EXHIBIT 10.73
INDUSTRIAL SPACE LEASE
THE CORPORATE GROVE
BUFFALO GROVE, ILLINOIS
LANDLORD: CGA INVESTMENT COMPANY L.L.C
TENANT: INFINET SOLUTIONS, INC., AN ILLINOIS CORPORATION
LEASED PREMISES: 1425 BUSCH PARKWAY
BUFFALO GROVE, ILLINOIS
LEASE PREPARED BY: John H. Mays
Gould & Ratner
222 N. LaSalle Street
Chicago, Illinois 60601
TABLE OF CONTENTS
1. GRANT, TERM, DEFINITIONS AND BASIC LEASE PROVISIONS .....................1
2. POSSESSION ..............................................................2
2. PURPOSE..................................................................2
3. RENT.....................................................................4
5. IMPOSITIONS..............................................................4
..
6. INSURANCE................................................................6
7. DAMAGE OR DESTRUCTION....................................................8
8. CONDEMNATION.............................................................8
9. MAINTENANCE AND ALTERATIONS..............................................9
10. LIENS AND ENCUMBRANCES..................................................11
11. ASSIGNMENT AND SUBLETTING...............................................12
12. UTILITIES...............................................................13
13. INDEMNITY AND WAIVER....................................................13
14. RIGHTS RESERVED TO LANDLORD.............................................14
15. QUIET ENJOYMENT.........................................................15
16. SUBORDINATION OR SUPERIORITY............................................15
17. SURRENDER...............................................................15
18. REMEDIES................................................................16
19. SECURITY DEPOSIT........................................................19
20. MISCELLANEOUS...........................................................20
21. OPTION TO EXTEND........................................................24
22. LIMITATION OF LABILITY..................................................24
THIS LEASE is made this 26th day of March 2002, by and between CGA
INVESTMENT COMPANY L.L.C. (hereinafter sometimes referred to as "Landlord"), and
INFINET SOLUTIONS, INC., an Illinois corporation (hereinafter sometimes referred
to as "Tenant") covenant and agree as follows:
1. GRANT, TERM, DEFINITIONS AND BASIC LEASE PROVISIONS
1. GRANT. Landlord, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of the
Tenant to be performed, hereby leases to Tenant, and Tenant hereby lets from
Landlord, premises known as 1425 Busch Parkway, Buffalo Grove, Illinois,
consisting of approximately 12,594 square feet, being a part of the real estate
commonly known as 1405-1495 Busch Parkway, The Corporate Grove, Buffalo Grove,
Illinois, (hereinafter sometimes referred to as the "Real Estate"), together
with all improvements now located or to be located on said premises during the
term of this Lease, together with all appurtenances belonging to or in any way
pertaining to the said premises (such premises, improvements and appurtenances
hereinafter sometimes jointly or severally, as the context requires, referred to
as "Leased Premises").
1.1 TERM. The term of this Lease shall commence on May 1, 2002
(hereinafter sometimes referred to as "Commencement Date") and shall end on
April 30, 2003, unless sooner terminated as herein set forth.
1.2 TENANT'S PRO RATA SHARE. As used in this Lease, the term "Tenant's
Pro Rata Share" shall be Fourteen and 25/100 percent (14.25%).
1.3 AGENT. As used in this Lease, the term "Agent" shall mean the agent
of Landlord (but if Landlord is an Illinois land trust, the term "Agent" shall
mean the agent of the beneficiary or beneficiaries of Landlord). Until otherwise
designated by notice in writing from Landlord, Agent shall be Van Vlissingen and
Co. Tenant may rely upon any consent or approval given in writing by Agent or
upon notice from Agent or from the attorneys for Agent or Landlord.
1.4 BASIC LEASE PREVISIONS.
(a) Purpose (See Section 3.0): Office, sales and development of
ecommerce software.
(b) Rent (See Section 4.0):
Monthly
Period Annual Rent Installments
------ ----------- ------------
05/01/02- $98,485.08 $8,207.09
04/30/03
(c) Payee (See Section 4.0): CGA Investment Company L.L.C.
(d) Payee's Address (See Section 4.0) One OverIook Point,
Lincolnshire Corporate Center, Lincolnshire, Illinois 60069.
(e) Base Impositions (See Section 5.0): $ -0-
(f) Form of Insurance (See Section 6.1): Tile insurance specified in
subsections 6.0(a) and 6.0(c) of this Lease shall insure
Landlord, Landlord's beneficiaries and respective agents
(including Agent), in addition to Tenant
(g) Base Insurance Premium (See Section 6.3): $-0-
(h) Monitoring Service Charge (See Section 6.4): _X_ YES ___NO
(i) Water and Sewerage Charge (See Section 12.0): _X_YES __ NO
(j) Security Deposit (See Section 19.0): $10,411.04
(k) Tenant's Address (for notices) (See Section 20.4): Mr. Harvey
Gannon Infinit Solutions, Inc., 1425 Busch Parkway, Buffalo
Grove, Illinois 60089
(l) Landlord's Address (for notices) (See Section 20.4): c/o Van
Vlissingen and Co., One Overlook Point, Suite 100, Lincolnshire
Corporate Center, Lincolnshire, Illinois 60069.
(m) Brokers (See section 20.12): Van Vlissingen and Co
(n) Number of Parking Spaces (see Section 20.16): 40 unreserved
(o) Guarantor's Name and Address (See Separate Guaranty): None
2. POSSESSION
2.0 POSSESSION. Tenant is currently in possession of the Leased Premises
under a Sublease with Communicate Direct, Inc. Except as provided in this
Article 2, Tenant is accepting the Leased Premises in its current condition and
"AS IS." Landlord agrees to partition the opening between the 1405 Busch Parkway
unit and the Leased Premises within thirty (30) days of Commencement Date.
3. PURPOSE
3.0 PURPOSE. The Leased Premises shall be used and occupied only for the
purpose set forth in Section 1.4(a).
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3.1 USES PROHIBITED. Tenant will not permit the Leased Premises to be
used in any manner which would render the insurance thereon void or the
insurance risk more hazardous. Tenant shall not use or occupy the Leased
Premises, or permit the Leased Premises to be used or occupied, contrary to any
statute, role, order, ordinance, requirement or regulation applicable thereto;
or in any manner which would violate any certificate of occupancy affecting the
same or the Declarations of Protective Covenants; or which would cause
structural injury to the improvements; or cause the value or usefulness of the
Leased Premises, or any part thereof, to diminish; or which would constitute a
public or private nuisance or waste.
3.2 PROHIBITION OF USE. If the use of the Leased Premises should at any
time during the Lease term be prohibited by law or ordinance or other
governmental regulation, or prevented by injunction, this Lease shall not be
thereby terminated, nor shall Tenant be entitled by reason thereof to surrender
the Leased Premises or to any abatement or reduction in rent, nor shall the
respective obligations of the parties hereto be otherwise affected.
3.3 ENVIRONMENTAL MATTERS. In the event Tenant shall conduct or
authorize the generation, transportation, storage, treatment, or disposal at the
Leased Premises of any substance regulated under the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization
Act of 1986, the Federal Water Pollution Control Act and all other federal,
state, and local laws relating to pollution or protection of the environment,
including, without limitation, laws relating to emissions, discharges, releases,
or threatened releases of industrial, toxic, or hazardous substances or wastes
of other pollutants, contaminants, petroleum products or chemicals (collectively
"Hazardous Substances") into the environment (including, without limitation,
ambient air, surface water, ground water, land surface, or subsurface strata) or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Substances (the
"Environmental Laws"):
(a) Tenant shall, at its own cost, comply with all Environmental Laws.
(b) Tenant shall promptly provide Landlord with copies of all
communications, permits, or agreements with any governmental authority or agency
(federal, state, or local) or any private entity relating in any way to the
presence, release, threat of release, placement on or in the Leased Premises, or
the generation, transportation, storage, treatment, or disposal at the Leased
Premises, of any Hazardous Substance.
(c) Landlord and Landlord's agents and employees shall have the right
to enter the Leased Premises and/or conduct appropriate tests for the purposes
of ascertaining that Tenant complies with all Environmental Laws relating in any
way to the presence of Hazardous Substances on the Leased Premises.
