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EXHIBIT 10.8
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
OFFICE LEASE
Between
ONE HUNDRED NORTH RIVERSIDE, INC.,
LANDLORD,
And
UNIVERSAL ACCESS, INC.
TENANT
DATED: October 30, 1998
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TABLE OF CONTENTS
PAGE
1. LEASE OF PREMISES 2
2. TERM 2
3. RENT 2
4. ADDITIONAL RENT 3
5. USE OF PREMISES 7
6. SERVICES 8
7. TENANTS OBLIGATIONS 10
8. CONDITION AND CARE OF PREMISES 10
9. TELEPHONE, ELECTRIC AND OTHER SERVICES 11
10. QUIET ENJOYMENT 11
11. LEASE TERMINATION 11
12. RULES AND REGULATIONS 12
13. RIGHTS RESERVED TO LANDLORD 12
14. ALTERATIONS 14
15. ASSIGNMENT AND SUBLETTING 15
16. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT 17
17. DAMAGE OR DESTRUCTION BY CASUALTY 17
18. EMINENT DOMAIN 18
19. SPRINKLERS 19
20. DEFAULT; LANDLORD'S RIGHTS AND REMEDIES 19
21. SUBORDINATION 21
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22. MORTGAGEE AND GROUND LESSOR PROTECTION 22
23. DEFAULT UNDER OTHER LEASES 22
24. INSURANCE 23
25. NONWAIVER 23
26. ESTOPPEL CERTIFICATE 23
27. Intentionally omitted 24
28. REAL ESTATE BROKERS 24
29. NOTICES 24
30. MISCELLANEOUS 24
31. DELIVERY OF POSSESSION 26
32. LANDLORD 26
33. TITLE AND COVENANT AGAINST LIENS 26
34. SECURITY DEPOSIT 26
35. EXCULPATORY PROVISIONS 27
EXHIBIT A Preliminary Plan
EXHIBIT B Legal Description
EXHIBIT C ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Cleaning Specifications
EXHIBIT D Workletter
EXHIBIT E Rules and Regulation
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LEASE
FOR
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
THIS LEASE is made and entered into as of the 30th day of October, 1998,
by and between ONE HUNDRED NORTH RIVERSIDE, INC., a Delaware corporation
("Landlord"), and UNIVERSAL ACCESS, INC., an Illinois corporation ("Tenant").
Landlord and Tenant hereby agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the office space outlined by a red or heavy line on
the plan attached hereto as Exhibit A (the "Premises") located on the
twenty-second (22nd) floor (Suite 2200) of the twenty-three (23) floor office
tower portion ("Tower") of the office building (the "Building") on the land
commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and more
particularly described on Exhibit B attached hereto (the "Land"), subject to the
covenants, terms, provisions and conditions of this Lease. In addition to the
Tower, the Building also contains the following areas (collectively, the
"Pedestal"): (i) six (6) floors to be occupied by Illinois ▇▇▇▇ Telephone
Company, (ii) street level public areas, including, without limitation, a two
(2) story lobby for the Tower and a separate lobby for Illinois ▇▇▇▇ Telephone
Company, and (iii) a four (4) level parking facility. The Building and said
land, together with the improvements now or hereafter located upon said land are
hereinafter collectively referred to as the "Property."
2. TERM. This Lease is for the term commencing on December 1, 1998 (the
"Commencement Date") and ending on December 31, 2000 (the "Term"), both dates
inclusive, unless sooner terminated as hereinafter provided.
3. RENT. All payments due from Tenant hereunder shall be made to
Landlord's building manager, OREE MANAGEMENT INC., at the Office of the
Building, or to such other persons or at such other places as Landlord may
direct from time to time by written notice to Tenant, in coin or currency which
at the time of payment is legal tender for the payment of public and private
debts in the United States of America. Tenant agrees to pay the aggregate of the
following, all of which are hereby declared to be "Rent":
A. Base rent (the "Base Rent") payable in the amount of six thousand
two hundred seventy-nine (6,279) square feet times $6.50 per square foot per
annum for the first twelve (12) months of the Lease Term, thereafter escalating
at the beginning of each successive twelve (12) month period in accordance with
the Base Rent Table below. Base Rent amounts due during the term are set forth
in the Base Rent Table below:
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BASE RENT TABLE
Lease Month Base Annual Rent Base Monthly Rent Base Rent per Square Foot
----------- ---------------- ----------------- -------------------------
1-12 $40,813.50 $3,401.13 $6.50
13-24 $43,953.00 $3,662.75 $7.00
25-26 NA $3,924.38 $7.50
Base Rent shall be payable in monthly installments in the amounts set
forth in the Base Rent Table in advance promptly on the first day of each and
every calendar month during the Term without demand and without any set-off or
deduction whatsoever.
B. Additional Rent (hereinafter defined), including, without
limitation, all estimated monthly installments of the Expense Adjustment Amount;
C. All other sums payable by Tenant to Landlord pursuant to this
Lease; and
D. Interest at the "Default Rate" which shall accrue beginning on
the date each payment of Rent is due until such unpaid Rent is paid. The phrase
"Default Rate" means as of any time the lower of (i) the highest lawful rate of
interest or (ii) an annual rate of interest equal to the sum of three percent
(3%) plus the "Corporate Base Rate" as of such time. The term "Corporate Base
Rate" means that rate of interest announced by NBD/First National Bank of
Chicago ("First") from time to time as its "Corporate Base Rate" of interest,
changing automatically and simultaneously with each change in the Corporate Base
Rate made by First from time to time. Any publication issued or published by
First from time to time or a certificate signed by an officer of First stating
its Corporate Base Rate as of a date shall be conclusive evidence of the
Corporate Base Rate on that date.
Base Rent for the month in which the Term commences shall be paid by
Tenant concurrently with the execution of this Lease. Tenant's covenant to pay
Rent is independent of every other covenant set forth in this Lease.
Landlord may authorize Tenant to take possession of all or any part
of the Premises prior to the beginning of the Term. If Tenant does take
possession pursuant to authority so given, all of the covenants and conditions
of this Lease shall apply to and shall control such pre-Term occupancy. Rent for
such pre-Term occupancy shall be paid upon occupancy and on the first day of
each calendar month thereafter at the rate set forth in Paragraphs A and B of
Section 3 hereof. If the Premises are occupied for a fractional month, Rent
shall be prorated on a per diem basis for such fractional month. The payment of
Rent hereunder is independent of each and every other covenant and agreement
contained in this Lease.
4. ADDITIONAL RENT. In addition to paying the Base Rent specified in
Paragraph A of Section 3 hereof, Tenant shall pay, as "Additional Rent," the
amounts determined pursuant to Paragraph B of this Section 4. Without limitation
of other obligations of Tenant which shall survive the expiration of the
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Term, the obligations of Tenant to pay the Additional Rent provided in this
Section 4 shall survive the expiration of the Term.
A. Definitions. For purposes of this Section 4, each of the
following terms shall have the meaning hereinafter set forth:
(i) "Lease Year" means that period of time from the Commencement
Date of the Term (or such earlier date as Tenant takes possession of the
Premises as hereinafter provided) through the next succeeding December 31 and
each calendar year thereafter.
(ii) "Rentable Area of the Building" shall be deemed to be
758,506 square feet. If, during the Term of this Lease, the actual Rentable Area
of the Building is remeasured or increased or decreased as a result of adding
office space to the Building or removing office space from the Building,
Landlord may change the Rentable Area of the Building and Tenant's Building
Share by written notice to Tenant.
(iii) "Rentable Area of Premises" shall be deemed to be 6,279
square feet.
(iv) "Rentable Area of the Tower" shall be deemed to be 482,639
square feet. If, during the term of this Lease, the actual Rentable Area of the
Tower is remeasured or increased or decreased as a result of adding office space
to the Tower or removing office space from the Tower, Landlord may change the
Rentable Area of the Tower and Tenant's Tower Share by written notice to Tenant.
(v) "Tenant's Building Share" means eighty-six one hundredths
percent (.86%), which is the percentage obtained by dividing the Rentable Area
of the Premises by Ninety-Six and 7/10 Percent (96.7%) of the Rentable Area of
the Building.
(vi) "Tenant's Tower Share" means one point thirty-seven one
hundredths percent (1.37%) which is the percentage obtained by dividing the
Rentable Area of the Premises by Ninety-Five Percent (95%) of the Rentable Area
of the Tower.
(vii) "Operating Expenses" means Taxes (as hereinafter defined)
and all costs, expenses, disbursements of every kind, nature or description
(including, but not limited to, a reasonable management fee) which Landlord or
its beneficiaries shall pay or become obligated to pay in connection with the
ownership, management, operation, maintenance, repair and replacement of the
Property and the Building, and of the personal property, fixtures, machinery,
equipment, systems and apparatus located therein or used in connection
therewith, including off-site expenses except the following:
(a) Costs of alternations of any premises in the Building
for tenants of the Building;
(b) Costs of capital improvements to the Property, except
that Operating Expenses shall include the cost during the Term, as
reasonably amortized by Landlord with interest on the unamortized
amount, at a rate equal to Landlord's then applicable borrowing rate as
determined in good faith by Landlord, of (1) any capital improvement
completed after
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the date of substantial completion of the core and shell of the
Building ("Completion of the Building") which reduces any component
cost included within Operating Expenses, and (2) any capital
improvements made to keep the Property in compliance with applicable
governmental laws, ordinances, rules and regulations;
(c) Interest and principal payments on mortgages and other
debt costs and depreciation, except that Operating Expenses shall
include depreciation, interest and debt costs with respect to
machinery, equipment, systems, property or facilities first installed
in or used in connection with the Property after Completion of the
Building, if one of the principal purposes of such installation or use
was to reduce other items of Operating Expense;
(d) Ground rental payments;
(e) Leasing commissions or fees;
(f) Costs incurred by Landlord as a result of any
violation of law committed by Landlord or any breach of contract
committed by Landlord;
(g) Landlord's marketing expenses; and
(h) Costs incurred by Landlord to enforce Landlord's
rights under leases of space in the building (including attorney fees),
unless such enforcement action is for the benefit of other tenants of
the Building.
If the Building is not fully occupied during all or any portion of any
calendar year, then, at Landlord's election, those items of Operating Expenses
for such year that vary depending on the level of occupancy in the Building
shall be adjusted to an amount that Landlord in good faith determines is the
amount they would have been for such calendar year had the Building been
completed and fully occupied throughout the entire year.
"Operating Expenses" for a Lease Year or period shall mean those
Operating Expenses reasonably allocable to such Lease Year or period as
determined by Landlord in the reasonable exercise of its discretion without
regard to when such Operating Expenses are incurred or paid
(viii) "Building Operating Expenses" means Operating Expenses
less Tower Operating Expenses.
(ix) "Tower Operating Expenses" means all Operating Expenses
incurred by Landlord in providing to the Tower heating, ventilation and
air-cooling, passenger and freight elevator service, janitor services, garbage
removal and building supplies.
(x) "Tenant's Share of Operating Expenses" means the sum of (a)
Tenant's Building Share of Building Operating Expenses plus (b) Tenant's Tower
Share of Tower Operating Expenses.
(xi) "Taxes" means all federal, state and local governmental
taxes, assessments and charges (including transit, transit district or special
district taxes or assessments) of any kind or
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nature, whether general, special, ordinary or extraordinary, which Landlord or
its beneficiaries shall pay or become obligated to pay because of or in
connection with ownership, leasing, management, construction, development,
control or operation of the Property or any part thereof or of the personal
property, fixtures, machinery, equipment, systems and apparatus located therein
or used in connection therewith, including, without limitation, all ad valorem
taxes and lease taxes, if any. The amount included in Taxes for any Lease Year
or other annual period shall be the amount due and payable during that Lease
Year or period without regard to which year such tax is attributable (e.g., the
taxes includable in Taxes for 1998 shall be the tax designated as 1997 taxes,
because they are due and payable in 1998), except that if any special assessment
payable in installments is levied against the Property, Taxes for any Lease Year
or annual period shall include only the installments of such assessments and any
interest thereon payable in such year or period (all without regard to any right
to pay or payment of any such special assessment in a lump sum or single
payment). If the tax bills for a Lease Year are not available at the time any
payment is required hereunder on account of Operating Expenses for such Lease
Year, the amount of such taxes may be estimated by Landlord. In determining the
amount of Taxes for any Lease Year, there shall be deducted the amount of any
refund of taxes received by Landlord during such Lease Year, but only to the
extent such refund relates to Taxes for a period within the Term. Taxes shall
not include any federal or state franchise, capital stock, inheritance, income
or estate taxes, except that if a change occurs in the method of taxation
resulting in the substitution of any such taxes for any Taxes as hereinabove
defined, such substituted taxes shall (to the extent of the substitution) be
included in Taxes. Taxes include legal fees, court costs and expenses for the
contest of or protest of any Taxes or for seeking or obtaining any refund or
reduction of Taxes.
B. Expense Adjustment.
(i) Tenant shall pay as Additional Rent an amount (the "Expense
Adjustment Amount") equal to Tenant's Share of Operating Expenses for each Lease
Year, except that the Expense Adjustment Amount for any Lease Year that is not a
complete twelve month year shall be prorated on a daily basis.
