Exhibit 10.31
SUBLEASE - THE PHONE STOP, INC.
May 14,1999
To whom it may concern:
The Phone Stop Inc. is leasing suits 207 at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. in
Elmhurst, from American Telephone and Computer on a month-to-month
basis for $5685.75 per/mo,
Sincerely,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
FIRST AMENDMENT DATED JUNE 01, 1999
FIRST AMENDMENT to Lease dated May 3, 1999, by and between ▇▇▇▇▇▇/▇▇▇▇▇▇▇
Management Co., as agents for the beneficiaries of LaSalle National Bank, as
successor trustee to LaSalle National Trust, N.A, as Trustee under Trust #107031
(hereinafter known as "Lessor" and Chicago Telecom, Inc., (hereinafter known as
"Lessee") for the premises known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Suites 207, 208, 209,
Elmhurst, Il (hereinafter known as the "Premises") and Lease dated May 13, 1999,
(hereinafter known as the "Lease").
Lessor and Lessee agree that the Lease made between Lessor and Lessee concerning
the "Premises" is hereby amended as follows:
1. Terms of Lease are changed as follows:
PERIOD PER MONTH ANNUAL
------ --------- ------
JULY 15, 1999 - JULY 31, 1999 NO RENT N/A
AUGUST 01, 1999 - JUNE 30, 2000 $5,685.75 $ 68,228.88
JULY 01, 2000 - JUNE 30, 2001 $5,799.47 $69,593.46
JULY 01, 2001 - JUNE 30, 2002 $5,915.46 $70,985.52
JULY 01, 2002 - JUNE 30, 2003 $6,3003.77 $72,405.24
JULY 01, 2003 - JUNE 30, 2004 $6,154.35 $73,852.20
2. Except as provided herein, the terms and conditions of the original
Lease dated May 13, 1999 are confirmed and are incorporated herein.
IN WITNESS HEREOF, the Lessor and Lessee have executed this Second Amendment to
Lease this 18th day of June, 1999.
LESSOR: LESSEE:
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co., Chicago Telecom, Inc.
as agents for the beneficiaries
of LaSalle National Bank, as
successor trustee to LaSalle
National Trust, N.A., as Trustee
under Trust # 107031
BY: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- ---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ITS: CORPORATE PRESIDENT
LEASE SUMMARY
MULTI-TENANT BUILDING LEASE
Lessor: ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co., as agents for the beneficiaries of
LaSalle National Bank, as successor trustee to
LaSalle National Trust , N.A., as trustee under Trust #107031
Lessee: Chicago Telecom, Inc.
---------------------
Lease Dated: May 13, 1999
Leased Premises: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇/▇▇▇/▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Specified Use: Office & Warehouse
------------------
Lessee's Square Footage: 5054 Square Feet
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Term: June 15, 1999 - May 31, 2004
Occupancy: June 15, 1999 - May 31, 2004
Monthly Rental: See Page 2
Additional Rental:
Taxes in excess of - $.87 per square foot.
Common Area Maintenance costs in excess of $.66 per square foot.
HVAC Maintenance costs in excess of $.40 per square foot.
Security Deposit: $5685.75, PLUS GUARANTY BY CARNEGIE INTERNATIONAL CORPORATION
-------------------------------------------------------------
Lessee Pro Rata Share 3.56%
Total Building Area: 142,095 Square Feet
-------------------
Rent Payments To: ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co.
P. 0. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(The above is a brief summary of the provisions in the attached lease, but the
provisions in the attached lease are controlling.)
PLEASE INITIAL
Lessor, Lessee
--------------
MULTI-TENANT BUILDING LEASE
THIS LEASE, dated this 13th day of May 1999 , by and between ▇▇▇▇▇▇/▇▇▇▇▇▇▇
Management Co., as agents for the beneficiaries of LaSalle National Bank, as
successor trustee to LaSalle National Trust, N.A., as trustee under Trust
#107031 hereinafter referred to as "Lessor" and Chicago Telecom, Inc.
hereinafter referred to as "Lessee".
WITNESSETH
Lessor, in consideration of the rents and covenants hereinafter set forth,
hereby leases to Lessee and Lessee hereby accepts, that certain space shown and
designated on the floor plan attached hereto and made a part hereof as Exhibit
A (the "Premises"), located in the Building known and described as ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇/▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Building"). The land
including all appurtenant easement areas upon which the Building is located is
hereinafter referred to as the "Property".
TO HAVE AND TO HOLD for a term ("the Lease Term") of, Five (5) Years commencing
on the 15th day of June, 1999, and ending on the 31st day of May 2004, unless
sooner terminated, as provided herein, subject to the covenants and agreements
hereinafter contained.
ARTICLE I. BASE RENT:
1.1 In the event the Lease Term does exceed five (5) years, Lessee shall pay to
Lessor annual Base Rent of See Below in equal monthly installments of See Below
each in advance on the first day of each and every calendar month during the
Lease Term. If the Lease Term commences on a day other than the first day of a
calendar month, or ends on a day other than the last day of a month, then the
Base Rent for such fractional month shall be prorated on the basis of 1/365th of
the annual Base Rent for each day of such fractional month. Base Rent shall be
payable without any demand therefore and without any deductions or set-offs
whatsoever.
PERIOD PER MONTH ANNUAL
June 15, 1999 - June 30, 1999 No Rent N/A
July 01, 1999 - May 31, 2000 $5685.75 $68,228.88
June 01, 2000 - May 31, 2001 $5799.47 $69,593.46
June 01, 2001 - May 31, 2002 $5915.46 $70,985.52
June 01, 2002 - May 31, 2003 $6033.77 $72,405.24
June 01, 2003 - May 31, 2004 $6154.35 $73,852.20
ARTICLE 2. ADDITIONAL RENT DEFINITIONS:
For purposes of this Article 2, the parties hereto agree upon the following
Definitions:
2.1 The term "Lease Year" shall mean each of those calendar years commencing
with and including the year during which the Lease Term commences, and ending
with the calendar year during which the Lease Term (including any extensions or
renewals) terminates.
2.2 The Term "Taxes" shall mean real estate taxes, assessments, sewer rents,
rates and charges, transit taxes, taxes based upon the receipt of rent, and any
other federal, state or local government charge, general special, ordinary or
extraordinary, foreseen or unforeseen, of any kind and nature whatsoever (but
not including income or franchise taxes or any other taxes imposed upon or
measured by Lessor's income or profits, unless the same shall be imposed in lieu
of real estate taxes), which may now or hereafter be levied or assessed against
the Property. Taxes shall also include attorney's fees and other expenses
reasonably incurred by Lessor for the purpose of obtaining reductions in the
Taxes previously described above. In the case of special taxes or assessments
which may be payable in installments, only the amount of each installment due
and payable during a Lease Year shall be included in "Taxes" for that year.
"Taxes" shall also include any personal property taxes relating to Lessor's
personal property located on the Property and used in connection with the
operation and maintenance thereof.
2.3 The term "Excess Taxes" shall mean the amount of Taxes for the applicable
Lease Year in excess of the sum of $.87 per square foot of the Building.
