OFFICE LEASE
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Between
▇▇▇▇ REALTY SERVICES, INC.,
as agent for
CHS EVANSTON ONE ASSOCIATES, LIMITED PARTNERSHIP ("Landlord")
and
IMMTECH INTERNATIONAL, INC.("Tenant")
Section Page
1. Basic Lease Provisions ................................................. 3
2. Leasing Agreement ...................................................... 4
3. Term and Possession .................................................... 4
4. Rent--Annual Base Rent ................................................. 4
5. Adjustments to Annual Base Rent ........................................ 5
6. Services ............................................................... 7
7. Recording-Liens by Tenant .............................................. 8
8. Security Deposit ....................................................... 8
9. Mortgage by Landlord ................................................... 8
10. Certain Rights Reserved to Landlord .................................... 9
11. Insurance and Waiver of Claims ......................................... 10
12. Condition of Premises .................................................. 11
13. Alterations ............................................................ 12
14. Repairs by Landlord .................................................... 12
15. Laws, Rules and Regulations ............................................ 12
16. Condemnation, Fire and Other Casualty .................................. 13
17. Holding Over ........................................................... 13
18. Landlords Remedies ..................................................... 13
19. Air Conditioning, Heating and Ventilating .............................. 14
20. Subletting and Assigning ............................................... 15
21. Notices ................................................................ 16
22. Quiet Possession ....................................................... 16
23. Miscellaneous .......................................................... 16
24. Landlord's Liability ................................................... 18
1. BASIC LEASE PROVISIONS
(a) Building Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Building")
----------------------------------------------------------
(b) Landlord and Address: CHS Evanston One Associates, Limited Partnership;
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
------------------------------------------------------
(c) Tenant and Current Address: Immtech International, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
(d) Date of Lease Execution: December 5, 1991
---------------------------------------------------
(e) Commencement Date (if the Premises are subject to new construction, this
date to be inserted when determined and the representatives of both parties
should sign here):
December 1, 1991
--------------------------------------------------------------------------------
(f) Lease Term: 1 year
----------------------------------------------------------------
(g) Expiration Date: November 30, 1992
-----------------------------------------------------------
(h) Floor(s) or Room(s) of Premises: Suite 110
-------------------------------------------
(i) Net Rentable Area (in Square Feet): 2,952
----------------------------------------
(j) Tenant's Business and Permitted Uses: General office, subject to provisions
set forth herein re: research.
--------------------------------------
(k) Annual Base Rent $17.00 per RSF for $50,184.00 per annum.
-----------------------------------------------------------
(l) Monthly Installments of Annual Base Rent: $4,182.00
----------------------------------
(m) Tenant's Proportion: 7.29%
-------------------------------------------------------
(n) Initial Consumer Price Index: N/A
----------------------------------------------
(0) Date Tenant Plans Due: N/A
-----------------------------------------------------
(p) Broker Referred to in Paragraph 23(k): N/A
-------------------------------------
(q) Security Deposit: $8,364.00
----------------------------------------------------------
3
2. LEASING AGREEMENT. Landlord hereby leases to Tenant and Tenant hereby
accepts and leases from Landlord the premises (the "Premises") in the Building
described in Section 1(a) herein, which is contained in the research park known
as the Northwestern University/Evanston Research Park (the "Park"), for the term
and upon the conditions provided in this Lease, to be occupied and used by
Tenant to conduct, promote, encourage and stimulate scientific research and
development, including provision for offices and other facilities incidental to
or supportive of such scientific research and development, and for no other
purposes. The floor plan of the Premises is described in the plan attached
hereto as Exhibit A.
3. TERM AND POSSESSION.
(a) The term of this Lease shall commence on the date specified in
Section 1(e) (the "Commencement Date") and shall expire on the date specified in
Section 1(g) (the "Expiration Date") unless sooner terminated as otherwise
provided in this Lease.
(b) In the event the Premises are not completed and ready for
occupancy on the Commencement Date or in the event Landlord is unable to deliver
possession on such date by reason of the holding over or retention of possession
by any tenant or occupant, this Lease shall nevertheless continue in force and
effect, but Rent (as hereinafter defined) shall ▇▇▇▇▇ until the Premises are
ready for occupancy or until Landlord is able to deliver possession, as the case
may be, and Landlord shall have no other liability whatsoever on account hereof,
provided, however, there shall be no abatement of Rent if the Premises are not
ready for occupancy as a result of the failure to complete the installation of
special equipment, fixtures or materials ordered by Tenant, or as the result of
any delays resulting from Tenant's failure to promptly submit plans that are
suitable in all respects for submission to the City of Evanston in order to
obtain a building permit, or resulting from changes or additions to Tenant's
plans after the date specified in Section 1(o). The Premises shall not be deemed
incomplete or not ready for occupancy if only non-material details of
construction, decoration or mechanical adjustments remain to be completed. The
determination of Landlord's architect or interior space planner for the Building
shall be final and conclusive as to whether the Premises are completed and ready
for occupancy.
(c) In the event Tenant takes possession of the Premises or any part
thereof prior to the Commencement Date (which Tenant may not do without
Landlord's prior written consent), all of the covenants and conditions of this
Lease shall be binding upon the parties hereto with respect to such whole or
part of the Premises as if the Commencement Date had been fixed as of the date
when Tenant took possession of such whole or part of the Premises and Tenant
shall pay Rent for the period of such occupancy prior to the Commencement Date
at the rate of the Annual Base Rent set forth in Section 1(k) herein prorated
for such period of occupancy and, if less than the whole Premises are occupied,
for the proportionate area of the total Premises so occupied.
(d) Under no circumstances shall the occurrence of any of the events
described in this Section 3(b) or 3(c) be deemed to accelerate or defer the
Expiration Date.
4. RENT - ANNUAL BASE RENT. Tenant shall pay without offset, deduction or
credit, to the managing agent of Landlord, c/▇ ▇▇▇▇ Realty Services. Inc., ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other place or such
other person as Landlord may designate, the Annual Base Rent set forth in
Section 1(k), as it may be adjusted from time to time in accordance with the
terms of this Lease, and any additional rent ("Additional Rent") which shall
mean and include all sums of money which shall become due from and payable by
Tenant, excluding Adjusted Annual Base Rent as hereinafter defined. Annual Base
Rent shall be subject to adjustment in accordance with the terms of Section 5
herein, and as adjusted is hereinafter called "Adjusted Annual Base Rent." The
Adjusted Annual Base Rent and Additional Rent (together with such other amounts
payable to Landlord hereunder as elected by Landlord pursuant to provisions of
Section 23(b)), shall herein be collectively referred to as "Rent." Except as
otherwise specifically provided, all Rent shall be paid without notice or
demand. The Adjusted Annual Base Rent shall be paid in equal monthly
installments payable in advance promptly on or before the first day of each
calendar month during the term of this Lease, except that Tenant shall pay the
first such full monthly installment on the execution hereof. If any payment of
Rent or any part thereof or any other payment to be made by Tenant to Landlord
pursuant to the terms hereof shall become overdue, a "late charge" of five cents
($.05), or such lesser amount as represents the maximum Landlord lawfully may
charge, for each dollar so overdue may be charged by Landlord, together with
interest from the date when such payment or part thereof was due until the date
such amount is actually paid at the rate which is the lesser of two percent (2%)
over the reference rate as quoted from time to time by Continental Bank, N.A. or
the highest rate per annum permitted under applicable law. If the term should
commence or terminate on a day other than the first date of the month, the
monthly installment of Adjusted Annual Base Rent for such month shall be
prorated for such fractional month. Tenant's covenant to pay Rent shall be
independent of every other covenant in this Lease.
4
5. ADJUSTMENTS TO ANNUAL BASE RENT.
(a) For the purpose of this Section 5, the following words and
phrases shall have the following meanings:
(i) "Initial Calendar Year" shall mean the Calendar Year
(as hereinafter defined) in which the Commencement Date occurs.
(ii) "Calendar Year" shall mean each calendar year
(subsequent to the Initial Calendar Year) in which any part of the
Term falls, through and including the year in which the Term
expires.
(iii) "Consumer Price Index" shall mean the Consumer
Price Index--U.S. City Averages for Urban Wage Earners and Clerical
Workers--All items of the United States Bureau of Labor Statistics.
The 1967 average shall be used as an index of 100.
(iv) "Expenses" shall mean and include all those costs
and expenses of every kind and nature associated with the
management. maintenance, repair, replacement, insurance, ownership
and operation of the Building, including any Park expenses allocated
to the Building. Expenses shall not include: the costs of
alterations of the premises of other tenants: depreciation charges;
interest and principal payments on mortgages; expenditures for which
Landlord has been reimbursed by a third party or by insurance
proceeds; and capital improvement costs, except that Expenses shall
include (a) the cost during the Term, as reasonably amortized by
Landlord with interest at 2% over the reference rate of interest
quoted from time to time by Continental Bank, N.A. on the
unamortized amount, of any capital improvements which are intended
to reduce any component cost included within Expenses, and (b) the
cost of any capital improvements which are necessary to keep the
Building and Park in compliance with all governmental or other rules
and regulations applicable from time to time thereto.
(v) "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 (but not
including income or franchise taxes or any other taxes imposed upon
or measured by Landlord's income or profits, unless the same shall
be imposed in lieu of real estate taxes and other ad valorem taxes),
which may now or hereafter be levied or assessed against the
Building. In case of special taxes or assessments which may be
payable in installments, only the amount of each installment (plus
any interest payable thereon) paid during a calendar year shall be
included in Taxes for that year. Taxes shall also include any
personal property taxes imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems and appurtenances used in
connection with the Building for the operation thereof. Taxes shall
also include amounts paid to anyone hired by Landlord to contest the
amount of any assessment of the Building, the rate of taxation or
the legality of the imposition of any component of the Taxes upon
the Building. Taxes "attributable to" or "for" a calendar year, for
the purposes of this Lease, shall be those paid during such year
without regard to when such Taxes are assessed or levied.
(vi) "Tenant's Proportion" as set forth in Section 1(m)
is the percentage calculated by dividing the Net Rentable Area
contained in the Premises by 40.521 (being 100% of the rentable area
in the Building) provided, however, should the Building be less than
95% occupied during all or a portion of any Calendar Year, then
Landlord shall make a reasonable and equitable adjustment of the
Expenses and Taxes for the Calendar Year, employing sound accounting
and management principles to determine the amount of Expenses and
Taxes that would have been paid or incurred by Landlord had the
Building been fully occupied, and the amount so determined shall be
deemed to have been the amount of Expenses and Taxes for the
Calendar Year.
Notwithstanding the terms and conditions specified in Section 5(b)
of the Lease, the Tenant shall not pay more than 7.29% of actual
Expenses or Taxes.
