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EXHIBIT 10.28
INDUSTRIAL BUILDING LEASE
LANDLORD:
CENTERPOINT PROPERTIES TRUST,
a Maryland real estate investment trust
TENANT:
▇▇▇▇▇▇▇▇.▇▇▇, INC.
a Delaware corporation
Property Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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TABLE OF CONTENTS
ARTICLE I
Lease Terms ......................................................... 1
Section 1.1. Definitions ......................................... 1
Section 1.2. Significance of Definitions ......................... 2
Section 1.3. Enumeration of Exhibits ............................. 2
ARTICLE II
Premises ............................................................ 2
Section 2.1. Lease ............................................... 2
ARTICLE III
Term ................................................................ 2
Section 3.1. Term ................................................ 2
ARTICLE IV
Condition of Demised Premises ....................................... 3
Section 4.1. Condition of Premises ............................... 3
ARTICLE V
Rent ................................................................ 3
Section 5.1. Base Rent ........................................... 3
Section 5.2. Base Rent Adjustment ................................ 3
Section 5.3. Interest and Late Charges on Late Payments .......... 5
ARTICLE VI
Utilities ........................................................... 6
Section 6.1. Utilities ........................................... 6
ARTICLE VII
Use ................................................................. 6
Section 7.1. Use ................................................. 6
Section 7.2. Prohibited Uses ..................................... 6
ARTICLE VIII
Maintenance, Repair and Replacements of Premises .................... 6
Section 8.1. Maintenance ......................................... 6
Section 8.2. Governmental Requirements ........................... 7
Section 8.3. Tenant's Responsibilities ........................... 7
ARTICLE IX
Tenant's Insurance .................................................. 7
Section 9.1. Coverage Required ................................... 7
Section 9.2. Policies ............................................ 9
Section 9.3. Subrogation ......................................... 9
Section 9.4. Miscellaneous Insurance Provisions .................. 9
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ARTICLE X
Damage or Destruction ............................................... 10
Section 10.1. Total Damage ........................................ 10
Section 10.2. Partial Damage ...................................... 11
ARTICLE XI
Liens ............................................................... 11
Section 11.1. Lien Claims ......................................... 11
Section 11.2. Landlord's Right to Cure ............................ 11
ARTICLE XII
Tenant Alterations .................................................. 12
Section 12.1. Alterations ......................................... 12
Section 12.2. Ownership of Alterations ............................ 12
Section 12.3. Signs ............................................... 12
Section 12.4. Tenant Indemnity .................................... 13
Section 12.5. Environmental Impact ................................ 13
ARTICLE XIII
Condemnation ........................................................ 13
Section 13.1. Taking: Lease to Terminate ......................... 13
Section 13.2. Taking: Lease to Continue .......................... 13
ARTICLE XIV
Assignment -- Subletting by Tenant .................................. 13
Section 14.1. No Assignment, Subletting or Other Transfer ......... 13
Section 14.2. Operation of Law .................................... 14
Section 14.3. Excess Rental ....................................... 14
Section 14.4. Merger or Consolidation ............................. 14
Section 14.5. Unpermitted Transaction ............................. 14
ARTICLE XV
Annual Statements ................................................... 15
Section 15.1. Annual Statements ..................................... 15
ARTICLE XVI
Indemnity for Litigation ............................................ 15
Section 16.1. Indemnity for Litigation ............................ 15
ARTICLE XVII
Estoppel Certificates ............................................... 15
Section 17.1. Estoppel Certificate ................................ 15
ARTICLE XVIII
Inspection of Premises .............................................. 15
Section 18.1. Inspections ......................................... 15
Section 18.2. Signs ............................................... 15
ARTICLE XIX
Fixtures ............................................................ 16
Section 19.1. Building Fixtures ................................... 16
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Section 19.2. Tenant's Equipment .................................. 16
Section 19.3. Removal of Tenant's Equipment ....................... 16
ARTICLE XX
Default 16
Section 20.1. Events of Default ................................... 16
Section 20.2. Waivers ............................................. 17
Section 20.3. Bankruptcy .......................................... 18
ARTICLE XXI
Landlord's Performance of Tenant's Covenants ........................ 19
Section 21.1. ....................................................... 19
ARTICLE XXII
Exercise of Remedies ................................................ 19
Section 22.1. Cumulative Remedies ................................... 19
Section 22.2. No Waiver ............................................. 19
Section 22.3. Equitable Relief ...................................... 20
ARTICLE XXIII
Subordination to Mortgages .......................................... 20
Section 23.1. Subordination ....................................... 20
Section 23.2. Mortgage Protection ................................. 20
ARTICLE XXIV
Indemnity and Waiver ................................................ 20
Section 24.1. Indemnity ........................................... 20
Section 24.2. Waiver of Claims .................................... 21
ARTICLE XXV
Surrender ........................................................... 22
Section 25.1. Condition ........................................... 22
Section 25.2. Removal of Tenant's Equipment ....................... 22
Section 25.3. Holdover ............................................ 22
ARTICLE XXVI
Covenant of Quiet Enjoyment ......................................... 22
Section 26.1. Covenant of Quiet Enjoyment ......................... 22
ARTICLE XXVII
No Recording ........................................................ 23
Section 27.1. No Recording ........................................ 23
ARTICLE XXVIII
Notices ............................................................. 23
Section 28.1. Notices ............................................. 23
ARTICLE XXIX
Covenants Run with Land ............................................. 23
Section 29.1. Covenants ........................................... 23
Section 29.2. Release of Landlord ................................. 23
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ARTICLE XXX
Environmental Matters ............................................... 24
Section 30.1. Defined Terms ....................................... 24
Section 30.2. Tenant's Covenants with Respect to
Environmental Matters ............................... 25
Section 30.3. Conduct of Tenant ................................... 26
Section 30.4. Exacerbation ........................................ 27
Section 30.5. Rights of Inspection ................................ 27
Section 30.6. Copies of Notices ................................... 27
Section 30.7. Tests and Reports ................................... 27
Section 30.8. Indemnification ..................................... 28
Section 30.9. Tenant Acknowledgments with respect to
Environmental Matters ............................... 29
Section 30.10. No Liability of Landlord ............................ 29
ARTICLE XXXI
Security Deposit .................................................... 30
Section 31.1. Security Deposit .................................... 30
ARTICLE XXXII
Miscellaneous ....................................................... 30
Section 32.1. Captions ............................................ 30
Section 32.2. Severability ........................................ 30
Section 32.3. Applicable Law ...................................... 30
Section 32.4. Amendments in Writing ............................... 30
Section 32.5. Relationship of Parties ............................. 30
Section 32.6. Brokerage ........................................... 31
Section 32.7. No Accord and Satisfaction .......................... 31
Section 32.8. Joint Effort ........................................ 31
Section 32.9. Waiver of Jury Trial ................................ 31
Section 32.10. Time ................................................ 31
Section 32.11. Landlord's Consent .................................. 31
Section 32.12. No Partnership ...................................... 31
Section 32.13. Landlord's Liability ................................ 31
Section 32.14. Landlord Rights ..................................... 31
Section 32.15. Entire Agreement .................................... 32
Section 32.16. Rent Absolute ....................................... 32
Section 32.17. Tenant Authority .................................... 32
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Property Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
INDUSTRIAL BUILDING LEASE
THIS LEASE is made as of this 15 day of November, 1999 between
CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
("Landlord"), and ▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation ("Tenant").
1 ARTICLE LEASE TERMS
SECTION 1.1. SECTION DEFINITIONS. In addition to the other terms,
which are elsewhere defined in this Lease, the following terms and phrases,
whenever used in this Lease shall have the meanings set forth in this Section
1.1, and only such meanings, unless such meanings are expressly contradicted,
limited or expanded elsewhere herein.
A. BASE RENT SCHEDULE:
ANNUAL MONTHLY
PERIOD BASE RENT BASE RENT
------ --------- ---------
November 15, 1999-November 30, 2000 $462,072.00 $38,506.00
December 1, 2000-November 30, 2001 $471,313.44 $39,276.12
December 1, 2001-November 30, 2002 $480,739.70 $40,061.64
B. SECURITY DEPOSIT: $38,506.00
C. TENANT'S PROPORTION: 80.32%
D. INITIAL TERM: The initial three (3) full year term, commencing
as of the Commencement Date.
E. COMMENCEMENT DATE: November 15, 1999
F. TERMINATION DATE: November 30, 2001
G. TERM: The Initial Term as same may be extended or sooner
terminated.
H. USE: Warehousing and distribution of equipment and supplies
related to the medical or aircraft industry.
I. LANDLORD'S MAILING ADDRESS:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
J. TENANT'S MAILING ADDRESS:
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
K. LANDLORD'S BROKER: Colliers Bennet & Kahnweiler
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L. TENANT'S BROKER: None
SECTION 1.2. SIGNIFICANCE OF DEFINITIONS. Each reference in this
Lease to any of the Definitions contained in Section 1.1 of this Article shall
be deemed and construed to incorporate all of the terms provided under each such
Definition.
SECTION 1.3. ENUMERATION OF EXHIBITS. The exhibits in this Section
and attached to this Lease are incorporated in this Lease by this reference and
are to be construed as a part of this Lease.
EXHIBIT "A" - Premises
EXHIBIT "B" - Legal Description
EXHIBIT "C" - Form of Estoppel Certificate
ARTICLE II
PREMISES
SECTION 2.1. LEASE. Landlord, for and in consideration of the rents
herein reserved and of the covenants and agreements herein contained on the part
of Tenant to be kept, observed and performed, does by these presents, lease to
Tenant, and Tenant hereby leases from Landlord, the demised premises
("Premises"), being depicted in the plan attached hereto as EXHIBIT "A" in the
building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Building"),
and legally described on EXHIBIT "B" attached hereto and by this reference
incorporated herein ("Land") (the Land and Building are sometimes collectively
referred to as the "Project"), subject to covenants, conditions, agreements,
easements, encumbrances and restrictions of record as of the date hereof
affecting the Land and the Building ("Restrictions").
ARTICLE III
TERM
SECTION 3.1. TERM. The Initial Term of this Lease shall commence on
the Commencement Date and shall end on the Termination Date, unless sooner
terminated as hereinafter set forth. If the Commencement Date is a day other
than the first (1st) day of a calendar month, the Initial Term shall expire
thirty six (36) full calendar months after the first (1st) day of the first
(1st) full calendar month after the Commencement Date and shall, accordingly,
include the period between the Commencement Date and the end of the calendar
month in which the Commencement Date occurs, with Rent (as hereinafter defined)
for such partial month to be calculated pro rata on a daily basis. If the
Landlord shall be unable to give possession of the Premises on the Commencement
Date for any reason the Rent reserved and covenanted to be paid herein shall not
commence until the Premises are available for occupancy by Tenant. No such
failure to give possession on the Commencement Date of the Term hereof shall
subject Landlord to any liability for failure to give possession nor shall same
affect the validity of this Lease or the obligation of the Tenant hereunder, nor
shall the same be construed to extend the Term. At the option of Landlord to be
exercised within thirty (30) days of the delayed delivery of possession to
Tenant, the Lease shall be amended so that the Term shall be extended by the
period of time possession is delayed. Notwithstanding the foregoing, in the
event the Premises are not delivered to Tenant by January 1, 2000, Tenant shall
have the right to terminate this Lease upon notice to Landlord delivered on or
before January 10, 2000.
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ARTICLE IV
CONDITION OF DEMISED PREMISES
SECTION 4.1. CONDITION OF PREMISES. Tenant agrees to accept the
Premises in an absolutely "as-is" condition, and Tenant acknowledges that
Landlord, its agents, attorneys, representatives and employees have not and do
not make any representations or warranties, express or implied, to Tenant
regarding the Premises or the Project, including, but not limited to: (i) the
zoning of the Premises or the Project; (ii) the condition of any underground,
above ground or surface improvements; (iii) the size, area, use or type of the
Premises or the fitness of the Premises for any intended or particular use; (iv)
the nature of the soil on and underlying the Premises or the Project or its
suitability for development or any other use thereof; (v) any financial
information pertaining to the operation of the Premises or the Project; (vi) the
status of any requirements or obligations imposed, implied or to be undertaken
by the owner or developer of the Premises or the Project pursuant to any zoning,
subdivision, development laws or agreements with any governmental entities;
(vii) the presence or absence of any toxic wastes, hazardous materials or
structural defects in, on or under the Premises or the Project or any
improvements thereon; or (viii) the presence or absence of any rights of any
governmental authority, or of owners of property in the vicinity of the Premises
or the Project, to obtain reimbursement, recapture or special assessments from
any owner of the Premises or the Project for all or a portion of the cost of any
utilities, roads or other improvements heretofore or hereafter located on or in
the vicinity of the Premises or the Project, any and all such representations
and warranties, express or implied, being hereby expressly waived by Tenant and
disclaimed by Landlord. Tenant waives any claim that may exist for patent and/or
latent defects or for mutual or unilateral mistake of fact. No promise of
Landlord to alter, remodel, decorate, clean or improve the Premises or any
portion thereof and no representation respecting the condition of the Premises
or any portion thereof have been made by Landlord to Tenant.
Notwithstanding the foregoing, Landlord agrees that the HVAC,
mechanical, electrical and plumbing systems will be in working order on the
Commencement Date.
Landlord further agrees to clean the warehouse floor and to paint all
walls in the warehouse (including the columns), office and restrooms in the
Premises (collectively, "Work"), provided Tenant shall pay all costs incurred by
Landlord in connection with the Work. Landlord shall provide Tenant with
estimates for the cost of the Work and Tenant shall pay the amount set forth in
such estimate to Landlord within five (5) days after delivery of such estimates.
In the event the actual cost of the Work exceeds the estimates, Tenant will pay
such excess to Landlord within five (5) days after notice from Landlord.
ARTICLE V
RENT
SECTION 5.1. BASE RENT. In consideration of the leasing aforesaid,
Tenant agrees to pay Landlord, without offset or deduction, base rent for the
Initial Term ("Base Rent"), payable monthly in advance in the amount of the
Monthly Base Rent set forth in the Base Rent Schedule commencing on the
Commencement Date and continuing on the first (1st) day of each month thereafter
for the balance of the Term of this Lease, and in addition thereto, shall pay
such charges as are herein described as "Additional Rent". The term "Rent" when
used in this Lease shall include all Base Rent payable under this Section 5.1.,
as well as the charges herein described as Additional Rent. All Rent payable
hereunder shall be payable to Landlord at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or as Landlord may otherwise from time to time
designate in writing.
SECTION 5.2. BASE RENT ADJUSTMENT. In addition to the Base Rent payable
by Tenant hereunder, Tenant shall pay to Landlord, as Additional Rent, the Rent
Adjustment described in this Section 5.2 without set off or deduction.
A. For the purposes of this Lease:
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(1) The term "Calendar Year" shall mean each
calendar year or a portion thereof during the Term.
(2) The term "Expenses" shall mean and include all
expenses paid or incurred by Landlord or its beneficiaries for
managing, owning, maintaining, operating, insuring, replacing
and repairing the Project, the Land, appurtenances and personal
property used in conjunction therewith. Expenses shall not
include (i) depreciation charges, (ii) interest and principal
payments on mortgages, (iii) ground rental payments, (iv) real
estate brokerage and leasing commissions, (v) legal fees for the
negotiation or enforcement of leases, (vi) Taxes, (vii) cost of
repair from a casualty or taking, and (viii) cost of altering
the space of other tenants. Notwithstanding the foregoing, the
cost of any Capital Item (defined below) shall be amortized at
the Lease Interest Rate (as hereinafter defined) over the useful
economic life of the replacement and Expenses shall include, on
an annual basis, that portion of said amortized cost which
relates to the portion of the Term (including any renewal term)
remaining hereunder commencing on the date of the replacement
and ending on the Termination Date (including any renewal term).