2.4 The term "Common Area Maintenance Costs" (sometimes referred to herein as
"CAM Costs") shall mean all costs or expenses of any kind or nature reasonably
incurred for the applicable Lease Year for the upkeep, maintenance, repair,
replacement and operation of the Premises, Building and Property or any or all
of them in any combination, in first class condition and operation as determined
in accordance with Lessor's regular practices, including but not limited to,
property insurance premiums (all risk in an amount equal to the full replacement
value), Liability Insurance, rental abatement insurance, (including additional
rental and taxes for one year), snow removal, landscaping maintenance,
maintenance repair and replacement costs, electricity, water, sewer, gas, and
other utility
charges, fuel, lighting, window washing, trash (if not separately arranged) and
rubbish removal, common area maintenance clean up, reasonably allowable, wages
payable to employees of Lessor whose duties are connected with the upkeep,
maintenance, repair or operation of all or any part of the Premises, Building,
and property, amounts paid to contractors, subcontractors and material men for
work or services performed and materials supplied in connection with the
maintenance, repair, replacement and operation of all or any part of the
Premises, Building and Property. All services, supplies, repairs, replacement or
other expenses or maintaining, repairing and replacing all or any part of the
Building and the Property, other mechanical systems, fire alarm maintenance,
fees and other security costs including telephone charges, central station and
police and fire station connection and periodic charges for landscaping, snow
removal, parking lot maintenance and such other expenses as may be ordinarily
incurred in the maintenance, repair, replacement and operation of all or any
part of the Property and the Building not specifically set forth herein. The
term "Common Area Maintenance Costs" shall not include Taxes as defined above,
any improvements to the Building or Property other than replacement costs
required for normal maintenance and repair, and shall not include repairs,
restoration or other work occasioned by fire, windstorm or other insured
casualty losses, expenses incurred in leasing or procuring tenants, leasing or
real estate brokers commissions, advertising expenses, expenses for renovating
space for new tenants, legal expenses incurred in enforcing the terms of any
lease, interest or principal payment on any mortgage or other indebtedness of
Lessor, compensation paid to any employee of Lessor, above the grade of Building
superintendent or depreciation allowance or expense. Notwithstanding the
foregoing, in the event Lessor installs equipment on or makes improvements or
alterations to the Building or Property for the purpose of reducing energy
costs, maintenance costs or other Common Area Maintenance Costs, Lessor may
include in Common Area Maintenance Costs a reasonable charge for depreciation of
the same so as to amortize such investment over the reasonable life of such
equipment, improvement or alteration on a straight life basis not to exceed 10
years, provided said amount is less than the savings. The term "Common Area
Maintenance Costs" shall not include any amount separately charged to any
individual Lessee. The term "Common Area Maintenance Costs" shall mean the
amount of Common Area Maintenance Costs for the applicable Lease Year in excess
of the sum of S.66 per square foot. Roof, structural and parking lots are not
Common Area Maintenance Costs.
2.5 Lessee shall pay for the cost of operating the HVAC system including the
cost of a repair and maintenance contract with a reliable service company for,
on an annual or other basis, the maintenance of the HVAC systems. Lessor will
contract with such service company and Lessee shall pay said costs involved
either to Lessor or as Lessor shall direct. Replacement costs of heat
exchangers, condensers and compressors will be Lessor's expense and shall not be
part of said HVAC maintenance contract. Lessee agrees to cooperate with any
service people and make the Premises available to them on a reasonable basis.
Lessee will not do, suffer or commit any act or omission, whether upon the
Premises or otherwise, which might or would result in voiding or impairing the
obligations of any such maintenance contract. The term "HVAC Maintenance Costs"
shall mean the amount of HVAC maintenance costs for the applicable Lease Year in
excess of the sum of $.40 per square foot.
2.6 The term "Lessee's Pro Rata Share" shall mean Three & 56/100ths percent
3.56%) of the Excess Taxes imposed or levied against the Property for the
applicable Lease Year, and the Common Area Maintenance and HVAC Costs paid or
payable by Lessor in any Lease Year. Said percentage has been agreed upon by the
parties hereto after due consideration of the area of the Premises compared to
the area of the Building and other factors deemed relevant to the parties
hereto, including but not limited to, the location type, and quality of the
Premises. The parties agree that the Building contains 142,095 square feet.
ARTICLE 3. ADDITIONAL RENT: In addition to the Base Rent payable by Tenant under
the provisions of Article I hereof, Lessee shall pay to Lessor "Additional Rent"
as hereinafter provided for in this Article 3.
3.1 As to each Lease Year Lessor at its election may estimate for each such
Lease Year (1) the total amount of Excess Taxes, Excess CAM and Excess HVAC
costs: and (ii) Lessee's Pro Rata share thereof. Said estimate shall be in
writing and shall be delivered or mailed to Lessee at the Premises.
3.2 Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata Share
of Excess Taxes, Excess CAM and Excess HVAC costs for each Lease Year, so
estimated, in equal monthly installments, in advance on the I st day of each
month during each applicable Lease Year. In the event that said estimate is
delivered to Lessee after the 1st day of January of the applicable Lease Year,
said amount, so estimated, shall be payable as Additional Rent, in equal monthly
installments, in advance, on the 1st day of each month over the balance of such
Lease Year with the number
of installments being equal to the number of full calendar months remaining in
such Lease Year.
3.3 From time to time during any applicable Lease Year, Lessor may re-estimate
the amount of Excess Taxes, Excess CAM and Excess HVAC costs and Lessee's Pro
Rata Share thereof, and in such event Lessor shall notify Lessee, in writing, of
such re-estimate in the manner above set forth and shall fix monthly
installments for the then remaining balance of such Lease Year in an amount
sufficient to pay the re-estimated amount over the balance of such Lease Year
after giving credit for payments made by Lessee on the previous estimate.
3.4 During, and upon completion of each Lease Year, Lessor shall determine the
actual amount of Excess Taxes, Excess CAM and Excess HVAC for such Lease Year
and Lessee's Pro Rata Share thereof and shall deliver a written certification of
the amounts thereof to Lessee. If Lessee had paid less than Lessee's Pro Rata
Share of Excess Taxes, Excess CAM and Excess HVAC for any Lease Year, Lessee
shall pay the balance of Lessee's Pro Rata Share of the same within ten (10)
days after the receipt of such statement. If Lessee had paid more than Lessee's
Pro Rata Share of Excess Taxes, Excess CAM and Excess HVAC for any Lease Year,
Lessor shall either (1) refund such excess, or (ii) credit such excess against
the most current monthly installment or installments due Lessor for its estimate
of Lessee's Pro Rata Share of such excess costs for the next following Lease
Year. A pro rata adjustment shall be made for a fractional Lease Year occurring
during the term of this Lease or any renewal or extension thereof based upon the
number of days of the term of this Lease during said Lease Year as compared to
three hundred sixty-five (365) days and all additional sums payable by Lessee or
credits due Lessee as a result of the provisions of this Article 3 shall be
adjusted accordingly.
Further, Lessee shall pay, also as Additional Rent, any tax or excise on rents,
gross receipts tax, or other tax (other than Lessor's income taxes), however
described, which is levied or assessed by the United States of America or the
state in which the Property is located or any political subdivision thereof,
against Lessor in respect to the Base Rent, Additional Rent, or other charges
reserved under this Lease or as a result of Lessor's receipt of such rents or
other charges accruing under this Lease.
ARTICLE 4. OVERDUE AMOUNTS - RENT INDEPENDENT:
Any installments of Base Rent, Additional Rent, or other charges to be paid by
Lessee accruing under the provisions of this Lease, which shall not be paid ten
(10) days after due date, shall bear interest at the rate of Eighteen percent
(18%) per annum. from the date when the same is due until the same shall be
paid, but if such rate exceeds the maximum interest rate permitted by law, such
rate shall be reduced to the highest rate allowed by law under the
circumstances. Provided, however, a minimum late rent charge in the amount of
fifty ($50) dollars shall be due and payable if any payment of Annual Base Rent
or Additional Rent is not paid on or before ten (10) days after the due date
thereof. In additional to this late rent charge, Lessee shall pay Lessor as
Additional Rent on the next rental due date a returned check charge of the sum
of fifty ($50) dollars for each of Lessee's checks, if any, which may be
returned by Lessee's bank for insufficient funds or other refusal by Lessee's
bank to pay upon presentation of Lessee's check. Lessee covenants to pay the
Base Rent and the Additional Rent are independent of any other covenant,
condition, provision or agreement herein contained, and shall survive the
termination of this Lease.
