EXHIBIT 10.11
FIRST AMENDMENT
TO LEASE AGREEMENT DATED June 10, 1994
BETWEEN
CONTINENTAL OFFICES LTD., AND
AMERICAN SCHOOLS OF PROFESSIONAL PSYCHOLOGY
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THIS AGREEMENT, dated July 3, 1996 between CONTINENTAL OFFICES LTD., as
agent for the Owners of the beneficial interest in American national Bank and
trust Company of Chicago Trust No. 40935, Landlord, having its office at Two
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Meadows, Illinois, and
AMERICAN SCHOOLS OF PROFESSIONAL PSYCHOLOGY, Tenant.
WITNESSETH
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated June 10,
1994, (the "Lease");
WHEREAS, the parties desire to amend the Lease to include additional space;
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Effective August 1, 1996, Tenant shall lease an additional 2,432 rentable
square feet on the first floor of Tower Two as shown on the attached Exhibit 'A'
(the "Additional Premises").
2. Effective August 1, 1996, the Building as defined in Section 1(a) of the
Lease shall be deleted and the following shall be inserted in its place:
BUILDING:
BUILDING ONE: BUILDING TWO:
One Continental Towers Two Continental Towers
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Wherever the term Building is used in the Lease it shall apply to both Building
One and Building Two unless either of the terms Building On or Building Two is
specifically used.
3. Effective August 1, 1996, Section 1(i) of the Lease shall be deleted and
the following inserted in its place:
Measurable Area of the Premises - Building One 7,050 Measurable Square Feet
Measurable Area of the Premises - Building Two 2,133 Measurable Square Feet
Measurable area of the Premises - 9,183 Measurable Square Feet
4. Effective August 1, 1996, Section 1(j) of the Lease shall be deleted and
the following inserted in its place:
Rentable Area of Building One 280,299 Rentable Square Feet
Rentable Area of Building Two 280,607 Rentable Square Feet
5. Effective August 1, 1996, Section 1(l) of the Lease shall be deleted and
the following inserted in its place:
Rentable Area of the Premises - Building One 8,037 Rentable Square Feet
Rentable Area of the Premises - Building Two 2,432 Rentable Square Feet
Rentable Area of the Premises - 10,469 Rentable Square Feet
6. Effective August 1, 1996, the premises as defined in Section 2 of the Lease
shall be amended to include "a portion of the west side of the first floor of
Tower Two" as indicated on Exhibit 'A' attached hereto.
7. Effective August 1, 1996, the Annual Base Rent for the Additional Premises
shall be Thirty-Eight-Thousand-Nine-Hundred-Twelve and 00/100 Dollars
($38,912.00) payable in equal monthly installments of Three-Thousand-Two-
Hundred-Forty-Two-and-67/100-Dollars ($3,242.67).
8. ADDITIONAL RENT CREDIT. In additional to the rent credit stated in Rider
Section 29, Tenant shall receive rent credit in the amount of Thirty-Five-
Thousand-One-Hundred-Fifty-and-00/100-Dollars amortized From August 1, 1996
through August 14, 1999 at Nine-Hundred-Sixty-Three-and-00/100-Dollars ($963.00)
per month.
9. TENANT IMPROVEMENTS. Landlord will remodel the demised premises in
accordance with Space Plan Scheme 8, dated June 25, 1996 and the office portion
of space Plan SP-1, dated May 31, 1995. The cost of the remodeling work is
estimated to be $59,719.00, based upon the scope described on Exhibit 'C'.
Landlord will contribute $12,160.00 towards the cost of remodeling. Tenant has
the right to use the balance of $10,749.23 remaining in their initial tenant
construction allowance towards the cost of remodeling. Tenant will be sent an
invoice within thirty (30) days after the completion of the remodeling for the
remaining cost of the remodeling.
10. BASE RENT ADJUSTMENT. In addition to the Base Rent Adjustment stated in
Section 5(h)(iii), Tenant shall pay as additional rent a sum equal to three
percent (3%) of $27,360.00 in lieu of a Consumer Price Increase commencing
August 1, 1997 for said Additional Premises.
11. Notwithstanding anything to the contrary contained in Section 6(g) of the
Lease, all electricity used in the Additional Premises in Building Two shall be
separately metered and Tenant shall pay electric bills directly to the local
electric utility company.
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Except as expressly modified in this Amendment, the Lease is ratified and
confirmed in all respects.
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TENANT LANDLORD
American Schools of Professional Continental Offices Ltd, as
Psychology agent for the owners of the
beneficial interest in American
National Bank and Trust of
Chicago Trust No. 40893
By: ______________________________ By: __________________________
Its: President Its: President
ATTEST ATTEST
By: ______________________________ By: __________________________
Its: Its: Executive Vice President
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June 14, 1994
Mr, ▇▇▇▇▇▇ ▇▇▇▇▇
American Schools of
Professional Psychology
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Continental Towers Lease Agreement
Dear ▇▇. ▇▇▇▇▇:
Enclosed please find a draft copy of the Lease Agreement.
Please call ▇▇▇▇ ▇▇▇▇▇ with any questions or comments you may have.
Sincerely,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lease Administrator
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NET LEASE - TOWER I
TABLE OF CONTENTS
TITLE PAGE NO.
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Access to Premises 11
Alterations 11
Assignment----Subletting 14
Base Rent Adjustment 2
Basic Lease Provisions 1
Care and Maintenance 10
Certain Rights Reserved by the Landlord 17
Condition of Premises 7
Default Under Other Lease 22
Eminent Domain 13
Failure to Give Possession 7
Good Faith Deposit 23
Holding Over 8
Insurance 12
Landlord's Remedies 19
Miscellaneous 24
Mortgage----Ground Lease 16
Notices 23
Premises 2
Relocation of Tenant 23
Rent 2
Services 5
Subrogation 3
Surrender of Possession 22
Term 2
Untenantability 11
Use of Premises 8
Waiver of Claims and Indemnity 16
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LEASE AGREEMENT
1. BASIC LEASE PROVISIONS
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(a) BUILDING:
Continental Tower I
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(b) LANDLORD AND ADDRESS:
Continental Offices Ltd., as Agent for the Owners of the beneficial
interest in American National Bank & Trust Company of Chicago Trust
No. 40935
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(c) TENANT AND CURRENT ADDRESS:
Prior to Commencement of Lease: After Commencement of Lease:
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American Schools of Professional American Schools of Professional
Psychology Psychology
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(d) DATE OF LEASE: June 10, 1994
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(e) LEASE TERM: Five (5) Years
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(f) COMMENCEMENT DATE OF TERM: August 15, 1994
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(g) EXPIRATION DATE OF TERM: August 14, 1999
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(h) BASE RENT, subject to adjustment as provided herein:
ANNUAL BASE RENT: One-Hundred-Twenty-Eight-Thousand-Five-Hundred-
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Ninety-Two-Thousand-and-00/100
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($128,592.00)
MONTHLY BASE RENT: Ten-Thousand-Seven-Hundred-Sixteen-and-00/100-
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Dollars ($10,716.00)
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(i) MEASURABLE AREA OF THE PREMISES: 7,050 Measurable Square Feet
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(j) RENTABLE AREA OF THE BUILDING: 280,299 Rentable Square Feet
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(k) RENTABLE AREA OF THE COMPLEX: 841,513 Rentable Square Feet
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(l) RENTABLE AREA OF THE PREMISES: 8,037 Rentable Square Feet
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(m) GOOD FAITH DEPOSIT: None ($ - 0 -)
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(n) BASE YEAR (for purposes of the Consumer Price Index adjustment): N/A
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2. PREMISES. Landlord hereby leases to Tenant, and Tenant accepts the demised
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premises (hereinafter known as "demised premises" or "premises"), being a
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portion of the north side of the first floor of Tower One
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and described in the plan attached hereto as Exhibit "A" in the Building
described in Subsection 1(a) for the term and upon the conditions provided in
the Lease, to be occupied and used by the Tenant to operate a college of higher
education and no other purpose, subject to the agreements herein contained.
3. TERM. The term of this Lease shall commence on the date specified in
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Subsection 1(f) (the "Commencement Date") and shall expire on the date specified
in Subsection 1(g) (the "Expiration Date") unless sooner terminated as otherwise
provided in this Lease.
4. RENT. The Tenant shall pay Base Rent as specified in Subsection 1(h) to
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Continental Towers Associates I or to such other person or at such other place
as Landlord may direct in writing, monthly in advance on or before the first day
of each month of the term, except that the Tenant shall pay the first such
monthly installment on the execution hereof. If the term commences other than
on the first day of a month or ends other than on the last day of the month, the
Base Rent for such month shall be prorated, and the prorated rent for the
portion of the month in which the term commences shall be paid at the time of
execution of this Lease in addition to the rent for the first full month. All
such rent shall be paid without any set-off or deduction whatsoever. Unpaid
rent shall bear interest at the rate set forth in Subsection 28(f), from the
date due until paid. Time is of the essence of this Lease. SEE RIDER SECTION
29.
5. BASE RENT ADJUSTMENT. The Base Rent shall be adjusted in accordance with
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the provisions of this Section 5.