"Capital Items" as used herein shall mean any replacement to the
Premises, the Building or the Project the cost of which is
deemed to be a capital expenditure in accordance with generally
accepted accounting principles. If the Building is not fully
occupied during all or a portion of any Calendar Year, then
Landlord may elect to make an appropriate adjustment of the
Expenses which vary due to occupancy for such Calendar Year
employing sound accounting and management principles, to
determine the amount of Expenses that would have been paid or
incurred by Landlord had the Building been fully occupied and
the amount so determined shall be the amount of Expenses
attributable to such Calendar Year.
(3) The term "Rent Adjustments" shall mean all
amounts owed by Tenant as Additional Rent on account of Expenses
or Taxes, or both.
(4) The term "Rent Adjustment Deposit" shall mean an
amount equal to Landlord's estimate of Rent Adjustments due for
any Calendar Year made from time to time during the Term.
(5) 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 governmental charge, general, special, ordinary
or extraordinary, which accrue during the Term and are levied or
assessed or become a lien against the Project or any portion
thereof in any Calendar Year during the Term and any tax in
substitution of any of the foregoing; provided, however, in
determining the income of Landlord with respect to any such
substituted tax, only the income derived from the Building shall
be included. Taxes shall not include any franchise, capital,
stock, transfer, inheritance or income (other than rental
income) tax imposed on Landlord. In case of special taxes or
assessments which may be payable in installments, only the
amount of each installment and interest paid thereon paid during
a Calendar Year shall be included in Taxes for that Calendar
Year. Taxes shall also include any personal property taxes
(attributable to the year in which paid) imposed upon the
furniture, fixtures, machinery, equipment, apparatus, systems
and appurtenances of Landlord to the extent used in connection
with the operation of the Building. Taxes also include
Landlord's reasonable costs and expenses (including reasonable
attorney's fees) in contesting or attempting to reduce any taxes
assessed during the Term and any extension or renewal thereof.
Taxes shall be reduced by any recovery or refund received of
Taxes previously paid by the Landlord, provided such refund
relates to taxes paid during the Term of this Lease.
B. Tenant shall pay to the Landlord as Additional Rent Tenant's
Proportion of the amount by which Expenses and
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Taxes attributable to each Calendar Year of the Term exceed the amount
of Expenses and Taxes attributable to calendar year 1999. The amount of
Taxes attributable to a Calendar Year shall be the amount assessed for
any such Calendar Year, even though the assessment for such Taxes may be
payable in a different Calendar Year.
C. As soon as reasonably feasible after the expiration of each
Calendar Year, Landlord will furnish Tenant a statement ("Adjustment
Statement") showing the following:
(1) Expenses and Taxes for Calendar Year last ended and the
amount of Expenses and Taxes payable by Tenant for such Calendar
Year;
(2) The amount of Rent Adjustments due Landlord for the
Calendar Year last ended, less credits for Rent Adjustment
Deposits paid, if any; and
(3) The Rent Adjustment Deposit due in the current Calendar
Year.
D. Within thirty (30) days after Tenant's receipt of each
Adjustment Statement, Tenant shall pay to Landlord:
(1) The amount of Rent Adjustment shown on said statement to
be due Landlord for the Calendar Year last ended; plus
(2) The amount, which when added to the Rent Adjustment
Deposit theretofore paid in the current Calendar Year would
provide that Landlord has then received such portion of the Rent
Adjustment Deposit as would have theretofore been paid to
Landlord had Tenant paid one twelfth (1/12) of the Rent
Adjustment Deposit, for the current Calendar Year, to Landlord
monthly on the first (1st) day of each month of such Calendar
Year.
Commencing on the first (1st) day of the first (1st) month after
Tenant's receipt of each Adjustment Statement, and on the first day of
each month thereafter until Tenant receives a more current Adjustment
Statement, Tenant shall pay to Landlord one twelfth (1/12) of the Rent
Adjustment Deposit shown on said statement. During the last complete
Calendar Year, Landlord may include in the Rent Adjustment Deposit its
estimate of the Rent Adjustment which may not be finally determined
until after the expiration of the Term. The Tenant's obligation to pay
the Rent Adjustment and Landlord's obligation to refund any excess Rent
Adjustment Deposits shall survive the Term.
E. Tenant's payment of the Rent Adjustment Deposit for each
Calendar Year shall be credited against the Rent Adjustments for such
Calendar Year. All Rent Adjustment Deposits may be co-mingled and no
interest shall be paid to Tenant thereon. If the Rent Adjustment Deposit
paid by Tenant for any Calendar Year exceeds the Rent Adjustments for
such Calendar Year, then Landlord shall give a credit to Tenant in an
amount equal to such excess against the Rent Adjustments due for the
next succeeding Calendar Year, except that if any such excess relates to
the last Calendar Year of the Term, then, provided that Tenant is not in
default for the nonpayment of Rent due hereunder, Landlord shall refund
such excess to Tenant.
F. Tenant or its representative shall have the right to examine
Landlord's books and records with respect to the items in the Adjustment
Statement during normal business hours at any time within thirty (30)
days following the furnishing by Landlord to Tenant of such Adjustment
Statement. Unless Tenant shall take written exception to any item within
thirty (30) days after the furnishing of the foregoing statement, such
statement shall be considered as final and accepted by Tenant. Any
amount due to Landlord as shown on any such statement, whether or not
written exception is taken thereto, shall be paid
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by Tenant within thirty (30) days after Landlord shall have submitted
the statement, without prejudice to any such written exception.
G. If the Commencement Date is on any day other than the first
(1st) day of January or if the Termination Date is on any day other than
the last day of December, then any Rent Adjustments due Landlord shall
be prorated.
SECTION 5.3. INTEREST AND LATE CHARGES ON LATE PAYMENTS . Rent not paid
within five (5) days of the date 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 of interest equal to the rate of interest announced from time
to time by the First National Bank of Chicago as its Corporate Base Rate, plus
three percent (3%), unless a lesser rate shall then be the maximum rate
permissible by law, in which event said lesser rate shall be charged ("Lease
Interest Rate"). The term "Corporate Base Rate" means that rate of interest
announced by The First National Bank of Chicago ("First") from time to time as
its "Corporate Base Rate" of interest, changing automatically and simultaneously
with each change in the Corporate Base Rate made by First from time to time. Any
publication issued or published by First from time to time or a certificate
signed by an officer of First stating its Corporate Base Rate as of a date shall
be conclusive evidence of the Corporate Base Rate on that date. Tenant further
acknowledges that its late payment of any Rent will cause Landlord to incur
certain costs and expenses not contemplated under this Lease, the exact amount
of which is extremely difficult or impracticable to fix. Such costs and expenses
will include, without limitation, loss of use of money, administrative and
collection costs and processing and accounting expenses. Therefore, if any
installment of monthly Base Rent is not received by Landlord within five (5)
days of the date when due or any other sum due hereunder is not paid when due,
Tenant shall immediately pay to Landlord a late charge equal to three percent
(3%) of the unpaid amount. Such late charge is in addition to any interest due
pursuant to the first (1st) sentence of this Section 5.3. Landlord and Tenant
agree that this late charge represents a reasonable estimate of costs and
expenses incurred by Landlord from, and is fair compensation to Landlord for,
its loss suffered, by such non-payment by Tenant. Acceptance of the late charge
shall not constitute a waiver of Tenant's default with respect to such
non-payment by Tenant or prevent Landlord from exercising any other rights and
remedies available to Landlord under this Lease. Failure to pay the late charge
shall constitute a default under this Lease.
ARTICLE VI
UTILITIES
SECTION 6.1. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, all costs of natural gas, electricity, heat, light, power, sewer
service, telephone, water, refuse disposal and other utilities and services
supplied to the Premises. Landlord shall, at Landlord's sole cost and expense,
separately meter the Premises. If, however, at any time, any services or
utilities are jointly metered, Landlord shall make a reasonable determination of
Tenant's Proportionate share thereof and Tenant shall pay its proportionate
share, as Additional Rent hereunder, within fifteen (15) days after receipt of
Landlord's written statement. Landlord shall not in any way be liable or
responsible to Tenant for any cost or damage or expense which Tenant may sustain
or incur if either the quality or character of such service is changed or is no
longer available or suitable for Tenant's requirements unless that quality or
character of such service is altered as a result of the negligence or willful
misconduct of Landlord.
ARTICLE VII
USE
SECTION 7.1. USE. The Premises shall be used for the Use only, and for
no other purpose.
SECTION 7.2. PROHIBITED USES. Tenant shall not permit the Premises, or
any portion thereof, to be used in such manner which impairs Landlord's right,
title or interest in the Premises or any portion thereof, or in such manner
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which gives rise to a claim or claims of adverse possession or of a dedication
of the Premises, or any portion thereof, for public use. Tenant shall not use or
occupy the Premises or permit the Premises to be used or occupied contrary to
any statute, rule, order, ordinance, requirement, regulation or restrictive
covenant applicable thereto or in any manner which would violate any certificate
of occupancy affecting the same or which would render the insurance thereon void
or the insurance risk more hazardous, or which would cause structural injury to
the Building or cause the value or usefulness of the Premises or any part
thereof to materially diminish or which would constitute a public or private
nuisance or waste, and Tenant agrees that it will, promptly upon discovery of
any such use, immediately notify Landlord and take all necessary steps to compel
the discontinuance of such use. 1.4.
ARTICLE VIII
MAINTENANCE, REPAIR AND REPLACEMENTS OF PREMISES
SECTION 8.1 MAINTENANCE.
A. TENANT'S MAINTENANCE. Subject to Landlord's obligations set
forth in Section 8.1.B below, Tenant agrees, at Tenant's sole cost and expense,
to take good care of the Premises and keep same and all parts thereof, together
with any and all alterations and additions thereto, in good order, condition and
repair, suffering no waste or injury. Tenant shall, at its sole cost and
expense, promptly make all necessary repairs and replacements, ordinary as well
as extraordinary, foreseen as well as unforeseen, in and to any equipment now or
hereafter located in the Premises, including without limitation, water, sewer,
gas, HVAC and electricity connections, pipes, mains and all other fixtures,
machinery, apparatus, equipment, overhead cranes and appurtenances now or
hereafter belonging to, connected with or used in conjunction with the Premises.
All such repairs and replacements shall be of first class quality and sufficient
for the proper maintenance and operation of the Premises. Tenant shall keep and
maintain the Premises safe, secure and clean, specifically including, but not by
way of limitation, removal of waste and refuse matter. Tenant shall not permit
anything to be done upon the Premises (and shall perform all maintenance and
repairs thereto so as not) to invalidate, in whole or in part, or prevent the
procurement of any insurance policies which may, at any time, be required under
the provisions of this Lease. Tenant shall not obstruct or permit the
obstruction of any parking area, adjoining street or sidewalk.
B. LANDLORD'S MAINTENANCE. Subject to the provisions of Articles X
and XIII hereof, Landlord shall keep, maintain, repair and replace the roof and
structural members of the Building and the parking lot, sidewalks and
appurtenances thereto, including, as necessary, snow and ice removal and the
cost thereof shall be deemed an Expense. In addition to the foregoing, to the
extent that any component of the Building (other than structural components)
requires replacement and if such replacement constitutes a capital expenditure
under generally accepted accounting principals, then Landlord shall, at its
cost, replace the item in question and the cost thereof shall be included in
Expenses in the manner set forth in Section 5.2(A)(2) hereof.
SECTION 8.2. GOVERNMENTAL REQUIREMENTS. Tenant at its own cost and
expense also shall promptly comply with any and all governmental requirement to
or affecting the Premises or any part thereof, irrespective of the nature of the
work required to be done, extraordinary as well as ordinary, whether or not the
same involve or require any structural changes or additions in or to the
Improvements to the extent such changes or additions be required on account of
any particular use to which the Premises or any part thereof are being put.
Included in the obligations set forth above, but not in limitation thereof,
Tenant, at its own cost and expense, shall promptly comply with OSHA regulations
relating to overhead cranes (CFR 1910-179(j)(2) and 184(d), CFR 1910-179(j)(3),
CFR 1910-179(e)(1) through (4) and CFR 1910-179(b)(5)).
SECTION 8.3. TENANT'S RESPONSIBILITIES . Landlord shall not be required
to furnish any services or facilities whatsoever to the Premises. Except as set
forth in Section 8.1.B. above, Tenant hereby assumes full and sole
responsibility for condition, operation, repair, alteration, improvement,
replacement, maintenance and management
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of the Premises. Landlord shall not be responsible for any loss or damage to the
person or property of Tenant, any guests or invitees, any persons using or
working on the Premises, or any persons claiming by, through or under, or any
agents, employees, heirs, legal representatives, successors or assigns of, any
of the foregoing except to the extent the same arise out of the negligent act or
wilful misconduct of Landlord.
ARTICLE IX
TENANT'S INSURANCE
SECTION 9.1. COVERAGE REQUIRED. Tenant shall procure and maintain, or
cause to be maintained, at all times during the term of this Lease, at Tenant's
sole cost and expense, and until each and every obligation of Tenant contained
in the Lease has been fully performed, the types of insurance specified below,
with insurance companies authorized to do business in the State of Illinois
covering all operations under this Lease, whether performed by Tenant or by
Contractors. For purposes of this Article IX, "Contractors" shall mean Tenant
and contractors and subcontractors and materialmen of any tier providing
services, material, labor, operation or maintenance on, about or adjacent to the
Premises, whether or not in privity with Tenant.
A. IN GENERAL. Upon execution of the Lease, Tenant shall
procure and maintain the following kinds and amounts of
insurance:
(i) WORKER'S COMPENSATION AND OCCUPATIONAL DISEASE
INSURANCE. Worker's Compensation and Occupational Disease
Insurance, in statutory amounts, covering all employees who
provide a service under this Lease. Employer's liability
coverage with limits of not less than $100,000 each accident or
illness shall be included.
(ii) COMMERCIAL LIABILITY INSURANCE (PRIMARY AND
UMBRELLA). Commercial Liability Insurance or equivalent with
limits of not less than $5,000,000 per occurrence, combined
single limit, for bodily injury, personal injury, and property
damage liability. Products/completed operation, independent
contractors, broad form property damage and contractual
liability (with no limitation) coverages are to be included.
Landlord is to be named as additional insureds, on a primary,
non-contributory basis for any liability, arising directly or
indirectly from this Lease.
(iii) AUTOMOBILE LIABILITY INSURANCE. When any motor
vehicles are used in connection with this Lease, Tenant shall
provide Automobile Liability Insurance with limits of not less
than $2,000,000 per occurrence combined single limit, for
bodily and property damage. Landlord is to be named as
additional insureds on a primary non-contributory basis.
(iv) CONTENTS INSURANCE. Insurance against fire,
sprinkler leakage, vandalism, and the extended coverage perils
for the full insurable value of all contents of Tenant within
the Premises, and of all office furniture, trade fixtures,
office equipment, merchandise and all other items of Tenant's
property on the Premises and business interruption insurance.
B. CONSTRUCTION. During any construction performed by or on
behalf of Tenant, Tenant shall procure and maintain, or cause to
be maintained, the following kinds and amounts of insurance:
(i) WORKER'S COMPENSATION AND OCCUPATIONAL DISEASE
INSURANCE. Worker's Compensation and Occupational Disease
Insurance, in statutory amounts, covering all employees who are
to provide a service under this construction. Employer's
liability coverage with limits of not less than $500,000 for
each accident or illness shall be included.
(ii) COMMERCIAL LIABILITY INSURANCE (PRIMARY AND
UMBRELLA). Commercial Liability Insurance or equivalent with
limits of not less than $5,000,000 per occurrence, combined
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single limit, for bodily injury, personal injury, and property
liability. Products/completed operations, explosion, collapse,
underground, independent contractors, broad form property damage
and contractual liability coverages are to be included. Landlord
is to be named as additional insureds on a primary
non-contributory basis for any liability arising directly or
indirectly from the Lease.