ARTICLE 5. POSSESSION OF PREMISES:
5.1 If Lessor is unable to give possession of the Premises on the date of the
commencement of the term because the construction of the Building or the
completion of the Premises has not been sufficiently completed to make the
Premises ready for occupancy, or for any other reason, except due to the
negligence of Lessor, Lessor shall not be subject to any claims, damages or
liabilities for the failure to give possession on said date, provided that the
rent reserved and covenant to pay rent shall not commence until possession of
the Premises is given or the Premises are ready for occupancy, whichever is
earlier. Failure to give possession on the date of commencement of the term
shall in no way affect the validity of this Lease or the obligations of Lessee
hereunder, nor shall the same be construed in any way to extend the expiration
date of the term.
5.2 If Lessee is given and accepts possession of the Premises on a date earlier
than the date above specified for commencement of the term, the rent reserved
herein and all covenants, Agreements and obligations herein and the term of this
Lease shall commence on the date that possession of the Premises is given to
Lessee.
ARTICLE 6. SECURITY DEPOSIT: As additional security for the full and prompt
performance by Lessee of all of Lessee's obligations hereunder, Lessee has upon
execution of this Lease paid to Lessor the sum of Five Thousand Six Hundred
Eighty Five & 75/ 100 Dollars ($5685.75 ') which sum may be applied by Lessor
for the purpose of curing any default or defaults, under this Lease. If Lessee
has not defaulted hereunder or if Lessor has not applied this security deposit
to any defaults, then this security deposit or any portion thereof not so
applied by Lessor shall be paid in cash to Lessee at the time of the termination
of this Lease or any extension or renewals thereof. If the whole or any part of
said security deposit is used or applied for the curing of any defaults, Lessee
shall immediately deposit with Lessor an amount of cash equal to the amount so
used or applied so that Lessee shall at all times have on deposit with Lessor an
amount equal to such original deposit as security as aforesaid. In no event
shall Lessee use such security deposit as a payment for Rent or Additional Rent,
and any attempted use of such deposit shall constitute a default under this
Lease, plus Guaranty by Carnegie International Corporation.
ARTICLE 7. UTILITY SERVICES:
7.1 Lessee shall promptly pay for all public utilities, including, without
limitation, electricity and water, rendered or furnished and metered to the
Leased Premises during the Term of this Lease.
7.2 Lessor shall furnish heating and air-conditioning units for the Premises.
Lessee shall be responsible for any damage to said units arising out of its
negligence or misuse. Lessee shall pay for the cost of operating said units.
Lessee shall clean the Premises.
7.3 Lessor shall not be liable for damages, by abatement of rent or otherwise,
for Interruption or failure of, or delay in, furnishing any service or utility,
whether the responsibility of Lessor or of others, when the same is occasioned
by causes beyond the reasonable control of Lessor.
ARTICLES. USE: Office & Warehouse
8.1 Lessee may use the Premises for the Specified Use but Lessee shall not
injure, overload, deface or otherwise harm the Property, Building, or the
Premises nor permit the same, nor commit any nuisance; nor permit the emitting
of any objectionable noise or odor; nor bum any trash or refuse thereon or
therein, nor sell, display, distribute or give away any alcoholic liquors or
beverages; nor make or permit any use of the Premises which is improper,
offensive, or contrary to any law or ordinance, or which will invalidate or
increase the cost of any of the Lessor's insurance (including the keeping or
storage of any article dangerous, inflammable or explosive character) or which
would increase the danger of fire in the Premises or in Building in which the
same is located; nor obstruct or permit he obstruction of driveways, walks,
parking areas and other common areas on the Property.
8.2 Lessee shall not place any painting or exterior sign, placard, or other
advertising media, banners, pennants, aerials, antennas, projections, awnings,
or devices, of any kind whatsoever, on the Property or on the exterior of the
Building, except a sign on the front door of the Premises, which sign shall
consist of letters of no more than four inches in height and the design and
conformity of which shall be approved in writing by Lessor prior to
installation. The installation of such sign shall be accomplished by the sign
company regularly employed by Lessor but at Lessee's expense.
8.3 In the event that Lessee's use of the Premises result in an increase of
Lessor's insurance, and Lessor allows said use, Lessee shall pay Lessor said
increase in insurance upon presentation of a receipt for a ▇▇▇▇ from Lessor for
said increase in insurance and said increase of insurance shall be deemed to be
Additional Rent.
ARTICLE 9. CONDITION AND MAINTENANCE OF THE PROPERTY, BUILDING AND THE PREMISES:
9.1 Repairs and Maintenance
Tenant Repairs and Maintenance. Lessee shall, at its expense, throughout the
Term, maintain and preserve, in first lass condition, the Premises and the
fixtures and appurtenances therein (including but not limited to, the Premises'
plumbing and HVAC systems and excluding, however, those components of the
Premises for which Lessor is expressly responsible under the terms of this
Lease, Lessee shall also be responsible for all repairs and replacements
(whether structural or non-structural; interior or exterior; and ordinary or
extraordinary), in and to the Premises and the Property and the facilities and
systems, thereof if and to the extent that the need for such repairs or
replacements arises directly or indirectly from (a.) the performance or
existence of any Alterations, (b.) the installation, use or operation of
Lessee's Property in the Premises, (c.) The moving of Lessee's Property in or
out of the Premises and/or the Property, or (d.) Any act, omission, misuse, or
neglect of Lessee or any of its subtenants or its or their respective employees,
agents, contractors, invitees, or other entering into the Premises by act or
omission of Lessee or any subtenant. Without limiting the generality of the
foregoing, Lessee, at its expense, shall promptly place or repair all scratched,
damaged, or broken doors and glass in and about the Premises and floor coverings
in the Premises and repair and maintain all sanitary and electrical fixtures
therein, provided, however, that all replacements, materials and methods of
replacement shall be approved in writing by Lessor prior to installation. Any
repairs or replacements required to be made by Lessee to the mechanical,
electrical, sanitary, HVAC, or other systems of the Property or Premises shall
be performed by appropriately licensed contractors approved by Lessor which
approval shall not be unreasonably withheld. All such repairs or replacements
shall be subject to the supervision and control of Lessor or agent, and all
errors and replacements shall be made with materials of equal or better quality
than the items being repaired or replaced.
9.2 Except for repairs required in Article 9.3 hereof to be performed by Lessor,
Lessee agrees at its sole cost and expense, to keep Leased Premises, equipment,
facilities, light bulbs, ballasts and fixtures therein (including that in
windows, door and skylights), clean and in good condition and to replace any
glass which may be damaged or broken, with glass of the same quality; to make
all repairs, alterations, additions or replacements required by any law or
ordinance or any order or regulation of any public authority because of Lessee's
use of Leased Premises and to keep the Premises equipped with all safety
appliances required because of such use and to furnish any licenses and permits
required for any such use and to comply with the orders and regulations of all
governmental authorities. Lessee also shall repair any damage to the property or
Building caused by Lessee's fault or negligence.
9.3 Lessor Repairs. Notwithstanding anything contained herein to the contrary,
Lessor (and not Lessee) shall be responsible for the repair, replacement and
restoration of the foundation, exterior and interior load-bearing walls, roof
structure and roof covering and tuck pointing of the Property; provided,
however, that in the event that any such repair, replacement of restoration is
necessitated by any or all of the matters set forth in Article 9. 1, (a.), (b.),
(c.) or (d.) collectively.("Lessee Necessitated Repairs), then Lessee shall be
required to reimburse Lessor for all costs and expenses that Lessor incurs in
order to perform such tenant Necessitated Repairs, and such reimbursement shall
be paid, in full, within ten (10) days after Lessor's delivery of demand
therefore. Lessor agrees to commence the repairs, replacements or restoration
descried in this section 9.3 within a reasonable period of time after receiving
from Lessee written notice of the need for such repairs.