5
(b) Tenant shall pay to Landlord as Additional Rent, in addition to
the Annual Base Rent required by Section 4 hereof, an amount ("Expense
Adjustment Amount") equal to Tenant's Proportion of Expenses actually paid
during or attributable to each Calendar Year. The Expense Adjustment Amount with
respect to each Calendar Year shall be paid in monthly installments in an amount
estimated by Landlord from time to time and communicated by written notice to
Tenant. Landlord shall keep, or cause to be kept, books and records of such
Expenses, in accordance with an appropriate system of accounts and accounting
practices consistently maintained. As promptly as practical following the close
of each Calendar Year, Landlord shall cause the amount of the Expense Adjustment
Amount for such Calendar Year to be computed based on actual Expenses for such
Calendar Year for the Building and Landlord shall deliver to Tenant a statement
of such amount. If the total of the estimated monthly installments paid by
Tenant during any Calendar Year is less than the actual Expense Adjustment
Amount due from Tenant for such Calendar Year, Tenant shall pay any deficiency
to Landlord as shown by such statement within thirty (30) days after receipt of
such statement. If the total of the estimated monthly installments paid by
Tenant during any Calendar Year exceeds the actual Expense Adjustment Amount due
from Tenant for such Calendar Year, Landlord shall credit such excess against
payments next due hereunder, provided Tenant is not then in default hereunder.
If this Lease shall expire prior to full application of such excess, Landlord
shall pay to Tenant the balance thereof after all payments of Rent have been
made by Tenant.
Tenant acknowledges that Landlord's estimate of the Expense
Adjustment Amount is based on the assumption that Landlord will be providing
identical services to all tenants in the Building. If this assumption is not in
fact correct, that is, if Landlord is not furnishing any particular work or
service (the cost of which, if performed by Landlord, would be included in
Expenses) to a tenant who has undertaken to perform such work or service in lieu
of the performance thereof by Landlord, Expenses shall be deemed to be increased
by an amount equal to the additional expenses which would reasonably have been
incurred during such period by Landlord if it had at its own expense furnished
such work or service to such tenant.
(c) Tenant shall pay to Landlord as Additional Rent, in addition to
the Annual Base Rent required by Section 4 hereof, an amount ("Tax Adjustment
Amount") equal to Tenant's Proportion of Taxes paid during each Calendar Year.
The Tax Adjustment Amount with respect to each Calendar Year shall be paid in
monthly installments in an amount estimated by Landlord from time to time and
communicated by written notice to Tenant. Landlord shall keep, or cause to be
kept, books and records of such Taxes, in accordance with an appropriate system
of accounts and accounting practices consistently maintained. As promptly as
practical following the close of each Calendar Year, Landlord shall cause the
amount of the Tax Adjustment Amount for such Calendar Year to be computed based
on Taxes paid during such Calendar Year for the Building and Landlord shall
deliver to Tenant a statement of such amount. If the total of the estimated
monthly installments paid by Tenant during any Calendar Year is less than the
actual Tax Adjustment Amount due from Tenant for such Calendar Year, Tenant
shall pay any deficiency to Landlord as shown by such statement within thirty
(30) days after receipt of such statement. If the total of the estimated monthly
installments paid by Tenant during any Calendar Year exceeds the actual Tax
Adjustment Amount due from Tenant for such Calendar Year, Landlord shall credit
such excess against payments next due hereunder, provided Tenant is not then in
default hereunder. If this Lease shall expire prior to full application of such
excess, Landlord shall pay to Tenant the balance thereof after all payments of
Rent have been made by Tenant.
6
(e) All amounts due under this Section 5 as Additional Rent shall be
payable for the same periods and in the same manner, time and place as the
Adjusted Annual Base Rent. Without limitation on other obligations of Tenant
which shall survive the expiration of the Term, the obligations of Tenant to pay
the Additional Rent shall survive the expiration of the Term. Tenant may examine
Landlord's books and records with respect to items in this Section 5 at any time
within thirty (30) days following Landlord's furnishing to Tenant the statements
informing Tenant of the Expense Adjustment Amount, Tax Adjustment Amount and CPI
Adjustment, during normal business hours upon reasonable prior notice to
Landlord. Unless Tenant asserts a specific error or errors by written notice to
Landlord within such thirty (30) day period, the statements shall be deemed to
be correct.
6. SERVICES.
(a) Provided Tenant is not in default under the terms of this Lease,
Landlord shall provide the following services to Tenant, and the cost of
providing such services shall be included as part of the Expenses:
(i) Janitor service and customary cleaning in and about
the Premises, Saturdays, Sundays and holidays excepted.
(ii) Air conditioning, heating and ventilating in
accordance with the provisions of Section 19 hereof.
(iii) Water from City mains for drinking, lavatory and
toilet-purposes drawn through fixtures installed by Landlord. Tenant
shall not waste or permit the waste of water.
(iv) Operatorless elevator service in common with other
tenants at all times.
(v) Window washing of all windows in the Premises, both
inside and out, weather permitting, at such times as shall be
required in Landlord's sole judgment, but not less than three (3)
times a year on the outside and not less than two (2) times a year
on the inside of the windows in the Premises.
(vi) Adequate electrical wiring and facilities for
standard building lighting fixtures and a connected tenant
electrical load not to exceed an average of 5 ▇▇▇▇▇ per square foot
of the Premises. Tenant shall pay for the use of all electrical
service to the Premises.
Tenant shall be separately metered and billed directly
by the electric utility company supplying electricity and electric
heat to the Premises and Tenant agrees to pay each ▇▇▇▇ promptly in
accordance with its terms. In the event that for any reason Tenant
cannot be billed directly, Landlord shall forward each ▇▇▇▇ with
respect to the Premises and Tenant shall pay it promptly in
accordance with its terms.
If Tenant cannot be separately metered for any reason,
Tenant shall pay Landlord as Additional Rent, in monthly
installments at the time prescribed for monthly installments of
Rent, an amount, as estimated by Landlord from time to time, which
Tenant would pay for such electricity if the same were separately
metered to the Premises.
(b) Landlord does not warrant that any of the services above
mentioned will be free from interruptions or diminutions in quality or quantity
caused by repairs, renewals, improvements, alterations, strikes, lockouts,
accidents, inability of Landlord to obtain fuel, energy or supplies, or any
other cause or causes beyond the reasonable control of Landlord. Any such
interruption of service shall never 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, or relieve Tenant from performance of
Tenant's obligations under this Lease, provided, however, that Landlord will at
all times use reasonable efforts promptly to remedy any situation which might
interrupt such services.
(c) Notwithstanding anything to the contrary in this Section 6 or
elsewhere in this Lease, Landlord shall have the right to institute such
policies, programs and measures as may be necessary or desirable, in Landlord's
discretion, for the conservation and/or preservation of energy or
7
energy-related services, or as may be required to comply with any applicable
codes, rules and regulations, whether mandatory or voluntary.
7. RECORDING--LIENS BY TENANT. Neither this Lease, nor any memorandum,
affidavit, or other writing with respect thereto, shall be recorded by Tenant or
by anyone acting through, under or on behalf of Tenant without Landlord's prior
written consent and the recording thereof in violation of this Section 7 shall
make this Lease null and void at Landlord's election. Tenant has no authority to
and shall not cause any lien or encumbrance to attach to or be placed against
the land on which the Building is located, the Building or the Premises. In the
event that such lien is not immediately released and removed, Landlord may
elect, but shall not be obligated, to take all action necessary to release and
remove such lien (without any duty to investigate the validity thereof) and
Tenant shall promptly, upon notice, reimburse Landlord for all sums, costs and
expenses (including reasonable attorneys' fees) incurred by Landlord in
connection with such lien.
8. SECURITY DEPOSIT. Tenant agrees to deposit with Landlord, upon the
execution of this Lease, the sum set forth in Section 1(q) as security (the
"Deposit") for the full and faithful performance by Tenant of each and every
term, provision, covenant, and condition of this Lease. Landlord shall have no
obligation to segregate the amount so deposited from its other funds. If Tenant
defaults in respect to any of the terms, provisions, covenants and conditions of
this Lease, including, but not limited to, payment of Rent, Landlord may use,
apply, or retain the whole or any part of the Deposit for the payment of any
such Rent in default, or for any other 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 occurred before or after any re-entry by Landlord. The
use, application or retention of the Deposit, or any portion thereof, by
Landlord shall not prevent Landlord from exercising any other right or remedy
provided by this Lease or by law (it being intended that Landlord shall not
first be required to proceed against the Deposit) and shall not operate as a
limitation on any recovery to which Landlord may otherwise be entitled. If any
of the 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, on written
demand therefor by Landlord, pay to Landlord such additional sum as may be
necessary to restore the Deposit to the original amount set forth in the first
sentence of this Section 8. If Tenant shall fully and faithfully comply with all
the terms, provisions, covenants and conditions of this Lease, the Deposit, or
any balance thereof, shall be returned to Tenant after the later of:
(a) within thirty (30) days following the Expiration Date;
(b) within thirty (30) days following the date by which Tenant has
vacated the Premises;
(c) the time required for the escalation charges due pursuant to the
Lease to have been computed by Landlord and paid by Tenant, provided that such
charges shall be computed and forwarded to Tenant no later than thirty (30) days
after receipt of information needed by Landlord to compute such charges.
Except as otherwise required by law, Tenant shall not be entitled to
any interest on the aforesaid Deposit. In the absence of evidence satisfactory
to Landlord of an assignment of the right to receive the Deposit or the
remaining balance thereof, Landlord shall return the Deposit to the original
Tenant, regardless of one or more assignments of this Lease in accordance with
the provisions hereof. Upon the return of the Deposit or the remaining balance
thereof to the original Tenant, Landlord shall be completely relieved of
liability under this Section 8 or otherwise with respect to the Deposit. If
Tenant receives notice of sale of the Building and a notice to attorn to the new
owner, it shall look solely to the new owner for return of the Deposit.
▇.▇▇▇▇▇▇▇▇ BY LANDLORD. Tenant agrees that this Lease and rights of Tenant
hereunder are subject and subordinate to any mortgage or deed of trust in the
nature of a mortgage that is now or may hereafter be placed upon or affect the
property in which the Building containing the Premises is located, and to any
and all advances made thereunder, and interest thereon, and all modifications,
renewals, supplements, consolidations and replacements thereof (hereinafter
referred to as "mortgage") and to any ground lease (whether existing now or in
the future) under which Landlord leases the property from the owner of the land
on which the Building is located (hereinafter referred to as a "ground lease").
Tenant also agrees that the holder of any such mortgage or the landlord under
such ground lease may, at its option, unilaterally elect to partially
subordinate, by an instrument in form and substance satisfactory to such
mortgagee, such mortgage or ground lease to this Lease. Tenant also agrees to
execute promptly and to deliver to Landlord or such mortgagee or landlord of
such ground lease any such subordination instrument or instruments requested by
such mortgagee or landlord, and agrees that if it fails or refuses to do so
within fifteen (15) days after written request therefor by Landlord or such
mortgagee or landlord, Tenant hereby irrevocably authorizes Landlord to execute
and deliver in the name of Tenant any such instrument or instruments, provided
that such shall in no way relieve Tenant from the obligation of executing such
instruments of subordination.