(iii) AUTOMOBILE LIABILITY INSURANCE (PRIMARY AND
UMBRELLA). When any motor vehicles are used in connection with
work to be performed, Tenant or contractor shall provide
Automobile Liability Insurance with limits of not less than
$5,000,000 per occurrence combined single limit, for bodily
injury and property damage. Landlord is to be named as an
additional insured on a primary non-contributory basis.
(iv) ALL RISK BUILDERS RISK INSURANCE. Tenant or
Contractor shall provide All Risk Blanket Builder's Risk
Insurance to cover the materials, supplies, equipment, machinery
and fixtures that are or will be part of the Project. Coverage
extensions shall include the following: right to partial
occupancy, material stored off-site and in-transit, boiler and
machinery, earthquake, flood (including surface water backup),
collapse, water damage, debris removal, faulty workmanship or
materials, testing, mechanical-electrical breakdown and failure,
deletion of freezing and temperature exclusions, business
interruption, extra expense, loss of revenue, loss of rents and
loss of use of property, as applicable, Landlord shall be named
as loss payee.
(v) PROFESSIONAL LIABILITY. When any architects,
engineers, or consulting firms perform work in connection with
this Lease, Professional Liability Insurance shall be maintained
with limits of $1,000,000. The policy shall have an extended
reporting period of two (2) years. When policies are renewed or
replaced, the policy retroactive date must coincide with, or
precede, start of work.
SECTION 9.2. POLICIES. All insurance policies shall be written with
insurance companies and shall be in form satisfactory to Landlord. All insurance
policies shall name Landlord as an additional insured and loss payee as their
respective interests may appear and shall provide that they may not be
terminated or modified without thirty (30) days' advance written notice to
Landlord. All policies shall also contain an endorsement that Landlord, although
named as additional insured, shall nevertheless be entitled to recover for
damages caused by the negligence of Tenant. The minimum limits of insurance
specified in this Section shall in no way limit or diminish Tenant's liability
under this Lease. Tenant shall furnish to Landlord, not less than five (5) days
prior to the Commencement Date for the insurance required in Section 9.1.A.
above and not less than fifteen (15) days prior to the date any additional
insurance is first required to be carried by Tenant, and thereafter at least
fifteen (15) days prior to the expiration of each such policy, true and correct
photocopies of all insurance policies required under this Section, together with
any amendments and endorsements to such policies, certificates of insurance, and
such other evidence of coverages as Landlord may reasonably request, and
evidence of payment of all premiums and other expenses owed in connection
therewith. Upon Tenant's default in obtaining or delivering the policy for any
such insurance or Tenant's failure to pay the charges therefor, Landlord may, at
its option, on or after the tenth (10th) day after written notice thereof is
given to Tenant, procure or pay the charges for any such policy or policies and
the total cost and expense (including attorneys' fees) thereof shall be
immediately paid by Tenant to Landlord as Additional Rent upon receipt of a ▇▇▇▇
therefor.
SECTION 9.3. SUBROGATION. Landlord and Tenant agree to have all fire and
extended coverage and material damage insurance which may be carried by either
of them endorsed with a clause providing that any release from liability of or
waiver of claim for recovery from the other party or any of the parties named in
Section 9.2 above entered into in writing by the insured thereunder prior to any
loss or damage shall not affect the validity of said policy or the right of the
insured to recover thereunder, and providing further that the insurer waives all
rights of subrogation which such insurer might have against the other party or
any of the parties named in Section 9.2 above.
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Without limiting any release or waiver of liability or recovery contained in any
other Section of this Lease but rather in confirmation and furtherance thereof,
Landlord and any beneficiaries of Landlord waive all claims for recovery from
Tenant, and Tenant waives all claims for recovery from Landlord, any
beneficiaries of Landlord and the managing agent for the Project and their
respective agents, partners and employees, for any loss or damage to any of its
property insured under valid and collectible insurance policies to the extent of
any recovery collectible under such insurance policies. Notwithstanding the
foregoing or anything contained in this Lease to the contrary, any release or
any waiver of claims shall not be operative, nor shall the foregoing
endorsements be required, in any case where the effect of such release or waiver
is to invalidate insurance coverage or invalidate the right of the insured to
recover thereunder or increase the cost thereof (provided that in the case of
increased cost the other party shall have the right, within ten (10) days
following written notice, to pay such increased cost, thereby keeping such
release or waiver in full force and effect). 1.4. 1.5. SECTION MISCELLANEOUS
INSURANCE PROVISIONS . Landlord and Tenant further agree as follows: 1.6. A.
Tenant expressly understands and agrees that any insurance coverages and limits
furnished by the Tenant or Contractors shall in no way limit the Tenant's
liabilities and responsibilities specified under the Lease, or contracts
executed relating to the Project, or by law.
SECTION 9.4. MISCELLANEOUS INSURANCE PROVISIONS. Landlord and Tenant
further agree as follows:
A. Tenant expressly understands and agrees that any insurance
coverages and limits furnished by the Tenant or Contractors shall in no
way limit the Tenant's liabilities and responsibilities specified under
the Lease, or contracts executed relating to the Project, or by law.
B. The failure of Landlord to obtain such evidence from Tenant or
Contractors before permitting Tenant or Contractors to commence work
shall not be deemed to be a waiver by Landlord, and Tenant or
contractors shall remain under continuing obligation to maintain the
insurance coverage.
C. Any and all deductibles on referenced insurance coverages shall
be borne by Tenant and Contractors.
D. Tenant expressly understands and agrees that any insurance
maintained by Landlord shall apply in excess of and not contribute with
insurance provided by the Tenant or Contractor under the Lease.
E. If Tenant or any Contractors desire additional coverage, higher
limits of liability, or other modifications for their own protection,
Tenant and such Contractors shall be responsible for the acquisition and
cost of such additional protection.
F. Tenant agrees, and shall cause each Contractor in connection
with the Project to agree, that all insurers shall waive their rights of
subrogation against Landlord.
G. Tenant and Contractors shall not violate or permit to be
violated any of the conditions or provisions of any of the insurance
policies, and Tenant and Contractors shall so perform and satisfy or
cause to be performed and satisfied the requirements of the companies
writing such policies so that at all times companies of good standing,
satisfactory to Landlord shall be willing to write and continue such
insurance.
H. Landlord shall not be limited in the proof of any damages which
Landlord may claim against Tenant and Contractors arising out of or by
reason of Tenant's and Contractor's failure to provide and keep in force
insurance, as aforesaid, to the amount of the insurance premium or
premiums not paid or incurred by Tenant and Contractors and which would
have been payable under such insurance, but Landlord shall also be
entitled to recover as damages for such breach the uninsured amount of
any loss, to the extent of any deficiency in the insurance required by
the provisions of this Lease, and damages, costs and expenses of suit
suffered or incurred by reason of damage to, or destruction of, the
Project or the Premises occurring during any period when Tenant or
Contractors shall have failed or neglected to provide insurance as
aforesaid.
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I. The insurance required by this Lease, at the option of Tenant or
Contractors, may be effected by blanket or umbrella policies issued to
Tenant or Contractors covering the Premises and other properties owned
or leased by Tenant or Contractors, provided that the policies otherwise
comply with the provisions of this Lease and allocate to the Premises
the specified coverage, without possibility of reduction or coinsurance
by reason of, or damage to, any other premises covered therein.
J. All insurance companies shall have a Best rating of not less than
A/VII, or an equivalent rating in the event Best ceases to exist or
provide a rating.
K. Tenant and Contractors shall provide and keep in force such other
insurance in such amounts as may from time to time be reasonably
required by Landlord or a holder of a Mortgage (defined in Section 23.1
hereof) against such other insurable hazards as at the time are commonly
insured against in the case of prudent owners of properties similar to
the Project and the Premises, and in that connection Landlord may
require changes in the forms, types and amounts of insurance required
pursuant to this Section or add to, modify or delete other requirements;
and in any event, if under applicable law, rule, regulation or ordinance
of any governmental authority, state or federal, having jurisdiction in
the Premises, liability may be imposed upon Landlord on account of the
use or operation of the Premises or the Project or other improvements,
insurance within limits reasonably satisfactory to Landlord shall be
maintained by Tenant and Contractors against any such liability.
L. The required insurance to be carried shall not be limited by any
limitations expressed in the indemnification language herein or any
limitation placed on the indemnity therein given as a matter of law.
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ARTICLE X
DAMAGE OR DESTRUCTION
SECTION 10.1. TOTAL DAMAGE. In the event that (a) the Premises are made
untenantable by fire or other casualty and Landlord shall decide not to restore
or repair same, or (b) the Building is so damaged by fire or other casualty that
Landlord shall decide to demolish or not rebuild the same, then, in any of such
events, Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such fire or other
casualty and the Rent shall be apportioned on a per diem basis and paid to the
date of such fire or other casualty. In the event the Premises are made
untenantable by fire or other casualty and Landlord shall decide to rebuild and
restore the same, this Lease shall not terminate and Landlord shall repair and
restore the Premises promptly after receipt of the insurance proceeds. Landlord
shall commence the repair, restoration or rebuilding thereof and shall complete
such restoration, repair or rebuilding within one hundred eighty (180) days
after the receipt of such proceeds, subject to extension due to delay because of
changes, deletions, or additions in construction requested by Tenant, acts of
Tenant, strikes, lockouts, casualties, acts of God, war, fuel or energy
shortages, material or labor shortages, governmental regulation or control,
severe weather conditions or other causes beyond the control of Landlord
("Extension Events"). In the event of any such casualty all insurance proceeds
shall be payable to Landlord. In no event shall Landlord be required to repair
or replace (i) any alterations or improvements made by Tenant which are not
related to the Improvements, (ii) any of Tenant's Equipment, (iii) or any other
fixtures, furnishing and personal property of Tenant. Tenant agrees that Tenant
shall deposit with Landlord prior to the commencement of such restoration an
amount equal to Tenant's Proportion of any deductible amounts carried by
Landlord under its insurance policies, provided Tenant's Proportion of any such
deductible amount shall not exceed $5,000.00. Landlord's obligation to repair,
restore or rebuild the Premises shall be limited to restoring the Premises to
substantially the condition in which the same existed prior to the casualty.
Rent and all other charges payable by Tenant hereunder shall ▇▇▇▇▇ during the
period of such repair, restoration or rebuilding to the extent that the
Improvements are not tenantable because of any damage or destruction. In the
event the casualty causes fifty percent (50%) or more of the Premises to be
untenantable during the last twelve (12) months of the Term, Tenant may
terminate this Lease as of the date of such casualty by providing notice to
Landlord within thirty (30) days after occurrence of the fire or other casualty
causing the damage, in which event, all insurance proceeds shall be paid to the
Landlord.
SECTION 10.2. PARTIAL DAMAGE. In the event the Premises are partially
damaged by fire or other casualty but are not made wholly untenantable, then
Landlord shall, except during the last year of the Term hereof, proceed with all
due diligence to repair and restore the Premises, subject, however, to (i)
reasonable delays for insurance adjustments, and (ii) delays caused by forced
beyond Landlord's control. In such event, Rent shall ▇▇▇▇▇ in proportion to the
non-useability of the Premises during the period while repairs are in progress
unless such partial damages are due to the fault or neglect of Tenant. If the
partial damage is the result of the fault or neglect of Tenant, Rent shall not
▇▇▇▇▇ during said period. If the Premises are made partially untenantable as
aforesaid during the last year of the Term hereof, Landlord or Tenant shall have
the right to terminate this Lease as of the date of fire or other casualty upon
thirty (30) days' prior notice to the other party, in which event, Rent shall be
apportioned on a per diem basis and paid to the date of such fire or other
casualty.
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ARTICLE XI
LIENS
SECTION 11.1. LIEN CLAIMS. Tenant shall not do any act which shall in
any way encumber the title of Landlord in and to the Premises or the Building,
nor shall any interest or estate of Landlord in the Premises or the Building 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, and
any claim to or lien upon the Premises or the Building arising from any act or
omission of Tenant shall accrue only against the leasehold estate of Tenant and
shall in all respects be subject and subordinate to the paramount title and
rights of Landlord in and to the Premises or the Building. Tenant will not
permit the Premises or the Building 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 Premises by or
at the direction of 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 first give to Landlord
cash or other security acceptable to Landlord (which may include a bond in favor
of Landlord from an agent acceptable to Landlord) in an amount equal to one
hundred twenty percent (120%) of the amount of the lien or claimed lien which,
together with interest earned thereon, shall be held by Landlord as security to
insure payment thereof and to prevent any sale, foreclosure or forfeiture of the
Premises by reason of non-payment thereof. The amount so deposited with Landlord
shall be held by Landlord in an account established at a federally insured
banking institution until satisfactory removal of said lien or claim of lien. On
any final determination of the lien or claim for lien, Tenant will immediately
pay any judgment rendered, with all proper costs and charges, and will, at its
own expense, have the lien released and any judgment satisfied. Should Tenant
fail to diligently contest and pursue such lien contest, Landlord may, at its
option, use the sums so deposited to discharge any such lien upon the renewal of
such lien or encumbrance Landlord shall pay all such sums remaining on deposit
to Tenant.
SECTION 11.2. LANDLORD'S RIGHT TO CURE. If Tenant shall fail to
contest the validity of any lien or claimed lien or fail to give security to
Landlord to insure payment thereof, or shall fail to prosecute such contest with
diligence, or shall fail to have the same released and satisfy any judgment
rendered thereon, then Landlord may, at its election (but shall not be so
required) remove or discharge such lien or claim for lien (with the right, in
its discretion, to settle or compromise the same), and any amounts advanced by
Landlord, including reasonable attorneys' fees, for such purposes shall be so
much additional rent due from Tenant to Landlord at the next rent date after any
such payment, with interest thereon at the Lease Interest Rate from the date so
advanced.
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ARTICLE XII
TENANT ALTERATIONS
SECTION 12.1. ALTERATIONS. Tenant shall not at any time during the
Term of this Lease make any openings in the roof or exterior walls of the
Building or make any Tenant alteration, addition or improvement to the Premises
or any portion thereof (collectively "Alterations") without in each instance,
the prior written consent of Landlord; which consent shall not be unreasonably
withheld, provided, however, upon notice to, but without the consent of
Landlord, Tenant shall have the right to make any Alterations where same are
non-structural, do not require openings on the roof or exterior walls of the
Building, do not affect any Building system, and do not exceed TWENTY FIVE
THOUSAND AND NO/100 ($25,000.00) DOLLARS in the aggregate in any twelve (12)
month period. No Alteration to the Premises for which Landlord's consent is
required shall be commenced by Tenant until Tenant has furnished Landlord with a
satisfactory certificate or certificates from an insurance company acceptable to
Landlord in accordance with Article IX hereof, protecting Landlord against
public liability and property damage to any person or property, on or off the
Premises, arising out of and during the making of such Alterations. Any
Alteration by Tenant hereunder shall be done in a good and workmanlike manner in
compliance with any applicable governmental law, statute, ordinance or
regulation. Upon completion of any Alteration by Tenant hereunder, Tenant shall
furnish Landlord with a copy of the "as built" plans covering such construction.
Tenant, at its sole cost and expense, will make all Alterations on the Premises
which may be necessary by the act or neglect of any other person or corporation
(public or private), except Landlord, its agents, employees or contractors.