(ii) On or about the commencement of each Lease Year, Landlord shall
notify Tenant of Landlord's estimate of the Expense Adjustment Amount for such
Lease Year and Tenant shall pay such amount in equal monthly installments on the
first day of each calendar month during such Lease Year. If at one or more times
during any such Lease Year Landlord revises its estimate of the Expense
Adjustment Amount for such Lease Year, Landlord may notify Tenant of such
revised estimate and of the increase or decrease in such monthly payments
thereafter payable during such Lease Year necessary to cause the total monthly
payments during such Lease Year to equal Landlord's then current estimate of the
Expense Adjustment Amount for such Lease Year, and Tenant shall thereafter pay
such revised monthly payment amount on the first day of each calendar month
thereafter during such Lease Year. Each such estimate provided by Landlord shall
show separately the amount thereof allocable to Taxes and the amount thereof
allocable to Operating Expenses other than Taxes.
(iii) Following the close of each Lease Year, Landlord shall furnish
to Tenant a statement setting forth the actual Expense Adjustment Amount for
such Lease Year (exclusive of Taxes) and, within thirty (30) days after receipt
of such statement, Tenant shall pay the excess, if any, of such actual Expense
Adjustment Amount (exclusive of Taxes) for such Lease Year as shown in said
statement over the amount of the payments theretofore made by Tenant with
respect to the
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Expense Adjustment Amount (exclusive of Taxes) for such Lease Year based upon
Landlord's estimates.
(iv) After Landlord receives the relevant tax bills for each Lease
Year, Landlord shall also furnish to Tenant a statement setting forth the actual
amount of Taxes for such Lease Year and, within thirty (30) days after receipt
of such statement, Tenant shall pay the excess, if any, of such actual amount of
Taxes for such Lease Year as shown in said statement over the amount of the
payments theretofore made by Tenant with respect to Taxes for such Lease Year
based upon Landlord's estimates.
(v) If the total estimated monthly payments paid by Tenant for any
Lease Year exceeds the actual Expense Adjustment Amount for such Lease Year,
such excess shall be credited against payments due or next becoming due
hereunder. Tenant or its representative shall have the right to examine
Landlord's books and records relative to Operating Expenses during normal
business hours at any time within ten (10) business days following the
furnishing by Landlord to Tenant of such statement. Unless Tenant shall, by
notice to Landlord, take exception to any item in such statement within twenty
(20) business days after the furnishing of said statement, said statement shall
be final and binding upon Tenant. Any amount due to Landlord as shown in said
statement, whether or not written exception is taken hereto, shall be paid by
Tenant within thirty (30) days after Landlord shall have submitted the notice,
without prejudice to any such written exception. If Tenant timely gives notice
of such exception, a statement as to the proper amount of Additional Rent shall
be given by Landlord's independent certified public accountant which shall be
final and conclusive. Tenant agrees to pay the cost of such statement unless it
is determined Landlord's original determination of actual (as distinguished from
estimated) Operating Expenses was in error by more than five percent (5%) of
said actual Operating Expenses.
5. USE OF PREMISES. Tenant shall use and occupy the Premises for
general office purposes, and for no other use or purpose. Tenant shall not use
or occupy the Premises or permit the use or occupancy of the Premises for any
purpose or in any manner which (i) is unlawful or in violation of any applicable
legal or governmental requirement, ordinance or rule; (ii) may be dangerous to
persons or property; (iii) may invalidate or increase the amount of premiums for
any policy of insurance affecting the Property, and if any additional amounts of
Insurance premiums are so incurred, Tenant shall pay to Landlord the additional
amounts on demand; or (iv) may create a nuisance, disturb any other tenant of
the Building or injure the reputation of the Building.
Tenant shall not exhibit, sell or offer for sale, use, rent or exchange
in or from the Premises or on the Property any article, thing or service except
those ordinarily embraced within the use of the Premises specified herein
without the prior written consent of Landlord. Tenant shall report all peddlers,
solicitors and beggars promptly to the Office of the Building or as Landlord
otherwise requests.
Tenant shall not install or operate any refrigerating (except small
refrigerators), heating (except microwave ovens) or air-cooling apparatus or
carry on any mechanical business without the prior written consent of Landlord;
use the Premises for housing, lodging or sleeping purposes or for any immoral or
illegal purposes; permit preparation or warming of food in the Premises (warning
of coffee and individual lunches of employees or other microwave warming
excepted); permit food to be brought into the Premises for sale or consumption
therein, except coffee and individual lunches of employees, without the prior
written consent of Landlord; or permit the manufacture, sale, purchase or use of
any spirituous, fermented, intoxicating or
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alcoholic liquors in the Premises or on the Property. Landlord may in its sole
discretion refuse such permission or impose any conditions in granting it, and
revoke it at will.
Tenant shall comply with all laws, governmental standards and
regulations applicable to Tenant or to the Premises in respect of occupational
health and safety, hazardous waste and substances and environmental matters.
Tenant shall promptly notify Landlord of its receipt of any notice of a
violation of any such law, standard or regulation. Tenant hereby agrees to
indemnify and hold Landlord harmless from all loss, cost, damage and expense
incurred by Landlord on account of Tenant's failure to perform the obligations
of this paragraph.
6. SERVICES. So long as Tenant is not in default, Landlord shall
furnish the following services, the cost of which shall all be deemed Operating
Expenses (except to the extent to be paid entirely by Tenant, as hereinafter
provided):
A. Heat and Air-Cooling. Landlord shall furnish air-cooling and heat
when necessary to provide a temperature condition required, in Landlord's
judgment, for comfortable occupancy of the Premises under normal business
operations, daily from 8:00 A.M. to 6:00 P.M. and Saturdays from 8:00 A.M. to
1:00 p.m., Sundays and Holidays (as defined on Schedule I attached hereto)
excepted. Tenant will be charged for all heating and cooling requested and
furnished before or after these hours at rates from time to time established by
Landlord (currently $85.00 per hour). Wherever heat generating machines or
equipment are used by Tenant in the Premises, which affect the temperature
otherwise maintained by the air-cooling system, Landlord reserves the right to
provide and install supplementary air conditioning units in the Premises, and
the cost of providing, installing, operating and maintaining such units shall be
paid by Tenant as Additional Rent within ten (10) days after Landlord's demand.
Landlord's agreements hereunder are subject to governmental restrictions on
energy use.
B. Water. Landlord shall furnish cold water in common with other
tenants from City of Chicago mains for drinking, lavatory and toilet purposes
drawn through fixtures installed by the Landlord, or by Tenant in the Premises
with Landlord's written consent, and hot water in common with other tenants for
lavatory purposes from regular Building supply. Tenant shall pay Landlord as
Additional Rent for the cost of water furnished for any other purpose at rates
fixed by Landlord. Tenant shall not waste or permit the waste of water.
C. Window Washing. Landlord shall furnish window washing of all
windows in the Premises, both inside and out, weather permitting, semi-annually.
D. Janitor Service. Landlord shall furnish janitor and cleaning
service in accordance with the specifications attached hereto as Exhibit C in
and about the Premises, Saturdays, Sundays and holidays excepted. Tenant shall
not provide any janitor services or cleaning without the Landlord's prior
written consent and then only subject to supervision of Landlord (but not as
agent or servant of Landlord) and at Tenant's sole responsibility, cost and
expense, and by a janitor or cleaning contractor or employees at all times
satisfactory to Landlord.
E. Elevator Service. Landlord shall furnish passenger elevator
service in common with Landlord and other tenants, daily from 8:00 A.M. to 6:00
P.M. (Saturdays from 8:00 A.M. to 1:00 P.M.), Sundays and holidays excepted, and
freight elevator service in common with Landlord and other tenants, daily from
8:00 A.M. to 12:00 P.M. and from 1:00 P.M. to 4:00 P.M.; Saturdays, Sundays and
holidays excepted. Any use of the freight elevator service by Tenant and
contractors and employees of Tenant shall
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be at Tenant's sole responsibility and expense. Such normal elevator service,
passenger or freight, if furnished at other times shall be optional with
Landlord and shall never be deemed a continuing obligation. Landlord, however,
shall provide limited passenger elevator service at all times such normal
passenger service is not furnished. Operator-less automatic elevator service
shall be deemed "elevator service" within the meaning of this paragraph.
F. Extra or Additional Services. Landlord shall not be obligated to
furnish any services other than those services specified in Sections A through E
of this Section 6 or to furnish such services at times other than as specified
in such Sections. Landlord shall provide such extra or additional services as is
reasonably possible for the Landlord to provide, and as the Tenant may from time
to time request, within a reasonable period after the time such extra or
additional services are requested. Tenant shall, for such extra or additional
services, pay one hundred twenty percent (120%) of Landlord's actual cost
reasonably incurred in providing them, except that after-hours heating and
air-cooling shall be at Landlord's scheduled rate charges for such services, all
such amounts to be considered Additional Rent hereunder. All charges for such
extra or additional services shall be due and payable at the same time as the
installment of Base Rent with which they are billed, or if billed separately,
shall be due and payable within ten (10) days after such billing. Any such
▇▇▇▇▇▇▇▇ for extra or additional services shall include an itemization of the
extra or additional services rendered, and the charge for each such service.
G. Landlord's Right to Discontinue Services. Failure by Tenant to
promptly pay Landlord's proper charges for water, or other services shall give
Landlord, upon not less than the thirty (30) days' notice, the right to
discontinue furnishing the services, and no such discontinuance shall be deemed
an eviction or disturbance of Tenant's use of the Premises or render Landlord
liable for damages or relieve Tenant from performance of Tenant's obligations
under this Lease.
H. Interruption of Services. Except for the limited abatement of
rent upon a fire or casualty as provided in Section 17 hereof, Tenant agrees
that Landlord and its beneficiaries and their agents shall not be liable in
damages, by abatement of Rent or otherwise, for failure to furnish or delay in
furnishing any service or failure to perform or delay in performing any other
obligation required to be performed by Landlord under this Lease or by operation
of law, when such failure or delay is occasioned, in whole or in part, by
repairs, renewals or improvements, by any strike, lockout or other labor
trouble, by inability to secure electricity, gas, water, or other fuel at the
Building after reasonable effort so to do, by any accident or casualty
whatsoever, by the act of default of Tenant or other parties, or by any cause
beyond the reasonable control of Landlord. No such failures or delays shall be
deemed an eviction or disturbance of the Tenant's use and possession of the
Premises, or relieve Tenant from paying Rent or performing any of its
obligations under this Lease.
Notwithstanding the foregoing, the Rent otherwise payable under this
Lease shall ▇▇▇▇▇ in the manner described below in the last sentence of this
paragraph if all of the following conditions are met: (1) Landlord ceases to
furnish any service in the Building as a result of Landlord's gross negligence
or willful misbehavior, (2) the Premises is rendered untenantable and Tenant in
fact ceases to use such space as a result of such cessation and (3) Tenant
notifies Landlord in writing within one (1) business day after such cessation.
As Tenant's sole and exclusive remedy for such cessation, on the fifth day after
all of the foregoing conditions have been met, the Rent payable hereunder shall
be equitably abated based upon the percentage of the space in the Premises so
rendered untenantable and not being so used by Tenant, and such abatement shall
continue until the date the Premises become fully tenantable again.
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Tenant agrees to cooperate fully, at all times, with Landlord in
abiding by all reasonable regulations and requirements which Landlord may
prescribe for the proper functioning and protection of all utilities and
services reasonably necessary for the operation of the Premises and the
Building. Landlord, throughout the Term of this Lease, shall have free access to
any and all mechanical installations, and Tenant agrees that there shall be no
construction or partitions or other obstructions which might interfere with the
moving of the servicing equipment of Landlord to or from the enclosures
containing said installations. Tenant further agrees that neither Tenant nor its
servants, employees, agents, visitors, licensees or contractors shall at any
time tamper with, adjust or otherwise in any manner affect Landlord's mechanical
installations.
7. TENANT'S OBLIGATIONS.
A. Repairs. Except for ordinary wear and as otherwise provided in
this Lease, Tenant shall at all times during the Term hereof, at its sole
expense, keep the Premises and every part thereof in good order, repair and
condition, and Tenant shall arrange with Landlord at Tenant's sole expense for
the prompt repair of all damages to the Premises and the replacement or repair
of all damages or broken glass, fixtures and appurtenances (including hardware
and heating, cooling, ventilating, electrical, plumbing and other mechanical
facilities in the Premises), with materials equal or superior in quality and
class to the original materials damaged or broken, all repairs and replacements
to be made under the supervision and with the prior written approval of
Landlord, using contractors or persons designated by Landlord. If Tenant does
not promptly make such arrangements, Landlord may, but need not, make such
repairs and replacements and the amount paid by Landlord for such repairs and
replacements shall be deemed Additional Rent reserved under this Lease due and
payable forthwith. Landlord and its designees may, but shall not be required to,
enter the Premises at all reasonable times to make any repairs, alterations,
improvements or additions, including, but not limited to, ducts and all other
facilities for heating and air conditioning service, as Landlord shall desire or
deem necessary for the safety, preservation or improvement of the Building, or
as Landlord may be required to do by any governmental authority or court order
or decree. The cost of all repairs to the Property made necessary as a result of
misuse or neglect by Tenant or Tenant's employees, invitees or agents shall be
immediately paid as Additional Rent by Tenant to Landlord upon being billed for
same.
