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Exhibit 10.48
COMMERCIAL LEASE
THIS LEASE is made as of this 1st day of June 1998, by and between MAPLE
PROPERTIES COMPANY, an Illinois limited liability company, having an address c/o
Tinicum Incorporated ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 40th Floor, New York, N.Y. 10022
(hereinafter sometimes referred to as "Landlord"), and DELICIOUS BRANDS, INC., a
Delaware corporation, having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes referred to as "Tenant"), who hereby
mutually covenant and agree as follows:
▇. ▇▇▇▇▇, TERM, DEFINITIONS AND BASIC LEASE
PROVISIONS
1.0 Grant. Landlord, for and in consideration of the rents herein reserved
and of the covenants and agreements herein contained on the part of Tenant to be
performed, hereby leases to Tenant, and Tenant hereby accepts and lets from
Landlord, certain premises more fully described as: portions of the industrial
building (the "Building") commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇; which portions total approximately 73,572 square feet and consist of
(a) approximately 56,228 square feet of area in a rental unit that has an
address known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, which unit is referred to herein and
designated on Exhibit A as the "2070 Maple Unit" and (b) approximately 17,344
square feet of area in a rental unit known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, which unit
is referred to herein and designated on Exhibit A as the "High Bay Unit" (the
2070 Maple Unit and the High Bay Unit being collectively referred to herein as
the "Leased Premises"), together with (i) all improvements now located or to be
located on such premises during the term of the Lease (other than improvements
placed upon the Leased Premises by Tenant), (ii) all appurtenances belonging to
or in any way pertaining to such premises; and (iii) as to any common areas and
facilities designated in writing herein or hereafter by Landlord to service the
Building, a right to use the same in common with Landlord and other tenants; the
Leased Premises being part of certain real estate (the "Real Estate") more
particularly described on Exhibits B-1 and B-2 attached hereto and made a part
hereof. Tenant understands and agrees that this Lease and the Tenant's rights
hereunder are subject to those defects, liens, encumbrances and other matters
affecting the title to the Real Estate.
1.1 Initial Term. Subject to the further provisions or this Section 1.1,
the term of this Lease shall be for a period of five (5) years commencing on
June 1, 1998 (the "Commencement Date") and ending at 11:59 PM on May 31, 2003,
unless sooner terminated as herein set forth. All references to the term of this
Lease shall be deemed to include any extension, option or renewal periods,
except where the context otherwise requires.
1.2 Basic Lease Provisions.
(a) Purpose: Distribution, storage, sales and marketing of
cookies, crackers, snack-foods and related products.
(b) Tenant's Pro Rata Share; (See Section 3.1 etc.): 31.34%
(23.75% for the 2070 Maple unit and 7.56% for the 1750
Birchwood high bay unit).
(c) Tenant's Address (for all notices) (See Section 21.4):
DELICIOUS BRANDS, INC., having an address at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(d) Landlord's Address (for payments and for notices) (See
Sections 3.0, 3.1, 21.4 etc.): MAPLE PROPERTIES COMPANY,
L.L.C. c/o Tinicum Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 40th
floor, New York, New York 10022 (to the attention of either
(i) Accounts Payable Department in the case of payments or
(ii) Legal Notices Officer in the case of notices).
(e) Tenant's Telecopier Number (See Section 21.4): ▇▇▇-▇▇▇-▇▇▇▇.
(f) Landlord's Telecopier Number (See Section 21.4): ▇▇▇-▇▇▇-▇▇▇▇.
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II. DELIVERY OF POSSESSION AND CONDITION
OF THE LEASED PREMISES
2.0 Premises Work. Except as otherwise expressly set forth herein, the
repairs and improvements set forth on Schedule A annexed hereto and made a part
hereof (the "Premises Work") are the only work that Landlord shall be obligated
to perform with respect to the Leased Premises. The Premises Work shall be
substantially completed by Landlord in a good and workmanlike manner with
reasonable promptness, in any case on or before November 30, 1998. Landlord
shall afford Tenant the benefit of any warranties from contractors and
materialmen that it obtains in connection with the performance of the Premises
Work. Tenant shall, with reasonable promptness, bring to Landlords attention any
deficiencies in the Premises Work which come to Tenant's attention and, provided
that Tenant notifies Landlord of the same within one (1) month of the
substantial completion of any work item, Landlord shall with reasonable
promptness correct the same at Landlord's expense. Tenant understands that
Landlord shall be performing demolition and other construction activities in the
space, that Tenant shall be solely responsible for protecting, insuring and
keeping safe and undamaged any and all materials, inventory or other items of
personal property that Tenant may keep or store in the Leased Premises. Tenant
also agrees that, except to the extent caused by one or more intentional acts of
Landlord or its employees, Landlord shall have no responsibility or liability to
Tenant whatsoever in the event that such personal property is lost, stolen or
damaged or that Tenant's operations are adversely affected by or during the
completion of or correction of any deficiency in the Premises Work. Following
Landlord's satisfaction of its obligations under this Section 2.0 with respect
to any work item described on Schedule A, Tenant shall, within fifteen (15) days
of written request therefor by Landlord, deliver to Landlord a certificate,
signed by an officer of Tenant, stating that Landlord has satisfied its
obligations under this Section 2.0 with respect to such item.
2.1 Termination of Prior Lenses and Possession By Tenant. Tenant presently
occupies substantially all of the Leased Premises, occupying the 2070 Maple Unit
pursuant to a certain Sublease dated as of March 25, 1996 (as amended) and the
High Bay Unit pursuant to a certain lease dated as of August 19, 1997 (as
amended) (these two prior leases being hereinafter referred to as the "Prior
Leases"). The execution and delivery of this Lease terminates the Prior Leases
effective as of the Commencement Date. Landlord shall use commercially
reasonable efforts to cause ▇▇▇▇▇▇▇▇ Equipment Systems and Gard, Inc., the two
tenants that occupy portions of the 2070 Maple Unit, to vacate the Leased
Premises on or before August 15, 1998 in the case of Gard and August 31, 1998 in
the case of ▇▇▇▇▇▇▇▇. Landlord shall promptly thereafter perform any Premises
Work relating to the portions of the 2070 Maple occupied by ▇▇▇▇▇▇▇▇ and/or
Gard. Landlord shall not be subject to any liability for the failure to give
possession of the aforesaid areas occupied by ▇▇▇▇▇▇▇▇ and ▇▇▇▇ on or before
said date, nor shall the validity of this Lease or the obligations of Tenant
hereunder be in any way affected. Under such circumstances, unless the delay is
the fault of Tenant, Base Rent and other charges hereunder shall be equitably
abated until the date possession of the entire Leased Premises is given.
2.2 Condition of the Leased Premises. Tenant presently occupies
substantially all of the Leased Premises and is familiar with the condition and
repair of the Leased Premises. Tenant acknowledges that, subject to the
completion of the Premises Work, the same are in good order and repair (or shall
be deemed to be in good order and repair on account of Tenant's responsibility
therefor under the Prior Leases), and that, except as set forth herein, no
representations as to the condition and repair thereof have been made by
Landlord, or his agent prior to the execution of this Lease that are not herein
expressed. Tenant's taking possession of the Leased Premises shall constitute
Tenant's acknowledgment that Tenant hereby accepts the Leased Premises in their
"as is" physical condition as of the date hereof, subject to the completion of
the Premises Work, and that such physical condition was satisfactory at the
Commencement Date. In agreeing to lease the Leased Premises "as is", Tenant
acknowledges and represents that it has factored the "as is" condition of the
Leased Premises in the Base Rent and other charges that it has hereby agreed to
pay for the Leased Premises. Notwithstanding anything to the contrary in the
foregoing, Landlord acknowledge and refer to certain damage to the Leased
Premises identified in Paragraph 3 of that certain Agreement to Amend Sublease
and Consent to Assignment, dated as of April 2, 1998, among Landlord, Tenant and
▇▇▇▇▇▇▇ Foods, L.L.C. and Landlord hereby agrees to release Tenant from any
liability that it may have under the Prior Leases, hereunder or otherwise for
any damage to the Leased Premises specifically described or identified in that
Agreement and Consent or in Exhibit 2 thereto.
III. RENT
3.0 Base Rent.
(a) Except as specifically abated in subdivision (c) of this Section 3.1,
Base Rent shall be payable in the amount of:
(i) Thirty-Six Thousand Four Hundred Seventy-Nine and 45/100 Dollars
($36,479.45) per month during the one-year period commencing on June
1, 1998 through and including May 31, 1999;
(ii) Thirty-Seven Thousand Five Hundred Seventy-Three and 83/100
Dollars ($37,573.33) per month during the one-year period commencing
on June 1, 1999 through and including May 31, 2000;
(iii) Thirty-Eight Thousand Seven Hundred One and 05/100 Dollars
($38,701.05) per month during the one-year period commencing on June
1, 2000 through and including May 31, 2001;
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(iv) Thirty-Nine Thousand Eight Hundred Sixty Two and 08/100 Dollars
($39,862.08) per month during the one-year period commencing on June
1, 2001 through and including May 31, 2002;
(v) Forty-One Thousand Fifty-Seven and 94/100 Dollars ($41,057.94)
per month during the one-year period commencing on June 1, 2002
through and including May 31, 2003;
(b) Tenant Amortization Options. Tenant agrees to contribute to Landlord's
cost of performing certain of the Premises Work by electing, in a written notice
delivered to Landlord on or before September 20, 1998, to either (i) increase
Base Rent by $285.48 per month or (ii) pay Landlord $12,000 on or before October
1, 1998. If Tenant timely elects to increase Base Rent as so provided, then, on
or before October 1, 1998, Tenant shall pay to Landlord the five (5)
installments of $285.48 due for the period June - October 1998. Tenant shall be
deemed to have elected to pay Landlord the aforesaid $12,000 in the event that
Tenant shall fail to timely deliver such election notice to Landlord.
Additionally, Tenant may elect to fund certain other of Landlord's Premises Work
by electing, in a written notice delivered to Landlord on or before September
20, 1998, to pay Landlord, on or before October 1, 1998, an amount equal to the
difference between (x) $200,000.00 and (y) the product of $4,757.99 and the
number of months of Base Rent theretofore paid by Tenant to Landlord. In the
event that Tenant timely makes such an election, the Base Rent payable hereunder
shall thereafter be reduced by $4,757.99 per month. Tenant's failure to timely
deliver the aforesaid notice in respect of the $200,000 payment shall be deemed
a waiver of the right to make such a payment and to obtain the aforesaid
reduction of Base Rent.
(c) Tenant shall pay Base Rent in equal monthly installments in advance on
or before the first day of each and every month during the term hereof. If the
Commencement Date is other than the first day of a month or if the term of this
Lease ends on other than on the last day of the month, the Base Rent payable
during such month shall be prorated. Except as otherwise provided herein, all
payments of Base Rent and additional rent shall be made without deduction, set
off, discount or abatement in lawful money of the United States; Tenant's
covenant to pay rent being independent of every other covenant in this Lease. If
Tenant is more than five (5) days late in its payment of Base Rent and other
monthly charges more than two (2) times in any period of twelve (12) consecutive
months, Landlord may elect to have Tenant pay Base Rent and any additional rent
payable hereunder by wire transfer in immediately available federal funds to
Landlord's account(s), and, if Landlord so elects, Tenant shall arrange to make
such payments by wire transfer to Landlord.
3.1 Operating Expense Reimbursement.
(a) In addition to the Base Rent required to be paid under Section 3.0
hereof and any other amounts required to be paid hereunder, Tenant shall pay to
Landlord an amount equal to the sum of the payments which Tenant is obligated to
make to Landlord on account of operating expenses ("Operating Expenses")
pursuant to the provisions of Sections 3.1(b), 4.0 (Impositions), 5.2
(Landlord's Insurance), and 12.0 (Utilities) (each as hereinafter defined)
hereof.
(b) Subject to the further provisions of this subdivision (b), Tenant
shall pay to Landlord Tenant's Pro Raw Share of all expenses, costs and
disbursements of every kind and nature paid or incurred by Landlord in
connection with the ownership, management, operation and repair of the Real
Estate, whether or not expressly referred to in this Article 3 or otherwise in
this Lease, but excluding certain items as specifically provided below. Such
payment by Tenant shall be additional rent hereunder and shall be paid to
Landlord in accordance with the provisions of Section 3.1 hereof. Subject to the
foregoing, Operating Expenses shall include, without limitation, the following
costs and expenses:
(i) all costs incurred in the repair, lighting, cleaning, painting,
caulking, water-proofing and other maintenance of the Real Estate (including,
but not limited to, preventive maintenance); the provision of heat to portions
of the Real Estate from the Building's central boilers, the repair and/or
replacement of sidewalks, landscaping, on site waterlines, sanitary sewer lines,
electrical lines and other equipment serving the Real Estate; wages and benefits
of all persons employed at or in connection with the Real Estate (but only to
the extent of such connection to the Real Estate); and the cost of any supplies,
tools and equipment used in connection with any of the foregoing repairs or
other activities, including but not limited to those costs and expenses detailed
in Section 9.0(a);
(ii) financial expenses incurred in connection with the operation of
the Real Estate, such as attorney's fees and disbursements (exclusive of any
such fees and disbursements incurred in connection with the leasing of space in
the Building or in connection with separately enforcing or contesting the
provisions of leases of space for portions of the Real Estate, provided Tenant
is not joined in the same matter), auditing and other professional fees and
expenses;
(iii) the cost of governmental licenses and permits, or renewals
thereof, related to the operation of the Real Estate (but not relating to any
tenant's particular use thereof); and
(iv) reasonable management fees payable to a management company that
is unrelated to Landlord or, if Landlord or a related entity manages the Real
Estate, a fee not to exceed 3.0% of the gross rental income of the Real Estate.
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Any cost or expense of the nature described above shall be included in Operating
Expenses for any Calendar Year (as defined in subdivision (h) of this Section
3.1) no more than once, notwithstanding that such cost or expense may fall under
more than one of the categories listed above.
