INDUSTRIAL SPACE LEASE
THE CORPORATE ▇▇▇▇▇
VERNON HILLS, ILLINOIS
LANDLORD: AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
ILLINOIS, not personally but as Trustee under Trust
Agreement No. 64661 dated June 17, 1985
TENANT: G & R TECHNOLOGIES
LEASED PREMISES: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
LEASE PREPARED BY: ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THIS LEASE is made this 13th day of November, 1991, by and between
AMERICAN NATIONAL BANK AND TRUST COMPANY, ILLINOIS, not personally but as
Trustee under Trust Agreement No. 64661 dated June 17, 1985 (hereinafter
sometimes referred to as "Landlord"), and G & R TECHNOLOGIES (hereinafter
sometimes referred to as "Tenant") 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 the Tenant
to be performed, hereby leases to Tenant, and Tenant hereby lets from Landlord,
premises known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
consisting of approximately 10,526 square feet, being a part of the real estate
commonly known as ▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, The Corporate ▇▇▇▇▇,
Vernon Hills, Illinois, (hereinafter sometimes referred to as the "Real
Estate"), which premises are designated as Unit H on the floor plan attached
hereto as Exhibit A, together with all improvements now located or to be located
on said premises during the term of this Lease, together with all appurtenances
belonging to or in any way pertaining to the said premises (such premises,
improvements and appurtenances hereinafter sometimes jointly or severally, as
the context requires, referred to as "Leased Premises").
1.1 Term. The term of this Lease shall commence on February 1, 1992
(hereinafter sometimes referred to as "Commencement Date") and shall end on
January 31, 1997, unless sooner terminated as herein set forth.
1.2 Tenant's Pro Rata Share. As used in this Lease, the term "Tenant's Pro
Rata Share" shall be 12 and 10/100ths percent (12.10%).
1.3 Agent. As used in this Lease, the term "Agent" shall mean the agent of
Landlord (but if Landlord is an Illinois land trust, the term "Agent" shall mean
the agent of the beneficiary or beneficiaries of Landlord). Until otherwise
designated by notice in writing from Landlord, Agent shall be Van Vlissingen and
Co. Tenant may rely upon any consent or approval given in writing by Agent or
upon notice from Agent or from the attorneys for Agent or Landlord.
1.4 Basic Lease Provisions.
(a) Purpose (See Section 3.0): Office/Warehousing facilities for
electronics and computer equipment, laboratory supplies and
equipment, accessories and directly related uses.
(b) Rent (See Section 4.0):
Monthly
Period Annual Rent Installments
02/01/92 - 03/31/92 $ 91,786.68 $ 7,648.89
04/01/92 - 01/31/93 $ 95,613.48 $ 7,967.79
02/01/93 - 01/31/94 $ 96,990.36 $ 8,082.53
02/01/94 - 01/31/95 $ 98,387.76 $ 8,198.98
02/01/95 - 01/31/96 $ 99,806.16 $ 8,317.18
02/01/96 - 01/31/97 $101,246.92 $ 8,437.16
(c) Payee (See Section 4.0): Corporate ▇▇▇▇▇ Associates
(d) Payee's Address (See Section 4.0): c/o Van Vlissingen & Co.
One Overlook Point, Lincolnshire Corporate Center
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(e) Base Impositions (See Section 5.0): $0
(f) Form of Insurance (See Section 6.1): The insurance specified in
subsections 6.0(a) and (c) of this Lease shall insure Landlord,
Landlord's beneficiaries and respective agents (including Agent), in
addition to Tenant.
(g) Base Insurance Premium (See Section 6.3): $0
(h) Monitoring Service Charge (See Section 6.4): |X| YES |_| NO
(i) Water and Sewerage Charge (See Section 12.0): |X| YES |_| NO
(j) Security Deposit (See Section 19.0): See Addendum (Section 22.0)
(k) Tenant's Address (for notices) (See Section 20.4): At the Premises
(1) Landlord's Address (for notices) (See Section 20.4): One Overlook
Point, Lincolnshire Corporate Center, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(m) Brokers (See Section 20.12): Van Vlissingen and Co.
(n) Number of Parking Spaces (see Section 20.16): 30
(o) Guarantor's Name and Address (See Separate Guaranty): N/A
II. POSSESSION
2.0 Possession. Except as otherwise expressly provided herein (or by
written instrument signed by Landlord or Agent), Landlord shall deliver
possession of the Leased Premises to Tenant on or before the Commencement Date
in their condition as of the execution and delivery hereof, reasonable wear and
tear excepted. If Landlord gives possession prior to the Commencement Date, such
occupancy shall be subject to all the terms and conditions of this Lease (except
that Tenant shall not be required to pay rent, under Section 4.0 hereof, during
such occupancy). If Landlord shall be unable to deliver possession of the Leased
Premises on the Commencement Date by reason of the fact that work required to be
done by Landlord hereunder, if any, has not been completed for any reason,
because a prior tenant has failed to deliver up possession of the Leased
Premises or for any other cause beyond the control of Landlord, Landlord shall
not be subject to any liability for the failure to give possession on 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, rent and other charges hereunder shall not commence until the later of
the date possession of the Leased Premises is given or the Commencement Date.
III. PURPOSE
3.0 Purpose. The Leased Premises shall be used and occupied only for the
purpose set forth in Section 1.4(a).
3.1 Uses Prohibited. Tenant will not permit the Leased Premises to be used
in any manner which would render the insurance thereon void or the insurance
risk more hazardous. Tenant shall not use or occupy the Leased Premises, or
permit the Leased Premises to be used or occupied, contrary to any statute,
rule, order, ordinance, requirement or regulation applicable thereto; or in any
manner which would violate any certificate of occupancy affecting the same or
the Declarations of Protective Covenants; or which would cause structural injury
to the improvements; or cause the value or usefulness of the Leased Premises, or
any part thereof, to diminish; or which would constitute a public or private
nuisance or waste.
3.2 Prohibition of Use. If the use of the Leased Premises should at any
time during the Lease term be prohibited by law or ordinance or other
governmental regulation, or prevented by injunction, this Lease shall not be
thereby terminated, nor shall Tenant be entitled by reason thereof to surrender
the Leased Premises or to any abatement or reduction in rent, nor shall the
respective obligations of the parties hereto be otherwise affected.
3.3 Environmental Matters. In the event Tenant shall conduct or authorize
the generation, transportation, storage, treatment, or disposal at the Leased
Premises of any substance regulated under the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Superfund Amendments and Reauthorization Act of 1986, the
Federal Water Pollution Control Act and all other federal, state, and local laws
relating to pollution or protection of the environment, including, without
limitation, laws relating to emissions, discharges, releases,
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or threatened releases of industrial, toxic, or hazardous substances or wastes
of other pollutants, contaminants, petroleum products or chemicals (collectively
"Hazardous Substances") into the environment (including, without limitation,
ambient air, surface water, ground water, land surface, or subsurface strata) or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of Hazardous Substances (the
"Environmental Laws"):
(a) Tenant shall, at its own cost, comply with all Environmental
Laws.
(b) Tenant shall promptly provide Landlord with copies of all
communications, permits, or agreements with any governmental authority or
agency (federal, state, or local) or any private entity relating in any
way to the presence, release, threat of release, placement on or in the
Leased Premises, or the generation, transportation, storage, treatment, or
disposal at the Leased Premises, of any Hazardous Substance.
(c) Landlord and Landlord's agents and employees shall have the
right to enter the Leased Premises and/or conduct appropriate tests for
the purposes of ascertaining that Tenant complies with all Environmental
Laws relating in any way to the presence of Hazardous Substances on the
Leased Premises.
(d) Upon written request by Landlord, Tenant shall provide Landlord
with the results of appropriate tests of air, water, or soil to
demonstrate that Tenant complies with all Environmental Laws relating in
any way to the presence of Hazardous Substances on the Leased Premises.
If, as a result of Tenant's action, or the actions of Tenant's agents,
employees, guests, invitees, or independent contractors, the presence, release,
threat of release, placement on or in the Leased Premises, or the generation,
transportation, storage, treatment, or disposal at the Leased Premises of any
Hazardous Substance: (i) gives rise to liability (including, but not limited to,
a response action, remedial action, or removal action) under RCRA, CERCLA, the
IEPA, or any common law theory based on nuisance or strict liability, (ii)
causes a significant public health effect, or (iii) pollutes or threatens to
pollute the environment, Tenant shall promptly take any and all remedial and
removal action necessary to clean up the Leased Premises and mitigate exposure
to liability arising from the Hazardous Substance, whether or not required by
law.
Tenant hereby represents that the intended operation of Tenant's business
on the Leased Premises is not currently subject to reporting under Section 312
of the Federal Emergency Planning and Community Right-to-Know Act of 1986, and
federal regulations promulgated thereunder, and in the event Tenant's business
at any time becomes subject to the afore-described Act and regulations Tenant
shall fully comply therewith and shall promptly provide Landlord with copies of
all reporting materials filed or submitted under such Act and regulations.
Tenant shall indemnify, defend, and hold Landlord harmless from all
damages, costs, losses, expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any breach
by Tenant of any of the provisions of this Section. Tenant's obligations
hereunder shall survive the termination of this Lease.
IV. RENT
4.0 Rent. Beginning with the Commencement Date, and subject to (a) and (b)
below, Tenant shall pay to, or upon the order of Payee at Payee's Address, until
otherwise notified in writing by Landlord, as rent for the Leased Premises, the
annual rental set forth in Section 1.4(b) payable monthly in advance in
installments as set forth in Section 1.4(b). If Tenant occupies the Leased
Premises for the purpose of conducting business therein prior to the
Commencement Date, Tenant shall pay rent on a pro rata basis from the date of
occupancy to the Commencement Date. All payments of rent shall be made without
deduction, set off, discount or abatement in lawful money of the United States.
(a) Subject to (b) below, Tenant shall receive a credit against the
Rent payable by Tenant for the Leased Premises of $15,297.78
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("Rent Credit"). The Rent Credit shall be applied to the Rent for the
Leased Premises due and owing after the Commencement Date until exhausted.
(b) Tenant shall be entitled to the Rent Credit only if no default
occurs under the Lease prior to full application of the credit. If this
Lease or Tenant's possession of the Leased Premises is terminated by
reason of a default, all unused Rent Credit shall be cancelled, and Tenant
shall immediately pay to Landlord the portion of the credit previously
applied.
4.1 Interest on Late Payments. Each and every installment of rent and,
each and every payment of other charges hereunder which shall not be paid when
due, shall bear interest from the date when the same is payable under the terms
of this Lease until the same shall be paid at an annual rate equal to eighteen
per cent (18%) per annum unless a lesser rate shall then be the maximum rate
permissible by law with respect thereto, in which event said lesser rate shall
be charged.
4.2 Returned Checks. Tenant shall pay to Landlord as additional rent the
sum of Twenty-Five Dollars ($25.00) for each check returned to Landlord for any
reason including, but not limited to, nonsufficient funds, nonexistent or closed
account, or nonnegotiability.
V. IMPOSITIONS
5.0 Payment by Tenant. Tenant shall pay to Landlord, as additional rent
hereunder, for each calendar year all or any part of which falls within the term
of the Lease ("Adjustment Year"), Tenant's Pro Rata Share of the amount by which
the Impositions for such Adjustment Year exceeds the Base Impositions
("Imposition Adjustment"). Tenant shall make payments ("Estimated Payment") on
account of the Imposition Adjustment effective as of the first day of the term
of this Lease and of the first day of each subsequent Adjustment Year as
follows:
(a) Landlord may, prior to each Adjustment Year or from time to time
during the Adjustment Year, deliver to Tenant a written notice or notices
("Projection Notice") setting forth Landlord's reasonable estimate of the
Impositions for such Adjustment Year and Tenant's Estimated Payments for
such Adjustment Year.
(b) Until such time as Landlord notifies Tenant of the Estimated
Payments for an Adjustment Year, Tenant shall, at the time of each payment
of monthly installment of annual rental, pay to Landlord a monthly
installment of Estimated Payments equal to the greater of the latest
monthly installment of Estimated Payments or one-twelfth (1/12) of
Tenant's latest determined Imposition Adjustment. On or before the first
day of the next calendar month following Landlord's notice, and on or
before the first day of each month thereafter, Tenant shall pay to
Landlord one-twelfth (1/12) of the Estimated Payment shown in Landlord's
notice. Within fifteen (15) days following receipt of Landlord's notice,
Tenant shall also pay Landlord a lump sum equal to the Estimated Payment
shown in the Projection Notice less (1) any previous payments on account
of Estimated Payments made during such Adjustment Year and (2) monthly
installments on account of Estimated Payments due for the remainder of
such Adjustment Year.
(c) After Landlord shall have determined the actual amount of
Impositions for such Adjustment Year, Landlord shall notify Tenant in
writing ("Landlord's Statement") of such Impositions for such Adjustment
Year. If the Imposition Adjustment owed for such Adjustment Year exceeds
the Estimated Payments paid by Tenant for such Adjustment Year, then
within ten (10) days after receipt of Landlord's Statement, Tenant shall
pay to Landlord an amount equal to the excess of the Imposition Adjustment
over the Estimated Payments paid by Tenant for such Adjustment Year. If
such Estimated Payments exceed the Imposition Adjustment owed for such
Adjustment Year, then Landlord shall refund the difference to Tenant
within fifteen (15) days after delivery of Landlord's Statement.
(d) If the term of this Lease commences on any day other
4
than the first day of an Adjustment Year or ends on any day other than the
last day of an Adjustment Year as the case may be, the Imposition
Adjustment for such year payable by Tenant shall be prorated based on the
number of days in such Adjustment Year included in the term of this Lease.
(e) No interest shall accrue or be payable with respect to Estimated
Payments.
5.1 Definition of Impositions. As used herein, the term "Impositions"
shall mean all taxes and assessments, general and special, water rates and all
other impositions, ordinary and extraordinary, of every kind and nature
whatsoever, which may be levied, assessed or imposed upon the Real Estate, or
any part thereof, or upon any improvements at any time situated thereon,
including, without limitation, any assessment by The Corporate ▇▇▇▇▇
Association, the association of owners of property in The Corporate ▇▇▇▇▇.
Impositions shall also include fees and costs incurred by Landlord for the
purpose of contesting or protesting tax assessments or rates. If at any time
during the term of this Lease the method of taxation prevailing at the
commencement of the term hereof shall be altered so that any new tax,
assessment, levy, imposition or charge, or any part thereof, shall be measured
by or be based in whole or in part upon the Lease, the Real Estate or Leased
Premises, or the rent, additional rent or other income therefrom and shall be
imposed upon the Landlord, then all such taxes, assessments, levies, impositions
or charges, or the part thereof, to the extent that they are so measured or
based, shall be deemed to be included within the term Impositions for the
purposes hereof, to the extent that such Impositions would be payable if the
Real Estate were the only property of Landlord subject to such Impositions.
There shall be excluded from Impositions all federal income taxes, federal
excess profit taxes, franchise, capital stock and federal or state estate or
inheritance taxes of Landlord. All references herein to Impositions "for" a
particular year shall be deemed to refer to the Impositions levied, assessed or
otherwise imposed for such year without regard to when such Impositions are
payable.
VI. INSURANCE
6.0 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:
(a) Landlord and Tenant from all claims, demands or actions for
injury to or death of any person in an amount of not less than
$1,000,000.00, for injury to or death of more than one person in any one
occurrence to the limit of $2,000,000.00, and for damage to property in
amount of not less than $500,000.00 made by, or on behalf of, any person
or persons, firm or corporation arising from, related to or connected with
the Leased Premises. Said insurance shall comprehend full coverage of the
indemnity set forth in Section 13.0 hereto;
(b) Tenant from all workmen's compensation claims;
(c) Landlord and Tenant against breakage of all plate glass utilized
in the improvements on the Leased Premises;
(d) All contents and Tenant's trade fixtures, machinery, equipment,
furniture and furnishings in the Leased Premises to the extent of at least
ninety percent (90%) of their replacement cost under standard fire and
extended coverage insurance, including, without limitation, vandalism and
malicious mischief and sprinkler leakage endorsements.
6.1 Form of Insurance. The aforesaid insurance shall be in companies and
in form, substance and amount (where not stated above) satisfactory to Landlord
and any mortgagee of Landlord, and shall contain standard mortgage clauses
satisfactory to Landlord's mortgagee. The aforesaid insurance may be furnished
under a blanket policy, if, and only if, said blanket policy contains an
endorsement that references the Leased Premises and guarantees a minimum limit
available for the Leased Premises equal to the amounts required under Section
6.0 above. The aforesaid insurance shall not be subject to cancellation except
after at least thirty (30) days' prior written notice to Landlord and any
mortgagee of
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Landlord. The original insurance policies (or certificates thereof 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 not less than thirty (30) days prior to the end of the term of each such
coverage. If Landlord is an Illinois Land Trustee the insurance referred to in
subsection 6.0(a), (b) and (d) hereof shall also insure the beneficiary or
beneficiaries thereof.
6.2 Mutual Waiver of Subrogation Rights. Whenever (a) any loss, cost,
damage or expense resulting from fire, explosion or any other casualty or
occurrence is incurred by either of the parties to this Lease, or anyone
claiming by, through or under it, 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) 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. If the party released from liability
hereunder is the Landlord, and if Landlord is an Illinois land trust, the term
"Landlord" for the purpose of this Section 6.2 only, shall include the Trustee,
its agents, its beneficiary or beneficiaries and their agents.
6.3 Excess Insurance Premiums. Tenant shall pay to Landlord, as additional
rent for the Leased Premises, Tenant's Pro Rata Share of any excess in premiums
for casualty, rent loss and all liability insurance (with all endorsements) paid
annually by Landlord with respect to the Real Estate during the Lease term over
the Base Insurance Premium. Tenant shall be obligated to pay its Pro Rata Share
of only those annual premiums which relate to insurance coverage during the term
of this Lease. Tenant's Pro Rata Share of such excess premiums shall be paid by
Tenant to Landlord within ten (10) days after Landlord bills Tenant therefor,
or, at Landlord's election, in monthly installments in amounts estimated by
Landlord. If Landlord bills Tenant based on estimates, the amount payable by
Tenant shall be adjusted when the actual premium amount is determined.
6.4 Fire Protection. Tenant shall conform with all applicable fire codes
of any governmental authority, and with the rules and regulations of Landlord's
fire underwriters and their fire protection engineers, including, without
limitation, the installation of adequate fire extinguishers. If a Monitoring
Service Charge is provided in Section 1.4(h), then Landlord is providing a
sprinkler monitoring system with a direct connection to the local fire
department or monitoring service and Tenant shall pay to Landlord a monthly
Monitoring Service Charge to reimburse Landlord for the cost of the operation
and maintenance thereof. Said monthly Monitoring Service charge shall be
determined by Landlord based on Tenant's Pro Rata Share of the cost of operating
and maintaining the system and shall be paid by Tenant to Landlord within ten
(10) days after Landlord bills Tenant therefor. If there is no Monitoring
Service Charge provided in Section 1.4(h) and if the Leased Premises are served
by a sprinkler system, then Tenant shall, at its sole cost and expense, install
a sprinkler monitoring system with direct connection to the local fire
department or a monitoring service approved by Landlord and maintain the same in
effect at all times during the entire Lease term.
VII. DAMAGE OR DESTRUCTION
7.0 Landlord's Obligation to Rebuild. In the event the Leased Premises are
damaged by fire, explosion or other casualty, Landlord shall commence the
repair, restoration or rebuilding thereof within sixty (60) days after such
damage and shall complete such restoration, repair or rebuilding within one
hundred fifty (150) days after the commencement thereof, provided that if
construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the control of Landlord, the period for restoration, repair or
rebuilding shall be extended for the amount of time Landlord is so delayed. If
the casualty or the repair, restoration or rebuilding caused thereby shall
render the Leased Premises untenantable, in whole or in part, an equitable
abatement in
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rent shall be allowed from the date when the damage occurred until the date on
which the Leased Premises are again fit for occupancy by Tenant. If such a fire,
explosion or other casualty damages the building in which the Leased Premises
are located to the extent of fifty percent (50%) or more thereof, Landlord may,
in lieu of repairing, restoring or rebuilding the same, terminate this Lease
within sixty (60) days after occurrence of the event causing the damage. In such
event, the obligation of Tenant to pay rent and other charges hereunder shall
end as of the date when the damage occurred. In the event Landlord's fire and
extended coverage insurance provides for a "deductible" and a loss occurs which
is the kind of risk otherwise insured under the policy, then Tenant shall pay to
Landlord, promptly upon being billed therefor, the lesser of (a) the amount of
the loss or (b) the amount of the deductible.
VIII. CONDEMNATION
8.0 Taking of Whole. If 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 if such a portion of the Leased Premises shall be so taken that as a result
thereof the balance cannot be used for the same purpose and with substantially
the same 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 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
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in
and to any and all such award. Tenant shall continue to pay rent and other
charges hereunder until the Lease term is terminated and any excess Impositions
and excess premiums prepaid by Tenant, or which accrue prior to the termination,
shall be adjusted between the parties.
8.1 Partial Taking. If only a part of the Leased Premises shall be so
taken or condemned, but the balance of the Leased Premises can still be used for
the same purpose and with substantially the same utility to Tenant as
immediately prior to such taking, this Lease shall not terminate and Landlord
shall repair and restore 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 rent shall be equitably
abated following delivery of possession to the condemning body. If fifty percent
(50%) or more of the building within which the Leased Premises are located shall
be so taken or condemned, 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 or be the sole property of Landlord.
IX. MAINTENANCE AND ALTERATIONS
9.0 Landlord's Maintenance.
(a) Landlord shall, at its sole cost and expense, keep and maintain
the roof and exterior walls (but not exterior windows and doors and their
frames) of the building of which the Leased Premises are a part, in good
order and repair, except for loss by fire or other casualty, which loss is
covered by Article VII of this Lease.
(b) Landlord shall perform all exterior painting (at such intervals
as Landlord deems appropriate) and shall remove snow accumulations from
the roof (if deemed necessary by Landlord), and from the parking lot, and
shall perform necessary maintenance, repairs and replacements to the
exterior windows and doors and their frames and on portions of the Real
Estate and the improvements and mechanical equipment thereon (including
the parking lot and landscaping) used in common by the tenants thereof.
Except as provided in subsection 9.0(a) and in Article VII hereof, Tenant
shall pay to Landlord Tenant's Pro Rata Share of the cost and expense
incurred by Landlord in fulfilling its obligations under this subsection
9.0(b). Such payment shall be additional rent hereunder and shall be paid
to Landlord within ten (10) days after Landlord bills
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Tenant therefor or, at Landlord's election, in monthly installments in
amounts estimated by Landlord.
(c) Landlord shall repair or replace any damage to the Real Estate,
including, without limitation, damage to the roof, landscaping, or
exterior of the building of which the Leased Premises are a part, and to
truck dock doors caused by or resulting from any act or omission or
negligence of Tenant, its agents, employees, contractors, customers and
invitees. Tenant shall reimburse Landlord for Landlord's costs and
expenses incurred for repairs or replacements made pursuant to this
subsection 9.0(c), within ten (10) days after Landlord bills Tenant
therefor.
9.1 Tenant's Maintenance.
(a) Tenant shall keep and maintain the entire interior of the Leased
Premises and the portion of the exterior not to be maintained by Landlord
pursuant to Section 9.0, roof-mounted mechanical equipment used in
connection with the Leased Premises, pipes and conduits below the floor of
the Leased Premises, and windows on the interior and exterior of the
Leased Premises clean and sanitary and in good condition and repair,
including, without limitation, any necessary replacements, and further
including, without limitation, carpet cleaning at least once each year,
necessary interior painting, and maintaining and repairing of exterior
doors in conformity with other exterior doors of the building or buildings
on the Real Estate. Tenant shall, to the extent possible, keep the Leased
Premises from falling temporarily out of repair or deteriorating. Tenant
shall fully comply with all health, safety and police regulations in
force. Tenant shall promptly remove any debris left by Tenant, its
employees, agents, contractors, or invitees in the parking area or other
exterior areas of the Real Estate.
(b) At all times during the term of this Lease, Tenant shall be
responsible for the expense of that portion of Landlord's maintenance
contract allocable to the equipment in the Leased Premises, which provides
for inspection at least once each calendar quarter of the heating, air
conditioning and ventilating equipment, and provides for necessary repairs
thereto. Said inspection and repairs shall encompass the following work:
1. Check performance of all major components.
2. Lubricate moving parts as required.
3. Check refrigerant charges (during cooling season).
4. Inspect for oil and refrigerant leaks.
5. Check operating and safety controls.
6. Check pressures and temperatures.
7. Inspect condensers.
8. Inspect fans, motors and starters.
9. Tighten electrical connections at equipment.
10. Test amperages and voltages.
11. Check belts and drives.
12. Change oil and filters, or dryers, as required.
13. Check temperature on control system.
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9.2 Alterations. Tenant shall make all additions, improvements and
alterations (hereinafter "Alterations") on the Leased Premises, and on and to
the appurtenances and equipment thereof, required by any governmental authority
or which may be made necessary by the act or neglect of any persons, firm or
corporation, public or private. Except as provided in the immediately preceding
sentence, Tenant shall not create any openings in the roof or exterior walls, or
make any other Alterations to the Leased Premises without Landlord's prior
written consent, which consent Landlord may, in its discretion, withhold. As to
any Alterations which Tenant is required hereunder to perform or to which
Landlord consents, such work shall be performed strictly in accordance with
plans and specifications therefor first approved in writing by Landlord or, at
Landlord's option (exercised by notice in writing from Landlord to Tenant given
within ten (10) days after Landlord receives Tenant's plans and specifications),
such work shall be performed by employees of or contractors employed by
Landlord, at Tenant's expense. Upon completion of any Alterations by or on
behalf of Tenant, Tenant shall provide Landlord with such documents as Landlord
may require (including, without limitation, sworn contractors' statements and
supporting lien waivers) evidencing payment in full for such work. In the event
Tenant makes any Alterations not in compliance with the provisions of this
Section 9.2, Tenant shall, upon written notice from Landlord, immediately remove
such Alterations and restore the Leased Premises to their condition immediately
prior to the making thereof. If Tenant fails so to remove such Alterations and
restore the Leased Premises as aforesaid, Landlord may, at its option, and in
addition to all other rights or remedies of Landlord under this Lease, at law or
in equity, enter the Leased Premises and perform said obligation of Tenant and
Tenant shall reimburse Landlord for the cost to the Landlord thereof,
immediately upon being billed therefor by Landlord. Such entry by Landlord shall
not be deemed an eviction or disturbance of Tenant's use or possession of the
Leased Premises nor render Landlord liable in any manner to Tenant.
X. LIENS AND ENCUMBRANCES
10.0 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 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.
10.1 Liens and Right to Contest. Tenant shall not permit the Leased
Premises or the Real Estate to become subject to any mechanics', laborers' or
materialmen's lien on account of labor or material furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed on the Leased Premises by,
or at the direction or sufferance of, Tenant; provided, however, that Tenant
shall have the right to contest in good faith and with reasonable diligence, the
validity of any such lien or claimed lien if Tenant shall give to Landlord such
security as may be deemed satisfactory to Landlord to insure payment thereof and
to prevent any sale, foreclosure, or forfeiture of the Leased Premises or the
Real Estate by reason of non-payment thereof; provided further, however, that on
final determination of the lien or claim for lien, Tenant shall immediately pay
any judgment rendered, with all proper costs and charges, and shall have the
lien released and any judgment satisfied.
XI. ASSIGNMENT AND SUBLETTING
11.0 Consent Required. Tenant shall not, without Landlord's prior written
consent, (a) assign, convey or mortgage this Lease or any interest under it; (b)
allow any transfer thereof or any lien upon Tenant's interest by operation of
law; (c) sublet the Leased Premises or any part thereof; or (d) permit the use
or occupancy of the Leased Premises or any part thereof by anyone other than
Tenant. Landlord agrees that it will not unreasonably withhold its consent to
any assignment or sublease, provided that if Tenant requests Landlord's consent
to a sublease or to an assignment of all or a substantial portion of the entire
Leased Premises, Landlord may, in lieu of granting such
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consent or reasonably withholding the same, terminate this Lease, effective on
the commencement date specified in the sublease or on the effective date of said
assignment, as the case may be, to which Landlord's consent was requested. No
permitted assignment or subletting shall relieve Tenant of Tenant's covenants
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.
11.1 Merger or Consolidation. Tenant may, without Landlord's consent,
assign this Lease to any corporation resulting from a merger or consolidation of
the Tenant upon the following conditions: (a) that the total assets and net
worth of such assignee after such consolidation or merger shall be equal to or
more than that of Tenant immediately prior to such consolidation or merger; (b)
that Tenant is not at such time in default hereunder; and (c) that such
successor shall execute an instrument in writing fully assuming all of the
obligations and liabilities imposed upon Tenant hereunder and deliver the same
to Landlord. If the aforesaid conditions are satisfied, Tenant shall be
discharged from any further liability hereunder.
11.2 Voting Control of Tenant. If Tenant is a corporation, the shares of
which, at the time of execution of this Lease or during the term hereof are or
shall be held by fewer than one hundred (100) persons, and if at any time during
the term of this Lease the persons, firms or corporations who own a majority or
controlling number of its shares at the time of the execution of this Lease or
following Landlord's consent to a transfer of such shares cease to own such
shares (except as a result of transfer by bequest or inheritance) and such
cessation shall not. first have been approved in writing by Landlord, then such
cessation shall, at the option of Landlord, be deemed a default by Tenant under
this Lease.
11.3 Other Transfer of Lease. Tenant shall not allow or permit any
transfer of this Lease, or any interest hereunder, by operation of law, or
convey, mortgage, pledge, or encumber this Lease or any interest herein.
XII. UTILITIES
12.0 Utilities.
(a) Tenant shall purchase all utility services, including but not
limited to fuel and electricity, but excluding water and sewerage, from
the utility or municipality providing such service, and shall pay for such
services when such payments are due. If subsection 1.4(i) provides for a
water and sewerage charge, then Tenant shall pay to Landlord within ten
(10) days after receipt of a ▇▇▇▇ therefore, as additional rent hereunder,
Tenant's Pro Rata Share of Landlord's payments to the utility or
municipality for water or sewerage services. If subsection 1.4(i) does not
provide for the Water and Sewerage Charge, then Tenant shall purchase
water and sewerage from the utility and municipality providing such
services, and pay for such services when such payments are due.
(b) Tenant shall pay to Landlord, as additional rent for the Leased
Premises, Tenant's Pro Rata Share of the charges, if any, for utilities
used for areas of common use by the Tenants on the Real Estate. Such
charges shall be paid by Tenant to Landlord within ten (10) days after
Landlord bills Tenant therefor, or, at Landlord's election, in monthly
installments in amounts estimated by Landlord.
XIII. INDEMNITY AND WAIVER
13.0 Indemnity. Tenant will protect, indemnify and save harmless Landlord
and Landlord's agents (and Landlord's beneficiary or beneficiaries and their
agents if Landlord is an Illinois Land Trustee) from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Landlord by reason of
(a) any accident, injury to or death of persons or loss of or damage to property
occurring on or about the Leased Premises or resulting from any act or omission
10
of Tenant or anyone claiming by, through or under Tenant; (b) any failure on the
part of Tenant to perform or comply with any of the terms of this Lease; or (c)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Leased Premises or any part thereof. If any action,
suit or proceeding is brought against Landlord and/or Landlord's agents (and/or
Landlord's beneficiary or beneficiaries or their agents if Landlord is an
Illinois Land Trustee) by reason of any such occurrence, Tenant will, at
Tenant's expense, resist and defend such action, suit or proceeding, or cause
the same to be resisted and defended by counsel approved by Landlord.
13.1 Waiver of Certain Claims. Tenant waives all claims it may have
against Landlord and Landlord's agents (and Landlord's beneficiary or
beneficiaries and their agents if Landlord is an Illinois Land Trustee) for
damage or injury to person or 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 part of the Real Estate or any of its
improvements, equipment or appurtenances becoming out or repair, or resulting
from any accident on or about the Real Estate or resulting directly or
indirectly from any act or neglect of any tenant or occupant of any part of the
Real Estate or of any other person, excluding Landlord. This Section 13.1 shall
include, but not by way of limitation, damage cause 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, and shall apply equally
whether any such damage results from the act or neglect of Tenant or of other
tenants, or occupants or any part of the Real Estate or of any other person,
excluding Landlord, and whether such damage be caused by or result from any
thing or circumstance above mentioned or referred to, or to any other thing or
circumstance whether of a like nature or of a wholly different nature. All
personal 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, and Landlord shall not be liable for any
damage thereto or for the theft or misappropriation thereof.
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, on behalf of itself and Agent reserves the following rights to be
exercised at Landlord's election:
(a) To change the street address of the Leased Premises;
(b) To inspect the Leased Premises and to make repairs, additions or
alterations to the Leased Premises or the building of which the Leased
Premises are a part, which Tenant may neglect or refuse to make in
accordance with the covenants and agreements of this Lease, and,
specifically including, but without limiting the generality of the
foregoing, to make repairs, additions or alterations within the Leased
Premises to mechanical, electrical, and other facilities serving other
premises in the building of which the Leased Premises are a part or other
parts of the Real Estate;
(c) To show the Leased Premises to prospective purchasers,
mortgagees, or other persons having a legitimate interest in viewing the
same, and, at any time within one (1) year prior to the expiration of the
Lease term, to persons wishing to rent the Leased Premises;
(d) During the last year of the Lease term, to place and maintain
the usual "For Rent" sign in or on the Leased Premises or the Real Estate;
(e) During the last ninety (90) days of the Lease term, if during or
prior to that time Tenant vacates the Leased Premises, to decorate,
remodel, repair, alter or otherwise prepare the Leased Premises for new
occupancy; and
(f) To place and maintain "For Sale" signs on the Real Estate and on
the exterior of the building of which the Leased Premises are a part.
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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, without being deemed guilty of any
eviction or disturbance of Tenant's use or possession of the Leased Premises,
and without being liable in any manner to Tenant.
XV. QUIET ENJOYMENT
15.0 Quiet Enjoyment. So long as Tenant is not in default under the
covenants and agreements of this Lease, 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.
XVI. SUBORDINATION OR SUPERIORITY
16.0 Subordination or Superiority. The rights and interest of Tenant under
this Lease shall be subject and subordinate to any first mortgage or trust deed
creating a first mortgage that may be placed upon the Leased Premises and to any
and all advances to be made thereunder, and to the interest thereon, and all
renewals, replacements and extensions thereof, if the mortgagee or trustee named
in said mortgages or trust deeds shall elect to subject and subordinate the
rights and interest of Tenant under this Lease to the lien of its mortgage or
deed of trust. Any mortgagee or trustee may elect to give the rights and
interest of Tenant under this Lease priority over the lien of its mortgage or
deed of trust. In the event of either such election and upon notification by
such mortgagee or trustee to Tenant to that effect, the rights and interest of
Tenant under this Lease shall be deemed to be subordinate to, or to have
priority over, as the case may be, the lien of said mortgage or trust deed,
whether this Lease is dated prior to or subsequent to the date of said mortgage
or trust deed. Tenant shall execute and deliver whatever instruments may be
required for such purposes, and in the event Tenant fails so to do within ten
(10) days after demand in writing, Tenant does hereby make, constitute and
irrevocably appoint Landlord as its attorney in fact and in its name, place, and
stead so to do.
XVII. SURRENDER
17.0 Surrender. Upon the termination of this Lease, whether by forfeiture,
lapse of time or otherwise, or upon the 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 in good
condition and repair, reasonable wear and tear excepted. Said improvements shall
include all plumbing, lighting, electrical, heating, cooling and ventilating
fixtures and equipment and other articles or personal property used in the
operation of the Leased Premises (as distinguished from operations incident to
the business of Tenant), together with all duct work. All additions, hardware,
non-trade fixtures and all improvements, temporary or permanent, in or upon the
Leased Premises placed there by Tenant shall become Landlord's property and
shall remain upon the Leased Premises upon such termination of this Lease by
lapse of time or otherwise, without compensation or allowance or credit to
Tenant, unless Landlord requests their removal in writing at or before the time
of such termination of this Lease. If Landlord so requests removal of said
additions, hardware, non-trade fixtures and all improvements and Tenant does not
make such removal prior to termination of this Lease, or within ten (10) days
after such request, whichever is later, Landlord may remove the same and deliver
the same to any other place of business of Tenant or warehouse the same, and
Tenant shall pay the cost of such removal, delivery and warehousing to Landlord
on demand.
17.1 Removal of Tenant's Property. Upon the termination of this Lease by
lapse of time, Tenant may remove Tenant's trade fixtures and all of Tenant's
personal property and equipment other than such personal property and equipment
as are referred to in Section 17.0; provided, however, that Tenant shall repair
any injury or damage to the Leased Premises which may result from such removals.
If Tenant does not remove Tenant's furniture, machinery, trade fixtures and all
other items of personal property of every kind and description from the Leased
Premises prior to the end of the term, however ended, Landlord may, at its
option, remove the same and deliver the same to any other place of business of
12
Tenant or warehouse the same, and Tenant shall pay the cost of such removal
(including the repair of any injury or damage to the Leased Premises resulting
from such removal), delivery and warehousing to Landlord on demand, or Landlord
may treat such property as having been conveyed to Landlord with the Lease as a
▇▇▇▇ of Sale, without further payment or credit by Landlord to Tenant.
17.2 Holding Over. Any holding over by Tenant of the Leased Premises after
the expiration of this Lease shall operate and be construed to be tenancy from
month to month only, at a monthly rental of double the rate of rent payable
hereunder the Lease term, or at the election of Landlord expressed in a written
notice to Tenant, and not otherwise, such holding over shall constitute a
renewal of this Lease for one (1) year at the same rental and upon all of the
other covenants and agreements contained in this Lease. Nothing contained in
this Section 17.2 shall be construed to give Tenant the right to hold over after
the expiration of this Lease, and Landlord may exercise any and all remedies at
law or in equity to recover possession of the Leased Premises.
XVIII. REMEDIES
18.0 Defaults. Tenant further agrees that any one or more of the following
events shall be considered events of default as said term is used herein, that
is to say, if
(a) Tenant shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against
Tenant asking reorganization of Tenant under the Federal bankruptcy laws
as now or hereafter amended, or under the laws of any State, shall be
entered, and any such decree or judgment or order shall not have been
vacated or stayed or set aside within sixty (60) days from the date of the
entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy or any
petition pursuant or purporting to be pursuant to the Federal bankruptcy
laws now or hereafter amended, or Tenant shall institute any proceedings
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
(c) Tenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Tenant or
any of the property of Tenant; or
(d) The Leased Premises are levied upon by any revenue officer or
similar officer; or
(e) 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,
stayed or set aside within sixty (60) days from the date of entry or
granting thereof; or
(f) Tenant shall vacate the Leased Premises or abandon the same
during the term hereof; or
(g) Tenant shall default in any payment of rent or other charge
required to be paid by Tenant hereunder when due as herein provided and
such default shall continue for five (5) days after notice thereof in
writing to Tenant; or
(h) If Tenant shall fail to contest the validity of any lien or
claimed lien and give security to Landlord to insure payment thereof, or
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
continues for five (5) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing or performing
13
any of the other covenants or agreements herein contained to be kept,
observed and performed by Tenant, and such defaults shall continue to
thirty (30) days after notice thereof in writing to Tenant; or
(j) Tenant shall repeatedly be late in the payment of 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).
Upon the occurrence of any one or more of such events of default, Landlord may
terminate this Lease. Upon termination of this Lease, Landlord may re-enter the
Leased Premises with or without process of law using such force as may be
necessary, and remove all persons, fixtures and chattels therefrom, and Landlord
shall not be liable for any damages resulting therefrom. Such re-entry and
repossession shall not work a forfeiture of the rents or other charges to be
paid and covenants to be performed by Tenant during the full term of this Lease.
Upon such repossession of the Leased Premises, Landlord shall be entitled to
recover as liquidated damages and not as a penalty a sum of money equal to the
value of the rent and other sums provided herein to be paid by Tenant to
Landlord for the remainder of the Lease term, less the fair rental value of the
Leased Premises for said period. Upon the happening of any one or more of the
above-mentioned events Landlord may repossess the Leased Premises by forcible
entry or detainer suit, or otherwise, without demand or notice of any kind to
Tenant (except as hereinabove provided for) and without terminating this Lease,
in which event Landlord may but shall be under no obligation so to do, relet all
or any part of the Leased Premises for such rent and upon such terms as shall be
satisfactory to Landlord (including the right to relet the Leased Premises for a
term greater or lesser than that remaining under the Lease term, and the right
to relet the Leased Premises as a part of a larger area, and the right to change
the character or use made of the Leased Premises). For the purpose of such
reletting, Landlord may decorate or make any repairs, changes, alterations or
additions 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 as liquidated damages and not as a penalty a sum equal to the amount of
the 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 sufficient sum shall not
be realized from such reletting after paying all of the expenses of such
decorations, repairs, changes, alterations, additions, reletting and the
collection of the rent accruing therefrom (including, but not by way of
limitation, attorneys' fees and brokers' commissions), to satisfy the 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. If default shall be made in any covenant, agreement,
condition or undertaking herein contained to be kept, observed and performed by
Tenant, other than the making of any payments as herein provided, which cannot
with due diligence be cured within a period of thirty (30) days, and if notice
thereof in writing shall have been given to Tenant, and if Tenant, prior to the
expiration of thirty (30) days from and after the giving of such notice,
commences to eliminate the cause of such default and proceeds diligently and
with reasonable dispatch to take all steps and do all work required to cure such
default and does so cure such default, then Landlord shall not have the right to
declare and said term ended by reason of such default or to repossess without
terminating the Lease, provided, however, that the curing of any default in such
manner shall not be construed to limit or restrict the right of Landlord to
declare the said term ended or to repossess without terminating the Lease, and
to enforce all of its rights and remedies hereunder for any other default not so
cured.
18.1 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 existing at law or in equity or by statute,
and every power and remedy given by this Lease to Landlord may be exercised from
time to time and so often as occasion may arise or as may be deemed expedient.
18.2 No Waiver. No delay or omission of Landlord to exercise any right
14
or power arising from any default shall impair any such right or power or be
construed to be 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,
taken or held to be a waiver of any other breach or waiver, acquiescence in or
consent to any further or succeeding breach of the same covenant. The acceptance
by Landlord of any payment of 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.
18.3 Default under Other Leases. A default in this Lease, or in any other
lease made by Tenant for any premises on the Real Estate shall, at the option of
the Landlord, be deemed a default under this Lease, the other lease or both
leases.
XIX. SECURITY DEPOSIT
19.0 Security Deposit. Subject to the terms of Section 22.00 in the
Addendum attached hereto, to secure the faithful performance by Tenant of all
the covenants, conditions, and agreements in this Lease set forth and contained
on the part of the Tenant to be fulfilled, kept, observed and performed,
including, but without limiting the generality of the foregoing, such covenants,
conditions and agreements in this Lease which become applicable upon the
expiration or termination of the same or upon termination of Tenant's right to
possession pursuant to Section 18.0 of the Lease, Tenant has deposited herewith
the Security Deposit with Agent on the understanding: (a) that the Security
Deposit or any portion thereof not previously applied, or from time to time such
other portions thereof, may be applied to the curing of any default that may
then exist, without prejudice to any other remedy or remedies which the Landlord
may have on account thereof, and upon such application Tenant shall pay Agent on
demand the amount so applied which shall be added to the Security Deposit so the
same may be restored to its original amount; (b) that should the Leased Premises
be conveyed by Landlord or should Agent cease to be the agent of the beneficiary
or beneficiaries of Landlord, the Security Deposit or any portion thereof not
previously applied may be turned over to Landlord's grantee or the new agent, as
the case may be, and if the same be turned over as aforesaid, the Tenant hereby
releases Landlord and Agent from any and all liability with respect to the
Security Deposit and/or its application or return, and the Tenant agrees to look
to such grantee or agent, as the case may be, for such application or return;
(c) that Landlord shall have no personal liability with respect to said sum and
Tenant shall look exclusively to Agent or its successors pursuant to subsection
(b) hereof for return of said sum on the expiration of this Lease; (d) that
Agent or its successor shall not be obligated to hold said Security Deposit as a
separate fund, but on the contrary may commingle the same with its other funds;
(e) that if Tenant shall faithfully fulfill, keep, perform and observe all of
the covenants, conditions, and agreements in this Lease set forth and contained
on the part of the Tenant to be fulfilled, kept, performed and observed, the sum
deposited or the part or portion thereof not previously applied shall be
returned to the Tenant without interest no later than thirty (30) days after the
expiration of the term of this Lease or any renewal or extension thereof,
provided Tenant has vacated the Leased Premises and surrendered possession
thereof to the Landlord at the expiration of said term or any extension or
renewal thereof as provided herein and Tenant has paid all amounts due or to
become due under this Lease; (f) in the event that Landlord terminates the Lease
or Tenant's right to possession pursuant to Section 18.0 of this Lease, Agent
may apply the Security Deposit against all damages suffered to the date of such
termination and/or may retain the Security Deposit to apply against such damages
as may be suffered or shall accrue thereafter by reason of Tenant's default; and
(g) in the event any bankruptcy, insolvency, reorganization or other
credit-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 rents and/or other charges due Landlord for all periods
prior to the institution of such proceedings, and the balance, if any, of the
Security Deposit may be retained or paid to Landlord in partial liquidation of
Landlord's damages.
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XX. MISCELLANEOUS
20.0 Tenant's Statement. Tenant shall furnish Landlord annually within
ninety (90) days after the end of each of Tenant's fiscal years a copy of its
annual audited and certified statement. It is mutually agreed that Landlord may
deliver a copy of such statements to its mortgagee or any prospective purchaser
of the Real Estate, but otherwise Landlord shall treat such statements and
information contained therein as confidential.
20.1 Estoppel Certificates. 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 certifying that Tenant has
accepted the Leased Premises, that this Lease is unmodified and in full force
and effect (of if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), that the Landlord is not
in default hereunder, the date to which the rental and other charges have been
paid in advance, if any, or such other accurate certification as may reasonably
be required by Landlord or Landlord's mortgagee, and agreeing to give copies to
any mortgagee of Landlord of all notices by Tenant to Landlord. It is intended
that any such statement delivered pursuant to this Section may be relied upon by
any prospective purchaser of the Leased Premises or Real Estate, mortgagee of
the Leased Premises or Real Estate and their respective successors and assigns.
20.2 Landlord's Right to Cure. Landlord may, but shall not be obligated
to, cure any default by Tenant specifically including, but not only by way of
limitation, Tenant's failure to pay Impositions, obtain insurance, make repairs,
or satisfy lien claims, after complying with the notice provisions established
in Article XVIII; and whenever Landlord so elects, all costs and expenses paid
by Landlord in curing such default, including without limitation reasonable
attorneys' fees, shall be so much additional rent due on the next rent date
after such payment together with interest (except in the case of said attorneys'
fees) at the rate of eighteen percent (18%) per annum from the date of
advancement to the date of repayment by Tenant to Landlord.
20.3 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 a written
instrument, duly signed, acknowledged and delivered by the other party; and no
act or acts, omission or omissions or series of acts or omissions, or waiver,
acquiescence or forgiveness by Landlord as to any default in or failure of
performance, either in whole or in part, by Tenant, of any of the covenants,
terms and conditions to this Lease, shall be deemed or construed to be a waiver
by Landlord of the right at all times thereafter to insist upon the prompt, full
and complete performance by Tenant of each and all the covenants, terms and
conditions hereon thereafter to be performed in the same manner and to the same
extent as the same as herein covenanted to be performed by Tenant.
20.4 Notices. All notices to or demands upon Landlord or Tenant desired or
required to be given under any or the provisions hereof, shall be in writing.
Any notices or demands from Landlord to Tenant shall be deemed to have been duly
and sufficiently given if a copy thereof has been mailed by United States
registered or certified mail in an envelope properly stamped and addressed to
Tenant at Tenant's Address or at such address as Tenant may theretofore have
furnished by written notice to Landlord, and any notices or demands from Tenant
to Landlord shall be deemed to have been duly and sufficiently given if mailed
by United States registered or certified mail in an envelope properly stamped
and addressed to Landlord at Landlord's Address, or at such other address as
Landlord may theretofore have furnished by written notice to Tenant. The
effective date of such notice shall be three (3) days after delivery of the same
to the United States Post Office for mailing.
20.5 Short Form Lease. 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
term of the Lease.
20.6 Time of Essence. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
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20.7 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 or of partnership, or of joint venture by
the parties hereto, it being understood and agreed that no provision contained
in this Lease nor any acts of the parties hereto shall be deemed to create any
relationship other than the relationship of Landlord and Tenant.
20.8 Captions. The captions to this Lease are for convenience only and are
not to be construed as part of this Lease and shall not be construed as defining
or limiting in any way the scope or intent of the provisions hereof.
20.9 Severability. If any term or provision of this Lease shall to any
extent be held invalid or unenforceable, 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.
20.10 Law Applicable. This Lease shall be construed and enforced in
accordance with the laws of the state where the Leased Premises are located.
20.11 Covenants Binding on Successors. All of the covenants, agreements,
conditions and undertakings contained in the Lease shall extend, inure to and be
binding upon the heirs, executors, administrators, successors and assigns or the
respective parties hereto, the same as if they were in every case specifically
named, and 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. Nothing
herein contained shall be construed to grant or confer upon any person or
persons, firm, corporation or governmental authority, 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.
20.12 Brokerage. Tenant warrants that it has had no dealings with any
broker or agent in connection with this Lease other than Brokers listed in
Section 1.4(m), whose commissions Landlord covenants and agrees to pay in the
amount agreed between Landlord and Brokers. Tenant covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any other
broker or other agent with respect to this Lease or the negotiation thereof.
20.13 Landlord Means Owner. 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 and include only the owner or owners at the time in question of the
fee of the Real Estate, and in the event of any transfer or transfers of the
title to such fee, Landlord herein named (and in case of any subsequent transfer
or conveyances, the then grantor) shall be automatically freed and relieved,
from and after the date of such transfer or conveyance, of all liability as
respects the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed; provided that any funds in
the hands of such Landlord or the then grantor at the time of such transfer, in
which Tenant has an interest, shall be turned over to the grantee, and any
amount then due and payable to Tenant by Landlord or the then grantor under any
provision of this Lease, shall be paid to Tenant.
20.14 Lender's Requirements. If any mortgagee or committed financer of
Landlord 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 a manner (other than in the description of the Leased Premises,
the term, the purpose or the rent or other charges hereunder) Landlord shall
give written notice thereof to Tenant, which notice shall be accompanied by a
Lease Supplement Agreement embodying 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 Lease Supplement Agreement, or
deliver to Landlord a written statement of its reason or reasons for refusing to
so consent and execute. Failure of Tenant to respond within said ten (10) day
period shall be a default under this Lease, without further notice. If Landlord
and Tenant 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
Tenant's written statement, Landlord shall have the right to terminate this
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Lease within sixty (60) days after the end of said thirty (30) day period.
20.15 Signs. Tenant shall install no exterior sign on the Leased Premises
or the Real Estate. If Tenant desires to have an identity sign included on the
general directory sign for the Building, Tenant shall advise Landlord of the
name and logo it desires to have on its sign, and Landlord shall install a sign
showing such name and logo, which shall be the standard sign used by Landlord
for tenants on the Real Estate. Tenant shall reimburse Landlord for Landlord's
costs of producing and installing said sign within ten (10) days after being
billed therefor by Landlord.
20.16 Parking Areas. It is understood by and between the parties hereto
that parking on the Real Estate is allocated to the tenants thereof on an
unreserved basis, and Tenant, its employees and invitees may use not more than
the Number of Parking Spaces thereon. Landlord shall have no obligation to
Tenant to enforce parking limitations imposed on other tenants on the Real
Estate. If Tenant uses parking in excess of that provided for herein, and if
such excess use occurs on a regular or repeated basis, and if Tenant fails,
after written notice from Landlord, to reduce its excess use of the parking
areas, then such excess use shall constitute a default under this Lease.
20.17 Landlord's Expenses. Tenant agrees to pay on demand Landlord's
expenses, including reasonable attorney's 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 20.2, 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 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.
20.18 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 and 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.
20.19 Declaration of Protective Covenants. Tenant acknowledges that the
Leased Premises are subject to the Declaration of Protective Covenants For The
Corporate ▇▇▇▇▇, Vernon Hills, Illinois recorded August 5, 1986, as Document
2468421 in the Lake County Recorder's Office, as amended by instruments recorded
as Documents 2646364 and 2692982. (Said Declaration as so amended and as it may
be further amended from time to time is herein referred to as the "Declaration
of Protective Covenants".) Tenant covenants and agrees to maintain the Leased
Premises in accordance with the Declaration of Protective Covenants. All amounts
imposed on the Owner of the Leased Premises by said Declaration of Protective
Covenants, including without limitation payment of any costs of maintenance
allocable to the Leased Premises pursuant to Section V.F and VI.C of said
Declaration of Protective Covenants shall be deemed Impositions. Nothing herein
shall give Tenant any voting rights in the Association to be created pursuant to
Section V.A of the Declaration of Protective Covenants.
XXI. EXCULPATORY CLAUSE
21.0 Exculpatory Clause. This Lease is executed by American National Bank
and Trust Company of Chicago, Illinois, not personally but as Trustee as
aforesaid, in the exercise of the power and authority conferred upon and vested
in it as such Trustee, and under the express direction of beneficiaries of a
certain Trust Agreement dated June 11, 1985, and known as Trust Number 64661 to
all provisions of which Trust Agreement this Lease is expressly made subject. It
is expressly understood and agreed that nothing in this Lease contained shall be
construed as creating any liability whatsoever against said Trustee or said
beneficiaries, and in particular without limiting the generality of the
foregoing, there shall be no personal liability to pay any indebtedness accruing
hereunder or to perform any covenant, either express or implied, herein
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contained, to keep, preserve or sequester any property of said Trust, and that
all personal liability of said Trustee (and said beneficiaries to the extent
permitted by law), of every sort, if any, is hereby expressly waived by Tenant,
and by every person now or hereafter claiming any right or security hereunder;
and that so far as the parties hereto are concerned the owner of any
indebtedness or liability accruing hereunder shall look solely to the Trust
estate from time to time subject to the provisions of said Trust Agreement for
the payment thereof. It is further understood and agreed that the said Trustee
has no agent or employees and merely holds naked legal title to the property
herein described and has no control over the management thereof or the income
therefrom and has no knowledge respecting rentals, leases or other factual
matter with respect to said premises, except as represented to it by the
beneficiary or beneficiaries of said Trust.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, ILLINOIS, as Trustee aforesaid
Attest:
/s/ [ILLEGIBLE] BY: /s/ [ILLEGIBLE]
----------------------------- --------------------------------------
TENANT:
G & R TECHNOLOGIES
Attest:
/s/ [ILLEGIBLE] BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- --------------------------------------
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EXHIBIT "A"
LEASED PREMISES
[MAP OF ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇]
ADDENDUM
22.0 Letter of Credit. Tenant shall, not later than the Commencement Date,
deliver to Landlord an irrevocable letter of credit in the amount of Sixteen
Thousand Five Hundred Ninety and no/100 ($16,590.00) in a form and from a
financial institution acceptable to Landlord. The letter of credit shall
designate Landlord and Van Vlissingen and Co. as beneficiaries, each with the
right to alone draw on the letter of credit (in part or in whole) (i) under
circumstances set forth in Section 19.0 hereof which entitle Landlord to apply
the Security Deposit, or (ii) in the event Tenant fails to renew the letter of
credit four (4) months prior to the date of its expiration. The letter of
credit, with renewals, shall remain effective for the entire term set forth in
Section 1.1 hereof. In the event a draw is made under the letter of credit,
Tenant shall promptly deliver to Landlord a new letter of credit, cash or a
certified check in such amount as is necessary to cause the total amount of cash
and funds available to Landlord as a Security Deposit to equal Sixteen Thousand
Five Hundred Ninety and no/100 Dollars ($16,590.00). Any amounts drawn under the
letter of credit or paid in cash or certified check which are not applied upon
default shall be held by Landlord as a Security Deposit pursuant to Section
19.0.
23.0 Tenant's Improvements. Landlord, at its sole cost and expense, shall be
responsible for constructing the improvements to the Leased Premises
("Improvements") shown on the Plans and Specifications prepared by ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Associates dated Oct. 16, 1991 , which are attached hereto and made a
part hereof.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made as of the 14th day of April, 1995,
by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee
under Trust Agreement No. 116194-05 dated October 8, 1992, successor in interest
to American National Bank and Trust Company of Chicago as Trustee under Trust
Agreement No. 64561 dated June 17, 1985 ("Landlord") and G & R TECHNOLOGIES
("Tenant").
WITNESSETH:
WHEREAS, by a Lease dated November 13, 1992 ("Lease"), Landlord leased to
Tenant certain premises (the "Leased Premises") containing approximately 10,526
square feet of space, commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
WHEREAS, Landlord and Tenant now wish to expand the Leased Premises to
include an additional 4,409 square feet of space, to extend the term of the
Lease and to amend the Lease in certain other respects, all as set forth below.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Landlord
and Tenant agree as follows:
1. Addition of Space. As of June 1, 1995 (the "Effective Date"), the
Leased Premises shall be expanded to include approximately 4,409 square feet of
space located east and adjacent to the Leased Premises as shown on the attached
Exhibit "A" (the "Additional Space").
2. Possession. Except as specifically set forth in Paragraph 7 hereof,
Landlord shall deliver possession of the Additional Space in "as-is" condition
as of the Effective Date. Upon taking possession of the Additional Space, Tenant
shall deliver to Landlord an estoppel certificate reasonably satisfactory to
Landlord. If Landlord is unable to give possession of the Additional Space to
Tenant on June 1, 1995, Landlord shall not be subject to any liability for
failure to give possession, but the rent to be paid for the Additional Space
shall not commence until the date on which possession is delivered to Tenant.
3. Extension. The term of the Lease is hereby extended to May 31, 2000 on
the same terms and conditions as set forth in the Lease except as modified
herein and unless sooner terminated pursuant to the terms of the Lease.
4. Rent. As of the Effective Date, Section 1.4(b) of the Lease is hereby
amended to read as follows:
Monthly
Period Annual Rent Installments
------ ----------- ------------
6/1/95 - 5/31/96 $154,228.55 $12,856.55
6/1/96 - 5/31/97 $156,668.15 $13,055.68
6/1/97 - 5/31/98 $159,057.75 $13,254.81
6/1/98 - 5/31/99 $161,447.35 $13,453.95
6/1/99 - 5/31/00 $163,836.95 $13,653.08
5. Proportionate Share. As of the Effective Date, Section 1.2 of the Lease
is hereby amended by deleting the figure "Twelve and 10/100 percent (12.10%)"
and substituting therefor the figure "Seventeen and 17/100 percent (17.17%)."
6. Parking. As of the Effective Date, Section 1.4(n) of the Lease is
amended to provide for a maximum of forty-two (42) Parking Spaces.
7. Work. Landlord shall, at Landlord's expense, perform the following work
with respect to the Additional Space:
(a) Create an 8' X 10' opening to connect the warehouse area of the Leased
Premises with the warehouse area of the Additional Space;
(b) Create an 3' X 9' opening to connect the office area of the Leased
Premises with the office area of the Additional Space; and
(c) Construct an open office area as shown on Exhibit "A" attached hereto,
with one (1) 12' X 18' conference room, using Landlord's building standard
materials.
8. Real Estate Brokers. Tenant represents that Tenant has dealt directly
with and only with Van Vlissingen and Co. as brokers in connection with this
Second Amendment and that no other broker acting by, through, or under Tenant
negotiated this Second Amendment or is entitled to any commission in connection
therewith. Tenant indemnifies and holds Landlord harmless from all claims of any
broker or brokers, other than that broker named above, in connection with its
Second Amendment, to the extent that such broker is claiming by, through, or
under Tenant.
9. Lease in Full Force and Effect. Except for the provisions of this
Amendment, all the terms, covenants, and conditions of the Lease and all the
rights and obligations of Landlord and Tenant thereunder, shall remain in full
force and effect, and are not otherwise altered, amended, revised or changed.
2
10. Estoppel. Tenant hereby acknowledges that as of the date hereof,
Tenant has no claims arising under the Lease against Landlord or its agents, or
any one or more of the foregoing, and that Tenant knows of no default or failure
on the part of Landlord to keep or perform any covenant, condition or
undertaking to be kept or performed by Landlord under the Lease. Tenant hereby
releases Landlord from any liability arising under the Lease prior to the date
hereof.
11. Trust Exculpation. This Amendment is executed by the undersigned
trustee, not personally, but solely as trustee, and it is expressly understood
and agreed by the parties hereto that each and all of the covenants,
undertakings, representations, and agreements herein made, are made and
intended, not as personal covenants, undertakings, representations, and
agreements of the trustee individually, but this Amendment is executed and
delivered by the trustee solely in the exercise of the powers conferred upon it
as such trustee, and no personal liability or responsibility is assumed by, nor
shall at any time be asserted or enforced against said bank or the beneficiaries
of said trustee on account hereof, all such personal liability being hereby
expressly waived and released by the parties hereto, and by all persons claiming
by, through, or under said parties. It is expressly understood and agreed that
any claims by the Tenant against the Landlord in case of default by Landlord in
the performance of its obligations under the Lease or this Agreement shall be
payable out of and only out of the trust estate.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date first above written.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, not
personally, but as Trustee
aforesaid
Attest: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
----------------------- -------------------
Vice President President
Van Vlissinger and Co.
Owner's Authorized Agent
G & R TECHNOLOGIES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
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