Before commencing any Alterations for which Landlord's approval is required
hereunder: (a) plans and specifications therefor, prepared by a licensed
architect, shall be submitted to and approved by Landlord (such approval shall
not be unreasonably withheld or delayed); (b) Tenant shall furnish to Landlord
an estimate of the cost of the proposed work, certified by the architect who
prepared such plans and specifications; (c) all contracts for any proposed work
shall be submitted to and approved by Landlord; and (d) Tenant shall either
furnish to Landlord a bond in form and substance satisfactory to Landlord, or
such other security reasonably satisfactory to Landlord to insure payment for
the completion of all work free and clear of liens. Before commencing any
Alteration, Tenant shall provide Landlord with a written certification that the
Alteration does not have any environmental impact on the Premises. Prior to the
commencement of any construction activity for which Landlord's consent shall be
required, certificates of such insurance coverages shall be provided to Landlord
and renewal certificates shall be delivered to Landlord prior to the expiration
date of the respective policies.
SECTION 12.2. OWNERSHIP OF ALTERATIONS. All Alterations (except
Tenant's Equipment, as defined in Section 19.2 hereof), put in at the expense of
Tenant shall become the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof at the termination of this
Lease, or at Landlord's option, provided Landlord shall have advised Tenant in
writing at the time of its consent to said Alteration is sought that same must
be removed and restored to its original condition.
SECTION 12.3. SIGNS. Tenant shall not place any signs on any part of
the Building or Land without the prior written consent of Landlord.
Notwithstanding any of the immediately foregoing provisions of this Section
12.3, upon notice to and with the consent of Landlord, which consent shall not
be unreasonably withheld, Tenant may place a monument sign adjacent to the
Premises, provided that (i) the installation and dimensions of said sign is in
strict accordance with applicable law, ordinances and Restrictions; (ii) Tenant
continually maintains said sign in a first-class manner and (iii) Tenant, at
Tenant's sole cost and expense, removes said sign at the expiration of the Term
and restores the area in which said sign is placed to its condition prior to the
installation of said sign.
SECTION 12.4. TENANT INDEMNITY. Tenant hereby agrees to indemnify and
hold the Landlord, its beneficiaries, shareholders, partners or members and
their respective agents and employees harmless from any and all liabilities of
every kind and description which may arise out of or be connected in any way
with said Alterations. Any mechanic's lien filed against the Premises for work
claimed to have been furnished to Tenant shall be discharged of record by Tenant
within ten (10) days after Tenant receives notice thereof, at Tenant's expense.
Upon completing any Alterations, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and
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receipted bills covering all labor and materials expended and used. All
Alterations shall comply with all insurance requirements and with all ordinances
and regulations of any pertinent governmental authority. All alterations and
additions shall be constructed in a good and workmanlike manner and only good
grades of materials shall be used.
SECTION 12.5 ENVIRONMENTAL IMPACT. Notwithstanding any other term,
covenant or condition contained in this Lease, in the event that any Alteration
has any material, adverse environmental impact on the Premises, Landlord may
deny the Tenant the right to proceed in Landlord's sole and absolute discretion.
ARTICLE XIII
CONDEMNATION
SECTION 13.1 TAKING: LEASE TO TERMINATE. If a portion of the
Building or the Premises shall be lawfully taken or condemned for any public or
quasi-public use or purpose, or conveyed under threat of such condemnation and
as a result thereof the Premises cannot be used for the same purpose and with
the same utility as before such taking or conveyance, the Term of this Lease
shall end upon, and not before, the date of the taking of possession by the
condemning authority, and without apportionment of the award. Tenant hereby
assigns to Landlord, Tenant's interest in such award, if any. Current Rent shall
be apportioned as of the date of such termination. If any part of the Building
shall be so taken or condemned, or if the grade of any street or alley adjacent
to the Building is changed by any competent authority and such taking or change
of grade makes it necessary or desirable to demolish, substantially remodel, or
restore the Building, the Landlord shall have the right to cancel this Lease
upon not less than ninety (90) days' prior notice to the date of cancellation
designed in the notice.
SECTION 13.2 TAKING: LEASE TO CONTINUE. In the event only a part of
the Premises shall be taken as a result of the exercise of the power of eminent
domain or condemned for a public or quasi-public use or purpose by any competent
authority or sold to the condemning authority under threat of condemnation, and
as a result thereof the balance of the Premises can be used for the same purpose
as before such taking, sale or condemnation, this Lease shall not terminate and
Landlord, at its sole cost and expense up to the amount of any condemnation
award, shall, to the extent practical, promptly repair and restore the Premises,
subject to extension due to delay because of changes, deletion or additions,
acts of Tenant, strikes, lockouts, casualties, acts of God, war, fuel or energy
shortages, material or labor shortages, governmental regulation or control,
severe weather conditions or other causes beyond the actual control of Landlord
and Landlord's receipt of insurance proceeds. Any award paid as a consequence of
such taking, sale or condemnation, shall be paid to Landlord. Any sums not so
disbursed shall be retained by Landlord. In the event of a taking of land only,
this Lease shall not terminate and Landlord shall not be obligated to repair or
restore the Premises.
SECTION 13.3 TENANT'S AWARD. To the extent permitted by law and
subject to the rights of any lender with respect to the Premises, Tenant shall
be allowed to pursue a claim against the condemning authority (hereinafter
referred to as the "Tenant's Claim") that shall be independent of and wholly
separate from any action, suit or proceeding relating to any award to Landlord
for reimbursement of relocation expenses or for Tenant's Equipment and personal
property, provided: (i) Tenant's Claim shall in no way limit, affect, alter or
diminish in any kind or way whatsoever Landlord's award as a result of such
taking, sale or condemnation; (ii) Tenant's Claim shall in no event include any
claim for any interest in real property, it being expressly understood and
agreed that all sums paid with respect to the real property interests taken,
sold or condemned shall be the sole property of Landlord; and (iii) Tenant's
Claim shall in no event be joined with Landlord's proceeding or argued or heard
concurrently therewith and if the tribunal hearing Tenant's Claim orders such
joinder, Tenant agrees to voluntarily dismiss Tenant's Claim without prejudice
until such time as Landlord has received its award for such taking, sale or
condemnation.
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ARTICLE XIV
ASSIGNMENT -- SUBLETTING BY TENANT
SECTION 14.1 NO ASSIGNMENT, SUBLETTING OR OTHER TRANSFER. Tenant
shall not assign this Lease or any interest hereunder, nor shall Tenant sublet
or permit the use or occupancy of the Premises or any part thereof by anyone
other than Tenant, without the express prior written consent of Landlord which
consent shall not be unreasonably withheld or delayed. No assignment or
subletting shall relieve Tenant of its obligations 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 sublease had been made, unless
specifically provided to the contrary in Landlord's consent. Consent by Landlord
pursuant to this Article shall not be deemed, construed or held to be consent to
any additional assignment or subletting, but each successive act shall require
similar consent of Landlord. Landlord shall be reimbursed by Tenant for any
costs or expenses incurred pursuant to any request by Tenant for consent to any
such assignment or subletting. In the consideration of the granting or denying
of consent, Landlord may, at its option, take into consideration: (i) the
business reputation and credit worthiness of the proposed subtenant or assignee;
(ii) any required alteration of the Premises; (iii) the intended use of the
Premises by the proposed subtenant or assignee; and (iv) any other factors which
Landlord shall deem relevant.
Notwithstanding the foregoing, Landlord hereby consents to a sublease of
all or a portion of the Premises to AAR Aircraft and Engine Group, Inc. provided
the form and content of any sublease document are acceptable to Landlord.
SECTION 14.2 OPERATION OF LAW. 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 hereunder.
SECTION 14.3 EXCESS RENTAL. If Tenant shall, with Landlord's prior
consent as herein required, sublet the Premises, an amount equal to one hundred
percent (100%) of the rental in excess of the base rent and any additional rent
herein provided to be paid shall be for benefit of Landlord and shall be paid to
Landlord promptly when due under any such subletting as additional rent due
hereunder.
SECTION 14.4 MERGER OR CONSOLIDATION. If Tenant is a corporation
whose stock is not publicly traded, any transaction or series of transactions
(including, without limitation, any dissolution, merger, consolidation or other
reorganization of Tenant, or any issuance, sale, gift, transfer or redemption of
any capital stock of Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 14. If Tenant is a partnership, any transaction or series of
transactions (including without limitation any withdrawal or admittance of a
partner or a change in any partner's interest in Tenant, whether voluntary,
involuntary or by operation of law, or any combination of any of the foregoing
transactions) resulting in the transfer of control of Tenant, other than by
reason of death, shall be deemed to be a voluntary assignment of this Lease by
Tenant subject to the provisions of this assignment of this Lease by Tenant
subject to the provisions of this Section 14. If Tenant is a corporation, a
change or series of changes in ownership of stock which would result in direct
or indirect change in ownership by the stockholders or an affiliated group of
stockholders of less than fifty percent (50%) of the outstanding stock as of the
date of the execution and delivery of this Lease shall not be considered a
change of control. Notwithstanding the immediately foregoing, Tenant may, upon
notice to, but without Landlord's consent, assign this Lease to any corporation
resulting from a merger or consolidation of Tenant, provided that the total
assets and the total net worth of such assignee after such consolidation or
merger shall be in excess of the greater of (i) the net worth of Tenant
immediately prior to such consolidation or merger, or (ii) the net worth of
Tenant as of the date hereof, determined by generally accepted accounting
principles and provided that Tenant is not at such time in default hereunder,
and provided further that such successor shall execute an instrument in writing,
acceptable to Landlord in its reasonable discretion, fully assuming all of the
obligations and liabilities imposed upon Tenant hereunder and deliver the same
to Landlord. Tenant shall provide in its notice to Landlord such information as
may be reasonably required by Landlord to
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determine that the requirements of this Section 14.4 have been satisfied. As
used in this Section 14.4, the term "control" means possession of the power to
vote not less than a majority interest of any class of voting securities and
partnership or limited liability company interests or to direct or cause the
direction (directly or indirectly) of the management or policies of a
corporation, or partnership or limited liability company through the ownership
of voting securities, partnership interests or limited liability company
interests, respectively.
SECTION 14.5. UNPERMITTED TRANSACTION. Any assignment, subletting,
use, occupancy, transfer or encumbrance of this Lease or the Premises without
Landlord's prior written consent shall be of no effect and shall, at the option
of Landlord, constitute a default under this Lease.
ARTICLE XV
ANNUAL STATEMENTS
SECTION 15.1. ANNUAL STATEMENTS. Tenant agrees to furnish Landlord
annually, within ninety (90) days of the end of such fiscal year with a copy of
its annual audited statements, together with applicable footnotes and any other
financial information reasonably requested by Landlord (hereinafter collectively
referred to as, the "Financial Information") and agrees that Landlord may
deliver such Financial Information to any mortgagee, prospective mortgagee or
prospective purchaser of the Premises on a confidential basis.
ARTICLE XVI
INDEMNITY FOR LITIGATION
SECTION 16.1. TENANT'S INDEMNITY FOR LITIGATION. Tenant agrees to pay,
and to indemnify and defend Landlord against, all costs and expenses (including
reasonable attorney's fees) incurred by or imposed upon Landlord by or in
connection with any litigation to which Landlord becomes or is made a party
without fault on its part, whether commenced by or against Tenant, or any other
person or entity or that may be incurred by Landlord in enforcing any of the
covenants and agreements of this Lease with or without the institution of any
action or proceeding relating to the Premises or this Lease, or in obtaining
possession of the Premises after an Event of Default hereunder or upon
expiration or earlier termination of this Lease. The foregoing notwithstanding,
Tenant's responsibility under this Section 16.1 to pay Landlord's costs and
expenses (including reasonable attorneys' fees) shall not extend to such costs
and expenses incurred in defending an action brought by Tenant to enforce the
terms of this Lease in which there is a court determination that Landlord failed
to perform its obligations under this Lease. The provisions of this Section 16.1
shall survive the expiration or earlier termination of this Lease.
SECTION 16.2. LANDLORD'S INDEMNITY FOR LITIGATION. Landlord agrees
to pay, and to indemnify and defend Tenant against all costs and expenses
(including reasonable attorney's fees) incurred by or imposed upon Tenant by or
in connection with any litigation by Tenant to enforce Landlord's obligations
under this Lease in which Tenant is the prevailing party.
ARTICLE XVII
ESTOPPEL CERTIFICATES
SECTION 17.1. ESTOPPEL CERTIFICATE. Tenant agrees that on the
Commencement Date and at any time and from time to time thereafter, upon not
less than ten (10) business days' prior written request by Landlord, it will
execute, acknowledge and deliver to Landlord, or Landlord's mortgagee to the
extent factually accurate, a statement in writing in the form of EXHIBIT "C"
attached hereto and by this reference incorporated herein; provided, however,
that Tenant agrees to certify to any prospective purchaser or mortgagee any
other reasonable information specifically requested by such prospective
purchaser or mortgagee.
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ARTICLE XVIII
INSPECTIONS
SECTION 18.1 INSPECTIONS. Tenant agrees to permit Landlord and any
authorized representatives of Landlord, to enter the Premises at all reasonable
times on reasonable advance notice, except in the case of emergency, for the
purpose of inspecting the same. Any such inspections shall be solely for
Landlord's purposes and may not be relied upon by Tenant or any other person.
SECTION 18.2 SIGNS. Tenant agrees to permit Landlord and any authorized
representative of Landlord to enter the Premises at all reasonable times during
business hours on reasonable advance notice to exhibit the same for the purpose
of sale, mortgage or lease, and during the final twelve month period of the Term
hereof or any extension thereof, Landlord may display on the Premises customary
"For Sale" or "For Rent" signs.
ARTICLE XIX
FIXTURES
SECTION 19.1 BUILDING FIXTURES. All improvements and all plumbing,
heating, lighting, electrical and air conditioning fixtures and equipment, and
other articles of personal property used in the operation of the Premises (as
distinguished from operations incident to the business of Tenant), whether or
not attached or affixed to the Premises ("Building Fixtures"), shall be and
remain a part of the Premises and shall constitute the property of Landlord.
SECTION 19.2 TENANT'S EQUIPMENT. All of Tenant's trade fixtures and all
personal property, fixtures, apparatus, machinery and equipment now or hereafter
located upon the Premises, other than Building Fixtures, as shall be and remain
the personal property of Tenant, and the same are herein referred to as
"Tenant's Equipment."
SECTION 19.3 REMOVAL OF TENANT'S EQUIPMENT. Tenant's Equipment may be
removed from time to time by Tenant; provided, however, that if such removal
shall injure or damage the Premises, Tenant shall repair the damage and place
the Premises in the same condition as it would have been if such Tenant's
Equipment had not been installed.
ARTICLE XX
DEFAULT
SECTION 20.1 EVENTS OF DEFAULT. Tenant agrees that any one or more of
the following events shall be considered "Events of Default" as said term is
used herein:
(a) If an order, judgment or decree shall be entered by any
court adjudicating Tenant a bankrupt or insolvent, or approving a
petition seeking reorganization of Tenant or appointing a receiver,
trustee or liquidator of Tenant, or of all or a substantial part of its
assets, and such order, judgment or decree shall continue unstayed and
in effect for any period of sixty (60) days; or
(b) Tenant shall file an answer admitting the material
allegations of a petition filed against Tenant in any bankruptcy,
reorganization or insolvency proceeding or under any laws relating to
the relief of debtors, readjustment or 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, trustee or liquidator of Tenant, or any of the assets of
Tenant; or
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(d) Tenant shall file a voluntary petition in bankruptcy, or
shall admit in writing its inability to pay its debts as they come due,
or shall file a petition or an answer seeking reorganization or
arrangement with creditors or take advantage of any insolvency law; 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 within sixty (60) days from the date of entry or granting
thereof; or
(f) Tenant shall abandon the Premises during the Term hereof;
or
(g) Tenant shall default in making any payment of Rent or other
payment required to be made by Tenant hereunder when due as herein
provided, and such default continues for five (5) days after written
notice from Landlord; provided, however, that if Tenant defaults more
than two (2) times in any such payment in any consecutive twelve (12)
month period or four (4) times over the Term of the Lease, then no
written notice of any subsequent default from Landlord shall be
required; or
(h) Tenant shall be in default in the performance of or
compliance with any of the agreements, terms, covenants or conditions in
this Lease other than those referred to in the foregoing subparagraphs
(a) through (g) of this Section for a period of twenty (20) days after
notice from Landlord to Tenant specifying the items in default, or in
the case of a default which cannot, with due diligence, be cured within
said twenty (20)-day period, Tenant fails to proceed within said twenty
(20) day-period to cure the same and thereafter to prosecute the curing
of such default with due diligence (it being intended in connection with
a default not susceptible of being cured with due diligence within said
twenty (20)-day period that the time of Tenant within which to cure the
same shall be extended for such period as may be necessary to complete
the same with all due diligence).