The following costs and expenses shall be excluded from those expenses covered
by this Section 3.1(b): (1) costs and expenses covered by Sections 4.0
(Impositions), 5.2 (Landlord's Insurance), 9.0(c) (roof and walls) and 12.0
(Utilities) (each as hereinafter defined), (2) debt service or other financing
under any mortgage on the Real Estate and rent due on any ground lease, (3)
leasing, sale or mortgage brokerage commissions, (4) costs charged separately to
Tenant, (5) costs charged separately to any other occupant of the Real Estate
(or which relate exclusively to leased space at the Real Estate and which are of
the nature that Tenant would be responsible for their entire reimbursement if
they related exclusively to the Leased Premises), (6) the cost of preparing
space other than the Leased Premises for any other occupant of the Real Estate,
(7) costs and expenses that are neither typical nor appropriate for a
multi-tenant warehouse and industrial building like the Building and situated in
the greater ▇'▇▇▇▇ airport, Illinois market, (8) franchise and income taxes
imposed upon Landlord and (9) any cost indemnifiable under Section 20.7.
(c) Tenant's share of Operating Expenses under Section 3.1(b) shall equal
its Pro Rata Share except that, notwithstanding anything to the contrary
provided herein, if any particular Operating Expense relates to portions of the
Real Estate or facilities thereon which are primarily or solely used by or
service Tenant and/or one or more occupants of the Real Estate, Landlord shall
allocate such Operating Expense among Tenant and the other occupants of the Real
Estate on an equitable basis. In this regard, it is agreed and understood that
the High Bay Unit does not receive heat from the Building's central boilers and
that Tenant shall be responsible for paying the separately metered gas charges
in respect thereof. Therefor, it is agreed that all costs incurred in connection
with providing such heat to the Building shall be allocated reasonably by
Landlord among tenants of the Building on an equitable basis, and that the
allocation of boiler heat charges to Tenant shall exclude any charge for heat in
respect of its occupancy of the High Bay Unit.
(d) Tenant shall pay its share of Operating Expenses with respect to each
Calendar Year to Landlord in monthly installments in amounts estimated from time
to time by Landlord and communicated by written notice to Tenant (with the
amount of each installment sufficient to pay that portion of Tenant's share of
the Operating Expenses which have fallen due or which shall fall due and payable
by Landlord within the next thirty days). Such monthly installments shall
include, during the first year of this Lease, any amount for which Tenant is
responsible that has been prepaid by Landlord.
(e) Landlord shall cause to be kept books and records showing Operating
Expenses in accordance with such system of accounts based on sound accounting
practices that Landlord reasonably deems appropriate. As promptly as practicable
following the close of each Calendar Year. Landlord shall deliver to Tenant its
certificate specifying the amount of Operating Expenses for such Calendar Year
("Operating Statement").
(f) Tenant shall pay any deficiency to Landlord as shown by the Operating
Statement within ten (10) days after receipt thereof. The payment of any ▇▇▇▇
for Operating Expenses by Tenant shall not preclude it from questioning the
correctness of any Operating Statement by delivering written notice to Landlord
within thirty (30) days of Tenant's receipt thereof (provided the Tenant
describes any challenge that it makes to any Operating Statement in reasonably
satisfactory detail), but failure to do so within thirty (30) days shall be
deemed a waiver. During such thirty (30) day period, Tenant may request copies
of underlying invoices from Landlord.
(g) If the total of the estimated monthly installments paid by Tenant
during any Calendar Year exceeds the actual amount of Operating Expenses due
from Tenant for such Calendar Year, then, at Landlord's option, such excess
shall be either credited against rental payments next due from Tenant hereunder
or refunded by Landlord to Tenant, provided that Tenant is not then in default
hereunder.
(h) As used herein, the term "Calendar Year" shall mean any period of
January 1 through December 31 in which any part of the term of this Lease falls.
3.2 Late Payment Charges. In the event that Tenant shall fail to pay any
installment of Base Rant or any other amount payable to Landlord hereunder
within ten (10) days after the date when any such amount is due (any such late
payment being hereinafter referred to as a "Delinquent Payment"), Tenant shall
pay to Landlord, in addition to the Delinquent Payment and in order to
compensate Landlord for expenses incurred by reason of such late payment, a fee
("Late Payment Fee") equal to the sum of (i) the amount calculated by applying
an annual interest rate of four percent (4%) per annum above the rate of
interest announced from time to time in the City of New York, New York by the
Citibank, N.A. as its prime or base rate and which rate may be in effect from
time to time during the period when such Delinquent Payment may remain
outstanding (the "Default Rate") to the Delinquent Payment for each day from and
after such due date to and including the date that such Delinquent Payment is
received by Landlord and (ii) 4% of the amount of such Delinquent Payment. The
Late Payment Fee shall be in addition to, and shall in no way limit, any and all
other rights and remedies provided for in the Lease, as well as all other
remedies provided by law. If any law which applies to the Lease is finally
interpreted so that a Late Payment Fee or any part thereof exceeds the limits
permitted by such law, then: Such Late Payment Fee shall be reduced by the
amount necessary to reduce such Late Payment Fee to the maximum permitted by law
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and any Late Payment Fee already collected which exceeds such maximum permitted
by law shall be promptly refunded by Landlord to Tenant.
IV. IMPOSITIONS
4.0 Payment by Tenant. Tenant shall be responsible for paying to Landlord
its Pro Rata Share of any Increased Imposition Amount (as hereinafter defined)
for any Calendar Year. As used in this Lease, the term "Increased Imposition
Amount" means, for any Calendar Year, any excess in the amount of Impositions
(as defined in Section 4.1) for that Calendar Year over the amount of
Impositions (as defined in Section 4.1) that are attributable to ▇▇▇▇ County
Fiscal Year 1997 and payable in Calendar Year 1998. Payments in respect of
Tenant's Pro Rata Share of Impositions shall be made by Tenant to Landlord
within (10) days after Landlord bills Tenant therefor but not earlier than the
date that is fifteen (15) days prior to the date that Landlord is required to
pay the underlying Imposition.
4.1 Definition of Impositions. The term "Impositions" as used herein shall
mean all taxes and assessments, general and special, and all other impositions,
ordinary and extraordinary, of every kind and nature whatsoever, which may be
due and payable levied, assessed, charged or imposed during the term of the
Lease upon the Real Estate, any part thereof and/or the personal property used
in connection with the Real Estate (including, but not limited to impositions
attributable to improvements to the Real Estate and additions to such personal
property); provided, however, that Tenant's Pro Rata Share of Impositions (as
provided above) shall be prorated between Landlord and Tenant as of the
expiration date of the Lease term for the last year of the Lease term on the
basis of Landlord's reasonable estimate thereof and such pro-ration shall be
final. Impositions for any Calendar Year shall also include all reasonable fees
and costs incurred by Landlord for the purpose of contesting or protesting tax
assessments or rates applicable to the Lease term in respect of such Calendar
Year, regardless of whether any reduction or limitation is obtained. Impositions
shall not include any inheritance, estate, succession, transfer, gift,
franchise, net income or capital stock tax.
4.2 Alternative Taxes. Should the State of Illinois, or any political
subdivision thereof, or any other governmental authority having jurisdiction
over the Real Estate or any part thereof either (a) impose a tax, assessment,
charge or fee, or increase a then existing tax, assessment, charge or fee, which
Landlord shall be required to pay, either by way of substitution for such real
estate taxes and personal property taxes or in addition to such real estate
taxes and personal property taxes or (b) impose or increase an income or
franchise tax or a tax on rents in substitution for or as a supplement to a tax
levied against the Real Estate, any part thereof and/or the personal property
used in connection with the Real Estate, all such taxes, assessments, fees or
charges shall be deemed to constitute Impositions hereunder, in which case
Tenant shall pay Tenant's Pro Rata share of any Increased Imposition Amount (as
provided in Section 4.0) as if Impositions were initially defined to include
such taxes, assessments, fees or charges.
4.3 Right to Contest. Nothing contained in this Lease shall obligate
Landlord to bring any application or proceeding seeking a reduction in
Impositions. Tenant, for itself and its immediate and remote subtenants and
successors in interest hereunder, hereby waives, to the extent permitted by law,
any right Tenant may now or in the future have to protest or contest any
Imposition or to bring any application or proceeding seeking a reduction in
Imposition valuation or otherwise challenging the determination thereof by the
appropriate governing body.
V. INSURANCE
5.0 Kinds and Amounts. As additional rent for the Leased Premises, Tenant
shall procure and maintain policies of insurance, at its own cost and expense,
insuring: Landlord and any Landlord's mortgagee or Management Agent (as defined
in Article 21) (of which Tenant is given written notice), as additional named
insureds, and Tenant from all claims, demands or actions made by or on any
person, entity or corporation and arising from, related to or connected with the
Leased Premises, for bodily and/or personal injury to or death of any person or
more than one (1) person and/or for damage to property in an amount of not less
than $5,000,000 combined single limit per occurrence; with a deductible of not
more than $10,000 (except that the foregoing limitation on a deductible shall
not apply in the event that the Leased Premises are occupied by the original
tenant hereunder or by a person or entity controlled by, controlling or in
common control with it). Said insurance shall be written on an "occurrence"
basis and not on a "claims made" basis (except that, for so long as the original
tenant hereunder or a person or entity controlled by, controlling or in common
control with it occupies the Leased Premises, said insurance may at the election
of Tenant be written on a "claims made" basis). Said insurance shall also fully
cover contractual liability in respect of the Leased Premises and the conduct or
operation of business therein. The limits of any insurance obtained in
conformity with the provisions of this Section 5.0 shall not limit the liability
of Tenant hereunder. Whenever in Landlord's reasonable judgment, good business
practice or change in conditions indicate a need for additional insurance or
different kinds of coverage, Tenant shill reasonably promptly following
Landlord's written request, obtain such insurance at its own expense (except
that the provisions of this sentence shall not apply in the event that the
Leased Premises are occupied by the original tenant hereunder or by a person or
entity controlled by, controlling or in common control with it).
5.1 Form of Insurance. The aforesaid insurance shall be issued by
companies and shall be in form, substance and amount (where not stated above)
reasonably satisfactory from time to time to Landlord and any mortgagee of
Landlord
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and shall contain standard mortgage clauses satisfactory to any mortgagee of
Landlord. All such insurance shall be effected under valid and enforceable
policies, shall be issued by insurers of recognized responsibility (which are
licensed to do business in the State of Illinois, have a policyholder's rating
of not less than "A+7" in the then most current edition of Best's Insurance
Reports and are reasonably acceptable to Landlord) and shall contain clauses or
endorsements to the effect that:
(a) no act or omission of Tenant, anyone acting for Tenant, or any other
occupant, which might otherwise result in impairment, cancellation,
nullification or forfeiture of such insurance or any part thereof shall in
any way affect the validity or enforceability of such insurance insofar as
Landlord is concerned; and
(b) such policies shall not be materially changed or canceled without at
least thirty (30) days written notice from the insurance carrier to
Landlord by certified mail/return receipt requested.
The original insurance policies (or certificates thereof reasonably satisfactory
to Landlord), together with satisfactory evidence of payment of the premiums
thereon, shall be deposited with Landlord at the Commencement Date and renewals
thereof shall be delivered to Landlord not less than thirty (30) days prior to
the end of the term of each such coverage (except that the requirement that
original insurance polices be delivered and that evidence of payment of premiums
be deposited with Landlord shall not apply in the event that the Leased Premises
are occupied by the original tenant hereunder or by a person or entity
controlled by, controlling or in common control with it). Any insurance required
by the terms of this Lease to be carried by Tenant may be under a blanket policy
(or policies) covering other properties of Tenant and/or any entity related to
or affiliated with Tenant. If such insurance is maintained under a blanket
policy, Tenant shall procure and deliver to Landlord a statement from the
insurer or general agent of the insurer setting forth the coverage maintained
and the amounts thereof allocated to the risks intended to be insured hereunder;
which statement shall guarantee that the minimum coverages available for the
Leased Premises shall be equal to or greater than the respective insurance
amounts that Tenant is required to carry under this Lease.
5.2 Landlord's Insurance.
(a) Tenant shall be responsible for paying to Landlord its Pro Rata Share
of any Increased Insurance Amount (as hereinafter defined) for any Calendar
Year. As used in this Lease, the term "Increased Insurance Amount" means, for
any Calendar Year, any excess in the cost of Landlord's Insurance (as defined in
subdivision (b) below) for that Calendar Year over the cost of Landlord's
Insurance for Calendar Year 1998. Payments in respect of Tenant's Pro Rata Share
of the Increased Insurance Amount shall be made by Tenant t as provided in
Section 3.1 hereof. Landlord shall deliver to Tenant copies of bills or invoices
for Landlord's Insurance which establish the basis for any Increased Insurance
Amount.
(b) As used in this Lease, the term the cost of "Landlord's Insurance"
means the cost of premiums for casualty, rent loss, boiler and all contingent
liability insurance (with all endorsements) paid annually by Landlord in respect
of the Real Estate during the Lease term. Tenant shall be obligated to pay its
Pro Rata Share of only that portion of any Increased Insurance Amount which
relates to such insurance coverage during the term of this Lease.
5.3 Compliance With Insurance Requirements. If Tenant's use of the Leased
Premises increases the cost of Landlord's obtaining insurance for the Real
Estate and/or requires Landlord to obtain additional insurance coverage,
Landlord shall notify Tenant of such increase and/or of the cost of such
additional coverage and Tenant shall, within ten (10) days thereafter, make
payment to Landlord of the full amount of such increased premium and/or
additional coverage. In addition to any other requirement herein, Tenant shall
cause its operations at the Real Estate to conform and comply with all
applicable fire codes of any governmental or quasi-govemmental authority and
with the rules and regulations of Landlord's fire underwriters and their fire
protection engineers.