(a) The term "Taxes" shall mean real estate taxes, assessments, sewer
rents, rates and charges, transit taxes, taxes based upon the receipt of
rent, and any other federal, state or local governmental charge, general,
special, ordinary or extraordinary (but not including income or franchise
taxes or any other taxes imposed upon or measured by the Landlord's income
or profits, unless the same shall be imposed in lieu of real estate taxes
and other ad valorem taxes), which may now or hereafter be levied or
assessed against the land upon which the three Continental Towers office
buildings stand and upon the buildings themselves (but not including the
Commercium and enclosed parking facility), including the landscaping
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and surface parking areas that are appurtenant to said buildings,
hereinafter collectively known as the "Complex". In case of special taxes
or assessments which may be payable in installments, only the amount of
each installment paid during a calendar year shall be included in Taxes for
that year. Taxes shall also include any personal property taxes imposed
upon the furniture, fixtures, machinery, equipment apparatus, system and
appurtenances used in connection with said Complex for the operation
thereof. Taxes shall also include amounts paid to anyone hired by Landlord
to contest the amount of any assessment of the Complex or the rate of
taxation or the legality of the imposition of any component of the Taxes
upon the Complex. The Taxes "attributable to" or "for" a calendar year for
the purposes of this Lease shall be those assessed for such year, even
though not due and payable until a subsequent year. If the Complex is not
ninety-five percent (95%) occupied during all or a portion of any year,
then Landlord may elect to make an appropriate adjustment of the Taxes for
such year employing sound accounting and management principles, to
determine the amount of Taxes that would have been attributed to the Tenant
had the Complex been ninety-five percent (95%) occupied, and the amount so
determined shall be deemed to have been the amount of Taxes for such year.
(b) The term "Taxes Per Rentable Square Foot" shall mean Taxes divided
by the Rentable Area of the Complex as provided in Subsection l(k) above.
(c) "Expenses" shall mean and include all those costs and expenses of
every kind and nature associated with the management, maintenance, repair,
replacement, ownership and operation of the Building, landscaping and
parking areas and the personal property used in conjunction therewith with
the exception of costs of alterations of the premises of tenants of the
Building, depreciation charges , interest and principal payments on
mortgages, capital improvements which increase the number of square feet in
the Complex, and expenditures for which Landlord has been reimbursed,
including by payment from other tenants or insurance proceeds (other than
pursuant to rent adjustment provisions in leases). If the Building is less
than occupied during all or a portion of any year, then landlord shall make
an appropriate adjustment of the Expenses for such year, employing sound
accounting management principles to determine the amount of Expenses that
would have been paid or incurred by the Landlord had the Building been
occupied, and the amount so determined shall be deemed to have been the
amount of Expenses for such year. Expenses for parking and landscaping
areas will be allocated among tenants in the Building and the two other
office buildings in the Complex in accordance with sound accounting and
management principles.
(d) The term "Expenses Per Rentable Square Foot" shall mean Expenses
divided by the Rentable Area of the Building as provided in Subsection 1(j)
above.
(e) Tenant shall pay to Landlord, as additional rent, an amount equal
to 1/12 of the sum of (i) Expenses per Rentable Square Foot, as estimated
by Landlord in accordance with Subsection 5(i), multiplied by the Rentable
Area of the Premises as set forth in Subsection 1(l), plus (ii) Taxes per
Rentable Square Foot, as estimated by Landlord in accordance with
Subsection 5(i), multiplied by the Rentable Area of the Premises as set
forth in Subsection 1(l) above, plus (iii) a sum equal to three percent
(3%) of $74,342.25 in lieu
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of a Consumer Price Increase, commencing the thirteenth month of the lease
term. The rental as computed hereunder including adjustments for
projections under Subsection 5(i) hereinbelow shall be referred to as
Adjusted Monthly Base Rent. The amount payable for Expenses and Taxes shall
be subject to readjustment based on actual experience as provided in
Subsection 5(j).
(f) For purposes of estimating Expenses and Taxes for any calendar
year (including the first year that the Lease is in effect), Landlord shall
make reasonable estimates, forecasts or projections (collectively, the
"Projections") of Expenses, and Taxes for each year that the Lease is in
effect. Landlord shall deliver to Tenant a written statement (i) setting
forth the Projections of Expenses and Taxes for the appropriate calendar
year, and (ii) providing a calculation of the adjustment to installments of
Monthly Base Rent based on such Projections, to become effective as of
January 1/st/ of each calendar year; provided, however, that the failure of
Landlord to provide any such statement shall not relieve Tenant from its
obligation to continue to pay and when Tenant receives such statement from
Landlord, Tenant shall pay any increase (or receive credit for any
decrease) to Adjusted Monthly Base Rent reflected thereby effective
retroactively to the most recent preceding January 1/st/. If any
unexpected increase (or decrease) in Expenses for the Complex increase or
decrease of five percent (5%) or more in such Expenses, the Projections may
be revised and the estimated Expenses payments shall be recalculated based
upon the revised Projections. The Projections may also be revised whenever
more current information is received about the Taxes, and, if revised, the
estimated Taxes payments shall be recalculated based upon the revised
Projections. After the end of each calendar year, the actual Expenses and
Taxes shall be calculated and an appropriate adjustment made as provided
herein.
(g) As soon as reasonably feasible after the expiration of each
calendar year, or at such later time as Landlord shall be able to determine
the actual amounts of Expenses and Taxes for such calendar year, Landlord
shall notify Tenant in writing of such actual amounts. If the total
Adjusted Monthly Base Rent paid by Tenant during such calendar year
exceeded the amount thereof payable for such calendar year based upon
actual Expenses and Taxes for such calendar year, then Landlord shall
credit such excess to installments of Adjusted Monthly Base Rent payable
after the date of Landlord's notice until such excess had been exhausted,
or if this Lease shall expire prior to full application of such excess,
Landlord shall pay to Tenant the balance thereof not theretofore applied
against Rent. If the Adjusted Monthly Base Rent based on actual Expenses
and Taxes exceeds the projected Adjusted Monthly Base Rent paid by Tenant
during such calendar year, then Tenant shall, within thirty (30) days after
the date of written notice from Landlord, pay to Landlord an amount equal
to the additional Adjusted Monthly Base Rent payable for the calendar year
last ended based upon actual Expenses and Taxes for such year over the
total Adjusted Monthly Base Rent paid by Tenant during such calendar year.
The obligation to make such payments shall survive the expiration or
earlier termination of the Term.
(h) The Tenant or its representative shall have the right to audit the
Landlord's books and records with respect to the items in the foregoing
statements of Expenses and Taxes during normal business hours at any time
within 30 days following the furnishing by the Landlord to the Tenant of
such statements and after the execution by Tenant of a
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confidentiality agreement prepared by Landlord. Unless the Tenant shall
take written exception to any item within thirty (30) days after the
furnishing of the foregoing statement such statement shall be considered as
final and accepted by the Tenant. Any amount due to the Landlord as shown
on any such statement shall be paid by the Tenant within thirty (30) days
after the Landlord shall have submitted the statement.
(i) If the first year of the term of this Lease commences on any other
than the first day of January, or if the last year of the term of this
Lease ends on any day other than the last day of December, any payment due
to the Landlord for Taxes, or Expenses, shall be prorated, and the Tenant
shall pay any amount due to the Landlord within thirty (30) days after
being billed therefor. This covenant shall survive the expiration or
termination Of this Lease.
6. SERVICES. The Landlord, as long as the Tenant is not in default under any
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of the covenants of this lease, shall furnish:
(a) Air-cooling when necessary to provide a temperature condition required
for comfortable occupancy of the demised premises under normal
business operations, daily from 8:00 A.M. to 6:00 P.M. and on
Saturdays from 8:00 A.M. to 1:00 P.M., Sundays and holidays excepted.
Wherever heat generating machines or equipment are used by Tenant in
the demised premises which effect the temperature, otherwise
maintained by the air-cooling system, Landlord reserves the right to
install supplementary air-conditioning units in the demised premises
and the expense of installation shall be paid by Tenant. The expense
resulting from the operation and maintenance of the supplementary air
conditioning system shall be paid by the Tenant to the Landlord as
additional rent at rates fixed by Landlord. The Landlord agrees to
furnish heat to the demised premises, as required by law, on business
days 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. If Tenant requests Landlord to
supply heat or air conditioning at times other than such hours, then
upon at least 24 hours advance notice to Landlord, Landlord will
supply the necessary heat or air conditioning at rates set by
Landlord;
(b) Cold water in common with other tenants for drinking, lavatory and
toilet purposes drawn through fixtures installed by the Landlord, or
by Tenant in the demised 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
at rates fixed by Landlord for water furnished for any other purpose.
The Tenant shall not waste or permit the waste of water. If the
Tenant fails to pay within five (5) days the Landlord's proper charges
for water, the Landlord, upon not less than ten (10) days' notice,
may, in addition to any other remedy provided in this lease,
discontinue furnishing that service and no such discontinuance shall
be deemed an eviction or disturbance of Tenant's use of the demised
premises or render Landlord liable for damages or relieve Tenant from
any obligation;
(c) Janitor service and customary cleaning in and about the demised
premises, Saturdays, Sundays and holidays excepted. The Tenant shall
not provide any janitor services or
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cleaning without the Landlord's written consent and then only subject
to supervision of Landlord and at Tenant's sole responsibility and by
janitor or cleaning contractor or employees at all times satisfactory
to Landlord;
(d) 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 5:00
P.M., Saturdays, Sundays and holidays excepted. 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. The Landlord, however, shall provide limited passenger
elevator service daily at all times such normal passenger service is
not furnished. Operatorless automatic elevator service shall be
deemed "elevator service" within the meaning of this paragraph;
(e) Window washing of all windows on the exterior walls of the Building
located in the demised premises, both inside and cut, at such times as
shall be required in the Landlord's sole judgment;
(f) A parking area as shown on Exhibit "B" to be used by Tenant, in common
with Landlord and other tenants in the Complex, for passenger
vehicles. The parking area will be maintained and repaired by the
Landlord.
