Exhibit 10.35
LEASE BETWEEN
ASP WHEELIE, L.L.C.
AND
PCTEL, INC.
FOR SPACE AT
O'Hare Plaza, 8725 West Higgins Road
Chicago, Illinois
July 30, 2002
-----------------
DATE
TABLE OF CONTENTS
<Table>
<Caption>
PARAGRAPH PAGE
1.1 DEFINITIONS............................................................. 1
1.2 SCHEDULES AND ADDENDA................................................... 2
2.1 LEASE OF PREMISES....................................................... 2
2.2 PRIOR OCCUPANCY......................................................... 3
3.1 RENT.................................................................... 3
3.2 DEPOSIT................................................................. 3
3.3 OPERATING COSTS......................................................... 4
3.4 TAXES................................................................... 6
4.1 CONSTRUCTION............................................................ 7
4.2 CONDITION OF LEASED PREMISES............................................ 7
5.1 PROJECT SERVICES........................................................ 7
5.2 INTERRUPTION OF SERVICES................................................ 8
6.1 USE OF LEASED PREMISES.................................................. 8
6.2 INSURANCE............................................................... 10
6.3 REPAIRS................................................................. 11
6.4 ASSIGNMENT AND SUBLETTING............................................... 11
6.5 ESTOPPEL CERTIFICATE.................................................... 13
7.1 INTENTIONALLY OMITTED................................................... 13
7.2 ADDITIONAL RIGHTS RESERVED TO LANDLORD.................................. 13
8.1 CASUALTY AND UNTENANTABILITY............................................ 13
9.1 CONDEMNATION............................................................ 14
10.1 LIABILITY WAIVER........................................................ 15
10.2 INDEMNIFICATION......................................................... 15
</Table>
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<Table>
<Caption>
10.3 WAIVER OF SUBROGATION...................................... 16
10.4 LIMITATION OF LANDLORD'S LIABILITY......................... 16
11.1 TENANT'S DEFAULT........................................... 16
11.2 REMEDIES OF LANDLORD....................................... 17
12.1 SURRENDER OF LEASED PREMISES............................... 17
12.2 HOLD OVER TENANCY.......................................... 18
13.1 QUIET ENJOYMENT............................................ 18
13.2 ACCORD AND SATISFACTION.................................... 18
13.3 SEVERABILITY............................................... 18
13.4 SUBORDINATION AND ATTORNMENT............................... 19
13.5 ATTORNEY'S FEES............................................ 19
13.6 APPLICABLE LAW............................................. 19
13.7 BINDING EFFECT; GENDER..................................... 19
13.8 TIME....................................................... 19
13.9 ENTIRE AGREEMENT........................................... 19
13.10 NOTICES.................................................... 20
13.11 HEADINGS................................................... 20
13.12 BROKERAGE COMMISSIONS...................................... 20
13.13 SALE BY LANDLORD........................................... 20
13.14 RIGHT OF FIRST OFFER....................................... 20
13.15 STORAGE SPACE.............................................. 21
</Table>
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LIST OF SCHEDULES
1. Floor Plan of Leased Premises
1A. Depiction of ROFO Space
2. Rules and Regulations
3. Utility Services
4. Maintenance Services (including Schedule 4A, Cleaning Schedule)
5. Parking
6. Work Letter
7. Certificate of Acceptance
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LEASE
This Lease is made as of July 30, 2002, between ASP WHEELIE, L.L.C., a
Delaware limited liability company ("LANDLORD"), and PCTEL, INC., a Delaware
corporation ("TENANT").
ARTICLE ONE
DEFINITIONS, SCHEDULES AND ADDENDA
1.1 DEFINITIONS
a. LEASED PREMISES shall mean Suite 400, as depicted in SCHEDULE 1.
b. BUILDING shall mean the 8725 Building located at 8725 West Higgins
Road, Chicago, Illinois 60631.
c. PROJECT shall mean O'Hare Plaza located at 8725, 8735 and 8745 West
Higgins Road, Chicago, Illinois 60631.
d. TENANT'S SQUARE FOOTAGE shall mean approximately 12,624 rentable
square feet; TOTAL SQUARE FOOTAGE of the Project shall mean approximately
473,646 rentable square feet.
e. LEASE COMMENCEMENT DATE shall mean the earlier of September 1, 2002,
or the date on which the Leasehold Improvement have been Substantially
Completed (as such terms are defined in SCHEDULE 6); LEASE EXPIRATION DATE
shall mean the fifth (5th) anniversary of the Lease Commencement Date;
LEASE TERM shall mean the period between Lease Commencement Date and Lease
Expiration Date.
f. BASE RENT shall mean the following:
<Table>
<Caption>
ANNUAL RENTAL
YEAR RATE PSF ANNUAL RENT MONTHLY RENT
---- ------------- ----------- ------------
1 $27.00 $340,848.00 $28,404.00
2 $27.50 $347,160.00 $28,930.00
3 $28.00 $353,472.00 $29,456.00
4 $28.50 $359,784.00 $29,982.00
5 $29.00 $366,096.00 $30,508.00
</Table>
g. TENANT'S PRO RATA SHARE shall mean 2.665%. BASE YEAR shall mean the
calendar year during which the Lease Commencement occurs. The prorata share
is determined by the Tenant's Square Footage listed in Section 1.1(d)
divided by the Total Square Footage of the Project.
h. DEPOSIT shall mean the $347,160.00 Letter of Credit (as defined in and
subject to reduction as described in Section 3.2 below).
i. PERMITTED PURPOSE shall mean general office use.
j. AUTHORIZED NUMBER OF PARKING SPACES shall mean, throughout the initial
Lease Term, four (4) reserved spaces at a rate of $-0- per space per month
in the mall level garage. In addition, Tenant shall have the right to use
the non-reserved spaces at the Project as set forth in Section 5.1 hereof,
which non-reserved spaces shall be made available to Tenant without charge.
k. MANAGING AGENT shall mean Transwestern Commercial Services whose
address is 8725 West Higgins Road, Suite 105, Chicago, Illinois 60631.
l. BROKER OF RECORD shall mean U.S. Equities Realty.
m. COOPERATING BROKER shall mean The John Buck Company.
n. LANDLORD'S MAILING ADDRESS: ASP Wheelie, L.L.C., c/o Terrabrook, 3030
LBJ Freeway, Suite 1500, Dallas, Texas 75234.
o. TENANT'S MAILING ADDRESS: PCTEL, Inc., 1331 California Circle,
Milpitas, CA 95035.
1.2 SCHEDULES AND ADDENDA: The schedules and addenda listed below are
incorporated into this Lease by reference unless lined out. The terms of
schedules, exhibits and typewritten addenda, if any, attached or added hereto
shall control over any inconsistent provisions in the paragraphs of this Lease.
a. SCHEDULE 1: Description of Leased Premises and/or Floor Plan
b. SCHEDULE 1A: Depiction of ROFO Space
c. SCHEDULE 2: Rules and Regulations
d. SCHEDULE 3: Utility Services
e. SCHEDULE 4: Maintenance Services (Including 4A, Cleaning Schedule)
f. SCHEDULE 5: Parking
g. SCHEDULE 6: Work Letter
h. SCHEDULE 7: Certificate of Acceptance
ARTICLE TWO
PREMISES
2.1 LEASE OF PREMISES: In consideration of the Rent and the provisions of
this Lease, Landlord leases to Tenant and Tenant accepts from Landlord the
Leased Premises. Tenant's Square Footage is a stipulated amount based on
Landlord's method of determining Total Square Footage for rental purposes and
may not reflect the actual amount of floor space available for Tenant's use.
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2.2 PRIOR OCCUPANCY: Tenant may occupy the Leased Premises prior to the
Lease Commencement Date in accordance with the provisions of SCHEDULE 6 in
order to perform the Work (as defined in the Work Letter Agreement attached
hereto as SCHEDULE 6). If Tenant occupies the Leased Premises prior to the
Lease Commencement Date, Tenant shall not be responsible for payment of Base
Rent and Tenant's Pro Rata Share of Excess Operating Costs, taxes and insurance
(other than the insurance required pursuant to SCHEDULE 6) for the period prior
to the Lease Commencement Date, but all other covenants and conditions of this
Lease shall be binding on the parties commencing at such prior occupancy.
ARTICLE THREE
PAYMENT OF RENT
3.1 RENT:
a. Tenant shall pay each monthly installment of Base Rent in advance on
the first calendar day of each month. During the Base Year, no Excess
Operating Costs (as defined in Section 3.3 below) shall be paid by Tenant.
For each calendar year following the Base Year, Tenant shall pay each
monthly installment of Tenant's Pro Rata Share of Excess Operating Costs in
advance together with each monthly installment of Base Rent. Monthly
installments for any fractional calendar month, at the beginning or end of
the Lease Term, shall be prorated based on the number of days in such
month. Base Rent, together with all other amounts payable by Tenant to
Landlord under this Lease, including, without limitation, any late charges
and interest due Landlord for Rent not paid when due, shall be sometimes
referred to collectively as "RENT". Tenant shall pay all Rent, without
deduction or set-off, to Landlord or Managing Agent at a place specified by
Landlord. Rent not paid when due shall bear interest until paid, at the
rate of two percent (2%) per month, or at the maximum rate allowed by law,
whichever is less, from the date when due. Tenant shall also pay a
processing charge of Fifty Dollars ($50.00) with each late payment of Rent.