B. Holding Over. Tenant shall pay to Landlord for each day Tenant
retains possession of the Premises or any part thereof after the expiration of
the Term, by lapse of time or otherwise, the greater of the following (i) one
hundred fifty percent (150%) of the amount of the Rent, including Additional
Rent, then required by the terms hereof for the last monthly period prior to the
date of such termination, or (ii) one hundred fifty percent (150%) of the then
Fair Market Rent (as defined below) for the Premises, and also pay all damages,
consequential or direct, sustained by Landlord by reason of such retention, or,
if Landlord gives notice in writing to Tenant of Landlord's election thereof
(and not otherwise), such holding over, to the extent it exceeds sixty (60) days
in length shall constitute a renewal of this Lease for one (1) year at the
greater of (i) the annual rate in effect for the last year of the Term of this
Lease, or (ii) the then Fair Market Rent, but acceptance by Landlord of Rent
after such termination shall not, except in the case of Landlord's written
notification of its election to treat such holding over as a renewal of this
Lease for one (1) year, constitute a renewal nor waive of Landlord's right of
re-entry or any other right of Landlord. As used herein, the term "Fair Market
Rent" shall mean the product of (a) the fair net rental per annum (net of taxes
and all operating expenses) per rentable square foot for comparable space for a
term of not less than ten (10) years, for fully creditworthy tenants, and by
reference to comparable first class space in the Building, primarily, and in
other buildings in the vicinity of the Building and comparable to it in age and
quality, secondarily, but excluding those leases where the tenant has an equity
interest in the property, multiplied by (b) the Rentable Area of the Premises,
for a period commencing when the fair net rental being determined would first be
payable assuming no rent abatements of any kind.
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C. Laws and Regulations. With respect to the Premises and the use
and occupancy thereof, Tenant agrees that it and its employees, agents, clients,
customers, invitees, visitors and guests will comply with all laws, ordinances,
orders and regulations, and all decrees of court and with the directions of any
governmental department or agency.
8. CONDITION AND CARE OF PREMISES. Tenant's taking possession of the
Premises or any portion thereof shall be conclusive evidence that the Premises
or portion thereof, were then in good order, repair and satisfactory condition
(except for items of damage caused by Tenant or its agents, independent
contractors or suppliers for which Tenant shall be solely responsible) and
except for certain specified enumerated minor finishing items and adjustments
set forth in a written statement (Punch List) executed by Landlord and Tenant as
provided in the Work Letter attached hereto as Exhibit D. Except as may be set
forth in Exhibit D, no promise of the Landlord to alter, remodel, improve,
repair, decorate or clean the Premises or the Property or any part of either has
been made, and no representation respecting the condition of the Premises, the
Building or the Property, has been made to Tenant by or on behalf of Landlord.
This Lease does not grant any rights to light or air over or about the Property.
9. TELEPHONE, ELECTRIC AND OTHER SERVICES.
A. Charges and Maintenance. Tenant shall make arrangements directly
with the telephone company and the electric company servicing the Building for
such telephone service and electric service in the Premises as may be desired by
Tenant. Tenant shall pay the entire cost of all telephone charges, electricity
consumed within the Premises, maintenance of light fixtures and replacement of
lamps, bulbs, tubes, ballasts and starters. Landlord agrees its charges for
replacement of lamps, bulbs, tubes, ballasts and starters shall be reasonable in
light of Landlord's costs associated therewith.
B. Tenant's Obligations. Tenant covenants and agrees that Landlord
shall in no event be liable or responsible to Tenant for any loss, damage or
expense which Tenant may sustain or incur if either the quality or character of
electrical service is changed or is no longer suitable for Tenant's
requirements. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing wiring or equipment or
feeders to the Building when reviewed in conjunction with electrical usage of
other Tenants in the Building or the Premises; and also that it shall make no
alterations or additions to the electric equipment and/or appliances without the
prior written consent of Landlord in each instance.
10. OUIET ENJOYMENT. Landlord covenants that Tenant, on paying the Rent
and performing the covenants of this Lease on its part to be kept, observed and
performed, shall and may peaceably and quietly have, hold and enjoy the Premises
for the Term of this Lease, subject to the provisions of this Lease.
11. LEASE TERMINATION. At the termination of this Lease by lapse of
time or otherwise or upon termination of Tenant's right of possession without
terminating this Lease:
A. Surrender of Keys. Tenant shall surrender all keys to the
Premises to Landlord and make known to the Landlord the combination of all locks
of vaults then remaining in the Premises.
B. Return of Premises. Tenant shall return to Landlord the Premises
and all equipment and fixtures of Landlord, and all flooring, attached carpeting
and other floor covering in the Premises to Landlord in as good condition as
when Tenant originally took possession, ordinary wear, loss or damage by
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fire or other insured casualty, damage resulting from the negligent act of
Landlord or its employees and agents, and alterations made with Landlord's
consent excepted, failing which Landlord may reenter the Premises and restore
the Premises, equipment and fixtures to such condition and state of repair and
Tenant shall, upon demand, pay the cost thereof to Landlord.
C. Removal of Additions. All installations, additions, partitions,
hardware, light fixtures, non-trade fixtures and improvements, temporary or
permanent, except movable furniture and equipment belonging to Tenant, in or
upon the Premises, whether placed there by Tenant or Landlord (each individually
an "Alteration"), shall be Landlord's property and shall be relinquished to
Landlord in good condition, ordinary wear and tear excepted, at the termination
of this Lease or Tenant's right to possession by lapse of time or otherwise, all
without compensation, allowance or credit to Tenant; provided, however, Landlord
hereby agrees that if Tenant affirmatively requests in writing, prior to the
installation of any Alteration, that Landlord specify whether it will require
the removal of the Alteration upon the termination or earlier termination of
this Lease, Landlord shall so specify. If Landlord fails to specify any such
statement, Landlord shall be deemed to have not required the removal of the
Alteration upon the termination or earlier expiration of this Lease and the
Alteration shall become Landlord's property at the termination of this Lease. As
designated in such notice Tenant, at Tenant's sole cost and expense, shall
promptly remove such of the installations, additions, partitions, hardware,
light fixtures, non-trade fixtures and improvements placed in or upon the
Premises by Tenant and repair any damage to the Premises caused by such removal,
failing which Landlord may remove the same and repair the Premises and Tenant
shall, upon demand, pay the cost of such removal and of any necessary
restoration of the Premises.
D. Property Presumed Abandoned. All fixtures, installations and
personal property belonging to Tenant not removed from the Premises upon
termination of this Lease or termination of Tenant's right to possession, and
not required by Landlord to have been removed as provided in Paragraph C of this
Section 11 shall be conclusively presumed to have been abandoned by Tenant and
title thereto shall pass to Landlord under this Lease as by ▇▇▇▇ of sale,
without any cost, whether by set-off, credit, allowance or otherwise, and
Landlord may, at its option, accept the title to such property or, at Tenant's
expense, may (i) remove the same or any part in any manner that Landlord shall
choose; and (ii) store, destroy or otherwise dispose of the same without
incurring liability to Tenant or any other person.
E. Survival of Tenant Obligations. All obligations of Tenant that
are not fulfilled prior to the termination of this Lease shall survive the
expiration of the Term or sooner termination of this Lease.
12. RULES AND REGULATIONS. Tenant agrees to observe the rights
reserved to Landlord contained in Section 13 hereof and agrees, for itself, its
employees, agents, clients, customers, invitees and guests, to comply with the
rules and regulations set forth in Exhibit E attached to this Lease and made a
part hereof and such other rules and regulations as shall be reasonably adopted
by Landlord pursuant to Paragraph L of Section 13 of this Lease.
Any violation by Tenant of any of the rules and regulations contained in
Exhibit E attached to this Lease or other Section of this Lease, or as may
hereafter be adopted by Landlord pursuant to Paragraph L of Section 13 of this
Lease, may be restrained; but whether or not so restrained, Tenant acknowledges
and agrees that it shall be and remain liable for all damages, loss, costs and
expense resulting from any violation by Tenant of any of said rules and
regulations. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce said rules and regulations, or the
terms, covenants and conditions of any other lease against any other tenant or
any other persons, and Landlord and its beneficiaries
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shall not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, invitees, or by any other person. Landlord agrees not to
administer any rules in an arbitrary manner.
13. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, exercisable without notice (except as specified below) and the exercise
thereof shall not be deemed to effect an eviction or disturbance of Tenant's use
or possession or give rise to or affect any claim for setoff or abatement of
Rent or affecting any of Tenant's obligations under this Lease:
A. To change the name or street address of the Building.
B. To install and maintain signs on the exterior and interior of
the Building, and to prescribe the location and style of the suite number and
identification sign or lettering for the Premises occupied by Tenant.
C. To designate the character, shape, color, material and make of
all window coverings and treatments on all outside windows in the Premises.
D. To retain at all times, and to use in appropriate instances,
pass keys to the Premises.
E. To grant to anyone the right to conduct any business or render
any service in the Building, whether or not it is the same as or similar to the
use expressly permitted to Tenant by Section 5.
F. To exhibit the Premises at reasonable hours, and to decorate,
remodel, repair, alter or otherwise prepare the Premises for reoccupancy at any
time after Tenant vacates or abandons the Premises.
G. To have access for Landlord and other tenants or occupants of
the Building to all mail chutes according to the rules of the United States
Postal Service.
H. To enter the Premises at reasonable hours for reasonable
purposes, including inspection, exhibiting the Premises (upon reasonable prior
notice to Tenant) to prospective tenants, lenders, purchasers or others,
supplying janitor service or other service to be provided to Tenant hereunder,
or for other reasonable purposes.
I. To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably determine to identify
themselves to watchmen by registration or otherwise, and to establish their
right to enter or leave in accordance with the provisions of Exhibit E attached
to this Lease. Landlord shall not be liable in damages for any error with
respect to admission to or eviction or exclusion from the Building of any
person. In case of fire, invasion, insurrection, mob, riot, civil disorder,
public excitement or other commotion, or threat thereof, Landlord reserves the
right to limit or prevent access to the Building during the continuance of the
same, shut down elevator service, activate elevator emergency controls, or
otherwise take such action or preventive measures deemed necessary by Landlord
for the safety of the tenants or other occupants of the Building or the
protection of the Building and the property in the Building. Tenant agrees to
cooperate in any reasonable safety program developed by Landlord.
J. To control and prevent access to common areas and other
non-general public areas pursuant to Exhibit E attached to this Lease.
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K. Provided that reasonable access to the Premises shall be
maintained and the business of Tenant shall not be interfered with unreasonably,
to relocate, enlarge, reduce or change corridors, exits, entrances in or to the
Building and to decorate and to make repairs, alterations, additions and
improvements, structural or otherwise, in or to the Property or any part
thereof, and any adjacent building, land, street or alley, including for the
purpose of connection with or entrance into or use of the Property in
conjunction with any adjoining or adjacent building or buildings, now existing
or hereafter constructed, and may for such purposes erect scaffolding and other
structures reasonably required by the character of the work to be performed, and
during such operations may enter upon the Premises and take into and upon or
through any part of the Property, including the Premises, all materials that may
be required to make such repairs, alterations, improvements, or additions, and
in that connection Landlord may temporarily close public entry ways, other
public spaces, stairways or corridors and interrupt or temporarily suspend any
services or facilities agreed to be furnished by Landlord, all without the same
constituting an eviction of Tenant in whole or in part without abatement of Rent
by reason of loss or interruption of the business of Tenant or otherwise, and
without in any manner rendering Landlord liable for damages or relieving Tenant
from performance of Tenant's obligation under this Lease, Landlord may at its
option make any repairs, alterations, improvements and additions in and about
the Property and the Premises during ordinary business hours and, if Tenant
desires to have such work done during other than business hours, Tenant shall
pay all overtime and additional expenses resulting therefrom.
L. From time to time to make and adopt such reasonable rules and
regulations, in addition to or other than or by way of amendment or modification
of the rules and regulations contained in Exhibit E attached to this Lease, for
the protection and welfare of the Property and its tenants and occupants, as the
Landlord may determine, and Tenant agrees to abide by all such rules and
regulations.
M. To approve the weight, size and location of safes, computers,
all other heavy articles in and about the Premises and the Property and to
require all such items and other office furniture and equipment to be moved in
and out of the Property and Premises only at such time and in such manner as
Landlord shall direct and in all events at Tenant's sole risk and
responsibility.
N. To close the Building at 6:00 p.m. or at such other reasonable
time as Landlord may determine, subject, however, to Tenant's right to
admittance under such regulations as shall be prescribed from time to time by
Landlord.
O. To prohibit the placing of vending or dispensing machines of any
kind in or about the Premises.
P. To require Tenant to move to equivalent space with equivalent
views and equal or greater square footage on another floor in the Building upon
receipt of sixty (60) days' written notice from Landlord, in which event
Landlord shall pay all moving costs (including costs of new stationery), and the
Rent provided for herein shall remain the same.
