EXHIBT 10.10
LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLE PAGE
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1.0 RENT & TERMS 2
2.0 SECURITY DEPOSIT 6
3.0 USE 7
3.5 Signs 8
3.6 Protecting Premises 8
3.7 Locks 8
3.8 Advertising 8
3.9 Utilities 8
3.10 Hazardous Materials 9
3.11 Defacing Premises 9
3.12 Overloading 10
3.13 Obstruction of Common Areas 10
3.14 Nuisances 10
4.0 ALTERATIONS, MAINTENANCE & REPAIRS 11
4.1 By Landlord 11
4.2 By Tenant 11
4.6 Carpeting 12
5.0 ASSIGNMENT & SUBLETTING 13
6.0 INSURANCE & INDEMNIFICATIONS 14
7.0 MORTGAGES, TITLE, LIENS 17
8.0 EMINENT DOMAIN & DESTRUCTION OF PREMISES 18
9.0 SURRENDER OF PREMISES 21
10.0 LANDLORD'S REMEDIES 23
11.0 LANDLORD SHALL FURNISH 25
12.0 RIGHTS RESERVED TO LANDLORD 26
13.0 MISCELLANEOUS 27
13.1 Legal Fees 27
13.2 Additional Billing 27
13.3 Rent After Termination 28
13.4 Successors & Assigns 28
13.5 Notices 28
13.6 Entire Agreement 13.11 Option to Renew 29
SIGNATURE PAGE 30
Exhibit "A" - Map 31
Exhibit "B" - Space Plan 32
THE LEASE AGREEMENT
THIS LEASE, made NOVEMBER 22. 1996 between
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LANDLORD: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co., Agent for the beneficiary
pursuant to Trust Agreement established with American
National Bank, as Trustee, pursuant to Trust Agreement
dated December 20, 1995 and known as Trust No.
120886-05
TENANT: MOLECULAR GERIATRICS CORP. A DELAWARE CORPORATION
BUILDING: SOUTH
DEVELOPMENT: ▇▇▇▇▇▇ EXECUTIVE ▇▇▇▇▇ Exhibit A attached
SQUARE FOOTAGE: 7,500 S.F.
PREMISES: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - SUITES 110 & 111
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT'S SHARE OF
IMPROVEMENTS: $- 65.000.00*
*LANDLORD AGREES TO PAY FOR ALL TENANT IMPROVEMENT COSTS IN EXCESS OF
$65,000,00, EXCEPT THAT ANY ADDITIONAL COSTS DUE TO SPECIAL REQUIREMENTS IMPOSED
BY THE VILLAGE OF ▇▇▇▇▇▇ HILLS AS A RESULT OF TENANT'S TYPE OF USE OR ANY
REVISIONS MADE TO THE CURRENT SPACE PLAN BY TENANT WHICH RESULT IN AN INCREASE
IN COSTS ARE TO BE BILLED TO TENANT IN ADDITION TO THE $65,000.00. $165,000.00
OF TENANT IMPROVEMENTS ARE INCLUDED IN LEASE RATE.
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises described above and in Exhibit A attached hereto and made
a part hereof. In consideration thereof, the parties covenant and agree as
follows:
ARTICLE 1. RENT & TERM
1.0 TERM
The Lease term is from FEBRUARY 1.1997 to APRIL 30. 2002
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1.1 RENTAL
Tenant shall pay to Landlord the sum of FOUR HUNDRED FIFTY THOUSAND,
TWO HUNDRED TWENTY-FIVE and NO/100 DOLLARS ($450,225.00) as rent in installments
as follows:
From 2/01/97 to 4/30/97 in monthly installments of $ - 0 -
From 5/01/97 to 4/30/98 in monthly installments of $7,356.25
From 5/01/98 to 4/30/99 in monthly installments of $7,356.25
From 5/01/99 to 4/30/00 in monthly installments of $7,356.25
From 5/01/00 to 4/30/01 in monthly installments of $7,725.00
From 5/01/01 to 4/30/02 in monthly installments of $7,725.00
1.2 ADDITIONAL RENT - REAL ESTATE TAXES AND TENANT'S PROPORTIONATE SHARE.
In addition to Fixed Rent, Tenant shall pay to Landlord Tenant's
proportionate share (6.33%) ("Tenant's Proportionate Share") of all taxes and
assessments, general and special, and all other impositions, ordinary and
extraordinary, of any kind and nature whatsoever (or any substitution thereof),
which may be levied, assessed or imposed upon the Development (as constructed
from time to time) and Tenant's Proportionate Share of any and all reasonable
fees and expenses incurred by Landlord in its efforts to reduce said taxes
(collectively "Real Estate Taxes"). If Landlord is successful in reducing said
taxes Tenant shall share proportionately in such reduction.
The Landlord shall in good faith estimate the Real Estate Taxes to be
incurred by the Landlord during each year of the Lease and a sum equal to
one-twelfth (1/12th) thereof shall be paid by the Tenant each month of the term
of this Lease.
Payment of additional rental for Tenant's Proportionate Share of Real
Estate Taxes is due within ten (10) days following Tenant's receipt of the
invoice. Late payments are subject to late charges as included in Section 1.7.
Within ninety (90) days following receipt of the ▇▇▇▇ for Real Estate Taxes for
the applicable year, Landlord shall furnish the Tenant with a copy of the same
and there shall be an adjustment between the Landlord and Tenant with payment to
or a refund by Landlord, as the case may be, so that the amount charged to the
Tenant does not exceed Tenant's Proportionate Share of the Real Estate Taxes
actually paid.
Upon the termination of the Lease, by lapse of time or otherwise, the
Tenant shall pay Tenant's Proportionate Share based upon the actual amount of
Real Estate Taxes, if known, or if not known, based on an estimate of 110% of
the previous year's actual Real Estate Taxes prorated for any partial calendar
year. This amount will be billed and due prior to the last day of occupancy.
UPON RECEIPT OF THE TAX ▇▇▇▇ FOR SUCH PARTIAL YEAR, LANDLORD SHALL REFUND ANY
OVERPAYMENT TO TENANT. THIS OBLIGATION SHALL SURVIVE THE TERMINATION OF THE
LEASE.
1.3 ADDITIONAL RENT - COMMON AREA EXPENSES
Tenant shall pay to the Landlord as additional rent for the Premises,
Tenant's Proportionate Share (6.33 %) of the expenses attributable to "Common
Areas" (hereafter defined). ▇▇▇▇▇▇▇▇ for additional rental for Real Estate
Expenses are due within ten (10) days following receipt of the invoice. Late
payments are subject to late charges as included in Section 1.7. he Landlord
shall in good faith estimate the "Common Area Expenses" (hereafter defined) to
be incurred by the Landlord during each year of the Lease and a sum equal to
one-twelfth (1/12th) thereof shall be paid by the tenant each month of the term
of this Lease.
"Common Area Expenses" shall mean any and all reasonable expenses
incurred by the Landlord in connection with Common Areas within the Building and
Development, including, but not limited to, snow removal, landscaping, exterior
window washing, parking lot, roof, exterior wall, foundation, sidewalk repair
and maintenance, cleaning, fire and extended coverage insurance and liability
insurance against casualties in such Common Areas, management fees, all other
repairs and maintenance, depreciation of any equipment used in maintaining the
Common Area and other expenses usually and customarily charged to tenants as
Common Area expenses in like industrial developments. LANDLORD SHALL MAINTAIN
THE COMMON AREAS IN GOOD ORDER, CONDITION AND REPAIR.
Within ninety (90) days following the end of each calendar year during
the term. of the Lease, Landlord will furnish Tenant with a Statement of Common
Area Expenses prepared and certified to by an independent certified public
accountant, which statement shall be binding on Landlord and Tenant UNLESS
LANDLORD IS NOTIFIED IN WRITING WITHIN THIRTY (30) DAYS OF TENANT'S OBJECTIONS.
Any overpayment made by the Tenant shall be refunded to Tenant and any
underpayment shall be billed to and paid by Tenant. In the event of any dispute
as to Tenant's Proportionate Share of Common Area Expenses, the Tenant shall
have the right once each twelve (12) calendar month period, upon reasonable
written notice, at its own expense, to inspect the Landlord's accounting records
relative to Common Area Expenses at Landlord's accounting office during normal
business hours. Unless Tenant shall take written exception to any item included
in Common Area Expenses for any period prior to such inspection within fifteen
(15) days following such inspection, all previous statements shall be considered
as final and accepted by the Tenant. IN THE EVENT THAT TENANT TAKES EXCEPTION TO
ANY ITEMS, LANDLORD AND TENANT SHALL JOINTLY APPOINT A CPA WHOSE DETERMINATION
SHALL BE BINDING ON LANDLORD AND TENANT. IN THE EVENT THAT TENANT'S INSPECTION
REVEALS AN OVERCHARGE OF MORE THAN TEN (10%) PERCENT IN THE AGGREGATE, LANDLORD
SHALL PAY THE COST OF SUCH INSPECTION.