(d) Upon written request by Landlord, Tenant shall provide Landlord with
the results of appropriate tests of air, water, or soil to demonstrate that
Tenant complies with all Environmental Laws relating in any way to the presence
of Hazardous Substances on the Leased Premises.
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If as a result of Tenant's action, or the actions of Tenant's agents,
employees, guests, invitees, or independent contractors, the presence, release,
threat of release, placement on or in the Leased Premises, or the generation,
transportation, storage, treatment, or disposal at the Leased Premises of any
Hazardous Substance: (i) gives rise to liability (including, but not limited to,
a response action, remedial action, or removal action) under RCRA, CERCLA, the
IEPA, or any common law theory based on nuisance or strict liability, (ii)
causes a significant public health effect, or (iii) pollutes or threatens to
pollute the environment, Tenant shall promptly take any and all remedial and
removal action necessary to clean up the Leased Premises and mitigate exposure
to liability arising from the Hazardous Substance, whether or not required by
law.
Tenant hereby represents that the intended operation of Tenant's
business on the Leased Premises is not currently subject to reporting under
Section 312 of the Federal Emergency Planning and Community Right-to-Know Act of
1986, and federal regulations promulgated thereunder, and in the event Tenant's
business at any time becomes subject to the afore-described Act and regulations
Tenant shall fully comply therewith and shall promptly provide Landlord with
copies of all reporting materials filed or submitted under such Act and
regulations.
Tenant shall indemnify, defend, and hold Landlord harmless from all
damages, costs, losses, expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any breach
by Tenant of any of the provisions of this Section. Tenant's obligations
hereunder shall survive the termination of this Lease.
4. RENT
4.0 RENT. Beginning with the Commencement Date, Tenant shall pay to, or
upon the order of Payee at Payee's Address, until otherwise notified in writing
by Landlord, as rent for the Leased Premises, the annual rental set forth in
Section 1.4(b) payable monthly in advance in installments as set forth in
Section 1.4(b). All payments of rent shall be made without deduction, set off,
discount or abatement in lawful money of the United States.
4.1 INTEREST ON LATE PAYMENTS. Each and every installment of rent and,
each and every payment of other charges hereunder which shall not be paid when
due, shall bear interest from the date when the same is payable under the terms
of this Lease until the same shall be paid at an annual rate equal to eighteen
per cent (18%) per annum unless a lesser rate shall then be the maximum rate
permissible by law with respect thereto, in which event said lesser rate shall
be charged.
4.2 RETURNED CHEEKS. Tenant shall pay to Landlord, as additional rent
the sum of Twenty-Five Dollars ($25.00) for each check returned to Landlord for
any reason including, but not limited to, insufficient funds, nonexistent or
closed account, or nonnegotiabiIity.
5. IMPOSITIONS
5.0 PAYMENT BY TENANT. Tenant shall pay to Landlord, as additional rent
hereunder, for each calendar year all or any part of which falls within the term
of the Lease ("Adjustment Year"), Tenant's Pro Rata Share of the amount by which
the Impositions for such Adjustment
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Year exceeds the Base Impositions ("Imposition Adjustment"). Tenant shall make
payments ("Estimated Payment") on account of the Imposition Adjustment effective
as of the first day of the term of this Lease and of the first day of each
subsequent Adjustment Year as follows:
(a) Landlord may, prior to each Adjustment Year or from time to time
during the Adjustment Year, deliver to Tenant a written notice
or notices ("Projection Notice") setting forth Landlord's
reasonable estimate of the Impositions for such Adjustment Year
and Tenant's Estimated Payments for such Adjustment Year.
(b) Until such time as Landlord notifies Tenant of the Estimated
Payments for an Adjustment Year, Tenant shall, at the time of
each payment of monthly installment of annual rental, pay to
Landlord a monthly installment of Estimated Payments equal to
the greater of the latest monthly installment of Estimated
Payments or one-twelfth (1/12) of Tenant's latest determined
Imposition Adjustment. On or before the first day of the next
calendar month following Landlord's notice, and on or before the
first day of each month thereafter, Tenant shall pay to Landlord
one-twelfth (1/12) of the Estimated Payment shown in Landlord's
notice. Within fifteen (15) days following receipt of Landlord's
notice, Tenant shall also pay Landlord a lump sum equal to the
Estimated Payment shown in the Projection Notice less (1) any
previous payments on account of Estimated Payments made during
such Adjustment Year and (2) monthly installments on account of
Estimated Payments due for the remainder of such Adjustment
Year.
(c) After Landlord shall have determined the actual amount of
Impositions for such Adjustment Year, Landlord shall notify
Tenant in writing ("Landlord's Statement") of such Impositions
for such Adjustment Year. If the Imposition Adjustment owed for
such Adjustment Year exceeds the Estimated Payments paid by
Tenant for such Adjustment Year, then within ten (10) days after
receipt of Landlord's Statement, Tenant shall pay to Landlord an
amount equal to the excess of the Imposition Adjustment over the
Estimated Payments paid by Tenant for such Adjustment Year. If
such Estimated Payments exceed the Imposition Adjustment owed
for such Adjustment Year, then Landlord shall refund the
difference to Tenant within fifteen (15) days after delivery of
Landlord's Statement.
(d) If the term of this Lease commences on any day other than the
first day of an Adjustment Year or ends on any day other than
the last day of an Adjustment Year as the case may be, the
Imposition Adjustment for such year payable by Tenant shall be
prorated based on the number of days in such Adjustment Year
included in the term of this Lease.
(e) No interest shall accrue or be payable with respect to Estimated
Payments.
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5.1 DEFINITION OF IMPOSITIONS. As used herein the term "Impositions"
shall mean all taxes and assessments, general and special, water rates and all
other, impositions, ordinary and extraordinary, of every kind and nature
whatsoever, which may be levied, assessed or imposed upon the Real Estate, or
any part thereof, or upon any improvements at any time situated thereon,
including, without limitation, any assessment by The Corporate Grove
Association, the association of owners of property in The Corporate Grove.
Impositions shall also include fees and costs incurred by Landlord for the
purpose of contesting or protesting tax assessments or rates (THESE FEES ARE
ONLY APPLICABLE IF THE SAVINGS GENERATED EXCEED THE CONTEST/PROTEST FEES). If at
any time during the term of this Lease the method of taxation prevailing at the
commencement of the term hereof shall be altered so that any new tax,
assessment, levy, imposition or charge, or any part thereof, shall be measured
by or be based in whole or in part upon the Lease, the Real Estate or Leased
Premises, or the rent, additional rent or other income there from and shall be
imposed upon the Landlord, then all such taxes, assessments, levies, impositions
or charges, or the part thereof, to the extent that they are so measured or
based, shall be deemed to be included within the term Impositions for the
purposes hereof, to the extent that such Impositions would be payable if the
Real Estate were the only property of Landlord subject to such Impositions.
There shall be excluded from Impositions all federal income taxes, federal
excess profit taxes, franchise, capital stock and federal or state estate or
inheritance taxes of Landlord. All references herein to Impositions "for" a
particular year shall be deemed to refer to the Impositions levied, assessed or
otherwise imposed for such year without regard to when such Impositions are
payable.
6. INSURANCE
6.0 KINDS AND AMOUNTS. As additional rent for the Leased Premises,
Tenant shall procure and maintain policies of insurance, at its own cost and
expense, insuring:
(a) Landlord and Tenant from all claims, demands or actions for
injury to or death of any person in an amount of not less than
$1,000,000.00, for injury to or death of more than one person in
any one occurrence to the limit of $2,000,000.00, and for damage
to property in amount of not less than $500,000.00 made by, or
on behalf of, any person or persons, firm or corporation arising
from, related to or connected with the Leased Premises. Said
insurance shall comprehend full coverage of the indemnity set
forth in Section 13.0 hereto;
(b) Tenant from all workmen's compensation claims;
(c) Landlord and Tenant against breakage of all plate glass utilized
in the improvements on the Leased Premises;
(d) All contents and Tenant's trade fixtures, machinery, equipment,
furniture and furnishings in the Leased Premises to the extent
of at least ninety percent (90%) of their replacement cost under
standard fire and extended coverage insurance, including,
without limitation, vandalism and malicious mischief and
sprinkler leakage endorsements.