9.4 The Lessee at its sole expense shall comply with all laws, orders and
regulations of Federal, State and Municipal authorities and with any direction
of any public officer, pursuant to law, which shall impose any duty upon the
Lessor or the Lessee with respect to the leased property. The Lessee, at its
sole expense, shall obtain all licenses or permits which may be required for the
conduct of its business within the terms of this Lease, or for the making of
repairs, alterations, improvements, or additions and the Lessor, where
necessary, will join with the Lessee in applying for all such permits or
licenses.
9.5 Lessee shall have the right during the term of this Lease, to make, at its
sole expense, interior nonstructural changes and alterations in or of the
Premises, subject, however, to Lessor's prior written consent (which consent
shall not be unreasonably withheld) and subject in all cases to the following:
9.5.1. Any change or alteration shall be done in a good and workmanlike manner
and in compliance with all applicable permits and authorization and building and
zoning laws, and all other laws, ordinances, rules, regulations and requirements
of all Federal, State and Municipal governments, departments, commissions,
boards and officers, in accordance with the orders, rules and regulations of the
National Board of Fire Underwriters or any other body exercising similar
functions.
9.5.2. The cost of any change or alteration shall be paid, in cash, or its
equivalent and shall be subject to such
other requirements as Lessor may reasonably impose, so that the Premises,
Building, and the property shall at all times be free of liens for labor and
materials supplied or claimed to have been supplied to the Premises.
9.5.3. Workers Compensation insurance covering all persons employed in
connection with the work and with respect to whom death or bodily injury claims
could be asserted against Lessor or its beneficiaries, as well as mortgagees of
the Premises, shall be maintained by Lessee at Lessee's sole cost and expense at
all times when any work is in process in connection with any change, or
alteration such insurance shall be in a company or companies of recognized
responsibility licensed to do business in Illinois, and all policies or
certificates therefore issued by the respective insurers bearing notations
evidencing the payment of premiums or accomplished by other evidence
satisfactory to Lessor of such payment, shall be delivered to Lessor.
9.5.4. Any and all alterations including wall covers, special paints or company
logo shall be removed before return of demised premises to Lessor at the
termination of the Lease Term. At the Lessor's option, such improvements may
remain so long as this is indicated in writing by Lessor or his bona fide agent.
Thus, the Premises shall be tendered to the Lessor as they were at the time of
tenancy.
9.6 HAZARDOUS MATERIALS:
The Lessee shall not use any materials or substances for which Material Safety
Data Sheets ("MODS") are required under OSHA's Hazardous Communication Standard
(29 CAR 1910.1200), as amended. The Lessee covenants and agrees (I) not to use
materials or substances for which an MODS is required, (ii) the Lessee is
absolutely prohibited from disposing of any Hazardous Materials, as hereinafter
defined, on the Premises and/or the Property, (iii) the Lessee shall comply with
all Environmental Laws, as hereinafter defined, and (iv) the Lessee shall
immediately notify the Lessor of any release of any Hazardous Materials at the
Premises and/or the Property.
For purposes hereof "Environmental Laws" shall mean and include all federal,
state and local environmental protection, occupational, health, safety and
similar laws, ordinances, restrictions, licenses, and regulations, including,
without limitation, the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251
et seq .), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq . ),
Safe Drinking Water Act (42 U.S.C. Sec 30OF et M ), Toxic Substances Control Act
( 15 U. S. C. Sec. 2601 et. seq.) (Environmental Response, Compensation and
Liability Act(49 U. S. C. Sec. 9601 et. seq.), Hazardous Materials
Transportation Act (49 U.S.C. Section 1802 et. seq.), the Illinois Environmental
Protection Act (I I I.Rev.Stat. ch. 111 1/2, par. 1001 et. seq.), and other
comparable federal, state or local laws, statutes, ordinances, order, decrees,
rules and/or regulations, regulating, relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material as now or at any time hereafter in effect.
For purposes hereof "Hazardous Materials" shall mean and include any hazardous,
toxic or dangerous waste, substance or material, contaminant or pollutant
defined as such in or for purposes of the Environmental Laws.
ARTICLE 10. INDEMNIFICATION AND RELEASE OF CLAIMS:
10.1 Lessee will hold Lessor and its beneficiaries, if any, and the management
of the Building harmless and indemnified at all times against any loss, damage,
cost, expense or liability resulting to any person or property by reason of any
use which may be made of the Leased Premises or any part thereof, or by reason
of any act or thing done or omitted to be done in, upon or about the Premises or
any part thereof including, without limitation, the sale, gift or use of any
alcoholic beverages; and Lessee will hold Lessor and the property, Building and
the premises harmless and free and clear of any and all claims, demands,
penalties, liabilities, judgments, costs and expenses, including reasonable
attorney's fees, arising in connection with any use of the Premises.
10.2 Neither Lessor or Lessee shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons
occurring on the property or in the Building (includes the Premises), or in any
manner growing out of or connected with the Lessee's use and occupation of the
Premises, Building and the property, or the condition thereof, whether or not
caused by the negligence or other fault of Lessor or Lessee, or of their
respective agents, employees, sub-tenants, licenses, or assignees. This release
shall apply only to the extent that such business interruption, loss or damage
to property or injury to or death of persons is covered by insurance, regardless
of whether such insurance is payable to or protects Lessor or Lessee, or both.
Nothing in Article 10.2 shall
be construed to impose any other or greater liability upon either Lessor or
Lessee than would have existed in the absence of Article 10.2. This release
shall be in effect only so long as the applicable insurance policies contain a
clause to the effect that this release shall not affect the right of the insured
to recover under such policies. Such clauses shall be obtained by the parties
whenever possible. The release in favor of Lessor contained herein, is in
addition to, and not in substitution for, or in diminution of the hold harmless,
and indemnification provisions of Article 10. 1 hereof.
ARTICLE 11. LESSEE INSURANCE:
11.1 At all times subsequent to Lessee taking possession of the Premises, Lessee
shall, at its sole cost and expense maintain:
11.1.1 Comprehensive General Public Liability Insurance against claims for
personal injury, death or property damage occurring in connection with the use
and occupancy of the Leased Premises, naming Lessee and Lessor and Lessor
beneficiaries, if any, management of the Building, and holders of all mortgages
on the Premises, as the additional insured, which limits of liability not less
than the following, unless otherwise agreed in writing by Lessor.
Bodily Injury: One Person $1,000,000
Aggregate $2,000,000
Property Damage: One Accident $ 500,000
11. 1. 2 Fire and Extended coverage Insurance (contents broad form) on Lessee's
personal property located in the Premises in amounts reasonable deemed adequate
by Lessee to fully insure such personal property.
11.2 With respect to policies which Lessee is required to procure and maintain
hereunder:
11.2.1 Each such policy shall contain an agreement or endorsement that it will
not be canceled by insurer without at least ten (10) days' prior written notice
to Lessor and all mortgage holders.
11.2.2 Each such policy or a certificate therefore issued by insurer hereunder,
shall be deposited by Lessee with Lessor.
11.2.3 If Lessee furnishes any insurance in the form of a blanket policy, it
will furnish satisfactory proof that such blanket policy complies in all
respects with the provisions of this Lease, and that the coverage thereunder is
at least equal to the coverage which would be provided under a separate policy
covering only the Premises.
11.2.4 Each such policy shall be issued by insurers of recognized responsibility
licensed to do business in Illinois.
11.2.5 Not less than (10) days prior to the expiration date of any such policy,
Lessee will furnish Lessor with a new policy or certificate therefore or a
renewal thereof, in substitution of the expiring policy.