In the event that said mortgagee or landlord does not elect to so
subordinate such mortgage, as hereinabove provided, and a deed or assignment of
lease is delivered in lieu of foreclosure or
8
proceedings are brought for the foreclosure of any such mortgage, or if the
underlying ground lease be terminated, at the option of the grantee, mortgagee,
purchaser or landlord in any such case, Tenant agrees to attorn to such grantee,
mortgagee, purchaser or landlord, as the case may be, and to recognize it as
Landlord hereunder and agrees that such grantee, mortgagee, purchaser or
landlord shall not be liable for (1) any past act or omission of any prior
landlord hereunder and (2) any prepayment of rent, deposit or other sum not
actually delivered to it [Illegible] for the return of the Deposit. Should any
such mortgage be foreclosed, or if the underlying ground lease be terminated,
the liability of the mortgagee, trustee, purchaser or landlord at such
foreclosure sale or the liability of a subsequent owner designated as Landlord
under this Lease shall exist only so long as such trustee, mortgagee, purchaser
or owner is the owner of the subject real estate and such liability shall not
continue or survive after further transfer of ownership.
Tenant agrees that if Landlord notifies Tenant of any mortgage or trust
deed against the real property of which the Premises form a part, in the event
of any act or omission by Landlord which would give Tenant the right to
terminate this Lease or to claim a partial or total eviction, Tenant shall not
exercise any right (i) until it has notified in writing the holder of any such
mortgage which at the time shall be a lien on the Premises, if the name and
address of such holder shall previously have been furnished by written notice to
Tenant, of such act or omission, and (ii) until a reasonable period for
commencing the remedying of such act or omission shall have lapsed following the
giving of such notice, including, if necessary, the commencement and prosecution
of foreclosure proceedings, and (iii) such holder, with reasonable diligence
shall not have so commenced and continued to remedy such act or omission or to
cause the same to be remedied. During the period between the giving of such
notice and the remedying of such act or omission, the Rent shall be abated and
apportioned to the extent that any part of the Premises shall be untenantable
because of Landlord's fault.
10. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
(a) Occupancy. If Tenant vacates the Premises, to decorate, remodel,
repair, alter or otherwise prepare the Premises for reoccupancy without thereby
reducing or eliminating Tenant's other obligations under this Lease.
(b) Door Keys. To have door keys to the Premises.
(c) Access for Repairs. To have access for and to make repairs,
alterations, additions and improvements to the Premises or to the Building,
including the rights set forth in Section 14, providing that such actions shall
not unreasonably interfere with Tenant's use of the Premises.
(d) Show Premises. To show the Premises to prospective tenants or
brokers during the last year of the term of this Lease as extended, and to
prospective purchasers at all reasonable times provided prior notice is given to
Tenant in each case and Tenant's use and occupancy of the Premises shall not be
materially inconvenienced by any such action of Landlord.
(e) Service Contracts. To designate all sources furnishing
janitorial, sign painting, ice, drinking water, beverages, foods, vending
services, towels or toilet supplies used or consumed in the Building or on the
Premises.
(f) Heavy Equipment. To approve the weight, size and location of
safes or heavy equipment or other articles, which safes, equipment or articles
may be moved, in, about, or out of the Building or the Premises only at such
times and in such manner as Landlord shall direct and in all events, however, at
Tenant's sole risk and responsibility.
(g) Close Building. To close the Building after customary working
hours and on holidays, subject, however, to Tenant's right to admittance under
such reasonable regulations as Landlord may prescribe from time to time.
(h) Name of Building--Signs. To name and change the name or street
address of the Building from time to time as Landlord elects during the term of
this Lease and to identify the Building's name by such sign or signs on the
exterior and public areas thereof as Landlord may elect. To install and maintain
any signs as Landlord may elect on the exterior or interior of the Building.
(i) Environmental Inspections. To have access to the Premises to
conduct environmental inspections as required by the Environment and Safety
Policy of the Park, as amended from time to time, or as otherwise required by
the Park.
(j) Delivery and Removal. To establish reasonable controls for the
purpose of regulating the movement of all property and packages into or out of
the Building or the Premises.
The Landlord may enter upon the Premises and may exercise any or all
of the foregoing rights hereby reserved without being deemed guilty of an
eviction or disturbance of Tenant's use or possession and without being liable
in any manner to Tenant.
9
11. INSURANCE AND WAIVER OF CLAIMS.
(a) Landlord shall keep the Building insured for the benefit of
Landlord in an amount equivalent to the full replacement value thereof
(excluding foundation, grading and excavation costs) against:
(i) loss or damage by fire and all risk perils,
including theft;
(ii) such other risk or risks of a similar or dissimilar
nature as are now, or may in the future be, customarily covered with
respect to buildings and improvements similar in construction,
general location, use, occupancy and design to the Building,
including, but without limiting the generality of the foregoing,
windstorms, hail, explosion, vandalism, malicious mischief, civil
commotion, and such other coverage as may be deemed necessary by
Landlord, providing such additional coverage is obtainable and
providing such additional coverage is such as is customarily carried
with respect to buildings and improvements similar in construction,
general location, use, occupancy and design to the Building.
In addition, Landlord shall maintain, for its benefit
and the benefit of its agents and employees, general public
liability insurance to afford protection to Landlord and Landlord's
agent and employees against claims for personal injury, death or
property damage occurring upon, in or about the Building. Insurance
premiums paid for all such coverage shall be a portion of the
Expenses described in Section 5 hereof. These insurance provisions
shall in no way limit or modify any of the obligations of Tenant
under any provision of this Lease. Landlord agrees that such policy
or policies of insurance shall contain a waiver of subrogation
clause as to Tenant and Tenant's agents and employees. Landlord
hereby waives, releases and discharges Tenant, Tenant's agents and
employees, from all claims or demands whatsoever which Landlord may
have or acquire arising out of damage to or destruction of the
Building or Landlord's business therein occasioned by fire or other
cause which such claim or demand may arise because of the negligence
or fault of Tenant, its agents, employees, customers or business
invitees, or otherwise to the extent such damage or destruction is
covered by insurance. Landlord agrees to look to the insurance
coverage only in the event of such loss. Notwithstanding the
foregoing, Tenant shall be obligated to pay the rental called for
hereunder in the event of damage to or destruction of the Premises
or the Building, if such damage or destruction is occasioned by the
negligence or fault of Tenant, its agents or employees.
(b) Tenant shall keep all of its machinery, equipment, furniture,
fixtures, personal property (including also property under the care, custody, or
control of Tenant) and business interests which may be located in, upon, or
about the Premises insured against, for the benefit of Tenant in an amount
equivalent to the full replacement value or insurable value thereof:
(i) loss or damage by fire and all risk perils,
including theft; and
(ii) such other risk or risks of a similar or dissimilar
nature as are now, or may in the future be, customarily covered with
respect to Tenant's machinery, equipment, furniture, fixtures,
personal property (including but not limited to Tenant's
improvements to the Premises) and business located in a building,
similar in construction, general location, use, occupancy and design
to the Building, including, but without limiting the generality of
the foregoing, windstorms, hail, explosions, vandalism, theft,
malicious mischief, civil commotion, and such other coverage as
Tenant may deem appropriate or necessary.
Tenant agrees that such policy or policies of insurance
shall contain a waiver of subrogation clause as to Landlord,
Landlord's agent and their respective employees and Tenant waives,
releases and discharges Landlord, Landlord's agent and their
employees from all claims or demands whatsoever which Tenant may
have or acquire arising out of damage to or destruction of the
machinery, equipment, furniture, fixtures, personal property and
business of Tenant occasioned by fire or other cause, whether such
claim or demand may arise be-
10
cause of the negligence or fault of Landlord, or Landlord's agent or
employees, subcontractors or otherwise, and Tenant agrees to look to
the insurance coverage only in the event of such loss.
Tenant shall, at Tenant's sole cost and expense, for the
benefit of Landlord, Landlord's agent and Tenant, maintain
comprehensive general liability insurance, with broad liability
endorsement coverage, against claims for personal injury, death or
property damage occurring upon, in or about the Premises, such
insurance to afford protection to Landlord, its managing agent and
Tenant to the limit of not less than 1,000,000 per occurrence,
3,000,000 aggregate, combined single limit bodily injury and
property damage. Such policies of insurance shall be written by
companies reasonably satisfactory to Landlord, naming Landlord and
its agents and employees as additional insureds thereunder, and such
policies, or a memorandum or certificate of such insurance, shall,
prior to Tenant taking possession of the Premises, be delivered to
Landlord endorsed "Premium Paid" by the company or agency issuing
the same or accompanied by other evidence satisfactory to Landlord
that the premium thereon has been paid. At such time as insurance
limits required of tenants in office buildings in the Chicago
Metropolitan area are generally increased to greater amounts,
Landlord shall have the right to require such greater limits as may
then be customary. Tenant agrees to include in such policy the
contractual liability coverage insuring Tenant's indemnification
obligations provided for herein. Any such coverage shall be deemed
primary to any liability coverage secured by Landlord.
Tenant agrees to indemnify and save Landlord, Landlord's
agent and their employees harmless against and from any and all
claims by or on behalf of any person or persons, firm or firms,
corporation or corporations, arising from any breach or default on
the part of Tenant in the performance of any covenant or agreement
on the part of Tenant to be performed, pursuant to the terms of this
Lease, or arising from any act or negligence on the part of Tenant
or its agents, contractors, servants, employees or licensees,
arising from any accident, injury or damage to the extent caused by
Tenant, its agents, and employees to any person, firm or corporation
occurring during the term of this Lease or any renewal thereof, in
or about the Premises and Building, and from and against all costs,
reasonable counsel fees, expenses and liabilities incurred in
connection with any such claim or action or proceeding brought
thereon; and in case any action or proceeding be brought against
Landlord, its agents and employees by reason of any such claim,
Tenant, upon notice from Landlord, covenants to resist or defend
such action or proceeding by counsel reasonably satisfactory to
Landlord.
Tenant agrees, to the extent not expressly prohibited by
law, that Landlord, its agents and employees shall not be liable,
and Tenant waives all claims for damage to property and business
sustained during the term of this Lease by Tenant occurring in or
about the Premises, resulting directly or indirectly from any
existing or future condition, defect, matter or thing in the
Premises, the Building, or any part thereof, or from equipment or
appurtenances becoming out of repair or from accident, or from any
occurrence of act or omission of Landlord, its agents or employees,
or any tenant or occupant of the Building or any other person. This
paragraph shall apply especially, but not exclusively, to damage
caused as aforesaid or by the flooding of basements or other
subsurface areas, or by refrigerators, sprinkling devices, air
conditioning apparatus, water, snow, frost, steam, excessive heat or
cold, falling plaster, broken glass, sewage, gas, odors or noise, or
the bursting or leaking of pipes or plumbing fixtures, and shall
apply equally, whether any such damage results from the act or
omission of other tenants or occupants in the Building or any other
persons, and whether such damage be caused by or result from any of
the aforesaid, or shall be caused by or result from other
circumstances of a similar or dissimilar nature.