Landlord agrees to waive the processing and interest charge for late
payments of Rent once during any calendar year during the Lease Term,
provided any such late Rent payment is paid in full within ten (10) days of
the date when due. Nothing contained in this paragraph shall be deemed to
prohibit Tenant from being able to credit excess Allowance (as defined in
SCHEDULE 6) to Base Rent due hereunder to the extent permitted under
Paragraph 3.05 of SCHEDULE 6.
b. Notwithstanding anything to the contrary contained herein, Landlord
agrees to abate Base Rent for (i) the first three (3) months and eighteen
(18) days of the first year of the Lease Term, and (ii) the first month of
the second year of the Lease Term.
3.2 DEPOSIT:
a. Tenant has paid to Landlord the Deposit as security for performance of
Tenant's obligations under this Lease. In the event Tenant fully complies
with all the terms and conditions of this Lease, the Deposit shall be
refunded to Tenant, without interest unless otherwise required by law, upon
expiration of this Lease. Landlord may, but is not obligated to, apply a
portion of the Deposit to cure any default hereunder and Tenant
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shall pay on demand the amount necessary to restore the Deposit in full
within thirty (30) days after notice by Landlord.
b. Notwithstanding anything to the contrary contained in this Section 3.2,
the Deposit shall be in the form of a letter of credit (the "LETTER OF
CREDIT") and the following additional provisions shall apply. The Letter of
Credit and any substitute Letter of Credit shall be issued in a form and by
a bank approved by Landlord (the "BANK"), which approval shall not be
unreasonably withheld or delayed. The Bank shall have net worth of not less
than Five Hundred Million Dollars ($500,000,000). Tenant shall deposit the
Letter of Credit with Landlord upon Tenant's execution of this Lease.
Tenant shall maintain the Letter of Credit, or a substitute Letter of
Credit, in accordance with the terms hereof, in full force and effect at
all times during the Lease Term and for a period of thirty (30) days
thereafter (the last day of such thirty (30) day period shall be referred
to as the "RETURN DATE"). If the Letter of Credit expires before the Return
Date, Tenant shall replace the Letter of Credit deposited with Landlord by
providing Landlord with a substitute Letter of Credit at least thirty (30)
days prior to the expiration date of the then effective Letter of Credit
being held by Landlord in the amount required hereunder. Landlord shall
have the right to draw upon the Letter of Credit and apply such Letter of
Credit or portion thereof to cure any default of Tenant under this Lease in
same manner described in Section 3.2(a). Within thirty (30) days of the
Return Date, Landlord shall return the Letter of Credit, or so much thereof
as shall not have theretofore been applied in accordance with the terms of
this Section 3.2 or drawn upon by Landlord and applied to cure any default
of Tenant existing as of such date. Notwithstanding anything to the
contrary contained herein, so long as there shall not have been any (i)
monetary Event of Default hereunder, or (ii) non-monetary Event of Default
which shall not have been cured within applicable cure periods. Tenant
shall have the right, commencing on the second (2nd) anniversary of the
Lease Commencement Date and on each anniversary thereafter, to reduce the
amount of the Letter of Credit by 20% per year (i.e., by $69,432.00 per
year); provided, however, that in no event shall the Letter of Credit be
reduced to less than 50% of the initial Security Deposit amount. Tenant may
exercise the foregoing right to reduce the Letter of Credit by providing
Landlord with a substitute Letter of Credit in the form and amount required
hereunder.
3.3 OPERATING COSTS: Tenant shall pay Tenant's Pro Rata Share of any Excess
Operating Costs as set forth below. As used herein, "EXCESS OPERATING COSTS"
shall mean any excess of (i) Landlord's Operating Costs for any calendar year
following the Base Year over (ii) the actual Operating Costs of the Base Year.
a. "OPERATING COSTS" shall mean all reasonable and actual expenses relating
to the Leased Premises, the Building or the Project, including but not
limited to: real estate taxes and assessments; gross rents, sales, use,
business, corporation, franchise or other taxes (except income taxes);
utilities not separately chargeable to other tenants; insurance premiums
and (to the extent used) deductibles; maintenance, repairs and
replacements; refurbishing and repainting; cleaning, janitorial and other
services; equipment, tools, materials and supplies; air conditioning,
heating and elevator service; property management including management fees
(provided that such management fees shall not exceed 3% of gross revenues
for the Project); security; employees and contractors;
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resurfacing and restriping of walks, drives and parking areas; signs,
directories and markers; landscaping; and snow and rubbish removal.
Operating Costs shall not include (a) expenses for legal services, (b)
real estate brokerage and leasing commissions, (c) Landlord's income taxes
and income tax accounting, (d) interest and depreciation, (d) general
corporate overhead, (e) capital improvements to the Building or Project
except for capital improvements installed for the purpose of reducing or
controlling expenses, or required by any governmental or other authority
having or asserting jurisdiction over the Building or Project provided
that the cost of such improvements shall be allocated over the useful life
of such improvements, (f) space planning expenses, (g) promotional
expenses, (h) rent abatements and lease takeover expenses, (i) costs of
electricity outside normal business hours sold to tenants of the Building
by Landlord for which Landlord is entitled to reimbursement from such
tenants as an additional charge, (j) costs incurred by Landlord in
connection with bringing the Building into compliance with all applicable
codes and other laws to the extent such requirements were in existence as
of the date of this Lease, and (k) salaries and benefits of employees of
Landlord and its affiliates above the grade of Building or Project
manager. If any expense, though paid in one year, relates to more than one
calendar year, at option of Landlord, such expense may be proportionately
allocated among such related calendar years.
Cook County real estate taxes are payable in arrears for the preceding
calendar year. For purposes of determining taxes for any given calendar
year, the amount to be included for such year (a) from special assessments
payable in installments, shall be the amount of the installments (and any
interest) due and payable during such calendar year, (b) from all other
taxes, shall be the amount accrued, assessed or otherwise imposed for such
calendar year without regard to when any such taxes are payable, and (c)
from any adjustment to any taxes by the taxing authority, when such
adjustment has resulted in a corresponding adjustment payment by or to
Landlord, shall constitute an adjustment to taxes for the calendar year
during which such adjustment is made or received by Landlord, as the case
may be. Notwithstanding any other provision contained in this Lease, taxes
shall also include all reasonable costs and expenses (including, without
limitation, reasonable legal, tax consultants, and appraisal fees and
court costs) charged for the protest or the reduction of any of the
aforesaid taxes, whether or not such protest or reduction is ultimately
successful.
In the event that the Building is not at least 95% leased during any
calendar year, Landlord may make appropriate adjustments to those
Operating Costs which vary with occupancy of the Building, using
reasonable projections, to adjust such costs to an amount that would
normally be expected to be incurred if the Building were 95% leased, and
such adjusted costs shall be used for purposes of this Section 3.3. Such
adjustment shall not apply to any calendar year during the Lease Term if
such adjustment was not made during the Base Year, and in no event shall
any such adjustment exceed 100% of actual Operating Costs.
b. Tenant shall pay, in equal monthly installments, Tenant's Pro Rata Share
of any estimated Excess Operating Costs for each calendar year which falls
(in whole or in part) during the Lease Term (prorated for any partial
calendar year at the beginning or end of the Lease Term). From time to time
(but not more than annually), based on actual and
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projected Operating Cost data, Landlord may adjust its estimate of
Operating Costs upward or downward. Within thirty (30) days after notice to
Tenant of a revised estimate of Operating Costs, Tenant shall remit to
Landlord a sum equal to any shortage of the amount which should have been
paid to date for the then current calendar year based on the revised
estimate, and all subsequent monthly estimated payments shall be based on
the revised estimate.
c. As soon as possible, after the first day of each year Landlord shall
compute the actual Operating Costs for the prior calendar year, and shall
give notice thereof to Tenant. Within thirty (30) days after receipt of
such notice, Tenant shall pay any deficiency between estimated and actual
in Tenant's Pro Rata Share of any Excess Operating Costs for the prior
calendar year (prorated for any partial calendar year at the beginning or
end of the Lease Term). In the event of overpayment by Tenant, Landlord
shall apply the excess to the next payment of Rent when due, until such
excess is exhausted or until no further payments of Rent are due, in which
case, Landlord shall pay to Tenant the balance of such excess within thirty
(30) days thereafter. Tenant or its representatives shall have the right,
upon reasonable notice, to examine Landlord's books and records with
respect to the Operating Costs at the management office during normal
business hours at any time within thirty (30) days following the delivery
by Landlord to Tenant of the notice of actual Operating Costs. Tenant shall
have an additional ten (10) days to file any written exception to any of
the Operating Costs. If such examination discloses that Tenant's Pro Rata
Share of Excess Operating Costs was overstated by ten percent (10%) or
more, then Landlord shall reimburse Tenant for the reasonable costs of such
examination within thirty (30) days after receipt of an invoice for such
costs.
d. Landlord maintains its records on an accrual accounting basis rather
than a cash accounting basis for Operating Costs purposes, and therefore
Operating Costs shall be deemed to have been paid when such expenses have
accrued. Any adjustment of an item of Operating Costs included in a
particular calendar year which results in a corresponding adjustment
payment by or to Landlord shall constitute an adjustment to Operating Costs
during the calendar year when such adjustment is made.
