
services which Landlord is required to provide hereunder, including, without
limitation, the operation of the plumbing and electric systems. Landlord
shall exercise reasonable diligence to eliminate the cause of any such
interruption, curtailment, stoppage or suspension, but, except as provided in
Articles 17 and 19, there shall be no diminution or abatement of rent or
other compensation due from Tenant to Landlord hereunder, nor shall this
Lease be affected or any of the Tenant's obligations hereunder reduced, and
Landlord shall have no responsibility or liability for any such interruption,
curtailment, stoppage, or suspension of services or systems.
8. ESCALATION
8.1 DEFINITIONS. As used in this Article 8, the words and terms which
follow mean and include the following:
(a) "Tax Year" shall mean any fiscal/tax year in which occurs any
part of the term of this Lease, except as provided in the next succeeding
sentence. The parties acknowledge that Real Estate Taxes are, as of the date
hereof, assessed on a calendar year basis and paid in arrears (e.g., Real
Estate Taxes for calendar year 1996 are paid in 1997); accordingly, provided
that Real Estate Taxes are assessed and paid in such manner, the first (1st)
Tax Year shall be the first full fiscal/tax year immediately preceding the
Term Commencement Date.
(b) "Operating Year" shall mean a calendar year in which occurs
any part of the term of this Lease.
4
(c) "Tenant's Proportionate Complex Share" shall be the figure as
stated on Exhibit 1, which is determined by dividing the Rentable Area of the
premises by the Rentable Area of the Building and the building located at
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
(d) "Tenant's Proportionate Building Share" shall be the figure as
stated in Exhibit 1, which is determined by dividing the Rentable Area of the
premises by the Rentable Area of the Building.
(e) "Tax Parcel" shall be the land ("Land"), the buildings, and
all other improvements of the Complex, as defined in Exhibit 1.
(f) "Operating Costs" shall mean any and all expenses, cost and
disbursements (other than Real Estate Taxes) of any kind and nature
whatsoever incurred by Landlord in connection with the ownership, management,
repair, maintenance and operation of the Building and the Common Areas,
including, without limitation, the cost of paving and landscape maintenance
for the Common Areas, mowing of the grass, care of shrubs, general
landscaping, maintaining and repairing parking areas, driveways, alleys and
easements, cleaning services for the Common Areas, removing snow and ice,
Common Area utilities, maintaining, repairing and replacing light fixtures
and light bulbs for Common Areas, roof repairs and maintenance, exterior
painting, insurance premiums for all insurance policies and endorsements
deemed by Landlord to be reasonably necessary or desirable and management or
administration fees.
"Operating Costs" shall not include mortgage charges and brokerage
commissions. In addition, Operating Costs shall not include depreciation or
capital expenditures unless such capital expenditure ("Permitted Capital
Expenditure"): (i) is reasonably projected to reduce Operating Costs, or (ii) is
required under any governmental law, regulation or ordinance which was not
applicable to the Building as of the Term Commencement Date. With respect to
Permitted Capital Expenditures, there shall be included in Operating Costs for
each Operating Year in which and after such capital expenditure is made the
annual charge-off of such capital expenditure. (Annual charge-off shall be
determined by (i) dividing the original cost of the capital expenditure by the
number of years of useful life thereof [The useful life shall be reasonably
determined by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of acquisition of the capital
item.]; and (ii) adding to such quotient an interest factor computed on the
unamortized balance of such capital expenditure at an annual rate of either one
percentage point over the XX Xxxx rate [Standard & Poor's corporate composite
or, if unavailable, its equivalent] as reported in the financial press at the
time the capital expenditure is made or, if the capital item is acquired through
third-party financing, then the actual [including fluctuating] rate paid by
Landlord in financing the acquisition of such capital item.) Provided, further,
that if Landlord reasonably concludes on the basis of engineering estimates that
a particular capital expenditure will effect savings in Building operating
expenses including, without limitation, energy-related costs, and that such
annual projected savings will exceed the annual charge-off of capital
expenditures computed as aforesaid, then and in such events, the annual
charge-off shall be determined by dividing the amount of such capital
expenditures by the number of years over which the projected amount of such
5
savings shall fully amortize the cost of such capital item or the amount of such
capital expenditure; and by adding the interest fact, as aforesaid.
In the event during all or any portion of any calendar year the
Building or the Complex is not fully rented and occupied, Landlord may elect
to make an appropriate adjustment in Operating Costs for such year, employing
sound accounting and management principles, to determine Operating Costs that
would have been paid or incurred by Landlord had the Building or the Complex
been fully rented and occupied and the amount so determined shall be deemed
to have been Operating Costs for such year.
For the purposes hereof Operating Costs shall be allocated into two
categories: "Building Operating Costs", i.e. those costs incurred by Landlord
with respect to the Building, and "Common Area Operating Costs", i.e. those
costs incurred by Landlord with respect to the Common Areas. Landlord shall
allocate Operating Costs into such categories on a fair and reasonable basis.
In connection with the foregoing, Building Operating Costs shall exclude any
costs incurred in connection with other Buildings in the Complex, and
Landlord shall allocate costs incurred with respect to more than one building
in the Complex on a fair and reasonable basis.
(g) "Real Estate Taxes" shall mean the Real Estate Taxes and other
taxes, levies and assessments (including, without limitation, special
assessments and any tax on the gross rents received by Landlord from the Tax
Parcel) imposed upon the Tax Parcel and upon any personal property of
Landlord used in the operation thereof or Landlord's interest in the Tax
Parcel or such personal property; charges, fees and assessments for transit,
housing, police, fire or other governmental services or purported benefits to
the Building; service or user payments in lieu of taxes, levies, betterments,
assessments and charges arising from the ownership, leasing, operating, use
or occupancy of the Building or based upon the rentals derived therefrom,
which are or shall be imposed by National, State, Municipal or other
authorities. As of the Execution Date, Real Estate Taxes shall not include
any franchise, rental, net income or profit tax, capital levy or excise,
provided, however, that any of the same and any other tax, excise, fee, levy,
charge or assessment, however described, that may in the future be levied or
assessed as a substitute for or an addition to, in whole or in part, any tax,
levy or assessment which would otherwise constitute Real Estate Taxes,
whether or not now customary or in the contemplation of the parties on the
Execution Date of this Lease, shall constitute Real Estate Taxes, but only to
the extent calculated as if the Tax Parcel is the only real estate owned by
Landlord. Real Estate Taxes shall also include expenses (including, without
limitation, attorneys' and consultants' fees) in attempting to reduce Real
Estate Taxes.
Appropriate credit against Real Estate Taxes shall be given for any
refund obtained by reason of a reduction in any Real Estate Taxes by the
assessors or the administrative, judicial or other governmental agency
responsible thereof. The original computations, as well as reimbursement or
payments of additional charges, if any, or allowances, if any, under the
provisions of Article 8.3 shall be based on the original assessed valuations
with adjustments to be made at a later date when the tax refund, if any,
shall be paid to Landlord by the taxing authorities. Expenditures for legal
fees and for other similar or dissimilar expenses incurred in seeking the tax
6
refund may be charged against the tax refund before the adjustments are made
for an Operating Year.
8.2 TENANT'S OPERATING EXPENSES. Tenant shall pay to Landlord, as
additional rent, Tenant's Proportionate Building Share of Building Operating
Costs incurred by Landlord in respect of any Operating Year and Tenant's
Proportionate Complex Share of Common Area Operating Costs incurred by
Landlord in respect of any Operating Year, during the term of this Lease.
The amounts payable by Tenant pursuant to this Article 8.2 are collectively
referred to herein as "Tenant's Operating Expenses". Tenant's Operating
Expenses shall be due when billed by Landlord. In implementation and not in
limitation of the foregoing, Tenant shall, commencing as of the Rent
Commencement Date, remit to Landlord pro rata monthly installments on account
of projected Tenant's Operating Expenses, calculated by Landlord on the basis
of the most recent Operating Cost data or budget available. If the total of
such monthly remittances on account of any Operating Year is greater than the
actual Tenant's Operating Expenses for such Operating Year, Tenant may credit
the difference against the next installment of rent or other charges due to
Landlord hereunder. If the total of such remittances is less than actual
Tenant's Operating Expenses for such Operating Year, Tenant shall pay the
difference to Landlord when billed therefor.
8.3 TENANT'S REAL ESTATE TAXES. Tenant shall pay to Landlord, as
additional rent, Tenant's Proportionate Complex Share of Real Estate Taxes
incurred with respect to each Tax Year (referred to herein as "Tenant's Real
Estate Taxes"). Tenant's Real Estate Taxes shall be due when billed by
Landlord. In implementation and not in limitation of the foregoing, Tenant
shall, commencing as of the Rent Commencement Date, remit to Landlord pro
rata monthly installments on account of projected (as such projection may be
changed, from time to time by Landlord) Tenant's Real Estate Taxes for Real
Estate Taxes due in the succeeding Tax Year projected by Landlord on the
basis of the most recent data available, including notices of proposed
assessment. If the total of such monthly remittances on account of any Tax
Year is greater than the actual Tenant's Real Estate Taxes for such Tax Year,
Tenant may credit the difference against the next installment of rent or
other charges due to Landlord hereunder, except that if such difference is
determined after the end of the term of this Lease, Landlord shall refund
such difference to Tenant to the extent that such difference exceeds any
amounts then due from Tenant to Landlord. If the total of such remittances
is less than actual Tenant's Real Estate Taxes for such Tax Year, Tenant
shall pay the difference to Landlord when billed therefor.
8.4 PART YEARS. If the Term Commencement Date or the Termination Date
occurs in the middle of an Operating Year, Tenant shall be liable for only
that portion of Tenant's Operating Expenses in respect of such Operating
Year, represented by a fraction, the numerator of which is the number of days
of the herein term which falls within the Operating Year and the denominator
of which is three hundred sixty-five (365). If the Term Commencement Date or
the Termination Date occurs in the middle of a Tax Year, Tenant shall be
liable for only that portion of Tenant's Real Estate Taxes in respect of such
Tax Year, represented by a fraction, the numerator of which is the number of
days of the herein term within such Tax Year and the denominator of which is
three hundred sixty-five (365).
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9. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself or its nominee, at
any time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor
or otherwise affecting Tenant's obligations under this Lease, to make such
changes, alterations, additions, improvements, repairs or replacements in or
to the Building (including the premises), the Common Areas, and the fixtures
and equipment thereof as it may deem necessary or desirable, and to change
the arrangement and/or location of entrances or passageways, doors and
doorways of the Building, provided, however, that there be no unreasonable
obstruction of the right of access to, or unreasonable interference with the
use of the premises by Tenant. Nothing contained in this Article 9 shall be
deemed to relieve Tenant of any duty, obligation or liability of Tenant with
respect to making any repair, replacement or improvement or complying with
any law, order or requirement of any governmental or other authority.
Landlord reserves the right to adopt and at any time and from time to time to
change the name or address of the Building. Neither this Lease nor any use
by Tenant shall give Tenant any right or easement for the use of the Common
Areas or of any door or any passage or any concourse connecting with any
other building or to any public convenience, and the use of the Common Areas
and such concourses and such conveniences may be regulated or discontinued at
any time and from time to time by Landlord without notice to Tenant and
without affecting the obligation of Tenant hereunder or incurring any
liability to Tenant therefor, provided, however, that there be no
unreasonable obstruction of the right of access to, or unreasonable
interference with the use of the premises by Tenant.