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6.1 FORM OF INSURANCE. The aforesaid insurance shall be in companies and
in form, substance and amount (where not stated above) satisfactory to Landlord
and any mortgagee of Landlord, and shall contain standard mortgage clauses
satisfactory to Landlord's mortgagee. The aforesaid insurance may be furnished
under a blanket policy, if and only if, said blanket policy contains an
endorsement that references the Leased Premises and guarantees a minimum limit
available for the Leased Premises equal to the amounts required under Section
6.0 above. The aforesaid insurance shall not be subject to cancellation except
after at least thirty (30) day's prior written notice to Landlord and any
mortgagee of Landlord. The original insurance policies (or certificates thereof
satisfactory to Landlord) together with satisfactory evidence of payment of the
premiums thereon, shall be deposited with Landlord at the Commencement Date and
renewals thereof not less than thirty (30) days prior to the end of the term of
each such coverage. If Landlord is an Illinois Land Trustee the insurance
referred to in subsection 6.0(a), 6.0 (b), and 6.0(d) hereof shall also insure
the beneficiary or beneficiaries thereof.
6.2 MUTUAL WAIVER OF SUBROGATION RIGHTS. Whenever (a) any loss, cost,
damage or expense resulting from fire, explosion or any other casualty or
occurrence is incurred by either of the parties to this Lease, or anyone
claiming by, through or under it, in connection with the Leased Premises, and
(b) such party is then covered in whole or in part by insurance with respect to
such loss, cost, damage or expense, or is required under this Lease to be so
insured, then the party so insured (or so required) hereby releases the other
party from any liability said other party may have on account of such loss,
cost, damage or expense to the extent of any amount recovered by reason of such
insurance (or which could have been recovered had such insurance been carried as
so required) and waives any right of subrogation which might otherwise exist in
or accrue to any person on account thereof. If the party released from liability
hereunder is the Landlord, and if Landlord is an Illinois land trust, the term
"Landlord" for the purpose of this Section 6.2 only, shall include the Trustee,
its agents, its beneficiary or beneficiaries and their agents.
6.3 EXCESS INSURANCE PREMIUMS. Tenant shall pay to Landlord, as
additional rent for the Leased Premises, Tenant's Pro Rata Share of any excess
in premiums for casualty, rent loss and all liability insurance (with all
endorsements) paid annually by Landlord with respect to the Real Estate during
the Lease term over the Base Insurance Premium. Tenant shall be obligated to pay
its Pro Rata Share of only those annual premiums which relate to insurance
coverage during the term of this Lease. Tenant's Pro Rata Share of such excess
premiums shall be paid by Tenant to Landlord within ten (10) days after Landlord
bills Tenant therefor, or, at Landlord's election, in monthly installments in
amounts estimated by Landlord. If Landlord bills Tenant based on estimates, the
amount payable by Tenant shall be adjusted when the actual premium amount is
determined.
6.4 FIRE PROTECTION. Tenant shall conform with all applicable fire codes
of any governmental authority, and with the rules and regulations of Landlord's
fire underwriters and their fire protection engineers, including, without
limitation, the installation of adequate fire extinguishers. If a Monitoring
Service Charge is provided in Section 1.4(h), then Landlord is providing a
sprinkler monitoring system with a direct connection to the local fire
department or monitoring service and Tenant shall pay to Landlord a monthly
Monitoring Service Charge to reimburse Landlord for the cost of the operation
and maintenance thereof. Said monthly Monitoring Service charge shall be
determined by Landlord based on Tenant's Pro Rata Share of
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the cost of operating and maintaining the system and shall be paid by Tenant to
Landlord within ten (10) days after Landlord bills Tenant therefor. If there is
no Monitoring Service Charge provided in Section 1.4(h) and if the Leased
Premises are served by a sprinkler system, then Tenant shall, at its sole cost
and expense, install a sprinkler monitoring system with direct connection to the
local fire department or a monitoring service approved by Landlord and maintain
the same in effect at all times during the entire Lease term.
7. DAMAGE OR DESTRUCTION
7.0 In the event the Premises or any structures or improvements thereon
are damaged or destroyed during the term thereof, Lessor shall determine in its
sole discretion, whether to promptly cause the said damage or destruction to be
repaired and if so determined, shall cause the Premises to be restored to a
condition substantially equivalent to the existing immediately preceding the
occurrence. If so decided, such repair and restoration shall be at Lessor's
expense, excepting the cost of replacing or repairing Lessee's fixtures or
personal property.
7.1 Lessor shall determine whether to repair or not within thirty (30)
days from the date of the damage or destruction. In the event Lessor decides to
repair, Lessor shall have ninety (90) days from the date of the decision to
complete repairs. In the event Lessor determines not to repair, then both Lessor
and Lessee shall at such time have the option to terminate this Lease. All
insurance proceeds which relate to the building and improvements and net
Lessee's contents shall be the property of the Lessor. Lessor shall abate the
rent payable from the date of loss and during the period in which repairs and
restoration are taking place. If Lessor decides not to repair, the Lease shall
terminate on the 30 days following notice from Lessor and all amounts payable by
lessee under this lease shall be pro-rated to the last date that the Lessee
shall have had us and occupancy of the Premises.
8. CONDEMNATION
8.0 TAKING OF WHOLE. If the whole of the Leased Premises shall be taken
or condemned for a public or quasi-public use or purpose by a competent
authority, or if such a portion of the Leased Premises shall be so taken that as
a result thereof the balance cannot be used for the same purpose and with
substantially the same utility to Tenant as immediately prior to such taking,
then in either of such events, the Lease term shall terminate upon delivery of
possession to the condemning authority, and any award, compensation or damages
(hereinafter sometimes called the "award") shall be paid to and be the sole
property of Landlord whether the award shall be made as compensation for
diminution of the value of the leasehold estate or the fee of the Real Estate or
otherwise and Tenant hereby assigns to Landlord all of Tenant's right, title and
interest in and to any and all such award. Tenant shall continue to pay rent and
other charges hereunder until the Lease term is terminated and any excess
Impositions and excess premiums prepaid by Tenant, or which accrue prior to the
termination, shall be adjusted between the parties.
8.1 PARTIAL TAKING. If only a part of the Leased Premises shall be so
taken or condemned, but the balance of the Leased Premises can still be used for
the same purpose and with substantially the same utility to Tenant as
immediately prior to such taking, this Lease shall
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not terminate and Landlord shall repair and restore the Leased Premises and all
improvements thereon, except that Landlord shall not hereby be required to
expend for repair and restoration any sum in excess of the Award. Any portion of
the Award which has not been expended by Landlord for such repairing or
restoration shall be retained by Landlord as Landlord's sole property. The rent
shall be equitably abated following delivery of possession to the condemning
body. If fifty percent (50%) or more of the building within which the Leased
Premises are located shall be so taken or condemned, Landlord may terminate this
Lease by giving written notice thereof to Tenant within sixty (60) days after
such taking. In such event, the award shall be paid to or be the sole property
of Landlord.
9. MAINTENANCE AND ALTERATIONS
9.0 LANDLORD'S MAINTENANCE.
(a) Landlord shall, at its Sole cost and expense, keep and maintain
the roof and exterior walls (but not exterior windows and doors
and their frames if damage caused by tenant negligence) of the
building of which the Leased Premises are a part, in good order
and repair, except for loss by fire or other casualty, which
loss is covered by Article 7 of this Lease.
(b) Landlord shall perform all exterior painting (at such intervals
as Landlord deems appropriate) and shall remove snow
accumulations from the roof (if deemed necessary by Landlord),
and from the parking lot, and shall perform necessary
maintenance, repairs and replacements to the exterior windows
and doors and their frames and on portions of the Real Estate
and the improvements and mechanical equipment thereon (including
the parking lot and landscaping) used in common by the tenants
thereof. Except as provided in subsection 9.0(a) and in Article
7, hereof Tenant shall pay to Landlord Tenant's Pro Rata Share
of the cost and expense incurred by Landlord in fulfilling its
obligations under this subsection 9.0(b). Such payment shall be
additional rent hereunder and shall be paid to Landlord within
ten (10) days after Landlord bills Tenant therefor or, at
Landlord's election, in monthly installments in amounts
estimated by Landlord.