5.4 Mutual Waiver of Subrogation Rights. Whenever (a) any loss, cost,
damage or expense resulting from fire, explosion or any other occurrence is
incurred by either of the parties to this Lease or anyone claiming by, through,
or under such party in connection with the Leased Premises and (b) such party is
then covered in whole or in part by insurance with respect to such loss, cost,
damage or expense or is required under this Lease to be so insured, then the
party so insured (or so required to have been insured) hereby releases the other
party from any liability said other party may have on account of such loss,
cost, damage or expense to the extent of any amount recovered by reason of such
insurance (or which could have been recovered had such insurance been carried as
so required) and waives any right of subrogation which might otherwise exist in
or accrue to any person on account thereof, provided that, if the effect of such
release of liability and waiver of the right of subrogation is to invalidate
such insurance coverage or increase the cost thereof, the party that would
otherwise have had to incur such effect shall not be obligated to provide such a
release and waiver if it promptly notifies the other of this effect (except
that, in the case of increased cost, the other party shall have the right,
within thirty (30) days following written notice, to pay such increased cost,
thereby keeping such release and waiver in full force and effect). If the party
released from liability hereunder is Landlord and if Landlord is an Illinois
land trust, then for the purposes of this Section 5.4, the term "Landlord" shall
also include the trustee, its beneficiary or beneficiaries and their respective
agents, officers, directors and employees.
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VI. DAMAGE OR DESTRUCTION
6.0 Certain Definitions. For purposes of this Article VI, the following
terms shall have the meanings ascribed to them below:
(a) "Premises Partial Damage" shall mean damage or destruction to the
Leased Premises which either (i) does not materially interfere with Tenant's use
and enjoyment of the Leased Premises or (ii) does interfere with the same and
can either (x) in Landlord's reasonable judgment, be repaired within one hundred
eighty (180) days after the occurrence of such damage or destruction to a
condition that remedies any material interference with Tenant's normal
operations at the Leased Premises as conducted immediately prior to such damage
or destruction or (y) has a cost of repair that is less than 50% of the then
cost of rebuilding the Leased Premises, with such cost defined in the context of
a total destruction.
(b) "Premises Total Destruction" shall mean damage or destruction to the
Leased Premises other than Partial Premises Damage.
6.1 Premises Partial Damage. If at any time during the term of this Lease
there is damage which falls into the classification of Premises Partial Damage
(including damage required by any authorized public authority) and Landlord's
insurance is sufficient to repair such damage, then this Lease shall remain in
full force and effect and Landlord shall within one hundred eighty (180) days of
receiving such notice, repair the Leased Premises to a condition that remedies
any material interference with Tenant's normal operations at the Leased Premises
and promptly thereafter permanently repair such damage to a condition
substantially equivalent to its former condition to the extent permitted by law;
provided that (i) if construction is delayed because of changes, deletions, or
additions in construction requested by Tenant or because of one or more strikes,
lockouts, labor troubles, civil disorders, failures of power, riots,
insurrections, accidents, casualties, acts of God, war, adverse weather
conditions, material or labor shortages, unusual transportation delays,
governmental regulation or control, acts caused directly by Tenant or Tenant's
agents, employees and invitees, other causes beyond the control of the Landlord
or other so called "force majeure" conditions, (collectively, "Excusable
Delays"), the period for restoration, repair or rebuilding shall be extended for
the amount of time Landlord is so delayed and (ii) Landlord shall not be
required to rebuild, repair or replace any part of partitions, fixtures,
additions and other improvements which may have been placed in, on or about the
Leased Premises by Tenant. Provided that the damage or destruction is covered as
an insured peril under Landlord's rent loss policy, for any period and to the
extent that Tenant cannot conduct its operations in the Leased Premises on
account of such damage, destruction, repair or rebuilding, the Base Rent and
other charges payable by Tenant hereunder shall be abated during the period of
restoration, repair or rebuilding in an equitable manner as reasonably
determined by Landlord. In the event that Landlord is obligated or elects to
repair or restore any damage or destruction and fails to timely substantially
complete the same within the periods provided above, then Tenant, at its option
and as its exclusive remedy, may terminate and cancel this Lease upon giving
Landlord thirty (30) days written notice, provided that, within such thirty (30)
days, Landlord shall not have substantially complied with its repair and
restoration obligations in this Section 6.1; in which case all rights and
obligations hereunder shall cease and terminate. Notwithstanding the above, if
the insurance proceeds received by Landlord are not sufficient to effect such
repair, or if such casualty was caused by the negligent or willful act or
omission of Tenant, Landlord may elect but shall have no obligation to complete
such repair.
6.2 Premises Total Destruction. If at any time during the term of this
Lease there is damage that falls into the classification of Premises Total
Destruction (including, but not limited to, destruction required by any
authorized public authority), this Lease shall automatically terminate and the
rent shall be abated during the unexpired portion of the term of this Lease,
effective upon the date, following such casualty or destruction, on which Tenant
delivers up to Landlord and surrenders possession of the Leased Premises.
6.3 General Provisions.
(a) If the improvements situated upon the Leased Premises should be
damaged or destroyed by fire, tornado or other casualty, Tenant shall give
immediate written notice thereof to Landlord.
(b) Notwithstanding anything to the contrary in this Article VI, in the
event that the holder of any indebtedness secured by a mortgage or deed of trust
covering the Leased Premises requires that insurance proceeds in respect of such
damage or destruction be applied to such indebtedness, then Landlord shall have
the right to terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any such
holder, and all rights and obligations hereunder shall cease and terminate on
the date one hundred eighty (180) days thereafter unless there has been Premises
Total Destruction.
VII. CONDEMNATION
7.0 Taking of Whole. If (a) the whole of the Leased Premises shall be
taken or condemned for a public or quasi public use or purpose by a competent
authority or by private purchase in lieu thereof ("taken" or a "taking"), or
(b) such a portion of the Leased Premises shall be so taken that, as a result
thereof, the balance cannot be used for the purpose
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that Tenant used them for and with substantially similar utility to Tenant as
immediately prior to such taking, then, in either of such events, the Lease term
shall terminate upon delivery of possession to the condemning authority and any
award, compensation or damages (hereinafter sometimes called the "Award") shall
be paid to and shall be the sole property of Landlord whether the Award shall be
made as compensation for diminution of the value of the leasehold estate or the
fee of the Real Estate or otherwise, and should such a taking or condemnation
occur, Tenant hereby assigns to Landlord all of Tenant's right, title and
interest in and to any and all of the Award, except that Tenant may receive
therefrom any portion paid expressly on account of Tenant's moving expenses.
Tenant shall continue to pay Base Rent and other charges hereunder until the
Lease term is so terminated, provided that Operating Expenses or other charges
which are prepaid by Tenant or which accrue prior to the termination shall be
adjusted between the parties.
7.1 Partial Taking. If only a part of the Leased Premises shall be taken
or condemned for a public or quasi public use or purpose by a competent
authority but the Lease is not terminated pursuant to Section 7.0 hereof,
Landlord shall repair and substantially restore or replace the Leased Premises
and all improvements thereon, except that Landlord shall not hereby be required
to expend for repair and restoration any sum in excess of the Award. Any portion
of the Award which has not been expended by Landlord for such repairing or
restoration shall be retained by Landlord as Landlord's sole property. The Base
Rent and other charges shall be equitably abated following delivery of
possession of that part of the Leased Premises so taken by the condemning body.
If any portion of the Leased Premises shall be so taken or condemned to the
extent that, in Landlord's reasonable judgment, Tenant would be unable to
conduct its business in the Leased Premises, Landlord may terminate this Lease
by giving written notice thereof to Tenant within sixty (60) days after such
taking. In such event, the Award shall be paid to and be the sole property of
Landlord, except that Tenant may receive therefrom any portion paid expressly on
account of Tenant's moving expenses.
VIII. PURPOSE, COMPLIANCE WITH
LAWS, ORDINANCES, etc.
8.0 Purpose. The Leased Premises shall be used and occupied only for the
Purpose set forth in Section 1.2 (a) hereof, except that no such use shall (a)
violate any certificate of occupancy or law, ordinance or other governmental or
quasi-governmental regulation or rule in effect from time to time affecting the
Leased Premises or the use thereof; (b) cause injury to the improvements; (c)
cause the value or usefulness of the Real Estate or any part thereof to
diminish; (d) constitute a public or private nuisance or waste or disturb any
other occupant of the Real Estate or the occupants of neighboring property; (e)
render the insurance on the Leased Premises void or unobtainable; (f) be
unreasonably dangerous to persons or property; (g) involve the sale, storage,
use or possession of alcoholic beverages, illegal drugs or narcotics or other
similar products or materials; (h) involve either the use or storage of any
explosives or the storage of any inflammable fluids or hazardous or toxic
materials in violation of the provisions of Section 20.1 hereof; (i) deface or
injure the Leased Premises, the Building or the Real Estate; (j) overload the
driveways and parking areas of the Real Estate or the floors in the Building or
use trucks, trailers or other vehicles in a manner that unreasonably or
repeatedly blocks the ingress or egress of any other Tenant of the Real Estate;
(k) transmit dust or other debris from Tenant's operations outside of the Leased
Premises; (l) overload electrical or power lines servicing the Leased Premises;
(m) involve the installation, use, or operation of loud speakers; television,
phonograph, radio or other devices (including, but not limited to antennas) in
such a manner to be seen or heard outside of the Leased Premises; (n) involve
the use of the plumbing facilities in the Leased Premises or the Building for
any other purpose than that for which they are constructed and installed; it
being agreed that no foreign substance of any kind including but not limited to
sanitary napkins, tampons, or hand towels shall be thrown therein and that the
expense of any breakage, stoppage or damage resulting from a violation of this
provision shall be borne by the Tenant; (o) involve cooking food within the
Leased Premises except incidental cooking such as with a microwave or coffee
machine for employee snacks; (p) involve the storage in common areas of the Real
Estate of personal property, including but not limited to bicycles, motorcycles
or motor bikes, inventory, business operating equipment, packing crates and
similar items; (q) use parking facilities on the Real Estate other than as
provided herein; (r) involve the repair or storage of disabled vehicles; or (s)
involve the storage of any goods, debris, materials or personal property outside
of the Lease Premises or the Building for a period of more than twenty-four (24)
hours, even if used, treated stored or disposed of in accordance with
Environmental Laws (as hereinafter defined) except that the use and storage in
nominal quantities of standard lubricants and cleaning agents having an
ancillary use in Tenant's business shall be permitted if in compliance with
Environmental Laws. Tenant shall not use or occupy the Leased Premises contrary
to any statute, rule, order, ordinance, requirement or regulation applicable
thereto. Tenant agrees that no washing of any type (other than reasonable
restroom washing and washing of goods in process inventory) will take place on
the Leased Premises or on the Real Estate including the truck aprons and parking
areas. Tenant acknowledges that Landlord has a valuable warranty relating to the
condition of the roof and that, in order to safeguard the roof and to in no way
diminish or adversely affect that warranty, Tenant agrees that it will exercise
extreme care in any entry onto the roof of the Building by its employees, agents
and invitees, and, that as stated in Section 9.2 (c) hereof, Tenant shall in no
event make any cut or opening in the roof unless made through Landlord by
Landlord's roofing contractor, Centimark.
8.1 Compliance With Law. Tenant will procure, pay for and maintain all
permits, licenses and other authorizations needed for the conduct of Tenant's
business on any part of the Real Estate. Tenant, at its own sole cost and
expense, shall also comply with all laws, ordinances, orders, rules, regulations
and requirements of all Governmental Authorities (as hereinafter defined), and
all orders, rules and regulations of the national and local boards of fire
underwriters or any other body or bodies exercising similar functions which may
be applicable to the Leased Premises and any portion of the Real Estate used by
Tenant, including but not limited to Environmental Laws (as defined in Section
20.1). As used in
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this Lease, the term "Governmental Authorities" shall mean all federal, county,
municipal and local governments, and all departments, commissions, boards,
bureaus and offices thereof, having or claiming jurisdiction over the Real
Estate.
IX. MAINTENANCE, REPAIRS, ALTERATIONS AND COVENANT AGAINST LIENS
9.0 Landlord's Maintenance and Repairs.
(a) Subject to the provisions of subdivision (c) of this Section 9.0,
Landlord shall perform all exterior painting (at such intervals as Landlord
deems appropriate), maintain the landscaping on the Real Estate, remove snow
accumulations from the roof (if deemed necessary by Landlord) and from any
parking lot serving occupants of the Building, and, to the extent that the same
are of service or benefit to or are used by more than one of the rental units in
the Building, perform necessary maintenance, repairs, replacements, inspections
and testing on such portions of the Real Estate (including but not limited to
exterior lights, roof and storm drains, grounds maintenance, landscaping, and
driveways, parking areas and walkways, and on any portion of the mechanical,
electrical and HVAC equipment and/or systems thereon that are of such service or
benefit (including, but not limited to, the water, sewer, fire prevention and
sprinkler systems) (for example, Landlord's obligations under this Section
9.0(a) extend to portions of the Building's sprinkler mains that serve more than
one unit in Building but do not extend to portions of the sprinkler system that
are wholly within the Leased Premises and do not service any other unit in the
Building, such as a sprinkler head or perhaps a sprinkler branch pipe). Except
as expressly set forth herein, all costs, disbursements and expenses incurred by
Landlord in fulfilling its obligations under Section 9.0(a) shall be included in
Operating Expenses under Section 3.1 hereof
(b) Landlord shall have the right but not the obligation to repair any
damage to any portion of the improvements located on the Real Estate caused by
or resulting from any act or omission or negligence of Tenant, its agents,
employees, contractors, customers and/or invitees. Tenant shall reimburse
Landlord for Landlord's costs and expenses incurred for repairs or replacements
made pursuant to this Section 9.0(b) within ten (10) days after Tenant's receipt
of a written demand from Landlord in respect thereof.
(c) Landlord shall at its sole cost and expense keep and maintain the roof
and structural soundness of the exterior walls of the Leased Space in good
condition and repair, reasonable wear and tear excepted; these being the only
components of the Building or the Real Estate as to which Landlord's maintenance
shall be at its sole cost and expense. The term "walls" as used in this
subdivision (c) shall not include windows, glass or plate glass, doors, special
store fronts or office entries.
(d) Tenant shall immediately give Landlord written notice of any defect or
need for repairs, after which Landlord shall have reasonable opportunity to
repair same or cure such defect. Landlord's liability with respect to any
defects, repairs or maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect.