Upon the occurrence of any one or more of such Events of Default,
Landlord may at its election terminate this Lease or terminate Tenant's right to
possession only, without terminating this Lease. Upon termination of this Lease
or of Tenant's right to possession, Tenant shall immediately surrender
possession and vacate the Premises, and deliver possession thereof to Landlord,
and Landlord or Landlord's agents may immediately or any time thereafter without
notice, re-enter the Premises and remove all persons and all or any property
therefrom, either by any suitable action or proceeding at law or equity, without
being liable in indictment, prosecution or damages, therefor, and repossess and
enjoy the Premises, together with the right to receive all income of, and from,
the Premises.
Upon termination of this Lease, Landlord shall be entitled to recover as
liquidated damages, because the parties hereto recognize that as of the date
hereof actual damages are not ascertainable and are of imprecise calculation and
not as a penalty, all Rent and other sums due and payable by Tenant through the
date of termination plus (i) an amount equal to sixty percent (60%) of the Rent
and other sums provided herein to be paid by Tenant for the residue of the Term,
and (ii) the costs of performing any other covenants to be performed by Tenant.
If Landlord elects to terminate Tenant's right to possession only,
without terminating this Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as hereinabove provided, without such entry and
possession terminating this Lease or releasing Tenant, in whole or in part, from
Tenant's obligations to pay the Rent hereunder for the full Term or from any
other obligations of Tenant under this Lease. Landlord shall use commercially
reasonably efforts to relet all or any part of the Premises for such rent and
upon terms as are commercially reasonable (including the right to relet the
Premises for a term greater or lesser than that remaining of the Term of
premises and the right to relet the Premises as a part of a larger area, the
right to change the character or use made of the Premises and the right to grant
concessions of free rent). For the purpose of such reletting, Landlord may
decorate or make any repairs, changes, alterations, or additions in or to the
Premises that may be necessary or desirable. If Landlord is unable to relet the
Premises after using such commercially reasonably efforts to do so, Landlord
shall have the right to
25
terminate this Lease, in which event, Tenant shall pay to Landlord liquidated
damages (because the parties hereto recognize that as of the date hereof actual
damages are not ascertainable and are of imprecise calculation and not as a
penalty) equal to sixty percent (60%) of the Rent, and other sums provided
herein to be paid by Tenant for the remainder of the Term. If the Premises are
relet and sufficient sums shall not be realized from such reletting after
payment of all expenses of such decorations, repairs, changes, alterations,
additions and the expenses of repossession and such reletting, and the
collection of the Rent herein provided and other payments required to be made by
Tenant under the provisions of this Lease for the remainder of the Term of this
Lease then, in such event, Tenant shall pay to Landlord on demand any such
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, and all costs and
expenses of Landlord, including attorneys' fees, incurred in connection with any
such suit shall be paid by Tenant.
SECTION 20.2 WAIVERS. Tenant hereby expressly waives, so far as
permitted by law, the service of any notice of intention to re-enter provided
for in any statute, and except as is herein otherwise provided. Tenant for and
on behalf of itself and all persons claiming through or under Tenant, also
waives any and all rights of redemption or re-entry or repossession in case
Tenant shall be dispossessed by a judgment or by warrant of any court or judge
or in case of re-entry or repossession by Landlord or in case of any expiration
or termination of this Lease. The terms "enter," "re-enter," "entry" or
"re-entry" as used in this Lease are not restricted to their technical legal
meanings.
SECTION 20.3 BANKRUPTCY. If Landlord shall not be permitted to
terminate this Lease, as provided in this Article XX because of the provisions
of the United States Code relating to Bankruptcy, as amended (the "Bankruptcy
Code"), then Tenant as a debtor-in-possession or any trustee for Tenant agrees
promptly, within no more than sixty (60) days after the filing of the bankruptcy
petition, to assume or reject this Lease. In such event, Tenant or any trustee
for Tenant may only assume this Lease if: (a) it cures or provides adequate
assurances that the trustee will promptly cure any default hereunder; (b)
compensates or provides adequate assurance that Tenant will promptly compensate
Landlord of any actual pecuniary loss to Landlord resulting from Tenant's
default; and (c) provides adequate assurance of performance during the fully
stated term hereof of all of the terms, covenants, and provisions of this Lease
to be performed by Tenant. In no event after the assumption of this Lease shall
any then-existing default remain uncured for a period in excess of the earlier
of ten (10) days or the time period set forth herein. Adequate assurance of
performance of this Lease, as set forth hereinabove, shall include, without
limitation, adequate assurance (i) of the source of rent reserved hereunder; and
(ii) that the assumption of this Lease will not breach any provision hereunder.
If Tenant assumes this Lease and proposes to assign the same pursuant to
the provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to Tenant, then notice of such proposed assignment, setting forth: (i) the name
and address of such person; (ii) all of the terms and conditions of such offer;
and (iii) the adequate assurance to be provided Landlord to assure such person's
future performance under the Lease, including, without limitation, the assurance
referred to in Section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by the Tenant no later than twenty (20) days after receipt by the
Tenant but in any event no later than ten (10) days prior to the date that the
Tenant shall make application to a court of competent jurisdiction for authority
and approval to enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option, to be exercised by notice to the
Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code any and all monies or other considerations
payable or otherwise to be delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of the Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting the Landlord's property
26
under the preceding sentence not paid or delivered to the Landlord shall be held
in trust for the benefit of Landlord and shall be promptly paid to the Landlord.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be conclusively deemed without further
act or deed to have assumed all of the obligations arising under this Lease on
and after the date of such assignment. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption. Any
such assignee shall be permitted to use the Leased Premises only for the Use.
Nothing contained in this Section shall, in any way, constitute a waiver
of the provisions of Article XIV of this Lease relating to alienation. Tenant
shall not, by virtue of this Section, have any further rights relating to
assignment other than those granted in the Bankruptcy Code. Notwithstanding
anything in this Lease to the contrary, all amounts payable by Tenant to or on
behalf of Landlord under this Lease, whether or not expressly denominated as
rent, shall constitute rent for the purpose of Section 501(b)(6) or any
successive section of the Bankruptcy Code.
ARTICLE XXI
LANDLORD'S PERFORMANCE OF TENANT'S COVENANTS
SECTION 21.1. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS. In the
event Tenant shall fail to maintain any insurance required to be paid by it
under the terms hereof, or in an Emergency Situation or upon occurrence of an
Event of Default, Landlord may (but shall not be obligated so to do), and
without waiving or releasing Tenant from any obligation of Tenant hereunder,
make any payment or perform any other act which Tenant is obligated to make or
perform under this Lease in such manner and to such extent as Landlord may deem
desirable; and in so doing Landlord shall also have the right to enter upon the
Premises for any purpose reasonably necessary in connection therewith and to pay
or incur any other necessary and incidental costs and expenses, including
reasonable attorneys' fees. All sums so paid and all liabilities so incurred by
Landlord, together with interest thereon at the rate per annum which is the
lesser of (i) the Lease Interest Rate or (ii) the highest rate permitted by law
shall be deemed Additional Rent hereunder and shall be payable to Landlord upon
demand as Additional Rent. Landlord shall use reasonable efforts to give prior
notice (which may be oral) of its performance, if reasonably feasible under the
circumstances. The performance of any such obligation by Landlord shall not
constitute a waiver of Tenant's default in failing to perform the same. Inaction
of Landlord shall never be considered as a waiver of any right accruing to it
pursuant to this Lease. Landlord, in making any payment hereby authorized: (a)
relating to Taxes, may do so according to any ▇▇▇▇, statement or estimate,
without inquiry into the validity of any tax, assessment, sale, forfeiture, tax
lien or title or claim thereof; (b) for the discharge, compromise or settlement
of any lien, may do so without inquiry as to the validity or amount of any claim
for lien which may be asserted; or (c) in connection with the completion of
construction of improvements to the Premises or the repair, maintenance or the
payment of operating costs thereof, may do so in such amounts and to such
persons as Landlord reasonably may deem appropriate. Nothing contained herein
shall be construed to require Landlord to advance monies for any purpose.
Landlord shall not in any event be liable for inconvenience, annoyance,
disturbance, loss of business or other damage of Tenant or any other occupant of
the Premises or any part thereof, by reason of making repairs or the performance
of any work on the Premises or on account of bringing materials, supplies and
equipment into or through the Premises during the course thereof and the
obligations of Tenant under this Lease shall not thereby be affected in any
manner. In doing so, however, Landlord shall use reasonable efforts not to
interfere with the normal operation of the Premises. The term "EMERGENCY
SITUATION" shall mean a situation which has caused or is likely to cause bodily
injury to persons, contamination of or physical damage to the Premises or
adjoining property or economic liability or criminal jeopardy to Landlord.
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ARTICLE XXII
EXERCISE OF REMEDIES
SECTION 22.1. CUMULATIVE REMEDIES. No remedy contained herein or
otherwise conferred upon or reserved to Landlord, shall be considered exclusive
of any other remedy, but the same shall be cumulative and shall be in addition
to every other remedy given herein, 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 as often as occasion may arise or as may
be deemed expedient. No delay or omission of Landlord to exercise any right or
power arising from any default shall impair any such right or power or shall be
construed to be a waiver of any such default or an acquiescence therein.
SECTION 22.2. NO WAIVER. 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 a 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 sums payable 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. Receipt of Rent by Landlord, with knowledge of any breach of
this Lease by Tenant or of any default by Tenant in the observance or
performance of any of the conditions or covenants of this Lease, shall not be
deemed to be a waiver of any provision of this Lease.
SECTION 22.3. EQUITABLE RELIEF. In the event of any breach or threatened
breach by either party of any of the agreements, terms, covenants or conditions
contained in this Lease, the other party shall be entitled to enjoin such breach
or threatened breach and shall have the right to invoke any right and remedy
allowed at law or in equity or by statute or otherwise as though re-entry,
summary proceedings, and other remedies were not provided for in this Lease.
ARTICLE XXIII
SUBORDINATION TO MORTGAGES
SECTION 23.1. SUBORDINATION. Landlord may execute and deliver a mortgage
or trust deed in the nature of a mortgage (both sometimes referred to as
"Mortgage") against the Premises or any portion thereof. This Lease and the
rights of Tenant hereunder, shall automatically, and without the requirement of
the execution of any further documents, be and are hereby made expressly subject
and subordinate at all times to the lien of any Mortgage now or hereafter
encumbering any portion of the Project, and to all advances made or hereafter to
be made upon the security thereof; provided, however, the holder of said
Mortgage agrees in writing not to disturb the rights of Tenant under this Lease
so long as Tenant is not in default hereunder. Notwithstanding the foregoing,
Tenant agrees to execute and deliver such instruments subordinating this Lease
to the lien of any such Mortgage as may be requested in writing by Landlord from
time to time. Notwithstanding anything to the contrary contained herein, any
mortgagee under a Mortgage may, by notice in writing to the Tenant, subordinate
its Mortgage to this Lease.
SECTION 23.2. MORTGAGE PROTECTION. Tenant agrees to give the holder of
any Mortgage, by registered or certified mail, a copy of any notice of default
served upon the Landlord by Tenant, provided that prior to such notice Tenant
has received notice (by way of service on Tenant of a copy of an assignment of
rents and leases, or otherwise) of the address of such mortgagee and containing
a request therefor. Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then said
mortgagee shall have an additional thirty (30) days after receipt of notice
thereof within which to cure such default or, if such default cannot be cured
within that time, then such additional time as may be necessary, if, within such
thirty (30) days, any mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure). Such
period of time shall be
28
extended by any period within which such mortgagee is prevented from commencing
or pursuing such foreclosure proceedings by reason of Landlord's bankruptcy.
Until the time allowed as aforesaid for said mortgagee to cure such defaults has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of default. This Lease may not be modified or amended so
as to reduce the Rent or shorten the Term, or so as to adversely affect in any
other respect to any material extent the rights of the Landlord, nor shall this
Lease be cancelled or surrendered, without the prior written consent, in each
instance, of the mortgagee.
ARTICLE XXIV
INDEMNITY AND WAIVER
SECTION 24.1. INDEMNITY. Tenant shall not do or permit any act or
thing to be done or omit to do any act or thing upon the Premises which may
subject Landlord to any liability or responsibility for injury, damage to
persons or property, or to any liability by reason of any violation of
applicable laws and shall exercise such control over the Premises so as to fully
protect Landlord against any such liability. Tenant shall defend, indemnify and
save Landlord, and any official, agent, beneficiary, contractor, director,
employee, lessor, mortgagee, officer, parent, partner, shareholder and trustee
of Landlord (each an "INDEMNIFIED PARTY") and each of their representatives,
successors and assigns harmless from and against any and all liabilities, suits,
judgments, settlements, obligations, fines, damages, penalties, claims, costs,
charges and expenses, including, without limitation, engineers', architects' and
attorneys' fees, court costs and disbursements, which may be imposed upon or
incurred by or asserted against any Indemnified Party by reason of any of the
following occurring during or after (but attributable to a period of time
falling within) the Term:
A. any demolition or razing or construction of any
improvements or any other work or thing done in, on or about the
Premises or any part thereof by Tenant or any member of the Tenant Group
(defined below), including any claim that such work constitutes "public
works";
B. any use, nonuse, possession, occupation, alteration,
repair, condition, operation, maintenance or management of the Premises
or any part thereof or of any tunnel, creek, ditch, detention area,
sidewalk, curb or vault adjacent thereto by Tenant or any member of the
Tenant Group;
C. any act or failure to act on the part of Tenant or any
member of the Tenant Group;
D. any accident, injury (including death) or damage to any
person or property occurring in, on or about the Premises or any part
thereof or in, on or about any tunnel, creek, ditch, detention area,
sidewalk, curb or vault adjacent thereto as a result of the act or
neglect of Tenant or any member of the Tenant Group;
E. any failure to perform or comply with any of the
covenants, agreements, terms or conditions in this Lease on Tenant's
part to be performed or complied with (other than the payment of money);
F. any lien or claim which may be alleged to have arisen
against or on the Premises, or any lien or claim which may be alleged to
have arisen out of this Lease and created or permitted to be created by
Tenant or any member of the Tenant Group against any assets of Landlord,
or any liability which may be asserted against Landlord with respect
thereto;
G. any failure on the part of Tenant to keep, observe and
perform any of the terms, covenants, agreements, provisions, conditions
or limitations contained in the contracts and agreements affecting the
Premises on Tenant's part to be kept, observed or performed; and
H. any contest permitted pursuant to the provisions of this
Lease.
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No agreement or covenant of Tenant in this Section 24.1 shall be deemed
to exempt Landlord from, and Tenant's obligations under this Section 24.1 shall
not include liability or damages for injury to persons or damage to property
caused by or resulting from the negligence of Landlord, its agents or employees,
in the operation or maintenance of the Project or from the breach by Landlord of
its obligations under this Lease.
The obligations of Tenant under this Section 24.1 shall not be affected
in any way by the absence in any case of covering insurance or by the failure or
refusal of any insurance carrier to perform any obligation on its part under
insurance policies affecting the Premises or any part thereof.