11.2.6 Lessee will not do, suffer or permit any act or omission, whether upon
the Premises or otherwise, which might or would result in voiding or impairing
the obligation of such policy of insurance.
ARTICLE 12. REPAIR OF BUILDING IN THE EVENT OF FIRE OR CASUALTY:
12.1 In the event the Leased Premises or any structures or improvements thereon
are damaged or destroyed during the term thereof, Lessor shall determine in its
sole discretion, whether to promptly cause the said damage or destruction to be
repaired and if so determined, shall cause the Premises to be restored to a
condition substantially equivalent to the existing immediately preceding the
occurrence. If so decided, such repair and restoration shall be at Lessor's
expense, excepting the cost of replacing or repairing Lessee's fixtures or
personal property.
12.2 Lessor shall determine whether to repair or not within sixty (60) days from
the date of the damage or destruction. In the event Lessor decides to repair,
Lessor shall have one hundred twenty (120) days from the date of the decision to
complete repairs. In the event Lessor determines not to repair, then both Lessor
and Lessee shall at
such time have the option to terminate this Lease. All insurance proceeds which
relate to the Building and improvements and not Lessee's contents in excess of
the costs to restore and repair shall be the property of the Lessor. Lessor
shall ▇▇▇▇▇ the rent payable from the date of loss and during the period in
which repairs and restoration are taking place. If Lessor decides not to repair,
the Lease shall terminate in the 30 days following notice from Lessor and all
amounts payable by Lessee under this Lease shall be pro-rated to the last date
that the Lessee shall have had use and occupancy of the Premises.
ARTICLE 13. CONDEMNATION:
13.1 If the whole of the Premises shall be taken for any public or quasi-public
use under statute or by right of eminent domain or by private purchase in lieu
thereof, then this Lease shall automatically terminate as of the date that title
shall be taken. If any portion of the Building in which the Premises are located
shall be taken so as to render the Premises unusable for the Specified Use for
which the Premises were leased, then either Lessor or Lessee may terminate this
Lease upon the giving of written notice to the other party, within sixty (60)
days from the date of such taking. Any notice given within said sixty (60) day
period shall not be effective until the expiration of thirty (30) days after the
giving of said notice as provided in Article 21 hereof. Rent shall be abated
from the date the Leased Premises are no longer used or usable by Lessee.
13.2 If any part of the Premises shall be so taken and this Lease shall not
terminate under the provisions of Article 13.1 hereof, then the rent payable
under this Lease shall be equitably apportioned according to the space so taken,
and if the reduction in rental cannot be agreed upon by the parties that matter
shall be submitted to arbitration and Lessor shall, at its own cost and expense,
restore the remaining portion of the Premises to the extent necessary to render
it reasonably suitable for the purpose for which it was leased and shall make
all repairs to Building in which the Premises are located to the extent
necessary to constitute building a complete architectural unit, provided that
the cost thereof shall not exceed the proceeds of Lessor's condemnation award.
13.3 All compensations awarded or paid upon such a total or partial taking of
the Premises shall belong to and be the property of Lessor without any
participation by Lessee, provided, however that nothing contained herein shall
be construed to preclude Lessee from prosecuting any claim against the
condemning authority in such condemnation proceedings for loss of business, or
depreciation to, damage to, or cost of removal of, or for the value of stock,
trade fixtures, furniture and other personal property belongings to Lessee;
provided however, that no such claim shall diminish or otherwise adversely
affect Lessor's award or the award to any fee mortgages.
ARTICLE 14. ASSIGNMENT AND SUBLETTING:
14.1 Lessee shall not, without the prior written consent of Lessor, which
consent shall not be unreasonably withheld: (1) transfer, pledge, mortgage or
assign this Lease or any interest hereunder; (ii) permit any assignment of this
Lease by voluntary act, operation of law or otherwise; (iii) sublet the Premises
or any part thereof; or (iv) permit the use of the Premises by any parties other
than Lessee, its agents and employees. Lessee shall, by notice in writing,
advise Lessor o its intention from, on and after a stated date (which shall not
be less than thirty (30) days after date of Lessee's notice), to assign this
Lease or to sublet any part or all of the Premises for the balance or any part
of the term. Lessee's notice shall include all of the terms of the proposed
assignment or sublease and shall state the consideration therefore.
14.2 In such event, Lessor shall have the right to be exercised by giving
written notice to Lessee within ten (10) days after receipt of Lessee's notice,
to recapture the space described in Lessee's notice and to enter into a direct
lease with any such proposed assignee or sub-lessee. Effective on the
commencement date of such direct lease, this Lease shall be canceled and
terminated with respect to the space therein described.
14.3 Lessee's notice shall state the name and address of the proposed assignee
or subtenant and a true and complete copy of the proposed assignment or sublease
shall be delivered to Lessor with Lessee's notice.
14.4 If Lessee's notice shall cover all of the Premises, and Lessor shall have
exercised its foregoing recapture right, the term of this Lease shall expire and
end on the commencement date of any direct lease entered into by Lessor with
such proposed sub-lessee or assignee as fully and completely as if that date had
been herein definitely
fixed for the expiration of the term. If, however, this Lease shall be canceled
with respect to less than the entire Premises, Base Rent and Additional Rent
reserved herein shall be adjusted on the basis of the number of square feet
retained by Lessee in proportion to the number of square feet contained in the
Premises, as described in this Lease, and this Lease as so amended shall
continue thereafter in full force and effect.
14.5 If Lessor, upon receiving Lessee's notice with respect to any such space,
shall not exercise its right to recapture as aforesaid, Lessor will not
unreasonably withhold its consent to Lessee's assignment of the Lease or
subletting such space to the party identified in Lessee's notice.
14.6 Any subletting or assignment hereunder shall not release or discharge
Lessee of or from any liability, whether past, present or future, under this
Lease, and Lessee shall continue fully liable hereunder. The subtenant or
subtenants or assignee shall agree in a form satisfactory to Lessor to comply
with and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease to the extent of the space sublet or assigned, and
Lessee shall deliver to Lessor promptly after execution, an executed copy of
each such sublease or assignment and an agreement of compliance by each such
subtenant or assignee.
14.7 Any assignment, transfer, or subletting of this Lease which is not in
compliance with the provisions of this Article 14 shall be of no effect and
void. Lessor's right to assign its interest in this Lease shall remain
unqualified.
ARTICLE 15. LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS:
15.1 Should Lessee at any time fail or omit to do any act or thing provided
under this Lease to be done by Lessee, Lessor may in its sole discretion after
ten (10) days advance written notice to Lessee, itself do or cause to be done
such act or thing, including the payment of any and all water rates and other
governmental impositions, any and all governmental permits and other licenses
fees and change, the cost of maintenance and operation, or any addition to or
alteration or repair or improvements in the Premises, any insurance premium, any
claim against or lien upon the Premises made or filed by any labor, supplier,
material-man, principal contractor, subcontractor, or other person, whether for
work, labor or service performed upon, or materials supplied to the Premises,
any public utility ▇▇▇▇ or charge and any and all other sums payable by Lessee
under this Lease.
15.2 All monies paid by Lessor pursuant to the provisions of Article 15.1 shall
be and constitute so much Additional Rent use hereunder from Lessee to Lessor to
be due and payable upon notice given by Lessor of the nature and amount thereof,
on the first day of the calendar month next succeeding the month during which
Lessor shall have given notice with interest upon any such amount at the
applicable maximum legal rate and if none, then at the rate of eighteen (18%)
percent per annum from the date of payment by Lessor until repayment to Lessor
by Lessee.
ARTICLE 16. CERTAIN RIGHTS RESERVED TO LESSOR:
Lessor reserves the following rights:
16.1 To have pass key to the Premises and no locks shall be changed without
prior written consent of Lessor.