(g) Electricity for standard lighting fixtures provided by Landlord and
for Tenant's incidental uses. Maintenance of lighting fixtures and
replacement of lamps shall be furnished by Landlord at Tenant's
expense. In respect to such incidental uses, electricity will be
furnished in the premises by Landlord to Tenant without charge,
provided that (i) the connected electrical load of the incidental use
equipment does not exceed an average of two ▇▇▇▇▇ per square foot of
the premises; (ii) the electricity so furnished for incidental uses
will be at nominal 120 volts and no electrical circuit for the supply
of such incidental use will have a current capacity exceeding 20
amperes; and (iii) such electricity will be used only for equipment
and accessories normal to office usage. If Tenant's requirements for
electricity for incidental uses are in excess of those set forth in
the preceding sentence, the Landlord reserves the right to require
Tenant to procure electricity for such excess incidental use
requirements at the Tenant's expense by arrangement with Commonwealth
Edison Company or other approved local utility.
(h) The Landlord does not warrant that any of the services above mentioned
will be free from interruptions caused by war, insurrection, civil
commotion, riots, acts of God or the enemy, governmental action,
repairs, renewals, improvements, alternations, strikes, lockouts,
picketing, whether legal or illegal, accidents, inability of the
Landlord to obtain fuel or supplies or any other cause or causes
beyond the reasonable control of the Landlord. Any such interruption
of service shall never be deemed an eviction or disturbance of the
Tenant's use and possession of the premises
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or any part thereof, or render the Landlord liable to the Tenant for
damages, or relieve the Tenant from performance of the Tenant's
obligations under this Lease.
7. CONDITION OF PREMISES. The Tenant's taking possession shall be conclusive
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evidence as against the Tenant that the demised premises were in good order and
satisfactory condition when the Tenant took possession. No promise of the
Landlord to alter, remodel, decorate, clean or improve the demised premises, the
Building or the Complex and no representation respecting the condition of the
demised premises, the Building or the Complex have been made by the Landlord to
the Tenant, unless the is contained herein, or made a part hereof, or in a
written document signed by or its Agent. This Lease does not grant any rights to
air over property.
8. FAILURE TO GIVE POSSESSION. If the Landlord shall be unable to give
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possession of the demised premises on the date of the commencement of the term f
by reason of any of the following: (i) the Landlord has not completed its of
the demised premises, (ii) the Landlord is unable to give possession of the
demised premises by reason of the holding over or retention of possession of any
tenant, tenants or occupants, or (iii) for any other reason, Landlord shall not
be subject to any liability for the failure to give possession on said date.
SEE RIDER SECTION 38. Under such circumstances the rent reserved and covenanted
to be paid herein shall not commence until the demised premises are available
for occupancy by Tenant, and no such failure to give possession on the date of
commencement of the term hereof shall affect the validity of this Lease or the
obligations of the Tenant hereunder, nor shall the same be construed to extend
the term of this Lease. If the demised premises are ready for occupancy prior
to the date of the commencement of the term hereof and Tenant occupies the
premises prior to said date, Tenant, shall pay rental including amounts stated
in Section 5 for the period of occupancy prior to the date of the commencement
of the term hereof at the proportionate rental to the rent reserved herein. The
said demised premises shall not be deemed to be unready for Tenant's occupancy
or incomplete if only minor or insubstantial details of construction, decoration
or mechanical adjustments remain to be done in the demised premises or any part
thereof, or if special work, changes, alterations or additions required or made
by Tenant in the layout or finish of the demised premises or any part thereof or
shall be caused in whole or in part by Tenant through the delay of Tenant in
submitting plans, supplying information, approving plans, specifications or
estimates, giving authorizations or otherwise or shall be caused in whole or in
part by delay and/or default on the part of Tenant and/or its subtenant or
subtenants. In the event of any dispute as to whether the premises are ready
for Tenant's occupancy, the decision of Landlord's architect shall be final and
binding on the parties.
9. USE OF PREMISES. The Tenant shall occupy and use the demised premises
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during the term for the purpose above specified in Section 2 and none other;
(a) The Tenant will not make or permit to be made any use of the demised
premises which conflicts with exclusive rights granted to any other Tenant
or which directly or indirectly is forbidden by public law, ordinance or
governmental regulation or which ray be dangerous to persons or property,
or which may invalidate or increase the premium cost of any policy of
insurance carried on the Building or covering its operations; the Tenant
shall not do, or permit to be done, any act or thing upon the demised
premises which will be in conflict with fire insurance policies covering
the Building of which the demised premises form a part. The Tenant, at its
sole expense, shall comply with all rules, regulations or
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requirements of the local Inspection and Rating Bureau, or any other
similar body, and shall not do, or permit anything to be done upon said
premises, or bring or keep anything therein in violation of rules,
regulations or requirements of the Fire Department, local Inspection and
Rating Bureau, Fire Insurance Rating Organization or other authority having
jurisdiction and then only in such quantity and manner of storage as not to
increase the rate of fire insurance application to the Building;
(b) any sign installed in the demised premises shall be installed by
landlord at Tenant's cost and in such manner, character and style as
landlord may approve in writing;
(c) the Tenant shall not advertise the business, profession or activities
of the Tenant conducted in the Building in any manner which violates the
letter or spirit of any code of ethics adopted by any recognized
association or organization pertaining to such business, profession or
activities, and shall not use the name of the Building or Complex for any
purpose other than that of business address of the Tenant, and shall never
use any picture or likeness of the Building or Complex in any circulars,
notices, advertisements or correspondence without the Landlord's express
consent in writing;
(d) the Tenant shall not obstruct or use for storage, or for any purpose
other than ingress and egress the sidewalks, entrances, passages courts,
corridors, vestibules, halls, elevators and stairways of the Building;
(e) no bicycle or other vehicle, no dog or other animal or bird shall be
brought or permitted to be in the Building or any part thereof;
(f) the Tenant shall not make or permit any noise or odor that is
objectionable to other occupants of the Building to emanate from the
demised premises, and shall not create or maintain a nuisance thereon, and
shall not disturb, solicit or canvass any occupant of the Building or
Complex, and shall not do any act tending to injure the reputation of the
Building or Complex;
(g) the Tenant shall not install any musical instrument or equipment in the
Building, or any antennas, aerial wires or other equipment inside or
outside the Building, without, in each and every instance, prior approval
in writing by the Landlord. The use thereof, if permitted, shall be
subject to control by the Landlord to the end that others shall not be
disturbed or annoyed;
(h) the Tenant shall not waste water by tying, wedging or otherwise
fastening open any faucet;
(i) no additional locks or similar devices shall be attached to any door.
No keys for any door other than those provided by the Landlord shall be
made. If more than two keys for one lock are desired by the Tenant, the
Landlord may provide the same upon payment by the Tenant. Upon termination
of this Lease or of the Tenant's possession, the Tenant shall surrender all
keys to the demised premises and shall make known to the Landlord the
explanation of all combination locks on safes, cabinets and vaults;
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(j) the Tenant shall be responsible for the locking of doors in and to the
demised premises. Any damage resulting from neglect of this clause shall
be paid for by Tenant;
(k) the Landlord shall at the Tenant's expense, install and maintain all
conduit and cable between (i) the Illinois Bell Demark Board in the
Building and (ii) an agreed point of entry in the demised premises.
Alternatively, Landlord may third party contractor to provide this service
on an exclusive basis for the Building, in which case the Tenant shall pay
such contractor directly for such installation and maintenance. The Tenant
acknowledges that making building cabling the responsibility of a single
party is reasonable and necessary to achieve security, efficiency,
coordination and accountability. Whether building cabling is undertaken by
the Landlord or an exclusive contractor, the Tenant agrees that neither the
Landlord nor the contractor shall be liable for any loss, cost or damage
suffered by the Tenant as a result of cabling installation and maintenance
except to the extent caused by the negligence or willful misconduct of the
party doing such work and that any such claim shall be limited to bodily
injury, death or damage to property, the Tenant hereby waiving and
releasing any claim for consequential damages resulting from an
interruption of service.