9.1 Tenant's Maintenance and Repairs.
(a) Except to the extent that Landlord is obligated to make repairs and
replacements pursuant to subsection 9.0(a) and subsection 9.0(c), throughout the
term of this Lease, Tenant, at its sole cost and expense, shall (i) take good
care of the Leased Premises and the fixtures therein, all appurtenances of the
Leased Premises, all alleyways, passageways, sidewalks curbs and vaults, if any,
adjoining the Leased Premises, (ii) keep the same in the same or better order
and condition as existed on the Commencement Date, excepting only ordinary wear
and tear and any casualty that this Lease requires Landlord to repair, (iii)
keep the same in clean, safe, secure, orderly and sanitary condition and free of
dust, debris, trash, rodents, vermin and other pests, ordinary wear excepted,
and (iv) make all necessary repairs thereto, interior and exterior, ordinary and
extraordinary, structural and non-structural, and foreseen and unforeseen. The
extent of Tenant's obligation in the foregoing includes but is not limited to
interior light bulbs and fixtures, HVAC units, sprinkler heads and lines, dock
doors, levelers and other equipment, carpeting, cleanliness of painted surfaces
and bathrooms, etc. The term "repairs" as used in this Article shall include,
but shall not be limited to, all necessary or appropriate replacements, and
renewals, and, subject to the provisions of Section 9.2 hereof, all necessary or
appropriate changes, alterations, additions and betterments. Tenant shall
promptly remove any debris left by Tenant, its employees, agents, contractors or
Invitees in the parking areas or other exterior areas of the Real Estate.
(b) Notwithstanding anything set forth herein to the contrary, Tenant
shall be responsible for all repairs anti replacements of damage and/or
destruction of the Leased Premises necessitated by burglary or attempted
burglary or any other illegal or forcible entry into the Leased Premises.
9.2 Alterations.
(a) As used in this Lease, the term "Alterations" shall mean any and all
repairs, additions, improvements and/or alterations on or to the Leased Premises
and on and to the appurtenances and equipment thereof which Tenant makes or is
obligated to make hereunder.
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(b) [Intentionally deleted]
(c) Tenant shall not make any Alterations, which cast in excess of $25,000
in respect of any one Alteration project, without Landlord's prior written
consent, which consent Landlord shall not unreasonably delay or withhold unless
such Alterations affect the structural integrity of the Building or Landlord's
roof warranty, in which cases Landlord may, in its discretion, withhold its
consent. As to any Alterations, Tenant shall, if requested by Landlord, furnish
Landlord with plans and specifications, names and addresses of contractors,
copies of contracts, necessary permits, indemnification, bonds, guaranties or
waivers of lien in form and amount satisfactory to Landlord against any and all
claims, costs, damages, liabilities and expenses which may arise in connection
with any such work. Tenant shall in no event make any cut or opening in the roof
unless made through Landlord by Landlord's roofing contractor, Centimark,
Landlord having a valuable warranty of the condition of the roof.
(d) Tenant shall pay the cost of all Alterations and agrees to indemnify
and hold harmless Landlord and its beneficiaries and agents from any and all
liabilities of every kind and description which may arise out of or be connected
in any way with any Alterations. Before commencing any Alterations, Tenant, if
requested by Landlord, shall furnish Landlord with certificates of insurance
from all contractors performing labor or furnishing materials insuring Landlord
against any and all liabilities which may arise out of or be connected in any
way with such Alterations.
(e) Upon completing any Alterations, Tenant shall, if requested by
Landlord, furnish Landlord with "as built" drawings contractors' affidavits and
full and final waivers of lien and receipted bills covering all labor and
material expended and used. All such work shall comply with all insurance
requirements and with all applicable rules, laws, ordinances and regulations of
any governmental or quasi-governmental authority having jurisdiction over the
Leased Premises. All such work shall be performed in a good and workmanlike
manner and only good grades of new materials shall be used.
X. ASSIGNMENT AND SUBLETTING
10.0 Consent Required. Subject to the provisions of Section 10.1 hereof,
Tenant shall not, without Landlord's prior written consent, which consent
Landlord may in its sole discretion withhold, (i) assign or convey this Lease or
any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's
interest in the Leased Premises by operation of law or otherwise; (iii) sublet
the Leased Premises or any part thereof; (iv) amend a sublease previously
consented to by Landlord or (v) permit the use or occupancy of the Leased
Premises or any part thereof by anyone other than Tenant. Any assignment,
sublease or other transfer made in violation of the provisions of this Article
10 shall be deemed void and of no force or effect.
10.1 Assignment or Subleasing. Notwithstanding anything to the contrary in
the foregoing, but subject to the further provisions of this Section 10.1.
Landlord agrees not to unreasonably withhold its consent to any request by
Tenant for Landlord's consent to an assignment of this Lease or a sublease of
the Leased Premises.
(a) If Tenant proposes to assign the Lease or enter into any sublease of
the Leased Premises, Tenant shall deliver written notice thereof to Landlord at
least thirty (30) days prior to the effective date of the proposed assignment or
the commencement date of the term of the proposed sublease, together with (i) a
copy of the proposed assignment or sublease agreement and (ii) sufficient
information to permit Landlord to determine the financial responsibility and
character of the proposed subtenant or assignee, its operations and the
acceptability thereof. Such delivery and conformity shall obligate Landlord to
review and evaluate the same, but shall not per se entitle Tenant to Landlord's
approval of the proposed assignment or sublease.
(b) Any proposed assignment shall be expressly subject to the terms,
conditions and covenants of this Lease. Any proposed assignment shall contain a
written assumption by assignee of all Tenant's obligations under this Lease. Any
proposed sublease shall (i) provide that the sublessee shall procure and
maintain a policy of insurance as required of Tenant under Section 5.0 hereof,
(ii) contain a provision for the benefit of Landlord, substantially in the form
set forth in Section 5.4 hereof (i.e., waiver of subrogation provisions), (iii)
provide for a copy to Landlord of notice of default by either party thereto and
(iv) otherwise be in form reasonably acceptable to Landlord.
(c) No assignment or sublease permitted under this Section 10.1 shall be
valid unless (i) within ten (10) days of the execution of such sublease or
assignment, Tenant delivers to Landlord executed copies of the assignment or
sublease (in form and substance satisfactory for recording) and all documents or
agreements executed in connection therewith and (ii) the assignment or sublease
and all other such documents are materially in conformity with the economic and
other terms of the proposed documents and agreements previously delivered to
Landlord in connection with Tenant's request for Landlord's consent to the
assignment or sublease.
(d) Provided that Tenant complies with all of the requirements of this
Section 10.1, Landlord's consent to any assignment or subletting shall not
unreasonably be withheld; in making its determination as to whether to consent
to any proposed assignment or sublease, Landlord may consider, among other
things, the credit-worthiness and business reputation of the proposed assignee
or subtenant, the intended manner of use of the Leased Premises by the proposed
assignee or subtenant and any risks to the Real Estate or conflicts with other
uses or potential uses of the Real Estate posed by such use,
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the estimated vehicular traffic on or about the Leased Premises and to the Real
Estate which would be generated by the proposed assignee or subtenant or by its
manner of use of the Leased Premises and/or any other factors which Landlord may
reasonably deem relevant. Without limiting Landlord's grounds for withholding
such consent, Landlord may withhold such consent if (i) the proposed assignee or
subtenant is a person or entity with whom Landlord is then or has been recently
negotiating to lease space in the Building or (ii) the proposed assignee or
subtenant's operations at the Leased Premises would violate any provision of
this Lease. In the event that Landlord shall unreasonably withhold its consent
to an assignment or subletting, Tenant's remedy shall be limited to injunctive
relief or declaratory judgment and in no event shall Landlord be liable for
damages resulting therefrom. There shall not be more than one (1) subtenant of
the Leased Premises. No consent by Landlord to any assignment or subletting or
to any sub-subletting shall be deemed to be a consent to any further assignment
or subletting or to any further sub-subletting. Receipt by Landlord of rental
due hereunder from any party other than Tenant shall not be deemed to be a
consent to any such assignment or subletting or relieve Tenant from its
obligation to pay rental or other charges for the full term of this Lease.
(e) In the event that Tenant proposes to assign the Lease or to enter into
a sublease of all or substantially all of the Leased Premises, Landlord shall
have the right, in lieu of consenting thereto, to terminate this Lease,
effective as of the effective date of the proposed assignment or the
commencement date of the proposed sublease, as the case may be. Landlord may
exercise said right by giving Tenant written notice thereof within five (5) days
after receipt by Landlord of Tenant's notice, given in compliance with Section
10.1(a) hereof, of the proposed assignment or sublease. In the event that
Landlord exercises such right, Tenant shall surrender the Leased Premises on the
effective date of the termination and this Lease shall thereupon terminate.
Landlord may, in the event of such termination, enter into a lease with any
proposed assignee or subtenant for the Leased Premises.
(f) No permitted assignment shall be effective and no permitted sublease
shall commence unless and until any default by Tenant hereunder shall have been
cured. No permitted assignment or subletting shall relieve Tenant from Tenant's
obligations and agreements hereunder and Tenant shall continue to be liable as a
principal and not as a guarantor or surety to the same extent as though no
assignment or subletting had been made.
(g) Tenant shall reimburse Landlord on demand for any costs that may be
incurred by Landlord in connection with any assignment or sublease, including,
without limitation, the costs of making investigations as to the acceptability
of the proposed assignee or subtenant, and legal fees and disbursements costs
incurred in connection with the granting of any requested consent; which costs
shall not exceed one thousand and 00/100 dollars ($1,000.00) in any one
instance).
10.2 Merger or Consolidation. Notwithstanding anything to the contrary set
forth herein, Tenant may, without Landlord's consent, assign this Lease to any
corporation resulting from a merger or consolidation of the Tenant, to a
corporation acquiring substantially all of the assets of Tenant or to any
corporation which controls, is controlled by or under common control with
Tenant, provided, in any such case: (a) the total assets and net worth of such
assignee after such consolidation or merger shall be equal to or greater than
that of Tenant immediately prior to such consolidation or merger; (b) Tenant is
not at such time in default hereunder; (c) such successor shall execute an
instrument in writing fully assuming all of the obligations and liabilities
imposed upon Tenant hereunder and deliver an executed copy of the same to
Landlord prior to the effective date of such assignment, (d) Tenant delivers an
executed copy of the assignment in form and substance satisfactory for recording
within ten (10) business days after the execution and delivery thereof and (e)
the assignee continues to perform operations at the Leased Premises similar to
chose conducted by Tenant prior to the assignment.
10.3 Voting Control of Tenant. The term "assignment" as used in this
Article 10 should be construed to include (i) if Tenant is corporation, a
transfer (by one or more transfers) of stock which results in a change of
control of Tenant (other than in a public offering) and (ii) if Tenant is a
partnership or joint venture, a transfer (by one or more transfers) of an
interest in the distributions of profits and losses of such partnership or joint
venture which results in a change of control of such partnership or joint
venture. For purposes of this Section 10.2, the term "control" shall mean, in
the case of a corporation, ownership, directly or indirectly, of at least fifty
(50%) percent of all the voting stock, and in case of a joint venture or
partnership or similar entity, ownership, directly or indirectly, of at least
fifty (50%) percent of all the interests therein.
10.4 Other Transfer of Lease. Tenant shall not allow or permit any
transfer of this Lease or any interest hereunder by operation of law, and shall
not convey, mortgage, pledge, hypothecate or encumber this Lease or any interest
herein. Any assignment, subletting, amendment of a sublease, conveyance,
transfer, mortgage, pledge, hypothecation or encumbrance made in violation of
the provisions of this Article shall be null and void.
XI. LIENS AND ENCUMBRANCES
11.0 Encumbering Title. Tenant shall not do any act which shall in any way
encumber the title of Landlord in and to the Leased Premises or the Real Estate,
nor shall the interest or estate of Landlord in the Leased Premises or the Real
Estate be in any way subject to any claim by way of lien or encumbrance, whether
by operation of law or by virtue of any express or implied contract by Tenant.
Any claim to, or lien upon, the Leased Premises or the Real Estate arising from
any act or omission of Tenant shall accrue only against the Leasehold estate of
Tenant and shall be subject and subordinate to the paramount title and rights of
Landlord in and to the Leased Premises and the Real Estate.
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11.1 Liens and Right to Contest. Tenant shall not permit the Leased
Premises or the Real Estate or any part thereof to become subject to any
mechanic's, laborer's or materialmen's lien on account of labor or material
furnished to Tenant or claimed to have been furnished to Tenant in connection
with Alterations or any other work performed or claimed to have been performed
on any part of the Real Estate by, or at the direction or sufferance of Tenant.
If any such lien or claim for lien is filed, Tenant shall immediately either
have such lien or claim for lien released of record or shall deliver to Landlord
a bond, in form, content, amount and issued by surety or other assurances
reasonably satisfactory to Landlord, against all costs and liabilities resulting
from such lien or claim for lien and the foreclosure or attempted foreclosure
thereof. If Tenant shall fail to have any such lien or claim for lien so
released or to deliver such bond to Landlord, Landlord, without investigating
the validity of such a lien, may pay or discharge the same and, within ten (10)
days of Landlord's written request therefore. Tenant shall reimburse Landlord
for its actual costs and expenses in respect thereof including but not limited
to Landlord's attorneys' fees and expenses.
XII. UTILITIES
12.0 Utilities. For the purposes of this Lease, the term "Utilities" shall
mean any and all electricity, telephone, gas (other than gas to the Building's
central boilers), water, sanitary and storm sewer services, and other public and
private utility services furnished to the Real Estate.
(a) Landlord may, at Landlord's election, but without any obligation to do
so, make arrangements with any utility company or companies supplying Utilities
to the Leased Premises, to ▇▇▇▇ Tenant directly for its use of the Utility
provided by such utility company or companies, and Tenant agrees to pay each
▇▇▇▇ promptly in accordance with its terms. If Tenant is not billed directly,
Landlord shall forward to Tenant each ▇▇▇▇ with respect to the Leased Premises
and Tenant shall pay it promptly in accordance with its terms.
(b) If Tenant is not separately metered and billed with respect to one or
more Utilities, Landlord may, at Landlord's election, but without any obligation
to do so, separately submeter the Utilities furnished to the Leased Premises. In
such an event, Landlord shall render bills to Tenant to reflect the actual use
of such Utilities by Tenant as shown by such submetering.