16.2 To take any and all measures, including inspections, repairs, alterations
and improvements to the Premises, or to building as may be necessary or
desirable for the operation, safety, protection or preservation thereof,
provided that no such work shall permanently reduce the area rented by Lessee.
16.3 To show the Premises to prospective Lessees or brokers during the last six
months of the Term of this Lease (and if vacated during such period, to prepare
the Premises for occupancy) and to prospective purchasers at all reasonable
times, provided prior notice is given to Lessee in each case.
16.4 To designate and/or approve, prior to installation, all types of window
shades, blinds, drapes, awnings, window ventilators and other similar equipment,
and to control all internal lighting that my be visible from the exterior of
building.
ARTICLE 17. SUBORDINATION TO EXISTING AND FUTURE MORTGAGES
17.1 Unless otherwise directed in writing by the holder of any mortgage on the
property or Building, this Lease shall be subject and subordinate at all times
to the lien of any existing mortgage or mortgages which hereafter may be made a
lien on the property or Building; provided that so long as Lessee is not in
default under this Lease, its possession of the Premises and its rights and
privileges hereunder shall not be interfered with by the mortgagee or any
Purchaser upon a foreclosure of such mortgage. Although no instrument or act on
the part of the Lessee shall be necessary to effectuate such subordination, the
Lessee shall nevertheless execute and deliver further instruments subordinating
this Lease to the lien of any such mortgages as may be desired by the mortgagee,
provided the same acknowledges Lessee's rights as hereinbefore described. The
Lessee hereby appoints the Lessor its attorney- in- fact irrevocably to execute
and deliver any such instrument for the Lessee. Notwithstanding anything herein
provided to the contrary, this Lease shall not be subject or subordinate to any
junior mortgage or mortgages on the property and/or Building.
17.2 If any mortgagee or committed financier of Lessor should require, as a
condition precedent to the closing of any loan or the disbursal of any money
under any loan, that this Lease be amended or supplemented in any manner (other
than in the description of the Leased Premises, the terms, the purpose or the
Rent, Additional Rent or other charges hereunder), Lessor shall give written
notice thereof to Lessee, which notice shall be accompanied by a Lease
Supplement Agreement embodying such amendments or supplements. Lessee shall
within ten (10) days after the effective date of the Lessor's notice, either
consent to such amendments or supplements (which consent shall not be
unreasonably withheld) and execute the tendered Lease Supplement Agreement, or
deliver to Lessor a written statement of its reason or reasons for refusing to
so consent and execute. Failure of Lessee to respond within said ten (10) day
period shall be a default under this Lease without further notice. If Lessor and
Lessee are then unable to agree on a Lease Supplement Agreement satisfactory to
each of them and to the Lender within thirty (30) days after delivery of
Lessee's written statement, Lessor shall have the right to terminate this Lease
within sixty (60) days after the end of said thirty (30) day period.
ARTICLE 18. LESSOR'S REMEDIES:
18.1 If default shall be made in the payment of any money to be paid by Lessee
under this Lease: Provided THAT same is not cured within thirty (30) day's of
receipt of written notice to Lessee from Lessor, or default shall be made in the
performance of any of the other covenants or conditions which Lessee is required
to observe and perform, or if the interest of Lessee under this Lease shall be
levied on under execution or other legal process, or if any petition shall be
filed by or against Lessee to declare Lessee a bankrupt or to delay, reduce or
modify Lessee's debts or obligations, or if any petition shall be filed or other
action taken to reorganize or modify Lessee's capital structure if Lessee be a
corporation or other entity, or if Lessee be declared insolvent according to
law, or if any assignment of Lessee's property shall be made for the benefit of
creditors or if a receiver or trustee is appointed for Lessee or its property,
or if Lessee shall abandon the Premises during the term of this Lease, then
Lessor may treat the occurrence of any one or more of the foregoing events as a
breach of this Lease (provided that no such levy, execution, legal process or
petition filed against Lessee shall constitute a breach of this Lease if Lessee
shall vigorously contest the same by appropriate proceedings and shall remove or
vacate the same within thirty (30) days from the date of its creation, service
or filing) and thereupon, at its option, may, without notice or demand of any
kind to Lessee or any other person, have anyone or more of the following
described remedies in addition to all other rights and remedies provided at law
or in equity:
18.1.1 Lessor may terminate this Lease and forthwith repossess the Premises and
be entitled to recover forthwith as damages a sum of money equal to the balance
of the Term Rent then remaining unpaid hereunder, less the fair rental value of
the Premises for said period and any other sum of money and damages owed by
Lessee to Lessor.
18.1.2 Lessor may terminate Lessee's right of possession and may repossess the
Premises by forcible entry or detainer suit or otherwise, without demand or
notice of any kind to Lessee and without terminating this Lease, in which event
Lessor may, but shall be under no obligation so to do, re-let the same for the
account of Lessee for such rent and upon such terms as shall be satisfactory to
Lessor. For the purpose of such re-letting Lessor is authorized to decorate or
make any reasonable repairs, changes, alterations or additions in or to the
Premises that may be necessary or convenient and if Lessor shall fail or refuse
to re-let the Premises, or if the same are re-let and a sufficient sum shall not
be realized from such re-letting after paying all of the costs and expenses of
such decorations, repairs, changes, alterations and additions and the expense of
such re-letting and of the collection of the
rent accruing there-from to satisfy the rent provided for in this Lease to be
paid, then Lessee shall pay to Lessor as damages a sum equal to the amount of
the rental reserved in this Lease for such period or periods, or if the Premises
have been relet the Lessee shall satisfy and pay any such deficiency upon demand
therefore from time to time and Lessee agrees that Lessor may file suit to
recover any sums falling due hereunder from time to time, and that no delivery
or recovery of any portion due Lessor hereunder shall be any defense to any
subsequent action brought for any amount not therefore reduced to judgment in
favor of Lessor.
ARTICLE 19. SURRENDER OF POSSESSION:
19.1 Upon the termination of this Lease or upon the termination of Lessee's
right of possession, Lessee shall at once surrender possession of the Premises
to Lessor and remove all effects there-from, and if such possession is not
immediately surrendered Lessor may forthwith re-enter the premises and repossess
itself thereof as of its former estate and remove all persons and effects
there-from, using such force as may be necessary without being guilty of any
manner of trespass or forcible entry or detainer, without limiting the
generality of the foregoing, Lessee agrees to remove at the termination of the
Lease, Lessee's movable office furniture, trade fixtures and office equipment
and such alterations, improvements and additions as may be requested by Lessor.
If Lessee shall fail or refuse to remove all such property from the Premises,
Lessee shall be conclusively presumed to have abandoned the same and title
thereto shall thereupon pass to Lessor without any cost, either by set off,
credit, allowance or otherwise and Lessor may, at its option accept title to
such property or at Lessee's expense, may remove the same, or any part thereof,
in any manner that Lessor shall choose, and store the same without incurring
liability to Lessor or any other person. Lessee agrees to pay Lessor the cost of
restoring the walls, ceilings, floors and all light bulbs, ballasts, exit lights
and/or battery packs of the Premises to the same condition that existed prior to
the date of the commencement. Any unauthorized alterations, improvements and
additions made for Lessee's occupancy of the Premises shall also be removed and
the Premises repaired.
ARTICLE 20. HOLDING OVER:
20.1 In the event Lessee remains in possession of the Premises after expiration
of this Lease, and without the execution of a new Lease, but with Lessor's
written consent, it shall be deemed to be occupying the Premises as a Lessee
from month-to-month, subject to all the provisions, conditions and obligations
of this Lease insofar as the same can be applicable to a month-to-month tenancy,
except that the Base Rent shall be escalated to Lessor's then current Base Rent
for the Premises according to Lessor's then current Rental rate schedule for
prospective lessees. In the event Lessee remains in possession of the Premises
after expiration of this Lease and without the execution of a new Lease and
without Lessor's written consent, Lessee shall be deemed to be occupying the
Premises without claim of right and Lessee shall pay Lessor for all costs
arising out of loss or liability resulting from delay by Lessee in so
surrendering the Premises as above provided and shall pay as a charge for each
day of occupancy an amount equal to 150% of the Base Rent and Additional Rent
(on a daily basis then currently being charged by Lessor on new Leases in the
Building for space similar to the Premises.)