(l) shades, draperies or other forms of inside window covering must be of
such shape, color and material as approved and installed by the Landlord;
(m) the Tenant shall not overload any floor, safes, furniture and all large
articles shall be brought through the Building and into the demised
premises at such times and in such manner as the Landlord shall direct and
at the Tenant's sole risk and responsibility. The Tenant shall list all
furniture, equipment and similar articles to be removed from the Building,
and the list must be approved at the office of the Building or by a
designated person before Building employees will permit any article to be
removed;
(n) unless the Landlord gives advance written consent in each and every
instance, the Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heating device or
air-conditioning apparatus in or about the demised premises, or carry on
any mechanical business therein, or use the demised premises for housing
accommodations or lodging or sleeping purposes, or do any cooking therein
or install or permit the installation of any vending machines, or use any
illumination other than electric light, or use or permit to be brought into
the Building any inflammable oils or fluids such as gasoline, kerosene,
naphtha and benzene, or any explosive or other articles hazardous to
persons or property including firearms or other weapons;
(o) the Tenant shall not place or allow anything to be against or near the
glass or partitions, doors or windows of the demised premises which may
diminish the light in, or be unsightly from the exterior of the Building,
public halls or corridors;
(p) the Tenant shall not install in the demised premises any equipment
which uses an unusual amount of electricity without the advance written
consent of the Landlord. "Unusual amount of electricity" shall mean any
one or all of the following: (1) use of a lighting system which requires
more electricity than the standard lighting fixtures provided in the
Building by the Landlord; (2) the electrical load of electrical equipment
(other than
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lighting) used in the premises exceeding an average of two ▇▇▇▇▇ per square
foot of the premises; (3) electricity which is not at a nominal 120 volts;
(4) electrical circuits with a capacity exceeding 20 amperes; (5)
electricity used for equipment and/or accessories not normal for ordinary
office use. If Landlord consents to such use of an unusual amount of
electricity, the Tenant shall ascertain from the Landlord the maximum
amount of electrical current which can safely be used in the demised
premises, taking into account the capacity of the electric wiring in the
Building and the demised premises and the needs of the other tenants in the
Building and shall not use more than such safe capacity. The Landlord's
consent to the installation of electric equipment shall not relieve the
Tenant from the obligation not to use more electricity than such safe
capacity;
(q) in addition to all other liabilities for breach of any covenant of this
Section 9, the Tenant shall pay to the Landlord all damages caused by such
breach also pay to the Landlord as additional rent an amount equal to any
increase in insurance premium or premiums caused by such breach. Any
violation to Section 9 may be restrained by injunction. The Tenant shall
be liable to Landlord for all damages resulting from violation of any of
Section 9. The Landlord shall have the right to make such reasonable rules
and regulations as the Landlord or its agent may from time to time adopt on
such reasonable notice to be given as the Landlord may elect. Nothing in
this Lease shall be construed to noose upon the Landlord any duty or
obligation to enforce provisions of this Section 9 or any rules and
regulations hereafter adopted, or the terms, covenants or conditions of any
other lease as against any other tenant, and the Landlord shall not be
liable to the Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
10. CARE AND MAINTENANCE. Subject to the provisions of Section 13, the Tenant
--------------------
shall, at the Tenant's own expense, keep the demised premises in good order,
condition and repaired during the term. If the Tenant does not make repairs
promptly and adequately, the Landlord may, but need not, make repairs, and the
Tenant shall promptly pay the cost thereof. The Tenant shall pay the Landlord
for overtime and for any other expense incurred in the event repairs,
alterations, decorating or other work in the demised premises are not made
during ordinary business hours at the Tenant's request.
11. ALTERATIONS. There shall be no painting or decorating, carpet
-----------
installation, or erection of any partitions, any alterations in or additions to
the demised premises or any nailing, boring or screwing into the ceilings, walls
or floors, without the Landlord's prior written consent in each and every
instance. All such work shall be performed by or under the direction of
Landlord, but at the cost of Tenant. The Landlord's decision to refuse such
consent shall be conclusive.
All additions, decorations, fixtures, hardware, non-trade fixtures and all
improvements, temporary or permanent, in or upon the demised premises, whether
placed there by the Tenant or by the Landlord, shall, unless the Landlord
requests their removal, become the Landlord's property and shall remain upon the
demised premises at the termination of this Lease by lapse of time or otherwise
without compensation or allowance or credit to the Tenant. If, upon the
Landlord's request for removal, the Tenant does not remove said additions,
decorations, decorations, hardware, non-trade fixtures and improvements, the
Landlord may remove the same and the Tenant shall pay the cost of such removal
to the Landlord upon demand.
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12. ACCESS TO PREMISES. The Tenant shall permit the Landlord to erect, use and
------------------
maintain pipes, ducts, wiring and conduits in and through the demised premises.
The Landlord or Landlord's agents shall have the right to enter upon the
premises, to inspect the same, to perform janitorial and cleaning services and
to make such decorations, repairs, alterations, improvements or additions to the
premises, the Building or the Complex as the Landlord may deem necessary or
desirable, and the Landlord shall be allowed to take all material into and upon
said demised premises that may be required therefor without the same
constituting an eviction of the Tenant in whole or in part and the rent reserved
shall in no way ▇▇▇▇▇ (except as provided in section 13) while said decorations,
repairs, alterations, improvements, or additions are being made, by reason of
loss or interruption of business of the Tenant, or otherwise. If the Tenant
shall not be personally present to open and permit an entry into said demised
premises, at any time, when for any reason an entry therein shall be necessary
or permissible, the Landlord or Landlord's agents may enter the same by a master
key, or may forcibly enter the same, without rendering the Landlord or such
agents liable therefore (if during such entry Landlord or Landlord's agents
shall accord reasonable care to Tenant's property) , and without in any manner
affecting the obligations and. covenants of this Lease. Nothing herein
contained, however, shall be deemed or construed to impose upon the Landlord any
obligations, responsibility or liability whatsoever, for the care, supervision
or repair of the Building, the complex or any part thereof, other than as herein
provided. The Landlord shall also have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to the Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets or public parts of the Building, and to close entrances, doors,
corridors, elevators or other facilities. The Landlord shall not be liable to
the Tenant for any expense, injury, loss or damage resulting from work done in
or upon, or the use of, any adjacent or nearby Building, land, street or alley,
SEE RIDER SECTION 39.
13. UNTENANTABILITY. If the demised premises or 50% or more of the Rentable
---------------
Area of the Building is made untenantable by fire or other casualty, Landlord
may elect:
(a) to terminate this Lease of the date of the fire or casualty by notice
to the Tenant within sixty after that date, or
(b) proceed with all due diligence to repair, restore or rehabilitate the
Building or the demised premises, in which event this Lease shall not
terminate.
In the event the Lease is not terminated pursuant to this provision, rent
shall ▇▇▇▇▇ on a per diem basis during the period of untenantability. In the
event of the Determination of this Lease pursuant to this section, rent shall be
apportioned on a per diem basis and paid to the date of the fire or other
casualty. In the event that the are partially damaged by fire or other casualty
but are not made wholly untenantable, then Landlord shall, except during the
last year of the term hereof, all due diligence to repair and restore the
demised premises and the rent shall ▇▇▇▇▇ in proportion to the nonusability of
the demised premises during the period of untenantability. If a portion of the
demised premises are made untenantable as aforesaid during the last year of the
term hereof, Landlord shall have the right to terminate this Lease as of the
date of the fire or other casualty by giving written notice thereof to Tenant
within thirty (30) days after the date of fire or other casualty, in which
event, the rent shall be apportioned on a per diem basis and paid to the date of
such fire or other casualty.
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In the event the premises or the Building is damaged by fire or other
casualty resulting from the act or neglect of Tenant, its agents, contractors,
employees or invitees, Tenant shall not be released from any of its obligations
hereunder including, without limitation, its duty to repair the premises and its
liability to Landlord for damages caused by such fire or other casualty and its
duty to pay rent, which rent shall not be abated. Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any insurance coverage,
whether carried by Landlord or Tenant, for damage to alterations, additions,
improvements or decorations provided by Landlord either directly or through an
allowance to Tenant (whether by rent abatement or otherwise).
Notwithstanding anything to the contrary herein set forth, Landlord shall
have no duty pursuant to this Section 13 to repair or restore any portion of the
alterations, additions or improvements in the premises or the decorations
thereto except to the extent that such alterations, additions, improvements and
decorations were provided by Landlord at Landlord's cost, at the beginning of
the term.
14. INSURANCE.
---------
(a) The Landlord shall maintain insurance covering the Complex (including
Landlord Work in the Premises) against loss, damage or destruction by fire
and the perils specified in the standard extended coverage endorsement.
(b) Tenant, at Tenant's expense, shall purchase and maintain insurance
during the entire term of the Lease for the benefit of Tenant and Landlord
(as their interest may appear) with terms, coverages and in companies
satisfactory to Landlord. Tenant agrees to adjust the amounts or type of
coverage set forth herein if the customs or standards in the leasing
community change during the term of this Lease, but initially Tenant shall
maintain the following coverages in the following amounts: (i) Commercial
General Liability Insurance on an occurrence basis with minimum limit of
liability in an amount of $1,000,000 for bodily injury, personal injury, or
death to any one person and $1,000,000 for bodily injury, personal injury
or death to more than one person, and $1,000,000 with respect to damage to
property including water and sprinkler damage for each occurrence; (ii)
Comprehensive Automobile Insurance covering all owned, non-owned and hired
automobiles of Tenant including the loading and unloading of any automobile
with limits of liability of not less than $1,000,000 for bodily injury to
any one person and $1,000,000 for each accident and $1,000,000 for property
damage for each accident; and (iii) insurance against fire, with extended
coverage and vandalism and malicious mischief endorsements, in an amount
adequate to cover the full replacement value of all leasehold improvements,
its personal property, machinery, equipment, moveable partitions, office
furniture, trade fixtures, and wall and floor coverings in the Premises.
Such insurance shall be written on an "all risks" of physical loss or
damage basis, for the full replacement cost value of the covered items and
in amounts that meet any coinsurance clauses of the policies of insurance;
(iv) ▇▇▇▇▇▇▇'▇ Compensation insurance in not less than the statutory
amounts as outlined by State of Illinois.
(c) The policy referred to in Subsection 14(b) (i) shall name Landlord,
beneficiaries of Landlord, and their respective agents and employees as of
additional insureds and shall not provide for deductible amounts in excess
$1, 000.00. Each policy referred to in Subsection
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14 (b) shall be issued by one or more responsible insurance companies
reasonably satisfactory to Landlord and shall contain the endorsement that
such insurance may not be canceled or amended without thirty (30) days'
prior written notice to Landlord and its beneficiaries.
(d) Tenant shall deliver to Landlord certificates of insurance of all
Policies and renewals thereof to be maintained by Tenant hereunder, not
less than ten (10) days prior to the commencement of the term and not less
than ten (10) days prior to the expiration date of each policy.
15. SUBROGATION. The parties hereto agree to use good faith efforts to have
-----------
any and all fire, extended coverage or any and all material damage insurance
which may be carried endorsed with a subrogation clause providing substantially
as follows: "This insurance shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery from the other party for
any loss or damage to any of its property insured under valid and collectible
insurance policies to the extent of any recovery collectible under such
insurance, subject to the limitation that this waiver shall apply only when it
is either permitted or, by the use of such good faith efforts could have been so
permitted by the applicable policy of insurance." Landlord agrees to notify
Tenant, prior to the commencement of the Term, if Landlord is unable to obtain a
subrogation clause and Tenant agrees to notify Landlord if Tenant is unable to
obtain such clause.
16. EMINENT DOMAIN. If the Building, or a substantial part of the demised
--------------
premises, shall be lawfully taken or condemned for any public or quasi-public
use or purpose, or conveyed under threat of such condemnation, the term of this
Lease shall end upon, and not before, the date of the taking of possession by
the condemning authority, and without apportionment of the award. Tenant hereby
assigns to the Landlord Tenant's interest in such award, if any. Current rent
shall be apportioned as of the date of such termination. If any part of the
Building, other than the demised premises or any part of the Building not
constituting a substantial part of the demised premises, shall so be taken or
condemned, or if the grade of any street or alley adjacent to the Building is
changed by any competent authority and such taking or change of grade makes it
necessary or desirable to substantially remodel or restore the Building, the
Landlord shall have the right to cancel this Lease upon not less than ninety
(90) days notice prior to the date of cancellation designated in the notice. No
money or other consideration shall be payable by the Landlord to the Tenant for
the right of cancellation, and the Tenant shall have no right to share in the
condemnation award or in any judgement for damages caused by the change of
grade.
17. ASSIGNMENT--SUBLETTING. (a) Tenant shall not assign, hypothecate,
----------------------
mortgage, encumber, or convey this Lease or any interest under it; allow any
transfer thereof or any lien upon Tenant's interest by operation of law or
otherwise; sublet the whole or any part of the demised premises by anyone other
than Tenant and its employees.
If Tenant is a corporation, any dissolution, merger, consolidation or
reorganization of Tenant or the sale or transfer of a controlling percentage of
the capital stock of Tenant, whether by a single transaction or event or by
cumulative transactions or events shall be deemed an assignment of this Lease,
and shall be subject to the restrictions set forth above, If Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or by operation of
law, of any partner or partners owning 51% or
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more of the partnership interest, whether by a single transaction or event or by
cumulative transactions or events, or the dissolution of the partnership shall
be deemed an assignment of the Lease and shall be subject to the restrictions
set forth above. SEE RIDER SECTION 40.
(b) Tenant shall not sublet the whole or any part of the premises without
Landlord's prior written consent. In the event Tenant intends to sublease all
or any portion of the premises, Tenant shall take the following actions:
(i) Tenant shall first notify Landlord in writing of its intention to
sublet prior to any advertising of same, hiring of brokers or
contacting of potential subtenants, such notice shall identify the
space proposed to be sublet, which space must be a legally leasable
unit in compliance with all applicable ordinances and codes, and
shall state the date on which Tenant requests that the sublet
commence, which date shall be no less than one hundred eighty (180)
days from the date of Tenant's notice.
(ii) Landlord shall have thirty (30) days following the receipt of such
notice to notify Tenant whether it elects to recapture the space
Tenant has proposed to sublet. Landlord's failure to send such notice
within such thirty (30) day period shall be deemed to mean Landlord
has not elected to recapture the space.
(iii) In the event the Landlord elects to recapture the space, it shall
notify Tenant of its intent by service of a written notice of
cancellation terminating that portion of the Lease covering the space
Landlord has chosen to recapture, which may include all or any lesser
portion of the space Tenant has proposed to sublet. In such event
Landlord agrees that the space not recaptured by Landlord shall be a
legally leasable unit.
Tenant shall pay all costs of any construction necessary to
accomplish the division of the space. The termination of the Lease as
to the recaptured space shall be effective on the date specified by
the Tenant in its notice pursuant to Subsection 17 (i) and (ii).
(iv) In the event that Landlord elects to recapture any proposed sublet
space under these provisions, the Base Rent, Rentable Area of the
Premises and Measurable Area of the Premises as provided in Section 1
above shall be adjusted as of the termination date designated in the
cancellation notice, and this Lease as so amended shall continue
thereafter in full force and effect.
(v) In the event that the Landlord elects not to recapture part or all of
the proposed sublet space, Landlord shall so notify Tenant as set
forth in (ii) above. Provided Tenant is not in default under the
Lease and has fully complied with the terms of this Section 17,
Tenant may then proceed to contact potential subtenants and shall
have the option to sublet the non-recaptured space in accordance with
the following provisions:
(A) Tenant shall bear all costs and expenses associated with the
subletting including, without limitation, any and all costs and
expenses incurred by Landlord (if any).
-20-
(B) Upon locating a suitable potential subtenant, Tenant shall
notify Landlord in writing. Such notice shall state the name and
address of the proposed subtenant and shall include a true and
complete copy of the proposed sublease. Tenant shall also deliver
to Landlord copies of all financial statements, credit reports
and other such information in its possessions relating to the
prospective subtenant. At Landlord's request, Tenant shall
promptly secure and deliver any additional information Landlord
deems necessary in order to evaluate the potential subtenant.
(C) Landlord shall have fifteen (15) days from the date of its
receipt of the last information provided by Tenant on the
proposed subtenant, during which to evaluate such subtenant and
decide whether to consent to the sublease. Landlord shall notify
Tenant of its decision in writing, and, in the event that
Landlord does not consent to the sublease, its notice thereof to
Tenant shall include an explanation of its reasons for denying
consent. In the event that Landlord consents to the sublease,
Tenant may execute the sublease and collect all rents due
thereunder subject to the provisions of subparagraph (D) below
and subject to the subtenant's agreement to comply with all the
terms of this Lease as they apply to the sublet space.
(D) Following the execution of any sublease to which Landlord has
consented and throughout the term thereof, Tenant shall pay
Landlord sixty percent (60%) of all amounts received by Tenant in
connection with subletting in excess of the rent for the sublet
space Tenant is obligated to pay Landlord hereunder.
(E) The use for which the premises or any part thereof may be
sublet shall be only for lawful office use which is in keeping
with the general character of the Building and Complex, which is
not extra-hazardous on account of fire and which does not
conflict with exclusive rights granted to any other tenant.
(F) The granting consent by Landlord to Tenant for subletting of
the premises or any part thereof shall not release Tenant from
direct and primary liability under this Lease for the performance
of all of the covenants, duties and obligations of Tenant
hereunder, and Landlord shall retain its rights to enforce the
provisions Of this Lease against Tenant or any subtenant without
demand upon or proceeding in any way against any other person.
consent to a particular sublease shall not be denied a consent to
any other or subsequent transaction.
18. WAIVER OF CLAIMS AND INDEMNITY. To the extent permitted by law, the Tenant
------------------------------
releases the Landlord, its beneficiaries, and their respective agents and
servants from, and waives all claims for, damage to person or property sustained
by the Tenant or any occupant of the Building, Complex or premises resulting
from the Building, Complex or premises or any part of either or any equipment or
appurtenance becoming out of repair, or resulting from any accident in or about
the Building or Complex or resulting directly or indirectly from any act or
neglect of any tenant or
-21-
occupant of the Building or Complex or of any other person, including Landlord's
agents and servants. This Section 18 shall apply especially, but not
exclusively, to the flooding of basements or other subsurface areas, and to
damage caused by refrigerators, sprinkling devises, air-conditioning apparatus,
water, snow, frost, steam, excessive heat or cold, falling plaster, broken
glass, sewage, gas, odors or noise, or the bursting or leaking of pipes or
plumbing fixtures, and shall apply equally whether any such damage results from
the act or neglect of the Landlord or of other tenants, occupants or servants in
the Building or Complex or of any other person, and whether such damage be
caused or result from any thing or circumstance above mentioned or referred to,
or any other thing or circumstance whether of a like nature or of a wholly
different nature. If any such damage, whether to the demised Premises or to the
Building or Complex or any part thereof, or whether to the Landlord or to other
tenants in the Building or Complex, results from any act or neglect of the
Tenant, its employees, agents, invitees and customers, the Tenant shall be
liable therefor and the Landlord may, at the Landlord's option, repair such
damage and the Tenant shall, upon demand by Landlord, reimburse the Landlord
forthwith for the total cost of such repairs. The Tenant shall not be liable for
any damage caused by its act or neglect if the Landlord or a tenant has
recovered the full amount of the damage from insurance and the insurance company
has waived its right of subrogation against the Tenant. All property belonging
to the Tenant or any occupant of the premises that is in the Building, the
Complex or the premises shall be there at the risk of the Tenant or other person
only, and the landlord shall not be liable for damage thereto or theft or
misappropriation thereof.
Tenant agrees to indemnify and save the Landlord, its beneficiaries, and
their agents and employees harmless against any and all claim, demands, costs
and expenses, including reasonable attorney's fees for the defense thereof,
arising from Tenant's occupancy of the demised 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 pursuant to the terms of this Lease, or from any act or
negligence its agents, servants, employees or invitees, in or about the demised
premises. In case of any action or proceeding brought against Landlord, its
beneficiaries, or their respective agents or employees by reason of any such
claim, upon notice from Landlord, Tenant covenants to defend such action or
proceeding by counsel reasonably satisfactory to Landlord.
19. MORTGAGE-GROUND LEASE. Landlord may execute and deliver a mortgage or
-------- ------------
trust deed in the nature of a mortgage, both sometimes hereinafter referred to
as "Mortgage" against the Building, the Complex or any interest thereon, and
may sell and lease back the underlying land on which the Building is situated,
or which forms a part of the Complex. This Lease and the rights of Tenants
hereunder shall be and are hereby made expressly subject and subordinate at all
times to any such Mortgage and/or ground lease, now or hereafter existing and
all amendments, modifications and renewals thereof and extensions,
consolidations or replacements thereof, and to all advances made or hereafter to
be made upon the security thereof. Tenant agrees to execute and deliver such
further instruments subordinating this Lease to said mortgage or ground lease as
may be requested in writing by Landlord from time to time. Tenant hereby
appoints Landlord as attorney-in-fact for Tenant with full power and authority
to execute and deliver in the name of the Tenant any such instruments in the
event Tenant fails to do so.
Should any Mortgage affecting the Building or Complex be foreclosed or if
any ground or underlying lease be terminated:
-22-
(a) The liability of the mortgagee, trustee 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 Complex and
such liability shall not continue or survive after further transfer of
ownership,
(b) Upon request, of the mortgagee or trustee, Tenant will attorn, as
Tenant under this Lease, to the purchaser at any foreclosure sale
thereunder, or if any ground or underlying lease be terminated for any
reason, Tenant will attorn as Tenant under this Lease to the ground lessor
under the ground lease and will execute such instruments as may be
necessary or appropriate to evidence such attornment.
Tenant covenants and agrees to give any mortgagee and/or trust deed
holders, by certified or Registered Mail, a copy of any notice of default served
upon the Landlord, provided that prior to such notice Tenant has been notified
in writing, (by way of notice of assignment of rents and leases, or otherwise)
of the address of such mortgagee and/or trust deed holder, Tenant further
covenants and agrees that if Landlord shall have failed to cure any default
within thirty (30) days after Tenant gives notice of the default, the mortgagee
and/or trust deed holder shall have an additional thirty (30) days within which
to cure such default or if such default cannot be aired within that time, then
such additional time as may be necessary if within such them (30) days, any
mortgagee and/or trust deed holder has commenced and is diligently pursuing the
remedies to cure such default (including but not limited to commencement of
foreclosure proceedings, if necessary to effect such cure) , in which event the
Lease shall not be terminated while such remedies are being so diligently
pursued.
20. CERTAIN RIGHTS RESERVED BY THE LANDLORD. The Landlord reserves and may
---------------------------------------
exercise the following rights without affecting Tenant's obligations hereunder:
(a) to change the name or street address of the Building or Complex;
(b) to install and maintain a sign or signs on the interior or exterior of
the Building or Complex;
(c) to have access for the Landlord and other tenants of the Building to
any mail chutes located on the demised premises according to the rules of
the United States Post Office;
(d) to designate all sources furnishing sign painting and lettering,
drinking water, towels, coffee service, and toilet supplies, lamps and
bulbs used on the demised premises;
(e) to decorate, remodel, repair, alter or otherwise prepare the demised
premises for reoccupancy if Tenant vacates the demised premises prior to
the expiration of the term;
(f) to retain at all time pass keys to the demised promises;
(g) to grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building or Complex;
(h) to exhibit the demised premises to others;
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(i) to close the Building after regular working hours and on the legal
holidays subject, however, to Tenant's right to admittance, under such
reasonable regulations as Landlord may prescribe from time to time, which
ray include by way of example but not of limitation, that persons entering
or leaving the Building identify themselves to a watchman by registration
or otherwise and that said persons establish their right to enter or leave
the Building;
(j) to approve the weight, size and location of safes or other heavy
equipment or articles, which articles may be moved in, about, or out of the
Building or premises only at such times and in such manner as landlord
shall direct and in all events, however, at Tenant's sole risk and
responsibility;
(k) to take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the praises, the
Building or to the Complex, as may be necessary or desirable for the
safety, protection or preservation of the premises, the Building or the
Complex or the Landlord's interest, or as may be necessary or desirable in,
the operation of the Building or Complex.
The Landlord may enter upon the demised premises and may exercise any or
all of the foregoing rights hereby reserved without being deemed guilty of an
eviction or disturbance of the Tenant's use or possession and without being
liable in any manner to the Tenant, and without abatement of rent or affecting
any of the Tenant's obligations hereunder.
21. HOLDING OVER. If the Tenant retains possession of the demised premises or
------------
any part thereof after the termination of the term or any extension thereof, by
lapse of time or otherwise, the Tenant shall pay the Landlord the monthly rent,
at 150% the rate payable for the month immediately preceding said holding over
(including amounts for Taxes, Expenses and Consumer Price Increases, or any
other applicable increases which Landlord may reasonably estimate), computed on
a per month basis, for each month or part thereof (without reduction for any
such partial month) that the Tenant thus remains in possession, and in addition
thereto, Tenant shall pay the Landlord all damages, consequential as well as
direct, sustained by reason of the Tenant's retention of Possession.
22 LANDLORD'S REMEDIES. All rights and remedies of the Landlord herein
-------------------
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law.
(a) If any involuntary action or proceeding under any section or sections
of any bankruptcy act in any court or tribunal shall adjudge or declare
Tenant insolvent or unable to pay Tenant's debts, or if any voluntary
petition or similar proceeding under any section of any bankruptcy act
shall be filed by Tenant in any court or tribunal to declare Tenant
insolvent or unable to pay Tenant's debts, then and in any such event
Landlord may, if Landlord so elects but riot otherwise, and with or without
notice of such election, and with or without entry or other action by
Landlord, forthwith terminate this Lease, and notwithstanding any other
provision of this Lease, Landlord shall forthwith upon such termination be
entitled to recover damages in an amount equal to the then present value of
the Base Rent specified in section 1 of this Lease, as adjusted, pursuant
to Section 5, for the residue of the stated term thereof, less the present
value of the fair rental value of the premises for the residue of the
stated term.
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(b) If the Tenant defaults in the payment of rent, and the Tenant does not
cure the default within five (5) days after demand for payment of such rent
or if the Tenant defaults in the prompt and full performance of any other
provisions of this Lease, and the Tenant does not cure the default within
twenty (20) days after written demand by the landlord that the default be
cured (unless the default involves a hazardous condition, which shall be
cured forthwith) or if the leasehold interest of the Tenant be levied upon
or be attached by process of law, or if the Tenant makes an assignment for
the benefit of creditors or admits its inability to pay its debts, or if a
receiver be appointed for any property of the Tenant, or if the Tenant
abandons the premises, then and in any such event the Landlord may, if the
Landlord so elects but not otherwise, and with or without notice of such
election, and with or without any demand whatsoever, either forthwith
terminate this Lease and the Tenant's right to possession of the premises,
or without terminating this Lease, forthwith terminate the Tenant's right
to possession of the premises.
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of the Tenant's right to possession
without termination of the Lease, the Tenant shall surrender possession and
vacate the premises immediately, and deliver possession thereof to the
Landlord, and hereby grants to the Landlord full and free license to enter
into and upon the premises in such event with or without process of law
and, to repossess the premises and to expel or remove the Tenant and any
others who my be occupying or be within the premises and to remove any and
all property therefrom, using force as may be necessary without being
denied in any manner guilty of trespass, eviction or forcible entry or and
without relinquishing the Landlord's right to rent or any other right given
to the Landlord hereunder or by operation of law.
(d) If the Tenant abandons the premises or otherwise entitles the Landlord
so to elect, and the landlord elects to terminate the Tenant's right to
possession only, without terminating the Lease, the Landlord may, at the
Landlord's option, enter into the premises, remove the Tenant's sign and
other evidences' of Tenant and take and hold possession thereof as in
subsection (c) of this Section 22 provided, without such entry and
possession terminating the Lease or releasing the Tenant, in whole or in
part, from the Tenant's obligation to pay the rent hereunder for the full
term, and in any such case the Tenant shall pay forthwith the Base Rent
specified in Section 1 of this Lease as adjusted in accordance with Section
5, for the residue of the stated term plus any other sum then due hereunder
less the present value of the fair rental value of the demised premises for
such period. In the alternative, upon and after entry into possession
without termination of the Lease, the Landlord shall use its best efforts
to relet the premises or any part thereof for the account of the Tenant to
any person, firm or corporation for such rent for such time and upon such
terms as the Landlord in the Landlord's sole discretion shall determine,
and the Landlord shall not be required to observe any instruction given by
the Tenant about such reletting. In any such case, the Landlord may make
repairs, alterations and additions in or to the premises, and redecorate
the same to the extent deemed by the Landlord necessary or desirable, and
the Tenant shall, upon demand, pay the cost thereof, together with the
Landlord's Expenses of the reletting. If the consideration collected by
the Landlord upon any such reletting for the Tenant's account is not
sufficient to pay monthly the full amount of the rent reserved in this
lease, together with the costs of repairs, alterations, additions,
redecorating and the landlord's expenses, the
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Tenant shall pay to the Landlord the amount of each monthly deficiency upon
demand. If the Landlord, in attempting to mitigate the damages caused by
Tenant's removal from the premises, leases to another entity ("New Lease")
for longer than the remainder of the term of this Lease, the rental for the
remainder of the term of this lease for purposes of this section shall be
deemed to be the average rental payments under the New Lease for the
remainder of the term of this lease. "Average rental payments under the New
Lease" shall be deemed to mean rental payments (net of abatements and rent
credits) under the New Lease, after, deducting the costs of leasing,
including, but not limited to, expenses incurred in repairing, altering or
redecorating the premises, broker's costs, and attorney's fees in
connection with the New Lease, divided by the number of months in the New
Lease. All rentals and other costs under the New lease shall be discounted
to the due dates of payments due under this Lease, at the prime rate then
in existence at The First National Bank of Chicago or bank of similar size
if The First National Bank of Chicago is no longer in existence at the time
this provision becomes operational. Notwithstanding anything in this
subsection to the contrary, in no event shall Landlord be required to pay
Tenant any excess of the rent it receives under the New Lease over the rent
hereunder.
(e) The Tenant hereby constitutes and irrevocably appoints any attorney of
any court to be the true and lawful attorney of the Tenant, and, in the
name, place and stead of the Tenant, to appear for and on behalf of the
Tenant in any court of record at any time, and from time to time, after
default hereunder in any suit or suits brought against the Tenant for the
enforcement of any rights hereunder by the Landlord, to waive the issuance
and service of process and trial by jury, and, from time to time, to
confess judgment or judgments in favor of the Landlord and against the
Tenant for any rent and interest therein due hereunder by the Tenant to the
Landlord, for costs of suit and for a reasonable attorney's fee in favor of
the Landlord to be fixed by the court, and to release all errors that may
occur or intervene in such proceedings, including the issuance of execution
upon any such judgment, and to stipulate that no appeal shall be prosecuted
from such judgment or judgments, or that no proceedings in chancery or
otherwise shall be filed or prosecuted to interfere in any way with the
operation of such judgment or judgments or of any execution issued thereon
or with any supplemental proceedings taken by the Landlord to collect the
amount of any such judgment or judgments, and to consent that execution on
any judgment or decree in favor of the Landlord against the Tenant may
issue forthwith.
(f) Any and all property which may be removed from the premises by the
Landlord pursuant to the authority of the Lease or of law, to which the
Tenant is or may be entitled, may be handled, removed or stored by the
Landlord at the risk, cost and expense of the Tenant, and the Landlord
shall in no event be responsible for the value, preservation or safekeeping
thereof. The Tenant shall pay to the Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such
property so long as the same shall be in the Landlord's possession or under
the Landlord's control. Any such property of the Tenant not retaken from
storage by the Tenant within thirty (30) days after the end of the term,
however terminated, shall be conclusively presumed to have been conveyed by
the Tenant to the Landlord under this Lease as a ▇▇▇▇ of sale without
further payment or credit by the landlord to the Tenant.
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(g) Tenant hereby grants to Landlord a first lien upon the interest of
Tenant under this Lease to secure the payment of moneys due under this
Lease, which lien may be enforced in equity; and Landlord shall be entitled
as a matter of right to have a receiver appointed to take possession of the
demised premises and relet the same under order of court. In addition to
any statutory lien for rent in Landlord's favor, landlord shall have and
Tenant hereby grants to Landlord a continuing security interest for all
rentals and other sums of money becoming due hereunder from Tenant upon all
goods, wares, equipment, fixtures, furniture, inventory, accounts,
contracts rights, chattel paper and other personal property of Tenant
situated on the Premises, and such property shall not be removed there from
without the consent of Landlord until all arrearages in rent as well as any
and all other sums of money then due to Landlord hereunder shall first have
been paid and discharged. In the event of a default under this lease,
Landlord shall have, in addition to any other remedies provided herein or
by law including without limitation the right to sell the property
described in this Article at public or private sale upon five (5) days'
notice to Tenant. Tenant hereby agrees to execute such financing statements
and other documents necessary or desirable in Landlord's discretion to
perfect the security interest hereby created. Any statutory lien for rent
is not hereby waived, the express contractual lien herein granted being in
addition and supplementary thereto.
(h) The Tenant shall pay upon demand all the Landlord's costs, charges and
expenses, including the fees of counsel, agents and others retained by the
Landlord in any litigation, negotiation or transaction in which the Tenant
causes the Landlord, without the landlord's fault, to become involved or
concerned specifically including, without limitation, any litigation
required by landlord to enforce its rights or remedies pursuant to this
Lease.
23. DEFAULT UNDER OTHER LEASE. If the term of any lease, other than this
-------------------------
lease, made by the Tenant for any demised premises in the Building or Complex
shall be terminated or terminable after the making of this lease because of any
default by the Tenant under such other lease, such fact shall empower the
Landlord, at the landlord's sole option, to terminate this Lease by notice to
the Tenant.
24. SURRENDER OF POSSESSION. Upon the expiration or other termination of the
-----------------------
term of this Lease, Tenant shall quit and surrender to Landlord the premises,
broom clean, in good order and condition, ordinary wear excepted, and Tenant
shall remove all of its property. Landlord shall remove all telephone and other
communication cable from the plenum areas, wall cavities and risers at Tenant's
expense.
If the Tenant does not remove its property of every kind and description
from the demised premises prior to the end of the term, however ended, the
Tenant shall be conclusively presumed to have conveyed the same to the landlord
under this Lease as a ▇▇▇▇ of sale without further payment or credit by the
Landlord to the Tenant and the Landlord may remove the same and the Tenant shall
pay the cost of such removal to the Landlord upon demand.
Not later than sixty (60) days before this Lease terminates or Tenant
vacates the premises, Tenant shall give Landlord written notice of its intended
departure and shall schedule a joint inspection with Landlord of the premises in
preparation for Tenant's vacation of the premises. At
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such joint inspection with Landlord shall prepare a list of the following items
for Tenant to resolve before vacating the premises:
1) repairs and restorations that will need to be made to the premises
before vacation, if any;
2) equipment and/or fixtures that may be removed, and a procedure that
must be followed in order to remove such items from the Building,
which may include a "check out" procedure with an employee of Landlord
at the Building;
3) equipment and/or fixtures that may not be removed from the premises
because they rightfully belong to Landlord.
Tenant shall have ten (10) days after receipt, of said list from Landlord
to notify Landlord of any discrepancies it notes on said list. If Tenant does
not so notify Landlord, said list shall be binding on Tenant, and shall be
binding upon Landlord except to the extent that, because of hidden problems,
Landlord could not reasonably ascertain whether certain repairs and/or
restoration would be needed until vacation of the premises. In any event, if
Tenant fails to arrange such joint inspection, any list of needed restoration or
repairs prepared by Landlord as a result of Landlord's inspection at or after
Tenant's vacating the premises shall be conclusively deemed correct for purposes
of determining Tenant's responsibility for repairs and restoration.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease.
25. NOTICES. Notices shall be in writing,
-------
(a) Notices shall be effectively served by Landlord upon Tenant in any one
of the following manners:
By forwarding through Certified or Registered Mail, postage
prepaid, to Tenant at the corporate address shown in Subsection
1(c), in which case the time of mailing shall be the time of
notice; or
(b) Notices shall be effectively served by Tenant upon Landlord when
addressed to Landlord and served either:
By forwarding through Certified or Registered Mail, postage
prepaid, to Landlord at the address shown in Subsection 1(b).
The addresses for notices shall be those addresses shown in Section 1 or if
notified in writing of another address by either party, at such latter address.
27. GOOD FAITH DEPOSIT. Tenant agrees to deposit with Landlord, upon the
------------------
execution of this Lease, the sum set forth in Subsection 1(m) above as security
for the full and faithful performance by Tenant of each and every term,
provision, covenant, and condition of this lease.
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Landlord shall have no obligation to segregate the amount so deposited from its
other funds. If Tenant defaults in respect to any of the terms, provisions,
covenants and conditions of this Lease including, but not limited to, payment of
the Adjusted Monthly Base Rent, Landlord may use, apply, or retain the whole or
any part of the security so deposited for the payment of any such rent in
default, or for any other sum which the Landlord may expend or be required to
expend by reason of Tenant's default including, without limitation, any damages
or deficiency shall have accrued before or after any re-entry by Landlord. If
any of the deposit shall be so used, applied or retained by Landlord at any time
or from time to time, Tenant shall promptly, in each such instance, on written
demand therefor by Landlord, pay to Landlord such additional sum as may be
necessary to restore the deposit to the original amount set forth in Subsection
1(m). If Tenant shall fully and faithfully comply with all the terms,
provisions, covenants, and conditions of this Lease, the deposit, or any balance
thereof , shall be returned to Tenant after the following:
(a) the time fixed as the expiration of the term of this Lease;
(b) the removal of Tenant from the demised premises;
(c) the surrender of the demised premises by Tenant to Landlord in
accordance with this Lease; and
(a) the time required for the escalation charges due pursuant to the Lease
to have been computed by landlord and paid by Tenant.
Except as otherwise required by law, Tenant shall not be entitled to any
interest on the aforesaid deposit, In the absence of evidence satisfactory to
Landlord of an assignment of the right to receive the deposit or the remaining
balance thereof, Landlord may return the deposit to the original Tenant, less of
one or more assignments of this Lease. If Tenant receives notice of sale of the
Building or Complex and a notice to attorn to the new owner, it shall look
solely to the new owner for return of the deposit.
28. MISCELLANEOUS.
-------------
(a) No receipt of money by the Landlord from the Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the
demised premises shall reinstate, continue or extend the term of this Lease
or affect any such notice, demand or suit.