(c) If any Utilities shall be neither directly metered nor separately
submetered, then (i) with respect to those Utilities which, in Landlord's
reasonable judgment, are used proportionately by Tenant and any other occupants
of the Real Estate, Tenant shall pay to Landlord, as Additional Rent, an amount
equal to Tenant's Pro Rata Share of the total amount paid by Landlord for usage
of such Utilities with respect to the Real Estate, and (ii) with respect to
those Utilities which in Landlord's reasonable judgment are not used
proportionately by Tenant and the other occupants of the Real Estate, subject to
any limitations set forth in Section 3.1 hereof, Landlord shall allocate the
cost of such Utilities among Tenant and the other occupants of the Real Estate
on an equitable basis based on Landlord's reasonable estimate of each occupant's
usage thereof, and Tenant shall pay to Landlord, as Additional Rent, the portion
of the cost of such Utilities so allocated to Tenant. Any amounts payable by
Tenant pursuant to (i) or (ii) above or otherwise in this Section 12.0 shall be
payable together with the monthly payment of Base Rent in such amounts as
Landlord shall from time to time advise Tenant based on the cost of Utilities
theretofore billed to Landlord.
(d) Landlord shall from time-to-time give Tenant written notice (an
"Allocation Notice") setting forth the proportionate use of any Utilities
allocated by Landlord to Tenant pursuant to Section 12.0(c) above, Tenant may,
within fifteen (15) business days after receipt from Landlord of an Allocation
Notice, give Landlord a written dispute notice stating that Tenant disputes
Landlord's allocation and setting forth the allocation which Tenant believes to
be correct; provided however that Tenant's failure to timely give such a notice
shall be deemed agreement with the allocation set forth in Landlord's Allocation
Notice. If Tenant timely gives Landlord such a dispute notice and if the parties
shall be unable to resolve such dispute within fifteen (15) days after receipt
by Landlord of Tenant's notice, Landlord shall retain a third party consultant
to make a survey of the use in the Real Estate of any disputed Utilities to
determine the average monthly consumption thereof by Tenant. The cost of each
such survey shall be borne equally by Landlord and Tenant unless the consultant
determines that the allocation as determined by one of the parties is in
substance fair or correct, in which case the other shall pay the entire cost of
such survey. The findings of the consultant shall be conclusive and binding upon
the parties until such time as Landlord gives Tenant a new Allocation Notice in
accordance with this Section 12.0(d). Any change in allocation resulting from a
survey shall be effective as of the date of receipt by Tenant of the Allocation
Notice in dispute. If the determination of the consultant shall result in a
deficiency, Tenant shall pay the amount thereof within ten (10) days after
demand therefor, and if the determination shall result in an overpayment,
Landlord shall, provided no Event of Default exists hereunder, permit Tenant to
credit the amount thereof against future payments for Utilities.
(e) The costs and expenses incurred by Landlord in providing any
additional special services used by Tenant not separately metered or billed to
Tenant hereunder, including but not limited to, the provision of heat from the
Building's central boilers after the usual times that heat is provided, shall be
billed by Landlord to Tenant and Tenant shall reimburse Landlord for such cost
and expense within ten (10) days of written demand therefor by Landlord.
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(f) Subject to the other provisions of this Section 12.0, Tenant shall pay
to Landlord, as additional rent for the Leased Premises, Tenant's Pro Rata Share
of the charges, it any, for Utilities used for areas of common use by or for the
tenants on the Real Estate. Such charges shall be paid by Tenant to Landlord in
accordance with the provisions of Section 3.1 hereof.
(g) In the event that Landlord elects to cause the gas and/or electric
services to be segregated or subdivided by Tenant, Landlord shall be
responsible, at its sole cost and expense, for the costs associated therewith.
XIII. INDEMNITY AND WAIVER
13.0 Indemnity.
(a) Tenant shall indemnify and save Landlord harmless from and against,
and shall reimburse Landlord for, all liabilities, obligations, damages, fines,
penalties, claims, demands, costs, charges, judgments and expenses including,
but not limited to, reasonable architects' and attorneys' fees, which may be
imposed upon or incurred or paid by or asserted against Landlord or Landlord's
fee or reversionary or other interest in the Real Estate by reason of or in
connection with any of the following:
(i) Any Alterations made by or on behalf of Tenant and anything done by or
on behalf of Tenant in, on or about the Leased Premises or any part thereof,
including but not limited to the use, non-use, possession, occupation,
condition, operation, maintenance or management of the Leased Premises or any
part thereof, or any street, alley, sidewalk, curb, vault, passageway or space
adjacent thereto;
(ii) Any negligent or tortious act or omission on the part of Tenant;
(iii) Any accident, injury, death or damage to any person or property
occurring in, on or about the Leased Premises or any part thereof or any street,
alley, sidewalk, curb, vault, passageway or space adjacent thereto that is
caused by Tenant; and
(iv) Any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms, provisions, conditions or limitations
contained in this Lease on its part to be performed or complied with.
As used in clauses (i) through (iv) of Section 13.0(a), the term "Tenant" shall
include Tenant and any of its agents, contractors, servants, employees,
subtenants, licensees or invitees. As used in this Article XIII, the term
"Landlord" shall include (w) Landlord, (x) any managing agent for the Leased
Premises hired by Landlord, (y) if Landlord is an Illinois land trust, the
trustee, its beneficiary or beneficiaries, and (z) each of their respective
agents, directors, officers and employees.
(b) In case any action or proceeding is brought against Landlord by reason
of any claim set forth in this Section 13.0, Tenant, upon notice from Landlord,
shall, at Tenant's expense, resist or defend such action or proceeding in
Landlord's name, if necessary, by counsel for the insurance company, if such
claim is covered by insurance or otherwise by counsel approved by Landlord.
Landlord agrees to give Tenant prompt notice of any such claim or proceeding.
(c) The provisions of this Section 13.0 and of Section 13.1 shall not in
any way be affected by the absence in any case of any insurance relating to any
of the indemnified matters or by the failure or refusal of any insurance company
to perform any obligation on its part. The provisions of this Section 13.0 and
of Section 13.1 shall survive any expiration or earlier termination of this
Lease.
13.1 Waiver of Certain Claims. All property belonging to Tenant or any
occupant of the Leased Premises that is in or on any part of the Real Estate
shall be there at the risk of Tenant or of such other person only. Therefore,
Landlord shall not be liable for any damage thereto or for the theft or
misappropriation thereof. Tenant waives all claims it may have against Landlord
for damage or injury to Tenant or to its property sustained by Tenant or any
persons claiming through Tenant or by any occupant of the Leased Premises or by
any other person resulting from any cause whatsoever, including but not limited
to any damage or injury caused by any part of the Real Estate or any of its
improvements, equipment or appurtenances that shall be out of repair (or falls
into disrepair), caused by any accident on or about the Real Estate or caused
directly or indirectly by any act or neglect of any tenant or occupant of any
part of the Real Estate or of any other person, including Landlord. This waiver
shall include, but not by way of limitation, damage caused by water, snow,
frost, steam, excessive heat or cold, sewage, gas, odors, or noise, or caused by
bursting or leaking of pipes or plumbing fixtures (including, but not limited to
sprinkler pipes, lines, heads and any part of such system, roof leaks, leaks
from drains and the like), and shall apply without regard to whether or not such
damage results from the act or neglect of Tenant or any other person, including
Landlord. Additionally, in no event shall Landlord be liable to Tenant for any
disrepair or damage to the Leased premises or the Real Estate, and, except as
may be specifically provided in this Lease, Landlord shall have no obligation to
repair the same.
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XIV. RIGHTS RESERVED TO LANDLORD
14.0 Rights Reserved to Landlord. Without limiting any other rights
reserved or available to Landlord under this Lease, at law or in equity,
Landlord reserves the following rights to be exercised at Landlord's election:
(a) To change the street address of the Leased Premises on ninety (90)
days prior written notice to Tenant;
(b) To have access to Leased Premises or the Building, specifically
including, but without limiting the generality of the foregoing, to make
repairs, additions or alterations within and clean and maintain the Leased
Premises and any portions thereof serving other premises in the Building or
other parts of the Real Estate;
(c) On twenty-four hours written or telephonic notice to Tenant or without
such notice if Tenant has a management level employee available to accompany the
visitor(s), to show the Leased Premises to prospective purchasers, mortgagees,
or other persons having a legitimate interest in viewing the same, and, at any
time (in the event that Tenant vacates or abandons the Leased Premises) or
within one (1) year prior to either the expiration of the Lease term or date on
which any party hereto has an option to terminate the Lease, to persons wishing
to rent the Leased Premises;
(d) To place and maintain "For Rent" and/or "For Sale" signs on the Leased
Premises or the Real Estate, but, except during the twelve (12) months prior to
the expiration of the Lease, in no event on the outer walls of the Leased
Premises facing Maple Street or Birchwood Avenue;
(e) If Tenant shall theretofore have vacated the Leased Premises or during
the six (6) months prior to the expiration of the term of the Lease, to
decorate, remodel, repair, alter, patch, paint or make any repairs and the like
in or to the Leased Premises that may be necessary or convenient or otherwise
prepare the Leased Premises for new occupancy;
(f) To enter the Leased Premises at any reasonable time upon prior notice
to Tenant to inspect the Leased Premises; and
(g) To erect, use and maintain pipes, ducts and wiring and conduits and
appurtenances thereto, in and through the Leased Premises at reasonable
locations.
Provided that Landlord uses reasonable efforts to minimize interference with or
disruption of Tenant's business, Landlord may enter upon the Leased Premises for
any and all of said purposes and may exercise any and all of the foregoing
rights hereby reserved, during normal business hours (unless an emergency
exists, in which case Landlord may enter upon the Leased Premises when it deems
necessary) without being deemed guilty of any eviction, trespass or disturbance
of Tenant's use or possession of the Leased Premises, and without being liable
in any manner to Tenant. Landlord may, during the progress of any work performed
by it in accordance with this Section 14.0, keep and store in the Leased
Premises all necessary materials, tools, supplies and equipment. Provided that
Landlord uses reasonable efforts to avoid interfering with Tenant's business or
disrupting the same, Landlord shall not be liable for inconvenience, annoyance,
disturbance, loss of business of, or other damage to Tenant or any occupant of
the Leased Premises by reason of the making of such repairs or the performance
of any such work, or on account of bringing materials, tools, supplies and
equipment into or through the Leased Premises during the course thereof, and the
obligations of Tenant under this Lease shall not be affected thereby.
XV. QUIET ENJOYMENT
15.0 Quiet Enjoyment. So long as Tenant shall observe and perform all of
the covenants and agreements of this Lease binding on it hereunder, Tenant's
quiet and peaceable enjoyment of the Leased Premises shall not be disturbed or
interfered with by Landlord or by any person claiming by, through or under
Landlord, subject, nevertheless, to the provisions of this Lease.
XVI. SUBORDINATION OR SUPERIORITY
16.0 Subordination or Superiority. This Lease is and shall be subject and
subordinate to the lien of any mortgage or mortgages on or affecting the Real
Estate or any part thereof at the date hereof, and to any mortgage or mortgages
hereafter made affecting the Real Estate or any part thereof, and to all
renewals, modifications, consolidations, replacements, or extensions thereof,
irrespective of the time of recording such mortgage. The provisions of this
subordination shall be automatic and no further instrument of subordination
shall be necessary, but in confirmation of this subordination Tenant shall, at
Landlord's request, execute and deliver such further instruments as may be
reasonably desired by the holders of said mortgages. Such subordination made to
any mortgage or mortgages is expressly conditioned upon any such mortgagee
executing and delivering to Tenant an agreement, in form for recording, pursuant
to which such mortgagee shall agree that the leasehold estate granted to Tenant
hereunder and the rights of Tenant pursuant to this Lease to quiet and peaceful
possession under this Lease will not be terminated, modified, affected or
disturbed by any action which such mortgagee may take to foreclose its mortgage
or to enforce its rights or remedies, nor shall Tenant be named a defendant in
any foreclosure action, provided that (x) no default shall have occurred under
this Lease (other than defaults theretofore cured or in the process of being
cured as permitted by the provisions of Article XVIII hereof) and (y) Tenant
shall pay the
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Base Rent, additional rent, and other charges hereunder within the applicable
grace periods without offsets or defenses thereto. If any mortgagee or any other
person claiming by or through any mortgagee, or by or through any foreclosure
proceeding or sale in lieu of foreclosure, shall succeed to the rights of
Landlord under this Lease, Tenant shall, at such successor Landlord's request,
attorn to and recognize such successor as the Landlord of Tenant under this
Lease, and Tenant shall promptly execute, acknowledge and deliver at any time
any instruments requested by such person to evidence such attornment. Upon such
attornment, this Lease shall continue as a direct lease from such successor
Landlord to Tenant, upon and subject to all of the provisions of this Lease for
the remainder of the term of this Lease, except that the successor Landlord
shall not:
(a) be liable for any previous act or omission of Landlord under
this Lease,
(b) be subject to any offset, not expressly provided for in this
Lease, which shall have theretofore accrued to Tenant against Landlord and
(c) be bound by any previous modification of this Lease after the
date of such mortgage, or by any previous prepayment of more than one months'
fixed annual net rent, additional rent or other charge unless such modification
or prepayment shall have been expressly approved in writing by the holder of
such fee mortgage through or by reason of which the successor Landlord shall
have succeeded to the rights of Landlord under this Lease.
XVII. SURRENDER
17.0 Surrender. Upon the termination of this Lease, whether by forfeiture,
lapse of time or otherwise, or upon termination of Tenant's right to possession
of the Leased Premises, Tenant will at once surrender and deliver up the Leased
Premises, together with all improvements thereon, to Landlord, broom swept, in
good condition and repair, reasonable wear and tear and logs by fire or other
casualty excepted; it being expressly agreed and understood that conditions
existing because of Tenant's failure to perform maintenance, repairs or
replacements as required herein shall not be deemed "reasonable wear and tear."