Upon the termination of the Lease, by lapse of time or otherwise, the
Tenant shall pay Tenant's Proportionate Share based upon the actual amount of
Common Area Expenses, if known, or if not known, based on an estimate of 110% of
the previous year's actual Common Area Expenses prorated for any partial
calendar year. This amount will be billed and due prior to the last day of
occupancy. If, when billed, the Tenant's Proportionate Share has been estimated,
the Landlord shall, upon receipt of the ▇▇▇▇ for Common Area Expenses for the
applicable year compute the actual amount payable by the Tenant and either
refund overpayment or ▇▇▇▇ the Tenant for underpayment. THIS PROVISION SHALL
SURVIVE THE TERMINATION OF THIS LEASE. IN NO EVENT SHALL "COMMON AREA EXPENSES"
INCLUDE THE FOLLOWING:
COSTS OF LEASING SPACE TO TENANTS, INCLUDING LEASING COMMISSIONS,
BUILD-OUT COSTS; CAPITAL EXPENSES; ANY FINES OR LATE CHARGES IMPOSED ON
LANDLORD; ANY PRINCIPAL, INTEREST OR GROUND RENT PAYMENT; ATTORNEY'S FEES OR
OTHER COSTS IN ENFORCING OTHER LEASES OF THE DEVELOPMENT; ANY COSTS OF SERVICES
PROVIDED TO OTHER TENANTS OF THE DEVELOPMENT, BUT NOT TO TENANT; ANY SERVICES
RENDERED TO THE DEVELOPMENT BY AFFILIATES OF LANDLORD OR THE MANAGING AGENT OF
THE DEVELOPMENT, TO THE EXTENT THAT SUCH COST EXCEEDS THE COST THAT WOULD HAVE
BEEN CHARGED BY AN UNRELATED THIRD PARTY; AND COSTS OF SALARIES AND BENEFITS FOR
ANY PERSON ABOVE THE RANK OF DEVELOPMENT MANAGER.
▇▇▇▇▇▇▇▇ for additional rental for Common Area Expenses are due within
ten (10) days following receipt of the invoice. Late payments are subject to
late charges as included in Section 1.7.
1.4 DEFINITION OF TENANT'S PROPORTIONATE SHARE
For sections 1.2 and 1.3 Tenant's "Proportionate Share" has been
computed by dividing 118,500 square feet (the total rentable area of the entire
development) into 7,500 SQUARE FEET (the square footage of the leased premises).
1.5 PLACE DUE
All Fixed Rent, Tenant's Proportionate Share of Real Estate Taxes and
Common Area Expenses and other sums due under this Lease shall be paid to
Landlord at Dept. 77-7258, Chicago, Illinois, 60678-7258 or at such other place
as Landlord may from time to time direct in writing.
1.6 DUE DATE
Fixed Rent is due in advance promptly on the first day of every
calendar month and Tenant's Proportionate Share of Real Estate Taxes and Common
Area Expenses is due promptly as provided in Sections 1.2 and 1.3 without
offset. If the Lease commences and/or terminates on other than the last day of
the month, a prorated monthly installment shall be calculated based on a PER
DIEM BASES.
1.7 LATE CHARGE ON PAST DUE RENT
If rents are received later than TEN (10) days after the due date,
Tenant shall pay on demand a late charge equal to five percent (5%) of the late
installment, and five percent (5%) each month thereafter until paid in full.
1.8 PRIOR OCCUPANCY
If Tenant occupies the leased Premises prior to the beginning of the
term with Landlord's consent, all the provisions of this Lease shall be in full
force commencing at such occupancy. Rent for such period shall be based on the
above schedule; a prorated monthly installment shall be calculated on a PER DIEM
BASIS.
1.9 DELAYED OCCUPANCY
In the event that Landlord is prevented from completing the alterations
and improvements described in Exhibit "B" due to the failure of the prior tenant
to surrender possession of the premise to the Landlord, work stoppages, labor
controversies, accidents or other causes beyond the reasonable control of
Landlord, Landlord shall not be liable to Tenant for damages by reason thereof,
nor shall Tenant be relieved from any obligation under this Lease, but the
rental shall be abated based on the above schedule (a pro-rated monthly
installment shall be calculated on a PER DIEM BASIS) until the said alterations
and improvements are completed. In such event, the term of this Lease shall
automatically be extended so as to include the full number of months provided
for by this Lease.
IN THE EVENT THAT LANDLORD FAILS ON OR BEFORE FEBRUARY 15,1997 TO
DELIVER THE PREMISES WITH ALL OF THE ALTERATIONS AND IMPROVEMENTS SUBSTANTIALLY
COMPLETED (EXCEPT FOR PUNCH LIST ITEMS), AND PROVIDED TENANT HAS DELIVERED TO
LANDLORD THREE (3) COPIES OF THE EXECUTED LEASE ALONG WITH FINAL APPROVAL OF THE
FLOOR PLAN BY NOVEMBER 25. 1996, CONFIRMATION ON ALL ELECTRICAL, PLUMBING,
PIPING FOR AIR LINE, FLOOR FINISHES, ABOVE STANDARD HVAC AND EXHAUST SYSTEM
REQUIREMENTS, TOGETHER WITH ALL MATERIAL SAFETY DATA SHEETS FOR CHEMICALS USED
OR STORED, AND WAREHOUSE RACKING LAYOUT (IF ANY) BY NOVEMBER 27. 1996. LANDLORD
SHALL PAY TO TENANT'S CURRENT LANDLORD ANY HOLDOVER COSTS WHICH MAY BE INCURRED
BY TENANT AS A RESULT OF THE DELAYED OCCUPANCY BEGINNING FEBRUARY 16.1997 UNTIL
SUCH TIME AS PREMISES IS AVAILABLE FOR OCCUPANCY UNLESS DELAY WAS CAUSED BY
TENANT, THE VILLAGE OF ▇▇▇▇▇▇ HILLS, OR OTHER CONDITIONS WHICH WERE BEYOND THE
CONTROL OF LANDLORD. SUCH PAYMENT OF HOLDOVER COSTS SHALL NOT EXCEED ONE
THOUSAND ($1,000.00) DOLLARS PER DAY.
ARTICLE 2. SECURITY DEPOSIT
2.1 SECURITY DEPOSIT
Tenant shall deposit with Landlord, upon complete execution and
delivery of this Lease, the below-listed amount to be held by Landlord, without
obligation to pay interest, as security for tenant's covenant to pay the rent
and perform all other obligations required under the terms and provisions
thereof. Landlord may commingle the security deposit with other funds of the
Landlord. In the event of any default on the part of Tenant, Landlord shall have
the right to apply such security deposit, or any portion thereof, to cure such
default. In the event the security deposit is reduced by reason of such
application, then within five (5) days after notice from Landlord, Tenant shall
deposit with Landlord such sum as may be necessary to restore the security
deposit to its original amount. Landlord shall refund the security deposit
without deduction to Tenant within thirty (30) days after the termination of
this Lease, but if the security deposit had been reduced to cure any default on
the part of Tenant and has not been restored to its original amount, only the
remainder of the security deposit, if any, shall be refunded to Tenant upon
termination of this Lease.
2.2 SECURITY DEPOSIT AMOUNT: $14,712.50
2.3 SECURITY DEPOSIT TRANSFER
If the Premises or Building is sold or otherwise conveyed by Landlord,
the security deposit may be transferred to Landlord's successor, and if so,
Tenant hereby releases Landlord from any and all liability with respect to said
deposit and its application or return.
ARTICLE 3. USE
3.1 USAGE
Tenant shall use and occupy the Premises for LABORATORY AND OFFICE and for no
other purposes.
3.2 LAWS & REGULATIONS
Tenant shall use and occupy the Premises and Common Areas subject to
the terms and conditions of this Lease, Tenant's compliance with the applicable
laws, ordinances, and regulations of any governmental agencies having
jurisdiction over the Tenant's business, the Building, Common Areas, and the
Premises, and in compliance with the reasonable rules and regulations that the
Landlord will prescribe from time to time.
3.3 COMMON AREAS
For so long as Tenant is not in default, Landlord grants Tenant a
nonexclusive revocable (in the event of default) license to use and occupy in
common with others entitled thereto the Common Areas, which include sidewalks,
entrances, loading docks, parking areas, driveways, service roads, and any other
areas or facilities which Landlord, in its sole discretion, may designate for
common use ("Common Areas").
3.4 QUIET ENJOYMENT
For so long as Tenant is not in default, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term of the Lease without hindrance
or interruption by Landlord, subject nevertheless to the terms and conditions of
this Lease.