(c) Landlord shall repair or replace any damage to the Real Estate,
including, without limitation, damage to the roof, landscaping,
or exterior of the building of which the Leased Premises are a
part, and to truck dock doors caused by or resulting from any
act or omission or negligence of Tenant, its agents, employees,
contractors, customers and invitees. Tenant shall reimburse
Landlord for Landlord's costs and expenses incurred for repairs
or replacements made pursuant to this subsection 9.0(c), within
ten (10) days after Landlord bills Tenant therefor.
9.1 TENANT'S MAINTENANCE.
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(a) Tenant shall keep and maintain the entire interior of the Leased
Premises and the portion of the exterior not to be maintained by
Landlord pursuant to Section 9.0, roof-mounted mechanical
equipment used in connection with the Leased Premises, pipes and
conduits below the floor of the Leased premises (if caused by
tenant negligence), and windows on the interior and exterior of
the Leased Premises clean and sanitary and in good condition and
repair, including, without limitation, any necessary
replacements (if caused by tenant negligence), and further
including, without limitation, carpet cleaning at least once
each year, necessary interior painting, and maintaining and
repairing of exterior doors (if caused by tenant negligence) in
conformity with other exterior doors of the building or
buildings on the Real Estate. Tenant shall, to the extent
possible, keep the Leased Premises from falling temporarily out
of repair or deteriorating. Tenant shall fully comply with all
health, safety and police regulations in force. Tenant shall
promptly remove any debris left by Tenant, its employees,
agents, contractors, or invitees in the parking area or other
exterior areas of the Real Estate.
(b) At all times during the term of this Lease, Tenant shall be
responsible for the expense of that portion of Landlord's
maintenance contract allocable to the equipment in the Leased
Premises, which provides for inspection at least once each
calendar quarter of the heating, air conditioning and
ventilating equipment, and provides for necessary repairs
thereto. Said inspection and repairs shall encompass the
following work:
1. Check performance of all major components.
2. Lubricate moving parts as required.
3. Check refrigerant charges (during cooling season).
4. Inspect for oil and refrigerant leaks.
5. Check operating and safety controls.
6. Check pressures and temperatures.
7. Inspect condensers.
8. Inspect fans, motors and starters.
9. Tighten electrical connections at equipment.
10. Test amperages and voltages.
11. Check belts and drives.
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12. Change oil and filters, or dryers, as required.
13. Check temperature on control system.
9.2 ALTERATIONS. Tenant shall make all additions, improvements and
alterations (hereinafter "Alterations") on the Leased Premises, and on and to
the appurtenances and equipment thereof, required by any governmental authority
or which may be made necessary by the act or neglect of any persons, firm or
corporation, public or private. Except as provided in the immediately preceding
sentence, Tenant shall not create any openings in the roof or exterior walls, or
make any other Alterations to the Leased Premises without Landlord's prior
written consent, which consent Landlord may, in its discretion, withhold. As to
any Alterations which Tenant is required hereunder to perform or to which
Landlord consents, such work shall be performed strictly in accordance with
plans and specifications therefor first approved in writing by Landlord or, at
Landlord's option (exercised by notice in writing from Landlord to Tenant given
within ten (10) days after Landlord receives Tenant's plans and specifications),
such work shall be performed by employees of or contractors employed by
Landlord, at Tenant's expense. Upon completion of any Alterations by or on
behalf of Tenant, Tenant shall provide Landlord with such documents as Landlord
may require (including, without limitation, sworn contractors' statements and
supporting lien waivers) evidencing payment in full for such work. In the event
Tenant makes any Alterations not in compliance with the provisions of this
Section 9.2, Tenant shall, upon written notice from Landlord immediately remove
such Alterations and restore the Leased Premises to their condition immediately
prior to the making thereof. If Tenant fails so to remove such Alterations and
restore the Leased Premises as aforesaid, Landlord may, at its option, and in
addition to all other rights or remedies of Landlord under this Lease, at law or
in equity, enter the Leased Premises and perform said obligation of Tenant and
Tenant shall reimburse Landlord for the cost to the Landlord thereof,
immediately upon being billed therefor by Landlord. Such entry by Landlord shall
not be deemed an eviction or disturbance of Tenant's use or possession of the
Leased Premises nor render Landlord liable in any manner to Tenant.
10. LIENS AND ENCUMBRANCES
10.0 ENCUMBERING TITLE. Tenant shall not do any act which shall in any
way encumber the title of Landlord in and to the Leased Premises or the Real
Estate, nor shall the interest or estate of Landlord in the Leased Premises or
the Real Estate be in any way subject to any claim by way of lien or
encumbrance, whether by operation of law or by virtue of any express or implied
contract by Tenant. Any claim to, or lien upon, the Leased Premises or Real
Estate arising from any act or omission of Tenant shall accrue only against the
leasehold estate of Tenant and shall be subject and subordinate to the paramount
title and fights of Landlord in and to the Leased Premises and the Real Estate.
10.1 LIENS AND RIGHT TO CONTEST. Tenant shall not permit the Leased
Premises or the Real Estate to become subject to any mechanics', laborers' or
materialmen's lien on account of labor or material furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed on the Leased Premises by,
or at the direction or sufferance of, Tenant; provided, however, that Tenant
shall have the right to contest in good faith and with reasonable diligence, the
validity of any such lien or
11
claimed lien if Tenant shall give to Landlord such security as may be deemed
satisfactory to Landlord to insure payment thereof and to prevent any sale,
foreclosure, or forfeiture of the Leased Premises or the Real Estate by reason
of non-payment thereof provided further, however, that on final determination of
the lien or claim for lien, Tenant shall immediately pay any judgment rendered,
with all proper costs and charges, and shall have the lien released and any
judgment satisfied.
11. ASSIGNMENT AND SUBLETTING
11.0 CONSENT REQUIRED. Tenant shall not, without Landlord's prior
written consent, (a) assign, convey or mortgage this Lease or any interest under
it; (b) allow any transfer thereof or any lien upon Tenant's interest by
operation of law; (c) sublet the Leased Premises or any part thereof; or (d)
permit the use or occupancy of the Leased Premises or any part thereof by anyone
other than Tenant. Landlord agrees that it will not unreasonably withhold its
consent to any assignment or sublease, provided that if Tenant requests
Landlord's consent to a sublease or to an assignment of all or a substantial
portion of the entire Leased Premises, Landlord may, in lieu of granting such
consent or reasonably withholding the same, terminate this Lease, effective on
the commencement date specified in the sublease or on the effective date of said
assignment, as the case may be, to which Landlord's consent was requested. No
permitted assignment or subletting shall relieve Tenant of Tenant's covenants
and agreements hereunder and Tenant shall continue to be liable as a principal
and not as a guarantor or surety, to the same extent as though no assignment or
subletting had been made.
11.1 MERGER OR CONSOLIDATION. Tenant may, without Landlord's consent,
assign this Lease to any corporation resulting from a merger or consolidation of
the Tenant upon the following conditions: (a) that the total assets and net
worth of such assignee after such consolidation or merger shall be equal to or
more than that of Tenant immediately prior to such consolidation or merger; (b)
that Tenant is not at such time in default hereunder; and (c) that such
successor shall execute an instrument in writing fully assuming all of the
obligations and liabilities imposed upon Tenant hereunder and deliver the same
to Landlord. If the aforesaid conditions are satisfied, Tenant shall be
discharged from any further liability hereunder.
11.2 VOTING CONTROL OF TENANT. If Tenant is a corporation, the shares of
which, at the time of execution of this Lease or during the term hereof are or
shall be held by fewer than one hundred (100) persons, and if at any time during
the term of this Lease the persons, firms or corporations who own a majority or
controlling number of its shares at the time of the execution of this Lease or
following Landlord's consent to a transfer of such shares cease to own such
shares (except as a result of transfer by bequest or inheritance) and such
cessation shall not first have been approved in writing by Landlord, then such
cessation shall, at the option of Landlord, be deemed a default by Tenant under
this Lease.