3.4 TAXES: In addition to Base Rent and other sums to be paid by Tenant
hereunder, Tenant shall reimburse Landlord, as additional Rent, on demand, any
taxes payable by Landlord (a) upon, measured by or reasonably attributable to
the cost or value of Tenant's equipment, fixtures and other personal property
located in the Leased Premises or by the cost or value of any leasehold
improvements made to the Leased Premises by Tenant or Landlord, regardless of
whether title to such improvements are held by Tenant or Landlord; (b) upon or
measured by the monthly rental payable hereunder, including, without
limitation, any gross receipts tax or excise tax; (c) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Leased Premises or any portion
thereof; (d) upon this Lease or any document to which Tenant is a party
creating or transferring an interest or an estate in the Leased Premises. The
foregoing taxes shall not be included as part of Operating Costs to the extent
that Tenant is directly reimbursing Landlord therefor. Further, in no event
shall the foregoing taxes include Landlord's income taxes.
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ARTICLE FOUR
IMPROVEMENTS
4.1 CONSTRUCTION: Tenant shall cause certain improvements to be
constructed in the Leased Premises as described in the Work Letter attached
hereto as SCHEDULE 6 (the "LEASEHOLD IMPROVEMENTS"). The expenses to be
incurred as between Landlord and Tenant for construction of the Leasehold
Improvements are specified in SCHEDULE 6. Tenant and its contractors may enter
the Leased Premises as of the date that Tenant executes this Lease, prior to
the Lease Commencement Date, to perform the construction of the Leasehold
Improvements. Tenant agrees that any such entry into the Leased Premises shall
be deemed to be subject to all of the terms, conditions, covenants and
provisions of this Lease (including, without limitation, the provisions of
SCHEDULE 6), except as to the covenant to pay Base Rent and Tenant's Pro Rata
Share of Operating Costs.
4.2 CONDITION OF LEASED PREMISES: Except as expressly provided in SCHEDULE
6 attached hereto, Tenant acknowledges and agrees that it shall take possession
of and accepts the Leased Premises in an "as is" condition, without any warranty
as to the condition thereof. Upon the Lease Commencement Date or as soon
thereafter as is practicable, Tenant shall execute and deliver to Landlord a
letter in the form attached as SCHEDULE 7, acknowledging the Lease Commencement
Date. No agreement of Landlord, the Managing Agent or their respective agents or
employees to alter, remodel, decorate, clean or improve the Leased Premises (or
to provide Tenant with any credit or allowance for the same), and no
representation regarding the condition of the Leased Premises, has been made by
or on behalf of Landlord or such other parties or relied upon by Tenant, except
as stated in the Work Letter attached as SCHEDULE 6.
ARTICLE FIVE
PROJECT SERVICES
5.1 PROJECT SERVICES: Landlord shall furnish the following Project
Services:
a. Utility Services: Landlord shall provide the utility services listed
on SCHEDULE 3 (the "UTILITY SERVICES"). Electric power for Tenant lighting
and operating of office machines is separately metered and billed by
Commonwealth Edison.
b. Maintenance Services: Landlord shall provide maintenance of all
interior and exterior common areas of the Building including lighting,
landscaping, cleaning, painting, maintenance and repair of the exterior of
the Building and its structural portions and roof, including but not
limited to all of the services listed on SCHEDULE 4 (the "MAINTENANCE
SERVICES").
c. Parking: Landlord shall provide the reserved parking spaces as
provided in Section 1.1(j). In addition, Tenant shall be entitled to use,
without charge and in common with the other tenants of the Project,
non-reserved parking spaces at the Project based on 3.1 parking spaces per
1,000 square feet of the Leased Premises as of the Lease Commencement Date
(such reserved and non-reserved parking spaces being referred to
collectively as the "PARKING"). Tenant acknowledges that the terms and
conditions
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described in SCHEDULE 5 attached hereto shall apply to Tenant's use of the
Parking under this Lease.
The Utility Services, the Maintenance Services and Parking described above
shall be collectively referred to as "PROJECT SERVICES". The costs of Project
Services shall be a part of Operating Costs.
5.2 INTERRUPTION OF SERVICES: Landlord does not warrant that any of the
Project Services will be free from interruption. Any Project Service may be
suspended by reason of accident or of necessary repairs, alternations or
improvements, or by strikes or lockouts, or by reason of operation of law, or
causes beyond the reasonable control of Landlord. Subject to possible rent
abatement as may be provided pursuant to the conditions described in Section
8.1, any such interruption or discontinuance of such Project Services shall
never be deemed a disturbance of Tenant's use and possession of the Leased
Premises, or render Landlord liable to Tenant for damages by abatement of rent
or otherwise, or relieve Tenant from performance of Tenant's obligations under
this Lease; provided, however, that should such interruption or discontinuance
of Project Services which materially impairs Tenant's ability to conduct its
business continue for four (4) consecutive business days, then beginning on
the fifth business day, Landlord shall abate Base Rent and Tenant's Pro Rata
Share of Excess Operating Costs, for that portion of the Leased premises
rendered untenantable, from the fifth business day after said interruption or
discontinuance until the Project Services are restored. In addition,
notwithstanding anything to the contrary contained herein. if any such
interruption or discontinuance of Project Services shall occur as a result of a
condition which affects on the Project (and does not affect office buildings in
general in the Chicago-O'Hare area), and if (i) such interruption or
discontinuance is within Landlord's reasonable control, (ii) such interruption
or discontinuance does not arise as a result of an act or omission of Tenant,
(iii) as a result of such interruption or discontinuance, the Leased Premises
is rendered untenantable and Tenant in fact so ceases to use the Leased
Premises for significant business operations, and (iv) such interruption or
discontinuance continues for a period of ninety (90) consecutive days, then
Tenant shall have the right to terminate this Lease by prior written notice to
Landlord given within thirty (30) days after the expiration of such period (but
prior to any restoration of Project Services), which termination shall be
effective as of the date of such notice.
ARTICLE SIX
TENANT'S COVENANTS
6.1 USE OF LEASED PREMISES:
a. Permitted Usage: Tenant shall use the Leased Premises for the
Permitted Purpose only.
b. Compliance with Laws: Tenant shall, at Tenant's expense, comply with
the provisions of all recorded covenants, conditions and restrictions and
all building, zoning, fire and other governmental laws, ordinances,
regulations or rules now in force or which may hereafter be in force
relating to Tenant's use and occupancy of the Leased Premises, the
Building, or the Project and all requirements of the carriers of insurance
covering the
8
Project. Nothing contained herein shall require Tenant to be responsible
for violations with any of the foregoing to the extent such violations
existed as of the date of this Lease.
c. Nuisances or Waste: Tenant shall not do or permit anything to be done in
or about the Leased Premises, or bring or keep anything in the Leased
Premises that may increase Landlord's fire and extended coverage insurance
premium, damage the Building or the Project, constitute waste, constitute
an immoral purpose, or be a nuisance, public or private, or menace or other
disturbance to tenants of adjoining premises or anyone else.
d. Hazardous Substances: Tenant shall (i) comply with all Environmental
Laws; (ii) not cause or permit any Hazardous Materials to be treated,
stored, disposed of, generated, or used in the Leased Premises or the
Project, provided, however, that Tenant may store, use or dispose of
products customarily found in offices and used in connection with the
operation and maintenance of property if Tenant complies with all
Environmental Laws and does not contaminate the Leased Premises, Project or
environment; (iii) promptly after receipt, deliver to Landlord any
communication concerning any past or present, actual or potential violation
of Environmental Laws, or liability of either party for Environmental
Damages. "ENVIRONMENTAL LAWS" mean all applicable present and future
statutes, regulations, rules, ordinances, codes, permits or orders of all
governmental agencies, departments, commissions, boards, bureaus, or
instrumentalities of the United States, states and their political
subdivisions and all applicable judicial, administrative and regulatory
decrees and judgments relating to the protection of public health or safety
or of the environment. "HAZARDOUS MATERIALS" include substances (1) which
require remediation under any Environmental Laws; or (2) which are or
become defined as a "hazardous waste", "hazardous substance", pollutant or
contaminant under any Environmental Laws; or (3) which are toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic or
mutagenic; or (4) which contain petroleum hydrocarbons, polychlorinated
biphenyls, asbestos, asbestos containing materials or urea formaldehyde.
"ENVIRONMENTAL DAMAGES" means all claims, judgments, losses, penalties,
fines, liabilities, encumbrances, liens, costs and reasonable expenses of
investigation, defense or good faith settlement resulting from violations
of Environmental Laws, and including, without limitation: (A) damages for
personal injury and injury to property or natural resources; (B) reasonable
fees and disbursement of attorneys, consultants, contractors, experts and
laboratories; and (C) costs of any cleanup, remediation, removal, response,
abatement, containment, closure, restoration or monitoring work required by
any Environmental Law and other costs reasonably necessary to restore full
economic use of the Leased Premises or Project.
e. Alterations and Improvements: Tenant shall make no alterations or
improvements to the Leased Premises without the prior written approval of
Landlord (which approval shall not be unreasonably withheld or delayed) and
Landlord's mortgagee, if any. Notwithstanding the foregoing, Tenant shall
have the right, without the necessity of obtaining Landlord's consent, to
make non-structural, decorative alterations or improvements to the Leased
Premises, the cost of which shall not exceed $25,000.00 in the aggregate
and the performance of which does not require the issuance of a building
permit under applicable building codes and ordinances. Any such alterations
or improvements by Tenant shall be done in a good and workmanlike manner,
at Tenant's
9
expense, by a licensed contractor approved by Landlord and in conformity
with plans and specifications approved by Landlord. Landlord shall have the
right to supervise any alterations or improvements for which Landlord's
consent is required, in which event Tenant shall pay to Landlord on demand
a fee for such supervision in an amount equal to five percent (5%) of the
cost of such alterations or improvements (exclusive of "soft costs"). If
requested by Landlord, Tenant will post a bond or other security reasonably
satisfactory to Landlord to protect Landlord against liens arising from
work performed for Tenant. Landlord's approval of the plans and
specifications for Tenant's alterations or improvements shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules and regulations of
governmental agencies or authorities.
f. Liens: Tenant shall keep the Leased Premises, the Building and the
Project free from liens arising out of any work performed, materials
furnished or obligations incurred by or for Tenant. If, at any time, a lien
or encumbrance is filed against the Leased Premises, the Building or the
Project as a result of Tenant's work, materials or obligations, Tenant
shall promptly discharge such lien or encumbrance. If such lien or
encumbrance has not been removed within thirty (30) days from the date it
is filed, Tenant agrees to deposit with Landlord cash or a bond, which
shall be in a form and be issued by a company acceptable to Landlord in its
sole discretion, in an amount equal to 150% of the amount of the lien, to
be held by Landlord as security for the lien being discharged.
g. Rules and Regulations: Tenant shall observe, perform and abide by all
the rules and regulations promulgated by Landlord from time to time.