3.5 SIGNS
A sign containing Tenant's name, of a size and design approved by
Landlord, may be placed on the front door entering the Premises and at the rear
door of the Premises. No other sign shall be affixed to any part of the
building. Tenant's sign shall be installed by the Landlord at Tenant's expense.
3.6 PROTECTING PREMISES
Before leaving the Premises unattended, Tenant shall close and securely
lock all doors or other means of entry to the Premises and turn off non-required
utilities in the Premises.
3.7 LOCKS
Tenant shall not place additional locks upon any door or window or
change existing locks without the written consent of the Landlord. Landlord may
remove such locks, and the Tenant shall pay for any damages to the door or its
jamb. Duplicate keys are to be provided only by the Landlord, the cost of which
shall be paid by the Tenant. LANDLORD ACKNOWLEDGES THAT TENANT WILL BE
INSTALLING, AT TENANT'S EXPENSE, A SECURITY SYSTEM IN THE PREMISES. TENANT SHALL
REMOVE SUCH SYSTEM, AT TENANT'S EXPENSE, UPON THE TERMINATION OF THIS LEASE.
3.8 ADVERTISING
Tenant shall not in any manner use the name of the Building for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Building without the express written consent of the
Landlord.
3.9 UTILITIES
The Tenant shall pay for all electricity, gas, water, sewer, telephone
and other utilities, including that used for heating and air conditioning, which
are used in the Premises during the lease term. Tenant shall not overload the
electrical wiring of the Premises. All electric wiring and other utility piping
must be connected as directed by the Landlord. No boring, drilling or cutting
for wires is permitted without the Landlord's written consent. Landlord, at its
cost, will provide one "50 pair" telephone cable to the Premises and Tenant, at
its expense, shall extend all telephone wiring within the Premises in accordance
with plans and specifications and by contractors approved by Landlord.
3.10 HAZARDOUS MATERIALS OR OPERATIONS
(A) LANDLORD ACKNOWLEDGES THAT TENANT USES MATERIALS DEEMED
"HAZARDOUS" UNDER APPLICABLE LAW IN THE ORDINARY COURSE OF ITS
BUSINESS, AND THAT SUCH HAZARDOUS SUBSTANCES WILL BE USED AND
STORED IN THE PREMISES. TENANT SHALL PROVIDE LANDLORD WITH
MATERIAL SAFETY DATA SHEETS ON ALL SUCH MATERIALS AS WELL AS
INFORMATION ON HOW THEY WILL BE STORED AND DISPOSED OF BY
NOVEMBER 27. 1996.
(B) Tenant agrees to comply with all applicable laws, statutes and
ordinances concerning toxic or hazardous waste, material or
substance and any rules and regulations promulgated by the
Metropolitan Sanitary District of Illinois, Federal and State
Environmental Protection Agencies AND THE VILLAGE OF ▇▇▇▇▇▇
HILLS, and other agencies of government having jurisdiction
over such matters;
(C) Tenant agrees to indemnify and hold harmless the Landlord from
any and all liability, cost and expense, including attorneys'
fees, in connection with complying with any environmental
laws, statutes and ordinances, or any regulation or rules of
the Metropolitan Sanitary District or Illinois, Federal and
State Environmental Protection Agencies or other agencies of
government as a result of Tenant's use of the Building,
Premises and Common Areas.
The agreements contained herein are a material inducement for the
Landlord to lease the premises to the Tenant and shall survive the termination
of this Lease, whether by lapse of time or otherwise.
3.11 DEFACING PREMISES
Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any other door, partition, wall or window which may
be unsightly from outside the Premises, and Tenant shall not place or permit to
be placed any article of any kind on any window ledge or on the exterior ▇▇▇▇▇.
Tenant shall not do any painting or decorating in the Premises or make, paint,
cut or drill into, drive nails, screws or other fasteners into or in any way
deface any part of the Premises or the Building without the written consent of
Landlord, EXCEPT FOR DECORATING, PICTURE HANGING AND MINOR COSMETIC ALTERATIONS.
3.12 OVERLOADING
Tenant shall not overload any floor or hang any object from the ceiling
or roof supports.
3.13 OBSTRUCTION OF COMMON AREAS
Tenant, its agents and suppliers shall not permit merchandise,
supplies, equipment or other effects to be left in the Common Areas of the
Building, except with Landlord's permission and if required by fire or
sanitation regulations.
3.14 NUISANCES
Without the written permission of Landlord, Tenant shall not:
a) use the Premises for housing, lodging or sleeping purposes;
b) permit preparation of food in the Premises or permit food to be brought
into the Premises for consumption therein (warming of coffee and individual
lunches and snacks of employees excepted);
c) place any antenna on the roof or on or in any part of the inside or outside
of the Building other than the inside of the Premises;
d) operate or permit to be operated any musical or sound device inside or
outside the Premises which may be heard outside the Premises;
e) operate any electrical device from which may emanate electrical waves which
may interfere with or impair radio or television broadcasting or reception
from or in the Building or elsewhere;
f) make or permit any objectionable noise or odor to emanate from the
Premises;
g) do anything in or about the Building tending to create or maintain a
nuisance or do any act tending to injure the reputation of the Building;
h) bring or permit to be in the Building any animal or bird (except a dog in
the company of a blind person) and except for laboratory rodents properly
contained;
i) Tenant shall not permit the storage or repair of any motorized vehicle
inside or outside the Premises.
ARTICLE 4. ALTERATIONS. MAINTENANCE & REPAIR
4.1 ALTERATIONS BY LANDLORD
Landlord agrees to make the alterations and improvements to the
Premises and to prepare the same for Tenant's occupancy as described on Exhibit
B, if any.
4.2 ALTERATIONS BY TENANT
EXPECT AS SET FORTH IN SECTION 3.11 ABOVE, Tenant shall not make any
installation or alteration in or improvement, addition or demolition to the
Premises without the prior written approval of Landlord, and if Landlord shall
approve, all such work is subject to any reasonable restrictions to preserve
intact the architectural design and structural integrity of the Building. Such
work shall be performed at the Tenant's expense by employees of or licensed
contractors approved or employed by the Landlord and in accordance with
applicable regulations and codes.
4.3 OWNERSHIP OF ALTERATIONS
All installations, alterations, improvements or additions to the
Premises (other than Tenant's personal property, SECURITY SYSTEM and trade
fixtures) made by the Landlord or Tenant shall become the Landlord's property
and shall remain in or upon the Premises upon termination of the Lease except as
provided in Article 9.
4.4 MAINTENANCE & REPAIRS
Landlord shall keep the Building including the roof, exterior walls,
foundations and the Common Areas in good condition and repair with the Tenant
obligated for Tenant's Proportionate Share per Section 1.3. The cost of
maintenance or repairs wholly or partially caused by the negligence or act of
the Tenant or any of its agents, visitors, licensees or employees or by Tenant's
breach of any provision of this Lease shall be borne by the Tenant, UNLESS
COVERED BY INSURANCE.
4.5 MAINTENANCE BY TENANT
Tenant, at its own expense, shall keep the interior of the Premises in
good repair, decorated and in tenantable condition during the entire term of the
Lease and shall promptly and adequately repair all damage to the Premises using
labor and material approved by Landlord (SUCH APPROVAL NOT TO BE UNREASONABLY
withheld). Tenant shall repair and maintain AND (AFTER THE FIRST YEAR OF THE
LEASE TERM, PROVIDED TENANT HAS PERFORMED ROUTINE MAINTENANCE) the heating, air
conditioning, ventilating, electrical, plumbing equipment and services within
the Premises; Landlord represents and warrants that all of the foregoing systems
and equipment shall be in good working order on the commencement date AND FOR
ONE (1) YEAR THEREAFTER. In the event Tenant fails or refuses to maintain
Premises or make such repairs or replacements, Landlord may (but shall not be
obligated to), following five (5) days prior written notice to Tenant and
Tenant's failure to cure within such period, make such repairs or replacements,
and the cost thereof shall be considered additional rent, payable by Tenant upon
demand.
4.6 CARPETING
Tenant shall provide and maintain hard surface protective mats under
all desk chairs to avoid excessive wear and tear to carpets. During moving,
carpeting is to be protected by a hard surface protective covering. If Tenant
fails to so provide, the cost of carpet repair or replacement shall be charged
to and paid for by the Tenant.
4.7 CONDITION OF PREMISES
The Tenant's acceptance of possession of the premises shall be
conclusive evidence that the Premises and Building were then in good order and
satisfactory condition, EXCEPT FOR (I) ITEMS ON A WRITTEN PUNCH LIST TO BE
PREPARED JOINTLY BY REPRESENTATIVES OF LANDLORD AND TENANT PRIOR TO TENANT'S
ACCEPTANCE OF POSSESSION AND WHICH SHALL BE COMPLETED BY LANDLORD WITHIN THIRTY
(30) DAYS AFTER TENANT'S ACCEPTANCE OF POSSESSION, SUBJECT TO FORCE MAJEURE, AND
(II) LATENT DEFECTS.