Tenant shall deliver to Landlord all keys to all doors therein. As used in this
Section 17.0, the term "improvements" shall include, without limitation, all
plumbing, lighting, electrical, heating, cooling, and ventilating fixtures and
equipment and all Alterations whether or not such Alterations are consented to
by Landlord. All Alterations, temporary or permanent, made in or upon the Leased
Premises by Tenant (exclusive of Tenant's Trade Fixtures) (as hereinafter
defined) shall become Landlord's property and shall remain upon the Leased
Premises on any such termination without compensation, allowance or credit to
Tenant, provided, however, that Landlord shall have the right to require Tenant
to remove any Alterations and to restore the damage occasioned by such removal
and restoration. Said right shall be exercised by Landlord's giving written
notice thereof to Tenant on or before thirty (30) days after any such
termination. If Landlord requires removal of any Alterations and Tenant does not
make such removal either in accordance with this Section on or before the date
of such termination or within thirty (30) days after such request, whichever is
later, Landlord may, at its option, remove the same (and repair any damage
occasioned thereby) and dispose thereof or, at its election, either deliver the
same to any other place of business of Tenant or warehouse the same. Tenant
shall pay the costs of such removal, repair, delivery and warehousing to
Landlord on demand.
17.1 Removal of Tenant's Property. Upon any such termination of this Lease
by lapse of time or otherwise, Tenant shall remove Tenant's articles of personal
property incident or otherwise related to Tenant's business ("Trade Fixtures");
provided, however, that Tenant shall repair any injury or damage to the Leased
Premises which may result from such removal and shall restore the Leased
Premises to the same condition as prior to the installation thereof. If Tenant
does not remove Tenant's Trade Fixtures from the Leased Premises prior to the
expiration or any such termination, Landlord, may, at its option, remove the
same (and repair any damage occasioned thereby) and dispose thereof or, at its
election, either deliver the same to any other place of business of Tenant or
warehouse the same, in which case Tenant shall pay the cost of such removal,
repair, delivery and/or warehousing to Landlord on demand, or Landlord may treat
such Trade Fixtures as having been conveyed to Landlord with this Lease being
deemed a ▇▇▇▇ of Sale, without further payment or credit by Landlord to Tenant.
17.2 Holding Over. Tenant shall have no right to occupy the Leased
Premises or any portion thereof after the expiration of the Lease or after any
earlier termination of the Lease or of Tenant's right to possession. In the
event that Tenant or any party claiming by, through or under Tenant holds over,
Landlord may exercise any and all remedies available to it at law or in equity
to recover possession of the Leased Premises, and for all damages sustained by
Landlord, whether direct or indirect, on account thereof. In connection with any
holding over by Tenant, Tenant acknowledges that Landlord expressly bargained
for both the right to timely surrender by Tenant of the Leased Premises and the
rights provided in this Section 17.2 and would not have executed this Lease
without either or any of them. Additionally, the parties recognize and agree
that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the Leased Premises will be substantial in that
Landlord's marketing efforts will be hindered and/or a prospective lease or sale
may be lost and that such damages, will, for the reasons outlined above, exceed
the amount of the monthly installments of Base Rent payable hereunder, and will
be impossible to measure accurately. Therefore, Tenant agrees that, if
possession of the Leased Premises is not surrendered to Landlord upon the
expiration date or earlier termination of the Lease or of Tenant's right to
possession, then, in addition to any other rights or remedies that Landlord may
have hereunder or at law, Tenant shall pay to Landlord, as minimum damages and
not as a penalty or limitation on damages, for each and every month or partial
month that Tenant or any party claiming by, through or under Tenant remains in
occupancy of all or any portion of the Leased
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Premises after the expiration of the Lease or after any early termination of the
Lease or of Tenant's right to possession, a sum equal to the higher of (a)
double the rate of Base Rent and other charges payable by Tenant hereunder
immediately prior to the expiration or other termination of the Lease or of
Tenant's right to possession or (b) double the then current fair market value
for the Leased Premises. The acceptance by Landlord of any lesser sum shall be
construed as a payment on account and not in satisfaction of damages for such
holding over. No holding over by Tenant, whether with or without the consent of
Landlord, shall operate to extend this Lease that except as otherwise expressly
provided. The provisions of this Section shall not constitute waiver or
Landlord's right of re-entry or any other right hereunder. The provisions of
this Section shall survive the expiration or earlier termination of the Lease or
of Tenants right to possession.
XVIII. REMEDIES
18.0 Defaults. Tenant agrees that any one or more of the following events
shall be considered an event of default ("Event of Default"):
(a) Tenant shall default (i) in any payment of Base Rent required to be
made under Section 3.0 hereof or (ii) in any other payment required to be made
by Tenant hereunder when due as herein provided, including but not limited to
payments required to be made under Sections 3.1 and 3.3 hereof (all of which
other payments shall be deemed "additional rent" payable hereunder), and any
such default under the foregoing clause (i) or (ii) shall continue for five (5)
days after notice thereof in writing to Tenant; or
(b) An involuntary case in bankruptcy shall be filed against Tenant under
any federal or state bankruptcy or insolvency act and shall not have dismissed
within forty-five (45) days from the filing thereof; or
(c) Tenant shall (i) file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy or any petition
pursuant to or purporting to be pursuant to the Federal bankruptcy laws as now
or hereafter amended or (ii) institute any proceeding, or shall give its consent
to the institution of any proceedings for any relief of Tenant under any
bankruptcy or insolvency laws or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganization, arrangements, composition or
extension; or
(d) Tenant shall (i) make any assignment for the benefit of creditors,
(ii) apply for or consent to the appointment of a receiver for Tenant or any of
the property of Tenant or (iii) admit in writing Tenant's inability to meet
Tenant's debts as they mature; or
(e) Tenant's interest in the Leased Premises an levied on under execution
or other legal process; or
(f) A decree or order appointing a receiver of the property of Tenant
shall be made and such decree or order shall not have been vacated or set aside
within thirty (30) days from the date of entry or granting thereof; or
(g) Tenant shall abandon the Leased Premises or vacate the same during the
term hereof; or
(h) Tenant (i) shall fail to contest the validity of any lien or claimed
lien and give security to Landlord to assure payment thereof or (ii) having
commenced to contest the same and having given such security, shall fail to
prosecute such contest with diligence or shall fail to have the same released
and satisfy any judgment rendered thereon, and such default shall continue for
ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall fail to remedy any other default in the prompt and full
performance of any other provision of this Lease within fifteen (15) days after
written demand is made by Landlord (or, in the case of an emergency, Tenant does
not immediately commence to rectify such default after notice from Landlord) and
any such default is not remedied or prompt and full performance is not
accomplished by Tenant or Tenant has not promptly instituted and is not
vigorously pursuing such remedies as are necessary to rectify such default
within fifteen (15) days after written demand is made by Landlord (or, in the
case of an emergency, Tenant does not immediately commence to rectify such
default, with or without notice from Landlord); or
(j) Tenant shall repeatedly be late in the payment of Base Rent or other
charges required to be paid hereunder or shall repeatedly default in the
keeping, observing, or performing of any other covenants or agreements herein
contained to be kept, observed or performed by Tenant (provided notice of such
payment or other defaults shall have been given to Tenant, but whether or not
Tenant shall have timely cured any such payment or other defaults of which
notice was given).
18.1 Remedies.
(a) Upon the occurrence of any one or more Events of Default, in addition
to all other rights and remedies provided at law or in equity or elsewhere
herein, Landlord may, at its election with or without notice or demand of any
kind to Tenant or to any other person, terminate either (i) this Lease or (ii)
Tenant's rights to possession only, without terminating the Lease.
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Exercise by Landlord of any one or more remedies hereunder granted or otherwise
available shall not be deemed to be an acceptance by Landlord of surrender of
the Leased Premises by Tenant, whether by agreement or by operation of law, it
being understood that such surrender can be effected only by the written
agreement of Landlord and Tenant.
(b) Upon termination of the Lease or upon any termination of Tenant's
right to possession without termination of the Lease, Tenant shall surrender
possession and vacate the Leased Premises immediately and deliver possession
thereof to Landlord. Tenant hereby grants to Landlord the full and free right,
without demand or notice of any kind to Tenant (except to the extent expressly
provided for herein), to enter into and upon the Leased Premises in such event
with process of law and to repossess the Leased Premises and to expel or remove
Tenant and any others who may be occupying or within the Leased Premises without
being deemed in any manner guilty of trespass, eviction, or forcible entry or
detainer, without incurring any liability for any damage resulting therefrom and
without relinquishing Landlord's rights to rent or any other right given to
Landlord hereunder or by operation of law.
(c) In the event of termination or repossession of the Leased Premises for
an Event of Default, Landlord may, but shall not be obligated to relet all or
any part of the Leased Premises for such Base Rent and upon such terms as shall
be satisfactory to Landlord (including, but not limited to, the right to relet
the Leased Premises for a term greater or lesser than that remaining under the
Lease term and the right to change the character or use made of the Leased
Premises).
(d) Upon termination of the Lease, Landlord shall be entitled to recover
as damages, all Base Rent and other sums due and payable by Tenant on the date
of termination, plus (i) an amount equal to the value of the Base Rent and other
sums provided herein to be paid by Tenant (with amounts to be paid in the future
discounted at the rate of eight percent (8%) per annum) for the residue of the
stated term hereof and (ii) the cost of performing any other covenants to be
performed by Tenant.
(e) If Landlord elects to terminate Tenant's right to possession only
without terminating the Lease, Landlord may, at Landlord's option, enter into
the Leased Premises, remove Tenant's signs and other evidences of tenancy and
take and hold possession thereof as herein above provided, without such entry
and possession terminating the Lease or releasing Tenant, in whole or in part,
from Tenant's obligations to pay the Base Rent and all other charges hereunder
for the full term or from any other of its obligations under this Lease. For the
purpose of such reletting, Landlord may patch, paint, alter, remodel or make any
repairs and the like in or to the Leased Premises that may be necessary or
convenient. If Landlord does not relet the Leased Premises, Tenant shall pay to
Landlord on demand damages equal to the amount of the Base Rent, and other sums
provided herein to be paid by Tenant for the remainder of the Lease term. If the
Leased Premises are relet and a sufficient sum shall not be realized from such
reletting after paying all of (i) the expenses of such patching, painting,
repairs, alterations, remodeling and the like, (ii) the expenses of such
reletting (including but not limited to advertising and brokerage expenses),
(iii) other reasonable expenses incurred to secure a new tenant for the Leased
Premises and the collection of the Base Rent accruing therefrom (including, but
not be limited to, attorneys' fees and disbursements and brokers' commissions)
and (iv) other reasonably necessary expenses to satisfy the Base Rent and other
charges herein provided to be paid for the remainder of the Lease term, Tenant
shall pay to Landlord on demand any deficiency and Tenant agrees that Landlord
may file suit to recover any sums falling due under the terms of this Section
from time to time. Landlord shall not be liable in any way for its failure or
refusal to relet the Leased Premises or any part thereof, or, if the Leased
Premises or any part thereof are relet, for its failure to collect the Base Rent
under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
(f) In the event that Landlord may elect to regain possession of the
Leased Premises in a forcible detainer proceeding, Tenant hereby specifically
waives any statutory notice which may be required prior to any such proceeding
and agrees that Landlord's execution of this Lease is, in part, consideration
for this waiver. If Landlord commences any proceeding for nonpayment of rent or
any other sums required to be paid by Tenant under this Lease (whether or not
such action seeks recovery of the Leased Premises), Tenant agrees that it shall
not interpose any defense, set-off, counterclaim or cross-complaint of any
nature whatsoever in any such proceeding; provided, however, that the foregoing
shall not be construed as a waiver of Tenant's right to assert such claims in
any separate action or actions brought by Tenant.
(g) In the event of any default by Landlord under this Lease, Tenant's
exclusive remedy shall be as further provided below (Tenant hereby waiving the
benefit of any laws granting it a lien upon Base Rent or other sums due
Landlord), but, prior to instituting any legal action, Tenant will give Landlord
written notice specifying such default with particularity, and Landlord shall
thereupon have a reasonable period of time in which to cure any such default
(which period of time shall not, in any case, be less than thirty (30) days from
the date that Landlord receives notice from Tenant in respect of the same).
Unless and until Landlord fails to so cure any default after such notice, Tenant
shall not have any remedy or cause of action by reason thereof. Notwithstanding
any other provision hereof, Landlord shall not have any personal liability
hereunder. In the event of any breach or default by Landlord in any term or
provision of this Lease, Tenant agrees to look solely to the equity or interest
then owned by Landlord in the Leased Premises; Tenant therefor also affirming
that, in no event shall any deficiency judgment or any money judgment of any
kind be sought or obtained against Landlord.
18.2 Remedies Cumulative. No remedy herein or otherwise conferred upon or
reserved to Landlord shall be considered to exclude or suspend any other remedy,
but the same shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter exist at law or in equity or by statute and
every power and remedy given by
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this Lease to Landlord may be exercised from time to time and so often as
occasion may arise or as Landlord may deem expedient.
18.3 Waiver of Certain Rights. Tenant, for and on behalf of itself and all
persons claiming through or under Tenant (hereinafter "Persons") (including,
without limitation, any of Tenant's creditors), hereby expressly waives, so far
as permitted by law, any and all rights which Tenant and all Persons claiming
through or under Tenant have to (a) the service of any notice of intention to
re-enter or notice to quit provided for in any law, or of the institution of
legal proceedings to that end, (b) redeem the Leased Premises or any portion
thereof or interest therein, (c) re-enter or repossess the Leased Premises or
any portion thereof or (d) restore the operation of this Lease, after either (i)
Tenant shall have been dispossessed by a judgment or by a warrant of any court
or judge, (ii) any re-entry or repossession by Landlord or (iii) any expiration
of this Lease, whether such dispossession, re-entry by Landlord or expiration
shall be by operation of law or pursuant to the provisions of this Lease or
otherwise. The terms "enter", "re-enter", "entry" or "re-entry", as used in this
Lease, are not and shall not be deemed to be restricted to their technical legal
meanings.