12. CONDITION OF PREMISES. Tenant's taking possession shall be conclusive
evidence that the Premises were in good order and satisfactory condition when
Tenant took possession. No promise of Landlord to alter, remodel, decorate,
clean or improve the Premises or the Building and no representation concerning
the condition of the Premises or the Building have been made by Landlord to
Tenant, unless the same is contained herein, or made a part hereof, or in a
punch list signed by Landlord or its agent. During the term of this Lease,
Tenant shall maintain the Premises in as good
11
condition as when Tenant took possession, or as when completed after possession,
loss or damage caused by action of the elements, acts of God and the public
enemy, structural defects not caused by Tenant or its agents, servants,
employees, contractors, invitees or licensees or caused by or attributable to
Tenant's failure to perform its obligations under this Lease, ordinary wear, and
fire and other casualty insured against by Landlord excepted, failing which
Landlord may, but need not, restore the Premises to such condition and Tenant
shall pay the cost thereof. At the termination of this Lease, Tenant shall
return the Premises to Landlord in good condition as just above described,
provided, however, that Tenant may remove trade fixtures and other like
equipment installed and paid for by Tenant. Such removals shall be done in a
good and workmanlike manner and all surfaces shall be restored by Tenant to a
smooth condition.
13, ALTERATIONS. Tenant may not do any painting or decorating, or erect
any partitions, make any alterations in or additions to the Premises or do any
nailing, boring or screwing into the ceilings, walls or floors unless Tenant has
obtained Landlord's prior written permission to do so. Landlord's decision to
refuse such consent shall be conclusive. Unless otherwise agreed by Landlord and
Tenant in writing, all such work shall be performed by Landlord, but at the cost
of Tenant. If Landlord consents to such repairs, alterations or additions,
before commencement of the work or delivery of materials to the Premises or the
Building, Tenant shall furnish Landlord for Landlord's approval plans and
specifications, and, if Landlord has agreed Tenant may perform the work, names
and addresses of contractors, copies of contracts, necessary permits and
indemnification in form and amount satisfactory to Landlord, waivers of lien
against any and all claims, costs, damages, liabilities and expenses which may
arise in connection with the alterations or additions, indemnification and
payment or evidence of ability to make payment in form and amount reasonably
satisfactory to Landlord, and certificates of insurance from all contractors
performing labor or furnishing materials, insuring against any and all claims,
costs, damages, liabilities and expenses which may arise in connection with the
repairs, alterations or additions. Whether Tenant furnished Landlord the
foregoing or not, Tenant hereby agrees to indemnify and hold Landlord harmless
from any and all liabilities of every kind and description which may arise out
of or be connected in any way with such alterations or additions.
Upon completing any alterations or additions, Tenant, if requested by
Landlord, shall furnish Landlord with contractors' affidavits and full and final
waivers of lien and receipted bills covering all labor and material expended and
used. All alterations and additions shall comply with all insurance requirements
and with all relevant laws, ordinances or regulations of municipalities,
counties, state, or departments and agencies thereof. All alterations and
additions shall be constructed in a good and workmanlike manner and only good
grades of materials shall be used. All additions, including fixtures other than
trade fixtures, shall become Landlord's property and shall remain upon the
Premises at the termination of this Lease by lapse of time or otherwise without
compensation or allowance or credit to Tenant. If Tenant does not remove
Tenant's furniture, equipment, machinery, trade fixtures, and floor coverings,
and all other items of personal property of every kind and description from the
Premises prior to the end of the term, however ended, or any extension thereof,
at Landlord's option such property may be removed from the Premises at Tenant's
expense or the Tenant shall be conclusively presumed to have conveyed the same
to Landlord under this Lease as a ▇▇▇▇ of sale without further payment or credit
by Landlord to Tenant. All changes made by Tenant shall be restored to their
original condition at Tenant's expense if Landlord so requests.
14. REPAIRS BY LANDLORD. At all times, Landlord, either voluntarily or
pursuant to governmental requirement, may at Landlord's own expense make
repairs, alterations or improvements in or to the Building or any part thereof,
including the Premises, which may, amongst other changes, include changes in
entrances, common areas or docks and, during operations, may close entrances,
doors, corridors, elevators and other facilities and may have access to and open
the ceilings, all without any liability to the Tenant by reason of interference,
inconvenience or annoyance.
15. LAWS, RULES AND REGULATIONS. Tenant agrees to strictly comply with all
pertinent laws, ordinances, statutes and regulations whatsoever of any
governmental body or subdivision incident to the occupation of the Premises or
incident to the location of the Premises in the Park or its use thereof and to
strictly comply with all relevant requirements of any board of underwriters or
similar body and of the insurance carriers issuing Landlord's insurance or other
insurance with respect to the Building or the Premises. The provisions of this
Section 15 are applicable to all such laws, ordinances, statutes, regulations or
requirements now in effect or in effect at any time during the term of this
Lease. Tenant shall abide by the terms and conditions of that certain
Declaration of Covenants, Conditions, Restrictions and Easements for
Northwestern University/Evanston Research Park including, but not limited to,
those provisions of Section 5.2 of such Declaration prohibiting the conduct of
any research in the Park which is directly and solely for the production,
storage or processing of munitions or their unique components, and shall abide
by Landlord's rules and regulations attached to this Lease as Exhibit B, as they
may be amended from time to time and all other rules and regulations of the
Park. Tenant shall abide by all other reasonable rules and regulations hereafter
adopted by Landlord pertaining to the operation and management of the Building
or imposed by the manager of the Park.
12
16. CONDEMNATION, FIRE AND OTHER CASUALTY.
(a) Condemnation.
(i) Entire Taking. If all of the Premises, or such
portions of the Building as may be required for the reasonable use
of the Premises, are taken by eminent domain or by conveyance in
lieu thereof, this Lease shall automatically terminate as of the
date title vests in the condemning authority and all Rent,
Additional Rent and other payments shall be paid to that date.
(ii) Partial Taking. In case of a taking by eminent
domain or conveyance in lieu thereof of a part of the Premises or a
portion of the Building not required for the reasonable use of the
Premises, then this Lease shall continue in full force and effect
and the Rent shall be equitably reduced based on the proportion by
which the floor area of the Premises is reduced, such Rent reduction
to be effective as of the date title to such portion vests in the
condemning authority.
(iii) Awards and Damages. Landlord reserves all rights
to damages to the Premises for any partial or entire taking by
eminent domain or such a conveyance, and Tenant hereby assigns to
Landlord any right Tenant may have to such damages, award or
compensation and Tenant shall make no claim against Landlord or the
condemning authority for damages for termination of the leasehold
interest or interference with Tenant's business. Tenant shall have
the right, however, to claim and recover from the condemning
authority compensation for any loss for Tenant's moving expenses or
taking of Tenant's personal property (not including Tenant's
leasehold interest) provided that such damages may be claimed only
if they are awarded separately in the eminent domain proceedings and
not out of or as part of the damages recoverable by Landlord.
(b) Fire and Other Casualty.
If the Premises or the Building are made untenantable by fire or
extended coverage perils, Landlord shall with reasonable promptness take such
action as is necessary to reconstruct, repair and rehabilitate them, provided,
however, that if a registered architect selected by Landlord licensed to do
business in the State of Illinois should certify that such repair and
rehabilitation cannot be accomplished by using standard working methods and
procedures so as to make the Premises tenantable within six (6) months from the
date reconstruction, repair or rehabilitation is started, either party shall
have the right to terminate this Lease by giving to the other notice of such
election within ten (10) days after receipt of the architect's certificate.
Notwithstanding the foregoing, in the event such fire or casualty is caused by
any act of Tenant or anyone acting through Tenant, Tenant shall not have the
right to terminate this Lease. If neither party elects to terminate this Lease,
then Landlord shall repair, reconstruct or rehabilitate the Premises by use of
reasonable diligence. In case of fire or other casualty not resulting in
termination of this Lease, Rent shall be apportioned on a per diem basis and be
paid to the date of the fire or other casualty. Furthermore, if destruction or
damage is caused by casualty other than by fire or extended coverage perils,
then Landlord shall have the right to terminate the term of this Lease by notice
to Tenant given within ninety (90) days after said casualty. Notwithstanding
anything to the contrary herein set forth, in the event the Premises are
repaired, reconstructed or rehabilitated by Landlord, Landlord shall have no
obligation to restore any leasehold improvements not initially installed and
paid for by Landlord.
17. HOLDING OVER. If Tenant retains possession of the Premises or any part
thereof after the termination of the term or any extension thereof, by lapse of
time or otherwise, Tenant shall pay Landlord all actual damages, consequential
as well as direct, sustained by reason of Tenant's retention of possession.
Tenant shall also pay Landlord monthly installments of Annual Base Rent at the
higher of (i) market rent for comparable space, or (ii) double the rate payable
for the month immediately preceding said holdover for the time Tenant thus
remains in possession. Any retention of the Premises after the termination of
this Lease at the sole election of Landlord shall be considered as a
month-to-month holdover. However, the provisions of this Section 17 do not waive
the Landlords rights to re-entry or to obtain possession of the Premises by
legal proceedings or any other right hereunder or by operation of law.
18. LANDLORD'S REMEDIES. All rights and remedies of Landlord herein
enumerated shall be cumulative, none shall exclude any other right or remedy
allowed herein or bylaw, and if any provision shall be invalid or unenforceable,
it shall apply only to such provisions and the remainder of this Lease shall
continue valid and enforceable.
13
(a) If Tenant defaults in the payment of Rent or any other sums due
Landlord and if the default is not remedied within five (5) days after such
amount is due, then and in any such event, Landlord may, if Landlord so elects
but not otherwise, either forthwith terminate this Lease and Tenant's right to
possession of the Premises or, without terminating this Lease, forthwith
terminate Tenant's right to possession of the Premises.
(b) If Tenant defaults in the prompt and full performance of any
other provision of this Lease and if such default is not remedied or prompt and
full performance is not accomplished by Tenant or Tenant has not promptly
instituted and is not vigorously pursuing such remedies as are necessary to
rectify such default within twenty (20) days after demand is made by Landlord,
or if Tenant abandons the Premises, then and in any such event, Landlord may, if
Landlord so elects but not otherwise, forthwith terminate this Lease and
Tenant's right to the Premises or, without terminating this Lease, forthwith
terminate Tenant's right to possession of the Premises.
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of this Lease, Tenant shall surrender possession and vacate the
Premises and deliver possession thereof to Landlord, and Tenant hereby grants to
Landlord full and free license to enter into and upon the Premises in such event
with or without process of law, and to repossess the Premises and to expel or
remove Tenant and any others who may be occupying or be within the 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 or forcible
entry or detainer, and without relinquishing Landlord's rights to Rent or any
other right given to Landlord hereunder or by operation of law.