Q. To exercise all other rights reserved to or by Landlord in this
Lease.
14. ALTERATIONS.
A. Restrictions. Without Landlord's prior written consent, Tenant
shall not make or caused to be made any exterior, structural, electrical,
ventilation, air conditioning or other types of alterations, any improvements,
additions, changes or repairs in or to the Premises or the Building. As a
condition to
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granting its consent, Landlord may impose reasonable requirements, including,
without limitation, requirements as to the manner and time for the performance
of any such work and the type and amount of insurance and bonds Tenant must
acquire and maintain in connection therewith. In addition, at Landlord's option,
Landlord shall have the right: to approve all plans and specifications relating
to the work; to review the work of Tenant's architects and engineers and to
control any construction or other activities being undertaken within the
Building, with Landlord to be reimbursed for any costs incurred in connection
with such review and/or control. All such alterations, improvements, additions,
changes or repairs to the Premises shall be performed by Landlord or its
designated contractors. Landlord, in connection with any alterations, additions,
changes or repairs performed by Landlord or under its supervision, may assess
upon Tenant a charge for Landlord's overhead costs and supervisory work, equal
to ten percent (10%) of the Landlord's total costs of construction. Except as
expressly provided herein, all alterations, improvements, additions, changes or
repairs shall be paid for by Tenant at its sole expense, but shall become the
property of Landlord and shall be surrendered with the Premises upon termination
of this Lease; provided, however, that Landlord may, by written notice to Tenant
as provided in Paragraph C of Section 11 of this Lease, require Tenant, at
Tenant's sole cost and expense, to remove any or all improvements, alterations,
additions or fixtures installed or made by Tenant on or to the Premises and to
repair any damages to the Premises caused by such removal.
B. Compliance with Laws. All work in connection with any
alterations' improvements, changes, additions or repairs in the Premises or the
Building made by or for the benefit of Tenant, shall be performed in full
compliance with all laws, ordinances, regulations, rules and requirements of all
governmental entities having jurisdiction and in full compliance with all
insurance rules, orders, directions, regulations and requirements.
C. Security. Before work is commenced as provided in this Section
14, Tenant shall give Landlord at least fifteen (15) days' written notice.
Tenant shall secure, at Tenant's own cost, a completion and lien indemnity bond
or other form of security, satisfactory to Landlord, for said work, and during
the progress of the work, Tenant shall, upon Landlord's request, furnish
Landlord with sworn contractor's statements and lien waivers covering all work
theretofore performed. Any mechanic's liens for work claimed to have been
performed for, or materials claimed to have been furnished to, Landlord or
Tenant shall be discharged by Tenant, by bond or otherwise, within ten (10) days
after the filing of such lien, at Tenant's sole expense. Tenant agrees to
indemnify, hold harmless and defend Landlord from any loss, cost, damage or
expense, including attorneys' fees, arising out of any such lien claim or out of
any other claim relating to work done or materials supplied to the Premises at
Tenant's request or on Tenant's behalf.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld, (i) assign, transfer, mortgage, pledge, hypothecate or
encumber or subject to or permit to exist upon or be subjected to any lien or
charge, this Lease or any interest under it; (ii) allow to exist or occur any
transfer of or lien upon this Lease or the Tenant's interest herein by operation
of law; (iii) sublet the Premises or any part thereof; or (iv) permit the use or
occupancy of the Premises, or any part thereof for any purpose not provided for
under Section 5 of this Lease or by anyone other than the Tenant, and Tenant's
employees. Landlord has the absolute right to withhold its consent without
giving any reason whatsoever, except as herein expressly provided to the
contrary. In no event shall this Lease be assigned or assignable by voluntary or
involuntary bankruptcy proceedings or otherwise, and in no event shall this
Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency or reorganization proceedings.
Tenant shall, by notice in writing, advise Landlord of its intention
from, on and after a stated date (which shall not be less than thirty (30) days
after the date of Tenant's notice) to assign or transfer its interest
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as Tenant under this Lease or sublet any part or all of the Premises for the
balance or any part of the Term, and, in such event, Landlord shall have the
right, to be exercised by giving written notice to Tenant within fifteen (15)
days after receipt of Tenant's notice, to terminate this Lease with respect to
the space therein described as of the date stated in Tenant's notice. Tenant's
said notice shall state the name and address of the proposed subtenant or
assignee and a true and complete copy of the proposed sublease or assignment and
all related documents shall be delivered to Landlord with said notice. If
Tenant's notice shall cover all of the space hereby demised, and if Landlord
shall give the aforesaid termination notice with respect thereto, the Term of
this Lease shall expire and end on the date stated in Tenant's notice as fully
and completely as if that date had been herein definitely fixed for the
expiration of the Term. If, however, this Lease be terminated pursuant to the
foregoing with respect to less than the entire Premises, the Rent and the
Tenant's Share of Operating Expenses shall be adjusted on the basis of the
number of rentable square feet retained by Tenant in proportion to the number of
square feet of rentable area in the entire Premises, and this Lease, as so
amended, shall continue thereafter in full force and effect. If Landlord, upon
receiving Tenant's said notice with respect to any such space, shall not
exercise its right to terminate as aforesaid, Landlord will not unreasonably
withhold its consent to Tenant's assignment or subletting the space covered by
its notice; provided, however, that in addition to other circumstances under
which Landlord's consent may be withheld, Tenant agrees that the withholding by
Landlord of its consent to Tenant's assignment or subletting the space covered
by its notice will not be deemed "unreasonable" if (i) the proposed assignee or
subtenant is disreputable, non-creditworthy or otherwise not in keeping with the
nature or class of tenants in the Building, or (ii) the use of the Premises by
the proposed assignee or subtenant would, in Landlord's judgment, significantly
increase the pedestrian traffic in and out of the Building or would require
Landlord to perform any alterations to the Building to comply with applicable
building code requirements. If this Lease is terminated in whole or in part as
aforesaid, Landlord shall be free to deal directly with any such proposed
assignee or sublessee without any responsibility or liability to Tenant on
account thereof.
If Tenant, having first obtained Landlord's consent in accordance with
the foregoing provision of this Section, shall assign this Lease or sublet the
Premises, or any part thereof, at a rental or for other monetary consideration
in excess of the Rent or pro rata portion thereof due and payable by Tenant
under this Lease, then Tenant shall pay to Landlord, as Additional Rent (i) on
the first day of each month during the term of any sublease, if and to the
extent received from subtenant or assignee, one-half (1/2) of the excess of all
rent and other consideration due from the subtenant for such month over the Rent
then payable to Landlord pursuant to the provisions of this Lease for said month
(or if only a portion of the Premises is being sublet, the excess of all rent
and other considerations due from the subtenant for such month over the portion
of the Rent then payable to Landlord pursuant to the provisions of this lease
for said month which is allocable on a square footage basis to the space sublet)
and (ii) immediately upon receipt thereof, one-half (1/2) of any other profit or
gain realized by Tenant from such assignment or subletting; it being agreed,
however, that Tenant shall be responsible to Landlord for any deficiency
hereunder if Tenant shall assign this Lease or sublet the Premises or any part
thereof at a rental less than that provided for herein.
Notwithstanding anything to the contrary in this Section 15, if Tenant
at any time during the Term of this Lease is a corporation whose shares of stock
are not publicly traded or a partnership and if during the Term of this Lease,
the ownership of the shares of stock which constitute control of Tenant, or more
than fifty percent (50%) of all general partnership interests of Tenant, changes
other than by reason of gift or death, Tenant shall notify Landlord of such
change within five (5) days thereof, and Landlord, at its option may at any time
thereafter terminate this Lease by giving Tenant at least sixty (60) days' prior
written notice of said termination. The term "control" as used herein means the
power to directly or indirectly direct, or cause the direction of, the
management or policies of the Tenant. A change or series of changes in ownership
of stock which would result in direct or indirect change in ownership by the
stockholders or an affiliated group of
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stockholders of less than fifty percent (50%) of the stock outstanding as of the
date of the execution of this Lease by Tenant shall not be considered a change
of control.
Notwithstanding anything herein contained to the contrary, Tenant
expressly covenants and agrees not to enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of the Premises
which provides for 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 property leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises.
Consent by Landlord to any assignment, subletting, use or occupancy, or
transfer shall not operate to relieve, release or discharge Tenant of or from
any liability, whether past, present or future, under the Lease, and Tenant
shall continue fully liable hereunder except to the extent, if any, expressly
provided for in such consent. Nor shall consent by Landlord in any one instance
be deemed to be a consent to or relieve Tenant from obtaining Landlord's consent
to any subsequent assignment, transfer, lien, charge, subletting, use or
occupancy. The subtenant or subtenants or assignees shall agree to comply with
and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease to the extent of the space sublet or assigned, and
Tenant shall deliver to Landlord promptly after execution, an executed copy of
each such sublease or assignment and an agreement of compliance by each such
subtenant and assignee. Tenant shall pay all of Landlord's costs, charges and
expenses, including reasonable attorneys' fees incurred in connection with any
assignment or sublease requested or made by Tenant.
16. WAIVER OF CERTAIN CLAIMS: INDEMNITY BY TENANT. Except with respect
to matters which result from the negligence of Landlord and its beneficiaries,
and their employees and agents, Tenant releases Landlord and its beneficiaries,
and their respective officers, directors, agents, servants and employees, in
respect of and they shall not be liable for injury to person or damage to
property sustained by the Tenant or by any occupant of the Premises or the
Property, or by any other person, occurring in or about the Property resulting
directly or indirectly from fire or other casualty, cause or any existing or
future condition, defect, matter or thing in or about the Premises, the Property
or any part of it, or from any equipment or appurtenance therein, or from any
accident in or about the Property, or from any occurrence, act, negligence or
omission of any tenant or other occupant of the Property or any part thereof or
of any other person. This Section 16 shall apply especially, but not
exclusively, to damage caused by water, snow, frost, steam, excessive heat or
cold, sewerage, gas, odors or noise, or the bursting or leaking of pipes or
plumbing fixtures, broken glass, sprinkling or air conditioning devices or
equipment, or flooding of basements, and shall apply equally whether any such
damage results from the act or omission of other tenants, occupants or servants
of the Property or of any other person and whether such damage was due to any of
the acts specifically enumerated above, or from any other thing or circumstance,
whether of a like nature or of a wholly different nature. If any damage to the
Premises or the Property or any equipment or an appurtenance therein, whether
belonging to Landlord or to other tenants or occupants of the Property, or to
the tenants thereof, results from any act or omission or negligence of Tenant,
its employees, agents or invitees, Tenant shall be liable therefor and Landlord
may at its option repair such damage and Tenant shall upon demand by Landlord
reimburse Landlord for all costs of such repairs and damages in excess of
amounts, if any, paid to Landlord under insurance covering such damages. All
personal property belonging to its agents, employees or invitees, or to Tenant
or to any occupant of the Premises, shall be there at the risk of the Tenant or
other person only, and Landlord shall not be liable for damage thereto or theft,
misappropriation or loss thereof.
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Except with respect to matters which result from the negligence of
Landlord and its beneficiaries and their employees and agents, Tenant agrees to
protect, defend and hold Landlord and its beneficiaries, and their agents,
servants and employees, harmless and to indemnify each of them against claims
and liabilities, including reasonable attorneys' fees, for injuries to all
persons and damage to or about the Premises arising from Tenant's occupancy of
the Premises or the conduct of its business or from any activity, work, or thing
done, permitted or suffered by Tenant in or about the Premises or 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 due to any other act or omission of the Tenant, its agents or employees
or invitees.
17. DAMAGE OR DESTRUCTION BY CASUALTY. If the Premises or any part of
the Building shall be damaged by fire or other casualty and if such damage does
not render all or a substantial portion of the Premises or the Building
untenantable, then Landlord shall proceed to repair and restore the Premises
with reasonable promptness, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord's control. If any such
damage renders all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, with reasonable promptness after the occurrence of
such damage, estimate the length of time that will be required to substantially
complete the repair and restoration of such damage and shall by notice advise
Tenant of such estimate. If it is so estimated that the amount of time required
to substantially complete such repair and restoration will exceed one hundred
eighty (180) days from the date such damage occurred, then either Landlord or
Tenant (but as to Tenant, only if all or a substantial portion of the Premises
are rendered untenantable) shall have the right to terminate this Lease as of
the date of such damage upon giving notice to the other at any time within
twenty (20) days after Landlord gives Tenant the notice containing said estimate
(it being understood that Landlord may, if it elects to do so, also give such
notice of termination together with the notice containing said estimate). Unless
this Lease is terminated as provided in the preceding sentence, Landlord shall
proceed with reasonable promptness to repair and restore the Premises, subject
to reasonable delays for insurance adjustment and delays caused by matters
beyond Landlord's control, and also subject to zoning laws and building codes
then in effect. Landlord shall have no liability to Tenant, and Tenant shall not
be entitled to terminate this Lease if such repairs and restoration are not in
fact completed within the time period estimated by Landlord, as aforesaid, or
within said one hundred eighty (180) days, so long as Landlord shall proceed
with reasonable diligence to complete such repairs and restoration.