SECTION 24.2. WAIVER OF CLAIMS. Tenant waives all claims it may have
against Landlord and Landlord's agents for damage or injury to person or
property sustained by Tenant or any persons claiming through Tenant or by any
occupant of the Premises, or by any other person, resulting from any part of the
Premises becoming out of repair, or resulting from any accident on or about the
Premises or resulting directly or indirectly from any act or neglect of any
person, excluding the negligence of Landlord, its agents, contractors and
employees. This Section 24.2. shall include, but not by way of limitation,
damage caused by water, snow, frost, steam, excessive heat or cold, sewage, gas,
odors or noise, or caused by bursting or leaking pipes or plumbing fixtures, and
shall apply equally whether any such damage results from the act or neglect of
Tenant or of any other person, excluding the negligence of Landlord, and whether
such damage be caused or result from anything 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 Tenant's Equipment and other personal property
belonging to Tenant or any occupant of the Premises that is in or on any part of
the Premises 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.
ARTICLE XXV
SURRENDER
SECTION 25.1. CONDITION. 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 Premises, Tenant will at once surrender and deliver
up the Premises to Landlord, broom clean, in good order, condition and repair,
reasonable wear and tear excepted. "Broom clean" means free from all debris,
dirt, rubbish, personal property of Tenant, oil, grease, tire tracks or other
substances, inside and outside of the Improvements and on the grounds comprising
the Premises. Any damage caused by removal of Tenant from the Premises,
including any damages caused by removal of Tenant's Equipment as defined above,
shall be repaired and paid for by Tenant prior to the expiration of the Term.
All Alterations temporary or permanent, excluding Tenant's Equipment, in
or upon the Premises placed there by Tenant, shall become Landlord's property
and shall remain upon the 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 at the time Tenant has requested
Landlord's consent to the installation of such Alteration. If Landlord so
requests removal of said additions, hardware, Alterations or improvements and
Tenant does not make such removal by the 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
same, and Tenant shall pay the cost of such removal, delivery and warehousing to
Landlord on demand.
SECTION 25.2. REMOVAL OF TENANT'S EQUIPMENT. Upon the termination of
this Lease by lapse of time, or otherwise, Tenant may remove Tenant's Equipment
provided, however, that Tenant shall repair any injury or damage to the Premises
which may result from such removal. If Tenant does not remove Tenant's Equipment
from the 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 Tenant or warehouse the same, and Tenant shall pay the cost of such removal
(including the repair of any injury or damage to the Premises resulting from
such removal), delivery and warehousing to Landlord on demand, or Landlord may
treat tenant's equipment as having been conveyed to Landlord with this Lease as
a ▇▇▇▇ of Sale, without further payment or credit by Landlord to Tenant.
30
SECTION 25.3. HOLDOVER. If Tenant retains possession of the Premises
or any part thereof after the termination of the Term, by lapse of time and
otherwise, then Tenant shall pay to Landlord monthly rent, at one hundred fifty
percent (150%) of the rate payable for the month immediately preceding said
holding over (including increases for additional rent which Landlord may
reasonably estimate), computed on a per-month basis, for each month or part
thereof (without reduction for any such partial month) that Tenant thus remains
in possession, and in addition thereto, Tenant shall pay Landlord all damages,
consequential as well as direct, sustained by reason of Tenant's retention of
possession. Alternatively, in the event such holdover continues for a period in
excess of thirty (30) days, at the election of Landlord expressed in a written
notice to Tenant and not otherwise, such retention of possession shall
constitute a renewal of this Lease for one (1) year, at a rental equal to one
hundred twenty percent (120%) of the Rent during the previous year. The
provisions of this paragraph do not exclude the Landlord's rights of re-entry or
any other right hereunder. Any such extension or renewal shall be subject to all
other terms and conditions herein contained. 1.4.
ARTICLE XXVI
COVENANT OF QUIET ENJOYMENT
SECTION 26.1. COVENANT OF QUIET ENJOYMENT. Landlord covenants that
Tenant, on paying the Rent and all other charges payable by Tenant hereunder,
and on keeping, observing and performing all the other terms, covenants,
conditions, provisions and agreements herein contained on the part of Tenant to
be kept, observed and performed, all of which obligations of Tenant are
independent of Landlord's obligations hereunder, shall, during the Term,
peaceably and quietly have, hold and enjoy the Premises subject to the terms,
covenants, conditions, provisions and agreement hereof free from hindrance by
Landlord or any person claiming by, through or under Landlord.
ARTICLE XXVII
NO RECORDING
SECTION 27.1. NO RECORDING. This Lease shall not be recorded.
ARTICLE XXVIII
NOTICES
SECTION 28.1. NOTICES. All notices, consents, approvals to or demands
upon or by Landlord or Tenant desired or required to be given under 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 personally served, forwarded by expedited messenger or
recognized overnight courier service with evidence of delivery or mailed by
United States registered or certified mail in an envelope properly stamped and
addressed to Tenant at Tenant's Mailing Address, or at such other address as
Tenant may theretofore have furnished by written notice to Landlord. Any notices
or demands from Tenant to Landlord shall be deemed to have been duly and
sufficiently given if forwarded by expedited messenger or recognized overnight
courier service with evidence of delivery or mailed by United States registered
or certified mail in an envelope properly stamped and addressed to Landlord at
Landlord's Mailing Address, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other address as Landlord may theretofore have furnished by written notice to
Tenant. The effective date of such notice shall be the date of actual delivery,
except that if delivery is refused, the effective date of notice shall be the
date delivery is refused.
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ARTICLE XXIX
COVENANTS RUN WITH LAND
SECTION 29.1. COVENANTS. All of the covenants, agreements, conditions
and undertakings in this Lease contained shall extend and inure to and be
binding upon the heirs, executors, administrators, successors and assigns of the
respective parties hereto, the same as if they were in every case specifically
named, and shall be construed as covenants running with the Land, 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.
SECTION 29.2. RELEASE OF LANDLORD. The term "Landlord", as used in this
Lease, so far as covenants or obligations on the part of Landlord are concerned,
shall be limited to mean and include only the owner or owners at the time in
question of title to the Premises, and in the event of any transfer or transfers
of the title, Landlord herein named (and in the case of any subsequent transfers
or conveyances, the then grantor) shall be automatically freed and relieved,
from and after the date of such transfer or conveyance, of all personal
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.
ARTICLE XXX
ENVIRONMENTAL MATTERS
SECTION 30.1. DEFINED TERMS.
A. "HAZARDOUS MATERIAL" shall include but shall not be limited
to any substance, material, or waste that is regulated by any federal,
state, or local governmental authority because of toxic, flammable,
explosive, corrosive, reactive, radioactive or other properties that may
be hazardous to human health or the environment, including without
limitation asbestos and asbestos-containing materials, radon, petroleum
and petroleum products, urea formaldehyde foam insulation, methane,
lead-based paint, polychlorinated biphenyl compounds, hydrocarbons or
like substances and their additives or constituents, pesticides,
agricultural chemicals, and any other special, toxic, or hazardous
substances, materials, or wastes of any kind, including without
limitation those now or hereafter defined, determined, or identified as
"hazardous substances," "hazardous materials," "toxic substances," or
"hazardous wastes" in any Environmental Law.
B. "ENVIRONMENTAL LAW" shall mean any federal, state, or local
law, statute, ordinance, code, rule, regulation, policy, common law,
license, authorization, decision, order, or injunction which pertains to
health, safety, any Hazardous Material, or the environment (including
but not limited to ground, air, water, or noise pollution or
contamination, and underground or aboveground tanks) and shall include,
without limitation, the Resource Conservation and ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇
▇.▇.▇. ▇▇▇▇▇ et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 89601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986; the
Hazardous Materials ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. ▇▇▇▇▇ et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. 81251 et seq.; the Clean
Air Act, 42 U.S.C. 87401 et seq.; the Toxic Substances ▇▇▇▇▇▇▇ ▇▇▇, ▇▇
▇.▇.▇. ▇▇▇▇▇ et seq.; the Safe Drinking Water Act, 42 U.S.C. Section
300f et seq.; the Illinois Environmental Protection Act, 415 ILCS 4/1 et
seq.; the Municipal Code of the City of Chicago; the Rivers and Harbors
Act, (33 U.S.C. 8401 et seq.); the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq. ("EPCRA"),
32
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 to
136y; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.; and the
Occupational Safety and Health Act, 29 U.S.C. 651 et seq.; and any other
federal, state, or local environmental requirements, together with all
rules, regulations, orders, and decrees now or hereafter promulgated
under any of the foregoing, as any of the foregoing now exist or may be
changed or amended or come into effect in the future.
C. "ENVIRONMENTAL CLAIM" shall mean and include any demand,
notice of violation, inquiry, cause of action, proceeding, or suit for
damages (including reasonable attorneys', consultants', and experts'
fees, costs or expenses), losses, injuries to person or property,
damages to natural resources, fines, penalties, interest, cost recovery,
compensation, or contribution resulting from or in any way arising in
connection with any Hazardous Material or any Environmental Law.
D. "PRE-EXISTING CONDITION" shall mean the presence of any
Hazardous Material on the Premises, to the extent such Hazardous
Material was not introduced onto the Premises after the Commencement
Date.
E. "ENVIRONMENTAL CONDITION" shall mean (i) the presence on
the Premises of one or more underground storage tanks or (ii) the
existence of any Hazardous Material on the Premises, other than a
Pre-Existing Condition,
(a) in violation of or requiring cleanup under any
Environmental Law or the provisions of this Article XXX, or
(b) in concentrations or at levels exceeding
applicable federal, state, or local standards for soil,
groundwater, or waste on residential properties,
either of which subjects Landlord to liability for any Environmental
Claim or which must be remediated to prevent Landlord from incurring
loss of any kind.
F. "ENVIRONMENTAL REMEDIATION" shall mean any
investigation, cleanup, removal, containment, remediation, or other
action relating to an Environmental Condition (i) required pursuant to
any Environmental Law, or (ii) necessary to prevent Landlord from
incurring, or relieve Landlord from, loss of any kind as a result of an
Environmental Claim.
G. "REMEDIATING PARTY" shall mean the party which has
elected (or is deemed to have elected) to perform any Environmental
Remediation.
H. "TENANT GROUP" shall mean any or all of Tenant's agents,
employees, representatives, contractors, workmen, mechanics, suppliers,
customers, guests, licensees, invitees, sublessees, assignees and all of
their respective successors and assigns or any party claiming by,
through or under any of them.
I. "PERMITTED MATERIALS" shall mean Hazardous Materials in
de minimis amounts customarily used, stored or generated in the ordinary
course of Tenant's business.
SECTION 30.2. TENANT'S COVENANTS WITH RESPECT TO ENVIRONMENTAL MATTERS.
During the Term, Tenant, at its sole cost and expense, shall:
A. comply with all Environmental Laws relating to the use
and operation of the Premises;
B. keep the Premises free of any Hazardous Material except
for the Permitted Materials;
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C. not exacerbate a Pre-Existing Condition;
D. upon the discovery of an Environmental Condition:
(i) promptly, but not later than three (3) business days
after the discovery of the Environmental Condition, notify
Landlord of the Environmental Condition;
E. upon the discovery of an Environmental Condition caused
by Tenant or any member of the Tenant Group:
(i) furnish a letter of credit, personal guaranty,
escrow of funds, or other security reasonably acceptable to
Landlord to secure performance of Environmental Remediation and
to assure Landlord that all necessary funds are readily
available to Landlord to pay the costs and expenses of
Environmental Remediation;
(ii) prior to commencement of any Environmental
Remediation, submit a proposed scope of work for the
Environmental Remediation, together with a timetable and a cost
estimate, to Landlord for review and approval;
(iii) after obtaining Landlord's approval, diligently
perform the approved Environmental Remediation;
(iv) submit to Landlord in a timely manner for
Landlord's review and comment the documentation and information
required by Sections 30.6 and 30.7 of this Lease relating to
each phase of the Environmental Remediation;
(v) comply with applicable release reporting
requirements and provide Landlord with any information necessary
for Landlord to comply with Environmental Law; and
(vi) obtain a so-called "no further action letter" or
other acknowledgment from the federal, state, or local
governmental agency with jurisdiction over the Environmental
Condition that the Premises have been fully remediated without
reliance on institutional controls (including but not limited to
deed restrictions) or engineered barriers;
F. not install or operate any above or below ground tank,
sump, pit, pond, lagoon, or other storage or treatment vessel or
device on the Premises without first obtaining Landlord's prior
written consent;
G. not handle, use, generate, treat, dispose of, or permit
the use, handling, generation, treatment, storage, or disposal
of any Hazardous Material except for the Permitted Materials in,
on, under, around, or above the Premises at any time during the
Term;
H. not use any above-ground tank (including barrels and
drums), of any size within or without the Premises, except (i)
in compliance with all Environmental Laws, and (ii) if secondary
containment approved by Landlord is provided. Empty tanks,
barrels and drums shall be presumed to have one (1) inch of
product remaining when declared empty.
SECTION 30.3. CONDUCT OF TENANT. If Tenant, with the prior written
authorization of Landlord, which authorization may be granted or denied by
Landlord in its sole and absolute discretion, generates, uses, transports,
stores, treats, or disposes of any Hazardous Material in, on or around the
Project:
34
A. Tenant shall, at its own cost and expense, comply with
all Environmental Laws relating to any Hazardous Material used, stored,
generated or disposed of in, on or around the Project;
B. Tenant shall (i) not dispose of any Hazardous Material in
dumpsters or trash containers or at any other location at the Premises;
(ii) not discharge any Hazardous Material into drains or sewers; (iii)
not cause or allow the release, discharge, emission, or run-off of any
Hazardous Material to air, surface waters, the land, or ground water,
whether directly or indirectly; (iv) at Tenant's own cost and expense,
arrange for the lawful transportation and off-site disposal of all
Hazardous Materials generated by Tenant: (v) provide secondary
containment around all Hazardous Material storage containers, storage
facilities, and above-ground storage tanks; (vi) conduct all necessary
environmental inspections, including but not limited to asbestos
inspections prior to any renovation or demolition as required by 40 CFR
Part 61, and provide copies of all reports associated with such
inspections to Landlord; (vii) comply with all reporting requirements
under any federal, state, or local ordinance, statute, or regulation,
including but not limited to toxics inventory reporting under EPCRA, the
provisions of 40 CFR Part 61, or various regulations controlling the
emissions of volatile organic compounds, and Tenant shall provide copies
of all such reports and notifications to Landlord; and (viii) use only
highly skilled people acceptable to Landlord to address all
environmental issues associated with the Premises, and ensure that such
people and all employees of the Tenant shall receive all training or
certification required under any federal, state, or local legal
requirement specifically mentioned or alluded to in Section 30.1 of this
Lease;
C. 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 violation or alleged violation of any Environmental Laws
or to any violation of Tenant's obligations under subparagraph (B)
above;
D. Landlord and Landlord's agents and employees shall have
the right to enter the Premises and/or conduct appropriate tests for the
purpose of ascertaining that Tenant complies with all applicable laws,
rules or permits relating in any way to the presence of any Hazardous
Materials on the Premises; and
E. Upon the written request of Landlord no more frequently
than once every year, or on any other occasion in the event that
Landlord has reason to believe an environmental problem exists at the
Premises, Tenant shall provide Landlord the results of appropriate tests
of air, water, and soil to demonstrate (i) that Tenant is in compliance
with all applicable laws, rules or permits relating in any way to the
presence of any Hazardous Material on the Premises and (ii) the lack of
any releases, discharges, or emissions.