(d) If Tenant voluntarily abandons the Premises or otherwise
entitles Landlord so to elect, and Landlord elects to terminate Tenant's right
to possession only, without terminating the 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 in Subparagraph (c) of this
Section 18, without such entry and possession terminating this Lease or
releasing Tenant, in whole or part, from Tenant's obligation to pay Rent
hereunder for the full term. Upon and after entry into possession without
termination of this Lease, Landlord may relate the Premises or any part thereof
for the account of Tenant, to any person, firm or corporation other than Tenant
for such Rent, for such time and upon such terms as Landlord in Landlord's sole
discretion shall determine. If the consideration collected by Landlord upon any
such reletting for Tenant's account is not sufficient to pay monthly the full
amount of Rent reserved in this Lease, Tenant shall pay to Landlord the amount
of each monthly deficiency as it becomes due upon demand. Tenant shall also pay
to Landlord any and all costs, charges and expenses associated with the
reletting of the Premises.
(e) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled may be handled, removed and stored by Landlord at the risk, cost
and expense of Tenant, provided, however, that Landlord shall use reasonable
care to prevent any damage or loss to such property in removing and storing such
property. Tenant shall pay to Landlord, upon demand, any and all reasonable
expenses incurred in such removal and all reasonable storage charges against
such property so long as the same shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant not removed from the Premises or
retaken from storage by Tenant within thirty (30) days after the end of Tenant's
possession or of the term, however terminated, or any extension thereof, shall
be conclusively deemed to have been forever abandoned by Tenant.
(f) 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 proceeding in any court or tribunal
shall be instituted to declare Tenant insolvent or unable to pay Tenant's debts,
or Tenant makes an assignment for the benefit of its creditors, and in the case
of an involuntary petition or proceeding, the petition or proceeding is not
dismissed within thirty (30) days from the date it is filed, Landlord may elect,
but is not required, to terminate this Lease with or without notice of such
election and with or without entry or other action by Landlord.
(g) If Tenant should default under the terms of this Lease and such
default is not cured in accordance with the terms hereof, Tenant shall pay to
Landlord all reasonable costs, charges, expenses and attorney's fees incurred by
Landlord in connection therewith.
19. AIR CONDITIONING, HEATING AND VENTILATING. The Building shall contain
an air conditioning, heating and ventilating system and, so long as Tenant is
not in default under the provisions of this Lease, Landlord shall operate said
air conditioning, heating and ventilating system in the Premises daily
throughout the year from 8:00 am. to 6:00 p.m. (Saturdays from 8:00 a.m. to 1:00
p.m. only), Sundays and holidays excepted, or during such other reasonable hours
of operation as determined by Landlord, as may be reasonably required for
comfortable occupancy of the Premises under normal business operations by
Tenant. Tenant shall pay for all heating and air conditioning requested and
furnished prior to or following such hours at rates to be established from time
to time by Landlord, subject to all governmental rules, regulations and
guidelines applicable thereto. Tenant agrees to keep and cause to be kept closed
all windows in the Premises during the time the heating or air conditioning
systems are operating and at all times when it would otherwise be reasonable to
14
keep such windows closed. Landlord reserves the right to lock and seal the
windows in the Premises. Tenant agrees at all times to cooperate fully with the
Landlord in the operation of said systems and to abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the proper
functioning and protection of said air conditioning, heating and ventilating
systems. Landlord reserves the right to stop the air conditioning, heating and
ventilating systems when necessary by reason of accident or emergency or for
repairs, alterations, replacements or improvements, which in the judgment of
Landlord are desirable or necessary, until said repairs, alterations,
replacements or improvements shall have been completed. Landlord shall have no
responsibility or liability for failure to supply air conditioning, heating or
ventilating during said period mentioned just above or when prevented from so
doing by any cause beyond Landlord's control or by laws, orders or regulations
of any Federal, State, County or Municipal authorities and Tenant shall be
entitled to no diminution or abatement of Rent by reason of the stoppage of such
air cooling or conditioning, heating or ventilating for any of the aforesaid
reasons whatsoever, nor shall the same in any wise affect the obligation of
Tenant to perform and fulfill its covenants under this Lease. Landlord agrees to
make any repairs to the air conditioning, heating or ventilating system promptly
and with due diligence, provided, however, that during the respective heating or
cooling season, Landlord will exercise its best efforts to complete said repairs
as quickly as possible.
20, SUBLETTING AND ASSIGNING. Tenant shall not assign, sublet, mortgage,
pledge, hypothecate or otherwise transfer or permit the transfer of this Lease
or the interest of Tenant in this Lease in whole or in part, by operation of law
or otherwise, nor shall Tenant permit the use of the Premises by any parties
other than Tenant and its employees, without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole discretion. If Tenant
is a corporation, any dissolution, merger, consolidation or reorganization of
Tenant or sale or transfer of a controlling percentage of the capital stock of
Tenant, whether by a single transaction or event or by cumulative transactions
or events, shall be deemed an assignment of this Lease. If Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or by operation of
law, of any partner or partners owning 51% or more of the partnership interest,
whether by a single transaction or event or by cumulative transactions or
events, or the dissolution of the partners, shall be deemed an assignment of
this Lease.
In the event Tenant intends to assign or sublease all or any portion of
the Premises, Tenant shall take the following actions:
(a) Tenant shall first notify Landlord in writing of its intention
prior to any advertising of same, hiring of brokers or contacting of potential
assignees or subtenants. Such notice shall identify the space proposed to be
assigned or sublet, which space must be a legally leasable unit in compliance
with all applicable ordinances and codes, and shall state the date on which
Tenant requests that the assignment or sublet commence, which date shall be no
less than one hundred eighty (180) days from the date of Tenant's notice.
(b) Landlord shall have thirty (30) days following the receipt of
such notice to notify Tenant whether it elects to recapture the space Tenant has
proposed to assign or sublet. Landlord's failure to send such notice within such
thirty (30) day period shall be deemed to mean Landlord has not elected to
recapture the space.
(c) In the event the Landlord elects to recapture the space, it
shall notify Tenant of its intent by service of a written notice of cancellation
terminating that portion of the Lease covering the space Landlord has chosen to
recapture, which may include all or any lesser portion of the space Tenant has
proposed to assign or sublet. In such event Landlord agrees that the space not
recaptured by Landlord shall be a legally leasable unit. Tenant shall pay all
costs of any construction necessary to accomplish the division of the space, if
necessary. The termination of this Lease as to the recaptured space shall be
effective on the date specified by Landlord in its notice.
(d) In the event that Landlord elects to recapture any proposed
space under these provisions, the Annual Base Rent and Tenant's Proportion shall
be adjusted as of the termination date designated in the cancellation notice on
the basis of the number of square feet of Net Rentable Area retained by Tenant,
if any, in proportion to the number of square feet of Net Rentable Area
contained in the Premises, as described in this Lease, and this Lease as so
amended shall continue thereafter in full force and effect.
(e) In the event that Landlord elects not to recapture part or all
of the proposed assignment or sublet space, Landlord shall so notify Tenant as
set forth in (b) above. Provided Tenant is not in default under this Lease and
has fully complied with all of the terms of this Section 20, Tenant may then
proceed to contact potential assignees or subtenants and shall have the option
to assign or sublet the non-recaptured space in accordance with the following
provisions:
(i) Tenant shall bear all costs and expenses associated
with the assignment or subletting, including, without limitation,
any and all costs and expenses incurred by Landlord (if any).
(ii) Upon locating a suitable potential assignee or
subtenant, Tenant shall notify Landlord in writing. Such notice
shall state
15
the name and address of the proposed assignee or subtenant and shall
include a true and complete copy of the proposed assignment or
sublease. Tenant also shall deliver to Landlord copies of all
financial statements, credit reports and other such information in
its possession relating to the prospective assignee or subtenant. At
Landlord's request, Tenant shall promptly secure and deliver any
additional information Landlord deems necessary in order to evaluate
the potential assignee or subtenant.
(iii) Landlord shall have fifteen (15) days from the
date of its receipt of the last information provided by Tenant on
the proposed assignee or subtenant during which to evaluate such
assignee or subtenant and decide whether to consent to the
assignment or sublease. Landlord shall notify Tenant of its decision
in writing, and, in the event that Landlord does not consent to the
assignment or sublease, its notice thereof to Tenant shall include
an explanation of its reasons for denying consent. In the event that
Landlord consents to the assignment or sublease, Tenant may execute
the assignment or sublease and collect all rents due thereunder
subject to the provisions of Subparagraph (iv) below.
(iv) Following the execution of any assignment sublease
to which Landlord has consented and throughout the term thereof,
Tenant shall pay Landlord all amounts received by Tenant in
connection with such assignment or subletting in excess of the Rent
Tenant is obligated to pay Landlord hereunder.
(v) The use for which the Premises or any part thereof
may be assigned or sublet shall be only to promote, encourage and
stimulate scientific research and development, including the use of
the Premises for offices and other facilities incidental to or
supportive of such scientific research and development, and for no
other purpose.
(vi) The granting of consent by Landlord to Tenant's
assignment or subletting of the Premises or any part thereof shall
not release Tenant from direct and primary liability under this
Lease for the performance of all of the covenants, duties and
obligations of Tenant hereunder, and Landlord shall retain its
rights to enforce the provisions of this Lease against Tenant or any
assignee or subtenant without demand upon or proceeding in any way
against any other person. Consent to a particular assignment or
sublease shall not be deemed a consent to any other or subsequent
transaction.
21. NOTICES. All notices to be given by one party to the other party under
this Lease shall be given in writing, mailed or delivered as follows:
(a) To Landlord in care of ▇▇▇▇ Realty Services, Inc. at ▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and after commencement of the term at the
address to which Rent is payable or to such other person at such other address
designated by notice sent by Landlord to Tenant.
(b) To Tenant at the place set forth in Section 1(c) until Tenant
takes possession of the Premises, and thereafter at the Premises or at such
other address designated by notice to Landlord.
Mailed notices shall be sent by United States Certified or
Registered Mail, postage prepaid: Such notice shall be deemed to have been given
upon posting in the United States mails.
22. QUIET POSSESSION. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall, at all times
during the term herein granted, peacefully and quietly have and enjoy the
possession of the Premises without any hindrance by, from or through Landlord,
its successors or assigns, subject to the terms and conditions of this Lease.
23. MISCELLANEOUS
(a) Succession. 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 and successors, and assigns.
(b) Payments. All amounts payable to the Landlord hereunder shall,
at the election of Landlord, be deemed to be Rent and if the date of payment is
not expressly fixed herein, shall be paid
16
within ten (10) days from the date Landlord renders statements of account
therefor and shall bear interest at the rate of two percent (2%) over the
reference rate per annum as quoted from time to time by Continental Bank, N.A.
from the date such payment is due until paid. In the event Continental Bank,
N.A. no longer publishes a reference rate, then Landlord shall substitute a
similar rate in lieu thereof.
(c) Time of the Essence. Time is of the essence under this Lease.
(d) Estoppel Certificates. Tenant shall deliver to Landlord or to
its mortgagee, auditors, or any prospective purchaser when requested by
Landlord, a certificate to the effect that this Lease is in full force and
effect and has not been amended and that Landlord is not in default thereunder,
or stating specifically any exceptions thereto, the date to which Rent and other
charges have been paid, and such facts as such mortgagee customarily requests.