Notwithstanding anything to the contrary herein set forth, (i) Landlord
shall have no duty pursuant to this Section 17 to repair or restore any portion
of the alterations, additions or improvements made by or for Tenant in the
Premises or the decoration thereto (except those provided for in the Work Letter
attached hereto as Exhibit D) or to expend for any repair or restoration amounts
in excess of insurance proceeds paid to Landlord and available for repair or
restoration, and (ii) Tenant shall not have the right to terminate this Lease
pursuant to this Section 17 if the damage or destruction was caused by the act
or neglect of Tenant, its agents or employees.
In the event any such fire or casualty damage not caused by the act or
neglect of Tenant, its agents or employees, renders the Premises untenantable
and Tenant is not occupying the Premises, and if this Lease shall not be
terminated pursuant to the foregoing provisions of this Section 17 by reason of
such damage, then Rent shall ▇▇▇▇▇ during the period beginning with the date of
such damage and ending with the date when Landlord tenders the Premises to
Tenant as being ready for occupancy. Such abatement shall be in an amount
bearing the same ratio to the total amount of Rent for such period as the
portion of the Premises not ready for occupancy from time to time bears to the
entire Premises. In the event of termination of this Lease pursuant to this
Section 17, Rent shall be apportioned on a per diem basis and be paid to the
date of the fire or casualty.
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18. EMINENT DOMAIN. If all or a substantial part of the Building, or
any part thereof which includes all or a substantial part of the Premises, shall
be taken or condemned by any competent authority for any public or quasi-public
use or purpose, the Term of this Lease shall end upon and not before the date
when the possession of the part so taken shall be required for such use or
purpose, and without apportionment of the award to or for the benefit of Tenant.
If any condemnation proceeding shall be instituted in which it is sought to take
or damage any part of the Building, the taking of which would, in Landlord's
opinion, prevent the economical operation of the Building, or if the grade of
any street or alley adjacent to the Building is changed by any competent
authority, and such taking, damage or change of grade makes it necessary or
desirable to remodel the Building to conform to the taking, damage or changed
grade, Landlord shall have the right to terminate this Lease upon not less than
ninety (90) days' notice prior to the date of termination designated in the
notice. In either of the events above referred to, Rent at the then current rate
shall be apportioned as of the date of the termination. No money or other
consideration shall be payable by Landlord to Tenant for the right of
termination, and the Tenant shall have no right to share in the condemnation
award, whether for a partial or total taking, for loss of Tenant's leasehold or
improvements, or in any judgment or award.
19. SPRINKLERS. If the "sprinkler system" installed on the Property or
any of its appliances shall be damaged or injured or not in proper working order
by reason of any act or omission of Tenant, Tenant's agents, servants,
employees, licensees or visitors, Tenant shall forthwith restore the same to
good working condition at its own expense; and if the Board of Fire Underwriters
or Fire Insurance Exchange or any bureau, department or official of the state or
city government requires additional sprinkler heads or other equipment be made
or supplied by reason of Tenant's business or the location of partitions, trade
fixtures, or other contents of the Premises, or for any other reason, or if any
such changes, modifications, alterations, additional sprinkler heads or other
equipment become necessary to prevent the imposition of a penalty or charge
against the full allowance for a sprinkler system in the fire insurance rate as
fixed by said Exchange or by any fire insurance company, Tenant shall, at
Tenant's expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler heads or other equipment.
20. DEFAULT: LANDLORD'S RIGHTS AND REMEDIES. All rights and remedies of
Landlord provided for in this Lease shall be cumulative and none shall exclude
any other right or remedy allowed by law or equity.
A. Default and Remedies. If (i) default shall be made in the prompt
payment of Rent or any installment thereof and such default shall continue for
five (5) or more days after written notice to Tenant, or (ii) default shall be
made in the payment of any sum required to be paid by Tenant under the terms of
any other agreement between Landlord and Tenant and such default shall continue
for five (5) days after written notice to Tenant, or (iii) default shall be made
in the observance or performance of any of the other covenants or conditions in
this Lease which Tenant is required to observe and perform and such default
shall continue for ten (10) business days after written notice to Tenant;
provided, however, if such default is of the nature that cannot be cured within
ten (10) business days and if Tenant commences to cure the default and
diligently pursues such cure, Tenant shall have such time as is reasonably
necessary to cure such default, not to exceed ninety (90) days, or (iv) a
default involves a hazardous condition and is not cured by Tenant immediately
upon written notice to Tenant, or (v) the interest of Tenant in this Lease shall
be levied or under execution or attached by process of law, or (vi) any
voluntary petition in bankruptcy or for corporate reorganization or any similar
relief shall be filed by Tenant, or (vii) any involuntary petition in bankruptcy
shall be filed against Tenant under any federal or state bankruptcy or
insolvency act and shall not have been dismissed within sixty (60) days from the
filing thereof, or (viii) a receiver shall be appointed for Tenant or any of the
property of Tenant by any court and such receiver shall not have been dismissed
within sixty (60)
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days from the date of his appointment, or (ix) Tenant shall make an assignment
for the benefit of creditors, or (x) Tenant shall admit in writing Tenant's
inability to meet Tenant's debts as they mature, or (xi) Tenant shall abandon or
vacate the Premises during the Term without paying Rent, then and in any such
event Landlord if it so elects, with or without notice or demand, may treat the
occurrence of any one or more of the foregoing events as a breach of this Lease,
and thereupon at its option may, with or without notice or demand of any kind to
Tenant or any other person, have any one or more of the following described
remedies (any of which may be pursued by Landlord in its own name or by and in
the name of the beneficiaries of Landlord or the agent of such beneficiaries) in
addition to all other rights and remedies provided at law or in equity or
elsewhere herein:
(a) Landlord may terminate this Lease and the Term
created hereby, in which event all Rent provided to be paid by Tenant
for the balance of the original Term shall immediately become due and
payable and Landlord may forthwith repossess the Premises and be
entitled to recover forthwith as damages (1) all of the Base Rent
accrued and unpaid for the period up to and including such termination
date, as well as Additional Rent payable by Tenant, (2) the unamortized
cost of leasehold improvements, additions, alterations, leasing
commissions, abatements, and other concessions, if any, paid for by
Landlord pursuant to this Lease, (3) any other sums for which Tenant is
liable or in respect of which Tenant has agreed to indemnify Landlord
under any provisions of this Lease which may be then due and owing and
(4) a sum of money equal to the value of the Rent provided to be paid by
Tenant for the balance of the original Term, less the rental value of
the Premises for said period net of the costs and expenses of reletting
("Rental Value"), and plus any other sum of money and damages owed by
Tenant to Landlord, all discounted to a net present value using an
interest rate of five percent (5%). Should the Rental Value exceed the
value of the Rent provided to be paid by Tenant for the balance of the
original Term of the Lease, Landlord shall have no obligation to pay to
Tenant the excess or any part hereof.
(b) Landlord may terminate Tenant's right of possession
and may repossess the Premises by forcible entry and detainer suit, by
taking peaceful possession or otherwise as provided in Paragraph B of
this Section 20, without terminating this Lease or releasing Tenant, in
whole or in 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 shall use commercially reasonable efforts to relet
the Premises or any part thereof for the account of Tenant, for such
Rent, for such time, and upon such terms as shall be satisfactory to
Landlord and Landlord shall not be required to accept any tenant offered
by Tenant nor to observe any instructions given by Tenant at such
reletting. For the purpose of such reletting, Landlord is authorized to
decorate or to make any repairs, alterations or additions in or to the
Premises. If Landlord shall fail to relet the Premises, Tenant shall pay
to Landlord as damages a sum equal to the amount of the Rent reserved in
this Lease for the balance of its original Term. If the Premises are
relet and a sufficient sum shall not be realized from such reletting
after paying all of the costs and expenses of such decorations, repairs,
changes, alterations and additions and the other expenses of such
reletting and of the collection of the rent accruing therefrom to equal
or exceed the Rent provided for in this Lease for the balance of its
original Term, Tenant shall satisfy and pay such deficiency upon demand
therefor from time to time. Tenant agrees that Landlord may file suit to
recover any sums falling due under the terms of this Section 20 from
time to time and that no suit or recovery of any portion due Landlord
hereunder shall be any defense to any subsequent action brought for any
amount theretofore reduced to judgment in favor of Landlord.
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B. Tenant's Duties Upon Default. If Landlord exercises either the
remedies provided for in subparagraphs (a) and (b) of the foregoing Paragraph A
of this Section 20, Tenant shall surrender possession and vacate the Premises
immediately 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 and take complete and peaceful possession of the Premises, with or without
process of law, to expel or remove Tenant and any other occupants and to remove
any and all property therefrom, without being deemed in any manner guilty of
trespass, eviction, forcible entry and detainer, or conversion of property and
without relinquishing Landlord's right to Rent or any other right given to
Landlord hereunder or by operation of law. Tenant expressly waives the service
of any demand for payment of Rent or for possession and the service of any
notice of Landlord's election to terminate this Lease or to re-enter the
Premises, including any and every form of demand and notice prescribed by
statute or other law, and agrees that the breach of any covenant or provision of
this Lease by Tenant, which breach shall continue beyond the period, if any,
provided herein for the curing thereof, shall, of itself, without the service of
any further notice or demand whatsoever, constitute a forcible detainer by
Tenant of the Premises within the meaning of the statutes of the State of
Illinois.
C. Removal of Property. All property removed from the Premises by
Landlord pursuant to any provisions of this Lease or by law may be handled,
removed or stored in a commercial warehouse or otherwise by the Landlord at the
risk, cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall pay Landlord,
upon demand, any and all expenses incurred by Landlord in such removal and for
storage charges against such property, so long as the same shall be, in
Landlord's possession or under Landlord's control. All property not removed from
the Premises or retaken from storage by Tenant within thirty (30) days after the
end of the Term, however terminated, shall be conclusively deemed to have been
conveyed by Tenant to Landlord as by ▇▇▇▇ of sale without further payment or
credit by Landlord to Tenant.
D. Costs and Expenses. The non-prevailing party in a majority of
the counts in a judicial proceeding to enforce the Lease shall pay upon demand
all costs, charges and expenses, including without limitation court costs and
reasonable attorneys' fees, incurred in enforcing such party's obligations under
this Lease or incurred by the prevailing party.
E. Bankruptcy. In the event that Tenant shall file for protection
under any Chapter of any state or federal bankruptcy or insolvency act now or
hereafter in effect or a trustee-in-bankruptcy shall be appointed for Tenant,
Landlord and Tenant agree, to the extent permitted by law, to request that the
debtor-in-possession or trustee-in-bankruptcy, if one is appointed, shall assume
or reject this Lease within sixty (60) days thereafter.
F. Landlord's Cure. If Tenant shall default in the observance of
any term, covenant, or condition on its part to be performed under this Lease,
and Tenant shall fail to remedy such default within the time periods provided in
this Lease after Landlord shall send Tenant written notice of such default,
Landlord, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account and at the expense
of Tenant. If Landlord makes any expenditures or incurs any obligations for the
payment of money in connection therewith, including, but not limited to,
reasonable attorneys' fees, in instituting, prosecuting or defending any action
or proceeding, then such sums paid or obligations incurred by Landlord shall be
due and payable by Tenant to Landlord upon demand.
G. Injunction. If Tenant violates any of the terms and provisions
of this Lease, or defaults in any of its obligations hereunder, other than the
payment of Rent or other sums payable hereunder, such violations may be
restrained or such obligation enforced by injunction.
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H. [Intentionally deleted].
21. SUBORDINATION. Landlord has heretofore and may hereafter from time
to time execute and deliver a mortgage or trust deed in the nature of a
mortgage, both referred to herein as the "Mortgage", against the Building and
the Property, or any interest therein, and may lease or sell and lease back the
Land. If requested by the mortgagee or trustee under any mortgage or the Lessor
of any ground or underlying lease ("ground lessor"), Tenant will either (i)
subordinate its interest in this Lease to said Mortgage and to any and all
advances made thereunder and to the interest thereto, or to said ground or
underlying lease, or to both, and to all renewals, replacements, supplements,
amendments, modifications and extensions thereof, or (ii) make Tenant's interest
in this Lease superior thereto. Tenant will promptly execute and deliver such
agreement or agreements (including, without limitation a subordination,
non-disturbance and attornment agreement) on a form as may be required by such
mortgagee or trustee under any Mortgage or by such ground lessor. Tenant
covenants it will not subordinate this Lease to any Mortgage without the prior
written consent of the holder of any prior Mortgages and any ground lessor.
It is further agreed that: (i) if any Mortgage shall be foreclosed or if
any ground or underlying lease be terminated (a) the liability of the mortgagee
or trustee hereunder or purchaser 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 Building
or Property and such liability shall not continue or survive after further
transfer of ownership; and (b) upon request of the mortgagee or trustee, if the
Mortgage shall be foreclosed, Tenant will attorn, as Tenant under this Lease, to
the purchaser at any foreclosure sale under any Mortgage or upon request of the
ground lessor, if any ground or underlying lease shall be terminated, Tenant
will attorn as Tenant under this Lease to the ground lessor, and Tenant will
execute such instruments as may be necessary or appropriate to evidence such
attornment; and (ii) this Lease may not be modified or amended so as to reduce
the Rent or shorten the Term provided hereunder, or so as to adversely affect in
any other respect to any material extent the rights of the Landlord, nor shall
this Lease be canceled or surrendered, without the prior written consent, in
each instance of the mortgagee or trustee under any Mortgage and of any ground
lessor.