(b) No waiver of any default of the Tenant hereunder shall be implied from
any mission by the Landlord to take any action on account of such default
if such default persists or be repeated, and no express waiver shall affect
any default other than the default specified in the express waiver and that
only for the time and to the extent therein stated.
(c) The words "Landlord" and "Tenant", wherever used in this lease, shall
be construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply either to corporations
or individuals, men or women, shall in all cases be assumed as though in
each case fully expressed.
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(d) Each provision hereof shall extend to and shall, as the case may
require, bind and inure to the benefit of the Landlord and the Tenant and
their respective heirs, legal representative, successors and assigns in the
event this lease has been assigned with the express written consent of the
Landlord.
(e) Submission of this instrument for examination does not constitute a
reservation of or option for the premises. The instrument does not become
effective as a lease or otherwise until executed and delivered by both
Landlord and Tenant .
(f) All amounts (unless otherwise provided herein, and other than the
Adjusted Monthly Base Rent, which shall be due as hereinbefore provided)
owed by the Tenant to the Landlord hereunder shall be deemed additional
rent and be paid within ten (10) days from the date the Landlord renders
statements of account therefor. All such amounts (including Adjusted
Monthly Base Rent and additional rent) shall bear interest from the date
due until the date paid at the rate of 2% above the prime rate of interest
of The First National Bank of Chicago in effect on the date of payment, or
at the maximum legal rate of interest, allowed by law, if such maximum
legal rate is applicable and lower.
(g) All riders attached to this Lease and initialed. by the Landlord and
the Tenant are hereby made a part of this Lease as though inserted in this
Lease,
(h) The headings of sections are for convenience only and do not limit or
construe the contents of the sections.
(i) If the Tenant shall occupy the premises prior to the beginning of the
term of this lease with the Landlord's consent, all the provisions of this
Lease shall be in full force and effect as soon as the Tenant occupies the
premises.
(j) Should any mortgage, leasehold or otherwise, require a modification or
modifications of this Lease, which modification or modifications will not
bring about any increased cost or expense to Tenant or in any other way
substantially change the rights and obligations of Tenant hereunder, then
and in such event, Tenant agrees that this lease may be so modified.
(k) The Tenant represents that the Tenant has dealt directly with and only
with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as broker on connection with this lease, and that
insofar as the Tenant knows no other broker negotiated this lease or is
entitled to any commission in connection therewith. Tenant indemnifies and
holds Landlord, its beneficiaries, and their respective agents and
employees harmless from all claim of any other broker or brokers who claim
to have dealt with Tenant in connection with Lease.
(l) The Tenant agrees that from time to time upon not less than ten (10)
days prior request by the Landlord, the Tenant will deliver to the Landlord
a statement in writing certifying (a) that this lease is unmodified and in
full form and effect (or if there have been modifications that the same is
in full force and effect as modified and identifying the modifications),
(b) the dates to which the rent and other charges have been paid, and (c)
that
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so far as the person making the certificate knows, the Landlord is not
in default under any provisions of this Lease.
(m) The Landlord's title is and always shall be paramount to the title of
the Tenant, and nothing herein contained shall empower the Tenant to do any
act which can, shall or may encumber such title.
(n) The laws of the State in which the demised premises are located shall
govern the validity, performance and enforcement of this Lease.
(o) If any term, covenant or condition of this lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
(p) Landlord and Tenant agree that to the extent permitted by law, each
shall and hereby does waive trial by jury in any action, proceeding or
counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease.
(q) There are no oral agreements between Landlord and Tenant affecting this
Lease, and this lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if
any, between Landlord and Tenant or displayed by Landlord to Tenant with
respect to the subject matter of this lease.
(r) In the event the original Landlord hereunder, or any successor owner of
the Complex, shall sell or convey the Complex, all liabilities and
obligations on the part of the original Landlord, or such successor owner,
under this Lease accruing thereafter shall be terminated, and thereupon all
such liabilities and obligations shall be binding upon the new owner.
Tenant agrees to attorn to each such new owner.
(s) The term "Landlord", as used in this lease, means the legal entity
which owns the beneficial interest in American National Bank & Trust
Company of Chicago Trust No. 40935, which holds legal title to the complex,
and any liability or obligation of landlord under this Lease shall be
limited to its assets held in such trust and no owner of the beneficial
interest in such trust shall be individually or personally liable for any
claim arising out of this Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this lease the date
first above written.
LANDLORD
Continental Offices Ltd., as Agent for the
owners of the beneficial interest in
American ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇.
By_______________________________________
Its President
ATTEST
By_______________________________________
Its Executive Vice President
(SEAL)
TENANT
By_______________________________________
Its:
ATTEST
By_______________________________________
Its
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RIDER
TO LEASE AGREEMENT DATED JUNE 10, 1994
BETWEEN
CONTINENTAL OFFICES LTD., AND
_______________________________
29. RENT CREDIT. Notwithstanding the foregoing, Tenant shall receive a rent
credit totaling Two-Hundred-Seventy-One-Thousand-One-Hundred-Fifteen-and-00/100-
Dollars ($271,115.00) to be amortized over the entire lease term at Four-
Thousand-Five-Hundred-Eighteen-and-58/100-Dollars ($4,518.58) per month.
30. CONSTRUCTION. Landlord shall provide a construction allowance of $20.00
per rentable square foot ($160,740.00). Should the construction costs be less
160,740.00, any unused construction dollars will be used toward rent credit.
31. ARCHITECTURAL/ENGINEERING. Landlord at its sole expense, shall furnish
complete space plans, including all necessary revisions and advise on design
related issues. Landlord, at its sole expense, shall furnish complete
architectural working drawings including all mechanical, electrical and plumbing
plans. Landlord's expenses for the space plans and working drawings shall not
reduce the amount of the construction allowance. Tenant shall be responsible
for any costs related to changes to the working drawings once Tenant has
furnished initial approval of said drawings. Landlord's architect shall warrant
that the working drawings comply with applicable laws.
32. NON DISTURBANCE. Notwithstanding the foregoing, it shall be a condition
of this Lease and a condition to the effectiveness of the subordination
expressed above that the mortgagee or ground lessor, as the case may be, shall
have executed and delivered to Tenant a Non-Disturbance agreement on the form
customarily employed by such mortgagee or ground lessor, containing provisions
reasonably acceptable to Tenant which shall provide that in the event of a
foreclosure of any such mortgage or termination of any such lease the holder of
such mortgage or the lessor under such lease will not attempt to terminate this
Lease, make Tenant a party defendant to any such foreclosure or any way
foreclose or otherwise extinguish or interfere with the rights of Tenant under
mortgagee or ground lessor within ten (10) days after receipt of written request
to do so from Landlord or such mortgagee or ground lessor.
33. RIGHT OF FIRST DISMISSAL. Provided this Lease is in full force and effect
and that Tenant is not in material default hereunder, Tenant shall have a
continuous right of first refusal on 1,686 rentable square feet contiguous to
the east and south of the Premises on the north side of the first floor of Tower
One and 4,500 rentable square feet on the west end of the south side of the
first floor of Tower One as shown on the attached Exhibit 'C.
34. SIGNAGE. Tenant will be identified with its name on the monument signs
located at the top of the entry drives leading to the Towers.
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35. QUIET ENJOYMENT. Upon Tenant's paying the rent reserved hereunder and
observing and performing all covenants, conditions and provisions on its part to
be observed and performed under this Lease, Tenant shall have quiet possession
of the premises for the entire term of this Lease.
36. RENEWAL OPTION. So long as there is no material default by Tenant at the
time it exercises the option referred to herein and there is also no material
default by Tenant at the expiration of the pending term of this lease, Tenant
shall have the option to renew this lease for one (1) five (5) year term.
Tenant shall exercise its option by written notice to Landlord nine (9) months
prior to the expiration of the initial term. The terms and conditions during
the renewal term shall be the same as those for the initial term, except that
the rent for the renewal term shall be the rate published and in effect at the
time Tenant renews the Lease.
37. SUBSTANTIAL COMPLETION. Construction of the demised premises or any
portion thereof shall be considered substantially complete as of the date that
construction is complete and in compliance with the construction contract
documents except for punch list items. Construction shall not be considered
substantially complete if there are any material deviations from the contract
documents which would prevent Tenant from occupying and utilizing the demised
premises for all of the purposes for which they are designed and constructed.
38. FAILURE TO GIVE POSSESSION. Continuation of Section 8 - Landlord shall,
however, provide Tenant use of the existing training rooms located on the north
side of the eighth floor of Tower Three as shown on the attached Exhibit 'D', at
no cost to Tenant, until the Premises are ready for Tenant occupancy.
39. ACCESS TO PREMISES. Continuation of Section 12 - Tenant sell have access
to the premises twenty-four (24) hours per day, three-hundred-sixty-five (365)
days per year.
40. ASSIGNMENT - SUBLETTING. Continuation of Section 17(a) - Notwithstanding
anything to the contrary contained in this Section 17, Tenant all have the right
to sublease and or assign its interest in this Lease to any parent, subsidiary,
or affiliated company of Tenant or Tenant's parent without the approval of
Landlord and without affecting the validity of this lease or violating any
restrictions on subleasing or assignment contained herein as long as any such
parent, subsidiary or affiliated occupancy of Tenant does not conflict with
exclusive rights granted to other tenants in the Building or Complex and as long
as such parent, subsidiary or affiliated company of Tenant is as financially
viable as Tenant.
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