Failure to give such a certificate within two (2) weeks after written request
shall be conclusive evidence that this Lease is in full force and effect and has
not been amended and Landlord is not in default and Tenant shall be estopped
from asserting any defaults known to it at that time.
(e) Relocation of Tenant. At any time hereafter. Landlord may
relocate Tenant to another area in the Park (herein referred to as "the new
premises") provided the new premises shall be similar to the Premises in area
and use for Tenant's purposes, and if Tenant is already in occupancy of the
Premises, then in addition:
(i) Landlord shall pay the expense of Tenant for moving
from the Premises to the new premises and for improving the new
premises so that they are substantially similar to the Premises;
(ii) Such move shall be made during evenings, weekends,
or otherwise so as to incur the least inconvenience to Tenant; and
(iii) Landlord shall first give Tenant at least thirty
(30) days' notice before making such change. Tenant shall cooperate
with Landlord in all reasonable ways to permit the necessary action
to make the changes including, by way of example only, designating
locations for furniture and equipment, supervising moving of files
or fragile equipment, designating location of telephone outlets, and
listing colors of paint and of flooring desired in the new premises.
If Tenant fails to so cooperate, Landlord shall be relieved of all
responsibility for damage or injury for such move to Tenant or its
property except as caused by Landlord's actual negligence.
(f) Dram Shop. Tenant agrees not to sell, give away or otherwise
dispose of alcoholic liquors on the Premises except with Landlord's prior
written consent and after Tenant has purchased and paid for Dram Shop insurance
covering Landlord in such reasonable amounts as Landlord designates. Tenant
further agrees to fully and completely indemnify and hold Landlord harmless from
any and all claims, causes of action or otherwise founded on any liability of
Tenant accruing to Landlord under the so called "Illinois Dram Shop Act."
(g) Rent Not Based on Income. It is agreed by Landlord and Tenant
that no rental or other payment for the use, occupancy or utilization of the
Premises demised hereunder shall be, or is, based in whole or in part on the net
income or profits derived by any person from the Building or the Premises so
leased, used, occupied or utilized, and Tenant further agrees that it will not
enter into any sublease, license, concession or other agreements for any use,
occupancy or utilization of the Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the Premises so leased, used,
occupied or utilized.
(h) Force Majeure. The time of performance of any of the obligations
of Landlord hereunder shall be extended to the extent of any delay which occurs
because of fire, lightning, earthquake, war, enemy action, acts of God or
similar catastrophe, or because of the unavailability of material, strikes,
lockouts or other causes beyond Landlord's reasonable control. Landlord shall
use due diligence to remove any such obstacle to its performance hereunder, and
at the expiration or removal of such obstacle, Landlord's obligations hereunder
shall remain in full force and effect.
(i) Headings. The captions of the paragraphs or sections of this
Lease are inserted only as a matter of convenience and for reference. Said
captions are not intended and shall not be construed so as to define, limit or
describe the scope of this Lease or the scope or intent of any paragraph or
section hereof.
(j) Submission of Lease for Examination. Submission of this Lease
for examination shall not bind Landlord or Tenant in any manner, and no
obligations of Landlord or Tenant shall arise until this Lease is executed and
delivered by Landlord and Tenant.
(k) Brokers. Tenant represents that no broker was involved in or was
the procuring cause of this Lease who is entitled to a broker's fee, commission
or other compensation except for the broker named in Section 1(p). Tenant will
indemnify, defend and hold Landlord harmless from any
17
claims for such fees, commissions or other compensation which may be claimed in
contradiction of this representation.
(l) Entire Agreement. This Lease constitutes the entire agreement
between the parties hereto, and there are no collateral understandings,
representations or agreements other than those contained herein. No modification
or amendment of this Lease shall be binding or effective except as made in
writing signed by the parties hereto.
(m) Landlord's Performance of Tenant's Obligations. In the event
Tenant fails to perform any of its obligations hereunder, Landlord may, at its
sole election, but need not, perform such obligations and the entire cost and
expense to Landlord therefor, including reasonable expenses, costs and legal
fees, shall be immediately due and payable by Tenant as Additional Rent
hereunder.
(n) Application of Funds. Landlord, at its own election, may apply
any funds received from Tenant as payment of any sums due hereunder.
(o) Definition of Landlord. Landlord, as used in this Lease, so far
as covenants and liabilities on the part of Landlord are concerned, shall be
limited to mean and include the owner or owners at the time or times in question
of the beneficial or of the fee title to the Building. In the event of any
transfer or transfers of Landlord's interest in the Premises or in the Building,
other than a transfer for collateral purposes only, the transferor (and in the
case of any subsequent transfers the last transferor), its agent or agents,
beneficiaries, partners and their respective heirs, legal representatives,
successors and assigns shall be automatically discharged and relieved of any and
all obligations and liabilities on the part of Landlord contained in this Lease
accruing from and after the date of such transfer and Tenant agrees to attorn to
the transferee.
(p) No Waiver. No failure by Landlord to insist upon the strict
performance of any term of this Lease or exercising the right, power or remedy
in connection therewith, and no acceptance of full or partial Rent or other
payment during the continuance of any such breach shall constitute a waiver of
any such breach or such Lease term. Any waiver by Landlord shall only be
effective if evidenced by a written instrument executed by Landlord, and any
such waiver shall be limited only to the particular and specific item at that
time waived. No receipt of money by Landlord from 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
reinstate, continue or extend the term of this Lease or affect any such notice,
demand or suit.
(q) Severability. If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
(r) Financing Modifications. Should any financing require a
modification or modifications to this Lease, which modification or modifications
will not bring about any increased cost or expense to Tenant or in any other way
substantially change the rights and obligations of Tenant hereunder, then, and
in such event, Tenant agrees that this Lease may be so modified.
(s) Employees. If Landlord so requests at any time or from time to
time during the term of this Lease, Tenant will provide to Landlord reasonable
information relating to employees that Tenant anticipates will be employed at
the Premises, for the purpose of assisting Landlord in carrying out any job
training programs relating to the Park that Landlord may adopt or implement from
time to time.
(t) No Discrimination. Tenant hereby agrees that it will not
discriminate in its operations carried on in the Premises against any employee
or applicant for employment because of race, color, religion, sex or national
origin.
(u) No Prepaid Rent. Tenant will not pay at any time and Landlord
will not accept at any time prepaid Rent for a period greater than twelve (12)
months.
(v) Riders. All riders, exhibits and attachments to this Lease,
initialled by Landlord and Tenant, are hereby made a part of this Lease as
though inserted in this Lease.
24. LANDLORD'S LIABILITY. Any and all covenants, undertakings and
agreements herein made on the part of Landlord are made and intended not as
personal covenants, undertakings and agreements or for the purpose of binding
Landlord personally or the assets of Landlord except Landlord's interest in the
Premises and the Building, but are made and intended for the purpose of binding
only Landlord's interest in the Premises and the Building, as the same may from
time to time be encumbered. No personal liability or personal responsibility is
assumed by, nor shall at any time be asserted or enforceable against Landlord or
its agent or agents, beneficiaries, partners or their respective heirs, legal
representatives, successors and assigns on account of this Lease or on account
of any
18
covenant, undertaking or agreement of Landlord in this Lease contained, all such
liability being specifically waived by Tenant.
Executed by the parties hereto the day first above set forth.
LANDLORD: CHS EVANSTON ONE ASSOCIATES, L.P.
---------------------------------
By: ▇▇▇▇ REALTY SERVICES, INC.,
as agent for Landlord
By /s/ [ILLEGIBLE]
---------------------------------------
Its Vice President
---------------------------------------
TENANT: Immtech International, Inc.
---------------------------------------
By /s/ [ILLEGIBLE]
---------------------------------------
Its President
---------------------------------------
19
[FLOOR PLAN OMITTED]
EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, lobbies, passages, elevators and stairways shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress and
egress from and to Tenant's Premises. Landlord shall in all cases retain the
right to control or prevent access thereto of all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, peace, character or
reputation of the building or of any of the Tenants.
2. The toilet rooms, water closets, sinks, faucets, plumbing or other service
apparatus of any kind shall not be used by Tenant for any purposes other than
those for which they were installed, and no sweepings, rubbish, rags, ashes,
chemicals or other refuse or injurious substances shall be placed therein or
used in connection therewith by Tenant or left by Tenant in the lobbies,
passages, elevators or stairways.
3. Nothing shall be placed by Tenant on the outside of the building or on its
windowsills or projections. Skylights, windows, doors and transoms shall not be
covered or obstructed by Tenant, and no window shades, blinds, curtains,
screens, storm windows, awnings or other materials shall be installed or placed
on any of the windows or in any of the window spaces, except as approved in
writing by Landlord.
4. No sign, lettering, insignia, advertisement or notice shall be inscribed,
painted, installed or placed on any windows or in any window spaces or any other
part of the outside or inside of the Building, unless first approved in writing
by Landlord.
5. Tenant shall not place additional locks upon any doors and shall surrender
all keys for all locks at the end of the tenancy.
6. Tenant shall not do or commit, or suffer to be done or committed, any act or
thing whereby, or in consequences whereof, the rights of other tenants will be
obstructed or interfered with, or other tenants will in any other way be injured
or annoyed. Tenant shall not use nor permit to be used or kept in the Building
any matter having an offensive odor, nor any kerosene, gasoline, benzine,
camphene, fuel or other explosive or highly flammable material. Tenant shall
neither bring, keep nor use in the Building any chemical reagent except as the
same may be a component of commercial products normally used or consumed by
occupants of office Buildings. No birds, dogs, monkeys, rats, mice, fish or
other animals shall be brought into or kept in or about the demised Premises. No
bicycles shall be brought into the Building or the Premises.
7. In order that the Premises may be kept in a good state of preservation and
cleanliness, Tenant shall, during the continuance of its possession, permit the
Landlord's employees and contractors and no one else to clean the Premises.
Landlord shall be in no way responsible to Tenant for any damage done to
furniture or other effects of Tenant or others by any of Landlord's employees,
or any other person, or for any loss of Tenant's employees, or for any loss of
property of any kind in or from the Premises, however occurring. Tenant shall
see each day that the windows are closed and the doors securely locked before
leaving the Premises.
8. If Tenant desires to introduce signalling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices, Landlord shall direct
where and how the same are to be placed, and except as so directed, no
installation, boring or cutting shall be permitted. Landlord shall have the
right to prevent and to cut off the transmission of excessive or dangerous
current of electricity, power surges or annoyances into or through the Building
or Premises and to require the changing of wiring connections or layout at
Tenant's expense, to the extent that Landlord may deem necessary, and further to
require compliance with such reasonable rules as Landlord may establish relating
thereto, and in the event of non-compliance with the requirements or rules,
Landlord shall have the right immediately to cut wiring or do what it considers
necessary to remove the danger, annoyance or electrical interference with
apparatus in any part of the Building. All wires installed by Tenant must be
clearly tagged at the distributing boards and junction boxes and elsewhere where
required by Landlord, with the number of the office to which said wires lead,
and the purpose for which each respectively is used, together with the name of
the concern, if any, operating same. Tenant shall not engage in any activity
which may cause unusual noise or vibration in the Building.