ARTICLE 5. ASSIGNMENT & SUBLETTING
5.1 ASSIGNMENT & SUBLETTING
Tenant shall not assign or pledge this Lease or sublet the whole or any
part of the Premises, whether voluntarily or by operation of law, or permit the
use or occupancy of the Premises by anyone other than Tenant, without the prior
written consent of Landlord, which shall not be unreasonably withheld or
delayed. Such restrictions shall be binding upon any assignee or subtenant to
which Landlord has consented. Notwithstanding any permitted assignment or
subletting, Tenant shall at all times remain fully liable for the payment of the
rent specified herein and for compliance with all of its other obligations under
the terms, provisions and covenants of this Lease.
5.2 WRITTEN NOTICE
The Tenant shall give written notice to Landlord of the desire to
sublet.
5.3 COLLECTION OF RENT
Landlord may, at its option, collect directly from such assignee or
subtenant all the rents under such assignment or sublease. No such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder.
5.4 LANDLORD'S OPTION
In addition to but not in limitation of Landlord's right to approve of
any subtenant, Landlord shall have the option, in its sole discretion, in the
event of any proposed subletting of less than the entire Premises, to release
Tenant from all liability as to that part of Premises so sublet or assigned,
effective as of the date that such Sublessee or Assignee shall take possession
thereof. If Landlord exercises such option, Landlord shall give Tenant written
notice within thirty (30) days following Landlord's receipt of Tenant's notice
of its intention to sublet and requesting Landlord's approval thereof. In the
event that Landlord elects to terminate this Lease as a part of Premises, the
rent required to be paid therefor during the unexpired term hereof shall ▇▇▇▇▇
based upon the ratio that the total square footage of the part of the Premises
so sublet bears to the total original square footage of the Premises.
5.5 COMMISSIONS
Notwithstanding the provisions of Section 5.4, Tenant shall, at
Tenant's sole cost and expense, discharge in full any outstanding commissions or
obligations which may be due to any real estate broker retained by Tenant or its
assignee or sublessee by reason of any assignment or subletting of Premises or
any part thereof with the consent of Landlord. LANDLORD AGREES TO PAY ALL
COMMISSION DUE TO ▇▇▇▇▇▇. ▇▇▇▇▇▇▇ & ASSOCIATES IN CONNECTION WITH THE INITIAL
TERM OF THIS LEASE.
5.6 ASSIGNMENTS TO SUCCESSOR CORPORATION
Notwithstanding the provisions of the above paragraphs, Tenant may,
without Landlord's consent, assign this Lease to any corporation succeeding to
substantially all the business and assets of Tenant by merger, consolidation,
purchase of assets or to any corporation or entity which is a subsidiary or
division of Tenant, provided that the following conditions are satisfied: (a)
the total assets and net worth of such assignee shall be equal to or more than
that of Tenant immediately prior to such transactions; (b) Tenant is not then in
default hereunder; and (c) such successor shall execute and deliver to Landlord
an instrument in writing fully assuming all the obligations and liabilities
imposed upon Tenant hereunder, together with copies of appropriate financial
reports of the successor corporation.
ARTICLE 6. INSURANCE & INDEMNIFICATIONS
6.1 INSURANCE
Tenant shall, at its sole cost and expense, maintain insurance coverage
insuring Tenant's personal property against any loss or damage by perils
generally included in Fire and Extended Coverage Insurance policies and,
further, shall procure and maintain adequate Public Liability and Property
Damage insurance and Workmen's Compensation insurance of statutory limits. At
the request of Landlord, Tenant shall furnish Certificates of such insurance
policies, which Certificates shall provide for not less than ten (10) days'
prior notice to Landlord in the event of cancellation or material modification
thereof.
LANDLORD SHALL MAINTAIN AT ALL TIMES DURING THE LEASE TERM, FIRE AND
EXTENDED COVERAGE INSURANCE FOR THE FULL REPLACEMENT COST OF THE DEVELOPMENT,
AND HAVING A DEDUCTIBLE OF NOT MORE THAN TEN THOUSAND ($10,000.00) DOLLARS PER
OCCURRENCE. LANDLORD SHALL ALSO MAINTAIN AT ALL TIMES DURING THE LEASE TERM
GENERAL LIABILITY INSURANCE HAVING LIMITS OF NOT LESS THAN TWO MILLION
($2,000,000.00) DOLLARS PER OCCURENCE, PLUS AN UMBRELLA LIABILITY OF NOT LESS
THAN ONE MILLION ($1,000,000.00) DOLLARS.
6.2 INCREASE IN INSURANCE PREMIUMS
In the event of any increase in the Landlord's insurance premiums due
to the unusual nature or hazardous operation of the Tenant's business, the
Tenant shall pay Landlord an amount equal to the increase of said insurance
premium provided, however, that this Section 6.2 shall not be deemed to be a
waiver of the right of Landlord to prohibit any use of Premises other than as
specified in Section 3.1.
6.3 DAMAGE BY TENANT
Tenant agrees to pay for all damage done to the Premises or the
Building by Tenant and its officers, agents and employees or any other person
permitted in the Premises by Tenant, other than same resulting from Landlord's
acts, agents and employees, or negligence.
6.4 INSURANCE REGULATIONS
Tenant, at its sole expense, shall comply with any and all requirements
of any insurance organization or company necessary for the maintenance of
reasonable Fire and Public Liability insurance covering the Premises and the
Building.
6.5 INDEMNIFICATION
Tenant will indemnify and defend and hold harmless Landlord and its
beneficiaries, agents, representatives, and employees from and against any and
all claims, actions, damages, liability and expense with respect to injury to
persons, including loss of life and damage to property including the loss of use
thereof arising from or out of any occurrence in, upon, or at the Premises or
the Building, or the occupancy or use by Tenant of the Premises or any part
thereof, or the Building or any part thereof, occasioned wholly or in part by
any act or omission of Tenant, its agents, contractors, employees, invitees and
servants, provided, however, that same shall not have been caused by or resulted
from Landlord's acts, agents and employees, or negligence. SUBJECT TO SECTION
6.7 BELOW, in the event Landlord is made party to any litigation commenced by or
against Tenant, then Tenant shall indemnify, defend and hold Landlord or their
agents, successors, representatives, and employees harmless therefrom and shall
pay all costs, expenses and reasonable attorney's fees incurred or paid by them
or any of them in connection with such litigation, other than same resulting
from Landlord's acts, agents and employees, or negligence.
LANDLORD WILL INDEMNIFY AND DEFEND AND HOLD HARMLESS TENANT AND ITS
BENEFICIARIES, AGENTS, REPRESENTATIVES, AND EMPLOYEES FROM AND AGAINST ANY AND
ALL CLAIMS, ACTIONS, DAMAGES, LIABILITY AND EXPENSE WITH RESPECT TO INJURY TO
PERSONS, INCLUDING LOSS OF LIFE AND DAMAGE TO PROPERTY INCLUDING THE LOSS OF USE
THEREOF ARISING FROM OR OUT OF ANY OCCURRENCE IN, UPON, OR AT THE PREMISES OR
THE BUILDING, OR THE OCCUPANCY OR USE BY LANDLORD OF THE PREMISES OR ANY PART
THEREOF, OR THE BUILDING OR ANY PART THEREOF, OCCASIONED WHOLLY OR IN PART BY
ANY ACT OR OMISSION OF LANDLORD, ITS AGENTS, CONTRACTORS, EMPLOYEES, INVITEES
AND SERVANTS, PROVIDED, HOWEVER, THAT SAME SHALL NOT HAVE BEEN CAUSED BY OR
RESULTED FROM TENANT'S ACTS, AGENTS AND EMPLOYEES, OR NEGLIGENCE. SUBJECT TO
SECTION 6.7 BELOW, IN THE EVENT TENANT IS MADE PARTY TO ANY LITIGATION COMMENCED
BY OR AGAINST LANDLORD, THEN LANDLORD SHALL INDEMNIFY, DEFEND AND HOLD TENANT OR
THEIR AGENTS, SUCCESSORS, REPRESENTATIVES, AND EMPLOYEES HARMLESS THEREFROM AND
SHALL PAY ALL COSTS, EXPENSES AND REASONABLE ATTORNEY'S FEES INCURRED OR PAID BY
THEM OR ANY OF THEM IN CONNECTION WITH SUCH LITIGATION, OTHER THAN SAME
RESULTING FROM TENANT'S ACTS, AGENTS AND EMPLOYEES, OR NEGLIGENCE.