Should any prospective mortgagee or ground lessor require a modification
or modifications of this Lease, which modification or modifications will not
cause an increased cost or expense to Tenant or in any other way materially and
adversely change the rights and obligations of Tenant hereunder, then and in
such event, Tenant agrees that this Lease may be so modified and agrees to
promptly execute whatever documents are required therefor and deliver the same
to Landlord within ten (10) business days following the request therefor. Should
any prospective mortgagee or ground lessor require execution of a short form of
lease for recording (containing the names of the parties, a description of the
Premises, and the Term of this Lease) or a certification from the Tenant
concerning the Lease in such form as may be required by a prospective mortgagee
or ground lessor, Tenant agrees to promptly execute such short form of Lease or
certificate and deliver the same to Landlord within ten (10) business days
following the request therefor.
22. MORTGAGEE AND GROUND LESSOR PROTECTION. Tenant agrees to give
any holder of any Mortgage and any ground lessor (as such terms are defined in
Section 21 hereof), by registered or certified mail, a copy of any notice of
default served upon the Landlord by Tenant, provided that prior to such notice,
Tenant has been notified in writing (by way of service on Tenant of a copy of an
Assignment of Rents and Leases, or otherwise) of the address of such Mortgage
holder or ground lessor (the "Notified Party"). Tenant further agrees that if
Landlord shall have failed to cure such default within twenty (20) days
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after such notice to Landlord (or if such default cannot be cured or corrected
within that time, then such additional time as may be necessary if Landlord has
commenced within such twenty (20) days and is diligently pursuing the remedies
or steps necessary to cure or correct such default), then the Notified Party
shall have an additional thirty (30) days within which to cure or correct such
default (or if such default cannot be cured or corrected within that time, then
such additional time as may be necessary if the Notified Party has commenced
within such thirty (30) days and is diligently pursuing the remedies or steps
necessary to cure or correct such default including the time necessary to obtain
possession if possession is necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the Notified Party to cure such default has
expired without cure, Tenant shall have no right to and shall not terminate this
Lease on account of Landlord's default.
23. DEFAULT UNDER OTHER LEASES. If the term of any lease, other
than this Lease, heretofore or hereafter made by Tenant for any space in the
Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall empower
Landlord, at Landlord's sole option, to terminate this Lease by notice to Tenant
or to exercise any of the rights or remedies set forth in Section 20 above.
24. INSURANCE.
At all times during the Term of this Lease, Tenant shall, at its sole
cost and expense, maintain in full force and effect insurance protecting Tenant
and Landlord and Landlord's beneficiaries and their respective agents and any
other parties designated by Landlord from time to time, with terms, coverages
and in companies at all times satisfactory to Landlord, but initially as
follows:
(i) Comprehensive General Liability Insurance, with (a)
Contractual Liability including the indemnification provisions contained
in this Lease, (b) a severability of interest endorsement, (c) limits of
not less than One Million Dollars ($1,000,000) combined single limit per
occurrence for bodily injury, sickness or death, and property damage,
and umbrella coverage of not less than Two Million Dollars ($2,000,000),
and (d) Landlord and Landlord's building manager named as additional
insureds.
(ii) Insurance against "all risks" (including sprinkler
leakage, if applicable) for the fall replacement cost of all additions,
improvements and alterations to the Premises and of all office
equipment, furniture, trade fixtures, merchandise and all other items of
Tenant's property on the Premises. Tenant agrees to have such insurance
policies endorsed to provide for a waiver of subrogation against
Landlord by the insurance carrier.
Tenant shall, prior to the commencement of the Term hereof and
prior to the expiration of any policy, furnish Landlord with certificates
evidencing that all required insurance is in force and providing that such
insurance may not be canceled or changed without at least thirty (30) days'
prior written notice to Landlord and Tenant (unless such cancellation is due to
nonpayment of premiums, in which event ten (10) days' prior notice shall be
provided).
25. NONWAIVER. No waiver of any condition expressed in this Lease shall
be implied by any neglect of Landlord to enforce any remedy on account of the
violation of such condition whether or not such violation be continued or
repeated subsequently and no express waiver shall affect any condition other
than the one specified in such waiver and that one only for the item and in the
manner specifically stated. Without limiting the provisions of Paragraph B of
Section 7 above, it is agreed that no receipt of monies by Landlord
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from Tenant after the termination in any way of the Term or of Tenant's right of
possession hereunder or after the giving of any notice shall reinstate, continue
or extend the Term or affect any notice given to Tenant prior to the receipt of
such monies. It is also agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any monies due and the payment of said monies
shall not waive or affect said notice, suit or judgment.
26. ESTOPPEL CERTIFICATE. Tenant agrees that from time to time upon
written request by Landlord or the holder of any Mortgage or any ground lessor,
Tenant, or any permitted assignee, subtenant or other occupant of the Premises
claiming by, through or under Tenant ("Tenant-successor"), will deliver to
Landlord or to the holder of any Mortgage or ground lessor or contract purchaser
of an interest in Landlord or in the Building within twenty (20) days after such
written request shall have been served upon Tenant or Tenant-successor, a
statement in writing signed by Tenant or Tenant-successor certifying, (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the Lease, as modified, is in full force and effect and
identifying the modifications); (b) the date upon which Tenant or
Tenant-successor began paying Rent and the dates to which the Rent and other
charges have been paid; (c) the date upon which the Term shall end; (d) that the
Landlord is not in default under any provision of this Lease or, if in default,
the nature thereof in detail; (e) that the Premises have been completed in
accordance with the terms hereof and Tenant or Tenant-successor is in occupancy
and paying Rent on a current basis with no rental offsets or claims; (f) that
there has been no prepayment of Rent other than that provided for in the Lease;
(g) the amount of any security deposit made by Tenant or Tenant-successor; (h)
that there are no actions, whether voluntary or otherwise, pending against
Tenant under the bankruptcy laws of the United States or any State thereof; and
(i) such other matters as may be required by the Landlord, holder of a Mortgage,
ground lessor or contract purchaser. In the event Tenant fails to provide such
written statement within twenty (20) days after demand in writing, Tenant shall
be considered in default under this Lease.
27. INTENTIONALLY OMITTED.
28. REAL ESTATE BROKERS. Landlord and Tenant represent to each other
that they have directly dealt with and only with OREE Management Inc. and ▇▇▇▇
▇▇▇▇▇▇▇ & Company (whose commission, if any, shall be paid by Landlord pursuant
to separate agreement) as broker in connection with this Lease and each party
agrees to indemnify and hold the other harmless from all damages, liability and
expense (including attorneys' fees) arising from any claims or demands of any
broker or brokers or finders for any commission alleged to be due such broker or
brokers or finders in connection with its participating in the negotiation of
this Lease.
29. NOTICES. All notices to or demands upon Landlord or Tenant desired
or required to be given under any of the provisions hereof shall be in writing.
Any notices or demands from Landlord to Tenant shall be deemed to have been
given if a copy thereof has been personally delivered to Tenant or Tenant's
agent (including without limitation, delivery by messenger or courier, with
evidence of receipt) or mailed by United States registered or certified mail,
return receipt requested, addressed to Tenant at the address of the Premises
after Tenant's occupancy of the Premises and at the following address if Tenant
has not taken occupancy of the Premises:______________________. Any notices or
demands from Landlord to Tenant may be signed by Landlord, its beneficiaries,
the managing agent for the Building or any agent of any of them. Any notices or
demands from Tenant to Landlord shall be deemed to have been given if a copy
thereof has been personally delivered to Landlord or the managing agent of the
Building (including without limitation delivery by messenger or courier, with
evidence of receipt) or mailed by United States registered or certified mail,
return receipt requested, to Landlord in care of OREE Management Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Landlord, its beneficiaries, or the
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managing agent of the Building may, upon notice to Tenant, change either the
address for, or the party who shall receive, notices or demands from Tenant to
Landlord on Landlord's behalf. All notices to or demands upon Landlord or Tenant
mailed by registered or certified mail, return receipt requested, shall be
deemed served at the time the same were posted.
30. MISCELLANEOUS.
A. Successors and Assigns. Each provision of this Lease shall
extend to and shall bind and inure to the benefit not only of Landlord and
Tenant, but also their respective heirs, legal representatives, successors and
assigns, but this provision shall not operate to permit any transfer,
assignment, mortgage, encumbrance, lien, charge, or subletting contrary to the
provisions of Section 15.
B. Amendments. All of the agreements of Landlord and Tenant with
respect to the Premises are contained in this Lease and no modification, waiver
or amendment of this Lease or of any of its conditions or provisions shall be
binding upon either party hereto unless in writing signed by both parties.
C. Execution and Delivery. Submission of this instrument for
examination shall not constitute a reservation of or option for the Premises or
in any manner bind Landlord and no lease or obligation on Landlord shall arise
until this instrument is signed and delivered by Landlord and Tenant; provided,
however, the execution and delivery by Tenant of this Lease to Landlord or the
agent of Landlord's beneficiary shall constitute an irrevocable offer by Tenant
to lease the Premises on the terms and conditions herein contained, which offer
may not be revoked for twenty (20) days after such delivery.
D. Tenant. The word "Tenant" whenever used herein shall be
construed to mean Tenant or any one or more of them in all cases where there is
more than one Tenant, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or other organizations,
partnerships, or other entities, or individuals, shall in all cases be assumed
as though in each case fully expressed. In all cases where there is more than
one Tenant, the liability of each shall be joint and several.
E. Riders. Clauses, plats, and riders, if any, signed by Landlord
and Tenant and endorsed on or affixed to this Lease are part hereof and in the
event of variation or discrepancy the duplicate original hereof, including such
clauses, plats and riders, if any, held by Landlord shall control.
F. Headings. The headings of Sections and Paragraphs are for
convenience only and do not limit, expand or construe the contents of the
Sections.
G. Time of Essence. Time is of the essence of this Lease and of
each and all provisions thereof.
H. Severability. The invalidity of any provisions of this Lease
shall not impair or affect in any manner the validity, enforceability or effect
of the rest of this Lease.
I. Entire Agreement. All understandings and agreements, oral or
written, heretofore made between the parties hereto are merged in this Lease,
which alone fully and completely expresses the agreement between Landlord, its
agents and Tenant.
J. Recording. The parties hereto agree this Lease shall not be
recorded and any action in violation of the terms of this Paragraph J will
constitute a default under this Lease.
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K. No Joint Venturer. Nothing herein and no action or inaction
whatsoever on the part of Landlord, shall be deemed to make Landlord a partner
or joint venturer with Tenant.
L. Application of Payments. Landlord shall have the right to
determine the priority of application of Tenant payments to outstanding
obligations of Tenant.
M. Governing Law. This Lease has been negotiated, executed and
delivered in the State of Illinois, and the parties agree that the rights and
obligations of the parties under this Lease shall be governed by and construed
in accordance with the laws of the State of Illinois, without reference of
Illinois choice-of-law precedent.
N. Lease Tax. Tenant agrees, as and when required by Landlord, to
pay to Landlord all amounts due, if any, pursuant to any tax on this Lease
imposed by the City of Chicago or other federal, state or local governing body.
31. DELIVERY OF POSSESSION. If the Landlord shall be unable to give
possession of the Premises on the date of the commencement of the Term for any
reason, Landlord shall not be subject to any liability for failure to give
possession. Under such circumstances the Rent reserved and covenanted to be paid
herein shall not commence until the Premises are available for occupancy, and no
such failure to give possession on the date of commencement of the Term shall
affect the validity of this Lease or the obligations of the Tenant hereunder,
nor shall the same be construed to extend the Term.
32. LANDLORD. The term "Landlord" as used in this Lease means only the
owner or owners at the time being of the Building and the Land so that in the
event of any assignment, conveyance or sale, once or successively, of said Land
and Building, or any assignment of this Lease by Landlord, said Landlord making
such sale, conveyance or assignment shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder accruing after
such conveyance, sale or assignment, and Tenant agrees to look solely to such
purchaser, grantee or assignee with respect thereto. This Lease shall not be
affected by any such conveyance, assignment or sale, and Tenant agrees to attorn
to the purchaser, grantee or assignee.
33. TITLE AND COVENANT AGAINST LIENS. The Landlord's title is and
always shall be paramount to the title to the Tenant and nothing in this Lease
contained shall empower the Tenant to do any act which can, shall or may
encumber the title of the Landlord. Tenant covenants and agrees not to suffer or
permit any lien of mechanics or materialmen to be placed upon or against the
Property, the Building, or the Premises or against the Tenant's leasehold
interest in the Premises and, in case of any such lien attaching, to immediately
pay and remove same. Tenant has no authority or power to cause or permit any
lien or encumbrance of any kind whatsoever, whether created by act of Tenant,
operation of law or otherwise, to attach to or be placed upon the Property,
Building or Premises, and any and all liens and encumbrances created by Tenant
shall attach only to Tenant's interest in the Premises. If any such liens
created, caused or permitted by Tenant so attach and Tenant fails to pay and
remove same within ten (10) business days, Landlord, at its election, may pay
and satisfy the same and in such event the sums so paid by Landlord, with
interest from the date of payment at the Default Rate for amounts owed Landlord
by Tenant shall be deemed to be Additional Rent due and payable by Tenant at
once without notice or demand.