9. A directory or a bulletin board on the ground floor shall be provided by
Landlord, on which the name of Tenant shall be placed.
10. No furniture, packages, equipment, supplies or merchandise of Tenant will be
received in the Building, or carried up or down in the elevators or stairways,
except during such hours as shall be designated by Landlord, and Landlord in all
cases shall also have the exclusive right to prescribe the method and manner in
which the same shall be brought in or taken out of the Building. Landlord shall
in all cases have the right to exclude heavy furniture, safes, and other
articles which may be hazardous from the Building or to require them to be
located at designated places in the Premises. The
B-1
cost of repairing any damages to the Building caused by taking in or out
furniture, safes or any other articles, or any damage caused while the same
shall be in the Premises, shall be paid by Tenant.
11. Without Landlord's written consent, nothing shall be fastened to, nor shall
holes be drilled or nails or screws driven into walls or partitions; nor shall
walls or partitions be painted, papered or otherwise covered or moved in any way
or marked or broken; nor shall any connection be made to electric wires for
running fans or motors or other apparatus, devices or equipment; nor shall
machinery of any kind other than customary small business or Landlord approved
laboratory equipment machines be allowed in the Premises; nor shall Tenant use
any other method of heating, air conditioning or air cooling than that provided
by Landlord. Telephones, switchboards and telephone wiring and equipment shall
be placed only where designated by Landlord. No mechanics shall be allowed to
work in or about the Building other than those employed by Landlord without the
written consent of Landlord first having been obtained.
12. Access to the Premises may be had by Tenant during normal business hours
which shall be Monday through Friday between the hours of 8:00 a.m. and 6:00
p.m., excepting legal holidays. At times other than when permitted as stated
above, access may be obtained only with Landlord's permission. Landlord shall in
no case be responsible for the admission or exclusion of any person. In case of
invasion, hostile attack, insurrection, mob violence, riot, public excitement or
other commotion, explosion, fire or any casualty Landlord reserves the right to
bar or limit access to the building for the safety of occupants or protection of
property.
13. Landlord reserves the right to rescind, suspend or modify any rules or
regulations and to make other such rules or regulations as, in Landlord's
judgment, may from time to time be necessary for the safety, care, maintenance,
operation and cleanliness of the Building, or for the preservation of good order
therein. Notice by any action by Landlord referred to in this paragraph, given
to Tenant, shall have the same force and effect as if originally made a part of
the foregoing Lease. But new rules or regulations will not, however, be
unreasonably inconsistent with the proper and rightful enjoyment of the Premises
by Tenant under the Lease.
14. The use of rooms as sleeping quarters is prohibited at all times.
15. The delivery of towels, ice, water, food, beverages, newspapers and other
supplies will be permitted only under the direction, control and supervision of
Landlord.
16. The Tenant shall not advertise the business, profession or activities of the
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and shall
not use the name of the Building for any purpose other than that of business
address of the Tenant, and shall never use any picture or likeness of the
Building in any circulars, notices, advertisements or correspondence without the
Landlord s express consent in writing.
17. The Tenant shall not overload any floor. Safes, furniture and all large
articles shall be brought through the Building and into the Premises at such
times and in such manner as the Landlord shall direct and at the Tenant's sole
risk and responsibility. The Tenant shall list all furniture, equipment and
similar articles to be removed from the Building, and the list must be approved
by Landlord before any articles may be removed.
18. Unless the Landlord gives advance written consent in each and every
instance, the Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heating device or
air-conditioning apparatus which may effect the performance or operation of the
Building air conditioning, heating and ventilation system, in or about the
Premises, or carry on any mechanical which may business therein, or use the
Premises for housing accommodations or lodging or sleeping purposes, or do any
cooking therein or install or permit the installation of any vending machines or
use any illumination other than electric light.
19. The Tenant shall not place or allow anything to be against or near the glass
partitions, doors or windows of the Premises which may diminish the light in, or
be unsightly from the exterior, public halls or corridors of the Building.
20. Tenant shall comply with all rules and regulations promulgated from time to
time by the manager of the Park which concern the use of the Park by Tenant, its
employees, agents and visitors, including but not limited to those terms and
conditions of that certain Environment and Safety Policy of the Park, as amended
from time to time, and those relating to the use and disposal of any hazardous
or toxic materials or substances.
21. The rules and regulations are not intended to give tenant any rights or
claims in the event that Landlord does not enforce any of them against other
tenants or if Landlord does not have the right to enforce them against any other
tenants and such non-enforcement will not constitute a waiver as to Tenant.
B-2
RIDER TO LEASE
This Rider is entered into as of December 5, 1991, by and between
▇▇▇▇ Realty Services, Inc. as agent for Landlord, and Immtech International,
Inc., as Tenant.
1. Equipment, Fixtures and Furnishings. All equipment, fixtures and
furnishings located in the Premises, as described in the inventory attached
hereto as Exhibit B, are attached to and made part of the Premises, and shall
not be removed from the Premises at the termination of the Lease or at any time
prior to the termination of the Lease. Tenant shall maintain said equipment,
fixtures and furnishings in good working order, and upon termination of the
Lease, shall return to the Landlord all equipment, fixtures and furnishings in
good working order, ordinary wear and tear excepted. All equipment, fixtures and
furnishings shall be provided to Tenant by Landlord without warranty or
guarantee as to their condition.
▇▇▇▇ REALTY SERVICES, INC TENANT: IMMTECH INTERNATIONAL, INC.
as agent for Landlord
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------- -------------------------------
Its: Vice President Its: President
--------------------- -------------------------------
Date: 12-5-91 Date: Dec 2, 1991
-------------------- ------------------------------
EXHIBIT B
INVENTORY OF PREMISES
Conference Room #106:
Item Safety Diagnostics Control #
---- ----------------------------
1 - 5.5 ft wood & glass display cabinet 020
1 - 8 ft conference table 002
1 - 10.5 ft counter-top table 021
1 - 6 ft open metal shelf 001
2 - 6 foot wood open shelf 019, 018
1- metal cabinet 017
1 - voice projector 35 lectern 022
14 - yellow cloth conference chairs
1 - Kodak ektagraphic model ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇:
Item Safety Diagnostics Control #
---- ----------------------------
1 - typing table 074
1 - wood desk with return 028
1 - reception desk chair 040
3 - three-drawer ▇▇▇▇▇ lateral files
with wood cap 037, 038, 039
1 - Amerex halon fire extinguisher
Director's Office #105:
Item Safety Diagnostics Control #
---- ----------------------------
1 - wood desk with return 051
1 - small round conference table 050
1 - open metal shelf 054
1 - microscope table 055
1 - desk chair 057
1 - conference room chair 031
1 - 5 ft wall mounted chalk board 060 60
Office #104:
Item Safety Diagnostics Control #
---- ----------------------------
1 - ▇▇▇▇▇ three drawer lateral file 041
1 - metal desk 042
1 - metal counter-top table 043
1 - desk chair 049
1 - wall mounted cork board
Office #103:
Item Safety Diagnostics Control #
---- ----------------------------
1 - metal desk 064
1 - open metal shelf 066
1 - desk chair 067
2 - black four-drawer file 061, 062
1 - wall mounted cork board
Office #102:
Item Safety Diagnostics Control #
---- ----------------------------
1 - metal desk 071
1 - metal counter-top table 070
1 - two-drawer rust metal file cabinet 069
1 - desk chair 077
1 - open metal shelving 075
1 - orange sofa
1 - wall mounted cork board
Research Lab #110:
Item Safety Diagnostics Control #
---- ----------------------------
approximately 9 ft lab counter-top
with metal cabinets below and above
approximately 7 ft lab counter-top
with metal cabinets below
approximately 6 ft lab counter with
sink with cabinets below
1 - Worthington Diagnostic Milli-R04
Water System 115
1 - Damen/IEC Centerfuge Control 119
1 - metal & glassware display case 089
1 - Environetti Control Environment Room
1 - Justrite flammable cabinet 082
1 - Narco Model 322
1 - counter-top refrigerator 099
1 - Precision Scientific counter-top Waterbath 113
2 - lab stools 090, 091
Quality Control Lab #111:
Item Safety Diagnostics Control #
---- ----------------------------
approximately 15 ft of lab counter top
with wooden cabinets above & below
1 - metal desk 226
1 - Revco refrigerator
1 - 8 ft metal lab counter-top table 222
1 - swivel chair 231
1 - Contamination Control Inc. stand
alone fume hood 234
two green metal cabinets 159, 160
Manufacturing Lab #101:
Item Safety Diagnostics Control #
---- ----------------------------
1 - enclosed Clean Room with fume hood and
1 - 8 ft metal counter-top table
1 - Microvoid II Air Control Unit
1 - Gem Refrigerator Co. - Blood Bank
refrigerator 265
1 - metal shelving unit with sliding doors 262
1 - set of 9 ft lab counter-top with
cabinets below double sided 244, 245
1 - 15 ft wooden counter-top table
1 - stool 257
1 - stool 258
1 - lab chair 230
1 - lab chair 229
1 - 6 ft table 240
1 - lab chair -
1 - stool 256
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment"), dated December 15,
1992, by and among ▇▇▇▇ REALTY SERVICES, INC., as agent for CHS EVANSTON ONE,
LIMITED PARTNERSHIP ("Landlord") and IMMTECH INTERNATIONAL, INC. ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into that certain lease
dated December 5, 1991, (the "Lease") which leases to Tenant certain real
property in the building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
"Building"); and
WHEREAS, Tenant desires to extend the term ("Term") of the Lease,
and Landlord desires to grant such extension to Tenant upon the terms and
conditions contained herein and in the Lease; and
WHEREAS, the parties hereto desire to amend the Lease to reflect
their agreement as hereinafter described.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein, the sum of Ten Dollars ($10.00) by each party in
hand paid to the other and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant intending
to be legally bound, do hereby mutually agree as follows:
1. Extension of Lease Term. Section 1(g) of the Lease is hereby
amended by deleting the date "November 30, 1992" and reinserting the date
"December 31, 1992", thereby changing the expiration date to December 31, 1992.
Thereafter the Lease shall be automatically extended on a quarterly basis with
the following anniversary dates; March 31, 1993; June 30, 1993; September 30,
1993; December 31, 1993. Said extension shall be renewed automatically upon each
anniversary date unless Landlord or Tenant delivers thirty (30) days advance
written notice to the other of its intent to terminate the Lease upon the
anniversary date.
2. Increase in Monthly installments of Annual Base Rent. Section
1(l) of the Lease is hereby amended by deleting the number "$4,182.00" and
reinserting the number "$4,307.46", thereby increasing the monthly installment
of Annual Base Rent to $4,307.46.
3. Full Force and Effect. Except as amended hereby, the Lease shall
remain in full force and effect.
4. Applicable Law. This Amendment will for all purposes be construed
in accordance with and governed by the laws of the State of Illinois applicable
to agreements made and performed wholly therein.