6.6 NON-LIABILITY OF LANDLORD
Landlord shall not be liable for any damage to property of Tenant or of
others located on the Premises or elsewhere in the Building, nor for the loss of
or damage to any property of Tenant or of others by theft or otherwise, unless
caused by or resulting from the acts or negligence of Landlord, OR ITS agents or
employees. SUBJECT TO SECTION 6.7 BELOW, Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, gas, electricity, water, rain or snow leaks from any part of the
Premises or elsewhere in the Building or leak backups from the pipes, appliances
or plumbing works or from the roof, street or subsurface or from any other place
or by dampness or by any other cause of whatever nature, UNLESS CAUSED BY OR
RESULTING FROM THE ACTS OR NEGLIGENCE OF LANDLORD, ITS AGENTS OR EMPLOYEES.
Landlord shall not be liable for any such damage caused by other tenants or
persons in the Premises or elsewhere in the Building, occupants of adjacent
property of the Building or the public or caused by construction operations. All
property of Tenant kept or stored on the Premises or elsewhere in the Building
shall be so kept or stored at the risk of Tenant only, and Tenant shall hold
Landlord harmless from any claims arising out of damage to the same unless such
damage shall be caused by the willful act or gross neglect of Landlord, agents
and employees, or negligence.
6.7 MUTUAL WAIVER OF SUBROGATION RIGHTS
Except for Landlord's negligence, OR THE NEGLIGENCE OF LANDLORD'S
agents OR employees, IF ANY loss, cost, damage or expense resulting from fire,
explosion or any other casualty is incurred by either of the parties to this
Lease in connection with the Premises or the Building, and such party is then
covered (OR IS REQUIRED BY THIS LEASE TO BE COVERED) in whole or in part by
insurance with respect to such loss, cost, damage or expense, then the party so
insured (OR REQUIRED TO BE SO INSURED) hereby releases the other party from any
liability it may have on account of such loss, cost, damage, or expense to the
extent of any amount recovered (OR THAT COULD HAVE BEEN RECOVERED HAD SUCH
INSURANCE BEEN IN FORCE) by reason of such insurance and waives any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof, provided that such release of liability and waiver of the right or
subrogation shall not be operative in any case where the effect thereof is to
invalidate such insurance coverage or increase the cost thereof (provided that
in the case of increased cost, the other party shall have the right within
thirty (30) days following written notice to pay such increased cost, thereupon
keeping such release and waiver in full force and effect).
6.8 INTERRUPTION OF SERVICES
Landlord does not warrant that any of the services to be provided by
Landlord pursuant to Article 11 following, or any other service to be provided
by Landlord will be free from interruptions caused by repairs, renewals,
improvements, changes of service, alterations, work stoppage, labor
controversies, accidents, inability to obtain fuel, electricity, water supplies
or other cause beyond the reasonable control of Landlord. No such interruption
of service shall be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable to
Tenant for damages, by abatement of rent or otherwise, or relieve Tenant from
performance of Tenant's obligations under this Lease, EXCEPT THAT (I) INABILITY
OF LANDLORD TO PAY FOR ANY SERVICE OR MATERIALS SHALL NEVER EXCUSE LANDLORD FROM
ITS OBLIGATIONS UNDER THIS LEASE, AND (II) IN THE EVENT THAT ANY INTERRUPTION OF
SERVICE LASTS FOR MORE THAN THREE (3) BUSINESS DAYS AND MATERIALLY INTERFERES
WITH TENANT'S BUSINESS OPERATIONS, THEN RENT AND ADDITIONAL RENT HEREUNDER SHALL
▇▇▇▇▇ UNTIL SUCH SERVICE IS RESTORED.
Tenant hereby waives and releases all claims against Landlord
for damages for interruption or stoppage of service.
ARTICLE 7. MORTGAGES. TITLE. LIENS
7.1 MORTGAGES - SUBORDINATION
This Lease Agreement and the rights of Tenant pursuant hereto shall, at
all times, be subject and subordinate only to the lien of a first mortgage at
any time placed on the Building or Premises. Tenant shall, upon the written
request of any first mortgagee execute such instruments or documents as may be
reasonably required at any time and from time to time to subordinate the rights
and interest of Tenant herein to the lien of any such first mortgage. At the
election of the first mortgagee, this Lease shall not be terminated or affected
by any proceedings instituted to foreclose the lien of any first mortgage, and
this Lease shall continue in full force and effect, notwithstanding that any
such first mortgagee or any person claiming by, through or under any such first
mortgagee shall succeed to the title of Landlord by foreclosure or deed in lieu
of foreclosure, and in any such event, Tenant agrees to attorn to any such first
mortgagee or its successors and assigns.
Should any first mortgage be foreclosed, or in the event that the title
of Landlord shall be conveyed to any such first mortgagee by deed in lieu of
foreclosure, no such first mortgagee, purchaser at such foreclosure sale or
their successors or assigns shall be:
a) liable for any act or omission of any prior Landlord;
b) subject to any off-set or defense which Tenant may have
against any prior Landlord;
c) bound by a prepayment of rent or other payments made to
Landlord by Tenant for more than the current month.
7.2 ESTOPPEL CERTIFICATE
Tenant agrees that upon not less than fifteen (15) days prior notice
from Landlord, Tenant will deliver to Landlord or to such other person as
Landlord shall designate in such notice, a statement in writing in form
satisfactory to Landlord certifying among other matters:
a) that the Lease is unmodified and in full force and effect (or,
if there have been modifications, that this Lease is in full
force and effect as modified and identifying such
modifications);
b) that Tenant is in possession of the Premises and is paying all
rental payments required by this Lease;
c) that no more than one month's rent (excluding the Security
Deposit, if any) has been paid in advance;
d) that all work required to be performed by Landlord under this
Lease has been completed; e) the commencement date and
expiration date of this Lease; and PAGE
f) that insofar as Tenant knows, Landlord is not in default under
this Lease (or, if Tenant has knowledge of any default, a
statement of the nature thereof).
7.3 MODIFICATIONS REQUIRED BY MORTGAGEE
If any Mortgagee requires a modification or modifications of this Lease
and such modification or modifications will not result in any increased cost or
expense to Tenant or in any other way substantially alter the rights and
obligations of Tenant hereunder, Tenant shall, upon Landlord's request, execute
the appropriate instrument or instruments effecting such modification or
modifications.
7.4 LANDLORD'S TITLE
Landlord's title is and always shall be paramount to the title of
Tenant. Nothing herein contained shall empower Tenant to do any act which can,
shall or may encumber the title of Landlord.
Tenant shall not permit any mechanic's liens to be filed against the
Premises or the Building by reason of services or materials supplied or claimed
to have been supplied in connection with any work done in the Premises at the
direction of Tenant. If any such mechanic's lien shall at any time be filed,
Tenant shall cause the same to be discharged of record or sufficient bond posted
over same OR A TITLE INSURANCE ENDORSEMENT OVER SAME TO BE OBTAINED, PROVIDED
THE TITLE INSURANCE COMPANY IS APPROVED BY LANDLORD, within thirty (30) days
after receipt of notice from Landlord. If Tenant shall fail to discharge or post
sufficient bond OR OBTAIN TITLE INSURANCE over such mechanic's lien within such
period, then, in addition to any other right or remedy, Landlord may, but shall
not be obligated to, discharge the lien either before or after investigating it.
ARTICLE 8. EMINENT DOMAIN & DESTRUCTION OF PREMISES
8.1 EMINENT DOMAIN
If the entire Building or if any substantial part of the Premises shall
be taken or condemned by any authority for any public use or purpose, the term
of this Lease shall end upon, and not before, the date when the possession of
the part so taken shall be required for such use or purpose and without
apportionment of the condemnation award. The Tenant shall have no right to share
in such award or seek an award for loss of its leasehold interest, the right of
Tenant, if any, in and to such award being hereby assigned to Landlord. TENANT
SHALL HAVE THE RIGHT, HOWEVER, TO SEEK A SEPARATE AWARD FOR RESTORATION COSTS
AND LOSS OF BUSINESS. All rent shall be apportioned as of the date of such
termination.
8.2 TOTAL OR PARTIAL DESTRUCTION
In the event that Premises or other parts of the Building shall be
destroyed or so damaged by fire, explosion, windstorm or other casualty
("Casualty") so as to be:
a) rendered untenantable, Landlord may, at its election, either:
i) terminate this Lease as of the date of Casualty by
written notice thereof to Tenant within sixty (60)
days following the date of Casualty, in which event
all rent shall be apportioned on a per diem basis and
paid by Tenant to the date of Casualty; or
ii) proceed with all due diligence to repair, restore or
rehabilitate the Premises or the Building, as the
case may be, to the condition existing immediately
prior to Casualty ("Restoration Work") and to
complete within 150 days of the date of the Casualty,
in which event this Lease shall not terminate, and
rent shall equitably ▇▇▇▇▇ on a per diem basis during
the period of Restoration Work to the extent that
Tenant is denied use of the Premises by reasons of
Restoration Work;
Landlord shall proceed with all due diligence to
perform or cause Restoration Work to be performed and
completed within (90) days of the date of the
Casualty, in which event rent shall ▇▇▇▇▇ in
proportion to the non-useability of the Premises
during the period of Restoration Work;
b) partially damaged but not (IN TENANT'S REASONABLE JUDGMENT AS
SET FORTH IN A LETTER TO LANDLORD EXPLAINING TENANT'S REASON
FOR CONSIDERING PREMISES UNTENANTABLE) rendered untenantable,
Landlord shall proceed with all due diligence to perform or
cause Restoration Work to be performed and complete within 150
days of the date of the Casualty, in which event rent shall
▇▇▇▇▇ in proportion to the non-useability of the Premises
during the period of Restoration Work;
PROVIDED, HOWEVER, that if Casualty shall occur at any time during the
last year of the term of this Lease, Landlord or Tenant shall have the right, at
its election, to terminate this Lease as of the date of Casualty, by written
notice thereof to the other within thirty (30) days following the date of
Casualty.