SCHEDULE 2 sets forth Landlord's rules and regulations in effect on the
date hereof.
h. Signage: Tenant shall obtain the prior approval of the Landlord (which
approval shall not be unreasonably withheld or delayed) before placing any
sign or symbol in doors or windows or elsewhere in or about the Leased
Premises, or upon any other part of the Building, or Project including
building directories. Any signs or symbols which have been placed without
Landlord's approval may be removed by Landlord. Upon expiration or
termination of this Lease, all signs installed by Tenant shall be removed
and any damage resulting therefrom shall be promptly repaired, or such
removal and repair may be done by Landlord and the cost charged to Tenant
as Rent.
6.2 INSURANCE: Tenant shall, at its own expense, procure and maintain
during the Lease Term: (i) all risk insurance, including coverage for loss or
damage resulting from water (exclusive of flood insurance) or theft, on
merchandise, trade fixtures, and personal property owned by the Tenant, and
property of others in the Tenant's possession, on a full replacement cost and
agreed value basis, and (ii) worker's compensation insurance in at least the
statutory amounts, and (iii) commercial general liability insurance with respect
to the Leased Premises and Tenant's activities in the Leased Premises and in the
Building and the Project, providing bodily injury, personal injury, contractual
liability, and property damage coverage with a maximum $5,000 deductible, or
such other amount approved by the Landlord, in writing, and minimum coverage
limits as follows:
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a. $2,000,000 with respect to bodily injury or death, personal injury,
contractual liability and property damage arising out of any one
occurrence;
Nothing in this Section 6.2 shall prevent Tenant from obtaining insurance
of the kind and in the amounts provided for under this paragraph under a blanket
insurance policy covering other properties as well as the Leased Premises,
provided, however, that any such policy of blanket insurance (i) shall specify
the amounts of the total insurance allocated to the Leased Premises, which
amounts shall not be less than the amounts required by subparagraph a. above,
and (ii) such amounts so specified shall be sufficient to prevent any one of the
assureds from becoming a coinsurer within the terms of the applicable policy,
and (iii) shall, as to the Leased Premises, otherwise comply as to endorsements
and coverage with the provisions of this paragraph. Tenant's insurance shall be
with a company which has a rating equal to or greater than Best's Insurance
Reports classification of A, Class X or its equivalent, as such classification
is determined as of the Lease Commencement Date. Landlord and Landlord's
mortgagee, if any, shall be named as "additional insureds" under Tenant's
general liability insurance, and such Tenant's insurance shall be primary and
non-contributing with Landlord's insurance. Tenant's insurance policies shall
contain endorsements requiring 30 days notice to Landlord and Landlord's
mortgagee, if any, prior to any cancellation, lapse or nonrenewal or any
reduction in amount of coverage.
Tenant shall deliver to Landlord as a condition precedent to its taking
occupancy of the Leased Premises, certificates of Insurance for all required
insurance obligations hereunder including evidence of contractual liability and
additional insured status on a primary and non-contributing basis with respect
to liability coverage, or certified copies of any of the policies evidencing
such insurance obligations.
Landlord shall, at its own expense, procure and maintain during the Lease Term
fire and extended coverage insurance for 100% replacement value of the
Building, including all improvements and fixtures thereto.
6.3 REPAIRS: Tenant, at its sole expense, agrees to maintain the interior
of the Leased Premises in a neat, clean and sanitary condition. If Tenant fails
to maintain or keep the Leased Premises in good repair and such failure
continues for five (5) days after written notice from Landlord or if such
failure results in a nuisance or health or safety risk, Landlord may perform
any such required maintenance and repairs and the cost thereof shall be payable
by Tenant as Rent within ten (10) days of receipt of an invoice from Landlord.
Tenant shall also pay to Landlord the costs of any repair to the Building or
Project necessitated by any act or neglect of Tenant.
6.4 ASSIGNMENT AND SUBLETTING: Tenant shall not assign, mortgage, pledge,
or encumber this Lease, or permit all or any part of the Leased Premises to be
subleased without the prior written consent of Landlord and Landlord's
mortgagee, if any, which consent shall not be unreasonably withheld or delayed.
Any transfer of this Lease by merger, consolidation, reorganization or
liquidation of Tenant, or by operation of law, or change in ownership of or
power to vote the majority of the outstanding voting stock of a corporate
Tenant, or by change in ownership of a controlling partnership interest in a
partnership Tenant, shall constitute an assignment for the purposes of this
paragraph. Notwithstanding the foregoing, Tenant shall have
11
the right to assign or sublease part or all of the Lease Premises to any of its
subsidiaries, affiliates or any parent corporation of Tenant with prior written
notice to Landlord provided that (i) Tenant continues to be primarily liable on
its obligations as set forth herein; (ii) any such assignee or sublessee shall
assume and be bound by all covenants and obligations of Tenant herewith;
(iii) the proposed assignee or sublessee is, in Landlord's good faith
judgment, compatible with other tenants in the Building and seeks to use the
Leased Premises only for the Permitted Purpose and for a use that is not
prohibited under the terms of a lease with another tenant in the Building; and
(iv) such use would not result in a material change in the number of personnel
working in, or members of the general public visiting, the Leased Premises.
In addition to other reasonable bases, Tenant hereby agrees that Landlord
shall be deemed to be reasonable in withholding its consent, if: (a) such
proposed assignment or sublease is to any party who is then a tenant of the
Building or the Project if Landlord has comparable area; or (b) Tenant is in
default under any of the terms, covenants, conditions, provisions and agreements
of this Lease at the time of request for consent or on the effective date of
such subletting or assignment; or (c) the proposed subtenant or assignee is, in
Landlord's good faith judgment, incompatible with other tenants in the Building,
or seeks to use any portion of the Leased Premises for a use not consistent with
other uses in the Building, or is financially incapable of assuming the
obligations of this Lease; or (d) the proposed assignee of sublessee or its
business is subject to compliance with additional requirements of the law
(including related regulations) commonly known as the "Americans with
Disabilities Act" beyond those requirements which are applicable to the Tenant,
unless the proposed assignee of sublessee shall: (i) first deliver plans and
specifications for complying with such additional requirements and obtain
Landlord's consent thereto, and (ii) comply with all Landlord's conditions for
or contained in such consent, including without limitation, requirements for
security to assure the lien-free completion of such improvements. Tenant shall
submit to Landlord the name of a proposed assignee or subtenant, the terms of
the proposed assignment or subletting, a copy of the proposed assignment
document or sublease, the nature of the proposed subtenant's business and such
information as to the assignee's or subtenant's financial responsibility and
general reputation as Landlord may reasonably require.
No subletting or assignment, even with the consent of Landlord, shall
relieve Tenant of its primary obligation to pay the Rent and to perform all of
the other obligations to be performed by Tenant hereunder. The acceptance of
Rent by Landlord from any other person or entity shall not be deemed to be
waiver by Landlord of any provision of this Lease or to be a consent to any
assignment, subletting or other transfer. Consent to one assignment, subletting
or other transfer shall not be deemed to constitute consent to any subsequent
assignment, subletting or transfer.
In lieu of giving any consent to a sublet or an assignment of all the
Leased Premises, Landlord may, at Landlord's option, elect to terminate this
Lease. In the case of a proposed subletting of a portion of the Leased Premises,
Landlord may, at Landlord's option, elect to terminate the Lease with respect to
that portion of the Leased Premises being proposed for subletting. The effective
date of any such termination shall be thirty (30) days after the proposed
effective date of any proposed assignment or subletting.
Fifty percent (50%) of any proceeds in excess of Base Rent and Tenant's Pro
Rata Share of Excess Operating Costs which is received by Tenant pursuant to an
assignment or subletting
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consented to by Landlord, less reasonable brokerage commissions actually paid by
Tenant, and less other costs incurred by Tenant in connection with making the
space available for lease, shall be remitted to Landlord as extra Rent within
thirty (30) days of receipt by Tenant. For purposes of this paragraph, all money
or value in whatever form received by Tenant from or on account of any party as
consideration for an assignment or subletting (except for the sale of Tenant's
personal property and inventory at its then reasonable market value) shall be
deemed to be proceeds received by Tenant pursuant to an assignment or
subletting.