11.3 OTHER TRANSFER OF LEASE. Tenant shall not allow or permit any
transfer of this Lease, or any interest hereunder, by operation of law, or
convey, mortgage, pledge, or encumber this Lease or any interest herein.
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12. UTILITIES
12.0 UTILITIES
(a) Tenant shall purchase all utility services, including but not
limited to fuel and electricity, but excluding water and
sewerage, from the utility or municipality providing such
service, and shall pay for such services when such payments are
due. If subsection 1.4(i) provides for a water and sewerage
charge, then Tenant shall pay to Landlord within ten (10) days
after receipt of a bill therefore, as additional rent hereunder,
Tenant's Pro Rata Share of Landlord's payments to the utility or
municipality for water or sewerage services. If subsection
1.4(i) does not provide for the Water and Sewerage Charge, then
Tenant shall purchase water and sewerage from the utility and
municipality providing such services, and pay for such services
when such payments are due.
(b) Tenant shall pay to Landlord, as additional rent for the Leased
Premises, Tenant's Pro Rata Share of the charges, if any, for
utilities used for areas of common use by the Tenants on the
Real Estate. Such charges shall be paid by Tenant to Landlord
within ten (10) days alter Landlord bills Tenant therefor, or,
at Landlord's election, in monthly installments in amounts
estimated by Landlord.
13. INDEMNITY AND WAIVER
13.0 INDEMNITY. Tenant will protect, indemnify and save harmless
Landlord and Landlord's agents (and Landlord's beneficiary or beneficiaries and
their agents if Landlord is an Illinois Land Trustee) from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Landlord by reason of
(a) any accident, injury to or death of persons or loss of or damage to property
occurring on or about the Leased Premises or resulting from any act or omission
of Tenant or anyone claiming by, through or under Tenant; (b) any failure on the
part of Tenant to perform or comply with any of the terms of this Lease; or (c)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Leased Premises or any part thereof. If any action,
suit or proceeding is brought against Landlord and/or Landlord's agents (and/or
Landlord's beneficiary or beneficiaries or their agents if Landlord is an
Illinois Land Trustee) by reason of any such occurrence, Tenant will, at
Tenant's expense, resist and defend such action, suit or proceeding, or cause
the same to be resisted and defended by counsel approved by Landlord.
13.1 WAIVER OF CERTAIN CLAIMS. Tenant waives all claims it may have
against Landlord and Landlord's agents (and Landlord's beneficiary or
beneficiaries and their agents if Landlord is an Illinois Land Trustee) for
damage or injury to person or property sustained by Tenant or any persons
claiming through Tenant or by any occupant of the Leased Premises, or by any
other person, resulting from any part of the Real Estate or any of its
improvements, equipment or appurtenances becoming out or repair, or resulting
from any accident on or about
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the Real Estate or resulting directly or indirectly from any act or neglect of
any tenant or occupant of any part of the Real Estate or of any other person,
excluding Landlord. This Section 13.1 shall include, but not by way of
limitation, damage cause by water, snow, frost, steam, excessive heat or cold
sewage, gas, odors, or noise, or caused by bursting or leaking of pipes or
plumbing fixtures, and shall apply equally whether any such damage results from
the act or neglect of Tenant or of other tenants, or occupants or any part of
the Real Estate or of any other person, excluding Landlord, and whether such
damage be caused by or result from any thing or circumstance above mentioned or
referred to, or to any other thing or circumstance whether of a like nature or
of a wholly different nature. All personal property belonging to Tenant or any
occupant of the Leased Premises that is in or on any part of the Real Estate
shall be there at the risk of Tenant or of such other person only, and Landlord
shall not be liable for any damage. thereto or for the theft or misappropriation
thereof.
14. RIGHTS RESERVED TO LANDLORD
14.0 RIGHTS RESERVED TO LANDLORD. Without limiting any other rights
reserved or available to Landlord under this Lease, at law or in equity,
Landlord, on behalf of itself and Agent reserves the following rights to be
exercised at Landlord's election:
(a) To change the street address of the Leased Premises;
(b) To inspect the Leased Premises and to make repairs, additions or
alterations to the Leased Premises or the building of which the
Leased Premises are a part, which Tenant may neglect or refuse
to make in accordance with the covenants and agreements of this
Lease, and, specifically including, but without limiting the
generality of the foregoing, to make repairs, additions or
alterations within the Leased Premises to mechanical,
electrical, and other facilities serving other premises in the
building of which the Leased Premises are a part or other parts
of the Real Estate;
(c) To show the Leased Premises to prospective purchasers,
mortgagees, or other persons having a legitimate interest in
viewing the same, and, at any time within one (1) year prior to
the expiration of the Lease term, to persons wishing to rent the
Leased Premises;
(d) During the last year of the Lease term, to place and maintain
the usual "For Rent" sign facing Busch Parkway;
(e) During the last ninety (90) days of the Lease term, if during or
prior to that time Tenant vacates the Leased Premises, to
decorate, remodel, repair, alter or otherwise prepare the Leased
Premises for new occupancy, and
(f) To place and maintain "For Sale" signs on the Real Estate and on
the exterior of the building of which the Leased Premises are a
part.
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Landlord may enter upon the Leased Premises for any and all of said purposes and
may exercise any and all of the foregoing fights hereby reserved, during normal
business hours unless an emergency exists, without being deemed guilty of any
eviction or disturbance of Tenant's use or possession of the Leased Premises,
and without being liable in any manner to Tenant.
15. QUIET ENJOYMENT
15.0 QUIET ENJOYMENT. So long as Tenant is not in default under the
covenants and agreements of this Lease, Tenant's quiet and peaceable enjoyment
of the Leased Premises shall not be disturbed or interfered with by Landlord or
by any person claiming by, through or under Landlord.
16. SUBORDINATION OR SUPERIORITY
16.0 SUBORDINATION OR SUPERIORITY. The rights and interest of Tenant
under this Lease shall be subject and subordinate to any first mortgage or trust
deed creating a first mortgage that may be placed upon the Leased Premises and
to any and all advances to be made thereunder, and to the interest thereon, and
all renewals, replacements and extensions thereof, if the mortgagee or trustee
named in said mortgages or trust deeds shall elect to subject and subordinate
the rights and interest of Tenant under this Lease to the lien of its mortgage
or deed of trust. Any mortgagee or trustee may elect to give the rights and
interest of Tenant under this Lease priority over the lien of its mortgage or
deed of trust. In the event of either such election and upon notification by
such mortgagee or trustee to Tenant to that effect, the rights and interest of
Tenant under this Lease shall be deemed to be subordinate to, or to have
priority over, as the case may be, the lien of said mortgage or trust deed,
whether this Lease is dated prior to or subsequent to the date of said mortgage
or trust deed. Tenant shall execute and deliver whatever instruments may be
required for such purposes, and in the event Tenant fails so to do within ten
(10) days after demand in writing, Tenant does hereby make, constitute and
irrevocably appoint Landlord as its attorney in fact and in its name, place, and
stead so to do.
17. SURRENDER
17.0 SURRENDER. Upon the termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon the termination of Tenant's
right to possession of the Leased Premises, Tenant will at once surrender and
deliver up the Leased Premises, together with all improvements, thereon, to
Landlord in good condition and repair, reasonable wear and tear excepted. Said
improvements shall include all plumbing, lighting, electrical, heating, cooling
and ventilating fixtures and equipment and other articles or personal property
used in the operation of the Leased Premises (as distinguished from operations
incident to the business of Tenant), together with all duct work. All additions,
hardware, non-trade fixtures and all improvements, temporary or permanent, in or
upon the Leased Premises placed there by Tenant shall become Landlord's property
and shall remain upon the Leased Premises upon such termination of this Lease by
lapse of time or otherwise, without compensation or allowance or credit to
Tenant, unless Landlord requests their removal in writing at or before the time
of such termination of this Lease. If Landlord so requests removal of said
additions, hardware, non-trade fixtures and all
15
improvements and Tenant does not make such removal prior to termination of this
Lease, or within ten (10) days after such request, whichever is later, Landlord
may remove the same and deliver the same to any other place of business of
Tenant or warehouse the same, and Tenant shall pay the cost of such removal,
delivery and warehousing to Landlord on demand.