Notwithstanding the foregoing, in no event shall Landlord be:
a) responsible for any loss or damage incurred by Tenant or any
other person, firm or corporation by reason of goods, wares,
merchandise, furniture, fixtures and equipment situated within
Premises and damaged by reason of Casualty;
b) liable or responsible for any other damage incurred by Tenant by
reason of Casualty; or
c) for any delays in Restoration Work caused by labor controversies,
riots, acts of God, national emergencies, acts of a public enemy,
governmental laws or regulations, inability to procure materials
or labor, or both, or any other cause beyond the control of
Landlord, IT BEING AGREED THAT INABILITY TO PAY SHALL NEVER
EXCUSE LANDLORD'S PERFORMANCE UNDER THIS PARAGRAPH.
ARTICLE 9. SURRENDER OF PREMISES
9.1 CONDITION OF PREMISES
Tenant shall yield to Landlord possession of the Premises in as good
condition as when the Tenant took possession, subject to ordinary wear and tear
AND LOSS BY FIRE OR OTHER CASUALTY, in accordance with the provision of this
Lease. If the Tenant fails to yield the Premises in as good condition as when
the Tenant took possession, normal wear and tear excepted, the Landlord may
restore the Premises TO such condition, and Tenant shall pay the cost thereof.
9.2 ALTERATIONS OF PREMISES
Alterations of the Premises remain the property of the Landlord in
accordance with the provisions of this Lease EXCLUDING TENANT'S TRADE FIXTURES.
In the event Landlord so directs in writing prior TO CONSTRUCTION OF THE
IMPROVEMENTS, Tenant shall promptly remove Tenant's alterations (but not
alterations made by Landlord UNLESS SO DIRECTED BY LANDLORD PRIOR TO
CONSTRUCTION OF THE IMPROVEMENTS) and repair any damage to the Premises. If
Tenant fails to repair such damage, the Landlord may restore the Premises, and
Tenant shall pay the cost thereof. LANDLORD AND TENANT SHALL AGREE, PRIOR TO THE
CONSTRUCTION OF THE IMPROVEMENTS, WHAT IMPROVEMENTS TENANT SHALL REMOVE AT THE
EXPIRATION OF THE LEASE.
9.3 TENANT'S TRADE FIXTURES
Any trade fixtures which are attached to the Premises, with Landlord's
prior written consent, may be removed by Tenant provided that Premises are
restored by Tenant to the condition prior to attachment. If the Tenant fails to
restore such damage, the Landlord may restore the Premises, and Tenant shall pay
the cost thereof.
9.4 PROPERTY PRESUMED ABANDONED
All Tenant's trade fixtures and personal property not removed from the
premises upon termination shall be conclusively presumed to have been abandoned
by the Tenant, and title thereto shall pass to Landlord as by a ▇▇▇▇ of sale.
The Tenant shall pay for the cost of removal of such abandoned items.
9.5 SURRENDER OF KEYS
Tenant shall surrender all keys to Premises and Building and all data
relative to combination locks and security systems in Premises (OTHER THAN ANY
SECURITY SYSTEMS INSTALLED BY TENANT).
9.6 NOTIFICATION OF SURRENDER
Not less than thirty (30) days prior to the last day of the term of
this Lease, the Tenant shall notify Landlord of the last day of occupancy of the
Premises in writing. On the last day of occupancy, Landlord and Tenant shall
review the physical condition of the Premises for the purpose of assessing
needed repairs to the Premises.
9.7 HOLDOVER BY TENANT
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination, then
Landlord may, at its option at any time thereafter, serve written notice upon
Tenant that such holdover constitutes any one of:
A) creation of a month-to-month tenancy upon the terms and
conditions set forth in this Lease; or
B) creation of a tenancy at sufferance in any case upon the terms
and conditions set forth in this Lease;
PROVIDED, HOWEVER, that the monthly rental (or daily rental under (c)) shall, in
addition to all other sums which are to be paid by Tenant hereunder, be equal to
double the rental being paid monthly to Landlord under this Lease immediately
prior to such termination (prorated in the case of (c) ON A PER DIEM BASIS for
each day Tenant remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting from retention of possession by Tenant, including all loss or damage
sustained or incurred by Landlord by reason of any new lease to or the loss of
any proposed subsequent tenant for any portion of the Premises. The provisions
of the paragraph shall not constitute a waiver by Landlord of any right of
reentry; nor shall receipt of any rent or any other act in apparent affirmance
of the tenancy operate as a waiver of the right to terminate this Lease for a
breach of any of the terms, covenants or obligations therein on Tenant's part to
be performed.
ARTICLE 10. LANDLORD'S REMEDIES
All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by law.
10.1 If any voluntary or involuntary petition or similar pleading under any
section or sections of any bankruptcy act shall be filed by or against Tenant,
or any voluntary or involuntary proceedings in any court shall be instituted to
declare Tenant insolvent or unable to pay Tenant's debts, AND (IN THE CASE OF AN
INVOLUNTARY PROCEEDING) IS NOT DISMISSED WITHIN SIXTY (60) DAYS OF FILING, or
Tenant makes an assignment for the benefits of its creditors, or a trustee or
receiver is appointed for Tenant or for the major part of Tenant's property,
then in such event, Landlord may, if Landlord so elects and with or without
notice of such election and with or without entry or other action by Landlord,
forthwith terminate this Lease and, notwithstanding any other provisions of this
Lease, Landlord shall forthwith upon such termination be entitled to recover
damages in an amount equal to the then present value of the rent specified in
Article I of this Lease for the residue of the stated term hereof.
10.2 If Tenant defaults in the prompt payment of rent and such default shall
continue for five (5) or more days after the same be due and payable or in the
performance or observance of any other provisions of this Lease and such other
default shall continue for THIRTY (30) or more days after WRITTEN notice thereof
shall have been given to Tenant, or if the leasehold interest of Tenant be
levied upon under execution or attached by process of law, or if Tenant abandons
the leased Premises AND CEASES TO PAY RENT, then and in any such event,
Landlord, if it so elects with or without notice or demand forthwith, or at any
time thereafter while such default continues, either may terminate Tenant's
right to possession without terminating this Lease or may terminate this Lease.
10.3 Upon termination of this Lease, whether by lapse of time or otherwise, or
upon any termination of the Tenant's right to possession without termination of
this Lease, the Tenant shall surrender possession and vacate the leased Premises
immediately and deliver possession thereof to the Landlord, and hereby grants to
the Landlord full and free license to enter into and upon the leased Premises in
such event and to repossess the leased Premises and to expel or remove the
Tenant and any others who may be occupying or within the leased Premises and to
remove any and all property therefrom, using such force as may be necessary
without being deemed in any manner guilty of trespass, eviction, forcible entry
or detainer, or conversion of property, and without relinquishing the Landlord's
rights to rent or any other right given to the Landlord hereunder or by
operation of law. UPON A DEFAULT, Tenant covenants and agrees to pay to Landlord
after such termination and reentry, at Landlord's option:
a) at the end of each month of the demised term, the
difference, if any, between the rent actually received by
Landlord from said demised Premises during such month and
the rent agreed to be paid by the terms of this Lease during
such month, together with the reasonable expenses of
re-letting and altering the improvements on such demised
Premises, together with reasonable commissions and
attorney's fees; or
b) damages in an amount equal to the then present value of the
rent specified in this Lease, as adjusted for taxes and
expenses, for the residue of the stated term hereof, less
the fair rental value of the Premises for the residue of the
stated term, AS SIMILARLY ADJUSTED FOR TAXES AND EXPENSES.