6.5 ESTOPPEL CERTIFICATE: From time to time and within ten (10) days
after request by Landlord, Tenant shall execute and deliver a certificate to
any proposed lender or purchaser, or to Landlord, together with a true and
correct copy of this Lease, certifying with any appropriate exceptions, (i)
that this Lease is in full force and effect without modification or amendment,
(ii) the amount of Rent payable by Tenant and the amount, if any, of Prepaid
Rent and Deposit paid by Tenant to Landlord, (iii) the nature and kind of
concessions, rental or otherwise, if any, which Tenant has received or is
entitled to receive, (iv) that Tenant has not assigned its rights under this
Lease or sublet any portion of the Leased Premises, (v) that Landlord has
performed all of its obligations due to be performed under this Lease and that
there are no defenses, counterclaims, deductions or offsets outstanding or
other excuses for Tenant's performance under this Lease, (vi) that such
proposed lender or purchaser may rely on the information contained in the
certificate, and (vii) any other fact reasonably requested by Landlord or such
proposed lender or purchaser.
ARTICLE SEVEN
LANDLORD'S RESERVED RIGHTS
7.1 INTENTIONALLY OMITTED
7.2 ADDITIONAL RIGHTS RESERVED TO LANDLORD: Without notice and without
liability to Tenant or without effecting an eviction or disturbance of Tenant's
use or possession, Landlord shall have the right to (i) grant utility easements
or other easements in, or replat, subdivide or make other changes in the legal
status of the land underlying the Building or the Project as Landlord shall
deem appropriate in its sole discretion, provided such changes do not
substantially interfere with Tenant's use of the Leased Premises for the
Permitted Purpose; (ii) enter the Leased Premises at reasonable times
upon reasonable prior notice (or, in the event of an emergency, at any time and
without notice) to inspect, alter or repair the Leased Premises or the Building
and to perform any acts related to the safety, protection, reletting, sale or
improvement of the Leased Premises or the Building; (iii) change the name or
street address of the Building or the Project; (iv) install and maintain signs
on and in the Building and the Project; and (v) make such rules and regulations
as, in the sole judgment of Landlord, may be needed from time to time for the
safety of the tenants, the care and cleanliness of the Leased Premises, the
Building and the Project and the preservation of good order therein.
ARTICLE EIGHT
CASUALTY AND UNTENANTABILITY
8.1 CASUALTY AND UNTENANTABILITY: If the Building is made substantially
untenantable or it Tenant's use and occupancy of the Leased Premises are
substantially interfered
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with due to damage to the common areas of the Building or if the Leased
Premises are made wholly or partially untenantable by fire or other casualty,
Landlord may, by notice to Tenant within forty-five (45) days after the damage,
terminate this Lease. Such termination shall become effective as of the date of
such casualty.
If the Leased Premises are made partially or wholly untenantable by fire
or other casualty and this Lease is not terminated as provided above, Landlord
shall restore the Leased Premises to the condition they were in on the Lease
Commencement Date, not including any personal property of Tenant or alterations
performed by Tenant (other than the initial Leasehold Improvements).
If the Landlord does not terminate this Lease as provided above, and
Landlord fails within one hundred twenty (120) days from the date of such
casualty to restore the damaged common areas thereby eliminating substantial
interference with Tenant's use and occupancy of the Leased Premises, or fails to
restore the Leased Premises to the condition they were in on the Lease
Commencement Date, not including any personal property or alterations performed
by Tenant (other than the initial Leasehold Improvements), Tenant may terminate
this Lease as of the end of such one hundred twenty (120) day period.
Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge and agree that, to the extent any Superior Instrument (as
defined in Section 13.4 below) conflicts with the terms of this Article 8, the
terms of such Superior Instrument shall control with respect to the
disbursement and application of insurance proceeds, and that Landlord will
comply with all requirements of the holder of any such Superior Instrument to
deposit such insurance proceeds in escrow pending the application and
disbursement of such insurance proceeds.
In the event of termination of this Lease pursuant to this section, Rent
shall be prorated on a per diem basis and paid to the date of the casualty,
unless the Leased Premises shall be tenantable, in which case Rent shall be
payable to the date of the lease termination. If the Leased Premises are
untenantable and this Lease is not terminated, Rent shall abate on a per diem
basis from the date of the casualty until the Leased Premises are ready for
occupancy by Tenant. If part of the Leased Premises are untenantable, Rent
shall be prorated on a per diem basis and apportioned in accordance with the
part of the Leased Premises which is usable by Tenant until the damaged part is
ready for Tenant's occupancy. Notwithstanding the foregoing, if any damage was
proximately caused by an act or omission of Tenant, its employees, agents,
contractors, licensees or invitees, then, in such event, Tenant agrees that
Rent shall not abate or be diminished during the term of this Lease.
ARTICLE NINE
CONDEMNATION
9.1 CONDEMNATION: If all or any part of the Leased Premises shall be taken
under power of eminent domain or sold under imminent threat to any public
authority or private entity having such power, this Lease shall terminate as to
the part of the Leased Premises so taken or sold, effective as of the date
possession is required to be delivered to such authority. In such event, Base
Rent shall abate in the ratio that the portion of Tenant's Square Footage taken
or sold
14
bears to Tenant's Square Footage. If a partial taking or sale of the Leased
Premises, the Building or the Project (i) substantially reduces Tenant's Square
Footage resulting in a substantial inability of Tenant to use the Leased
Premises for the Permitted Purpose, or (ii) renders the Building or the Project
not commercially viable to Landlord in Landlord's sole opinion, either Tenant in
the case of (i), or Landlord in the case of (ii), may terminate this Lease by
notice to the other party within thirty (30) days after the terminating party
receives written notice of the portion to be taken or sold. Such termination
shall be effective one hundred eighty (180) days after notice thereof, or when
the portion is taken or sold, whichever is sooner. All condemnation awards and
similar payments shall be paid and belong to Landlord, except any amounts
awarded or paid specifically to Tenant for removal and reinstallation of
Tenant's trade fixtures, personal property or Tenant's moving costs.
ARTICLE TEN
WAIVER AND INDEMNITY
10.1 LIABILITY WAIVER: Except for those claims arising from the
Landlord's negligence or willful misconduct, Tenant, to the extent permitted by
law, hereby releases Landlord and waives any right of recovery or subrogation
for injury to persons or damage to property sustained by any third person
(including employees), firm, or corporation against which Tenant is provided
protection by the insurance coverage afforded Tenant through any Liability or
Workers' Compensation Insurance Policies. Tenant agrees that such policies of
insurance shall contain appropriate waiver of subrogation and right of recovery
clauses (for property perils and damage only).
10.2 INDEMNIFICATION:
a. Tenant agrees that Tenant will indemnify and hold and save Landlord
whole and harmless of, from and against all suits, losses, costs,
liabilities, claims demands, actions, expenses and judgments of every kind
and character suffered by, recovered from or asserted against Landlord on
account of injury or damage to person or property to the extent that any
such damage or injury may be incident to, arise out of, or be caused,
either proximately or remotely, by an act, omission, negligence, or
misconduct on the part of the Tenant or any of its agents, servants,
employees, contractors, patrons, guests, licensees, or invitees or of any
other reason entering upon the Leased Premises under or with the express or
implied invitation or permission of Tenant or when any such injury or
damage is the result, proximate or remote, of the violation by Tenant or
any of its agents, servants, employees, contractors, patrons, guests,
licensees or invitees of any law, ordinance, or governmental order, or when
any such injury or damage may in any other way arise from or out of the
occupancy or use by Tenant, its agents, servants, employees, contractors,
patrons, guests, licensees or invitees of the Leased Premises, except to
the extent caused by Landlord's negligence or willful misconduct or by any
of Landlord's agents, servants, employees, contractors, patrons, guests,
licensees or invitees. Tenant agrees to indemnify, defend, reimburse and
hold Landlord harmless against any Environmental Damages incurred by
Landlord arising from Tenant's breach of Section 6.1(d) of the Lease.
15
b. Landlord agrees to hold Tenant harmless and indemnified against claims
and liability for injuries to all persons and for damage to or loss of
property occurring in or about the Leased Premises or the Building due to
Landlord's breach of this Lease or due to the negligence of Landlord, its
contractors, agents, employees, licensee or invitees.
10.3 WAIVER OF SUBROGATION: In the event of fire or other loss to the
Leased Premises or the Building, Tenant and Landlord release each other and
waive any right of subrogation or recovery against each other for loss or
damage to the waiving party or its respective property, which occurs in or
about the Leased Premises or Building, whether due to the negligence of either
party, their agents, employees, officers, contractors licensees, invitees or
otherwise, to the extent that such loss or damage is insurable against under
the terms of the insurance contracts required hereunder. Tenant and Landlord
agree that all policies of insurance obtained by either of them in connection
with the Leased Premises shall contain appropriate waiver of subrogation
clauses.
10.4 LIMITATION OF LANDLORD'S LIABILITY: The obligations of Landlord
under this Lease do not constitute personal obligations of the individual
partners, shareholders, directors, officers, employees or agents of Landlord,
and Tenant shall look solely to Landlord's interest in the Building and land
and to no other assets of Landlord for satisfaction of any liability in respect
of this Lease. Tenant will not seek recourse against the individual partners,
shareholders, directors, officers, employees or agents of Landlord or any of
their personal assets for such satisfaction. Notwithstanding any other
provisions contained herein, Landlord shall not be liable to Tenant, its
contractors, agents or employees for any consequential damages or damages for
loss of profits.