26
29
34. SECURITY DEPOSIT.
A. Tenant shall deposit with Landlord on the date of this Lease
security for the performance of all of its obligation initially in the amount of
$52,000 and in the form described below. If Tenant defaults under this Lease,
Landlord may use any part of the security deposit to make any defaulted payment,
to pay for Landlord's cure of any defaulted obligation, or to compensate
Landlord for any loss or damage resulting from any default. To the extent any
portion of the security deposit is used, Tenant shall within five (5) days after
written demand from Landlord reinstate the Letter of Credit (as defined below)
or restore the deposit, as the case may be, to the full amount Tenant is then
obligated to maintain as the security deposit. When the security deposit is not
in the form of a Letter of Credit, Landlord may keep the security deposit in its
general funds and shall not be required to pay interest to Tenant on the deposit
amount. If Tenant shall perform all of its obligations under this Lease and
return the Premises to Landlord at the end of the Term, Landlord shall return
all of the remaining security deposit or Letter of Credit to Tenant within a
reasonable time period not to exceed forty-five (45) days. The security deposit
shall not serve as an advance payment of Rent or a measure of Landlord's damages
for any default under this Lease.
B. The Security Deposit shall initially be in the form of an
unconditional and irrevocable letter of credit (the "Letter of Credit"), which
Letter of Credit shall (a) be in the amount of $52,000 during the period of the
Commencement Date through and including April 30, 1999, and after April 30, 1999
through the end of the Lease Term, the security deposit shall be in the amount
of $11,380.69 and be in the form of either a Letter of Credit or cash, (b) be in
form and substance reasonably satisfactory to Landlord, (c) name Landlord as its
beneficiary, (d) expressly allow Landlord to draw upon it at any time or from
time to time by delivering to the issuer written notice that Landlord is
entitled to draw thereunder, (e) be drawn on an FDIC-insured financial
institution satisfactory to Landlord, and (f) be freely assignable by Landlord
to any successor to Landlord's interest in the Property. If Landlord is not
provided with either a substitute Letter of Credit complying with all of the
requirements hereof or with an amendment to the existing Letter of Credit
extending the expiration thereof at least ten (10) days before the stated
expiration date thereof, then Landlord shall have the right to draw under such
Letter of Credit then held by Landlord and hold such funds as a security deposit
in accordance with the terms of this Section 34 until such time as Tenant
delivers Landlord a substitute Letter of Credit. If Landlord transfers its
interest in the Property or this Lease, Landlord may transfer the security
deposit to its transferee if the security deposit is in cash or Tenant will
cause either the issuance of a new Letter of Credit for the benefit of the
transferee or the existing Letter of Credit to be amended to reflect issuance in
favor of the new beneficial transferee. Upon such transfer, Landlord shall have
no further obligation to return the security deposit to Tenant, and Tenant's
right to the return of the security deposit shall apply solely against
Landlord's transferee.
35. EXCULPATORY PROVISIONS. It is expressly understood and agreed by
and between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of Landlord while in form purporting to
be the representations, warranties, covenants, undertakings and agreements of
Landlord are nevertheless each and every one of them made and intended, not as
personal representations, warranties, covenants, undertakings and agreements by
Landlord or for the purpose or with the intention of binding Landlord
personally, but are made and intended for the purpose only of subjecting
Landlord's interest in the Building, the Property and the Premises to the terms
of this Lease and for no other purpose whatsoever, and in case of default
hereunder by Landlord (or default through, under or by any of its beneficiaries,
or agents or representatives of said beneficiaries), the Tenant shall look
solely to the interest of Landlord in the Building and Property.
[signature page follows]
27
30
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
on the day and year first above written.
LANDLORD:
ONE HUNDRED NORTH RIVERSIDE, INC.,
a Delaware corporation
ATTEST: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ Signature Illegible
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
By:
------------------------------
Name:
------------------------
Title:
-----------------------
TENANT:
UNIVERSAL, ACCESS, INC.,
an Illinois corporation
ATTEST: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ Signature Illegible
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: President & CEO
------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Title: Board Member
------------------
28
31
EXHIBIT A
Preliminary Plan
A-1
32
EXHIBIT B
Legal Description
PARCEL 1 (THE FEE PARCEL):
ALL OF WEST WATER STREET LYING SOUTH OF THE SOUTH LINE OF ▇▇▇▇▇▇▇▇ STREET, LYING
NORTH OF THE NORTH LINE OF WASHINGTON STREET, LYING WEST OF AND ADJOINING
WHARFING LOTS 1 TO 5, BOTH INCLUSIVE, IN BLOCK "0" IN ORIGINAL TOWN OF CHICAGO
IN THE SOUTH PART OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN AND LYING EAST OF A DIRECT LINE DRAWN FROM A POINT ON THE
SOUTH LINE OF LOT 9 IN BLOCK 44 IN ORIGINAL TOWN OF CHICAGO, 41.87 FEET EAST OF
THE SOUTH WEST CORNER OF SAID LOT 9, TO A POINT ON THE NORTH LINE OF LOT 1 IN
SAID BLOCK 44, 85.70 FEET EAST OF THE NORTH WEST CORNER OF SAID LOT 1, AS SHOWN
AND LOCATED ON THE PLAT RECORDED AUGUST 18, 1855, AS DOCUMENT NUMBER 62008 IN
▇▇▇▇ COUNTY, ILLINOIS.
PARCEL 2 (THE GROUND LEASE PARCEL):
THAT PART OF ▇▇▇▇ ▇, ▇, ▇, ▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ OF A DIRECT LINE DRAWN FROM THE
POINT OF INTERSECTION OF THE WEST LINE OF WEST WATER STREET AND THE SOUTH LINE
OF SAID LOT 9, BEING A POINT ON THE SOUTH LINE OF LOT 9 APPROXIMATELY 41.87 FEET
EAST OF THE SOUTH WEST CORNER OF LOT 9, TO THE POINT OF INTERSECTION OF THE WEST
LINE OF WEST WATER STREET AND THE NORTH LINE OF LOT 1, BEING APPROXIMATELY 85.70
FEET EAST OF THE NORTH WEST CORNER OF LOT 1 IN BLOCK 44 IN ORIGINAL TOWN OF
CHICAGO IN ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE MAP OF THE TOWN OF CHICAGO BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ DATED
AUGUST 4, 1830 AND FILED FOR RECORD MAY 29, 1837 AND RECORDED JULY 6, 1837 IN
BOOK H OF MAPS, PAGE 298 AS DOCUMENT 5060 IN ▇▇▇▇ COUNTY, ILLINOIS.
Common Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
B-1
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EXHIBIT C
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CLEANING SPECIFICATIONS
Nightly (between the hours of 5:00 P.M. and 6:00 A.M., Monday through Friday,
Union Holidays excepted):
*Dust and wipe elevator door, walls, metal work and saddles in elevator cab.
*Empty and clean all waste receptacles, ash trays and sand urns.
*Wash, clean and disinfect all water fountains and water coolers.
*Hand dust office furniture tops.
*Remove all rubbish and trash to a designated area.
*Spot vacuum as necessary.
*Dust mop all uncarpeted areas, using treated mops and damp mop as necessary to
remove any stains and spills.
*Damp mop floors in entrance foyers, public corridors, if applicable, and other
heavily trafficked areas.
*Dust and rub down mail chutes, mail depository, etc.
*Wet sponge wipe table tops in employee lounge, including cleaning of any
spills, if applicable.
*During nightly tour, extinguish lights, lock doors and report any malfunctions.
*Keep locker, storage and slop sink rooms in a clean and orderly condition.
*Maintain front elevator lobbies, cabs and vacuum elevator door tracks.
*Clean all wash and rest rooms.
a. All cleaning will be performed with approved germicidal detergents at
disinfectant strengths.
b. All toilets and urinals will be cleaned on all surfaces nightly; acid
bowl cleaner to be used in the interior.
c. All wash basins, shelves, dispensers and all other washroom fixtures
will be cleaned nightly.
d. All mirrors will be cleaned and polished nightly.
e. All chrome and other bright work including exposed plumbing, toilet
seat hinges, etc. will be cleaned and polished nightly.
C-1
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f. All partitions and tiled walls to be spot cleaned nightly and
thoroughly cleaned weekly.
g. All waste receptacles are to be emptied and cleaned nightly.
h. All lavatory floors will be swept and mopped with a germicidal
detergent solution nightly.
i. All lavatory floors will be machine scrubbed once every three months.
j. Washroom supplies will be replenished nightly.
k. Washroom supplies in common area washrooms to be furnished by
Landlord.
Weekly:
*Vacuum all rugs and carpeting, moving light furniture other than desks, file
cabinets, etc. (separate sections each night so that each carpeted area is
thoroughly vacuumed at least once weekly).
*Damp wipe waste receptacles, ash trays and sand urns as necessary.
*Damp mop all uncarpeted areas and/or spray buff for heavy scuffs.
*Spot clean carpet.
*Remove all finger marks and smudges from doors, partitions, woodwork, window
ledges and window mullions.
*Wash all directory board, display, entry door and side light glass, as
necessary.
*Damp wipe tops of desks, file cabinets.
Monthly:
*All uncarpeted floor areas to be washed.
*Shampoo all elevator carpeting.
Quarterly:
High Dusting
a. Dust in place all pictures, frames, charts, graphs and similar wall
hangings.
b. Dust clean all vertical surfaces, such as walls, partitions, doors,
books and other surfaces not reached in nightly cleaning.
c. Sweep or dust mop stairwell landings and heads.
*Dust clean all exposed pipes, air-conditioning louvers, ducts and other areas
not reached in nightly cleaning.
C-2
35
*Dust clean all lighting fixtures.
*All lavatory floors will be machine scrubbed.
Tri-Annually:
*All tile floor areas to be scrubbed, waxed (using buffable and non-slip type
floor finish) and buffed.
Annually:
*Shampoo all rugs and carpeting in common areas.
As Required:
*Remove snow and ice from sidewalks serving the property.
*Spot clean glass partitions and doors.
*Wash windows inside and out (not to exceed two times per year).
*Dust vinyl base.
*Clean mechanical louvers (not to exceed two times per year).
C-3
36
EXHIBIT D
WORK LETTER
One Hundred North Riverside, Inc. (the "Landlord") and Universal
Access, Inc. (the "Tenant") are executing simultaneously herewith a lease (the
"Lease") leasing certain office space (the "Premises") more particularly
described in the Lease. In connection with the execution of that Lease, the
parties have further agreed as follows:
1. Preliminary Plans. Landlord has prepared a plan of the Premises
depicting the construction work which is to be performed in order to prepare the
Premises for Tenant's use and occupancy (the "Preliminary Plan") which is
attached to the Lease as Exhibit A, which has been approved and initiated by
Landlord and Tenant. All construction work depicted on the Preliminary Plans
shall be performed for Tenant by Landlord ("Landlord's Work"). Landlord and
Tenant agree that the cost of constructing and installing Landlord's Work shall
be paid by Landlord up to the amount of Landlord's Contribution (as defined
below) and any excess shall be paid for by Tenant.
2. Working Drawings. Landlord shall cause to be prepared the final
architectural, mechanical (including heating, ventilating and air-conditioning),
electrical, plumbing, structural plans and specifications ("Working Drawings")
necessary to complete the work depicted on the Preliminary Plans.
Landlord shall submit the finished Working Drawings to Tenant. If within
five (5) business days after receipt from Landlord Tenant fails to initial, and,
if Tenant has any corrections thereon, to make such corrections on the Working
Drawings, and return said Working Drawings, the Working Drawings shall be deemed
approved by Tenant, and Landlord, in its sole discretion, may proceed to
complete the work in accordance with the Working Drawings.
3. Extra Work. From time to time, Tenant may request Landlord to do
additional work not depicted on the Preliminary Plans ("Extra Work") provided
that said Extra Work, in Landlord's sole judgment, (i) shall not delay
completion of the Premises and the commencement of the Term of the Lease; (ii)
shall be practicable and consistent with existing physical conditions in the
Building and with the plans for the Building; (iii) shall not impair Landlord's
ability to perform any of Landlord's obligations hereunder or under the Lease or
any other lease of space in the Building; and (iv) shall not affect any portion
of the Building other than the Premises.
a. In the event Tenant requests Landlord to perform Extra Work
and if Landlord accedes to such request, then and in that event, prior
to commencing such Extra Work, Landlord shall submit to Tenant a written
estimate ("Estimate") for said Extra Work to be performed. Within five
(5) days after Landlord's submission of the Estimate, Tenant shall, in
writing, either accept or reject the Estimate. Tenant's failure either
to accept or reject the Estimate within said five (5) business day
period shall be deemed a rejection thereof and Landlord shall proceed
with the work depicted on the Preliminary Plans as if no request for
Extra Work had been made.
b. In the event Landlord performs Extra Work hereunder, the cost
of such Extra Work shall be paid by Tenant to Landlord within five (5)
days of demand therefor.