10.4 If Tenant abandons the Premises AND CEASES TO PAY RENT or otherwise
entitles Landlord to so elect and Landlord elects to terminate the Tenant's
right to possession only without terminating the Lease, the Landlord may, at the
Landlord's option, enter into the leased Premises, remove the Tenant's signs and
other evidences of tenancy and take and hold possession thereof as in Paragraph
10.3 of this Article, provided, without such entry and possession terminating
the Lease or releasing the Tenant in whole or in part from the Tenant's
obligation to pay the rent hereunder for the full term, and in any such case the
Tenant shall pay forthwith to the Landlord a sum equal to the entire amount of
the rent specified in Article I of this Lease for the residue of the stated term
BASED UPON THE NET PRESENT VALUE, plus any other sums then due hereunder. Upon
and after entry into possession without termination of this Lease, the Landlord
may, but need not, re-let the leased Premises or any part thereof for the
account of the Tenant to any person, firm or corporation other than the Tenant
for such rent, for such time and upon such terms as the Landlord in the
Landlord's sole discretion shall determine, and the Landlord shall not be
required to accept any tenant offered by the Tenant or to observe any
instructions given by the Tenant about such re-letting. In any such case, the
Landlord may make repairs, alterations and additions in or to the leased
Premises and redecorate the same to the extent deemed by the Landlord necessary
or desirable and the Tenant shall, upon demand, pay the reasonable cost thereof,
together with the Landlord's expenses of the re-letting including, without
limitation, any reasonable broker's commission incurred by the Landlord. If the
consideration collected by the Landlord upon any such re-letting for the
Tenant's account is not sufficient to pay the full amount of unpaid rent
reserved in this Lease, together with the costs of repairs, alterations,
additions, redecorating and the Landlord's expenses, the Tenant shall pay to the
Landlord the amount of each deficiency.
10.5 If Tenant violates any of the terms and provisions of this Lease or
defaults in any of its obligations hereunder other than the payment of any sum
payable hereunder, whether the same be rent or otherwise, violation may be
restrained or such obligation enforced by injunction, which remedy shall be in
addition to all other rights and remedies available to Landlord.
ARTICLE 11. LANDLORD SHALL FURNISH
11.1 EQUIPMENT
Heating, air conditioning, ventilating, plumbing and electrical
equipment in good operating condition when the Tenant takes possession.
Landlord shall warrant and guarantee, at its sole expense, the heating
and air conditioning equipment within the demised premises during the first
twelve (12) months of this Lease, provided that Tenant enters into a
preventative maintenance contract with a qualified heating and air conditioning
contractor to perform preventative maintenance to the equipment at Tenant's sole
expense.
Furthermore, provided Tenant has contracted with a qualified HVAC
contractor for preventative maintenance, Landlord and Tenant shall prorate the
cost of any repair or replacement of the equipment based upon the percentage of
time the Tenant had use of the equipment VS THE USEFUL LIFE OF THE EQUIPMENT AT
THE TIME OF FAILURE AS DETERMINED BY LANDLORD, PROVIDED TENANT HAS NOT CAUSED
EQUIPMENT TO DETERIORATE PREMATURELY BY VIRTUE OF IMPROPER MAINTENANCE OR USE OF
CHEMICALS WITHIN PREMISES THAT HAVE DAMAGED THE EQUIPMENT.
11.2 PARKING
"Off street" parking facilities for use in common with Landlord and
other tenants on a "first come, first served" basis, subject to the applicable
laws of the City and State, and all reasonable rules and regulations that may be
imposed from time to time by the Landlord.
ARTICLE 12. RIGHTS RESERVED TO LANDLORD
Without limiting any other rights reserved or available to Landlord,
Landlord reserves the following rights, to be exercised at Landlord's election
without liability to Tenant:
a) to enter the Premises to make inspections at reasonable times during
normal business hours without material inconvenience to the Tenant or
to show the Premises to prospective tenants or brokers during the last
six months of the Lease Term, or lenders or other persons having a
legitimate interest in viewing the Premises with 24 hour notice except
in the case of an emergency PROVIDED THAT TENANT SHALL HAVE THE RIGHT
TO HAVE AN EMPLOYEE ACCOMPANY PROSPECTIVE TENANTS OR BROKERS;
b) to change the name or address of the Building;
c) to exclude or expel from the Premises or Building any person who, in
the judgment of the Landlord is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of
any of the rules and regulations of the Building;
d) to designate all sources furnishing sign painting and lettering and
repairs and maintenance and to designate to anyone the exclusive right
to conduct any business or render services in the Development
PROVIDED, HOWEVER, THAT THE COST OF SUCH SERVICES DOES NOT EXCEED THE
PREVAILING COST OF SUCH SERVICES IN THE MARKETPLACE;
e) to decorate, remodel, repair, alter or otherwise prepare the leased
Premises for re-occupancy during the last six (6) months of the term
hereof if, during or prior to such time, Tenant vacates the leased
Premises or at any time after Tenant abandons the leased Premises.
f) to decorate and to make repairs, alterations, additions and
improvements, structural or otherwise, in or to the leased Premises
in, about, or adjacent to the Building and Development or part
thereof, and to perform any acts related to the safety, protection, or
preservation thereof, and during such operations to take into and
through the leased Premises or any part of the Building all material
and equipment required and to close or temporarily suspend operation
of entrances, doors, corridors, parking facilities or other
facilities, provided that Landlord shall cause as little inconvenience
or annoyance to Tenant as is reasonably necessary in the
circumstances, and provided further that Tenant's business operations
shall not be prevented or materially disrupted. Landlord may do any
such work during ordinary business hours, and Tenant shall pay
Landlord for overtime and for any other expenses incurred if such work
is done during other hours at Tenant's request;
g) to approve the weight, size and location of heavy machinery and
equipment in and about the leased Premises. If considered necessary by
Landlord, to require supplementary supports at the Tenant's expense;
and
h) to hold pass keys to the Premises.
Landlord's entrance to the Premises for any of the above purposes shall
be without being deemed guilty of any eviction or disturbance of Tenant's use or
possession and without being liable in any manner to Tenant, EXCEPT FOR
LANDLORD'S NEGLIGENCE OR THE NEGLIGENCE OF ITS AGENTS AND EMPLOYEES.
ARTICLE 13. MISCELLANEOUS
13.1 LEGAL FEES
THE LOSING PARTY shall pay all costs, expenses and reasonable
attorney's fees that may be incurred by THE PREVAILING PARTY in enforcing the
terms, covenants and obligations of the Lease.
13.2 ADDITIONAL ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ by Landlord for services or required repairs which are not the
obligation of Landlord will be deemed as additional rents and are subject to the
same rights and remedies as described herein for rents.
13.3 RECEIPT OF RENT AFTER TERMINATION
No receipt of money by the Landlord from the Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit or after final judgment for possession of the Premises
shall renew, reinstate, continue or extend the term of this Lease or affect any
such notice, demand or suit.
13.4 SUCCESSORS & ASSIGNS
Each provision hereof shall extend to and shall, as the case may
require, bind and inure to the benefit of Landlord and Tenant and their
respective heirs, legal representatives, successors and assigns.
13.5 NOTICES
Any notice which may be or is required to be given under this Lease
shall be in writing and shall be delivered in person or sent by United States
Certified Mail addressed as follows:
a) if to Landlord, at such address where Tenant is required to
pay rent; and
b) if to Tenant, at the Premises or at such other address as the
Tenant shall designate by notice to the Landlord.
13.6 ENTIRE AGREEMENT
This Lease and the exhibits and riders, if any, attached hereto and
forming a part hereof, set forth all the covenants, promises, agreements,
conditions and undertakings between Landlord and Tenant concerning the Premises,
and there are no covenants, promises, agreements, conditions, or understandings,
either oral or written, between \ them other than as herein set forth. No
subsequent alteration, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
13.7 WAIVER
No waiver of any default of the Tenant hereunder shall be implied from
any omission by the Landlord to take any action on account of such default if
such default persist or is repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and that only for
the time and to the extent therein stated.
13.8 CAPTIONS & HEADINGS
The article and paragraph headings of this Lease are for
convenience only and in no way limit or enlarge the scope of meaning.
13.9 DEFINITIONS
The terms Lessor and Landlord are used interchangeably, and the terms
Lessee and Tenant are used interchangeably. As applicable, the terms Lessor and
Landlord shall also mean and include the duly appointed Management Agent of the
Building.
13.10 REPRESENTATION AND COMPENSATION OF TENANT REPRESENTATIVES
With regards to the Landlord and the Landlord's Exclusive Agent (▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ & Co.) paying commissions for existing Tenants renewing, extending or
expanding their Lease, it is expressly understood, in all cases, that the
Tenant's representative, IF ANY, will be directly compensated for it's services
by the Tenant. And further, both the Landlord and Landlord's Exclusive Agent
reserve the right to require written confirmation from the Tenant, that the
Tenant is responsible for such compensation prior to commencing any
communications or discussions with the Tenant's Representative.