ARTICLE ELEVEN
TENANT'S DEFAULT AND LANDLORD'S REMEDIES
11.1 TENANT'S DEFAULT: It shall be an "EVENT OF DEFAULT" if Tenant shall
(i) fail to pay any monthly installment of Base Rent or Tenant's Pro Rata
Share of Excess Operating Costs, or any other sum payable hereunder within ten
(10) days after such payment is due and payable; (ii) violate or fail to
perform any conditions, covenants, or agreements herein made by Tenant
respecting Tenant's insurance requirements as specified in Section 6.2, and
such violation or failure shall continue for five (5) business days after
written notice thereof to Tenant by Landlord; (iii) violate or fail to perform
any of the other conditions, covenants or agreements herein made by Tenant, and
such violation or failure shall continue for fifteen (15) days after written
notice thereof to Tenant by Landlord; provided, however, if such default is of
a nature that it cannot reasonably be cured within fifteen (15) days, it shall
not be an Event of Default if Tenant commences to cure within such fifteen (15)
day period and diligently prosecutes such cure to completion within the time
reasonably required for such cure, not to exceed sixty (60) days; (iv) make a
general assignment for the benefit of its creditors or file a petition for
bankruptcy or other reorganization, liquidation, dissolution or similar relief;
(v) have a proceeding filed against Tenant seeking any relief mentioned in (iv)
above; (vi) have a trustee, receiver or liquidator appointed for Tenant or a
substantial part of its property; (vii) abandon or vacate the Leased Premises
and any portion of Rent is delinquent; (viii) default under any other lease, if
any, within the Building or the Project; or (ix) if Tenant is a partnership, if
any partner of
16
the partnership is involved in any of the acts or events described in
subparagraphs (i) through (viii) above.
11.2 REMEDIES OF LANDLORD: If an Event of Default occurs, Landlord, may, at
its option, five (5) days after written notice to Tenant, reenter the Leased
Premises, remove all persons therefrom, take possession of the Leased Premises,
and remove all of Tenant's personal property at Tenant's risk and expense and,
either (i) terminate this Lease and Tenant's right of possession of the Leased
Premises or (ii) maintain this Lease in full force and effect and endeavor to
relet all or part of the Leased Premises. In the event Landlord elects to
maintain this Lease, Landlord shall have the right to relet the Leased Premises
for such rent and upon such terms as Landlord deems reasonable and necessary,
and Tenant shall be liable for all damages sustained by Landlord, including but
not limited to, any deficiency in Rent for the period of time which would have
remained in the Lease Term in the absence of any termination, leasing fees,
attorneys' fees, other marketing and collection costs, the cash value of any
concessions granted to Tenant and all expenses of placing the Leased Premises in
first class rentable condition. Landlord retains the right to terminate this
Lease, at any time, notwithstanding that Landlord fails to terminate this Lease
initially. If Landlord is unable after diligent efforts to relet the Leased
Premises within one hundred twenty (120) days after termination of this Lease,
Landlord may elect at any time thereafter to have Tenant immediately pay, as
liquidated damages and not as a penalty, all Rent then due and the present value
(discounted at 10%) of all Rent which would have become due (based on Base Rent
and Tenant's Pro Rata Share of Excess Operating Costs payable at the time of
such election and the cash value of any concessions granted to Tenant) for the
period of time which would have remained in the Lease Term in the absence of any
termination over the then reasonable rental value of the Leased Premises for the
remaining Lease Term. Notwithstanding anything to the contrary contained herein,
Landlord agrees to use commercially reasonable efforts to mitigate its damages
following an Event of Default by Tenant.
The remedies granted to Landlord herein shall be cumulative and shall not
exclude any other remedy allowed by law, and shall not prevent the enforcement
of any claim Landlord may have against Tenant for anticipatory breach of the
unexpired term of this Lease, including without limitation, a claim for
attorney's fees incurred by Landlord.
ARTICLE TWELVE
TERMINATION
12.1 SURRENDER OF LEASED PREMISES: On expiration of this Lease, if no Event
of Default exists, Tenant shall surrender the Leased Premises in the same
condition as when the Lease Term commenced, ordinary wear and tear or damage
from casualty excepted. Except for furnishings, trade fixtures and other
personal property installed at Tenant's expense, all alterations, additions or
improvements, whether temporary or permanent in character, made in or upon the
Leased Premises, either by Landlord or Tenant, shall be Landlord's property and
at the expiration or earlier termination of the Lease Term shall remain on the
Leased Premises without compensation to Tenant, except if requested by Landlord,
Tenant, at its expense and without delay, shall remove any alterations,
additions or improvements made to the Leased Premises by Tenant designated by
Landlord to be removed (such designation by Landlord shall occur at the time
Landlord consents to such improvements), and repair any damage to the Leased
17
Premises or the Building caused by such removal. If Tenant fails to repair the
Leased Premises, Landlord may complete such repairs and Tenant shall reimburse
Landlord for such repair and restoration. Landlord shall have the option to
require Tenant to remove all its property. If Tenant fails to remove such
property as required under this Lease, Landlord may dispose of such property in
its sole discretion without any liability to Tenant, and further may charge the
cost of any such disposition to Tenant.
12.2 HOLD OVER TENANCY: If Tenant shall hold over after the Lease
Expiration Date, Tenant may be deemed, and Landlord's option, to occupy the
Leased Premises as a tenant from month to month, which tenancy may be
terminated by one month's written notice. During such tenancy, Tenant agrees to
pay to Landlord, monthly in advance, an amount equal to 150%, for the first
thirty (30) days of such tenancy, and 200% thereafter; of all Rent which would
become due (based on Base Rent and Tenant's Pro Rata Share of Excess Operating
Costs payable for the last month of the Lease Term, together with all other
amounts payable by Tenant to Landlord under this Lease), and to be bound by all
of the terms, covenants and conditions herein specified. If Landlord relets the
Leased Premises or any portion thereof to a new tenant and the term of such new
lease commences during the period for which Tenant holds over, Landlord shall
also be entitled to recover from Tenant all costs and expenses, attorneys fees,
damages or loss of profits incurred by Landlord as a result of Tenant's failure
to deliver possession of the Leased Premises to Landlord when required under
this Lease.
ARTICLE THIRTEEN
MISCELLANEOUS
13.1 QUIET ENJOYMENT: If and so long as Tenant pays all Rent and keeps and
performs each and every term, covenant and condition herein contained on the
part of Tenant to be kept and performed, Tenant shall quietly enjoy the Leased
Premises without hindrance by Landlord.
13.2 ACCORD AND SATISFACTION: No receipt and retention by Landlord of any
payment tendered by Tenant in connection with this Lease shall constitute an
accord and satisfaction, or a compromise or other settlement, notwithstanding
any accompanying statement, instruction or other assertion on the contrary
unless Landlord expressly agrees to an accord and satisfaction, or a compromise
or other settlement, in a separate writing duly executed by Landlord. Landlord
will be entitled to treat any such payments as being received on account of any
item or items of Rent, interest, expense or damage due in connection herewith,
in such amounts and in such order as Landlord may determine at its sole option.
13.3 SEVERABILITY: The parties intend this Lease to be legally valid and
enforceable in accordance with all of its terms to the fullest extent permitted
by law. If any term hereof shall be invalid or unenforceable, the parties agree
that such term shall be stricken from this Lease to the extent unenforceable,
the same as if it never had been contained herein. Such invalidity or
unenforceability shall not extend to any other term of this Lease, and the
remaining terms hereof shall continue in effect to the fullest extent permitted
by law, the same as if such stricken term never had been contained herein.
18
13.4 SUBORDINATION AND ATTORNMENT: Tenant acknowledges that this Lease is
subject and subordinate to all leases in which Landlord is lessee and to any
mortgage or deed of trust now in force against the Building and to all advances
made or hereafter to be made thereunder, or any amendments or modifications
thereof, and shall be subordinate to any future leases in which Landlord is
lessee and to any future mortgage or deed of trust hereafter in force against
the Building and to all advances made or hereafter to be made thereunder (all
such existing and future leases, mortgages and deeds of trust referred to
collectively as "SUPERIOR INSTRUMENTS"). Tenant also agrees that if the holder
of any Superior Instrument elects to have this lease superior to its Superior
Instrument and gives notice of its election to Tenant, then this lease shall be
superior to the lien of any such lease, mortgage or deed of trust and all
renewals, replacements and extensions thereof, whether this Lease is dated
before or after such lease, mortgage or deed of trust. If requested in writing
by Landlord or any first mortgagee or ground lessor of Landlord, Tenant agrees
to execute a subordination agreement required to further affect the provisions
of this section. Notwithstanding anything to the contrary contained herein,
Landlord agrees to use commercially reasonable efforts to secure a
non-disturbance agreement from the holder of any Superior Instrument entered
into after the date of this Lease.
In the event of any transfer in lieu of foreclosure or termination of a
lease in which Landlord is lessee or the foreclosure of any Superior Instrument,
or sale of the Property pursuant to any Superior Instrument, Tenant shall attorn
to such purchaser, transferee or lessor and recognize such party as landlord
under this Lease, provided such party acquires and accepts the Leased Premises
subject to this lease. The agreement of Tenant to attorn contained in the
immediately preceding sentence shall survive any such foreclosure sale or
transfer.
13.5 ATTORNEY'S FEES: If the services of an attorney are required by any
party to secure the performance under this Lease or otherwise upon the breach
or default of the other party to the Lease, or if any judicial remedy is
necessary to enforce or interpret any provision of the Lease, the prevailing
party shall be entitled to reasonable attorney's fees, costs and other
expenses, in addition to any other relief to which such prevailing party may be
entitled.
13.6 APPLICABLE LAW: This Lease shall be construed according to the laws
of the state in which the Leased Premises are located.
13.7 BINDING EFFECT, GENDER: This Lease shall be binding upon and inure
to the benefit of the parties and their successors and assigns. It is
understood and agreed that the terms "Landlord" and "Tenant" and verbs and
pronouns in the singular number are uniformly used throughout this Lease
regardless of gender, number or fact of incorporation of the parties hereto.