D-1
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4. Landlord's Contribution. Landlord shall contribute an amount not to
exceed the product obtained by multiplying $7.00 by the number of rentable
square feet comprising the Premises (which equates to $43,953: 6,279 rentable
square feet x $7) (the "Landlord's Contribution") to be applied toward the costs
incurred by Tenant in connection with the Landlord's Work. If the costs incurred
by Landlord in connection with the Landlord's Work exceed the Landlord's
Contribution, Tenant shall pay all of such excess costs.
5. Punch List. When Landlord is of the opinion that the Work described
in this Work Letter is complete, then the Landlord shall notify the Tenant of
the date of substantial completion of the Work. Tenant agrees that following
such notification Tenant will inspect the Premises at a mutually agreeable date
and furnish to Landlord a written statement that the Premises have been
substantially completed in accordance with this Work Letter. Tenant shall also
execute Landlord's form of inspection report listing any items which Landlord
and Tenant agree are not yet completed (the "Punch List"). If Tenant or Tenant's
duly authorized representative does not appear for inspection on the date
designated by Landlord, Tenant shall be deemed to have accepted the Premises as
substantially completed, and Landlord or its representative may, but shall not
be obligated to, execute the Punch List on behalf of both Landlord and Tenant.
At the request of the Landlord, from time to time thereafter, the Tenant shall,
upon completion of items previously listed on a Punch List, promptly furnish to
the Landlord a revised Punch List acknowledging completion of said item.
Provided Punch List items would not materially impair the Tenant's use or
occupancy of the Premises, then, in such event, the Tenant shall accept
possession of the Premises. The date which is the earlier of either (i) the date
upon which the Tenant accepts possession of the Premises, or (ii) the date upon
which the Premises are complete and ready for occupancy is referred to herein as
the "Completion Date". The Premises shall not be deemed incomplete or not ready
for occupancy if only insubstantial details of construction, decoration or
mechanical adjustments remain to be done. The determination of Landlord's
architect or the interior space planner for the Building shall be final and
conclusive as to whether the Premises are complete and ready for occupancy.
Under no circumstances shall the occurrence of any of the events described in
this paragraph be deemed to accelerate or defer the expiration date of the Term.
6. Possession. The Tenant will take possession of the Premises as of
and on the Completion Date. Landlord has not agreed or represented that the
Premises will be substantially ready for occupancy on the date specified in
Section 2 of the Lease for the commencement of the Term. If, for any reason
whatsoever, the Premises are not complete or ready for occupancy on said date,
this Lease shall nevertheless continue in full force and effect, and no
liability shall arise against Landlord because of any such delay; provided,
however, that all Rent due hereunder shall ▇▇▇▇▇ on a per diem basis until the
Completion Date. Notwithstanding the foregoing, if the Premises are not complete
or ready for occupancy due to any special equipment, fixtures or materials,
changes, alterations or additions or Extra Work requested by Tenant or any delay
of Tenant in complying with the terms and Submission Date as set forth in this
Work Letter, the payment of Rent shall not be affected or deferred on account
thereof. All of the covenants and conditions of this Lease, including the
obligation to pay Rent, shall be binding upon the Tenant in respect to such
occupancy as if the first day of the Term had been the date when Tenant began
such occupancy.
7. Landlord's Entry After Substantial Completion. At any time after the
Completion Date, Landlord may enter the Premises to complete the Punch List
items and such entry by Landlord, its agents, servants, employees or contractors
for such purpose shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of Rent, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents.
8. Delays. Notwithstanding the date provided in the Lease for
commencement of the Term, Tenant's obligation to pay Rent under the Lease shall
not commence until the Completion Date; provided,
D-2
38
however, if Landlord shall be delayed in substantially completing the Work for
any reason set forth in the following subparagraphs (a) through (g) of this
Paragraph 7 ("Tenant Delay"), then the commencement of the Term of the Lease and
the payment of Rent thereunder shall not be affected or deferred on account of
such delay:
a. Tenant's failure to furnish information required for the
preparation of the Working Drawings as and when required hereby; or
b. Tenant's failure to accept or reject the Estimate for Extra
Work within the time prescribed in this Work Letter; or
c. Tenant's request for materials, finishes or installations
other than Building Standard; or
d. Tenant's failure to pay for any portion of the Work as and
when payable by Tenant hereunder; or
e. Tenant's change in the Work, the Preliminary Plans, the
Working Drawings, or the Extra Work after initial approval by Landlord
(notwithstanding Landlord's further approval of any such changes); or
f. Any other act, omission or delay by Tenant, its agents,
contractors or persons employed by any of such persons; or
g. Tenant's failure to comply with the terms of others
Workletter.
D-3
39
EXHIBIT E
RULES AND REGULATIONS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by the Tenant. The halls, passages, entrances, elevators, stairways,
balconies and roof are not for the use of the general public and the Landlord
shall in all cases retain the right of control and prevent access thereto of all
persons whose presence in the judgment of the Landlord shall be prejudicial to
the safety, character, reputation and interests of the Building and its tenants
provided that nothing herein contained shall be construed to prevent such access
to persons with whom the Tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal activities. The Tenant and
its employees shall not go upon the roof of the Building without the written
consent of the Landlord.
2. The sashes, sash doors, windows, glass lights and any lights or
skylights that reflect or admit light into multi-tenant halls or other common
areas of the building shall not be covered or obstructed. The toilet rooms,
water and wash closets and other water apparatus shall not be used for any
purpose other than that for which they were constructed and no foreign
substances of any kind whatsoever shall be thrown therein and the expense of any
breakage, stoppage or damage, resulting from the violation of this rule, shall
be banned by the Tenant who, or whose clerk, agents, servants or visitors shall
have caused it.
3. If the Landlord, by a notice in writing to the Tenant, shall object
to any curtain, blind, shade or screen attached to, or hung in, or used in
connection with, any window or door of the Premises, such use of such curtain,
blind, shade or screen shall be forthwith discontinued by the Tenant. No awnings
shall be permitted on any part of the Premises.
4. No safes or other objects heavier than the lift capacity of the
freight elevators of the building shall be brought into or installed on the
Premises. The Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. The moving of safes shall occur only between such hours
as may be designated by, and only upon previous notice to, the manager of the
Building, and the persons employed to move safes in or out of the Building must
be acceptable to the Landlord. No freight, furniture or bulky matter of any
description shall be received into the Building or carried into the elevators
except during hours and in a manner approved by the Landlord.
5. The Tenant shall not use, keep or permit to be used or kept any foul
or noxious gas or substance in the Premises or permit or suffer the Premises to
be occupied or used in a manner offensive or objectionable to the Landlord or
other occupants of the Building by reason of noise, odors and/or vibrators, or
interfere in any way with other Tenants or those having business therein, nor
shall any animals or birds (except seeing-eye dogs) be kept in or about the
Building.
6. Tenant shall not use or permit to be brought into or kept in the
Premises or on the Property any inflammable oils or fluids, or any explosive or
other articles deemed hazardous to person or property; or do or permit to be
done any act or thing which will invalidate or be in conflict with fire or other
insurance policies covering the Property or its operation, or the Premises, or
part of either; or do or permit to be done anything in or upon the Premises,
which shall not comply with all rules, orders, regulations or requirements of
the Illinois Inspection and Rating Bureau, the Fire Insurance Rating
Organization, the Board of Fire
E-1
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Underwriters, or any similar organization (and Tenant shall at all times comply
with all such rules, regulations or requirements), or which shall increase the
rate of insurance on the Building, its appurtenances or contents. If by reason
of the failure of Tenant to comply with the provisions of this paragraph,
including, but not limited to, the mere use to which Tenant shall put the
Premises, any insurance coverage is jeopardized or insurance premiums are at any
time increased above what they otherwise would be, Landlord shall have the
option, in addition to its other rights and remedies, either to terminate this
Lease or to require Tenant to make immediate payment of the increased insurance
premium as Additional Rent.
7. If the Tenant desires telephonic, telegraphic, burglar alarm,
computer installations or signal service (which service shall be at Tenant's
sole expense), the Landlord shall, upon request, direct electricians as to where
and how all connections and wires for such service are to be introduced and run.
No boring or cutting for wires or otherwise shall be made without specific
directions from the Landlord.
8. The Tenant, upon termination of the tenancy, shall deliver to the
Landlord all the keys of offices, rooms and toilet rooms which shall have been
furnished the Tenant or which the Tenant shall have made, and in the event of
loss of any keys so furnished, shall pay the Landlord therefor.
9. The Tenant shall not put down any floor covering in the Premises
without the Landlord's prior approval of the manner and method of applying such
floor covering.
10. On Saturdays, Sundays and legal holidays and on other days between
the hours of 6:00 p.m. and 8:00 a.m., access to the Building or to the halls,
corridors, elevators or stairways in the Building, or to the Premises may be
refused unless the person seeking access is known to the watchman of the
Building in charge and has a pass or is properly identified. The Landlord shall,
in no case, be liable for damages for the admission to or exclusion from the
Building of any person whom the Landlord has the right to exclude under Rule 1
above. In case of invasion, mob, riot, public excitement or other commotion, the
Landlord reserves the right to prevent access to the Building during the
continuance of the same by closing the doors or otherwise, for the safety of the
tenants or the Landlord and protection of property in the Building.
11. The Tenant assumes full reasonable responsibility for protecting the
Premises from theft, robbery and pilferage which includes keeping doors locked
and windows and other means of entry to the Premises closed. Any damage
resulting from a failure to do so shall be paid by Tenant.
12. The Tenant shall not alter any lock or install a new or additional
lock or any bolt on any door, window or transom of the Premises without prior
written consent of the Landlord. If the Landlord shall give its consent, the
Tenant shall in each case furnish the Landlord with a key for any such lock.
13. The Tenant shall not waste electricity, water or air conditioning
and agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning and shall not allow the
adjustment (except by Landlord's authorized building personnel) of any controls
other than room thermostats installed for the Tenant's use. The Tenant shall
keep corridor doors closed and shall not open any windows except that if the air
circulation shall not be in operation, windows which are operable may be opened
with Landlord's consent.
14. Tenant shall not do any cooking in the Premises, except in an
employee cafeteria, or engage any commercial coffee cart service.
▇-▇
▇▇
▇▇. Prior to removing furniture equipment or other items from the
Premises or the Building, Tenant must submit a written list of such items to
Landlord and obtain a removal permit thereof from the building manager
authorizing Building employees to permit such articles to be removed.
16. Tenant shall not paint, display, inscribe or affix any sign,
trademark, picture, advertising, notice, lettering or direction on any part of
the outside or inside of the Building, or on the Premises, except on the public
hallway doors of the Premises, and then only such name or names or matter and of
such color, size, style, character and material as shall be first approved by
Landlord in writing. Landlord reserves the right to remove any other matter
without notice to Tenant at the cost and expense of Tenant.
17. Tenant shall not advertise the business, profession or activities of
Tenant in any manner which violates the letter or spirit of any code of ethics
adopted by any recognized association or organization pertaining thereto or use
the name of the Building for any purpose other than that of the business address
of Tenant, or use any picture or likeness of the Building or "100 North
Riverside Plaza", or any other name by which the Building may from time to time
be known, on any letterhead, envelope, circular, notice, advertisement,
container or wrapping material, without the prior written consent of Landlord.
18. Tenant shall not place any radio or television antenna aerial wires
or other equipment on the roof or on or in any part of the inside or outside of
the Building other than the inside of the Premises; operate or permit to be
operated any musical or sound producing instrument or device inside or outside
the Premises which may be heard outside the Premises, operate any electrical
device which may interfere with or impair radio or television broadcasting or
reception from or in the Building or elsewhere.
19. Tenant shall not place anything or allow anything to be placed near
the glass of any door, partition, or window which may be unsightly from outside
the Premises; take or permit to be taken in or out of other entrances of the
Building, or take or permit on other elevators, any item normally taken in or
out through the trucking concourse or service doors or in or on freight
elevators; or, whether temporarily, accidentally, or otherwise, allow anything
to remain in, place or store anything in, or obstruct in any way, any
passageway, exit, stairway, elevator, shipping platform, or truck concourse.
Tenant shall lend its full cooperation to keep such areas free from all
obstruction and in a clean and sightly condition and move all supplies,
furniture and equipment as soon as received directly to the Premises and move
all such items and waste, other than waste customarily removed by employees of
the Building, being taken from the Premises, directly to the shipping platform
at or about the time arranged for removal therefrom.
20. Tenant shall not do any painting or decorating in the Premises, or
▇▇▇▇, paint, cut or drill into, drive nails or screws into, or in any way deface
any part of the Premises or the Building, outside or inside, without the prior
written consent of Landlord.
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New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
Christmas and such other holidays observed customarily in comparable first class
office buildings in the City of Chicago with major service industry tenants,
such as accounting firms and law firms.
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