5. Undefined Terms. Unless otherwise defined herein, terms in this
Amendment shall have the meanings ascribed to them in the Lease.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
LANDLORD:
CHS EVANSTON ONE, LIMITED PARTNERSHIP
By: ▇▇▇▇ REALTY SERVICES, INC.
as agent for Landlord
By: /s/ [ILLEGIBLE]
----------------------------------
Its: Vice President
----------------------------------
TENANT:
IMMTECH INTERNATIONAL, INC.
By: /s/ [ILLEGIBLE]
----------------------------------
Its: President 12-7-92
----------------------------------
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Amendment"), dated December 14, 1993, by
and among ▇▇▇▇ REALTY SERVICES, INC. as agent for CHS EVANSTON ONE, LIMITED
PARTNERSHIP ("Landlord") and IMMTECH INTERNATIONAL, INC. ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into that certain lease dated
December 5, 1991, and that certain First Amendment to Lease dated December 15,
1992 (together referred to as the "Lease"), which leases to Tenant certain real
property in the building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
"Building"); and
WHEREAS, Tenant desires to lease additional space within, the Building,
and Landlord desires to lease such additional space to Tenant upon the terms and
conditions contained herein and in the Lease; and
WHEREAS, the parties hereto desire to amend the Lease to reflect their
agreement as hereinafter described.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein, the sum of Ten Dollars ($10.00) by each party in hand paid to
the other and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant intending to be legally
bound, do hereby mutually agree as follows:
1. Leasing of Additional Space. Tenant hereby leases from Landlord and
Landlord hereby leases to Tenant the additional space as shown on Exhibit A
attached hereto and made a part hereof.
2. Increase in Net Rentable Square Feet. Paragraph 1(i) of the Lease is
hereby amended by deleted the number "2,952" and reinserting the number "4,568",
thereby increasing the amount of Net Rentable Area of the Premises (in Square
Feet) to 4,568 square feet.
3. Increase in Monthly Installments of Annual Base Rent. Section 1(l) of
the Lease is hereby amended by deleting the number $4,307.46 and reinserting the
number $6,665.47, thereby increasing the monthly installment of Annual Base Rent
to $6,665.47.
4. Increase in Tenant's Proportion. Paragraph 1(m) of the Lease is hereby
amended by deleting the number "7.29" and reinserting the number "11.27",
thereby increasing Tenant's proportion to 11.27 percent.
5. Condition of Additional Space. Landlord shall deliver additional space
to Tenant in its present condition, as is. Furthermore, all costs associated
with modifications or improvements made to the additional space by the Tenant
will be the responsibility of the Tenant. Tenant must receive prior written
approval by the Landlord for all modifications and improvements made to the
additional space.
6. Delivery of Premises. Not withstanding the provisions of Paragraph 3 of
the Lease, Landlord will deliver the additional space to Tenant on January 1,
1994.
7. Payment of Rent and Additional Rent. Tenant shall pay to Landlord the
amount of Rent, Additional Rent, and any other charges or expenses set forth in
the Lease based on the increased amounts of Net Rentable Square Feet and
Tenant's Proportion set forth in Paragraphs 2, 3 and 4 hereof, respectively, in
accordance with the terms and conditions of the Lease.
8. Full Force and Effect. Except as amended hereby, the Lease shall remain
in full force and effect.
9. Applicable Law. This Amendment will for all purposes be construed in
accordance with and governed by the laws of the State of Illinois applicable to
agreements made and performed wholly therein.
10. Undefined Terms. Unless otherwise defined herein, terms in this
Amendment shall have the meanings ascribed to them in the Lease.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
LANDLORD:
CHS EVANSTON ONE, LIMITED PARTNERSHIP
By: ▇▇▇▇ REALTY SERVICES, INC.
as agent for Landlord
By: /s/ [ILLEGIBLE]
----------------------------------
Its: Vice President
----------------------------------
TENANT:
IMMTECH INTERNATIONAL, INC.
By: /s/ [ILLEGIBLE]
----------------------------------
Its: President
----------------------------------
October 4, 1995
Immtech International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
RE: Office Lease for certain premises at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
between CHS Evanston One Associates,
Limited Partnership (the "Landlord") and
Immtech International, Inc. (the
"Tenant"), dated December 5, 1991 (the
"Lease").
Gentlemen:
We are writing this letter to you in connection with the existing defaults under
the Lease; specifically the failure of Tenant to pay Landlord the sum of
$63,298.86 (the "Default Amount"), which is, as of this date, due and payable
under the terms of the Lease.
As you know, we have discussed this issue extensively, and this letter is
intended to set forth our agreement, and to amend the terms of the Lease.
1. The Premises leased under the Lease shall be Suite 110, with a total
square footage of 2,952.
2. The Annual Base Rent shall be $7,380 (rent for the remaining six-month
term), $5,00 per RSF, which shall be paid in equal monthly installments of
$1,230.00.
3. Any options that Tenant may have had under the Lease to renew the Lease
or expand the Premises are hereby deleted from the Lease.
4. Concurrently with the execution of this letter, Tenant shall pay
landlord the sum of $20,000, which shall be applied towards the Default Amount.
In addition to the monthly payments of Annual Base Rent and Additional Rent
which are required to be paid to Landlord under the terms of the Lease, Tenant
shall pay to the Landlord the sum of $2,000 per month during the remaining term
of the Lease, to applied toward the Default Amount. The failure of Tenant to
make any such payment shall be deemed to be a default under the Lease.
Immtech International, Inc.
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October 2, 1995
Page -2-
5. The term of the Lease shall expire, if not sooner terminated, on
February 29, 1996.
6. Landlord agrees that, from the date hereof until February 29, 1996, it
shall not exercise any remedies under the Lease solely as the result of the
failure of Tenant to pay the Landlord the Default Amount; provided, however,
that nothing herein shall be deemed to be a waiver by Landlord of any other
default by Tenant under the Lease of which Landlord is now aware or of any
future default under the Lease as hereby amended, or be deemed to be a waiver by
Landlord of its claim against Tenant for the balance of the Default Amount.
If this reflects our agreement, please indicate by signing the enclosed copy of
this letter and returning it to the undersigned, by Monday, October 9, 1995.
Sincerely,
/s/ [ILLEGIBLE]
▇▇▇▇ Realty Services, Inc.
as Agent for Landlord
Agreed and accepted this 24th day of October 1995
Immtech International, Inc.
By: /s/ [ILLEGIBLE]
-----------------------
Its C.F.O.
-----------------------
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Immtech International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Office Lease for certain premises at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, between CHS Evanston One Associates, Limited Partnership (the
"Landlord") and Immtech International, Inc. (the "Tenant"), dated December
5, 1991 (the "Lease") and as amended by that certain letter dated October
4, 1995 and as further amended by that certain letter dated February 29,
1996 and as further amended by that certain letter dated September 3,
1996.
Dear ▇▇. ▇▇▇▇▇▇▇▇:
We are writing this letter to you in connection with the renewal of the Lease
for a one year term and all other modifications as set forth herein. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Lease.
As we have discussed and agreed to, this letter is intended to set forth our
agreement and to amend the terms of the Lease.
1. The Lease is hereby extended for a term of one year from December 1,
1996 to November 30, 1997.
2. The rent for the renewal term beginning on December 1, 1996 and
ending on December 31, 1996 shall be $1,913.73. From January 1, 1997
to November 30, 1997 the Annual Base Rent shall increase to
$23,587.50, $12.50 per RSF, which shall be paid in equal monthly
installments of $1,965.63.
3. From and after December 1, 1996, Landlord or Tenant may terminate
the Lease upon 30 days written notice to the other party.
If this reflects our agreement, please indicate by signing the enclosed copy of
this letter and returning it to the undersigned by Tuesday, November 26, 1996.
Very truly yours,
/s/ [ILLEGIBLE]
▇▇▇▇ Realty Services, Inc.
as Agent for Landlord
Agreed and accepted this 21st day of March, 1996.
Immtech International, Inc.
By /s/ [ILLEGIBLE]
------------------------
Its President
------------------------
2
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Immtech International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Office Lease for certain premises at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, between CHS Evanston One Associates, Limited Partnership (the
"Landlord") and Immtech International, Inc. (the "Tenant"), dated December
5, 1991 (the "Lease") and as amended by that certain letter dated October
4, 1995 and as further amended by that certain letter dated February 29,
1996 and as further amended by that certain letter dated September 3, 1996
and as further amended by that certain letter dated November 21, 1996.
Dear ▇▇. ▇▇▇▇▇▇▇▇:
We are writing this letter to you in connection with the renewal of the Lease
for a one year term and all other modifications as set forth herein. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Lease.
As we have discussed and agreed to, this letter is intended to set forth our
agreement and to amend the terms of the Lease.
1. The Lease as hereby extended for a term of one year from December 1,
1997 to November 30, 1998.
2. The rent for the renewal term beginning on December 1, 1997 and
ending on November 30, 1998 shall be $25,474.50, $13.50 per RSF,
which shall be paid in equal month installments of $2,122.88.
3. From and after December 1, 1997, Landlord or Tenant may terminate
the Lease upon 30 days written notice to the other party.
If this reflects our agreement, please indicate by signing the enclosed copy of
this letter and returning it to the undersigned by Tuesday, November 11, 1997.
Very truly yours,
▇▇▇▇ Realty Services, Inc.
as Agent for Landlord
Agreed and accepted this 1st day of December, 1997.
Immtech International, Inc.
By: /s/ [ILLEGIBLE]
-----------------------
Its: President
-----------------------
November 18, 1998
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Immtech International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Office Lease for certain premises at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, between CHS Evanston One Associates, Limited Partnership (the
"Landlord") and Immtech International, Inc. (the "Tenant"), dated
December 5, 1991 (the "Lease") and as amended by that certain letter dated
October 4, 1995 and as further amended by that certain letter dated
February 29, 1996 and as further amended by that certain letter dated
September 3, 1996, and as further amended by that certain letter dated
November 21, 1996, and as further amended by that certain letter dated
December 1, 1997 and as further amended by that certain letter dated
February 4, 1998.
Dear ▇▇. ▇▇▇▇▇▇▇▇:
We are writing this letter to you in connection with the renewal of the Lease
for a one year term and all other modifications as set forth herein. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Lease.
As we have discussed and agreed to, this letter is intended to set forth our
agreement and to amend the terms of the Lease.
1. The Lease is hereby extended for a term of one year from December 1,
1998 to November 30, 1999.
2. The rent for the renewal term beginning on December 1, 1998 and
ending on November 30, 1999 shall be $28,191.78, $14.94 per RSF,
which shall be paid in equal month installments of $2,349.32.
3. From and after December 1, 1998, Landlord or Tenant may terminate
the Lease upon 30 days written notice to the other party.
If this reflects our agreement, please indicate by signing the enclosed copy of
this letter and returning it to the undersigned by Tuesday, December 1, 1998.
Very truly yours,
/s/ [ILLEGIBLE]
▇▇▇▇ Realty Services, Inc.
as Agent for Landlord
Agreed and accepted this 19th day of November 1998.
Immtech International, Inc.
By: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Its: President & CEO
-------------------