13.8 TIME: Time is of the essence of this Lease.
13.9 ENTIRE AGREEMENT: This Lease and the schedules and addenda attached
set forth all the covenants, promises, agreements, representations, conditions,
statements and understandings between Landlord and Tenant concerning the Leased
Premises and the Building and the Project, and there are no representations,
either oral or written between them other than those in this Lease. This Lease
shall not be amended or modified except in writing signed by
19
both parties. Failure to exercise any right in one or more instances shall not
be construed as a waiver of the right to strict performance or as an amendment
to this Lease.
13.10 NOTICES: Any notice or demand provided for or given pursuant to this
Lease shall be in writing and served on the parties at the addresses listed in
Section 1.1(n) and paragraph 1.1(o). Any notice shall be either (i) personally
delivered to the addressee set forth above, in which case it shall be deemed
delivered on the date of delivery to said addressee; or (ii) sent by registered
or certified mail/return receipt requested, in which case it shall be deemed
delivered 3 business days after being deposited in the U.S. Mail; (iii) sent by
a nationally recognized overnight courier, in which case it shall be deemed
delivered 1 business day after deposit with such courier; or (iv) sent by
telecommunication ("FAX") during normal business hours in which case it shall be
deemed delivered on the day sent, provided an original is received by the
addressee after being sent by a nationally recognized overnight courier within 1
business day of the Fax. The addresses and Fax numbers listed in Sections 1.1(n)
and 1.1(o) may be changed by written notice to the other parties, provided,
however, that no notice of a change of address or Fax number shall be effective
until the date of delivery of such notice. Copies of notices are for
informational purposes only and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice.
13.11 HEADINGS: The headings on this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
13.12 BROKERAGE COMMISSIONS: Tenant and Landlord each represents to the
other that no broker or agent was instrumental in procuring or negotiating or
consummating this Lease other than Broker of Record whose compensation shall be
paid by Landlord, and Cooperating Broker, if any, whose compensation shall be
paid by Broker of Record, and Tenant and Landlord each agree to defend,
indemnify and hold harmless the other party against any loss, cost, expense or
liability for any compensation, commission, fee or charge, including reasonable
attorney's fees, resulting from any claim of any other broker, agent or finder
claiming under or through the indemnifying party in connection with this Lease
or its negotiation.
13.13 SALE BY LANDLORD: In the event of sale or conveyance or transfer by
Landlord of its interest in the Project or in any Building or Buildings in which
the Leased Premises are located or in this Lease, the same shall operate to
release Landlord from any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of Tenant, and in such
event Tenant agrees to look solely to the responsibility of the successor in
interest of Landlord in and to this Lease provided that the transferee assumes
Landlord's obligations hereunder. This Lease shall not be affected by any such
sale, conveyance or transfer.
13.14 RIGHT OF FIRST OFFER: If, at any time during the Term, Landlord
shall desire to lease any space comprising a part of Suite 450 on the fourth
floor of the Building, as depicted on SCHEDULE 1A (the "ROFO SPACE") to a third
party, other than the existing tenant in any such space, and provided that there
shall be no uncured Event of Default by Tenant under this Lease, Landlord shall
first give Tenant written notice ("LANDLORD'S NOTICE") of the Business Terms (as
hereinafter defined) upon which Landlord is planning to market the ROFO Space.
As used herein, "BUSINESS TERMS" means the lease term (the "ROFO TERM"), the
base rental rate,
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operating cost stop or Base Year, tenant improvement allowance, number of
rentable square feet, and the configuration of the ROFO Space. Within five (5)
business days of Landlord's Notice, Tenant shall have the right, by written
notice to Landlord ("TENANT'S NOTICE") to either (i) waive its rights to the
ROFO Space for purposes of the subject Landlord's Notice, or (ii) accept the
ROFO Space on the Business Terms set forth in Landlord's Notice. If Tenant
fails to deliver Tenant's Notice within such five (5) business day period,
Tenant shall be deemed to have waived its rights to the ROFO Space. If Tenant
timely elects to accept the ROFO Space, Landlord and Tenant shall, within thirty
30) days from the date of Tenant's Notice, enter into a lease amendment with
respect to the ROFO Space reflecting the Business Terms provided in Landlord's
Notice. In the event Tenant elects to waive its rights (or is deemed to have
waived its rights) as to any ROFO Space, Landlord shall have the absolute right
to lease the ROFO Space to any other person or entity on any terms and
conditions, and Tenant shall have no further rights with respect to the ROFO
Space, unless (i) the ROFO Space has not been leased within 180 days following
Landlord's Notice as to such ROFO Space, or (ii) Landlord proposed to lease the
ROFO Space to a third party at a net effective rental rate that is less than 95%
of the rate set forth in Landlord's Notice. Tenant's rights under this Section
13.14 shall be personal to Tenant and shall not be assignable or assumable.
13.15 STORAGE SPACE: During the Lease Term, Tenant shall have the right to
lease storage space in the lower level of the Project, subject to availability,
at the gross rental rate of $12.00 per square foot.
SUBMISSION OF THIS INSTRUMENT FOR EXAMINATION OR SIGNATURE BY TENANT DOES
NOT CONSTITUTE A RESERVATION OF OR OPTION FOR LEASE, AND IT IS NOT EFFECTIVE AS
A LEASE OR OTHERWISE UNTIL EXECUTION AND DELIVERY BY BOTH LANDLORD AND TENANT.
[Signature Page Follows]
21
This Lease is executed as of the date first written above.
TENANT LANDLORD:
PCTEL, INC. ASP WHEELIE, L.L.C.
By /s/ John W. Schoen By /s/ Scott Fitzgerald
_________________________ __________________________
Its COO/CFO/Secretary Its Vice President
_________________________ __________________________
By __________________________
Its _________________________
Authorized Signatories
Where Tenant is a corporation, this Lease shall be signed by a President or
Vice President and Secretary or Assistant Secretary of Tenant. Any other
signatories shall require a certified corporate resolution.
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SCHEDULE 1
DEPICTION/FLOOR PLAN OF LEASED PREMISES
SEE ATTACHED.
1 CEO OFFICE (14' x 19'--11''+/-)
10 PRIVATE OFFICES (9' x 14'+/-)
18 8' x 10' WORKSTATIONS
10 10' x 10' WORKSTATIONS
1 LAB (29.5' x 30.5'+/-)
2 LARGE CONFERENCE ROOMS
[GRAPHIC]
SCHEDULE 2
RULES AND REGULATIONS
1. The sidewalks, entrances, halls, corridors, elevators and stairways of the
Building and Project shall not be obstructed or used as a waking or lounging
place by tenants, and their agents, servants, employees, invitees, licensees and
visitors. All entrance doors leading from any Leased Premises to the hallways
are to be kept closed at all times.
2. Landlord reserves the right to refuse admittance to the Building after
reasonable business hours, as established from time to time, to any person not
producing both a key to the Leased Premises and/or a pass issued by Landlord. In
case of invasion, riot, public excitement or other commotion, Landlord also
reserves the right to prevent access to the Building during continuance of same.
Landlord shall in no case be liable for damages for the admission or exclusion
of any person to or from the Building.
3. Landlord will furnish each tenant with two keys to each door lock on the
Leased Premises, and Landlord may make a reasonable charge for any additional
keys and access cards requested by any tenant. No tenant shall have any keys
made for the Leased Premises; nor shall any tenant alter any lock, or install
new or additional locks or bolts on any door without the prior written approval
of Landlord. If Landlord approves any lock alteration or addition, the tenant
making such alteration shall supply Landlord with a key for any such lock or
bolt. Each tenant, upon the expiration or termination of its tenancy, shall
deliver to Landlord all keys and access cards in any such tenant's possession
for all locks and bolts in the Building.
4. No tenant shall cause any unnecessary labor by reason of such tenant's
carelessness or indifference in the preservation of good order and cleanliness
of the Leased Premises. Tenants will see that (i) the windows are closed, (ii)
the doors securely locked, and (iii) all water faucets and other utilities are
shut off (so as to prevent waste or damage) each day before leaving the Leased
Premises. In the event tenant must dispose of crates, boxes, etc. which will not
fit into office waste paper baskets, it will be the responsibility of tenant to
dispose of same. In no event shall tenant set such items in the public hallways
or other areas of the Building or garage facility, excepting tenant's owned
Leased Premises, for disposal.
5. Landlord reserves the right to reasonably prescribe the date, time, method
and conditions that any personal property, equipment, trade fixtures,
merchandise and other similar items shall be delivered to or removed from the
Building. Major movement of goods or property will be scheduled in off hours in
cooperation with Landlord. No iron safe or other heavy or bulky object shall be
delivered to or removed from the Building, except by experienced safe men,
movers or riggers approved in writing by Landlord. All damage done to the
Building by the delivery or removal of such items, or by reason of their
presence in the Building, shall be paid to Landlord, immediately upon demand, by
the tenant by, through, or under whom such damage was done. There shall not be
used in any space, or in the public halls of the Building, either by tenant or
by jobbers or others, in the delivery or receipt of merchandise, any hand
trucks, except those equipped with rubber tires.
6. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall not
be used for any purpose other than for those for which they were constructed or
installed, and no sweepings, rubbish, chemicals, or other unsuitable substances
shall be thrown or placed therein. The expense of any breakage, stoppage or
damage resulting from violation(s) of this rule shall be borne by the tenant by
whom, or by whose agents, employees, invitees, licensees or visitors, such
breakage, stoppage or damage shall have been caused.