10. FIXTURES, EQUIPMENT AND IMPROVEMENTS--REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or
built into the premises prior to or during the term, whether by Landlord at
its expense or at the expense of Tenant (either or both) or by Tenant shall
be and remain part of the premises and shall not be removed by Tenant during
or at the end of the term unless Landlord otherwise elects to require Tenant
to remove such fixtures, equipment, improvements and appurtenances, in
accordance with Article 11 and/or 21 of the Lease. All electric, telephone,
telegraph, communication, radio, plumbing, heating and sprinkling systems,
fixtures and outlets, vaults, paneling, molding, shelving, radiator
enclosures, cork, rubber, linoleum and composition floors, ventilating,
silencing, air conditioning and cooling equipment, shall be deemed to be
included in such fixtures, equipment, improvements and appurtenances, whether
or not attached to or built into the premises. Where not built into the
premises, all removable electric fixtures, carpets, drinking or tap water
facilities, furniture, or trade fixtures or business equipment or Tenant's
inventory or stock in trade shall not be deemed to be included in such
fixtures, equipment, improvements and appurtenances and may be, and upon the
request of Landlord, will be removed by Tenant upon the condition that such
removal shall not materially damage the premises or the Building and that the
cost of repairing any damage to the premises or the Building arising from
installation or such removal shall be paid by Tenant. Notwithstanding
anything to the contrary contained in this Lease, upon the expiration or
sooner termination of the term of this Lease, Tenant shall remove from the
premises Tenant's racking and storage systems, Tenant's package freezers, the
four (4) HVAC units installed by Tenant on the roof of the Building, and the
drywall partition installed by Tenant in the premises. Without limiting any
8
of Tenant's other repair obligations under this Lease in connection with such
removal, the portion of the roof of the Building where said four (4) HVAC
units were installed shall be returned to Landlord upon such expiration or
sooner termination leak-free and sealed tight. If this Lease shall be
terminated by reason of Tenant's breach or default, then, notwithstanding
anything to the contrary in this Lease contained, Landlord shall have a lien
against all Tenant's property in the premises or elsewhere in the Building at
the time of such termination to secure Landlord's rights under Article 20
hereof. Tenant shall, within ten (10) days of Landlord's written request,
from time to time, execute and deliver to Landlord such documentation (e.g.,
UCC statements) as may be necessary to enable Landlord to perfect such lien.
11. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no alterations, decorations, installations, removals,
additions or improvements in or to the premises without Landlord's prior
written consent and then only those made by contractors or mechanics approved
by Landlord. Without limiting the foregoing, Tenant shall have no right to
make any alteration affecting the roof of the Building without Landlord's
consent. No installations or work shall be undertaken or begun by Tenant
until: (i) Landlord has approved written plans and specifications and a time
schedule for such work; (ii) Tenant has made provision for either written
waivers of liens from all contractors, laborers and suppliers of materials
for such installations or work, the filing of xxxx xxxxx on behalf of such
contractors, laborers and suppliers, or other appropriate protective measures
approved by Landlord; (iii) Tenant has procured appropriate surety payment
and performance bonds which shall name Landlord as an additional obligee on
behalf of such contractors, laborers and suppliers; and (iv) Tenant has
reimbursed Landlord for Landlord's reasonable costs in reviewing Tenant's
plans and specifications. No amendments or additions to such plans and
specifications shall be made without the prior written consent of Landlord.
Landlord's approval is solely given for the benefit of Landlord and neither
Tenant nor any third party shall have the right to rely upon Landlord's
approval of Tenant's plans for any purpose whatsoever. Without limiting the
foregoing, Tenant shall be responsible for all elements of the design of
Tenant's plans (including, without limitation, compliance with law,
functionality of design, and the structural integrity of the design), and
Landlord's approval of Tenant's plans shall in no event relieve Tenant of the
responsibility for such design. Any such work, alterations, decorations,
installations, removals, additions and improvements shall be done at Tenant's
sole expense and at such times and in such manner as Landlord may from time
to time designate. If Tenant shall make any alterations, decorations,
installations, removals, additions or improvements then Landlord may elect to
require the Tenant at the expiration or sooner termination of the term of
this Lease to restore the premises to substantially the same condition as
existed at the Term Commencement Date. Tenant shall pay, as an additional
charge, the entire increase in real estate taxes on the Building and any
increase in Landlord's insurance premiums which shall, at any time prior to
or after the Term Commencement Date, result from or be attributable to any
alteration, addition or improvement to the premises made by or for the
account of Tenant.
9
12. TENANT'S CONTRACTORS--MECHANICS' AND OTHER LIENS--STANDARD OF TENANT'S
PERFORMANCE-COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decorations, installations,
removals, additions or improvements in or to the premises--whether such work
be done prior to or after the Term Commencement Date--Tenant will strictly
observe the following covenants and agreements:
(a) Tenant agrees that it will not, either directly or indirectly, use
any contractors and/or materials if their use will create with difficulty,
whether in the nature of a labor dispute or otherwise, with other contractors
and/or labor engaged by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Building or any part thereof.
(b) In no event shall any material or equipment be incorporated in or
added to the premises, so as to become a fixture or otherwise a part of the
Building, in connection with any such alteration, decoration, installation,
addition or improvement which is subject to any lien, charge, mortgage or
other encumbrance of any kind whatsoever or is subject to any security
interest or any form of title retention agreement. Any mechanics lien filed
against the premises or the Building for work claimed to have been done for,
or materials claimed to have been furnished to, Tenant shall be discharged by
Tenant within ten (10) days thereafter. If Tenant fails so to discharge any
lien, Landlord may do so at Tenant's expense and Tenant shall reimburse
Landlord for any expense or cost incurred by Landlord in so doing within
fifteen (15) days after rendition of a xxxx therefor.
(c) All installations or work done by Tenant shall be at its own
expense and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof; (ii)
orders, rules and regulations of any Board of Fire Underwriters, or any other
body hereafter constituted exercising similar functions, and governing
insurance rating bureaus; (iii) Rules and Regulations of Landlord; and (iv)
plans and specifications prepared by and at the expense of Tenant theretofore
submitted to and approved by Landlord.
(d) Tenant shall procure all necessary permits before undertaking any
work in the premises; do all of such work in a good and workmanlike manner,
employing materials of good quality and complying with all governmental
requirements; and defend, save harmless, exonerate and indemnify Landlord and
Landlord's agents and employees from all injury, loss or damage to any person
or property occasioned by or growing out of such work. Tenant shall cause
contractors employed by Tenant to carry Worker's Compensation Insurance in
accordance with statutory requirements, Automobile Liability Insurance and
Commercial General Liability Insurance (which General Liability Insurance
shall name Landlord and Landlord's managing agent as additional insured
parties), covering such contractors on or about the premises in the amounts
stated in Article 14 hereof or in such other reasonable amounts as Landlord
shall require and to submit certificates evidencing such coverage to Landlord
prior to the commencement of such work.
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13. REPAIRS BY TENANT
(a) Tenant shall, at its own cost and expense, keep and maintain all
parts of the premises and such portion of the Building improvements within
the exclusive control of Tenant in good condition, promptly making all
necessary repairs and replacements, whether ordinary or extraordinary, with
materials and workmanship of the same character, kind and quality as the
original (including, without limitation, repair and replacement of all
fixtures installed by Tenant, water heaters within the premises, windows,
glass and plate glass, doors, skylights, any special office entries, interior
walls and finish work, floors and floor coverings, heating, ventilating,
plumbing, electrical and air conditioning systems serving the premises, dock
boards, truck doors, dock bumpers, electrical fixtures and systems, sprinkler
systems, and plumbing work and fixtures and performance of regular removal of
trash and debris). Tenant, as part of its obligations hereunder, shall keep
the premises in a clean and sanitary condition and Tenant shall periodically
clean the interior and exterior of all windows in the premises. Tenant will,
as far as possible, keep all such parts of the premises from deterioration
due to ordinary wear and from falling temporarily out of repair. Landlord
may elect, at the expense of Tenant, to make any such repairs or to repair
any damage or injury to the Building or the premises caused by moving
property of Tenant in or out of the Building, or by installation or removal
of furniture or other property, or by misuse by, or neglect, or improper
conduct of Tenant or Tenant's servants, employees. agents, contractors, or
licensees.
(b) Tenant shall not damage any demising wall or disturb the integrity
and support provided by any demising wall and shall at its sole cost and
expense promptly repair any damage or injury to any demising wall caused by
Tenant or its employees, agents or invitees.
(c) Tenant shall, at its own cost and expense, repair any damage
resulting from and/or caused in whole or in part by the negligence or
misconduct of Tenant, its agents, servants, employees, patrons, customers or
any other person entering upon the premises as a result of Tenant's business
activities or caused by Tenant's default hereunder.
14. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
14.1 GENERAL LIABILITY INSURANCE. Tenant shall procure, keep in force
and pay for Commercial General Liability Insurance insuring Tenant on an
occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death)
or damage to property which may be claimed to have occurred from and after
the time Tenant and/or its contractors enter the premises in accordance with
Articles 11 and 12 of this Lease, of not less than Five Million ($5,000,000)
Dollars in the event of personal injury to any number of persons or damage to
property, arising out of any one occurrence, and from time to time thereafter
shall be not less than such higher amounts, if procurable, as may be
reasonably required by Landlord and are customarily carried by responsible
industrial tenants in the City of Chicago.
14.2 CERTIFICATES OF INSURANCE. Such insurance shall be effected with
insurers approved by Landlord, authorized to do business in Illinois under valid
and enforceable policies wherein
11
Tenant names Landlord and Landlord's managing agent as additional insureds.
Such insurance shall provide that it shall not be cancelled or modified
without at least thirty (30) days' prior written notice to each insured named
therein. On or before the time Tenant and/or its contractors enter the
premises in accordance with Articles 4, 11, and 12 of this Lease and
thereafter not less than fifteen (15) days prior to the expiration date of
each expiring policy, original copies of the policies provided for in Article
14.1 issued by the respective insurers, or certificates of such policies
setting forth in full the provisions thereof and issued by such insurers
together with evidence satisfactory to Landlord of the payment of all
premiums for such policies, shall be delivered by Tenant to Landlord and
certificates as aforesaid of such policies shall upon request of Landlord, be
delivered by Tenant to the holder of any mortgage affecting the premises.
14.3 GENERAL. Tenant will save Landlord and Landlord's agents and
employees harmless, and will exonerate, defend and indemnify Landlord and
Landlord's agents and employees, from and against any and all claims,
liabilities or penalties asserted by or on behalf of any person, firm,
corporation or public authority arising from the Tenant's breach of the Lease
or:
(a) On account of or based upon any injury to person, or loss of
or damage to property, sustained or occurring on the premises on account of
or based upon the act, omission, fault, negligence or misconduct of any
person whomsoever (other than Landlord, or Landlord's agents, employees, or
contractors);
(b) On account of or based upon any injury to person, or loss of
or damage to property, sustained or occurring elsewhere (other than on the
premises) in or about the Building (and, in particular, without limiting the
generality of the foregoing, on or about the stairways, sidewalks.
concourses, arcades, malls, galleries, vehicular tunnels, approaches,
areaways, roof, Common Areas or other appurtenances and facilities used in
connection with the Building or premises) arising out of the use or occupancy
of the Building or premises by the Tenant, or by any person claiming by,
through or under Tenant, or on account of or based upon the act, omission,
fault, negligence or misconduct of Tenant, its agents, employees or
contractors; and
(c) On account of or based upon (including monies due on account
of) any work or thing whatsoever done (other than by Landlord or its
contractors, or agents or employees of either) on the premises during the
term of this Lease and during the period of time, if any, prior to the Term
Commencement Date that Tenant may have been given access to the premises.
Tenant's obligations under this Article 14.3 shall be insured either under
the Commercial General Liability Insurance required under Article 14. 1,
above, or by a contractual insurance rider or other coverage; and
certificates of insurance in respect thereof shall be provided by Tenant to
Landlord upon request.