17.1 REMOVAL OF TENANT'S PROPERTY. Upon the termination of this Lease by
lapse of time, Tenant may remove Tenant's trade fixtures and all of Tenant's
personal property and equipment other than such personal property and equipment
as are referred to in Section 17.0; provided, however, that Tenant shall repair
any injury or damage to the Leased Premises which may result from such removals.
If Tenant does not remove Tenant's furniture, machinery, trade fixtures and all
other items of personal property of every kind and description from the Leased
Premises prior to the end of the term, however ended, Landlord may, at its
option, remove the same and deliver the same to any other place of business of
Tenant or warehouse the same, and Tenant shall pay the cost of such removal
(including the repair of any injury or damage to the Leased Premises resulting
from such removal), delivery and warehousing to Landlord on demand, or Landlord
may treat such property as having been conveyed to Landlord with the Lease as a
Bill of Sale, without further payment or credit by Landlord to Tenant.
17.2 HOLDING OVER. Any holding over by Tenant of the Leased Premises
after the expiration of this Lease shall operate and be construed to be tenancy
from month to month only, at a monthly rental of double the rate of rent payable
hereunder the Lease term. Nothing contained in this Section 17.2 shall be
construed to give Tenant the right to hold over after the expiration of this
Lease, and Landlord may exercise any and all remedies at law or in equity to
recover possession of the Leased Premises.
18. REMEDIES
18.0 DEFAULTS. Tenant further agrees that any one or more of the
following events shall be considered events of default as said term is used here
that is to say, if
(a) Tenant shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed
against Tenant asking reorganization of Tenant under the Federal
bankruptcy laws as now or hereafter amended, or under the laws
of any State, shall be entered, and any such decree or judgment
or order shall not have been vacated or stayed or set aside
within sixty (60) days from the date of the entry or granting
thereof, or
(b) Tenant shall file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy or
any petition pursuant or purporting to be pursuant to the
Federal bankruptcy laws now or hereafter amended, or Tenant
shall institute any proceedings or shall give its consent to the
institution of any proceedings for any relief of Tenant under
any bankruptcy or insolvency laws or any laws relating to the
relief of debtors, readjustment of indebtedness, reorganization,
arrangements, composition or extension; or
16
(c) Tenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for
Tenant or any of the property of Tenant; or
(d) The Leased Premises are levied upon by any revenue officer or
similar officer; or
(e) A decree or order appointing a receiver of the property of Tenant
shall be made and such decree or order shall not have been
vacated, stayed or set aside within sixty (60) days from the date
of entry or granting thereof; or
(f) Tenant shall vacate the Leased Premises or abandon the same
during the term hereof; or
(g) Tenant shall default in any payment of rent or other charge
required to be paid by Tenant hereunder when due as herein
provided and such default shall continue for five (5) days after
notice thereof in writing to Tenant; or
(h) If Tenant shall fail to contest the validity of any lien or
claimed lien and give security to Landlord to insure payment
thereof, or having commenced to contest the same and having given
such security, shall fail to prosecute such contest with
diligence, or shall fail to have the same released and satisfy
any judgment rendered thereon, and such default continues for
five (5) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing or performing any of
the other covenants or agreements herein contained to be kept,
observed and performed by Tenant, and such defaults shall
continue to thirty (30) days after notice thereof in writing to
Tenant; or
(j) Tenant shall repeatedly be late in the payment of rent or other
charges required to be paid hereunder or shall repeatedly default
in the keeping, observing, or performing of any other covenants
or agreements herein contained to be kept, observed or performed
by Tenant (provided notice of such payment or other defaults
shall have been given to Tenant, but whether or not Tenant shall
have timely cured any such payment or other defaults of which
notice was given).
Upon the occurrence of any one or more of such events of default, Landlord may
terminate this Lease. Upon termination of this Lease, Landlord may re-enter the
Leased Premises with or without process of law using such force as may be
necessary, and remove all persons, fixtures and chattels therefrom, and Landlord
shall not be liable for any damages resulting therefrom. Such re-entry and
repossession shall not work a forfeiture of the rents or other charges to be
paid and covenants to be performed by Tenant during the full term of this Lease.
Upon such repossession of the Leased Premises, Landlord shall be entitled to
recover as liquidated damages and not as a penalty a sum of money equal to the
value of the rent and other sums provided herein to be paid
17
by Tenant to Landlord for the remainder of the Lease term, less the fair rental
value of the Leased Premises for said period. Upon the happening of any one or
more of the above-mentioned events Landlord may repossess the Leased Premises by
forcible entry or detainer suit, or otherwise, without demand or notice of any
kind to Tenant (except as hereinabove provided for) and without terminating this
Lease, in which event Landlord may but shall be under no obligation so to do,
relet all or any part of the Leased Premises for such rent and upon such terms
as shall be satisfactory to Landlord (including the right to relet the Leased
Premises for a term greater or lesser than that remaining under the Lease term,
and the right to relet the Leased Premises as a part of a larger area, and the
right to change the character or use made of the Leased Premises). For the
purpose of such reletting, Landlord may decorate or make any repairs, changes,
alterations or additions in or to the Leased Premises that may be necessary or
convenient. If Landlord does not relet the Leased Premises, Tenant shall pay to
Landlord on demand as liquidated damages and not as a penalty a sum equal to the
amount of the rent, and other sums provided herein to be paid by Tenant for the
remainder of the Lease term. If the Leased Premises are relet and sufficient sum
shall not be realized from such reletting after paying all of the expenses of
such decorations, repairs, changes, alterations, additions, reletting and the
collection of the rent accruing therefrom (including, but not by way of
limitation, attorneys fees and brokers' commissions), to satisfy the rent and
other charges herein provided to be paid for the remainder of the Lease term,
Tenant shall pay to Landlord on demand any deficiency and Tenant agrees that
Landlord may file suit to recover any sums falling due under the terms of this
Section from time to time. If default shall be made in any covenant, agreement,
condition or undertaking herein contained to be kept, observed and performed by
Tenant, other than the making of any payments as herein provided, which cannot
with due diligence be cured within a period of thirty (30) days, and if notice
thereof in writing shall have been given to Tenant, and if Tenant, prior to the
expiration of thirty (30) days from and after the giving of such notice,
commences to eliminate the cause of such default and proceeds diligently and
with reasonable dispatch to take steps and do all work required to cure such
default and does so cure such default, then Landlord shall not have the right to
declare and said term ended by reason of such default or to repossess without
terminating the Lease, provided, however, that the curing of any default in such
manner shall not be construed to limit or restrict the right of Landlord to
declare the said term ended or to repossess without terminating the Lease, and
to enforce all of its rights and remedies hereunder for any other default not so
cured.
18.1 REMEDIES CUMULATIVE. No remedy herein or otherwise conferred upon
or reserved to Landlord shall be considered to exclude or suspend any other
remedy but the same shall be cumulative and shall be in addition to every other
remedy given hereunder, or now or hereafter existing at law or in equity or by
statute, and every power and remedy given by this Lease to Landlord may be
exercised from time to time and so often as occasion may arise or as may be
deemed expedient.
18.2 NO WAIVER. No delay or omission of Landlord to exercise any right
or power arising from any default shall impair any such right or power or be
construed to be a waiver of any such default or any acquiescence therein. No
waiver of any breach of any of the covenants of this Lease shall be construed,
taken or held to be a waiver of any other breach or waiver, acquiescence in or
consent to any further or succeeding breach of the same covenant. The acceptance
by Landlord of any payment of rent or other charges hereunder after the
termination by Landlord of
18
this Lease or of Tenant's right to possession hereunder shall not, in the
absence of agreement in writing to the contrary by Landlord, be deemed to
restore this Lease or Tenant's right to possession hereunder, as the case may
be, but shall be construed as a payment on account, and not in satisfaction of
damages due from Tenant to Landlord.