18.4 Bankruptcy Assumption of Lease. (a) In the event that a petition is
filed by or against Tenant seeking either a plan or reorganization or
arrangement under Chapter 9, 11 or 13 of the Bankruptcy Code or any substitute
or successor bankruptcy code or law (the "Bankruptcy Code") or liquidation under
Chapter 7 of the Bankruptcy Code or (b) if any receiver or conservator is
appointed to manage, preserve, operate or dispose of Tenant's business or its
assets, Landlord and Tenant agree, to the extent permitted by law, that any such
trustee, receiver or conservator shall determine within sixty (60) days after
commencement of the case or appointment of the receiver or conservator whether
to assume or reject this Lease and, in the event said trustee, receiver or
conservator elects to assume this Lease, (i) all due and unpaid Base Rent and
other charges hereunder shall be immediately due and payable by such trustee,
receiver or conservator to Landlord and (ii) said trustee shall provide Landlord
with adequate assurance of the future performance of all of the terms, covenants
and conditions of this Lease including but not limited to an assumption of the
terms, covenant and conditions thereof.
18.5 No Waiver. No delay or omission of Landlord to exercise any right or
power arising from any default shall impair any such right or power or be
construed to be either a waiver of any such default or any acquiescence therein.
No waiver of any breach of any of the covenants of this Lease shall be construed
as or taken or held to be either a waiver of such a breach or as a waiver,
acquiescence in or consent to any further or succeeding breach of the same
covenant. The acceptance by Landlord of any payment of Base Rent or other
charges hereunder after the termination by Landlord of this Lease or of Tenant's
right to possession hereunder shall not, in the absence of agreement in writing
to the contrary by Landlord, be deemed to restore this Lease or Tenant's right
to possession hereunder, as the case may be, but shall be construed as a payment
on account and not in satisfaction of damages due from Tenant to Landlord.
XIX. SECURITY DEPOSIT
19.0 Security Deposit. Tenant has deposited with Landlord a security
deposit in the amount of four (4) months' Base Rent (the "Security Deposit") for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of the Lease and, as additional security for the performance of its
obligations thereunder; except that the Security Deposit shall be reduced to two
(2) months' rent and Landlord shall promptly refund any excess to Tenant upon
Tenant's delivery to Landlord of a written notice stating that either (x) Tenant
has had an offering of equity stock that is listed on a major national exchange
and that the market capitalization for the Company is $15.0 million or more on a
date on or after the thirtieth (30th) day following such offering or (y) Tenant
has obtained fresh equity in amounts equal to or greater than $7.0 million on or
after the date hereof; which notice shall be accompanied by back-up reasonably
sufficient to allow Landlord to verify the occurrence of such a market cap or
financing. Tenant shall, within ten (10) days of any written request therefor by
Landlord, deposit with Landlord such additional amounts as are necessary to
raise the total Security Deposit held by Landlord to an amount equal to the
required number of months of Base Rent set forth above. The parties agree that
the Security Deposit is not an advance rental deposit or a measure of Tenant's
damages in the event of Tenant's default and that, upon the occurrence of an
Event of Default in respect of any of the terms, provisions and conditions of
the Lease, including but not limited to, the payment of Base Rent and other
amounts payable under the Lease, Landlord may, in addition to all other remedies
herein reserved to Landlord, use, apply or retain the whole or any part of the
Security Deposit together with any interest or earnings thereon, to the extent
required for the payment of any Base Rent or other payments or any other sum as
to which Tenant is or thereafter may be in default or for any sum which Landlord
may expend or may be required to expend by reason of Tenant's default in respect
of any of the terms, conditions, and provisions of the Lease, including but not
limited to, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. Landlord shall not be obligated to
hold the Security Deposit as a separate fund, but, on the contrary, may
commingle the same with its other funds. In the event that Tenant shall fully
and faithfully perform all of the terms, provisions, covenants and conditions of
the Lease, the Security Deposit shall be returned to Tenant within thirty (30)
days after the later to occur of (i) the expiration of the term of the Lease and
(ii) the satisfaction by Tenant of its obligations under the Lease. Tenant shall
have no right to apply the Security Deposit against the last month's Base Rent
or any other payment due hereunder. In the event of an assignment by Landlord of
all its rights under the Lease, Landlord shall transfer the Security Deposit to
the assignee and, provided that the assignee signs a written statement
acknowledging such assignment and delivers a copy thereof to Tenant, Landlord
shall thereupon be released by Tenant from all liability or the return of the
Security Deposit and Tenant agrees to look to such assignee solely for the
return of such security; and it is agreed that the provisions hereof shall apply
to every transfer or assignment made of the Security Deposit to a new assignee
of Landlord's
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interest in the Lease. Tenant further covenants that it will not assign,
encumber or attempt to assign or encumber the Security Deposit and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. In the event any
bankruptcy, insolvency, reorganization or other creditor or debtor proceedings
shall be instituted by or against Tenant, or its successors or assigns, the
Security Deposit shall be deemed to be applied first to the payment of any Base
Rent and/or other charges due Landlord for all periods prior to the institution
of such proceedings and any balance, if any of the Security Deposit may be
retained or paid to Landlord in partial liquidation of Landlord's damages.
XX. ENVIRONMENTAL
20.1 Definitions. In addition to those words and terms defined elsewhere
herein or in the Lease, the following words and terms shall have the meanings
set forth herein:
(a) Environmental Laws: "Environmental Laws" shall mean and refer to all
federal, state, State of Illinois and local laws, rules and regulations relating
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, or chemical, industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, air, surface water,
groundwater or soil) or otherwise now or hereafter relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants or chemical, industrial, toxic or hazardous
substances or wastes. Without limiting the generality of the foregoing,
"Environmental Laws" shall include the Comprehensive Environmental Response,
Cleanup and Liability Act ("CERCLA"), the Superfund Amendments and
Reauthorization Act ("▇▇▇▇"), the Resource Conservation and Recovery Act
("RCRA") and the Toxic Substance Control Act.
(b) Permits. "Permits" shall mean and refer to all permits, licenses,
certificates, registrations and authorizations which are required to be obtained
by Tenant under all applicable Environmental Laws.
(c) Environmental Condition. "Environmental Condition" shall mean: (i) any
adverse condition relating to surface water, ground water, drinking water
supply, land, surface or subsurface strata or the ambient air, including,
without limitation, air, land and water pollutants, noise, vibration, light and
odors and (ii) any condition which may result in a claim of liability under an
Environmental Law.
20.2 Tenant's Covenants. Except for the use and storage in nominal
quantities and in compliance with Environmental Laws of standard lubricants and
cleaning agents having an ancillary use in Tenant's business, Tenant shall not
use, handle, process, store, treat, discharge or dispose of any "hazardous
waste" or "hazardous substance" (as defined by any Environmental Law) at the
Leased Premises, nor permit any of Tenant's agents, servants, employees,
licensees, invitees, contractors and permitted assignees or permitted subtenants
to do so. At no expense to Landlord, Tenant shall supply all information
required by any governmental authority or reasonably requested by any
prospective Mortgagee or purchaser of the Property with respect to Tenant's
compliance with Environmental Laws, Tenant's operations at the Leased Premises,
Tenant's use, storage or discharge of hazardous substances or hazardous wastes
at or about the Leased Premises, if any, Tenant's compliance with its
environmental obligations under this Lease and any related matters. If Tenant
becomes aware or receives notice of any condition or event involving the use,
spill, leakage, discharge or cleanup of any hazardous substance or hazardous
waste on or about the Property, or of any complaint, order, citation or notice
charging the violation of any Environmental Law, then Tenant shall give
immediate written notice of the event, condition or complaint to Landlord,
detailing all relevant facts and circumstances. Tenant agrees that Landlord and
any Mortgagee may enter the Leased Premises at such time or times as they deem
appropriate in order to conduct a visual inspection in order to determine
compliance with Environmental Laws; provided, however, that, unless an emergency
exists, such access shall be during normal business hours on reasonable notice
to Tenant, and shall not unduly interfere with Tenant's permitted use of the
Leased Premises. If this inspection or other information discloses reasonable
cause to suspect that a violation of any Environmental Laws may be occurring or
may have occurred for which Tenant is responsible under this Lease, Landlord or
the Mortgagee may cause an appropriate environmental engineering inspection to
be made at Tenant's reasonable cost and expense, and Tenant shall cooperate with
the inspection by making the Leased Premises available for that purpose. If the
inspection discloses that no such violation exists, then Landlord shall pay for
the inspection or, if Tenant has already paid, shall reimburse Tenant for the
cost.
20.3 Cooperation. On written request from the other, each of the parties
agrees to reasonably cooperate with the other in connection with any
governmental filings, hearings, proceedings or similar actions or matters
relating to the use, treatment, generation, storage or disposal of hazardous
substances or hazardous wastes on the Leased Premises. Except as for any costs
indemnified by such party under Section 20.5 or 20.6 hereof, the party
requesting such cooperation shall pay the other's reasonable out-of-pocket costs
in connection therewith.
20.4 Tenant's Indemnity. Tenant agrees to indemnify, defend (with counsel
reasonably satisfactory to Landlord) and hold Landlord harmless in full against
all claims, losses, liabilities, damages, costs and expenses (including but not
limited to cleanup costs, environmental consultants' fees and reasonable
attorneys' fees, including fees to enforce Tenant's indemnification obligation
under this Section 20.4), whether foreseen or unforeseen, arising out of any
failure by Tenant to comply in any respect
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with its obligations under this Article 20. The foregoing indemnity to be in
addition to any other indemnities set forth in the Lease and to any other legal
rights or remedies of the parties.
20.5 Landlord's Indemnity. Landlord agrees to indemnify, defend and hold
Tenant harmless in full against all claims, losses, liabilities, damages, costs
and expenses (including but not limited to cleanup costs, environmental
consultants' fees and reasonable attorneys' fees, including fees to enforce
Landlord's indemnification obligation under this Section 20.5), whether foreseen
or unforeseen to the extent the same are not the subject of Tenant's indemnity
under the foregoing Section 20.4.
20.6 Survival. Except as expressly provided, the provisions of this
Article 20 shall survive any expiration or earlier termination of this Lease.
XXI. MISCELLANEOUS
21.0 Payments to Landlord. Rent and all payments due hereunder to Landlord
shall be paid to or upon the order of Landlord at Landlord's Address as set
forth in Section 1.2 hereof, as the same may be amended by Landlord.
21.1 Estoppel Certificate. Tenant shall, at any time and from time to time
upon not less than ten (10) days' prior written request from Landlord, execute,
acknowledge and deliver to Landlord, in form reasonably satisfactory to Landlord
and/or Landlord's mortgagee, a written statement, duly acknowledged, certifying
(if true) to the following:
(i) that Tenant has accepted the Leased Premises and the Lease has
commenced;
(ii) that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the Lease is in full force and
effect as modified and identifying the modifications);
(iii) that Landlord is not in default hereunder (or, if Landlord is in
default hereunder, stating such defaults in reasonably satisfactory
detail);
(iv) the amount of the Base Rent and the date to which the Base Rent and
other charges have been paid;
(v) the Commencement Date and the expiration date of the Lease;
(vi) whether any and all work to be performed by Landlord hereunder has
been completed;
(vii) whether any renewal term options hereunder have been exercised;
(viii) whether there exist any claims or deductions from, or defenses to,
the payment of Base Rent; and
(ix) such other accurate certifications as may reasonably be required by
Landlord or Landlord's mortgagee.
It is intended that any such statement delivered pursuant to this Section 21.1
may be relied upon by any prospective purchaser or tenant of the Leased Premises
or the Real Estate, any mortgagee or prospective mortgagee thereof, any
prospective assignee of any mortgage thereof and/or their respective successors
and assigns.
21.2 Landlord's Right to Cure. In addition to, and not in lieu of, any of
Landlord's rights on remedies under this Lease, on ten (10) days' prior written
notice to Tenant (except in cases of emergency in which event Landlord shall
give prompt telephonic or written notice to Tenant), Landlord may, but shall not
be obligated to, cure any default by Tenant (specifically including, but not by
way of limitation, Tenant's failure to obtain insurance, make repairs and
replacements, or satisfy lien claims); and, whenever Landlord so elects, all
costs and expenses paid by Landlord in curing such default, including without
limitation reasonable attorneys' fees and expenses, shall be so much additional
rent due within ten (10) days following Landlord's written request therefor,
together with interest at the Default Rate (as defined in Section 3.2) from the
date of the advance to the date of repayment by Tenant to Landlord.
21.3 Amendments Must Be In Writing. None of the covenants, terms or
conditions of this Lease, to be kept and performed by either party, shall in any
manner be altered, waived, modified, changed or abandoned, except by written
instrument duly signed and delivered by the other party.
21.4 Notices. All notices, requests, demands, consents, approvals and
other communications which may be or are required to be served hereunder
(collectively, "Notices") shall be in writing and shall be sent by (a)
registered or certified mail, return receipt requested addressed to the party to
receive such Notice at the party's address set forth in Section 1.2 above, (b)
reputable delivery service, postage or freight paid, addressed to the party to
receive such Notice at the party's address set forth in Section 1.2 above or (c)
telecopier facsimile to the party to receive such notice to the party's
telecopier number first set forth in Section 1.2 above (with an executed
original thereof mailed on the date of the telecopier transmission as provided
in clause (a) of this Section 21.4). Either party may, by Notice given as
aforesaid, change his address and/or telecopier number for all subsequent
Notices and/or add up to two (2) additional parties who are to receive all
subsequent Notices (Landlord may also change its address for receipt of
payments). Except where otherwise expressly provided to the contrary herein,
Notices shall be deemed given two business days after the mailing thereof (in
the case of Notices mailed by Registered or Certified Mail), upon confirmation
of transmission (in the case of transmitted by telecopier facsimile) or upon
delivery thereof (in all other cases), with failure to accept delivery
constituting delivery for this purpose.
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21.5 Survival. All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to impositions, insurance and
other matters and all obligations concerning the condition of the Leased
Premises.
21.6 Time of Essence. Time is of the essence of this Lease and all
provisions herein relating thereto shall be strictly construed.
21.7 Relationship of Parties. Nothing contained herein shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent, partnership or joint venture by the parties
hereto, it being understood and agreed that no provision contained in this Lease
or any acts of the parties hereto shall be deemed to create any relationship
other than the relationship of landlord and tenant.