13.11 Option to Renew
PROVIDED THAT TENANT IS NOT IN DEFAULT IN THE PERFORMANCE OF THE TERMS,
COVENANTS AND AGREEMENTS OF THIS LEASE TO BE PERFORMED BY TENANT, TENANT IS
GRANTED THE RIGHT AND OPTION TO EXTEND THE TERM HEREOF FOR TWO (2) ADDITIONAL
TERMS \ OF FIVE (5) YEARS, UPON ALL OF THE TERMS, COVENANTS, CONDITIONS AND
AGREEMENTS HEREIN SET FORTH, EXCEPT THAT THE RENTAL RATE SHALL BE AT THE
PREVAILING MARKET RATE AS THE DATE OF THE RENEWALS.
TENANT SHALL EXERCISE THESE OPTIONS BY WRITTEN NOTICE SERVED ON
LANDLORD NOT LESS THAN SIX (6) MONTHS PRIOR TO THE EXPIRATION DATE OF THIS LEASE
FOR THE FIRST OPTION TO RENEW AND SIX (6) MONTHS PRIOR TO THE EXPIRATION DATE OF
THE FIRST LEASE EXTENSION FOR THE SECOND OPTION TO RENEW. SHOULD TENANT FAIL TO
NOTIFY LANDLORD OF TENANT'S INTENT TO EXERCISE THESE OPTIONS TO RENEW SIX (6)
MONTHS PRIOR TO THE EXPIRATION DATES, THESE OPTIONS TO RENEW SHALL BECOME NULL
AND VOID.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this
Lease Agreement as of the day and year first above written.
FOR LANDLORD: THE TENANT:
------------- -----------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & CO., MOLECULAR GERIATRICS CORP.
Agent for the beneficiary pursuant A Delaware Corporation
to Trust Agreement established
with American National Bank, as
Trustee, pursuant to Trust A
greement dated December 20,
1995 and known as Trust No.
120886-05.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
------------------------- ----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ATTEST: ATTEST: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------- ------------------
DATED: _____________________ 11/25/96
DATED: __________________
Landlord's offer may be withdrawn by the Landlord or its Agent at anytime
without notice, and does not constitute a binding offer or Lease until properly
signed by all parties to the Lease, and a fully executed/copy is delivered by
the Landlord to the Tenant. IN THE EVENT THAT LANDLORD FAILS/TO DELIVER
FULLY-EXECUTED COPIES OF THIS LEASE TO THE TENANT ON OR BEFORE, DECEMBER 6, 1996
THE TENANT'S OFFER TO LEASE THE PREMISES SHALL BE NULL AND VOID AND LANDLORD
SHALL IMMEDIATELY RETURN ANY FUNDS DELIVERED BY TENANT WITH THE EXECUTED LEASE,
PROVIDED THAT LANDLORD RECEIVES THREE (3) EXECUTED COPIES OF THIS LEASE BY
MONDAY.
NOVEMBER 25.1996.
-----------------
FIRST AMENDMENT TO LEASE
THIS AMENDMENT, made the 1ST day of May, 1997 by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ &
Co., Agent for ▇▇▇▇▇▇ Centre for Commerce-North Limited Partnership, an Illinois
limited partnership, beneficiary of American National Bank and Trust Company of
Chicago Trust No. 120886-05, dated December 20, 1995 (hereinafter referred to as
"Landlord") and MOLECULAR GERIATRICS CORP., (herein referred to as "Tenant").
WITNESSETH
WHEREAS, on NOVEMBER 22, 1996, Landlord and Tenant entered into a certain
Lease, leasing to said Tenant the premises commonly known as ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ & ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
AND
WHEREAS, Landlord and Tenant now desire to amend said Lease in the
following manner, but in no other respects;
NOW, THEREFORE, in consideration of the premises and of the covenants herein
made, Landlord and Tenant agree that the above described Lease be amended as
follows:
ARTICLE 1, SECTION 1.0 TERM, is hereby deleted in its entirety and the following
substituted therefore;
The Lease term is from FEBRUARY 15, 1997 TO MAY 14, 2002.
ARTICLE 1. SECTION 1.1 RENTAL, is hereby deleted in its entirety and the
following substituted therefore;
Tenant shall pay to Landlord the sum of Four Hundred Fifty
Thousand, Two Hundred Twenty-five and no/100 Dollars ($450.225.00) as rent in
installments as follows;
From 2/15/97 to 5/14/97 in monthly installments of $ -0-
From 5/15/97 to 5/14/98 in monthly installments of $7,356.25
From 5/15/98 to 5/14/99 in monthly installments of $7,356.25
From 5/15/99 to 5/14/00 in monthly installments of $7,356.25
From 5/15/00 to 5/14/01 in monthly installments of $7,725.00
From 5/15/01 to 5/14/02 in monthly installments of $7,725.00
PAGE 1
It is mutually understood and agreed by the parties hereto that, unless
specifically changed or amended above, this Amendment does not alter or alter or
void any of the provisions, conditions, terms or covenants of the Lease dated
November 22, 1996 and that said Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of the
date first above written.
THE LANDLORD: THE TENANT:
------------- -----------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & CO., Agent for MOLECULAR GERIATRICS CORP.
▇▇▇▇▇▇ Center for Commerce-North A Delaware Corporation
Limited Partnership, an Illinois limited
Partnership, beneficiary of American
National Bank and Trust Company of
Chicago Trust Number 120886-05 and
Dated December 20, 1995.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________ _________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ - RPA/President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________
Print Your Name
5/9/97 5/ 5/ 97
Dated: ___________________________ Dated: __________
Landlord's offer may be withdrawn by the Landlord or it's Agent at
anytime without notice, and does not constitute a binding offer or Lease
Amendment until properly signed by all parties to the Lease
Amendment, and a fully executed copy is delivered by the Landlord
to the Tenant.
LEASE EXTENSION
AGREEMENT, made this 18th day of March, 2002 between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ &
Co., Agent for the beneficiary pursuant to Trust No. 120886-05, dated December
20, 1995 and established with LaSalle Bank as Trustee and Trust Co. of Chicago,
by and between ▇▇▇▇▇▇ EXECUTIVE ▇▇▇▇▇, as LANDLORD, and Molecular Geriatrics
Corp., a Delaware Corporation, as TENANT.
WITNESSETH:
That the Lease Agreement dated November 22, 1996 and Amended May 1,
1997, between the parties hereto, covering 7,500 square feet of space in the
building known by street address as ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Suites 110 and 111,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as more particularly shown in said Lease, for a
term commencing FEBRUARY 15, 1997 and expiring MAY 14, 2002, is hereby further
amended and extended a follows:
A) Effective MAY 15, 2002 said Lease is extended for a term of five (5)
years, expiring MAY 14, 2007.
B) Effective MAY 15, 2002, Tenant shall pay to Landlord the sum of FOUR
HUNDRED NINETY-FIVE THOUSAND, EIGHT HUNDRED TWENTY-FIVE DOLLARS AND NO/100
($495,825.00) as rent in installments as follows:
From 05/15/02 to 05/14/03 in monthly installments of $8,106.25
From 05/15/03 to 05/14/04 in monthly installments of $8,105.25
From 05/15/04 to 05/14/05 in monthly installments of $8,106.25
From 05/15/05 to 05/14/06 in monthly installments of $8,500.00
From 05/15/06 to 05/14/07 in monthly installments of $8,500.00
C) With regards to the Landlord and the Landlord's Exclusive Agent
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co.) paying commissions for existing Tenants renewing,
extending or expanding their Lease, it is expressly understood, in all cases,
that the Tenant's representative, if any, will be directly compensated for it's
services by the Tenant. And further, both the Landlord and Landlord's Exclusive
Agent reserves the right to require written confirmation from the Tenant, that
the Tenant is responsible for such compensation prior to commencing and
communications or discussions with the Tenant's Representative.
As hereby amended and extended, said Lease dated November 22, 1996 and
Amended May 1, 1997 IS IN ALL RESPECTS RATIFIED AND CONFIRMED.
WITNESS the signature and seal of Landlord this 13th day of April , 2002
------------- --------------------
A.D., and the signature and seal of Tenant this day of , 2002 A.D.
--------------- ------------------------
LANDLORD: TENANT:
--------- -------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co., Agent MOLECULAR GERIATRICS CORP.
--------------------------
For the beneficiary pursuant to A Delaware Corporation
Trust Agreement established with
LaSalle Bank and Trust Co. of
Chicago, as Trustee pursuant to
Trust Agreement dated December
20, 1995 and known as Trust No.
120886-05
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -------------------
_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, RPA President ▇▇▇▇▇ ▇▇▇▇▇▇▇, CFO
4/13/02 4/5/ 02
Date: __________________________ Date: ____________________
Landlord's offer may withdraw by the Landlord or it's Agent at anytime without
notice, and does not constitute a binding offer or Lease Extension until
properly signed by all parties to the Lease, and a fully executed copy is
delivered by the Landlord to Tenant.