If the presence, release, threat of release, or placement of any
Hazardous Material on or in the Premises occurs or is caused in whole or in part
by Tenant or any member of the Tenant Group during the Term of this Lease, or
the generation, transportation, storage, treatment, or disposal of any Hazardous
Material at the Premises occurs or is caused in whole or in part by Tenant or
any member of the Tenant Group during the Term of this Lease, and such gives
rise to liability (including, but not limited to, a response action, remedial
action, or removal action) under any Environmental Law or common law theory,
including but not limited to nuisance, strict liability, negligence and
trespass, Tenant shall promptly take any and all action necessary to clean up
the Premises and mitigate exposure to liability arising from the Hazardous
Material, whether or not required by law.
SECTION 30.4. EXACERBATION. If Tenant exacerbates a Pre-Existing
Condition (as a result of Tenant's investigative or remedial activities or
otherwise) during the Lease Term, the provisions of this Article XXX shall apply
to such exacerbation of the Pre-Existing Condition as if it were an
Environmental Condition, and Tenant shall perform Environmental Remediation as
to such exacerbation. Tenant shall be responsible for all fines and penalties
caused by Tenant or to the extent exacerbated by Tenant at any time during the
Lease Term.
35
SECTION 30.5. RIGHTS OF INSPECTION. Landlord and their respective
agents and representatives shall have a right of entry and access to the
Premises at any time in Landlord's discretion for the purposes of (i) inspecting
the documentation relating to Hazardous Materials or environmental matters
maintained by Tenant or occupant of the Premises; (ii) ascertaining the nature
of the activities being conducted on the Premises and investigating whether
Tenant is in compliance with its obligations under Article XXX of this Lease;
and (iii) determining the type, kind, and quantity of all products, materials,
and substances brought onto the Premises, or made or produced thereon. Landlord
and its agents and representatives shall have the right to take samples in
quantities sufficient for analysis of all products, materials, and substances
present on the Premises including, but not limited to, samples, products,
materials, or substances brought onto or made or produced on the Premises by
Tenant or occupant of the Premises or their respective agents, employees,
contractors or invitees and shall also have the right to conduct other tests and
studies as may be reasonably determined by Landlord to be appropriate in order
to investigate whether Tenant is in compliance with its obligations under
Article XXX.
SECTION 30.6. COPIES OF NOTICES. During the term of this Lease, Tenant
and Landlord shall each provide the other promptly with copies of all summons,
citations, directives, information inquiries or requests, notices of potential
responsibility, notices of violation or deficiency, orders or decrees,
Environmental Claims, complaints, investigations, judgments, letters, notices of
environmental liens or response actions in progress, and other communications,
written or oral, actual or threatened, received in the case of Tenant, by Tenant
or occupant of the Premises, or in the case of Landlord, by Landlord, from the
United States Environmental Protection Agency, Occupational Safety and Health
Administration, Illinois Environmental Protection Agency, Illinois Office of the
State Fire ▇▇▇▇▇▇▇▇, Chicago Department of the Environment, or other federal,
state, or local agency or authority, or any other entity or individual
(including both governmental and non-governmental entities and individuals),
concerning (a) any actual or alleged release of any Hazardous Material on, to,
or from the Premises; (b) the imposition of any lien on the Premises relating to
any Hazardous Material; (c) any actual or alleged violation of or responsibility
under Environmental Laws; or (d) any actual or alleged liability under any
theory of common law tort or toxic tort, including without limitation,
negligence, trespass, nuisance, strict liability, or ultrahazardous activity.
SECTION 30.7. TESTS AND REPORTS.
A. Upon written request by Landlord, Tenant shall provide
Landlord, at Tenant's expense, with (i) copies of all environmental
reports and tests prepared or obtained by or for Tenant or occupant of
the Premises; (ii) copies of transportation and disposal contracts (and
related manifests, schedules, reports, and other information) entered
into or obtained by Tenant with respect to any Hazardous Material; (iii)
copies of any permits issued to Tenant under Environmental Laws with
respect to the Premises; (iv) prior to filing, copies of any and all
reports, notifications, and other filings to be made by Tenant or
occupant of the Premises to any federal, state, or local environmental
authorities or agencies, and after filing, copies of such filings; and
(v) any other relevant documents and information with respect to
environmental matters relating to the Premises in Tenant's possession or
available to Tenant. Tenant shall be obligated to provide such
documentation only to the extent that the documentation is within
Tenant's possession or control.
B. In addition, if Landlord ever reasonably believes that
Tenant has breached the terms of this Article XXX, or if any
Environmental Claim is made or threatened, or if a default shall have
occurred under the Lease, or at Landlord's discretion, one (1) time per
Lease Year, Landlord shall have the right, but not the duty, to enter
upon the Premises and conduct an environmental assessment of the
Premises, including but not limited to a visual site inspection, review
of records pertaining to the site, and interviews of Tenant's
representatives or others concerning the site use and history and other
matters. The investigation may also include reasonable subsurface or
other invasive investigation of the Premises, including but not limited
to soil borings and sampling of site soil and ground or surface water
for laboratory analysis, as may be recommended by the Landlord's
consultant (discussed below) as part of its inspection of the Premises
or based upon such other reasonable evidence of Environmental Conditions
warranting such subsurface or other invasive investigation. Landlord
shall have the right, but not the duty, to retain any independent
36
professional consultant to conduct any such environmental assessment;
provided, however, that Landlord agrees to limit, in the absence of an
Environmental Claim or default under this Article XXX, the number of such
environmental assessments to one (1) per Lease Year for the Lease Term. Tenant
will cooperate with the Landlord's consultant and will supply to the consultant,
promptly upon request, any information reasonably requested by Landlord to
facilitate the completion of the environmental assessment. Landlord and its
designees are hereby granted access to the Premises at any time or times, upon
reasonable notice (which may be written or oral) to perform such environmental
assessment. In exercising its right, Landlord shall use its reasonable efforts
to minimize disruption of operations at the Premises. Any costs associated with
performance of the environmental assessment, including but not limited to the
consultant fees and restoration of any property damaged by such environmental
assessment, shall be paid by Landlord unless such investigation discloses an
Environmental Condition caused by Tenant or any member of the Tenant Group, in
which case Tenant shall pay such costs.
C. In the event of an Environmental Condition caused by Tenant or
any member of the Tenant Group, Tenant shall pay costs incurred by Landlord
(including consultants' fees, costs and expenses) to review and comment on all
reports and other documentation and information required by Sections 30.5 and
30.6, and to monitor the performance of any Environmental Remediation performed
by Tenant.
SECTION 30.8. INDEMNIFICATION. Tenant shall reimburse, defend with
counsel chosen by Landlord, indemnify, and hold Landlord and any other
Indemnified Party free and harmless from and against any and all Environmental
Claims, response costs, losses, liabilities, damages, costs, and expenses,
including without limitation loss of rental income, loss due to business
interruption, and reasonable attorneys' and consultants' fees, costs and
expenses arising out of or in any way connected with any or all of the
following:
A. any Hazardous Material (other than a Pre-Existing Condition)
which, at any time during the Term, is or was actually or allegedly generated,
stored, treated, released, disposed of, or otherwise located on or at the
Premises as a result of the act or omission of Tenant or any member of the
Tenant Group (regardless of the location at which such Hazardous Material is now
or may in the future be located or disposed of), including, but not limited to
any and all (i) liabilities under any common law theory of tort, nuisance,
strict liability, ultrahazardous activity, negligence, or otherwise based upon,
resulting from or in connection with any Hazardous Material; (ii) obligations to
take response, cleanup, or corrective action pursuant to any Environmental Laws;
and (iii) the costs and expenses of investigation or remediation in connection
with the decontamination, removal, transportation, incineration, or disposal of
any of the foregoing; and
B. any actual or alleged illness, disability, injury, or death of any
person, in any manner arising out of or allegedly arising out of exposure to any
Hazardous Material or other substances or conditions present at the Premises as
a result of the act or omission of Tenant or any member of the Tenant Group
(including, but not limited to, ownership, operation, and disposal of any
equipment which generates, creates, or uses electromagnetic files, x-rays, other
forms of radiation and radioactive materials), regardless of when any such
illness, disability, injury, or death shall have occurred or been incurred or
manifested itself; and
C. any actual or alleged failure of Tenant or any member of the Tenant
Group at any time and from time to time to comply with all applicable
Environmental Laws or any permit issued thereunder;
D. any failure by Tenant to comply with any obligation under this
Article XXX relating to an Environmental Condition for which Tenant is
Remediating Party;
E. Tenant's failure to provide any information, make any submission, and
take any step required by any relevant governmental authorities;
37
F. the imposition of any lien for damages caused by, or the
recovery of any costs for, the remediation or cleanup of any Hazardous
Material as a result of events that took place during the Term of this
Lease as a result of the act or omission of Tenant or any member of the
Tenant Group;
G. costs of removal of any and all Hazardous Materials from
all or any portion of the Premises, which Hazardous Materials came to be
present at the Premises during the Term of this Lease as a result of the
act or omission of Tenant or any member of the Tenant Group;
H. costs incurred to comply, in connection with all or any
portion of the Premises, with all governmental requirements with respect
to any Hazardous Material on, in, under or affecting the Premises, which
Hazardous Material came to be present at the Premises during the Term of
this Lease as a result of the act or omission of Tenant or any member of
the Tenant Group;
I. any spills, charges, leaks, escapes, releases, dumping,
transportation, storage, treatment, or disposal of any Hazardous
Material which occur during the Term of this Lease, but only to the
extent that such Hazardous Material originated from or were or are
located on the Premises and are caused by Tenant or any member of the
Tenant Group.
In the event Environmental Claims or other assertion of liability shall
be made against any Indemnified Party for which the Indemnified Party is
entitled to indemnity hereunder, the procedure set forth in Section 24.1 shall
apply. The obligations of Tenant under this Section 30.8 shall survive any
termination or expiration of this Lease.
SECTION 30.9. TENANT ACKNOWLEDGMENTS WITH RESPECT TO ENVIRONMENTAL
MATTERS. Tenant acknowledges that the Premises are being leased in their present
"as is" condition. Tenant further acknowledges that Landlord has made no
representation whatsoever regarding any Hazardous Material on or about the
Premises.
SECTION 30.10. NO LIABILITY OF LANDLORD.
A. Landlord shall not have any liability to Tenant or any
of its employees, agents, shareholders, officers or directors, or any
other persons as a result of any Hazardous Material now or hereafter
located on the Premises.
B. Tenant hereby waives and releases Landlord from all
Environmental Claims arising from or relating to Pre-Existing
Conditions.
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ARTICLE XXXI
SECURITY DEPOSIT
SECTION 31.1. SECURITY DEPOSIT. Tenant agrees to deposit with
Landlord, upon the execution of this Lease, the Security Deposit as security for
the full and faithful performance by Tenant of each and every term, provision,
covenant and condition of this Lease. If Tenant defaults beyond any applicable
grace and/or cure period in respect to any of the terms, provisions, covenants
and conditions of this Lease including, but not limited to, payment of all
rental and other sums required to be paid by Tenant hereunder, Landlord may use,
apply or retain the whole or any part of the Security Deposit for the payment of
such rent in default, for any sum which Landlord may expend or be required to
expend by reason of Tenant's default including, without limitation, any damages
or deficiency in the reletting of the Premises, whether such damages or
deficiency shall have accrued before or after re-entry by Landlord. If any of
the Security Deposit shall be so used, applied or retained by Landlord at any
time or from time to time, Tenant shall promptly, in each such instance, within
five (5) business days of written demand therefor by Landlord, pay to Landlord
such additional sums as may be necessary to restore the Security Deposit to the
original amount set forth in the first Section of this Lease. If Tenant shall
fully and faithfully comply with all the terms, provisions, covenants and
conditions of this Lease, the Security Deposit, or the balance thereof, shall be
returned to Tenant after the following: (a) the time fixed as the expiration of
the Term of this Lease; (b) the removal of Tenant from the Premises; (c) the
surrender of the Premises by Tenant to Landlord in accordance with this Lease;
and (d) final determination of all amounts payable by Tenant hereunder and
payment of same. Except as otherwise required by law, Tenant shall not be
entitled to any interest on the aforesaid Security Deposit. In the absence of
evidence satisfactory to Landlord of an assignment of the right to receive the
Security Deposit or the remaining balance thereof, Landlord may return the
security deposit to the original Tenant, regardless of one or more assignments
of this Lease.
ARTICLE XXXII
MISCELLANEOUS
SECTION 32.1. CAPTIONS. The captions of 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.
SECTION 32.2. SEVERABILITY. If any covenant, agreement or condition
of this Lease or the application thereof to any person, firm or corporation or
to any circumstances, shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such covenant, agreement or
condition to persons, firms or corporations or to circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby. Each
covenant, agreement or condition of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
SECTION 32.3. APPLICABLE LAW. This Lease shall be construed and
enforced in accordance with the laws of the state where the Premises are
located.
SECTION 32.4 AMENDMENTS 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.
SECTION 32.5 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.
39
SECTION 32.6 BROKERAGE. Landlord and Tenant each warrant to the
other that it has no dealings with any real estate broker or agent in connection
with this lease other than Landlord's Broker and Tenant's Broker, and each party
covenants to pay, hold harmless and indemnify the other party 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 arising out of any acts of the indemnifying party.
SECTION 32.7 NO ACCORD AND SATISFACTION. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent herein stipulated
and additional rent shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
SECTION 32.8 JOINT EFFORT. The preparation of this Lease has been a
joint effort of the parties hereto and the resulting documents shall not, solely
as a matter of judicial construction, be construed more severely against one of
the parties than the other.
SECTION 32.9 WAIVER OF JURY TRIAL. Tenant hereby waives a jury
trial in action brought by Landlord hereunder. If Landlord commences any
proceeding for nonpayment of rent or any other sum due to be paid by Tenant
under this Lease, Tenant hereby agrees that Tenant will not impose any
counterclaim of any nature or description in any such proceeding, provided
however, that such agreement of Tenant shall not be construed as a waiver of the
right of Tenant to assert such claim in a separate action or actions brought by
Tenant.
SECTION 32.10 TIME. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
SECTION 32.11 LANDLORD'S CONSENT. Landlord's granting of any consent
under this Lease, or Landlord's failure to object to any action taken by Tenant
without Landlord's consent required under this Lease, shall not be deemed a
waiver by Landlord of its rights to require such consent for any further similar
act by Tenant. No waiver by Landlord of any other breach of the covenants of
this Lease shall be construed, taken or held to be a waiver of any other breach
or to be a waiver, acquiescence in or consent to any further or succeeding
breach of the same covenant. None of the Tenant's covenants under this Lease,
and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord.
SECTION 32.12 NO PARTNERSHIP. Landlord is not, and shall not be
deemed to be, in any way or for any purpose, the partner, employer, principal,
master or agent of or with Tenant.
SECTION 32.13 LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary herein contained, there shall be absolutely no personal liability
asserted or enforceable against Landlord or on any persons, firms or entities
who constitute Landlord with respect to any of the terms, covenants, conditions
and provisions of this Lease, and Tenant shall, subject to the rights of any
mortgagee, look solely to the interest of Landlord, its successors and assigns
in the Project for the satisfaction of each and every remedy of Tenant in the
event of default by Landlord hereunder; such exculpation of personal liability
is absolute and without any exception whatsoever. If the entity constituting
Landlord is a partnership, Tenant agrees that the deficit capital account of any
such partner shall not be deemed an asset or property of said partnership.
SECTION 32.14 LANDLORD RIGHTS. This Lease does not grant any rights
to light or air over or about the Premises. Landlord specifically excepts and
reserves to itself the use of any roofs, the exterior and structural components
of the Building, all rights to the land and improvements below the improved
floor level of the Building, to the improvements and air rights above the
Building and to the improvements and air rights located outside the demising
walls of the building and to such areas within the Building required for
installation of utility lines and other
40
installations and to such portions of the Premises necessary to access, maintain
and repair same, and no rights with respect thereto are conferred upon Tenant.