ARTICLE 21. NOTICES:
21.1 All notices to be given by one party to the other under this Lease shall be
in writing, mailed or delivered as follows:
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co.
To Lessor: 3 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ # ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Lessee: To the Premises, or to such other address subsequently
designated by notice sent by one party to the other.
Mailed notices shall be sent by United States certified or registered mail,
postage prepaid. Such notices shall have been deemed to have been given by
posting in the United States Mails, unless provided to the contrary herein.
ARTICLE 22. ESTOPPEL CERTIEFICATE:
Lessee agrees that from time to time, upon not less than five (5) days prior
request by Lessor, it will deliver a statement in writing certifying:
22.1 That this Lease is unmodified and in full force and effect (or if there
have been modifications that the Lease, as modified, is in full force and
effect);
22.2 The dates to which rent and other charged have been paid; and
22.3 That Lessor is not in default under any provisions of this Lease or, if in
default, the nature thereof in detail.
ARTICLE 23. MISCELLANEOUS:
23.1 All rights and remedies of Lessor under this Lease shall be cumulative and
none shall exclude any other rights and remedies, allowed by law.
23.2 Each of the provisions of this Lease shall extend to and shall, as the case
may require, bind or inure to the benefit, not only of Lessor and of Lessee, but
also of their respective heirs, legal representatives, successors and assigns,
provided this clause shall not permit any transfer, assignment or sublease
contrary to the provisions of Article 14 thereof.
23.3 All of the representations and obligations of Lessor are contained herein
and no modification, waiver or amendment of this Lease, or of any of its
conditions or provisions, shall be binding upon the Lessor unless in writing,
signed by Lessor, or by a duly authorized agent of Lessor.
23.4 This Lease may be executed in any number of counterparts. Each such
executed counterpart shall be deemed an original hereof and all such executed
counterparts shall together constitute but one and the same instrument, which
instrument shall for all purposes be sufficiently evidenced by any such executed
counterpart.
23.5 This Lease is executed by ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co. not personally, but
as agent for the Beneficiaries of said LaSalle National Bank, as successor
trustee to LaSalle National Trust, N.A., as Trustee under Trust #107031 - in the
exercise of power and authority conferred upon it as such Agent and under the
express direction of the beneficiaries of said Trust #107031. It is expressly
understood and agreed that nothing herein or in said Lease contained shall be
construed as creating any liability whatsoever against said Agent personally. If
said Trust #107031 shall cease to own the Leased Premises or the Buildings, said
Trust and the beneficiaries of said Trust shall thereafter have no liabilities
and obligations hereunder shall continue in favor of the successors in title.
23.6 The non-prevailing party shall pay, upon demand, all of the other parties
costs, charges and expenses, including the reasonable fees of counsel, agents
and others retained by the other party incurred in enforcing the non-prevailing
parties obligations hereunder. Either party shall pay, upon demand, all of the
other party's costs, charges and expenses including, fees of agents and
attorneys incurred in any litigation, negotiations or transactions in which such
other party, without its fault, was caused to become involved.
23.7 Should Lessor be compelled to commence or sustain an action at law to
collect said rents or parts thereof or to dispossess the Lessee or to recover
possession of said premises, or to recover damages done to Premises, Building or
fixtures, or from any other cause arising from said Lease, the Lessee shall pay
all costs in connection therewith including reasonable attorney's fees of said
Lessor.
23.8 Lessee, its employees, and invitees shall have the non-exclusive right to
use the common driveways and parking lots along with the other tenants and
customers of the building. The use of such driveways and parking facilities are
subject to such reasonable rules and regulations as the Lessor may impose.
Lessee further agrees not to use, or permit the use by its employees, the
parking areas for the overnight storage of automobiles or other vehicles without
the written permission of Lessor.
23.9 If Lessee is a corporation, then upon execution of this Lease and after any
amendments hereto, Lessee shall deliver to Lessor certified copies of the
corporate resolutions of Lessee authorizing the execution of this Lease or said
amendments.
23.10 This Lease shall not be recorded but the parties agree, at the request of
either of them, to execute a Short Form Lease for recording containing the name
of the parties, the legal description, and the terms of the Lease.
ARTICLE 24. COVENANT AGAINST LIENS:
24.1 Lessee covenants and agrees not to suffer or permit any lien of mechanics
or material men to be placed against the Building or Premises, and in case of
any such lien attaching to, immediately pay off and remove the same. Lessee has
no authority or power to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Lessee, operation of law or otherwise, to
attach to or be placed upon Lessor's title or interest in the Premises, and any
and all liens and encumbrances created by Lessee shall attach to Lessee's
interest only.
ARTICLE 25. NONWAIVER:
25.1 No waiver of any condition expressed in this Lease shall be implied by any
neglect of Lessor to declare a forfeiture on account of the violation of such
condition if such violation be continued or repeated subsequently, and no
express waiver shall affect any condition other than the one specified in such
waiver and that one only for the time and in the manner specifically stated. No
receipt of moneys by Lessor from Lessee after the termination in any way of the
term of this Lease or of Lessee's right of possession hereunder or after the
giving of any notice shall reinstate, continue or extend the term of this Lease
or affect any notice given to Lessee prior to the receipt of such moneys, it
being agreed that after the service of notice or the commencement of a suit or
after final judgment for possession of the premises Lessor may receive and
collect any rent due, and the payment of said rent shall not waive or affect
said notice, suit or judgment.
ARTICLE 26. DEFAULT:
26.1 In the event that Lessor shall default on any of its obligations hereunder,
Lessee shall, in addition to any notice and opportunity to cure given to Lessor,
give notice of such default to Aid Association For Lutherans ("AAL"), and AAL
shall have a reasonable opportunity (not less than thirty (30) days to cure
same.
ARTICLE 27. SUBORDINATION:
27.1 Lessee covenants and agrees that all of Lessee's rights hereunder are and
shall be subject and subordinate to the lien of any first mortgage or first deed
of trust now or hereafter placed on the Premises or any part thereof, except the
Lessee's property or trade fixtures, and to any and all renewals, modifications,
consolidations, replacements, extensions or substitutions of any first mortgage
or first deed of trust (which is hereinafter termed the "mortgage"). The
Lessee's covenant of subordination hereunder shall be subject to Lessor's
mortgagee agreeing that if Lessee is not in default hereunder the Lessee's
tenancy shall not be disturbed. Such subordination shall be automatic, without
the execution of any further subordination agreement by Lessee. If, however, a
written subordination agreement, consistent with this provision, is required by
a mortgagee or beneficiary of a deed of trust, Lessee agrees to execute,
acknowledge and deliver the same and in the event of failure so to do, Lessor
may, in addition to any other remedies for breach of covenant hereunder,
execute, acknowledge and deliver the same as the agent or attorney in fact of
Lessee, and Lessee hereby irrevocably constitutes Lessor its attorney - in- fact
for such purpose.
ARTICLE 28. ATTORNMENT:
28.1 If, at any time during the term of this Lease, the Lessor of the Premises
shall be the holder of a leasehold estate covering the premises which include
the Premises, and if such leasehold shall terminate or be terminated for any
reason, or if, at any time during the term of Lease a mortgage to which this
Lease is subordinate shall be foreclosed, Lessee agrees at the election and upon
demand of any owner of the premises which include the Premises, or of any
mortgagee or beneficiary of a deed of trust in possession thereof, or of any
holder of a leasehold thereafter
affecting premises which include the Premises, or of any purchaser at
foreclosure or trustee's sale, to attorn, from time to time, to any such owner,
mortgagee, beneficiary, holder or purchases upon the terms and conditions set
forth herein for the remainder of the term demised in this Lease.
ARTICLE 29. NOTICES:
29.1 All notices required or desired to be given hereunder by either party to
the other shall be given by certified or registered mail, first-class postage
prepaid, return receipt requested. Notices to the respective parties shall be
addressed as follows:
If to the Lessor ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to Aid Association for Lutherans
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Investment Division
If to the Lessee To the Premises
Either party may, by like written notice, designate a new address to
which such notices can be directed. Such notice shall have been deemed
to have been given by posting in the United States mail.
Any mortgagee of Lessor, or purchaser of the Premises, or beneficiary of a deed
of trust, shall be relieved and released from any obligation to return such
security in the event such mortgagee, beneficiary of a deed of trust, or
purchaser comes into possession of the Premises by reason of foreclosure or
trustee's sale (including deed in lieu thereof) or proceeding in lieu of
foreclosure unless such security deposit shall have been actually delivered to
such mortgagee or purchaser. Such release does not relieve Lessor of any
obligation it may have to return the security deposit.
ARTICLE 31. AMERICAN WITH DISABILITIES ACT:
Lessee shall at all times keep the Premises in compliance with the Americans
With Disabilities Act and its supporting regulations, and all similar federal,
state or local laws, regulations and ordinances ("ADA"). Provided that the
premises were in compliance at the inception of this Lease. If Lessor's consent
would be required for alterations to bring the Premises into compliance, Lessor
agrees not to unreasonably withhold its consent. Lessee shall indemnify and hold
harmless Lessor from all loss, claims, suits, actions, and liability relating to
the ADA that is the result of the use of the Premises by Lessee, its employees,
agents, guests or invitees.
ARTICLE 32. ESTOPPEL CERTIFICATE OR THREE-PARTY AGREEMENT:
At Lessor's request at any time or from time to time, Lessee will execute either
an estoppel certificate or a three-party agreement among Lessor, Lessee and
Lessor's mortgagee or beneficiary of a deed of trust certifying to such facts
(if true) and agreeing to such notice provisions and other matters as such
mortgagee or beneficiary of a deed of trust may reasonably require in connection
with Lessor's financing, including, but not limited to, damages, liabilities and
expenses in connection with Lessee's breach of this provision.
ARTICLE 33. LESSOR WILL DO THE FOLLOWING AT NO COST TO LESSEE:
33.1 Paint office and clean carpet.
33.2 LESSOR TO INSTALL DUCTS TO BRING AIR CONDITIONING TO THE WAREHOUSE.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Lease on
the date first above written.
LESSOR: LESSEE:
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co. Chicago Telecom, Inc.
as agent for the beneficiaries of
LaSalle National Bank,
as successor trustee to LaSalle
National Trust, N.A., as Trustee
under Trust #107031
BY:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- --------------------
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
EXHIBIT "C"
GUARANTY OF LEASE
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WHEREAS, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Management Co., as agents for the beneficiaries of
LaSalle National Bank, as successor trustee to LaSalle National Trust, N.A. as
Trustee under Trust #107031, hereinafter referred to as "Lessor", and Chicago
Telecom, Inc. hereinafter referred to as "Lessee", are about to execute a
document entitled Multi-Tenant Building Lease, dated May 13, 1999, hereinafter
referred to as the "Lease", by which Lessor will lease the premises commonly
known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇/▇▇▇/▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
WHEREAS, Carnegie International Corporation, hereinafter referred to as
"Guarantor", has a financial interest in Lessee; and
WHEREAS, Lessor would not execute the Lease if Guarantor did not execute and
deliver to Lessor this Guaranty of Lease;
NOW THEREFORE, for and in consideration of the execution of the foregoing Lease
by Lessor and as a material inducement to Lessor to execute said Lease,
Guarantor hereby unconditionally and irrevocably guarantees the prompt payment
by Lessee of all rentals and all other sums payable by Lessee under said Lease
and the faithful and prompt performance by Lessee of each and every one of the
terms and conditions and covenants of said Lease to be kept and performed by
Lessee. Lessor's right of recovery against Guarantor is, however, limited to
Three Hundred Fifty Five Thousand Sixty Five & 30/100 Dollars ($355,065.30),
plus attorneys' fees hereinafter provided for.
It is specifically agreed and understood that the terms of the foregoing Lease
may be altered, affected, modified or changed by agreement between Lessor and
Lessee or by a course of conduct, and said Lease may be assigned by Lessor or
any assignee of Lessor without consent of notice to Guarantor and shall this
Guaranty shall thereupon and thereafter guaranty the performance of said Lease
as so changed, modified, altered or assigned.
This Guaranty shall not be released, modified or affected by failure or delay on
the part of Lessor to enforce any of the rights or remedies of the Lessor under
said Lease, whether pursuant to the terms thereof or at law or in equity.
No notice of default need to be given to Guarantor, it being specifically agreed
and understood that the guaranty of the undersigned is a continuing guaranty
under which Lessor may proceed forthwith and immediately against Guarantor under
the terms of the Lease or at law or in equity.
Lessor shall have the right to proceed against Guarantor hereunder following any
breach or default by Lessee without first proceeding against Lessee and without
previous notice to or demand upon Guarantor.
Guarantor hereby waives notice of acceptance of this Guaranty; demand of
payment, presentation and protest; all right or assert or plead any statute of
limitations as to relating to this Guaranty and the Lease; any right to require
the Lessor to proceed against the Lessee or any other Guarantor or any other
person of entity liable to Lessor; any right to require Lessor to apply to any
default any security deposit or other security it may hold under the Lease; any
right to require Lessor to pursue any other remedy Lessor may have before
proceeding against Guarantor; and any right of subrogation.
Guarantor does hereby subrogate all existing or future indebtedness of Lessee to
Guarantor to the obligations owned to Lessor under the Lease and this Guaranty.
The obligations of Lessee under the Lease to execute and deliver estoppel
statements, as therein provided, shall be deemed to also require the Guarantor
to provide the same relative to Guarantor.
The term "Lessor" whenever hereinabove used refers to and means the Lessor in
the foregoing Lease specifically named and also any assignee of said Lessor,
whether by outright assignment or by assignment for security, and also any
successor to the interest of said Lessor or of any assignee in such Lease or any
part thereof, whether by assignment or otherwise. So long as the Lessor's
interest in or to the leased premises or the rents, issue and profits
therefrom, or in, to or under said Lease, are subject to any mortgage or deed of
trust or assignment for security, no acquisition by Guarantor of the Lessor's
interest in the leased premises or under said Lease shall affect the continuing
obligation of Guarantor under this Guaranty which shall nevertheless continue in
full force and effect for the benefit of the mortgagee, beneficiary, trustee or
assignee under such mortgage, deed of trust or assignment, of any purchase at
sale by judicial foreclosure or under private power of sale, and of the
successors and assigns of any such mortgagee, beneficiary trustee assignee or
purchaser.
The term "Lessee" whenever hereinabove used refers to and means the Lessee in
the foregoing Lease specifically named and also any assignee or sublessee of
said Lease, and also any successor to the interest of said Lessee, assignee or
sublease of such lease or any part thereof, whether by assignment, sublease or
otherwise.
In the event that any action is brought by Lessor against Guarantor to enforce
the obligation of Guarantor hereunder, the unsuccessful party in such actions
shall pay to the prevailing party therein reasonable attorneys' fees which shall
be fixed by the court.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty of Lease as of
this 14th day of May, 1999.
Carnegie International Corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: ▇▇ ▇▇▇▇▇▇▇▇ International Corporation
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