18.3 DEFAULT UNDER OTHER LEASES. A default in this Lease, or in any
other lease made by Tenant for any premises on the Real Estate shall, at the
option of the Landlord, be deemed a default under this Lease, the other lease or
both leases.
19. SECURITY DEPOSIT
19.0 SECURITY DEPOSIT. To secure the faithful performance by Tenant of
all the covenants, conditions and agreements in this Lease set forth and
contained on the part of the Tenant to be fulfilled, kept, observed and
performed, including, but without limiting the generality of the foregoing, such
covenants, conditions and agreements in this Lease which become applicable upon
the expiration or termination of the same or upon termination of Tenant's right
to possession pursuant to Section 18.0 of the Lease, Tenant has deposited
herewith the Security Deposit with Agent on the understanding: (a) that the
Security Deposit or any portion thereof not previously applied, or from time to
time such other portions thereof may be applied to the curing of any default
that may then exist, without prejudice to any other remedy or remedies which the
Landlord may have on account thereof, and upon such application Tenant shall pay
Agent on demand the amount so applied which shall be added to the Security
Deposit so the same may be restored to its original amount; (b) that should the
Leased Premises be conveyed by Landlord or should Agent cease to be the agent of
the beneficiary or beneficiaries of Landlord, the Security Deposit or any
portion thereof not previously applied may be turned over to Landlord's grantee
or the new agent, as the case may be, and if the same be turned over as
aforesaid, the Tenant hereby releases Landlord and Agent from any and all
liability with respect to the Security Deposit and/or its application or return,
and the Tenant agrees to look to such grantee or agent, as the case may be, for
such application or return; (c) that Landlord shall have no personal liability
with respect to said sum and Tenant shall look exclusively to Agent or its
successors pursuant to subsection (b) hereof for return of said sum on the
expiration of this Lease; (d) that Agent or its successor shall not be obligated
to hold said Security Deposit as a separate fund, but on the contrary may
commingle the same with its other funds; (e) that if Tenant shall faithfully
fulfill, keep, perform and observe all of the covenants, conditions, and
agreements in this Lease set forth and contained on the part of the Tenant to be
fulfilled, kept, performed and observed, the sum deposited or the part or
portion thereof not previously applied shall be returned to the Tenant without
interest no later than thirty (30) days after the expiration of the term of this
Lease or any renewal or extension thereof, provided Tenant has vacated the
Leased Premises and surrendered possession thereof to the Landlord at the
expiration of said term or any extension or renewal thereof as provided herein;
(f) in the event that Landlord terminates the Lease or Tenant's right to
possession pursuant to Section 18.0 of this Lease, Agent may apply the Security
Deposit against all damages suffered to the date of such termination and/or may
retain the Security Deposit to apply against such damages as may be suffered or
shall accrue thereafter by reason of Tenant's default; and (g) in the event any
bankruptcy, insolvency, reorganization or other credit-debtor proceedings shall
be instituted by or against Tenant, or its successors or assigns, the Security
Deposit shall be
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deemed to be applied first to the payment of any rents and/or other charges due
Landlord for all periods prior to the institution of such proceedings, and the
balance, if any, of the Security Deposit may be retained or paid to Landlord in
partial liquidation of Landlord's damages.
20. MISCELLANEOUS
20.0 TENANT'S STATEMENT. Tenant shall furnish Landlord annually within
ninety (90) days after the end of each of Tenant's fiscal years a copy of its
annual audited and certified statement. It is mutually agreed that Landlord may
deliver a copy of such statements to its mortgagee or any prospective purchaser
of the Real Estate, but otherwise Landlord shall treat such statements and
information contained therein as confidential.
20.1 ESTOPPEL CERTIFICATES. Tenant shall at any time and from time to
time upon not less than ten (10) days prior written request from Landlord
execute, acknowledge and deliver to Landlord, in form reasonably satisfactory to
Landlord and/or Landlord's mortgagee, a written statement certifying that Tenant
has accepted the Leased Premises, that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), that the Landlord
is not in default hereunder, the date to which the rental and other charges have
been paid in advance, if any, or such other accurate certification as may
reasonably be required by Landlord or Landlord's mortgagee, and agreeing to give
copies to any mortgagee of Landlord of all notices by Tenant to Landlord. It is
intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser of the Leased Premises or Real Estate,
mortgagee of the Leased Premises or Real Estate and their respective successors
and assigns.
20.2 LANDLORD'S RIGHT TO CURE. Landlord may, but shall not be obligated
to, cure any default by Tenant specifically including, but not only by way of
limitation, Tenant's failure to pay Impositions, obtain insurance, make repairs,
or satisfy lien claims, after complying with the notice provisions established
in Article XVIII; and whenever Landlord so elects, all costs and expenses paid
by Landlord in curing such default, including without Limitation reasonable
attorneys' fees, shall be so much additional rent due on the next rent date
after such payment together with interest (except in the case of said attorneys'
fees) at the rate of eighteen percent (18%) per annum from the date of
advancement to the date of repayment by Tenant to Landlord.
20.3 AMENDMENTS MUST BE IN WRITING. None of the covenants, terms or
conditions of this Lease, to be kept and performed by either party, shall in any
manner be altered, waived, modified, changed or abandoned except by a written
instrument, duly signed, acknowledged and delivered by the other party; and no
act or acts, omission or omissions or series of acts or omissions, or waiver,
acquiescence or forgiveness by Landlord as to any default in or failure of
performance, either in whole or in part, by Tenant, of any of the covenants,
terms and conditions to this Lease, shall be deemed or construed to be a waiver
by Landlord of the right at all times thereafter to insist upon the prompt, full
and complete performance by Tenant of each and all the covenants, terms and
conditions hereon thereafter to be performed in the same manner and to the same
extent as the same as herein covenanted to be performed by Tenant.
20
20.4 NOTICES. All notices to or demands upon Landlord or Tenant desired
or required to be given under any or the provisions hereof, shall be in writing.
Any notices or demands from Landlord to Tenant shall be deemed to have been duly
and sufficiently given if a copy thereof has been mailed by United States
registered or certified mail in an envelope properly stamped and addressed to
Tenant at Tenant's Address or at such address as Tenant may theretofore have
furnished by written notice to Landlord, and any notices or demands from Tenant
to Landlord shall be deemed to have been duly and sufficiently given if mailed
by United States registered or certified mail in an envelope properly stamped
and addressed to Landlord at Landlord's Address, or at such other address as
Landlord may theretofore have furnished by written notice to Tenant. The
effective date of such notice shall be three (3) days after delivery of the same
to the United States Post Office for mailing.
20.5 SHORT FORM LEASE. This Lease shall not be recorded, but the parties
agree, at the request of either of them, to execute a Short Form Lease for
recording, containing the name of the parties, the legal description and the
term of the Lease.
20.6 TIME OF ESSENCE. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
20.7 RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed
or construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership, or of joint venture by
the parties hereto, it being understood and agreed that no provision contained
in this Lease nor any acts of the parties hereto shall be deemed to create any
relationship other than the relationship of Landlord and Tenant.
20.8 CAPTIONS. The captions to this Lease are for convenience only and
are not to be construed as part of this Lease and shall not be construed as
defining or limiting in any way the scope or intent of the provisions hereof.
20.9 SEVERABILITY. If any term or provision of this Lease shall to any
extent be held invalid or unenforceable, the remaining terms and provisions of
this Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
20.10 LAW APPLICABLE. This Lease shall be construed and enforced in
accordance with the laws of the state where the Leased Premises are located.
20.11 COVENANTS BINDING ON SUCCESSORS. All of the covenants, agreements,
conditions and undertakings contained in the Lease shall extend, inure to and be
binding upon the heirs, executors, administrators, successors and assigns or the
respective parties hereto, the same as if they were in every case specifically
named, and wherever in this Lease reference is made to either of the parties
hereto, it shall be held to include and apply to, wherever applicable, the
heirs, executors, administrators, successors and assigns of such party. Nothing
herein contained shall be construed to grant or confer upon any person or
persons, firm, corporation or governmental authority, other than the parties
hereto, their heirs, executors, administrators, successors and
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assigns, any right, claim or privilege by virtue of any covenant, agreement,
condition or undertaking in this Lease contained.