SECTION 32.15. ENTIRE AGREEMENT. It is understood and agreed that all
understandings and agreements heretofore had between the parties hereto are
merged in this Lease, the exhibits annexed hereto and the instruments and
documents referred to herein, which alone fully and completely express their
agreements, and that no party hereto is relying upon any statement or
representation, not embodied in this Lease, made by the other. Each party
expressly acknowledges that, except as expressly provided in this Lease the
other party and the agents and representatives of the other party have not made,
and the other party is not liable for or bound in any manner by, any express or
implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the transactions contemplated
hereby.
SECTION 32.16. RENT ABSOLUTE. Except as otherwise expressly provided
herein, this Lease shall be deemed and construed to be a "net lease" and Tenant
agrees to pay all costs and expenses of every kind and nature whatsoever,
ordinary and extraordinary, arising out of or in connection with the ownership,
maintenance, repair, replacement, use and occupancy of the Premises during the
Term of this Lease, which, except for the execution and delivery hereof, would
otherwise have been payable by Landlord.
SECTION 32.17. TENANT AUTHORITY. Simultaneously with the execution and
delivery of this Lease by Tenant, Tenant shall deliver to Landlord:
A. Certified resolutions of its board of directors of Tenant
executing this Lease on behalf of Tenant authorizing the execution and
delivery of this Lease.
B. A certificate of incumbency executed by the secretary of any
corporate partner of Tenant executing this Lease on behalf of Tenant
identifying by name, office and facsimile signature the officers of
Tenant.
C. A current certificate of good standing issued by the
Secretary of State of the state of incorporation of Tenant and the State
of Illinois.
ARTICLE XXXIII
PARKING
SECTION 33.1. PARKING. Landlord agrees that the parking area adjacent
to the Building shall contain five (5) parking spaces which may be utilized by
Tenant, its employees, agents and invitees, and Landlord agrees, upon prior
request of Tenant, to designate the five (5) spaces immediately adjacent to the
Premises as "Reserved" for Tenant's exclusive use provided, however, Landlord
shall have no obligation to enforce the exclusive nature of such parking spaces
with respect to third parties.
ARTICLE XXXIV
RENEWAL OPTIONS
SECTION 34.1. RENEWAL OPTION. Tenant shall have the option ("Renewal
Option") to renew the Initial Term for all of the Premises as of the expiration
date of the Initial Term, for one (1) additional period of two (2) years (each
of said renewals is a "Renewal Term") upon the following terms and conditions:
A. Tenant gives Landlord written notice of its exercise of the
Renewal Option at least nine (9) months prior to the expiration of the
Term.
41
B. Tenant is not in default under this Lease either on the date
Tenant delivers the notice required under subparagraph A. above or at
any time thereafter prior to the commencement of the Renewal Term so
exercised.
C. Landlord shall be provided with evidence satisfactory to it
of Tenant's compliance with the terms and conditions of Article XXX
hereof.
D. All of the terms and provisions of this Lease (except this
Article XXXIV) shall be applicable to the Renewal Term, except that Rent
for the Renewal Term shall be determined as follows: Base Rent for each
Renewal Term shall be determined upon expiration of the Initial Term and
shall be equal to the greater of: (i) one hundred two percent (102%) of
the Base Rent for the last year of the the Initial Term and First
Renewal Term, as applicable, or (ii) Landlord's determination of the
Fair Value (as hereinafter defined). For purposes of this Lease, "Fair
Value" shall mean Landlord's determination, utilizing its reasonable
judgment, of an annual amount per rentable square foot for each year of
the applicable Renewal Term for which Fair Value is being determined
beginning with the first (1st) day of the subject period that a willing,
creditworthy, new non-equity tenant leasing comparable space to Tenant's
would pay and a willing, comparable landlord of an industrial building
comparable to the Building in the Chicago metropolitan area ("Market")
would accept at arm's length, giving appropriate consideration to annual
rental rate per rentable square foot, rental escalations, length of
lease term, size and location of the premises being leased, and other
generally applicable terms and conditions prevailing for comparable
space in comparable buildings located in the Market. In the event Tenant
notifies Landlord within ten (10) days after receipt of notice of
Landlord's determination of Fair Value that Tenant disagrees with
Landlord's determination, then, at the option of Landlord or Tenant,
Landlord and Tenant shall institute an appraisal procedure to determine
the Fair Value by jointly nominating and appointing, within ten (10)
days after receipt of notice from the other party, one appraiser who
shall make a determination of the Fair Value of the Premises. If
Landlord and Tenant fail to jointly agree on the nomination and
appointment of one appraiser within said ten (10) day period, each party
shall then each nominate and appoint one appraiser within fifteen (15)
days after the end of the initial ten (10) day period and give notice of
such appointment to the other party. Upon the appointment of the two
appraisers as aforesaid, the two appraisers so appointed shall jointly
make a determination of the Fair Value of the Premises. If either party
fails to appoint an appraiser within said fifteen (15) day period, the
appraiser appointed by the other party shall make the determination of
the Fair Value. If the two appraisers are unable to agree upon a
determination of the Fair Value of the Premises within fifteen (15) days
after the appointment of the second appraiser, the two appraisers shall
jointly nominate and appoint a third appraiser within fifteen (15) days
after the expiration of said fifteen (15) day period and give written
notice of such appointment to both parties. In the event the two
appraisers fail to appoint such third appraiser within said fifteen (15)
day period, either party may thereafter apply to the United States
District Court for the Northern District of Illinois for the appointment
of such third appraiser. The third appraiser shall make a determination
of the Fair Value. In the event the three appraisers are unable to agree
upon a determination of the Fair Value of the Premises within fifteen
(15) days after the appointment of the third appraiser, then the Fair
Value shall be an amount equal to the average of the three values
contained in the respective written appraisals submitted by the
appraisers. The appraisers shall make their determination in writing and
give notice thereof to both parties. Each appraiser shall afford both
parties a hearing and the right to submit evidence, with the privilege
of cross-examination in connection with its determination of the Fair
Value. In the event any appraiser appointed as aforesaid shall die or
become unable or unwilling to act before completion of the appraisal,
such appraiser's successor shall be appointed in the same manner as
provided above. Any appraiser appointed hereunder shall (x) be
independent of both parties (and of all persons and entities with
interest in either party); (y) have not less than five (5) years'
experience in the appraisal of real property; and (z) hold the
professional designation M.A.I., or if the M.A.I. ceases to exist, a
comparable designation from an equivalent professional appraiser
organization. All appraisal fees and expenses shall be borne equally by
the parties.
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SECTION 34.2. "AS IS" CONDITION. Tenant agrees to accept the
Premises to be covered by this Lease during the Renewal Term in an "as is"
physical condition and Tenant shall not be entitled to receive any allowance,
credit, concession or payment from Landlord for the improvement thereof.
SECTION 34.3. AMENDMENT. In the event that Tenant exercises the
Renewal Option, then Landlord and Tenant shall mutually execute and deliver an
amendment to this Lease reflecting the renewal of the Term on the terms herein
provided, which amendment shall be executed and delivered promptly after the
determination of Rent to be applicable to the Renewal Term as hereinabove
provided.
SECTION 34.4. TERMINATION. The Renewal Option herein granted shall
automatically terminate upon the earliest to occur of (i) the expiration or
termination of this Lease, (ii) the termination of Tenant's right to possession
of the Premises, (iii) any assignment or subletting by Tenant other than a
subletting expressly permitted hereunder, or (iv) the failure of Tenant to
timely or properly exercise the Renewal Option.
SECTION 34.5. NO COMMISSIONS. Landlord and Tenant acknowledge and
agree that no real estate brokerage commission or finder's fee shall be payable
by Landlord in connection with any exercise by Tenant of the Renewal Option
herein contained.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
set forth above.
LANDLORD: CENTERPOINT PROPERTIES TRUST, a Maryland real estate
investment trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Its: Chief Investment Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Its: Assistant Vice President and Controller
TENANT: ▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation
By:
-------------------------------------------------
Its: Vice President
43
EXHIBIT "A"
PREMISES
44
EXHIBIT "B"
LEGAL DESCRIPTION
PARCEL 1:
LOTS 1 AND 2 IN TACO ▇▇▇▇ RESUBDIVISION, BEING A RESUBDIVISION OF SECTION 34,
TOWNSHIP 41 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN ▇▇▇▇
COUNTY, ILLINOIS
PARCEL 2:
EASEMENT FOR THE BENEFIT OF PARCEL 1 FOR INGRESS AND EGRESS AS CREATED BY
EASEMENT AND LICENSE AGREEMENT DATED APRIL 30, 1987 AND RECORDED MAY 8, 1987 AS
DOCUMENT 87250925 AND AMENDED BY FIRST AMENDMENT RECORDED NOVEMBER 15, 1988 AS
DOCUMENT 88526155 MADE BY BOULEVARD BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER
TRUST AGREEMENT DATED OCTOBER 10, 1986 AND KNOWN AS TRUST NUMBER 8365 AND
BETWEEN ▇▇▇▇▇▇▇▇'▇ CORPORATION OVER THE FOLLOWING DESCRIBED PROPERTY:
THE EAST 193.53 FEET (AS MEASURED ALONG THE EAST LINE) OF LOT 285 IN CENTEX
INDUSTRIAL PARK UNIT 165, BEING A SUBDIVISION OF THE EAST 1/2 OF THE NORTHEAST
1/4 OF SECTION 34, TOWNSHIP 41 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN ▇▇▇▇ COUNTY, ILLINOIS
45
EXHIBIT "C"
TENANT ESTOPPEL CERTIFICATE
Property Name: ___________________________________________________
("Property")
Tenant: ___________________________________________________
To: ___________________________________________________
DEFINITIONS:
Lease Date: ___________________________________________________
Landlord: ___________________________________________________
Tenant: ___________________________________________________
Security Deposit: ___________________________________________________
Date of Possession: ___________________________________________________
Rent Commencement Date: ___________________________________________________
Monthly Base Rent: ___________________________________________________
46
Annual Base Rental Amount: ___________________________________________________
Monthly Deposits: ___________________________________________________
Term: ___________________________________________________
Termination Date: ___________________________________________________
Renewal Option(s): ___________________________________________________
Square Footage: ___________________________________________________
Use: ___________________________________________________
Tenants Address For Notices:
___________________________________________________
["Purchaser"] ["Lender"] proposes to [purchase the Property] [finance
the Property] and this Tenant Estoppel Certificate is to be made and delivered
in connection with that [purchase] [financing].
The undersigned Tenant under the above-referenced lease dated as of the
Lease Date between Landlord and Tenant ("Lease"), certifies, represents,
confirms and agrees in favor of [Purchaser] [Lender] the following:
1. The above-described Lease has not been cancelled, modified, assigned,
extended or amended and contains the entire agreement between Landlord and
Tenant except as follows:
2. Rent has been paid to _______________________________________. There is
no Prepaid Rent. The amount of the Security Deposit is as set forth above, which
is currently being held by Landlord.
3. Tenant took possession of the leased premises on the Date of Possession,
and commenced to pay rent on the Rent Commencement Date, in the amount of the
Monthly Base Rent, each payable in advance. Our current Annual Base Rental
Amount is as set forth above, payable in equal monthly installments, subject to
percentage rental, common area maintenance charges, escalation charges and other
charges in accordance with the terms and provisions of the Lease, which as of
the date hereof total the Monthly Deposit Amount, each payable in equal
47
monthly installments in advance. We are currently in occupancy of the leased
premises. No "discounts", "free rent", "discounted rent" or "abatements of rent"
have been agreed to or are in effect.
4. The Lease is for the Term set forth above and ending on the Termination
Date, and we have the Renewal Option(s) set forth above.
5. All space and improvements covered by the Lease have been completed and
furnished to the satisfaction of Tenant, all conditions required under the Lease
have been met, and Tenant has accepted and taken possession of the leased
premises on the Date of Possession as set forth above and presently occupies the
leased premises, presently consisting of the Square Footage as set forth above.
6. The Lease is (a) in full force and effect, and (b) free from default by
both Landlord and Tenant; and we have no claims, liens, charges or credits
against Landlord or offsets against rent.
7. The undersigned has not assigned or sublet the Lease, nor does the
undersigned hold the Property under assignment or sublease.
8. There are no other agreements written or oral, between the undersigned
and Landlord with respect to the Lease and/or the leased premises and building.
Landlord has satisfied all commitments, arrangements or understandings made to
induce Tenant to enter into the Lease, and Landlord is not in any respect in
default in the performance of the terms and provisions of the Lease, nor is
there now any fact or condition which, with notice or lapse of time or both,
would become such a default.
9. The leased premises are currently being used for the Use set forth
above.
10. Tenant is maintaining (free of default) all insurance policies that the
Lease requires Tenant to maintain.
11. Neither Landlord nor [Purchaser] [Lender] nor any of their respective
successor or assigns, has or will have any personal liability of any kind or
nature under or in connection with the Lease; and, in the event of a default by
Landlord or [Purchaser] [Lender] under the Lease, Tenant shall look solely to
Landlord's or [Purchaser's] [Lender's] interest in the building in which the
leased premises are located.
12. Tenant is not in any respect in default under the terms and provisions
of the Lease (nor is there now any fact or condition which, with notice or lapse
of time or both, would become such a default), and Tenant has not assigned,
transferred or hypothecated its interest under the Lease.
13. Tenant (i) does not have any option or preferential right to purchase
all or any part of the leased premises or all or any part of the building of
which the leased premises are a part; and (ii) does not have any right, title or
interest with respect to the leased premises other than as lessee under the
Lease.
14. We understand that [Purchaser] [Lender] is planning to [purchase]
[finance] the Property on which the leased premises is located to Purchaser, and
we agree to make all payments required under the Lease to [Purchaser] [Lender]
upon our receipt of notice from Landlord and/or [Purchaser] [Lender]. Further,
upon receipt of such notice, we will thereafter look to [Purchaser] [Lender] and
not Landlord as the landlord under the Lease. We agree to give all notices
required to be given by us to Landlord under the Lease to [Purchaser] [Lender]
upon our receipt of said notice.
15. The statements contained herein may be relied upon by [Purchaser]
[Lender] and by any prospective purchaser or lender of the Property.
48
16. If Tenant is a Corporation, the undersigned is a duly appointed officer
of the corporation signing this Agreement, and is the incumbent in the office
indicated under his or her name. If Tenant is a partnership or joint venture,
the undersigned is a duly appointed partner or officer of the partnership or
joint venture signing this certificate. In any event, the undersigned individual
is duly authorized to execute this Agreement on behalf of Tenant.
17. Tenant (a) executes this certificate with the understanding that
[Purchaser] [Lender] is contemplating [purchasing] [financing] the Property, and
that if [Purchaser] [Lender] [purchases] [finances] the Property, [Purchaser]
[Lender] will do so in material reliance on this certificate; and (b) agrees
that the certifications and representations made herein shall survive such
acquisition.
18. The current address to which all notices to Tenant as required under the
Lease should be sent is the Tenant's Address for Notices.
19. [Purchaser's] [Lender's] rights hereunder shall inure to its successors
and assigns.
20. Tenant is obligated under the Lease to pay the real estate taxes which
are assessed against the Property in a calendar year. Tenant is obligated to pay
to Tenant the real estate taxes assessed against the Property during the last
year of the term upon Landlord's receipt of a real estate tax ▇▇▇▇ with respect
thereto, even though the Lease term may have expired and Tenant has vacated the
Property prior to the issuance of said real estate tax ▇▇▇▇.
IN WITNESS WHEREOF, Tenant has executed this estoppel certificate as of
this ______ day of ________________, 199__.
___________________________, a ______________
By: _________________________________________
Its: