Exhibit 7
LEASE
THIS LEASE is made as of the 29th day of October, 1998
by and between JOHN EINARSEN, hereinafter referred to as
"Landlord", and TELECOM CORPORATION OF CHICAGO, an Illinois
corporation, hereinafter referred to as "Tenant".
I. DEMISE OF LEASED PREMISES
In consideration of the rents hereinafter reserved and the
covenants and agreements hereinafter contained, Landlord hereby leases to
Tenant all those premises (the "Leased Premises") with the building,
improvements and appurtenances now or hereafter located thereon, situated and
located at 285 and 295 Industrial Drive in the City of Wauconda, Lake County,
Illinois. This Lease for the Leased Premises is subject to municipal and zoning
ordinances regulating and restricting the use of said premises and construction
of any improvements thereon; recorded covenants, easements, restrictions and
grants, if any; and licenses and permits which may affect the Leased Premises.
II. TERM OF LEASE
1. The term of this Lease shall commence on the date hereof
(the "Commencement Date") and end at 11:59 p.m. on October 31, 2003 unless
sooner terminated in accordance with this Lease or extended pursuant to
Paragraph 2 below.
2. Tenant shall have the option to extend the term of this
Lease for two (2) additional and consecutive periods of five (5) years each,
the first option commencing upon the expiration of the initial term, and the
second option commencing on the expiration of the previous option. The first
option shall be exercised only by Tenant giving Landlord written notice thereof
which is received by Landlord on or before February 1, 2003, and the second
option shall be exercised only by Tenant giving Landlord written notice thereof
which is received by Landlord on or before February 1, 2008; provided, however,
Tenant shall be entitled to exercise the options granted herein and the term of
this Lease shall, in fact, be extended by reason of such exercise, only if this
Lease is in full force and effect and Tenant is not in default hereunder beyond
any applicable cure periods. Time shall be of the essence with respect to
Tenant's notice(s) as aforesaid. Tenant's failure to exercise any option
granted herein in accordance with this Article shall extinguish all subsequent
options. In the event that the term of this Lease is in fact extended pursuant
to the foregoing, then any such extension shall be upon all of the same terms
and provisions contained in this Lease except the monthly base rent shall be
adjusted as set forth in Article III, Paragraph 2 below.
III. RENTAL
1. From and after the Commencement Date and continuing during
the initial term of this Lease, Tenant shall pay to Landlord a monthly base
rent of $17,500.00 per month, payable on the first day of each and every
calendar month during the term. The base rent payable for any partial month
shall be prorated on a thirty (30) day basis.
2. The monthly base rent during the first extension period
set forth in Article II, Paragraph 2 shall be $20,000.00 per month. The monthly
base rent during the second extension period set forth in Article II, Paragraph
2 shall be #22,500.00 per month, provided, however, if the percentage increase
in the Cost of Living Index (as hereinafter defined) for the month of July,
2008 over the Cost of Living Index for the month of July, 2003 is more than
12.5%, then the monthly base rent payable during the second extension period
shall be a sum equal to $22,500.00 plus one-half of the CPI Increase (as
hereinafter defined). As used herein, "CPI Increase" means $20,000.00 increased
by the percentage increase in the Cost of Living Index for the month of July,
2008 over the Cost
of Living Index for the month of July, 2003 to the extent such percentage
increase exceeds 12.5%. By way of example, if the Cost of Living Index for the
month of July, 2008 increases by 20% over the Cost of Living Index for the
month of July, 2003, then the monthly base rent for the second extension period
shall be $23,250.00 [$22,500.00 + 1/2(.20 - .125) x $20,000.00]. As used
herein, "Cost of Living Index" means the index presently known as "Consumer
Price Index, U.S. Average, All Items, All Urban Consumers (1982-84=100)"
published by the Bureau of Labor Statistics, United States Department of Labor.
If the computation and publication of the Cost of Living Index is transferred
to another governmental bureau, such bureau's publication shall be substituted
for the presently published index. If the Cost of Living Index is substantially
revised, or its method of calculation is substantially altered, adjustments
shall be made to such new index by Landlord as may be necessary to make it
comparable to the original index used; provided, however, that the addition or
elimination or particular items or commodities included in the Cost of Living
Index shall not be deemed a "substantial" revision or a "substantial"
alteration of its method of calculation. In the event the Bureau of Labor
Statistics or other governmental bureau to whom the publication of the Cost of
Living Index is transferred publishes such adjustment, then such adjustment as
published shall be controlling upon the parties. In the event the Cost of
Living Index is discontinued, Landlord and Tenant shall accept comparable
statistics on the purchasing power of the consumer dollar as published at the
time of such discontinuation by a responsible financial periodical or
recognized authority to be then, mutually agreed upon by Landlord and Tenant.
3. The base rent and any additional rent to be paid by Tenant
to Landlord under the terms of this Lease shall be paid to Landlord at the
address as hereinafter designated for notices to Landlord or at such other
place as Landlord may from time to time designate. It is intended hereby that
the rent stated herein shall be an absolute net return to Landlord for the
demised term, free from any expense, charges or any deduction or offset
whatsoever.
4. Tenant acknowledges that late payments of rent and
additional rental involve additional costs to Landlord for collection and
bookkeeping, and Tenant therefore agrees that if Tenant shall fail to pay any
monthly installment of base rent or additional rent by the fifth day after such
installment is due, then Tenant shall pay upon demand, as additional rent, a
late charge equal to five percent (5%) of the amount required to be paid. The
foregoing provision for payment of a late charge shall not be construed to
extend the date for payment of any sums required to be paid by Tenant hereunder
or to relieve Tenant of its obligation to pay all such sums at the time or
times herein stipulated, and neither the demand for, nor collection by,
Landlord of such late charge shall be construed as a cure of Tenant's default
in the payment of rent.
IV. TAXES
1. From and after the Commencement Date, Tenant agrees to pay
as additional rent all taxes, charges and assessments, general and special,
ordinary and extraordinary, of every nature and kind whatever, and all water
rates and sewage charges levied, assessed, imposed, due or payable during the
Lease term, upon the Leased Premises, whether such tax, rate, charge or
assessment shall be for city, town, county, state, federal or any other purpose
whatsoever, said Tenant hereby covenanting to pay taxes and assessments upon
the real estate as well as upon the improvements thereon. Tenant further
covenants and agrees to pay, as additional rent, all personal property taxes
levied and assessed against all furniture, fixtures, equipment and other items
of personal property constituting a part of the Leased Premises, used in
connection with the operation of the Leased Premises or situated on the Leased
Premises. Should any governmental agency or political subdivision impose any
taxes and/or assessments, whether or not now customary
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or within the contemplation of the parties hereto, either by way of
substitution for taxes and assessments presently levied and assessed against
the real estate as well as the improvements thereon, or in addition thereto,
other than Landlord's personal income tax or any estate tax or inheritance tax,
such taxes and/or assessments shall be deemed to constitute a tax and/or
assessment upon the real estate as well as the improvements thereon for the
purpose of this Paragraph and shall be paid by Tenant.
2. Tenant shall pay all taxes, assessments and charges as
provided in Paragraph 1 above at the time the same are due and payable and in
any event before any fine, penalty, interest or additional cost may be added
thereto, and Tenant shall furnish to Landlord a receipted tax bill and other
satisfactory evidence of the payment of said taxes, assessments and charges
within thirty (30) days after the same are due and payable. Notwithstanding the
foregoing, upon receipt of written notice from Landlord, Tenant shall pay to
Landlord, as additional rent, on or before the first day of each calendar month
during the term hereof an amount estimated by Landlord to be equal to 1/12th of
Tenant's annual obligation for the real estate taxes and assessments payable by
Tenant hereunder. Within ninety (90) days after the end of each calendar year
during the term, Landlord shall furnish Tenant with a statement of the actual
amount of such taxes and assessments for the year in question. Within fifteen
(15) days after the rendition of each such statement to Tenant by Landlord,
Tenant shall pay to Landlord, or Landlord shall credit to the obligations of
Tenant, as the case may be, the difference between the payments actually made
by Tenant for the year in question and the actual amount of such taxes and
assessments for such year, as shown on such statement. A copy of a tax bill or
assessment bill submitted by Landlord to Tenant shall at all times be
sufficient evidence of the amount of taxes and/or assessments assessed or
levied against the property to which such bill relates. From time to time
hereafter, Landlord shall notify Tenant in writing of adjustments to Tenant's
monthly installments due hereunder, and Tenant shall adjust its installment
payments accordingly.
3. All real estate taxes and assessments shall be prorated
for any partial year of the term. Landlord's and Tenant's obligations under
this Article shall survive the expiration of the term of this Lease.
4. Tenant shall have the right to contest or protest any
increase in real estate taxes levied or assessed against the Leased Premises
subject, however, to the following terms and conditions: (i) Tenant shall give
Landlord not less than fifteen (15) days prior written notice of its intention
to contest or protest such taxes; (ii) any such contest or protest shall be
solely in Tenant's name unless Landlord shall be required by law to join in
such proceeding; (iii) Tenant shall post any bond or security required by law
in connection with such proceeding; (iv) any such proceeding shall be at
Tenant's sole cost and free of cost or expense to Landlord, and Tenant agrees
to indemnify and hold Landlord harmless from and against any and all expense
and liability arising from or out of such proceeding; and (v) Tenant shall
pursue any such proceeding in good faith and with due diligence. Should Tenant
be successful in obtaining a rebate of real estate taxes and assessments, such
rebate shall inure to Tenant for the years that Tenant is in possession of the
Leased Premises.
V. INSURANCE AND INDEMNITY
1. Tenant shall, at its own cost and expense, during the
Lease term keep the building and improvements on the Leased Premises insured
against loss or damage by fire and such other contingencies covered by a
special form or all-risk insurance policy in an amount of not less than the
full replacement cost of the building and improvements without provision for
co-insurance or deductible in excess of $1,000.00. Said policy shall provide,
subject to the rights of the holder of any mortgage of the fee of
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the Leased Premises (the "Mortgagee") if any, that all proceeds payable
thereunder shall be paid directly to Landlord or the party designated by
Landlord. Said policy shall also include business interruption or loss-of-rent
insurance to insure, without provision for deductible or co-insurance, the
payment of rent under Article III of this Lease, the payment of taxes and
assessments under Article IV of this Lease, and the payment of insurance
premiums under this Article V for a period of not less than twelve (12) months
in the event of a casualty as contemplated by Article IX of this Lease.
2. Tenant shall, at its own cost and expense, during the
Lease term carry commercial general liability insurance with respect to the
Leased Premises and the business operated by Tenant in the Leased Premises and
including contractual liability for the indemnification obligations of Tenant
contained in this Lease in an amount of not less than Three Million Dollars
($3,000,000.00) combined single limit per occurrence, or such greater limit as
Landlord may reasonably determine in accordance with prudent real estate
management practices.
3. Tenant shall, at its own cost and expense, during the
Lease term carry boiler and machinery insurance in the amount of not less than
the replacement value of the building and improvements on the Leased Premises,
on any steam boilers, pressure vessels and pressure piping installed in the
Leased Premises. All proceeds of such insurance shall be payable directly to
Landlord.
4. Tenant shall, at its own cost and expense, during the
Lease term carry insurance against fire, vandalism, malicious mischief and such
other perils as are from time to time included in a standard extended coverage
endorsement, insuring any betterments and improvements made by Tenant to the
Leased Premises and all merchandise, furniture, trade fixtures and other items
of personal property located at the Leased Premises.
5. All insurance policies required hereunder shall be written
by an insurance company or companies acceptable to Landlord and in the name of
Landlord, Tenant, Mortgagee, if any, and any other party designated by
Landlord, as their interests appear. Such insurance shall be written as primary
policy coverage and not contributing with or in excess of any coverage which
Landlord may carry and shall be non-cancelable and non-amendable without thirty
(30) days written notice to all such parties. The original policies or evidence
thereof shall be furnished to Landlord with evidence of timely payment of the
premium therefor prior to the commencement of the Lease term and not less than
thirty (30) days prior to the expiration of any coverage. Landlord may at any
time and from time to time inspect and/or copy any and all insurance policies
required to be procured by Tenant under this Lease.
6. Notwithstanding the foregoing provisions of the Article,
if the provisions of any mortgage of the fee of the Leased Premises require
deposits for insurance premiums next due be made with the Mortgagee, Tenant
shall make such deposits with Mortgagee.
7. Tenant hereby agrees to indemnify and hold Landlord
harmless against and from any and all claims by or on behalf of any person
arising from the conduct or management of or from any work or thing whatsoever
done in or about the Leased Premises, or arising from any breach or default on
the part of Tenant in the performance of any covenant or agreement on the part
of Tenant to be performed pursuant to this Lease, or arising from any act or
negligence of Tenant, or any occupant of the Leased Premises or any part
thereof, or of its or their agents, contractors, employees, guests, invitees,
licensees or customers, or arising from any accident, injury or damage
whatsoever caused to any person or property occurring during the term of this
Lease in or about the Leased Premises, and from and against all judgments,
costs, expenses and liabilities incurred in or about any such claim. Tenant,
upon notice from Landlord, shall resist or defend such action or proceeding by
counsel reasonably satisfactory to
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Landlord. The foregoing covenants and indemnification shall survive the
expiration of the term of this Lease.
8. Landlord shall not be responsible or liable for any damage
or injury to any property, fixtures, buildings or other improvements, or to any
person or persons, at any time, on the Leased Premises, including any damage or
injury to Tenant or to any of Tenant's agents, employees, contractors, guests,
invitees, licensees or customers, whether occasioned by or through any act or
neglect of Landlord or any other cause, negligent or otherwise, whatsoever.
9. Tenant hereby expressly waives any right of recovery it
may have against Landlord for a loss to the Leased Premises or its contents due
to fire or any peril included in the coverage of any applicable insurance
policy required to be carried hereunder, however caused, including such losses
as may be due to the negligence of Landlord or its agents or employees. All
policies of insurance required to be carried by Tenant hereunder shall contain
a provision that they are not invalidated by the foregoing waiver.
VI. CONDITION OF LEASED PREMISES; REPAIRS AND MAINTENANCE
1. Tenant acknowledges and confirms that it has inspected the
Leased Premises, knows the condition thereof, and is leasing the same in its
present "as is" condition. Landlord shall not be required to rework, remodel or
recondition the Leased Premises in any manner whatsoever for Tenant's use and
occupancy thereof. No warranties or representations are made or have been made
by Landlord or its agents and representatives that are not expressly set forth
herein.
2. Landlord shall be responsible for all maintenance, repair
and replacement of the roof, exterior walls (excluding window panes, glass and
glazing), bearing walls, foundation and other structural portions of the
building on the Leased Premises. Landlord shall also be responsible for
replacement and resurfacing (exclusive of repairs, seal coats, sweeping,
striping and snow and ice removal which shall be the obligation of Tenant) of
the parking area and roadways of the Leased Premises. Notwithstanding the
foregoing, if any such maintenance, repairs or replacements shall be occasioned
by the fault or neglect of Tenant, then such work shall be the obligation of
Tenant at its sole cost.
3. Except for the maintenance, repairs and replacements
Landlord is specifically obligated to make under Paragraph 2 above, Tenant
shall, at its own cost and expense, throughout the term of this Lease, keep and
maintain the entire Leased Premises in good condition and repair, including the
building, parking lot, landscaped areas and all other improvements situated
thereon, and all plumbing, electrical, heating, ventilating air conditioning
and other equipment and facilities contained in or about the Leased Premises so
that at the expiration of the Lease or any renewal or extension thereof, the
Leased Premises shall be surrendered to Landlord in the same condition that the
same are in at the commencement of this Lease, ordinary wear and tear excepted.
Tenant shall make such replacements as from time to time may be reasonably
necessary. Tenant shall not defer any repairs, renewals or replacements to the
Leased Premises by reason of anticipation of the expiration of the term hereof.
The surrender of the Leased Premises upon the expiration or early termination
of this Lease shall not relieve Tenant of the obligation to pay for all repairs
or replacements to the Leased Premises which Tenant was obligated to perform
during the Lease term, which obligation shall survive the expiration or early
termination of this Lease. Tenant shall also use all reasonable precaution to
prevent waste, damage or injury to the Leased Premises. Tenant shall keep the
Leased Premises in a clean, tenantable condition and shall not permit any
garbage, rubbish, refuse or dirt of any kind to accumulate in or about the
Leased Premises. Landlord shall not be required to make any repairs,
alterations or replacements in or to the Leased
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Premises during the term of this Lease except as expressly provided herein.
VII. UTILITIES
From and after the Commencement Date, Tenant shall timely pay
for all utilities used or consumed in or about the Leased Premises. Tenant
shall keep the building on the Leased Premises sufficiently heated so as to
prevent freezing and deterioration thereof and/or the equipment and facilities
contained therein. In no event shall Landlord be liable for an interruption or
failure in the supply of any utility to the Leased Premises.
VIII. USE OF PREMISES
1. Tenant shall use the Leased Premises only as office,
warehouse and manufacturing facilities for Tenant's business or for any lawful
use. Tenant expressly acknowledges that it shall be the sole responsibility of
Tenant to secure all necessary and appropriate permits, licenses and approvals
from all governmental authorities having jurisdiction for the use of the Leased
Premises as set forth herein.
2. Tenant shall, at its own cost and expense, comply promptly
and conform with all present and future laws, ordinances, rules, requirements
and regulations of the federal, state, county and city governments and of any
and all other governmental authorities or agencies affecting the Leased
Premises or its use, and Tenant shall, at its own cost and expense, make all
additions, alterations or changes to the Leased Premises or any portion thereof
as may be required by any governmental authority or agency. Without limiting
the generality of the foregoing, Tenant agrees to comply with all present and
future laws, orders and regulations regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash into such
categories as provided by law.
3. Tenant shall, during the entire term of this Lease, comply
with all applicable federal, state and local environmental laws, ordinances and
all amendments thereto and rules and regulations implementing the same,
together with all common law requirements, which relate to discharge,
emissions, waste, nuisance, pollution control, hazardous or toxic substances
and other environmental matters as the same shall be in existence during the
term hereof. All of the foregoing laws, regulations and requirements are
hereinafter referred to as "Environmental Laws". Tenant shall obtain all
environmental licenses, permits, approvals, authorizations, exemptions,
classifications, certificates and registrations (hereinafter collectively
referred to as "Permits") and make all applicable filings required of Tenant
under the Environmental Laws required by Tenant to operate at the Leased
Premises. The Permits and required filings shall be made available for
inspection and copying by Landlord at Tenant's offices upon reasonable notice
and during business hours. Tenant shall not cause or permit any flammable
explosive, oil, contaminant, radioactive material, hazardous waste or material,
toxic waste or material or any similar substance (hereinafter collectively
referred to as "Hazardous Substances") to be brought upon, kept or used in or
about the Leased Premises except for small quantities of such substances as is
necessary for Tenant's business provided that Tenant shall handle, store, use
and dispose of any such Hazardous Substance in compliance with all applicable
laws and the highest standards prevailing in the industry for the storage and
use of such substances or materials, in a manner which is safe and does not
contaminate the Leased Premises, and Tenant shall give Landlord
written notice of the identity of such substances. If any lender or
governmental agency shall ever require testing to ascertain whether or not
there has been any release of any Hazardous Substance on or about the Leased
Premises, then the reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand
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as additional rent. Tenant shall also, from time to time, at Landlord's
request, execute such other affidavits, representations and the like concerning
Tenant's best knowledge and belief regarding the presence of Hazardous
Substances on the Leased Premises. Tenant agrees to indemnify and hold Landlord
harmless from any liability, claim or injury, including reasonable attorney
fees and the cost of any required or necessary repair, clean-up, remediation or
detoxification, arising out of (i) the use, manufacture, handling, storage,
disposal or release of any Hazardous Substances by Tenant, its agents and
employees on, under or about the Leased Premises during the term of this Lease,
or (ii) an actual or alleged violation of Environmental Laws in connection with
the occupancy of the Leased Premises by Tenant or any occupant of the Leased
Premises or the operation of Tenant's business on the Leased Premises during
the term of this Lease. The foregoing indemnification shall survive the
expiration of the term of this Lease.
IX. DESTRUCTION OF LEASED PREMISES
In the event the building or improvements on the Leased
Premises are damaged or destroyed in whole or in part by fire or any other
cause whatsoever during the term of this Lease, this Lease shall continue in
full force and effect without any abatement in rent, taxes, charges,
assessments or other obligations of Tenant referred to in this Lease, and
Tenant shall, at its own cost and expense, with all reasonable dispatch and
diligence, rebuild, restore and/or repair the building or improvements as
aforesaid to a condition equal or greater in value to that just prior to said
damage or destruction in accordance with plans and specifications to be
approved in writing by Landlord prior to commencement of said rebuilding,
restoration and/or repair. Tenant shall complete said rebuilding, restoration
and/or repair of the building or improvements as aforesaid within a period not
to exceed six (6) months from the date of said damage or destruction, subject
to extension in the event of delays beyond the control of Tenant arising from
acts of God, general labor strikes, the acts of Landlord or other contingencies
which could not be anticipated or provided for by Tenant. For the purpose of
making such repairs and restorations, Landlord agrees that the proceeds of
insurance maintained under Article V, Paragraph 1 above and any additional
proceeds received by Landlord, subject to the rights of Mortgagee, if any, may
be used on account of the payment therefor in accordance with pay-out
procedures established by Landlord or Mortgagee, if any, to insure that there
are sufficient funds available for such repairs and restoration and that such
work is done in a good and workmanlike manner in accordance with the plans and
specifications approved by Landlord and free from any liens for services,
materials or supplies. Tenant's obligation to rebuild, restore and/or repair
shall be absolute whether or not the insurance proceeds available therefor
shall be sufficient to defray the entire cost thereof.
X. CONDEMNATION
1. If the whole of the Leased Premises shall be condemned by
any governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of condemnation, then this Lease shall
expire on the date the Leased Premises shall be so taken or the date of the
sale in lieu of condemnation and the rent shall be apportioned as of that date.
2. If a portion of the Leased Premises shall be condemned by
any governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of condemnation and if said taking or
sale does not directly affect the use of the building on the Leased Premises,
but only the lands surrounding said building, then this Lease shall remain in
full force and effect without any abatement of rent, and Tenant shall
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restore the Leased Premises for Tenant's use in the manner set forth in
Paragraph 3 below.
3. If a portion of the Leased Premises shall be condemned by
any governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of condemnation and if said taking or
sale directly affects the building situated on the Leased Premises and results
in making said building unsuitable for the business of Tenant, then Tenant may
elect to terminate this Lease by written notice to Landlord within sixty (60)
days after the taking and the rent shall be apportioned as of that date. If
Tenant does not exercise its option herein contained, then this Lease shall
remain in full force and effect without any abatement of rent, and Tenant shall
restore said building for Tenant's use and, subject to the rights of Mortgagee,
if any, that portion of the award or proceeds of sale directly attributable to
the taking or sale of a portion of said building may be utilized by Tenant for
said restoration in accordance with pay-out procedures established by Landlord
and/or Mortgagee, if any, to insure that there are sufficient funds available
for such restoration and that such work is done in a good and workmanlike
manner in accordance with plans and specifications first approved by Landlord
and free from any liens for services, materials or supplies. Tenant's
obligation to restore shall be absolute whether or not the portion of the award
available therefor shall be sufficient to defray the entire cost thereof, and
if any surplus of funds remains after completion of such restoration, such
surplus shall be paid over to and become the property of Landlord.
4. No part of any award or proceeds of sale resulting from
the taking of the whole or a portion of the Leased Premises or a sale in lieu
of condemnation shall belong to Tenant; provided, however, Tenant shall have
the right to pursue such claim or claims as Tenant may have legally for
relocation expenses, interruption of business and such other items which do not
affect the award or proceeds of sale otherwise payable to Landlord. Tenant
hereby expressly waives any claim which it may have relating directly or
indirectly to the leasehold estate created under this Lease.
XI. ASSIGNMENT AND SUBLETTING
1. Tenant shall not, without the prior written consent of
Landlord, (a) assign or encumber this Lease or any interest under it; (b)
sublet the Leased Premises or any part thereof; (c) allow any transfer of
Tenant's interest herein or any lien upon Tenant's interest by operation of law
or otherwise; or (d) permit the use or occupancy of the Leased Premises or any
part thereof by anyone other than Tenant. In the event that Tenant, with or
without the prior consent of Landlord, does assign or in any manner transfer
this Lease or any estate or interest therein, Tenant shall in no way be
released from any of its obligations under this Lease. The following shall be
deemed to be an assignment of this Lease within the meaning of this Article:
(a) the sale, issuance, or transfer of any voting capital stock of Tenant or of
Tenant's permitted assigns and subtenants (if Tenant or such assigns or
subtenants be a non-public corporation) which results in a change in the voting
control of Tenant or such assigns or subtenants; (b) the sale, issuance, or
transfer of any partnership or membership interest in Tenant or in Tenant's
permitted assigns and subtenants (if Tenant or such assigns or subtenants be a
partnership or limited liability company); and (c) the death or incapacity of
Tenant or of Tenant's permitted assigns and subtenants (if Tenant or such
assigns or subtenants be a natural person). Tenant shall pay to Landlord, as
additional rent, any costs and expenses including reasonable attorney fees
incurred by Landlord in connection with any proposed or purported assignment,
sublease or other transfer.
2. Notwithstanding anything to the contrary contained in this
Article XI, Landlord's consent shall not be required for an assignment or other
transfer of Tenant's interest under this Lease
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or a sublease of the Leased Premises to an affiliate of Tenant provided that
(a) Tenant shall notify Landlord in writing of the proposed transaction and the
identity of the proposed assignee or subtenant and the address to which notices
may be sent, (b) at the time of such proposed assignment, transfer or sublease,
Tenant shall not be in default of any of the terms of this Lease, and (c) any
proposed assignee shall agree in a writing reasonably acceptable to Landlord
that it will assume and be bound by the terms of this Lease.
XII. ESTOPPEL CERTIFICATE AND SUBORDINATION
1. Tenant shall, without charge, at any time and from time to
time hereafter, within fifteen (15) days after written request of Landlord,
certify by written instrument duly executed and acknowledged to any mortgagee
or purchaser, or proposed mortgagee or proposed purchaser, or any other person,
firm or corporation specified in such request: (a) as to whether this Lease has
been supplemented or amended, and if so, the substance and manner of such
supplement or amendment; (b) as to the validity and force and effect of this
Lease in accordance with its tenor as then constituted; (c) as to the existence
of any default thereunder; (d) as to the existence of any offsets,
counterclaims or defenses thereto; (e) as to the commencement and expiration
dates of the term of this Lease; and (f) as to any other matters as may
reasonably be so requested. Any such certificate may be relied upon by the
party requesting it and any other person, firm or corporation to whom the same
may be exhibited or delivered, and the contents of such certificate shall be
binding on Tenant.
2. This Lease shall, at the option of Mortgagee or the holder
or holders of any mortgage or mortgages now or hereafter placed upon the Leased
Premises, be subject and subordinate to the lien of any such mortgage or
mortgages, and Tenant covenants and agrees to execute and deliver upon demand
such further instruments subordinating this Lease, in accordance with the
foregoing, to the lien of any such mortgage or mortgages as shall be requested
by Landlord, or Mortgagee, if any, or any proposed mortgagees, provided any
such mortgagees shall agree to recognize the rights of Tenant under this Lease
in the event of foreclosure if Tenant is not in default. In the event (i) of
any proceedings brought for the foreclosure of any mortgage or mortgages now or
hereafter placed upon the Leased Premises, or (ii) of the exercise of the power
of sale under any such mortgage or mortgages, Tenant shall, at the option of
the purchaser under such proceedings or power of sale, attorn to such purchaser
as Landlord under this Lease.
3. Failure of Tenant to execute the instruments set forth in
Paragraphs 1 and 2 above within fifteen (15) days upon written request so to do
by Landlord shall constitute a breach of this Lease and Landlord may, at its
option, cancel this Lease and terminate Tenant's interest therein. Further,
Tenant hereby irrevocably appoints Landlord the attorney-in-fact for Tenant to
execute and deliver any such instrument or instruments for and in the name of
Tenant.
XIII. ALTERATIONS AND SIGNS
No alterations, additions or improvements ("Alterations")
shall be made to the Leased Premises by Tenant nor shall any signs be erected
or installed on the Leased Premises by Tenant except with the prior written
consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right
to keep the existing signage on the Leased Premises. Any alterations, additions
or improvements or the installation of any signs by Tenant, shall be made at
Tenant's own cost and expense and in a good workmanlike manner in accordance
with the laws, ordinances and codes relating thereto and free from any claim or
claims for construction liens. Tenant shall indemnify Landlord from any and all
claims, costs and expenses on account of such work.
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XIV. SURRENDER AND HOLDING OVER
1. On the last day of the Lease term or on the sooner
termination thereof, Tenant shall peaceably and quietly surrender the Leased
Premises in good order, condition and repair consistent with Tenant's duty to
make repairs as herein provided. All Alterations (other than Tenant's furniture
and unattached movable personal property and equipment which may be removed by
Tenant at any time during the term and prior to the termination of this Lease
provided Tenant repairs any damage caused thereby) which may be made or
installed by either Landlord or Tenant upon the Leased Premises, shall be the
property of Landlord and shall remain upon and be surrendered with the Leased
Premises as a part thereof without disturbance, molestation or injury at the
termination of the term of this Lease, whether by the lapse of time or
otherwise, all without compensation or credit to Tenant. On or before the
termination of the Lease term, Tenant shall remove all of Tenant's furniture
and unattached movable personal property and equipment from the Leased Premises
and any such items not so removed shall be deemed abandoned by Tenant. Any
damage caused by the removal of such property shall be repaired by Tenant at
Tenant's sole cost and expense. If the Leased Premises are not surrendered at
the end of the term as set forth herein, Tenant shall indemnify Landlord
against all loss or liability resulting from delay by Tenant in so surrendering
the Leased Premises, including, without limitation, any claim made by any
succeeding tenant founded on such delay. Tenant shall also surrender all keys
to the Leased Premises and shall inform Landlord of combinations on any locks,
safes and vaults, if any, on the Leased Premises.
2. In the event Tenant remains in possession of the Leased
Premises after the expiration of this Lease with the consent of Landlord and
without the execution of a new lease, it shall be deemed to be occupying said
premises as a tenant from month-to-month, subject to all of the conditions,
provisions and obligations of this Lease insofar as the same are applicable to
a month-to-month tenancy. For any period that Tenant shall remain in possession
of the Leased Premises without Landlord's consent, Tenant shall pay a use and
occupancy charge equal to two (2) times the base rent in effect immediately
prior thereto, computed on a daily basis, in addition to the additional rent
and other charges payable by Tenant.
XV. NOTICES
Whenever in this Lease it shall be required or permitted that
notice be given to either party hereto by the other, such notice shall be in
writing and be given by personal delivery or by United States certified mail,
postage prepaid, return receipt requested, addressed as follows:
To Landlord: John Einarsen
20707 North Swansway
Barrington, IL 60110
To Tenant: Telecom Corporation of Chicago
285 Industrial Drive
Wauconda, IL 60084
with a copy to:
Officeland, Inc.
312 Dolomite Drive, Suite 212
Toronto, Ontario
Canada M3J 2N2
Attn: Marvyn A. Budd
Either party may, upon prior notice to the other, specify a
different address for the giving of notice.
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XVI. ADDITIONAL COVENANTS OF TENANT
1. Tenant shall permit Landlord and its authorized
representatives to enter upon the Leased Premises at all reasonable times
during usual business hours for the purpose of exhibiting, inspecting,
repairing or replacing the same. In case of emergency (the existence of which
shall be determined by Landlord), if Tenant shall not be present to permit
entry, Landlord or its representatives may enter the same forcibly without
rendering Landlord or its representatives liable therefor or affecting Tenant's
obligations under this Lease. During the last six (6) months prior to the
expiration of the term of this Lease or any extension period, Tenant shall
permit a "For Rent" or "For Sale" sign to be placed on the Leased Premises.
2. Tenant shall not suffer or permit any liens under any
construction lien law or similar law to be filed or recorded against the Leased
Premises or against the interest of either Landlord or Tenant therein. If any
such lien at any time be filed or recorded, Tenant shall promptly obtain the
release of record of such lien or bond over such lien, at Tenant's own cost and
expense, if Tenant disputes the validity of such lien.
XVII. DEFAULTS OF TENANT
1. If (a) Tenant shall fail to pay the rental or other
charges due hereunder within ten (10) days after the same shall be due, or (b)
Tenant shall fail to perform any of the other terms, conditions or covenants of
this Lease to be performed or observed by Tenant for more than thirty (30) days
after notice of such default has been given to Tenant, or (c) Tenant shall
vacate the Leased Premises or abandon the same by failing to use and occupy the
same for more than ten (10) consecutive days, or (d) Tenant or any guarantor of
this Lease shall be adjudged bankrupt or insolvent or shall make an assignment
for the benefit of creditors, or (e) a receiver or trustee of Tenant's property
or that of any guarantor of this Lease shall be appointed and such receiver or
trustee, as the case may be, shall not be discharged within thirty (30) days
after such appointment, or (f) an execution or attachment is levied against
Tenant's property or that of any guarantor of this Lease or (g) this Lease
shall by operation of law devolve upon or pass to any person or persons other
than Tenant without Landlord's prior written consent, then in any such case,
Landlord may, upon notice to Tenant, recover possession of and re-enter the
Leased Premises without affecting Tenant's liability for past rent and other
charges due or future rent and other charges to accrue hereunder. In the event
of any such default, Landlord shall be entitled to recover from Tenant, in
addition to rent and other charges equivalent to rent, all other damages
sustained by Landlord on account of the breach of this Lease, including, but
not limited to, the costs, expenses and attorney fees incurred by Landlord in
enforcing the terms and provisions hereof and in re-entering and recovering
possession of the Leased Premises and for the cost of repairs, alterations and
brokerage and attorney fees connected with the reletting of the Leased
Premises. Further, at the election of Landlord, Landlord shall have the right
to declare this Lease terminated and cancelled, without any further rights or
obligations on the part of Landlord or Tenant (other than Tenant's obligation
for rent and other charges due and owing through the date of termination), so
that Landlord may relet the Leased Premises without any right on the part of
Tenant to any credit or payment resulting from any such reletting. In case of a
default under this Lease, Landlord may, in addition to terminating this Lease,
or in lieu thereof, pursue such other remedy or combination of remedies and
recover such other damages for breach of tenancy and/or contract as are
available at law or otherwise.
2. The rights and remedies of Landlord under this Lease shall
be cumulative and the exercise of any of them shall not be exclusive of any
other right or remedy provided by this Lease or allowed by law, and the waiver
by Landlord of any breach of any
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covenant of this Lease shall be limited to the particular instance and shall
not operate or be deemed to waive any future breach of the same or any other
covenant on the same or any other occasion, nor operate as a waiver of
Landlord's right to enforce the payment of subsequent installments of rental or
any of Landlord's rights under this Lease by such remedies as may be
appropriate.
3. No extension of time, forbearance, neglect or waiver on
the part of Landlord with respect to any one or more of the covenants, terms or
conditions of this Lease, shall be construed as a waiver of any of the other
covenants, terms or conditions of this Lease, or as an estoppel against
Landlord, nor shall any extension of time, forbearance or waiver on the part of
Landlord in any one or more instances or particulars be construed to be a
waiver or estoppel with respect to any other instance or particular covered by
this Lease. After the service of a notice or the commencement of a suit or
after final judgment for possession of the premises, Landlord may receive and
collect any rent due and apply the same as and for use and occupancy, and the
payment and receipt thereof shall not waive or affect any such notice, suit or
judgment.
4. Landlord shall have the right at any time, after ten (10)
days notice to Tenant (or without notice in case of emergency or in case any
fine, penalty, interest or cost may otherwise be imposed or incurred) to make
any payment or perform any act required of Tenant under any provision of this
Lease, and in exercising such right, to incur necessary and incidental costs
and expenses, including reasonable attorney fees. Nothing herein shall imply
any obligation on the part of Landlord to make any payment or perform any act
required of Tenant, and this exercise of the right to so do shall not
constitute a release of any obligation or a waiver of any default. All payments
made and all costs and expenses incurred in connection with any exercise of
such right shall be reimbursed to Landlord by Tenant within ten (10) days after
such payment, together with interest at a rate equal to eighteen percent (18%)
per annum from the respective dates of the making of such payments or the
incurring of such costs and expenses. In the event of non-payment thereof,
Landlord shall have the rights and remedies it would have hereunder or by law
in the case of non-payment of rent.
5. Tenant shall pay all costs, expenses and reasonable
attorney fees that may be incurred or paid by Landlord in enforcing the
covenants and agreements of this Lease.
XVIII. QUIET ENJOYMENT
If and so long as Tenant pays the rent reserved by this Lease
and performs and observes all of the covenants and provisions hereof, Tenant
shall quietly enjoy the Leased Premises without hindrance, disturbance or
molestation from Landlord, subject, however, to the terms of this Lease.
XIX. MISCELLANEOUS
1. The consent or approval by Landlord to or of any act by
Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or of any subsequent similar act
by Tenant. No breach of a covenant or condition of this Lease shall be deemed
to have been waived by Landlord, unless such waiver be in writing signed by
Landlord.
2. This Lease and the exhibits, if any, attached hereto and
forming a part hereof, set forth all the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the Leased
Premises and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than are herein set
forth. No alteration, amendment, change or addition to this Lease shall be
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binding upon Landlord or Tenant unless reduced to writing and signed by each
party.
3. Whenever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders.
4. The captions and article numbers appearing in this Lease
are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of such sections or articles of this
Lease nor in any way affect this Lease.
5. Any amount due from Tenant to Landlord hereunder which is
not paid when due shall bear interest at the rate of eighteen percent (18%) per
annum from the date due until paid, unless otherwise specifically provided
herein, but the payment of such interest shall not excuse or cure any default
by Tenant under this Lease.
6. The covenant to pay rent is hereby declared to be an
independent covenant on the part of Tenant to be kept and performed, and no
offset thereto shall be permitted or allowed except as expressly set forth in
this Lease.
7. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement on and check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord shall accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
8. The submission of this Lease for examination does not
constitute a reservation of or option for the Leased Premises, and this Lease
shall become effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant.
9. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Illinois. If any provision of this
Lease or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby and each provision of the Lease shall be valid and enforceable
to the fullest extent permitted by the law.
10. Tenant shall, in the event of the sale or assignment of
Landlord's interest in the Leased Premises or in the event of any proceedings
brought for the foreclosure thereof, or in the event of exercise of the power
of sale under any mortgage covering the Leased Premises, attorn to the
purchaser and recognize such purchaser as Landlord under this Lease.
11. In the event of any sale or other transfer of the Leased
Premises by Landlord, the named Landlord shall be entirely relieved of all
obligations hereunder from and after the date of the transfer; provided,
however, that the transferee shall assume in writing Landlord's obligations
under this Lease and a copy of such assumption shall be provided to Tenant.
12. If Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord's part to be performed, and if as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the right,
title and interest of Landlord in the Leased Premises and out of rents or other
income from such property receivable by Landlord, or out of the consideration
received by Landlord from the sale or other disposition of all or any part of
Landlord's right, title and
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interest in the Leased Premises, and Landlord herein shall not be liable for
any deficiency.
13. In the event the Mortgagee or any proposed mortgagee
requests certain modifications or amendments to this Lease, then Tenant, on
demand, agrees to execute such modifications or amendments as required.
Notwithstanding the foregoing, Tenant shall not be required to execute any
modifications or amendments to this Lease which shall modify the provisions of
this Lease relating to the amount of rent reserved, the size and location of
the Leased Premises and the duration of the term of this Lease. Tenant further
agrees to furnish such financial information as may be required or otherwise
cooperate with the obtaining of said mortgage financing.
14. Nothing contained in this Lease shall be taken or
construed to create any agency between Landlord and Tenant or to authorize
Tenant to do any act or thing or to make any contract so as to encumber in any
manner the title to the Leased Premises or to create any claim or lien upon the
interest of Landlord in the Leased Premises.
15. The officers of Tenant who are executing and attesting to
this Lease hereby represent and warrant that they have full power, authority
and right to execute this Lease, and Tenant represents and warrants that the
execution and delivery of this Lease has been duly authorized by the board of
directors of Tenant, and the execution of this Lease by such officers is
sufficient and legally binding on Tenant without the joinder or approval of any
other party.
16. The parties acknowledge that Tenant presently occupies
the Leased Premises pursuant to the terms of a lease commencing on July 1, 1995
by and between Landlord and Tenant (the "Existing Lease"). Landlord and Tenant
agree that the Existing Lease shall terminate on the Commencement Date of this
Lease without further written agreement between the parties, provided, however,
Tenant shall remain liable for the payment of rent and other charges or the
performance of any of the terms and provisions of the Existing Lease due and
owing or accrued up to and including said date.
17. Except as expressly otherwise provided, all of the terms,
covenants and conditions hereof shall be binding upon and inure to the benefit
of the heirs, personal representatives, successors in interest and assigns of
the parties hereto.
SIGNED AND SEALED as of the date first written above.
LANDLORD: TENANT:
TELECOM CORPORATION OF CHICAGO
By:
/s/ Marvyn A. Budd
---------------------------------
/s/ John Einarsen Name: Marvyn A. Budd
- ----------------------- ----------------------------
John Einarsen
Title: President
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Attest: /s/ Christopher Walker
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Name: Christopher Walker
-----------------------------
Title: Assistant Secretary
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