14.4 PROPERTY OF TENANT. In addition to and not in limitation of the
foregoing, Tenant covenants and agrees that to the maximum extent permitted
by law, all merchandise, furniture, fixtures and property of every kind,
nature and description related or arising out of Tenant's leasehold estate
hereunder, which may be in or upon the premises or Building, in the Common
Areas
12
or on the sidewalks, areaways and approaches adjacent thereto, shall be at
the sole risk and hazard of Tenant, and that if the whole or any part thereof
shall be damaged, destroyed, stolen or removed from any cause or reason
whatsoever no part of said damage or loss shall be charged to, or borne by,
Landlord.
14.5 BURSTING OF PIPES, ETC. Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion,
failing plaster, steam, gas, electricity, electrical or electronic emanations
or disturbance, water, rain or snow or leaks from any part of the Building or
from the pipes, appliances, equipment or plumbing works or from the roof,
street or sub-surface or from any other place or caused by dampness,
vandalism, malicious mischief or by any other cause of whatever nature,
unless caused by or due to the negligence of Landlord, its agents, servants
or employees, and then only after (i) notice to Landlord of the condition
claimed to constitute negligence and (ii) the expiration of a reasonable time
after such notice has been received by Landlord without Landlord having taken
all reasonable and practicable means to cure or correct such condition; and
pending such cure or correction by Landlord, Tenant shall take all reasonably
prudent temporary measures and safeguards to prevent any injury, loss or
damage to persons or property. In no event shall Landlord be liable for any
loss, the risk of which is covered by Tenant's insurance, or is required to
be so covered by this Lease; nor shall Landlord or its agents be liable for
any such damage caused by other tenants or persons in the Building or caused
by operations in construction of any private, public, or quasi-public work;
nor shall Landlord be liable for any latent defect in the premises or in the
Building.
14.6 REPAIRS AND ALTERATIONS-NO DIMINUTION OF RENTAL VALUE. Except as
otherwise provided in Article 17, there shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to Tenant arising from any repairs,
alterations, additions, replacements or improvements made by Landlord, Tenant
or others in or to any portion of the Building or premises or any property
adjoining the Building, or in or to fixtures, appurtenances, or equipment
thereof or for failure of Landlord or others to make any repairs,
alterations, additions or improvements in or to any portion of the Building,
or of the premises, or in or to the fixtures, appurtenances or equipment
thereof.
15. ASSIGNMENT, MORTGAGING AND SUBLETTING
15.1 COVENANT AGAINST SUBLEASES AND ASSIGNMENT. Except as expressly
provided in this Article 15, Tenant covenants and agrees that neither this
Lease nor the term and estate hereby granted, nor any interest herein or
therein, will be assigned, mortgaged, pledged, encumbered or otherwise
transferred, voluntarily, by operation of law or otherwise, and that neither
the premises nor any part thereof will be encumbered in any manner by reason
of any act or omission on the part of Tenant, or used or occupied, or
permitted to be used or occupied, or utilized for desk space or for mailing
privileges, by anyone other than Tenant, or for any use or purpose other than
as stated in Exhibit 1, or be sublet, or offered or advertised for subletting.
15.2 ASSIGNMENT OF EQUITY INTEREST IN TENANT. The transfer of more than
fifty (50%) percent of the equity interest of the Tenant entity shall be deemed
to be an assignment for the
13
purposes of this Article 15. The provisions of this Article 15.2 shall not
apply to a corporation whose shares of stock are publicly traded on a
recognized stock exchange.
15.3 ASSIGNMENT BY MERGER. Notwithstanding the foregoing, it is hereby
expressly understood and agreed, however, if Tenant is a corporation, that
the assignment or transfer of this Lease, and the term and estate hereby
granted, to any corporation into which Tenant is merged or with which Tenant
is consolidated, which corporation shall have a net worth at least equal to
that of Tenant immediately prior to such merger or consolidation (such
corporation being hereinafter called "Assignee"), shall not be deemed to be
prohibited hereby it and upon the express condition that Assignee and Tenant
shall promptly execute, acknowledge and deliver to Landlord an agreement
("Assumption Agreement") in form and substance satisfactory to Landlord
whereby Assignee shall agree to be independently bound by and upon all the
covenants, agreements, terms, provisions and conditions set forth in this
Lease on the part of Tenant to be performed, and whereby Assignee shall
expressly agree that the provisions of this Article 15 shall, notwithstanding
such assignment or transfer, continue to be binding upon it with respect to
all future assignments and transfers.
15.4 OFFERBACK.
(a) Notwithstanding anything to the contrary herein contained, in
the event that Tenant desires to sublet the premises, or any portion thereof
or assign this Lease, Tenant shall, prior to entering into any such sublease
or assignment give Landlord a written notice ("Tenant's Offer"). Tenant's
Offer shall set forth the following:
(i) The name of the proposed subtenant or assignee.
(ii) A copy of the proposed sublease or assignment agreement.
Such proposed sublease or assignment shall include, without limitation, the
following terms:
(1) The portion ("Sublet Portion") of the premises
proposed to be subleased (or shall state that Tenant's interest in the Lease
is proposed to be assigned);
(2) The term ("Proposed Term") of the proposed sublease
(or shall state that Tenant's interest in the Lease is proposed to be
assigned); and
(3) The date ("Effective Date") on which it is
estimated that the term of the proposed sublease will commence (or the date
on which is estimated that the term of the proposed assignment will become
effective).
(iii) Copies of financial reports and other relevant financial
information on the proposed subtenant or assignee.
(iv) An offer to Landlord to terminate the term of the Lease as
of the Effective Date in respect of the Sublet Portion (or, in the event of a
proposed sublease for less than
14
the remainder of the term of the Lease, an offer to Landlord to suspend the
term of the Lease in respect of the Sublet Portion until the expiration or
prior termination of the Proposed Term).
(b) Landlord shall have twenty (20) days ("Offer Period") after
its receipt of Tenant's Offer to accept Tenant's Offer. If Landlord timely
accepts Tenant's Offer, the term of the Lease in respect of the Sublet
Portion shall be suspended or terminated, as the case may be, in accordance
with Tenant's Offer. If Landlord does not timely accept Tenant's Offer,
Landlord agrees not to unreasonably withhold its consent to the sublease or
assignment identified in Tenant's Offer ("Permitted Sublease") to a Permitted
Transferee, as hereinafter defined, subject however, to the provisions of
Articles 15.4, 15.5 and 15.6.
(c) A "Permitted Transferee" is a person, firm or corporation
which, in Landlord's reasonable opinion, (i) is financially responsible and
of good reputation, (ii) is engaged in a business, the functional aspects of
which, with respect to the premises, are substantially similar to the use of
other premises made by other tenants in the Building, (iii) is not then a
tenant or subtenant in the Building (or a related or controlled entity of
such tenant or subtenant) or with whom Landlord is already in negotiation as
evidenced by the issuance of a written proposal, (iv) will not be paying a
lower rental rate than the rate at which Landlord is then (i.e. at the time
that Landlord is asked to consent to such sublease) offering such space or
similar space in the Building, and (v) would not subject the premises to a
use which would (a) involve increased personnel or wear upon the Building,
(b) violate any exclusive right granted to another tenant in the Building or
(e) require any addition to or modification of the premises or the Building
in order to comply with building code or other governmental requirements.
(d) If Tenant is in default of its obligations under the Lease at
the time that it gives Landlord Tenant's Offer, such default shall be deemed
to constitute "reasonable" cause for Landlord withholding its consent to any
proposed subletting or assignment.
(e) If Tenant does not enter into a Permitted Sublease with a
Permitted Transferee approved by Landlord, as aforesaid, on or before the
date which is one hundred (100) days after the earlier of (x) the expiration
of the Offer Period, or (y) the date that Landlord notifies Tenant that
Landlord will not accept Tenant's offer to terminate or suspend the Lease,
then such failure to timely enter into a Permitted Sublease shall be deemed
to constitute "reasonable" reason to permit Landlord to withhold its consent
to any subletting or assignment proposed to be entered into by Tenant after
the expiration of said one hundred (100) day period unless Tenant again gives
Landlord a Tenant's Offer in respect of such Sublet Portion. If Tenant shall
make any subsequent Tenant's Offer in respect of such Sublet Portion, any
such subsequent Tenant's Offer shall be treated in all respects as if it is
Tenant's first Tenant's Offer.
15.5 TENANT PARTNERSHIPS. If Tenant is an individual who uses and/or
occupies the premises with partners, or if Tenant is a partnership, then:
15
(i) Each present and future partner shall be personally bound by
and upon all of the covenants, agreements, terms, provisions and conditions
set forth in this Lease on the part of Tenant to be performed; and
(ii) In confirmation of the foregoing, Landlord may (but without
being required to do so) request (and Tenant shall duly comply) that Tenant
at the time that Tenant admits any new partner to its partnership, shall
require each such new partner to execute an agreement in form and substance
satisfactory to Landlord whereby such new partner shall agree to be
personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions of this Lease on the part of Tenant to be
performed, without regard to the time when such new partner is admitted to
partnership or when any obligations under any such covenants, etc. accrue.
15.6 MISCELLANEOUS PROVISIONS. The following provisions shall apply to
any sublease or assignment under this Lease:
(i) Tenant shall remain fully liable under this Lease during
the unexpired term hereof, notwithstanding any sublease or assignment.
(ii) Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord respecting the relevant business experience and
financial responsibility and status of the third party concerned..
(iii) Tenant shall reimburse Landlord for Landlord's reasonable
attorneys' fees incurred in connection with the review, processing and
documentation of any request by Tenant to sublet or assign its interest in
the Lease.
(iv) If Tenant's transfer of rights or sharing of the premises
provides for the receipt by, on behalf or on account of Tenant of any
consideration of any kind whatsoever (including, but not by way of
limitation, a premium rental for a sublease or lump sum payment for an
assignment) in excess of the rental and other charges due Landlord under this
Lease, Tenant shall pay seventy-five (75%) percent of said excess, less
Tenant's reasonable costs (not to exceed five percent (5%) of said excess) to
Landlord. If said consideration consists of cash paid to Tenant, said
payment to Landlord shall be made upon receipt by Tenant of said cash payment.
(v) In the case of an assignment of this Lease, the assignee
shall execute and deliver to Landlord an Assumption Agreement.
(vi) Any transfer of Tenant's interest in the premises or the
Lease and consent thereto by Landlord shall be effected on forms approved by
Landlord as to form and substance.
(vii) Any consent by Landlord to a particular assignment or
subletting shall not in any way diminish the prohibition stated in the first
sentence of this Article 15 or the continuing liability of the Tenant named
on Exhibit 1 as the party Tenant under this Lease.
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(viii) No assignment or subletting or use of the premises by an
affiliate of Tenant shall affect the purpose for which the premises may be
used as stated in Exhibit 1.
(ix) If this Lease be assigned, or if the premises or any part
thereof be sublet or occupied by anybody other than Tenant, Landlord may, at
any time and from time to time, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected to the
rent and other charges herein reserved then due and thereafter becoming due,
but no such assignment subletting, occupancy or collection shall be deemed a
waiver of this covenant, or the acceptance of the assignee, subtenant or
occupant as a tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained.
16. MISCELLANEOUS COVENANTS
Tenant covenants and agrees as follows:
16.1 RULES AND REGULATIONS. Tenant will faithfully observe and comply
with the Rules and Regulations, if any, annexed hereto and such other and
further reasonable Rules and Regulations as Landlord hereafter at any time or
from time to time may make and may communicate in writing to Tenant, which in
the reasonable judgment of Landlord shall be necessary for the reputation,
safety, care or appearance of the Building, or the preservation of good order
therein, or the operation or maintenance of the Building, or the equipment
thereof or the comfort of tenants or others in the Building, provided,
however, that in the case of any conflict between the provisions of this
Lease and any such regulations, the provisions of this Lease shall control,
and provided further that nothing contained in this Lease shall be construed
to impose upon Landlord any duty or obligation to enforce the Rules and
Regulations or the terms, covenants or conditions in any other lease as
against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
contractors, visitors, invitees or licensees.
16.2 ACCESS TO PREMISES-SHORING. Tenant shall: (i) permit Landlord to
erect, use and maintain pipes, ducts and conduits in and through the premises,
provided the same do not materially reduce the floor area or materially
adversely affect the appearance thereof, (ii) upon prior oral notice (except
that no notice shall be required in emergency situations), permit Landlord and
any mortgagee of the Building or the Building, and land or of the interest of
Landlord therein, and any lessor under any ground or underlying lease, and their
representatives, to have free and unrestricted access to and to enter upon the
premises at all reasonable hours for the purposes of inspection or of making
repairs, replacements or improvements in or to the premises or the Building or
equipment (including, without limitation, sanitary, electrical, heating, air
conditioning or other systems) or of complying with all laws, orders and
requirements of governmental or other authority or of exercising any right
reserved to Landlord by this Lease (including the right during the progress of
any such repairs, replacements or improvements or while performing work and
furnishing materials in connection with compliance with any such laws, orders or
requirements to take upon or through, or to keep and store within, the premises
all necessary materials, tools and equipment); and (iii) permit Landlord, at
reasonable times, to show the premises during ordinary business hours to any
existing or prospective mortgagee, ground lessor, space lessee, purchaser, or
assignee of any mortgage, of
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the Building or of the Building and the land or of the interest of Landlord
therein, and during the period of 12 months next preceding the Termination
Date to any person contemplating the leasing of the premises or any part
thereof. If during the last month of the term, Tenant shall have removed all
or substantially all of Tenant's property therefrom, Landlord may
immediately, enter and alter, renovate and redecorate the premises, without
elimination or abatement of rent, or incurring liability to Tenant for any
compensation, and such acts shall have no effect upon this Lease. If Tenant
shall not be personally present to open and permit an entry into the premises
at any time when for any reason an entry therein shall be necessary or
permissible, Landlord or Landlord's agents may enter the same by a master
key, or may forcibly enter the same, without rendering Landlord or such
agents liable therefor (if during an entry Landlord or Landlord's agents
shall accord reasonable care to Tenant's property), and without in any manner
affecting the obligations and covenants of this Lease. Provided that
Landlord shall incur no additional expense thereby, Landlord shall exercise
its rights of access to the premises permitted under any of the terms and
provisions of this Lease in such manner as to minimize to the extent
practicable interference with Tenant's use and occupation of the premises.
If an excavation shall be made upon land adjacent to the premises or shall be
authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the premises for
the purpose of doing such work as said person shall deem necessary, to
preserve the Building from injury or damage and to support the same by proper
foundations without any claims for damages or indemnity against Landlord, or
diminution or abatement of rent.
16.3 ACCIDENTS TO SANITARY AND OTHER SYSTEMS. Tenant shall give to
Landlord prompt notice of any fire or accident in the premises or in the
Building and of any damage to, or defective condition in, and part or
appurtenance of the Building including, without limitation, sanitary,
electrical, heating and air conditioning or other systems located in, or
passing through, the premises. Except as otherwise provided in Articles 17
and 19, and subject to Tenant's obligations in Article 13, such damage or
defective condition shall be remedied by Landlord with reasonable diligence,
but if such damage or defective condition was caused by Tenant or by the
employees, licensees, contractors or invitees of Tenant, the cost to remedy
the same shall be paid by Tenant. Tenant shall not be entitled to claim any
eviction from the premises or any damages arising from any such damage or
defect unless the same (i) shall have been occasioned by the negligence of
the Landlord, its agents, servants or employees and (ii) shall not, after
notice to Landlord of the condition claimed to constitute negligence, have
been cured or corrected within a reasonable time after such notice has been
received by Landlord; and in case of a claim of eviction unless such notice
or defective condition shall have rendered the premises untenantable and they
shall not have been made tenantable by Landlord within a reasonable time.
16.4 SIGNS. Tenant shall put no signs in any part of the Building
without obtaining Landlord's prior written consent. Any approved signage
shall conform to Landlord's design criteria. Neither Landlord's name, nor
the name of the Building or the Complex of which the Building is a part, or
the name of any other structure erected therein, shall be used without
Landlord's consent in any advertising material (except on business stationery
or as an address in advertising matter), nor shall any such name, as
aforesaid, be used in any undignified, confusing, detrimental or misleading
manner.
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16.5 ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time upon not less than ten (10) days' prior notice by Landlord to Tenant,
execute, acknowledge and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), and the dates to which the Yearly
Rent and other charges have been paid in advance, if any, stating whether or
not Landlord is in default in performance of any covenant, agreement, terms,
provision or condition contained in this Lease and, if so, specifying each
such default and such other facts as Landlord may reasonably request, it
being intended that any such statement delivered pursuant hereto may be
relied upon by any prospective purchaser of the Building or of the Building
and the land or of any interest of Landlord therein, any mortgagee or
prospective mortgagee thereof, any lessor or prospective lessor thereof, any
lessee or prospective lessee thereof or any prospective assignee of any
mortgage thereof. Time is of the essence in respect of any such requested
certificate, Tenant hereby acknowledging the importance of such certificates
in mortgage financing arrangements, prospective sale and the like. In the
event that Tenant fails to execute, acknowledge and deliver such statement
within ten (10) days after Landlord delivers to Tenant a proposed form of
such statement. Tenant shall be deemed to have conclusively acknowledged
that such form is accurate and true as to the facts stated therein.
16.6 ODORS. Tenant shall not cause nor permit any odors of cooking or
other processes, or any unusual or other objectionable odors to emanate from
or permeate the premises.
16.7 REQUIREMENTS OF LAW -- FINES AND PENALTIES. Tenant at its sole
expense shall comply with all laws, rules, orders and regulations, including,
without limitation, all energy-related requirements, of Federal, State,
County and Municipal Authorities and with any direction of any public officer
or officers, pursuant to law, which shall impose any duty upon Landlord or
Tenant with respect to or arising out of Tenant's use or occupancy of the
premises. Tenant shall reimburse and compensate Landlord for all expenditures
made by, or damages or fines sustained or incurred by, Landlord due to
nonperformance or noncompliance with or breach or failure to observe any
item, covenant, or condition of this Lease upon Tenant's part to be kept,
observed, performed or complied with. If Tenant receives notice of any
violation of law, ordinance, order or regulation applicable to the premises,
it shall give prompt notice thereof to Landlord.
16.8 TENANT'S ACTS -- EFFECT ON INSURANCE. Tenant shall not do or permit
to be done any act or thing upon the premises or elsewhere in the Building which
will invalidate or be in conflict with any insurance policies covering the
Building and the fixtures and property therein; and shall not do, or permit to
be done, any act or thing upon the premises which shall subject Landlord to any
liability or responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon said premises or
for any other reason. Tenant at its own expense shall comply with all rules,
orders, regulations and requirements of the Board of Fire Underwriters, or any
other similar body having jurisdiction, and shall not (i) do, or permit anything
to be done, in or upon the premises, or bring or keep anything therein, except
as now or hereafter permitted by the Fire Department Board of Underwriters, Fire
Insurance Rating Organization, or other authority having jurisdiction, and then
only in such quantity and manner of storage as will not increase the rate for
any insurance applicable to the Building, or (ii) use the premises in a manner
which shall
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increase such insurance rates on the Building, or on property located
therein, over that applicable when Tenant first took occupancy of the
premises hereunder. If by reason of the failure of Tenant to comply with the
provisions hereof the insurance rate applicable to any policy of insurance
shall at any time thereafter be higher than it otherwise would be, the Tenant
shall reimburse Landlord for that part of any insurance premiums thereafter
paid by Landlord, which shall have been charged because of such failure by
Tenant.
16.9 MISCELLANEOUS. Tenant shall not suffer or permit the premises or
any fixtures, equipment or utilities therein or serving the same, to be
overloaded, damaged or defaced, nor permit any hole to be drilled or made in
any part thereof Tenant shall not suffer or permit any employee, contractor,
business invitee or visitor to violate any covenant, agreement or obligations
of the Tenant under this Lease.
17. DAMAGE BY FIRE, ETC.
During the entire term of this Lease, and adjusting insurance coverages
to reflect current values from time to time:--(i) Landlord shall keep the
Building insured against loss or damage caused by any peril covered under
fire, extended coverage and all risk insurance and covering such other perils
as Landlord deems appropriate in an amount equal to at least eighty percent
(80%) replacement cost value above foundation walls; and (ii) Tenant shall
keep its personal property in and about the premises insured against loss or
damage caused by any peril covered under fire, extended coverage and all risk
insurance in an amount equal to at least eighty percent (80%) replacement
cost value. Such Tenant's insurance shall insure the interests of both
Landlord and Tenant as their respective interests may appear from time to
time and shall name Landlord as an additional insured; and the proceeds
thereof shall be used only for the replacement or restoration of such
personal property.
If the premises shall be damaged by fire or other insured casualty,
Landlord shall proceed with diligence, subject to the then applicable statutes,
building codes, zoning ordinances, and regulations of any governmental
authority, and at the expense of Landlord (but only to the extent of insurance
proceeds made available to Landlord by any mortgagee and/or ground lessor of the
real property of which the premises are a part) to repair or cause to be
repaired such damage. If the premises or any part thereof shall have been
rendered unfit for use and occupation hereunder by reason of such damage the
Yearly Rent or a just and proportionate part thereof according to the nature and
extent to which the premises shall have been so rendered unfit, shall be
suspended or abated until the premises shall have been restored as nearly as
practicably may be to the condition in which they were immediately prior to such
fire or other casualty, provided, however, that if Landlord or any mortgagee of
the Building or of the Building and the land shall be unable to collect the
insurance proceeds (including rent insurance proceeds) applicable to such damage
because of some action or inaction on the part of Tenant, or the employees,
contractors, licensees or invitees of Tenant, the cost of repairing such damage
shall be paid by Tenant and there shall be no abatement of rent. Landlord shall
not be liable for delays in the making of any such repairs which are due to
government regulation, casualties and strikes, unavailability of labor and
materials, and other causes beyond the reasonable control of Landlord, nor shall
Landlord be liable for any inconvenience or
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annoyance to Tenant or injury to the business of Tenant resulting from delays
in repairing such damage. If (i) the premises are so damaged by fire or
other casualty (whether or not insured) at any time during the last thirty
months of the term hereof that the cost to repair such damage is reasonably
estimated to exceed one-third of the total Yearly Rent payable hereunder for
the period from the estimated date of restoration until the Termination Date,
or (ii) the Building (whether or not including any portion of the premises)
is so damaged by fire or other casualty (whether or not insured) that
substantial alteration or reconstruction or demolition of the Building shall
in Landlord's judgment be required, then and in either of such events, this
Lease and the term hereof may be terminated at the election of Landlord by a
notice in writing of its election so to terminate which shall be given by
Landlord to Tenant within sixty (60) days following such fire or other
casualty, the effective termination date of which shall be not less than
thirty (30) days after the day on which such termination notice is received
by Tenant. In the event of any termination, this Lease and the term hereof
shall expire as of such effective termination date as though that were the
Termination Date as stated in Exhibit 1 and the Yearly Rent shall be
apportioned as of such date; and if the premises or any part thereof shall
have been rendered unfit for use and occupation by reason of such damage the
Yearly Rent for the period from the date of the fire or other casualty to the
effective termination date, or a just and proportionate part thereof,
according to the nature and extent to which the premises shall have been so
rendered unfit, shall be abated.
18. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated to pay to Landlord any loss,
cost, damage, liability or expense suffered or incurred by Landlord, Landlord
shall allow to Tenant as an offset against the amount thereof the net proceeds
of any insurance collected by Landlord for or on account of such loss, cost,
damage, liability or expense, provided that the allowance of such offset does
not invalidate or prejudice the policy or policies under which such proceeds
were payable.
In any case in which Landlord or Landlord's managing agent shall be
obligated to pay to Tenant any loss, cost, damage, liability or expense suffered
or incurred by Tenant, Tenant shall allow to Landlord or Landlord's managing
agent, as the case may be, as an offset against the amount thereof the net
proceeds of any insurance collected by Tenant for or on account of such loss,
cost, damage, liability, or expense, provided that the allowance of such offset
does not invalidate the policy or policies under which such proceeds were
payable.
The parties hereto shall each procure an appropriate clause in, or
endorsement on, any property insurance policy covering the premises and the
Building and personal property, fixtures and equipment located thereon and
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery in favor of either party, or their respective
agents or employees. Having obtained such clauses and/or endorsements each
party hereby agrees that it will not make any claim against or seek to recover
from the other, or its agents or employees, for any loss or damage to its
property or the property of others resulting from fire or other perils covered
by such property insurance, to the extent of insurance proceeds recovered by
such party on account of such loss or damage.
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19. CONDEMNATION - EMINENT DOMAIN
In the event that the premises or any part thereof or the whole or any part
of the Building, shall be taken or appropriated by eminent domain or shall be
condemned for any public or quasi-public use, or (by virtue of any such taking,
appropriation or condemnation) shall suffer any damage (direct, indirect or
consequential) for which Landlord or Tenant shall be entitled to compensation,
then (and in any such event) this Lease and the term hereof may be terminated at
the election of Landlord by a notice in writing of its election so to terminate
which shall be given by Landlord to Tenant within sixty (60) days following the
date on which Landlord shall have received notice of such taking, appropriation
or condemnation. In the event that a substantial part of the premises or of the
means of access thereto shall be so taken, appropriated or condemned, then (and
in any such event) this Lease and the term hereof may be terminated at the
election of Tenant by a notice in writing of its election so to terminate which
shall be given by Tenant to Landlord within sixty (60) days following the date
on which Tenant shall have received notice of such taking, appropriation or
condemnation.
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this Lease and the term hereof shall terminate on or retroactively as of
the date on which Tenant shall be required to vacate any part of the premises or
shall be deprived of a substantial part of the means of access thereto,
provided, however, that Landlord may in Landlord's notice elect to terminate
this Lease and the term hereof retroactively as of the date on which such
taking, appropriation or condemnation became legally effective. In the event of
any such termination, this Lease and the term hereof shall expire as of such
effective termination date as though that were the Termination Date as stated in
Exhibit 1, and the Yearly Rent shall be apportioned as of such date. If neither
party (having the right so to do) elects to terminate Landlord will, with
reasonable diligence and at Landlord's expense (but only to the extent of taking
proceeds made available to Landlord), restore the remainder of the premises, or
the remainder of the means of access, as nearly as practicably may be to the
same condition as obtained prior to such taking, appropriation or condemnation
in which event (i) a just proportion of the Yearly Rent, according to the nature
and extent of the taking, appropriation or condemnation and the resulting
permanent injury to the premises and the means of access thereto, shall be
permanently abated, and (ii) a just proportion of the remainder of the Yearly
Rent according to the nature and extent of the taking, appropriation or
condemnation and the resultant injury sustained by the premises and the means of
access thereto, shall be abated until what remains of the premises and the means
of access thereto shall have been restored as fully as may be for permanent use
and occupation by Tenant hereunder. Except for and award specifically
reimbursing Tenant for moving or relocation expenses, there are expressly
reserved to Landlord all rights to compensation and damages created, accrued or
accruing by reason of any such taking, appropriation or condemnation, in
implementation and in confirmation of which Tenant does hereby acknowledge that
Landlord shall be entitled to receive all such compensation and damages, grant
to Landlord all and whatever rights (if any) Tenant may have to such
compensation and damages, and agrees to execute and deliver all and whatever
further instruments of assignment as Landlord may from time to time request. In
the event of any taking of the premises or any part thereof for temporary use,
(i) this Lease shall be and remain unaffected thereby, and (ii) Tenant shall be
entitled to receive for itself and award made for such use, provided, that if
any taking is for a period
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extending beyond the term of this Lease, such award shall be apportioned
between Landlord and Tenant as of the Termination Date or earlier termination
of this Lease.
20. DEFAULT
20.1 CONDITIONS OF LIMITATION - RE-ENTRY - TERMINATION. This Lease and the
herein term and estate are, upon the condition that if (a) subject to the
provisions of Article 20.7, Tenant shall neglect or fail to perform or observe
any of the Tenant's covenants or agreements herein, including (without
limitation) the covenants or agreements with regard to the payment when due of
rent, additional charges, reimbursement for increase in Landlord's costs, or any
other charge payable by Tenant to Landlord (all of which shall be considered as
part of Yearly Rent for the purposes of invoking Landlord's statutory or other
rights and remedies in respect of payment defaults); or (b) Tenant shall desert
or abandon the premises or the same shall become, or shall appear to have
become, vacant (whether or not the keys shall have been surrendered or the rent
shall have been paid); or (c) Tenant shall be involved in financial difficulties
as evidenced by an admission in writing by Tenant of Tenant's inability to pay
its debts generally as they become due, or by the making or offering to make a
composition of its debts with its creditors; or (d) Tenant shall make an
assignment or trust mortgage, or other conveyance or transfer of like nature, of
all or a substantial part of its property for the benefit of its creditors, or
(e) an attachment or mesne process, on execution or otherwise, or other legal
process shall issue against Tenant or its property and a sale of any of its
assets shall be held thereunder; or (f) any judgment, final beyond appeal or any
lien, attachment or the like shall be entered, recorded or filed against Tenant
in any court, registry, etc. and Tenant shall fail to pay such judgment within
thirty (30) days after the judgment shall have become final beyond appeal or to
discharge or secure by surety bond such lien, attachment, etc. within thirty
(30) days of such entry, recording or filing, as the case may be; or (g) the
leasehold hereby created shall be taken on execution or by other process of law
and shall not be revested in Tenant within thirty (30) days thereafter, or (h) a
receiver, sequesterer, trustee or similar officer shall be appointed by a court
of competent jurisdiction to take charge of all or any part of Tenant's property
and such appointment shall not be vacated within thirty (30) days; or (i) any
proceeding shall be instituted by or against Tenant pursuant to any of the
provisions of any Act of Congress or State law relating to bankruptcy,
reorganizations, arrangements, compositions or other relief from creditors, and,
in the case of any proceeding instituted against it, if Tenant shall fail to
have such proceeding dismissed within thirty (30) days or if Tenant is adjudged
bankrupt or insolvent as a result of any such proceeding, or (j) any event shall
occur or any contingency shall arise whereby this Lease, or the term and estate
thereby created, would (by operation of law or otherwise) devolve upon or pass
to any person, firm or corporation other than Tenant, except as expressly
permitted under Article 15 hereof - then, and in any such event (except as
hereinafter in Article 20.2 otherwise provided) Landlord may, by notice to
Tenant, elect to terminate this Lease or Tenant's right to possession under this
Lease; and thereupon (and without prejudice to any remedies which might
otherwise be available for arrears of rent or other charges due hereunder or
preceding breach of covenant or agreement and without prejudice to Tenant's
liability for damages as hereinafter stated), upon the giving of such notice,
this Lease or Tenant's right to possession hereunder shall terminate as of the
date specified therein as though that were the Termination Date as stated in
Exhibit 1. Without being taken or deemed to be guilty of any manner of trespass
or conversion, and without
23
being liable to indictment prosecution or damages therefor, Landlord may,
forcibly if necessary, enter into and upon the premises (or any part thereof
in the name of the whole); repossess the same as of its former estate; and
expel Tenant and those claiming under Tenant and to remove any and all
property therefrom without being deemed in any manner guilty of trespass;
eviction or forcible entry and detainer and without incurring any liability
for any damage resulting therefrom, Tenant hereby waiving any fight to claim
damage for such re-entry and expulsion and without relinquishing Landlord's
right to rent or any other right given to Landlord hereunder or by operation
of law. Wherever "Tenant" is used in subdivisions (c), (d), (e), (f), (g),
(h) and (i) of this Article 20.1, it shall be deemed to include any one of
(i) any corporation of which Tenant is a controlled subsidiary and (ii) any
guarantor of any of Tenant's obligations under this Lease.
20.2 DAMAGES - ASSIGNMENT FOR BENEFIT OF CREDITORS. For the more effectual
securing to Landlord of the rent and other charges and payments reserved
hereunder, it is agreed as a further condition of this Lease that if at any time
Tenant shall make any transfer similar to or in the nature of an assignment of
its property for the benefit of its creditors, the term and estate hereby
created shall terminate ipso facto, without entry or other action by Landlord;
and notwithstanding any other provisions of this Lease, Landlord shall forthwith
upon such termination, without prejudice to any remedies which might otherwise
be available for arrears of rent or other charges due hereunder or preceding
breach of this Lease, be ipso facto entitled to recover as liquidated damages
the sum of (a) the amount described in clause (x) of Article 20.3 and (b) (in
view of the uncertainty of prompt re-letting and the expense entailed in
re-letting the premises) an amount equal to the rent and other charges payable
for and in respect of the twelve-(12)-month period next preceding the date of
termination, as aforesaid.
20.3 DAMAGES - TERMINATION. Upon the termination of this Lease or the
right to possession under the provisions of this Article 20, then except as
hereinabove in Article 20.2 otherwise provided, Tenant shall pay to Landlord the
rent and other charges payable by Tenant to Landlord up to the time of such
termination, shall continue to be liable for any preceding breach of covenant,
and in addition, shall pay to Landlord as damages, at the election of Landlord
either:
(x) the amount by which, at the time of the termination of this Lease or
of Tenant's right to possession (or at any time thereafter if Landlord shall
have initially elected damages under subparagraph (y), below), (i) the aggregate
of the rent and other charges projected over the period commencing with such
termination and ending on the Termination Date as stated in Exhibit 1 exceeds
(ii) the aggregate projected rental value of the premises for such period.
or:
(y) amounts equal to the rent and other charges which would have been
payable by Tenant had this Lease or Tenant's right to possession not been so
terminated, payable upon the due dates therefor specified herein following such
termination and until the Termination Date as specified in Exhibit 1, provided,
however, if Landlord shall re-let the premises during such period,
24
that Landlord shall credit Tenant with the net rents received by Landlord
from such re-letting, such net rents to be determined by first deducting from
the gross rents as and when received by Landlord from such re-letting the
expenses incurred or paid by Landlord in terminating this Lease, as well as
the expenses of re-letting, including altering and preparing the premises for
new tenants, brokers' commissions, and all other similar and dissimilar
expenses properly chargeable against the premises and the rental therefrom,
it being understood that any such re-letting may be for a period equal to or
shorter or longer than the remaining term of this Lease; and provided,
further, that (i) in no event shall Tenant be entitled to receive any excess
of such net rents over the sums payable by Tenant to Landlord hereunder and
(ii) in no event shall Tenant be entitled in any suit for the collection of
damages pursuant to this Subparagraph (y) to a credit in respect of any net
rents from a re-letting except to the extent that such net rents are actually
received by Landlord prior to the commencement of such suit. If the premises
or any part thereof should be re-let in combination with other space, then
proper apportionment on a square foot area basis shall be made of the rent
received from such re-letting and of the expenses of re-letting.
In calculating the rent and other charges under Subparagraph (x), above,
there shall be included, in addition to the Yearly Rent, Tenant's Real Estate
Taxes and Tenant's Operating Expenses and other considerations agreed to be paid
or performed by Tenant, on the assumption that all such amounts and
considerations would have remained constant (except as herein otherwise
provided) for the balance of the full term hereby granted.
Landlord may, but need not, relet the Premises or any part thereof for such
rent and upon such terms as Landlord, in its sole discretion, shall determine
(including the right to relet the Premises for a greater or lesser term than
that remaining under this Lease, the right to relet the Premises as part of a
larger area, and the right to change the character or use made of the Premises).
If Landlord decides to relet the Premises or a duty to relet is imposed upon
Landlord by law, Landlord and Tenant agree that the Landlord shall only be
required to use the same efforts Landlord then uses to lease other properties
Landlord owns or manages (or if the Premises are then managed for Landlord, then
Landlord will instruct such manager to use the same efforts such manager then
uses to lease other space or properties which it owns or manages); provided,
however, that Landlord (or its manager) shall not be required to give any
preference or priority to the showing or leasing of the Premises over any other
space that Landlord (or its manager) may be leasing or have available and may,
place a suitable prospective tenant in any such available space regardless of
when such alternative space becomes available; provided, further, that Landlord
shall not be required to observe any instruction given by Tenant about such
reletting or accept any tenant offered by Tenant unless such offered tenant has
a creditworthiness acceptable to Landlord, leases the entire Premises at the
same rent, for no more than the current Term and on the same other terms and
conditions as in this Lease without the expenditure by Landlord for tenant
improvements or broker's commission.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
terminated hereunder.
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Nothing herein contained shall be construed as limiting or precluding the
recovery by, Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
20.4 FEES AND EXPENSES.
(a) If Tenant shall default in the performance of any covenant on
Tenant's part to be performed as in this Lease contained, Landlord may
immediately, or at any time thereafter, without notice, perform the same for the
account of Tenant. If Landlord at any time is compelled to pay or elects to pay
any sum of money, or do any act which will require the payment of any sum of
money, by reason of the failure of Tenant to comply with any provision hereof or
if Landlord is compelled to or does incur any expense, including reasonable
attorneys' fees, in instituting, prosecuting, and/or defending any action or
proceeding instituted by reason of any default of Tenant hereunder, Tenant shall
on demand pay to Landlord by way of reimbursement the sum or sums so paid by
Landlord with all costs and damages, plus interest computed as provided in
Article 6 hereof.
(b) Tenant shall pay Landlord's cost and expense, including
reasonable attorneys' fees, incurred (i) in enforcing any obligation of Tenant
under this Lease or (ii) as a result of Landlord, without its fault, being made
partly to any litigation pending by or against Tenant or any persons claiming
through or under Tenant.
20.5 WAIVER OF REDEMPTION. Tenant does hereby waive and surrender all
rights and privileges which it might have under or by reason of any present or
future law to redeem the premises or to have a continuance of this Lease for the
term hereby demised after being dispossessed or ejected therefrom by process of
law or under the terms of this Lease or after the termination of this Lease as
herein provided.
20.6 LANDLORD'S REMEDIES NOT EXCLUSIVE. The specified remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any remedies or means of redress to which Landlord may at any time
be lawfully entitled, and Landlord may invoke any remedy (including the remedy
of specific performance) allowed at law or in equity as if specific remedies
were not herein provided for.
20.7 GRACE PERIOD. Notwithstanding anything to the contrary in clause (i)
of Article 20.1 contained, Landlord agrees not to take any action to terminate
this Lease (a) for default b\, Tenant in the payment when due of any sum of
money, if Tenant shall cure such default within five (5) days after written
notice thereof is given by Landlord to Tenant, provided, however, that no such
notice need be given and no such default in the payment of money shall be
curable if on two (2) prior occasions there had been a default in the payment of
money which had been cured after notice thereof had been given by Landlord to
Tenant as herein provided or (b) for default by Tenant in the performance of any
covenant other than a covenant to pay a sum of money, if Tenant shall cure such
default within a period of thirty (30) days after written notice thereof given
by Landlord to Tenant (except where the nature of the default is such that
remedial action should appropriately take place
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sooner, as indicated in such written notice), or within such additional
period as may, reasonably be required to cure such default if (because of
governmental restrictions or any other cause beyond the reasonable control of
Tenant) the default is of such a nature that it cannot be cured within such
thirty-(30)-day period, provided, however, (1) that there shall be no
extension of time beyond such thirty-(30)-day period for the curing of any
such default unless, not more than ten (10) days after the receipt of the
notice of default, Tenant in writing (i) shall specify the cause on account
of which the default cannot be cured during such period and shall advise
Landlord of its intention duly to institute all steps necessary to cure the
default and (ii) shall, as soon as reasonably practicable, duly institute and
thereafter diligently prosecute to completion all steps necessary to cure
such default and, (2) that no notice of the opportunity to cure a default
need be given, and no grace period whatsoever shall be allowed to Tenant, in
the event that the default is based upon a condition set forth in clauses
(b), (c), (d), (e), (f), (g), (h), (i), or (j) of Article 20.1 of this Lease,
or if the covenant or condition the breach of which gave rise to default had,
by reason of a breach on a prior occasion, been the subject of a notice
hereunder to cure such default.
Notwithstanding anything to the contrary in this Article 20.7 contained,
except to the extent prohibited by applicable law, any statutory notice and
grace periods provided to Tenant by law are hereby expressly waived by Tenant.
21. END OF TERM - ABANDONED PROPERTY
Upon the expiration or other termination of the term of this Lease, Tenant
shall peaceably quit and surrender to Landlord the premises and all alterations
and additions thereto, broom clean, in good order, repair and condition (except
as provided herein and in Articles 7.2, 7.3, 17 and 19) excepting only ordinary
wear and use and damage by fire or other casualty for which, under other
provisions of this Lease, Tenant has no responsibility of repair or restoration.
Tenant shall remove all of its property (including, without limitation, any
signage installed by Tenant) and, to the extent specified by Landlord, all
alterations and additions made by Tenant and all partitions wholly within the
premises, and shall repair any damages to the premises or the Building caused by
their installation or by such removal. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
Tenant will remove any personal property from the Building and the premises
upon or prior to the expiration or termination of this Lease and any such
property which shall remain in the Building or the premises thereafter shall be
conclusively deemed to have been abandoned, and may either be retained by
Landlord as its property or sold or otherwise disposed of in such manner as
Landlord may see fit. If any part thereof shall be sold, that Landlord may
receive and retain the proceeds of such sale and apply the same, at its option,
against the expenses of the sale, the cost of moving and storage, any arrears of
Yearly Rent, additional or other charges payable hereunder by Tenant to Landlord
and any damages to which Landlord may be entitled under Article 20 hereof or
pursuant to law.
If Tenant or anyone claiming under Tenant shall remain in possession of the
premises or any part thereof after the expiration or prior termination of the
term of this Lease without any agreement
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in writing between Landlord and Tenant with respect thereto, then,
notwithstanding Landlord's acceptance of any payments for rent or use and
occupancy, the person remaining in possession shall be deemed a
tenant-at-sufferance. Whereas the parties hereby acknowledge that Landlord
may need the premises after the expiration or prior termination of the term
of the Lease for other tenants and that the damages which Landlord may suffer
as the result of Tenant's holding-over cannot be determined as of the
Execution Date hereof in the event that Tenant so holds over, Tenant shall
pay to Landlord in addition to all rental and other charges due and accrued
under the Lease prior to the date of termination, charges (based upon the
fair market rental value of the Premises) for use and occupation of the
premises thereafter and, in addition to such sums and any and all other
rights and remedies which Landlord may have at law or in equity, an
additional use and occupancy charge in the amount of one hundred (100%)
percent of either the Yearly Rent and all other amounts payable under the
Lease calculated (on a daily basis) at the highest rate payable under the
terms of this Lease, but measured from the day on which Tenant's hold-over
commenced and terminating on the day on which Tenant vacates the premises or
the fair market rental value of the premises for such period, whichever is
greater. In addition, Tenant shall save Landlord, its agents and employees,
harmless and will exonerate, defend and indemnify Landlord, its agents and
employees, defend and indemnify Landlord, its agents and employees, from and
against any and all damages which Landlord may suffer on account of Tenant's
hold-over in the premises after the expiration or prior termination of the
term of the Lease.
22. SUBORDINATION
(a) Subject to any mortgagee's, or ground lessor's election, as
hereinafter provided for, this Lease is subject and subordinate in all respects
to all matters of record (including, without limitation, deeds and land
disposition agreements), ground leases and/or underlying leases, and all
mortgages, any of which may now or hereafter be placed on or affect such leases
and/or the real property of which the premises are a part, or any part of such
real property, and/or Landlord's interest or estate therein, and to each advance
made and/or hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. This Article 22 shall be self-operative and no further
instrument or subordination shall be required. In confirmation of such
subordination, Tenant shall execute, acknowledge and deliver promptly any
certificate or instrument that Landlord and/or any mortgagee and/or lessor under
any ground or underlying lease and/or their respective successors in interest
may request, subject to Landlord's mortgagees and ground lessor's right to do so
for, on behalf and in the name of Tenant under certain circumstances, as
hereinafter provided. Tenant acknowledges that, where applicable, any consent
or approval hereafter given by Landlord may be subject to the further consent or
approval of such mortgagee and/or ground lessor; and the failure or refusal of
such mortgagee and/or ground lessor to give such consent, or approval shall,
notwithstanding anything to the contrary in this Lease contained, constitute
reasonable justification for Landlord's withholding its consent or approval,
subject to Landlord's mortgagee's and ground lessor's right to do so for, on
behalf and in the name of Tenant under certain circumstances, as hereinafter
provided.
(b) Any such mortgagee or ground lessor may from time to time subordinate
or revoke any such subordination of the mortgage or ground lease held by it to
this Lease. Such subordination
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or revocation, as the case may be, shall be effected by written notice to
Tenant and by recording an instrument of subordination or of such revocation,
as the case may be, with the appropriate registry of deeds or land records
and to be effective without any further act or deed on the part of Tenant.
In confirmation of such subordination or of such revocation, as the case may
be, Tenant shall execute, acknowledge and promptly deliver any certificate or
instrument that Landlord, any mortgagee or ground lessor may request.
(c) Without limitation of any of the provisions of this Lease, if any
ground lessor or mortgagee shall succeed to the interest of Landlord by reason
of the exercise of its rights under such ground lease or mortgage (or the
acceptance of voluntary conveyance in lieu thereof) or any third party
(including, without limitation, any foreclosure purchaser or mortgage receiver)
shall succeed to such interest by reason of any, such exercise or the expiration
or sooner termination of such ground lease, however caused, then such successor
may, upon notice and request to Tenant (which, in the case of a ground lease,
shall be within thirty (30) days after such expiration or sooner termination),
succeed to the interest of Landlord under this Lease, provided, however, that
such successor shall not: (i) be liable for any previous act or omission of
Landlord under this Lease; (ii) be subject to any offset, defense, or
counterclaim which shall theretofore have accrued to Tenant against Landlord;
(iii) have any obligation with respect to any security deposit unless it shall
have been paid over or physically delivered to such successor; or (iv) be bound
by any previous modification of this Lease or by any previous payment of Yearly
Rent for a period greater than one (1) month, made without such ground lessor's
or mortgagee's consent where such consent is required by applicable ground lease
or mortgage documents. In the event of such succession to the interest of the
Landlord -- and notwithstanding that any such mortgage or ground lease may
antedate this Lease -- the Tenant shall attorn to such successor and shall ipso
facto be and become bound directly to such successor in interest to Landlord to
perform and observe all the Tenant's obligations under this Lease without the
necessity of the execution of any further instrument. Nevertheless, Tenant
agrees at any time and from time to time during the term hereof to execute a
suitable instrument in confirmation of Tenant's agreement to attorn, as
aforesaid.
(d) The term "mortgage(s)" as used in this Lease shall include any
mortgage or deed of trust. The term "mortgagee(s)" as used in this Lease shall
include any mortgagee or any trustee and beneficiary under a deed of trust or
receiver appointed under a mortgage or deed of trust. The term "mortgagor(s)"
as used in this Lease shall include any mortgagor or any grantor under a deed of
trust.
(e) Tenant hereby irrevocably constitutes and appoints Landlord or any
such mortgagee or ground lessor, and their respective successors in interest,
acting singly, Tenant's attorney-in-fact to execute and deliver any such
certificate or instrument for, on behalf and in the name of Tenant, but only if
Tenant fails to execute, acknowledge and deliver any such certificate or
instrument within ten (10) days after Landlord or such mortgagee or such ground
lessor has made written request therefor.
(f) In the event of any failure by Landlord to perform, fulfill or observe
any agreement by Landlord herein, in no event will Landlord be deemed to be in
default under this Lease until
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Tenant shall have given written notice of such failure to any mortgagee
(and/or ground lessor) of which Tenant shall have been advised in writing and
until a reasonable period of time shall have elapsed following the giving of
such notice, during which such mortgagee (and/or ground lessor) shall have
the right, but shall not be obligated, to remedy such failure.
23. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant keeps and performs each
and every covenant, agreement, term, provision and condition herein contained on
the part and on behalf of Tenant to be kept and performed, Tenant shall quietly
enjoy the premises from and against the claims of all persons claiming by,
through or wider Landlord subject, nevertheless, to the covenants, agreements,
terms, provisions and conditions of this Lease and to the mortgages, ground
leases and/or underlying leases to which this Lease is subject and subordinate,
as hereinabove set forth.
Without incurring any liability to Tenant, Landlord may permit access to
the premises and open the same, whether or not Tenant shall be present, upon any
demand of any receiver, trustee, assignee for the benefit of creditors, sheriff,
marshal or court officer entitled to, or reasonable purporting to be entitled
to, such access for the purpose of taking possession of, or removing, Tenant's
property or for any other lawful purpose (but this provision and any action by
Landlord hereunder shall not be deemed a recognition by Landlord that the person
or official making such demand has any right or interest in or to this Lease, or
in or to the premises), or upon demand of any representative of the fire,
police, building, sanitation or other department of the city, state or federal
governments.
24. ENTIRE AGREEMENT - WAIVER - SURRENDER
24.1 ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
Tenant acknowledges that all representations and statements upon which it relied
in executing this Lease are contained herein and that the Tenant in no way
relied upon any other statements or representations, written or oral. Any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
24.2 WAIVER BY LANDLORD. The failure of Landlord to seek redress for
violation, or to insist upon the strict performance, of any covenant or
condition of this Lease, or any of the Rules and Regulations promulgated
hereunder, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. The failure
of Landlord to enforce any of such Rules and Regulations against Tenant and/or
any other tenant in the Building shall not be deemed a waiver of any such Rules
and Regulations. No provisions of this Lease shall be deemed to have been
waived
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by Landlord unless such waiver be in writing signed by Landlord. No payment
by Tenant or receipt by Landlord of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent 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 rent or pursue any other
remedy in this Lease provided.
24.3 SURRENDER. No act or thing done by Landlord during the term hereby
demised shall be deemed an acceptance of a surrender of the premises, and no
agreement to accept such surrender shall be valid, unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys of the premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall not
operate as a termination of the Lease or a surrender of the premises. In the
event that Tenant at any time desires to have Landlord underlet the premises for
Tenant's account, Landlord or Landlord's agents are authorized to receive the
keys for such purposes without releasing Tenant from any of the obligations
under this Lease, and Tenant hereby relieves Landlord of any liability for loss
of or damage to any of Tenant's effects in connection with such underletting.
25. INABILITY TO PERFORM - EXCULPATORY CLAUSE
This Lease and the obligations of Tenant to pay rent hereunder and perform
all the other covenants, agreements, terms, provisions and conditions hereunder
on the part of Tenant to be performed shall in no way be affected, impaired or
excused because Landlord is unable to fulfill any of its obligations under this
Lease or is unable to supply or is delayed in supplying any service expressly or
impliedly to, be supplied or is unable to make or is delayed in making any
repairs, replacements, additions, alterations, improvements or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of strikes or labor
troubles or any other similar or dissimilar cause whatsoever beyond Landlord's
reasonable control, including but not limited to, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reason of the conditions of supply and demand which have been or are
affected by war, hostilities or other similar or dissimilar emergency. In each
such instance of inability of Landlord to perform, Landlord shall exercise
reasonable diligence to eliminate the cause of such inability to perform.
Tenant shall neither assert nor seek to enforce any, claim against
Landlord, or Landlord's agents or employees, or the assets of Landlord or of
Landlord's agents or employees, for breach of this Lease or otherwise, other
than against Landlord's interest in the Building of which the premises are a
part and in the uncollected rents, issues and profits thereof, and Tenant agrees
to look solely to such interest for the satisfaction of any liability of
Landlord under this Lease, it being specifically agreed that in no event shall
Landlord or Landlord's agents or employees (or any of the officers, trustees.
directors, partners, beneficiaries, joint venturers, members, stockholders or
other principals or representatives, and the like, disclosed or undisclosed,
thereof) ever be personally liable for any such liability. This paragraph shall
not limit any right that Tenant might otherwise have to obtain
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injunctive relief against Landlord or to take any other action which shall
not involve the personal liability of Landlord to respond in monetary damages
from Landlord's assets other than the Landlord's interest in said real
estate, as aforesaid. In no event shall Landlord or Landlord's agents or
employees (or any of the officers, trustees, directors, partners,
beneficiaries, joint venturers, members, stockholders or other principals or
representatives and the like, disclosed or undisclosed, thereof) ever be
liable for lost profits or consequential or incidental damages. If by reason
of Landlord's failure to complete construction of the Building or premises,
Landlord shall be held to be in breach of this Lease, Tenant's sole and
exclusive remedy shall be a right to terminate this Lease.
26. BILLS AND NOTICES
Any notice, consent, request, xxxx, demand or statement hereunder by either
party to the other party shall be in writing and, if received at Landlord's or
Tenant's address, shall be deemed to have been duly given when either delivered
or served personally or mailed in a postpaid envelope, deposited in the United
States mails addressed to Landlord at its address as stated in Exhibit 1 and to
Tenant at Tenant's address as stated in Exhibit 1, or if any address for notices
shall have been duly changed as hereinafter provided, if mailed as aforesaid to
the party at such changed address. Either party may at any time change the
address or specify an additional address for such notices, consents, requests,
bills, demands or statements by delivering or mailing, as aforesaid, to the
other party a notice stating the change and setting forth the changed or
additional address, provided such changed or additional address is within the
United States. If Tenant is a partnership, Tenant, for itself, and on behalf of
all of its partners, hereby appoints Tenant's Service Partner, as identified on
Exhibit 1, to accept service of any notice, consent, request xxxx, demand or
statement hereunder by Landlord and any service of process in any judicial
proceeding with respect to this Lease on behalf of Tenant and as agent and
attorney-in-fact for each partner of Tenant.
All bills and statements for reimbursement or other payments or charges due
from Tenant to Landlord hereunder shall be due and payable in full ten (10)
days, unless herein otherwise provided, after submission thereof by Landlord to
Tenant. Tenant's failure to make timely payment of any amounts indicated by
such bills and statements, whether for work done by Landlord at Tenant's
request, reimbursement provided for by this Lease or for any other sums properly
owing by Tenant to Landlord, shall be treated as a default in the payment of
rent in which event Landlord shall have all rights and remedies provided in this
Lease for the nonpayment of rent.
27. PARTIES BOUND - SEIZEN OF TITLE
The covenants, agreements, terms, provisions and conditions of this Lease
shall bind and benefit the successors and assigns of the parties hereto with the
same effect as if mentioned in each instance where a party hereto is named or
referred to, except that no violation of the provisions of Article 15 hereof
shall operate to vest any rights in any successor or assignee of Tenant and that
the provisions of this Article 27 shall not be construed as modifying the
conditions of limitation contained in Article 21 hereof.
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If, in connection with or as a consequence of the sale, transfer or other
disposition of the real estate (land, Building and/or Complex, any or all, as
the case may be) of which the premises are a part, any party who is Landlord
ceases to be the owner of the reversionary interest in the premises, Landlord
shall be entirely freed and relieved from the performance and observance
thereafter of all covenants and obligations hereunder on the part of Landlord to
be performed and observed, it being understood and agreed in such event (and it
shall be deemed and construed as a covenant running with the land) that the
person succeeding to Landlord's ownership of said reversionary interest shall
thereupon and thereafter assume, and perform and observe, any and all of such
covenants and obligations of Landlord.
28. HAZARDOUS WASTE
Landlord and Tenant agree as follows with respect to the existence or use
of "Hazardous Material" in the premises or otherwise in the Complex.
(a) Tenant, at its sole cost and expense, shall comply with all
laws, statutes, ordinances, rules and regulations of any governmental authority
having jurisdiction concerning environmental, health and safety matters,
including, but not limited to, any discharge into the air, surface, water,
sewers, soil or groundwater of any hazardous material (as defined in Article
28(e)), whether within or outside the premises or otherwise in the Complex.
(b) Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the premises or otherwise in the Complex
by Tenant, its agents, employees. contractors or invitees, without the prior
written consent of Landlord (which consent Landlord shall not unreasonably
withhold as long as Tenant demonstrates to Landlord's reasonable satisfaction
that such Hazardous Material is necessary or useful to Tenant's business and
will be used, kept and stored in a manner that complies with all laws and
regulations relating to any such Hazardous Material so brought upon or used or
kept in or about the premises or otherwise in the Complex). Notwithstanding the
foregoing, in the event that Tenant is in breach of any of its obligations under
this Section 28, Landlord shall have the right to revoke any consent which
Landlord has granted to Tenant to allow bringing upon, keeping or using any
Hazardous Material in or about the premises or the Complex (including, without
limitation, the consent which Landlord has granted to the Hazardous Materials
listed on Exhibit 1). If Tenant breaches the obligations stated in the
preceding sentence, or if the presence of Hazardous Material in the premises or
otherwise in the Complex caused or permitted by Tenant results in contamination
of the premises or the Complex, then Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgments, damages, penalties, fines,
costs, liabilities or losses (including without limitation, diminution in value
of the premises or the Complex, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the premises or the Complex,
damages arising from any adverse impact on marketing of space in the Complex,
and sums paid in settlement of claims, actual attorneys' fees, consultant fees
and expert fees) which arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political
33
subdivision because of Hazardous Material present in the soil or ground water
on or under the premises or otherwise in the Complex. The indemnification and
hold harmless obligations of Tenant under this Article 28 shall survive any
termination of this Lease. Without limiting the foregoing, if the presence of
any Hazardous Material in the premises or otherwise in the Complex caused or
permitted by Tenant results in any contamination of the premises or the
Complex, Tenant shall promptly take all actions at its sole expense as are
necessary to return the premises or the Complex to the condition existing
prior to the introduction of any such Hazardous Material to the premises or
the Complex; provided that Landlord's approval of such actions shall first be
obtained, which approval shall not be unreasonably withheld so long as such
actions, in Landlord's sole and absolute discretion, would not potentially
have any materially adverse long-term or short-term effect on the premises or
the Complex.
(c) Landlord and Tenant acknowledge that Landlord may become
legally liable for the costs of complying with laws and regulations relating to
Hazardous Material which are not the responsibility of Tenant pursuant to
Article 28(a), including, but not limited to, the following: (i) Hazardous
Material that migrates, flows, percolates, diffuses or in any way moves on to or
under the premises or the Complex after the commencement of the Term; (ii)
Hazardous Material present on or under the premises or the Complex as a result
of any discharge, dumping or spilling (whether accidental or otherwise), on the
premises or the Complex by other tenants of the Complex or their agents,
employees, contractors or invitees, or by others. Accordingly, Landlord and
Tenant agree that the cost of complying with laws and regulations relating to
Hazardous Material on the premises or the Complex for which Landlord is legally
liable and which are paid or incurred by Landlord shall be deemed Operating
Costs (as defined in Article 8.1) for which Tenant shall be responsible in
accordance with the terms and conditions of Article 8.1.
(d) It shall not be unreasonable for Landlord to withhold its
consent to any proposed assignment or sublease pursuant to Article 15 if (i) the
proposed assignee's or subtenant's anticipated use of the premises involves the
generation, storage, use, treatment or disposal of Hazardous Material, (ii) the
proposed assignee or subtenant has been required by any prior landlord, lender
or governmental authority to take remedial action in connection with Hazardous
Material contaminating a property if the contamination resulted from assignee's
or subtenant's actions or use of the property in question; or (iii) the proposed
assignee or subtenant is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal or storage of a
Hazardous Material.
(e) As used herein, the term "Hazardous Materials" means any
hazardous or toxic substance, material or waste which is or becomes regulated by
any local governmental authority, the State of Illinois or the United States
Government. The term "Hazardous Material" includes, without limitation, any
material or substance which is (i) designated as a "hazardous substance"
pursuant to Section 1311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), (ii) defined as a "hazardous waste" pursuant to Section 1004 of
the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq. (42 U.S.C. Section 6903), or (iii) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section
9601)
34
(f) Tenant acknowledges that it presently intends to use or
reasonably anticipates the use of the materials listed on Exhibit 1, which may
be "Hazardous Material" as defined in Article 28(e) of this Lease in its
business at the premises, but in doing so, Tenant acknowledges and agrees to
comply with the provisions of this Section 28 in connection with its use and
handling of such Hazardous Material. Landlord agrees that Tenant may use the
"Hazardous Material", listed on Exhibit 1, subject to the terms of this Lease
and this Article 28. Tenant shall immediately notify Landlord of any other
materials which may be used by Tenant or stored by Tenant on or about the
premises which may be hazardous, as defined in Article 28(e) or otherwise, and
shall obtain Landlord's written consent prior to such use or storage.
(g) Any increase in the premium for necessary insurance on the
premises or the Complex which arises from Tenant's use and/or storage of these
materials shall be solely at Tenant's expense. Tenant shall procure and
maintain at its sole expense such additional insurance as may be necessary to
comply with any requirement of any Federal, State or local government agency
with jurisdiction.
(h) Tenant hereby covenants and agrees to indemnify, defend and
hold Landlord harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses which Landlord may incur arising out of
contamination of real estate or other property not a part of the Complex which
contamination arises as a result of the presence of Hazardous Material in the
premises or in the Complex, the presence of which is caused or permitted by
Tenant. The indemnification and hold harmless provisions of this Article shall
survive any termination of the Lease and shall be coextensive with the
indemnification and hold harmless rights of Landlord with respect to the
premises and the Complex.
29. MISCELLANEOUS
29.1 SEPARABILITY. If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of the Lease (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
29.2 CAPTIONS, ETC. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the scope
of this Lease nor the intent of any provisions thereof. References to "State"
shall mean, where appropriate, the District of Columbia and other Federal
territories, possessions, as well as a state of the United States.
29.3 BROKER. Tenant represents and warrants that it has not directly or
indirectly dealt, with respect to the leasing of office space in the Building or
any, Center, Office Park, or other Complex of which it is a part (called
"Building, etc." in this Article 29.3) with any broker or had its attention
called to the premises or other space to let in the Building, etc. by anyone
other than the broker, person or firm, if any, designated in Exhibit 1. Tenant
agrees to defend, exonerate and save harmless and indemnify Landlord and anyone
claiming by, through or under Landlord against any claims for a commission
arising out of the execution and delivery of this Lease or out of negotiations
35
between Landlord and Tenant with respect to the leasing of other space in the
Building, etc., provided that Landlord shall be solely responsible for the
payment of brokerage commissions to the broker, person or firm, if any,
designated in Exhibit 1.
29.4 MODIFICATIONS. If in connection with obtaining financing for the
Building, a bank, insurance company, pension trust or other institutional lender
shall request reasonable modifications in this Lease as a condition to such
financing. Tenant will not withhold, delay or condition its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the rights of Tenant hereunder or the
leasehold interest hereby created.
29.5 GOVERNING LAW. This Lease is made pursuant to, and shall be governed
by, and construed in accordance with, the laws of the State of Illinois and any
applicable local municipal rules, regulations, bylaws, ordinances and the like.
29.6 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
its interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to or held by a bank, trust
company, insurance company or other institutional lender holding a mortgage or
ground lease on the Building, Tenant agrees:
(a) that the execution thereof by Landlord and the acceptance
thereof by such mortgagee and/or ground lessor shall never be deemed an
assumption by such mortgagee and/or ground lessor of any of the obligations of
the Landlord thereunder, unless such mortgagee and/or ground lessor shall, by
written notice sent to the Tenant specifically otherwise elect; and
(b) that, except as aforesaid, such mortgagee and/or ground lessor
shall be treated as having assumed the Landlord's obligations thereunder only
upon foreclosure of such mortgagee's mortgage or termination of such ground
lessor's ground lease and the taking of possession of the demised premises after
having given notice of its exercise of the option stated in Article 22 hereof to
succeed to the interest of the Landlord under this Lease.
29.7 REPRESENTATION OF AUTHORITY. By his execution hereof each of the
signatories on behalf of the respective parties hereby warrants and represents
to the other that he is duly authorized to execute this Lease on behalf of such
party. If Tenant is a corporation, Tenant hereby appoints the signatory whose
name appears below on behalf of Tenant as Tenant's attorney-in-fact for the
purpose of executing this Lease for and on behalf of Tenant.
29.8 EXPENSES INCURRED BY LANDLORD UPON TENANT REQUESTS. Without limiting
any other provision of this Lease, Tenant shall, upon demand, reimburse Landlord
for all reasonable expenses, including, without limitation, legal fees, incurred
by Landlord in connection with all requests by Tenant for consents, approvals or
execution of collateral documentation related to this Lease, including, without
limitation, costs incurred by Landlord in the review and approval of Tenant's
plans and specifications in connection with proposed alterations to be made by
Tenant to the premises, requests by Tenant to sublet the premises or assign its
interest in the Lease,
36
the execution by Landlord of estoppel certificates requested by Tenant, and
requests by Tenant for Landlord to execute waivers of Landlord's interest in
Tenant's property in connection with third party financing by Tenant. Such
costs shall be deemed to be additional rent under the Lease.
29.9 SURVIVAL. Without limiting any other obligation of Tenant which may
survive the expiration or prior termination of the term of the Lease, all
obligations on the part of Tenant to indemnify, defend, or hold Landlord
harmless as set forth in this Lease (including, without limitation, Tenant's
obligations under Articles 12(d), 14.3 and 29.3) shall survive the expiration or
prior termination of the term of the Lease.
IN WITNESS WHEREOF the parties hereto have executed this Indenture of Lease
in multiple copies, each to be considered an original hereof, as a sealed
instrument on the day and year noted in Exhibit 1 as the Execution Date.
LANDLORD: TENANT:
CHICAGO MIDWAY JOINT VENTURE XXXXXXXXX XXXXX CORPORATION
By: Beacon Midway, L.P., Operating Partner
By: Beacon Midway Corporation,
its General Partner
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
------------------- -------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Vice President Vice President
Hereunto Duly Authorized Hereunto Duly Authorized
IF TENANT IS A CORPORATION A SECRETARY'S OR CLERK'S CERTIFICATE OF THE AUTHORITY
AND THE INCUMBENCY OF THE PERSON SIGNING ON BEHALF OF TENANT SHOULD BE ATTACHED.
37
EXHIBIT 3
LEGAL DESCRIPTION
PARCEL A
That part of the Southeast 1/4 of Section 9, Township 38 North, Range 13 East of
the Third Principal Meridian, lying north of the Indiana Harbor Belt Railroad
Company and south of Xxxxxx Avenue, in Xxxx County, Illinois, described as
follows:
Commencing at the intersection of the southerly line of Xxxxxx Avenue and the
west line of Cicero Avenue (said west line ______ being 50 feet west of the east
line of said Section 9); thence southwesterly along the southerly line of Xxxxxx
Avenue, a distance of 321.31 feet (320.91 feet deed) to a point on a line 33
feet west of and parallel with the west line of the East One-Sixteenth of said
Section 9 (said line also being the east line of Condemnation Case No. 62 S
7992); thence south along said parallel east line a distance of 23.39 feet to
the point of beginning (said point being 23 feet southerly measured at right
angles to said southerly line of Xxxxxx Avenue; thence westerly along the
southerly Condemnation line parallel with and 23 feet southerly, measured at
right angles to the southerly line of Xxxxxx Avenue, a distance of 136.31 feet;
thence west along Condemnation line a distance of 94.57 feet to a point on a
line drawn parallel with the aforesaid west line of Cicero Avenue and 17.13 feet
south of the southerly line of Xxxxxx Avenue (said parallel line being drawn
555.19 feet (554.79 feet deed) westerly measured along the southerly line of
Xxxxxx Avenue); thence westerly along Condemnation line, a distance of 198.59
feet to a point on a line 4 feet south measured at right angles to said
southerly line of Xxxxxx Avenue; thence westerly along Condemnation line, a
distance of 146.73 feet to a point on the southerly line of Xxxxxx Avenue (said
point being 903.15 feet westerly of the west line of Cicero Avenue measured
along the southerly line of Xxxxxx Avenue); thence westerly along the southerly
line of Xxxxxx Avenue, a distance of 1720.97 feet to the east line of South
Laramie Avenue dedicated for a public street by Document 10387744 recorded June
3, 1929 (said east line being 33 feet east of and parallel with the west line of
the Southeast 1/4 of said Section 9); thence South along said east line, a
distance of 645.41 feet to the north line of the Indiana Harbor Belt Railroad
Company right-of-way; thence east along said north right-of-way line, a distance
of 2580.06 feet to the west line of Cicero Avenue; thence north along said west
line, a distance of 797.73 feet to a point 330.62 feet south of the southerly
line of Xxxxxx Avenue; thence west along a line parallel with the south line of
said Section 9, a distance of 315.97 feet to a point on a line 33 feet west of
and parallel with the west line of the East One-Sixteenth of said Section 9;
thence north along last described stance of 248.75 feet to the point of
beginning, excepting therefrom the West 632.00 feet of the above described
parcel.
Containing 1,740,505 square feet or 39.956 acres
PARCEL B
The west 665.00 feet of that part of the Southeast Quarter of Section
9, Township 38 North, Range 13 East of the Third Principal Meridian,
lying North of the right of way of the Indiana Harbor Belt Railroad
Company and South of the center line of Xxxxxx Avenue, excepting
therefrom that part of the West 33 feet of the Southeast Quarter of
Section 9, aforesaid, dedicated for a public street (South Laramie
Avenue) by Document 10387744 recorded June 3, 1929, in Xxxx County,
Illinois.
Containing 445,269 square feet or 10.222 acres