21.8 Captions. The captions of this Lease are for convenience only and are
not to be construed as part of this Lease and shall be construed as defining or
limiting in any way the scope or intent of the provisions hereof.
21.9 Severability. If any term or provision of this Lease shall to any
extent be held illegal, invalid or unenforceable under present or future laws
effective during the term of this Lease, the remaining terms and provisions of
this Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
Furthermore, in that event, it is the intention of the parties hereto that (in
lieu of each clause or provision of this Lease that is illegal, invalid or
unenforceable), there be added as a part of the Lease contract a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause
or provision as may be possible and be legal, valid and enforceable.
21.10 Law Applicable. This Lease shall be construed and enforced in
accordance with the laws of the State of Illinois.
21.11 Covenants Binding on Successors. Except as specifically set forth
herein, (a) all of the covenants, agreements, conditions and undertakings
contained in this Lease shall extend and inure to and be binding upon the heirs,
executors, administrators, successors and assigns of the respective parties
hereto, the same as if they were in every case specifically named and (b)
wherever in this Lease reference is made to either of the parties hereto, it
shall be held to include and apply to, wherever applicable, the heirs,
executors, administrators, successors and assigns of such party. Except as
specifically set forth herein, nothing herein contained shall be construed to
grant or confer upon any person or entity (public or private), other than the
parties hereto, their heirs, executors, administrators, successors and assigns,
any right, claim or privilege by virtue of any covenant, agreement, condition or
undertaking in this Lease contained. Additionally, it is expressly agreed and
acknowledged that nothing in this Section shall permit any assignment by Tenant
contrary to the provisions of Article 10 hereof.
21.12 Brokerage.
(a) Landlord and Tenant each warrant that they respectively have had no
dealings with any broker, sales person, finder or agent in connection with this
Lease.
(b) Landlord agrees to indemnify, defend (with counsel reasonably
acceptable to Tenant) and hold Tenant harmless, and Tenant agrees to indemnify,
defend (with counsel reasonably acceptable to Landlord) and hold Landlord
harmless, against liability, damages, costs and expenses (including reasonable
attorneys' fees) from claims for commissions, finder's fees or similar
compensation by anyone else alleging involvement with Landlord or with Tenant,
respectively, as a broker, finder or other intermediary in connection with this
Lease.
(c) Landlord's and Tenant's obligations under this Section 21.12 shall
survive any termination of this Agreement.
21.13 Landlord Means Landlord. The term "Landlord" as used in this Lease,
so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the Landlord or Landlords at the time in
question of the fee of the Real Estate.
21.14 Lender's Requirements. Except for any right of Tenant to terminate
this Lease that may be specifically provided for herein or in accordance with
applicable law, this Lease may not be canceled, modified or amended so as to
reduce the rent, shorten the term, or otherwise adversely affect the rights of
the Landlord hereunder, without, in each instance, the prior written consent of
all mortgagees of which Tenant has notice. No mortgagee shall be bound by any
payment of rent for more than one month in advance. Except as may be
specifically provided for herein, in the event of any act or omission by
Landlord which would give Tenant the right to terminate this Lease or claim a
partial or total eviction, or, subject to the limitations set forth herein, make
any claim against Landlord for the payment of money, Tenant will not exercise
such right until (x) it has given written notice of such act or omission to
Landlord and to all mortgagees of which Landlord has previously advised Tenant
and (y) a reasonable period of time in which to remedy such act or omission
shall have elapsed following the giving of such notices which shall not, in any
case, be less than thirty (30) days from the date that the mortgagees receive
notice from Tenant in respect
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of the same), during which period of time Landlord or the mortgagees or any of
them, with reasonable diligence following the giving of such notice, has not
commenced and continued to remedy such act or omission until completion. Nothing
herein contained shall be deemed to create any rights in Tenant not specifically
granted in this Lease or under any applicable provision of law, nor any
obligation on the part of the mortgagees to remedy any act or omission of
Landlord. If any mortgagee or committed financier of Landlord should require, as
a condition precedent to the closing of any loan or the dispersal of any money
under any loan, that this Lease be reasonably amended or supplemented in any
other manner (other than in the description of the Leased Premises, the term,
the purpose or the Base Rent or other charges hereunder or in any other regard
as will substantially or materially adversely affect the rights and obligations
of Tenant under this Lease), Landlord shall give written notice thereof to
Tenant, which notice shall be accompanied by an amendment thereto setting forth
such amendments and supplements. Tenant shall, within ten (10) days after the
effective date of Landlord's notice, either consent to such amendments and
supplements (which consent shall not be unreasonably withheld) and execute the
tendered amendment thereto or deliver to Landlord a written notice stating in
reasonable specificity its reason or reasons for refusing to so consent and
execute. Failure of Tenant to respond within said ten (10) day period shall be
deemed approval of such amendment. In the event that Tenant timely contests an
amendment, if Landlord and Tenant are then unable to agree on provisions
relating thereto that are satisfactory to each of them and to the lender within
thirty (30) days after delivery of Tenant's written statement, Landlord shall
have the right to submit the dispute in respect thereof to binding arbitration,
such arbitration to be conducted by a board of three (3) arbitrators under the
Rules then obtaining of the American Arbitration Association in the ▇▇▇▇ County,
Illinois and, following the announcement of the decision thereof, either party
shall execute an agreement in conformity with the arbitrators' ruling upon five
(5) days written notice from the other.
21.15 Signs. Tenant shall install no exterior sign without Landlord's
prior written approval of detailed plans and specifications therefor. If
Landlord has or develops a standard form of identity sign for tenants on the
Real Estate and if Tenant desires to have or to continue to have an identity
sign on the exterior of the Leased Premises, Tenant shall advise Landlord of the
name it desires to have on its sign and Landlord shall install its standard sign
showing such name; in which case, Landlord shall at its sole cost and expense
produce and erect said sign.
21.16 Covenants and Conditions. All of the covenants of Landlord and
Tenant hereunder shall be deemed and construed to be "conditions", as well as
"covenants" as though the word specifically expressing or importing covenants
and conditions were used in each separate instance.
21.17 Tenant's Statement. Tenant shall furnish to Landlord, within ten
(10) days after written request therefor from Landlord, a copy of Tenant's then
most recent certified financial statement, certified by Tenant's chief financial
officer, along with a copy of Tenants most recent audited and certified
financial statement, if such a statement is available. It is mutually agreed
that Landlord may deliver a copy of such statements to any mortgagee or
prospective mortgagee of Landlord or any prospective purchaser of the Real
Estate, but that, otherwise, Landlord shall treat any non-public statements and
information contained therein as confidential.
21.18 Landlord's Expenses and Tenant's Attorneys' Fees. Tenant agrees to
pay on demand Landlord's expenses, including, but not limited to reasonable
attorneys' fees, expenses and administrative hearing and court costs incurred
either directly or indirectly in enforcing any obligation of Tenant under this
Lease, in curing any default by Tenant as provided in Section 21.2, in
connection with appearing, defending or otherwise participating in any action or
proceeding arising from the filing, imposition, contesting, discharging or
satisfaction of any lien or claim for lien, in defending or otherwise
participating in any legal proceedings initiated by or on behalf of Tenant
wherein Landlord is not adjudicated to be in default of any of its material
obligations under this Lease or in connection with any investigation or review
of any conditions or documents in the event Tenant requests Landlord's approval
or consent to any action of Tenant which may be desired by Tenant or required of
Tenant hereunder (provided, as further specified above, that Landlord shall not
be deemed to be so in default unless Tenant gives Landlord a written notice
specifying the default and Landlord fails to cure the same, subject to Excusable
Delays, within a reasonable period of time which shall not, in any case, be less
than thirty (30) days from the date that Landlord receives notice from Tenant in
respect of the same).
21.19 Execution of Lease by Landlord. The submission of this document for
examination and negotiation does not constitute an offer to lease or a
reservation of or option for the Leased Premises. This document shall become
effective and binding only upon the execution and delivery hereof by Landlord
and by Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein.
21.20 Tenant's Authorization. If Tenant is a corporation, partnership,
association or any other entity, Tenant shall furnish to Landlord, within ten
(10) days after written request therefor from Landlord, certified resolutions of
Tenant's directors or other governing person or body authorizing execution and
delivery of this Lease and performance by Tenant of its obligations hereunder
and evidencing that the person who physically executed the Lease on behalf of
Tenant was duly authorized to do so.
21.21 Jury Trial Waiver. To the fullest extent permitted by law, Landlord
and Tenant waive their respective rights to trial by jury in any action or
proceeding arising out of or pursuant to this Lease, the breach of any provision
hereof or the relationship of landlord and tenant.
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21.22 Sale or Assignment by Landlord. Landlord may sell the Real Estate or
assign its interest in this Lease, or any part thereof, in the exercise of its
sole discretion. Upon the written request of Landlord, Tenant shall deliver to
Landlord written acknowledgment of the same and confirm that it agrees to be
fully bound under the Lease to any such buyer or assignee. In the event of any
such sale or assignment, Landlord shall be entirely freed and relieved of all
agreements and obligations of Landlord hereunder accruing or to be performed
after the date of such sale or assignment, including, without limitation, any
obligation to return the Security Deposit or to make any accounting therefor, so
long as the assignee or purchaser acknowledges its liability therefor in
accordance with the terms of this Lease. Additionally, supplementing the
provisions of Section 21.1 hereof, within ten (10) days after the written
request of Landlord, Tenant shall provide any information or certification of
the status of this Lease reasonably requested by Landlord and Tenant shall
execute any memoranda, certificate attornment or other document in recordable
form or otherwise as required by Landlord or shall undertake any action
reasonably requested by Landlord to evidence the existence of this Lease or to
effectuate any such sale or assignment.
21.23 Landlord's Title. Landlord's title and interest in the Real Estate
is and always shall be paramount to the title of Tenant. Nothing herein
contained shall empower Tenant to do any act which can, shall or may encumber
title of Landlord.
21.24 Building Code and Zoning. Tenant shall immediately, upon receipt
thereof, forward to Landlord copies of all notices or summonses of building code
or zoning violations. Tenant shall not, without the prior written consent of
Landlord, initiate, consent to or acquiesce in any zoning or land use
classification amendment or change affecting the Leased Premises or any part
thereof or any annexation petition or proceeding affecting the Leased Premises
or any part thereof.
21.25 No Publication of Lease. Tenant shall not publish, advertise, print
or otherwise publicize this Lease, any memorandum of this Lease or disseminate
to the public, to any tenant of the Real Estate or to any prospective tenant of
all or part of the Real Estate any information about or in connection with this
Lease.
21.26 Understandings Re Payments and Receipts. No payment by Tenant or
receipt by Landlord of a lesser amount than any installment or payment of Base
Rent or other charges due shall be deemed to be other than on account of the
amount due. No endorsement or statement on any check or any letter accompanying
any check or payment of Base Rent or other charges shall be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment or pursue
any other remedies available to Landlord. No receipt of money by Landlord from
Tenant after the termination of this Lease or of Tenant's right of possession of
the Leased Premises shall reinstate, continue or extend the term of this Lease.
21.27 Parking Areas and Common Areas. It is understood by and between the
parties hereto that Tenant shall have a minimum of 80 spaces for car parking
available to it. This shall include an exclusive right to park cars in the lot
on the east or Maple Street side of the Building, and such additional spaces in
amount sufficient to meet the aforesaid 80 minimum, with such additional spaces
to be located on the Real Estate or on such parking areas adjacent thereto which
Landlord makes available to Tenant. It is also agreed and understood that Tenant
and its employees, agents and invitees may not use the other parking areas of
the Real Estate and that, in connection with any expiration or other termination
of Landlord's sublease of part of the parking lot in front of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ expressly retains the right to pave over the grass areas in
front of the Leased Premises along the corner of Maple Street and Birchwood
Avenue to add paved parking areas to serve others. Tenant shall also have the
right to a further five (5) spaces on the west side of the Building to service
the 1750 Birchwood High Bay Unit, with such additional spaces to be designated
from time-to-time by Landlord.
2l.28 Independence of Covenants. All of Landlord's obligations hereunder
are and shall be independent of and separate from Tenant's covenants hereunder,
including but not limited to Tenant's obligation to pay Base Rent and other
charges, which obligation shall remain in full force and effect notwithstanding
any breach by Landlord of its covenants hereunder.
21.29 Common Areas. Landlord shall operate and maintain the common areas
of the Real Estate in a manner deemed by it to be reasonable, appropriate and in
the best interests of the Building and the Real Estate, and shall establish from
time-to-time such rules and regulations pertaining thereto as it deems
appropriate, which rules and regulations shall be binding on Tenant.
21.30 Management Agent. Landlord shall have the right to employ a
management agent for the Real Estate (the "Management Agent"). In the event that
Management Agent is appointed, Landlord shall have the right to delegate the
exercise of its rights and the performance of its duties and obligations under
this Lease to the Management Agent and Tenant agrees to recognize such
delegation after notice from Landlord.
21.31 License to Use Furniture. Landlord hereby agrees to grant Tenant a
license to use the so called "former Electro-Com furnishings" located in the
2070 Maple Unit and described more particularly on Schedule __ annexed hereto
and made a part hereof. The aforesaid license shall be co-terminous with the
term of this Lease as the same may be extended or terminated prior to the
scheduled expiration hereof. Tenant acknowledges that it has been using the same
since
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the l996 Sublease (see Section 2.1 for reference) and that the same are in good
condition and repair. Tenant agrees that it shall at the expiration or early
termination of the Lease, surrender and deliver the same up to Landlord in good
condition and repair, reasonable wear and tear excepted.
21.32 Entire Agreement. This Lease and the Exhibits attached hereto
contain the entire agreement between Landlord and Tenant concerning the Leased
Premises and there are no other agreements, either oral or written.
Additionally, Tenant warrants and represents that it has not relied on any
representation of any person or entity claiming to be a representative or agent
of Landlord with respect to the condition of either the Leased Premises or the
Real Estate that is either not set forth in this Lease or contrary to anything
set forth in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LESSOR:
MAPLE PROPERTIES COMPANY, L.L.C.
an Illinois limited liability company
By: American Properties Corporation, its manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, President
LESSEE:
DELICIOUS BRANDS, INC.
an Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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