20.12 BROKERAGE. Tenant warrants that it has had no dealings with any
broker or agent in connection with this Lease other than Brokers listed in
Section 1.4(m), whose commissions Landlord covenants and agrees to pay in the
amount agreed between Landlord and Brokers. Tenant covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any other
broker or other agent with respect to this Lease or the negotiation thereof.
20.13 LANDLORD MEANS OWNER. The term "Landlord" as used in this Lease,
so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to and include only the owner or owners at the time in question of
the fee of the Real Estate, and in the event of any transfer or transfers of the
title to such fee, Landlord herein named (and in case of any subsequent transfer
or conveyances, the then grantor) shall be automatically freed and relieved,
from and after the date of such transfer or conveyance, of all liability as
respects the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed; provided that any funds in
the hands of such Landlord or the then grantor at the time of such transfer, in
which Tenant has an interest, shall be turned over to the grantee, and any
amount then due and payable to Tenant by Landlord or the then grantor under any
provision of this Lease, shall be paid to Tenant.
20.I4 LENDER'S REQUIREMENTS. If any mortgagee or committed financer of
Landlord should require, as a condition precedent to the closing of any loan or
the disbursal of any money under any loan, that this Lease be amended or
supplemented in a manner (other than in the description of the Leased Premises,
the term, the purpose or the rent or other charges hereunder) Landlord shall
give written notice thereof to Tenant, which notice shall be accompanied by a
Lease Supplement Agreement embodying such amendments and supplements. Tenant
shall, within ten (10) days after the effective date of Landlord's notice,
either consent to such amendments and supplements (which consent shall not be
unreasonably withheld) and execute the tendered Lease Supplement Agreement, or
deliver to Landlord a written statement of its reason or reasons for refusing to
so consent and execute. Failure of Tenant to respond within said ten (10) day
period shall be a default under this Lease, without further notice. If Landlord
and Tenant are then unable to agree on a Lease Supplement Agreement satisfactory
to each of them and to the Lender within thirty (30) days after delivery of
Tenant's written statement, Landlord shall have the right to terminate this
Lease within sixty (60) days after the end of said thirty (30) day period.
20.15 SIGNS. Tenant shall install no exterior sign on the Leased
Premises or the Real Estate. If Tenant desires to have an identity sign included
on the general directory sign for the Building, Tenant shall advise Landlord of
the name and logo it desires to hare on its sign, and Landlord shall install a
sign showing such name and logo, which shall be the standard sign used by
Landlord for tenants on the Real Estate. Tenant shall reimburse Landlord for
Landlord's costs of producing and installing said sign within ten (10) days
after being billed therefor by Landlord.
20.16 PARKING AREAS. Landlord reserves the right to restrict Tenant's
right to park in spaces in front of 1405 Busch Parkway until such time as 1405
Busch Parkway is occupied by a
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tenant. Landlord anticipates that it will need to identify a minimum of eighteen
(18) spaces to be restricted until such time as 1405 Busch parkway is occupied.
Landlord reserves the right, upon occupancy of 1405 Busch Parkway to designate
twenty-four (24) reserved stalls on the west side of the Real Estate
specifically for the use by the tenant of 1405 Busch Parkway. Except as provided
above, it is understood by and between the parties hereto that parking on the
Real Estate is allocated to the tenants thereof on an unreserved basis, and
Tenant, its employees and invitees may use not more than the Number of Parking
Spaces thereon. Landlord shall have no obligation to Tenant to enforce parking
limitations imposed on other tenants on the Real Estate. If Tenant uses parking
in excess of that provided for herein or utilizes restricted parking, and if
such use occurs on a regular or repeated basis, and if Tenant fails, after
written notice from Landlord, to reduce its excess use of the parking areas,
than such use shall constitute a default under this Lease.
20.17 LANDLORD'S EXPENSES. Tenant agrees to pay on demand Landlord's
expenses, including reasonable attorney's fees, expenses and administrative
hearing and court costs incurred either directly or indirectly in enforcing any
obligation of Tenant under this Lease, in curing any default by Tenant as
provided in Section 20.2, in connection with appearing, defending or otherwise
participating in any action or proceeding arising from the filing, imposition,
contesting, discharging or satisfaction of any lien or claim for lien, in
defending or otherwise participating in any legal proceedings initiated by or on
behalf of Tenant wherein Landlord is not adjudicated to be in default under this
Lease, or in connection with any investigation or review of any conditions or
documents in the event Tenant requests Landlord's approval or consent to any
action of Tenant which may be desired by Tenant or required of Tenant hereunder.
20.18 EXECUTION OF LEASE BY LANDLORD. The submission of this document
for examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Leased Premises and this document shall
become effective and binding only upon the execution and delivery hereof by
Landlord and by Tenant All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein.
20.19 DECLARATION OF PROTECTIVE COVENANTS. Tenant acknowledges that the
Leased Premises are subject to the Declaration of Protective Covenants For The
Corporate Grove, Buffalo Grove, Illinois dated November 8, 1984, and recorded
November 9, 1984, as Document No. 2321627 in the Lake County Recorder's Office
and the Amendments to Declaration of Protective Covenants For The Corporate
Grove, Buffalo Grove, Illinois recorded as Document No. 2340915 and 2589055 in
the Lake County Recorder's Office. (Said Declaration as so amended and as it may
be further amended from time to time is herein referred to as the "Declaration
of Protective Covenants".) Tenant covenants and agrees to maintain the Leased
Premises in accordance with the Declaration of Protective Covenants. All amounts
imposed on the Owner of the Leased Premises by said Declaration of Protective
Covenants, including without limitation payment of any costs of maintenance
allocable to the Leased Premises pursuant to Section V.F and VI.C of said
Declaration of Protective Covenants shall be deemed Impositions. Nothing herein
shall give Tenant any voting rights in the Association to be created pursuant to
Section V.A of the Declaration of Protective Covenants.
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21. OPTION TO EXTEND
21.0 OPTION TO EXTEND.
(a) If Tenant is not then in default hereunder and has not assigned
nor subleased any portion of the Leased Premises, then Tenant
shall have the option to renew the term of the Lease for an
additional one (1) one year period commencing on May 1, 2003 and
ending on April 30, 2004 (the "Extended Term") upon all of the
terms, covenants and conditions contained in the Lease, except as
set forth in Sub-section (b) below, by giving written notice of
said extension to Landlord not later than November 1, 2002, time
being of the essence.
(b) If Tenant exercises its option to extend the term of the Lease
for the Leased Premises for the Extended Term, then, during the
Extended Term, the Annual Rent and Monthly Installments shall be
as follows:
Period Annual Rent Monthly Installments
------ ----------- --------------------
05/01/03- 4/30/04 $101,439.60 $8,453.30
and tenant shall have no further right to renew the Term. If
tenant fails to timely exercise its option to extend the term,
then this Lease shall expire by its then current terms.
22. LIMITATION OF LIABILITY
22.0 LIMITATION OF LIABILITY. The liability of Landlord for Landlord's
obligations under the Lease shall be limited to Landlord's interest in the Real
Estate and Tenant shall not look to any other property or assets of Landlord or
the property or assets of any partner, shareholder, manager, director, officer,
principal, employee, or agent, directly and indirectly, of Landlord
(collectively, the "Parties") in seeking either to enforce Landlord's
obligations under the Lease or to satisfy a judgment for Landlord's failure to
perform such obligations; and none of the Parties shall be personally liable for
the performance of Landlord's obligations under the Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease this
day and year first above written
TENANT: LANDLORD:
INFINET SOLUTIONS CGA INVESTMENT COMPANY L.L.C.
By:/S/ Harvey Gannon By: /S/ Robert G. Lamphere
------------------------------ ----------------------------------
Name: Harvey Gannon Name: Robert G. Lamphere
Its: President Its: General Partner of Lamphere Rental
Sub Partnership, Member of CGA
Investment Company L.L.C.
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