7. No sign, name, placard, advertisement or notice visible from the exterior of
any Leased Premises, shall be inscribed, painted or affixed by any tenant on any
part of the Building or Project without the prior written approval of Landlord.
All signs or lettering on doors, or otherwise, approved by Landlord shall be
inscribed, painted or affixed at the sole cost and expense of the tenant, by a
person approved by
Landlord. A directory containing the names of all tenants in the Building shall
be provided by Landlord at an appropriate place on the first floor of the
Building.
8. All areas of the Leased Premises that are visible from the common areas of
the Building through glass doors or otherwise shall be kept in a neat and
orderly condition.
9. No signalling, telegraphic or telephonic instruments or devices, or
other wires, instruments or devices shall be installed by Tenant in connection
with any Leased Premises without the prior written approval of Landlord (which
approval shall not be unreasonably withheld or delayed) or specifically
identified and located on Construction Documents as defined in Schedule 6. Such
installations, and the boring or cutting for wires, shall be made at the sole
cost and expense of the tenant and under control and direction of Landlord.
Landlord retains, in all cases, the right to require (i) the installation and
use of such electrical protecting devices that prevent the transmission of
excessive currents of electricity into or through the Building, (ii) the
changing of wires and of their installation and arrangement underground or
otherwise as Landlord may direct, and (iii) compliance on the part of all using
or seeking access to such wires with such rules as Landlord may establish
relating thereto. All such wires used by tenants must be clearly tagged at the
distribution boards and junction boxes and elsewhere in the Building, with (i)
the number of the Leased Premises to which said wires lead, (ii) the purpose
for which said wires are used, and (iii) the name of the company operating same.
10. Tenant, its agents, servants or employees, shall not (a) go on the roof of
the Building, (b) use any additional method of heating or air conditioning the
Leased Premises, (c) sweep or throw any dirt or other substance from the Leased
Premises into any of the halls, corridors, elevators, or stairways of the
Building, (d) bring in or keep in or about the Leased Premises any vehicles or
animals of any kind except that persons with disabilities may be accompanied by
trained dogs, (e) install any radio or television antennae or any other device
or item on the roof, exterior walls, windows or windowsills of the Building,
(f) place objects against glass partitions, doors or windows which would be
unsightly from the interior or exterior of the Building, (g) use any Leased
Premises (i) for lodging or sleeping, (ii) for cooking (except that the use by
any tenant of Underwriter's Laboratory-approved equipment for microwaving,
brewing coffee, tea and similar beverages shall be permitted, provided that such
use is in compliance with law), (iii) for any manufacturing, storage or sale of
merchandise or property of any kind, (h) cause or permit unusual or
objectionable odor to be produced or permeate from the Leased Premises,
including, without limitation, duplicating or printing equipment fumes, and
(i) install or operate any vending machines in the Leased Premises, unless
specifically identified and located on Construction Documents as defined in
Schedule 6. Tenant, its agents, servants and employees, invitees, licensees,
or visitors shall not permit the operation of any musical or sound producing
instruments or device which may be heard outside Leased Premises, Building or
garage facility, or which may emit electrical waves which will impair radio or
television broadcast or reception from or into the Building.
11. No canvassing, soliciting, distribution of hand bills or other written
material, or peddling by Tenant shall be permitted in the Building or the
Project, and tenants shall cooperate with Landlord in prevention and
elimination of same.
12. Tenant shall give Landlord prompt notice of all accidents to or defects in
air conditioning equipment, plumbing, electrical facilities or any part or
appurtenances of Leased Premises.
13. If any Leased Premises becomes infested with vermin by acts of Tenant, the
Tenant, at its sole cost and expense, shall cause its premises to be
exterminated from time to time to the satisfaction of the Landlord and shall
employ such exterminators as shall be approved by Landlord.
14. No curtains, blinds, shades, screens, awnings or other coverings or
projections of any nature shall be attached to or hung in, or used in
connection with any door, window or wall of the premises of the Building by
Tenant without the prior written consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by tenant which,
in Landlord's opinion, tends to impair the reputation of Landlord or of the
building, or its desirability as an office building for
existing or prospective tenants who require the highest standards of integrity
and respectability, and upon written notice from Landlord, tenant shall refrain
from or discontinue such advertising.
16. Wherever the word "tenant" occurs, it is understood and agreed that it
shall also mean tenant's associates, employees, agents and any other person
entering the Building or the Leased Premises under the express or implied
invitation of tenant. Tenant shall cooperate with Landlord to assure compliance
by all such parties with rules and regulations.
17. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from Leased Premises, Building or garage
facilities regardless of how or when loss occurs.
18. Any modifications made by Tenant to the Leased Premises shall be performed
either by or under the direction of Landlord but at the cost of Tenant.
Notwithstanding the above, no vinyl floor tile shall be removed except by
Landlord. All contractors and technicians performing work for Tenant within the
Leased Premises shall provide Landlord with certificates of insurance in forms
and amounts satisfactory to Landlord naming Landlord and the Managing Agent as
additional insureds. The Managing Agent shall be named as an additional insured
on Tenant's insurance policy as well in accordance with the insurance
provisions of the Lease.
19. Showcases and any other articles shall not be placed in front of or
affixed to any part of the exterior of the Building, nor placed in the common
area halls, corridors or vestibules which are not by Tenant without the prior
written consent of Landlord.
20. The requirements of Tenant will be attended to only upon application to
the Managing Agent. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special instructions from
Landlord, and no employee will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
21. Subject to the provisions of the Lease, Tenant shall not provide any
janitorial services or cleaning without Landlord's written consent and then
only subject to supervision of Landlord and at Tenant's sole responsibility and
by janitor or cleaning contractor or employees at all times satisfactory to
Landlord.
22. Landlord reserves the right to make reasonable amendments, modifications
and additions to the rules and regulations heretofore set forth, and to make
additional reasonable rules and regulations, as in Landlord's sole judgment may
from time to time be needed for the safety, care, cleanliness and preservation
of good order of the Building.
23. Business machines and mechanical equipment belonging to or installed by or
at the direction of Tenant that cause noise or vibration capable of being
transmitted to the structure of the Building or to any space therein to such a
degree as to be objectionable to Landlord or to any tenant in the Building
shall be installed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to reduce such noise and vibration to a
level satisfactory to Landlord and such other tenants.
24. Tenant shall not do anything in the Leased Premises, or bring or keep
anything therein which will in any way increase or tend to increase the risk of
fire or rate of insurance, or which shall conflict with the Regulations of the
Fire Department, any fire laws, with any insurance policy on the Building or
any part thereof, or with any rules or ordinances established by any
governmental authority.
SCHEDULE 3
UTILITY SERVICES
The Landlord shall provide, as part of Operating Costs, except as otherwise
provided, the following services:
(1) Air Conditioning and heat for normal purposes only, to provide in
Landlord's judgment, comfortable occupancy Monday through Friday from 8:00 a.m.
to 6:00 p.m., and Saturday from 8:00 a.m. to 1:00 p.m., Sundays and holidays
excepted. Tenant agrees not to use any apparatus or device, in or upon or about
the Leased Premises, and Tenant further agrees not to connect any apparatus or
device with the conduits or pipes, or other means by which such services are
supplied, for the purpose of using additional or unusual amounts of such
services, without written consent of Landlord.
Whenever heavy concentration of personnel, motors, machines or equipment,
including telephone equipment, used in the Premises adversely affects the
temperature or humidity otherwise maintained by the air conditioning system,
Landlord reserves the right to install supplementary air conditioning capacity
or units in the Premises and the cost thereof, including the cost of
installation and the cost of operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord.
(2) Electric power for Tenant lighting and operating of office machines
is separately metered and billed by Commonwealth Edison.
(3) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through fixtures installed by
Landlord, (or by Tenant with Landlord's written consent).
SCHEDULE 4
MAINTENANCE SERVICES
(1) In order that the Building may be kept in a state of cleanliness, each
tenant shall during the term of each respective lease, permit Landlord's
employees (or Landlord's agent's employees) to take care of and clean the
Leased Premises and tenants shall not employ any person(s) other than
Landlord's employees (or Landlord's agent's employees) for such purpose.
(2) Landlord shall supply public restroom supplies, public area lamp
replacement, window washing with reasonable frequency, and janitorial services
to the common areas of the Building and Leased Premises during the time and in
the manner that such janitorial services are customarily furnished in general
office buildings in the area.
(3) Landlord agrees to maintain the exterior and common areas of Building to
include maintenance of the structure, roof, mechanical, electrical and HVAC
equipment, elevators, architectural finish, lawn and shrub care, snow removal
and so on, excluding only those items specifically excepted elsewhere in this
Lease.
SCHEDULE 4(A)
CLEANING SCHEDULE
Landlord shall furnish janitorial service as described below:
MONDAY THROUGH FRIDAY, INCLUSIVE
1. Sweep, dry mop or vacuum all floors complete.
2. Dust all horizontal surfaces that can be reached without a ladder with a
treated cloth, mitt or duster.
3. Clean, polish and sanitize all drinking fountains.
4. Sweep all steps, sidewalks and plazas.
5. Clean passenger elevator cab and landing doors, including floors.
6. Empty all waste containers.
7. Clean all public wash and restrooms.
(a) All cleaning will be performed with approved germicidal detergents at
disinfectant strengths.
(b) All toilets and urinals will be cleaned on all surfaces nightly; acid
bowl cleaner to be used in the interior.
(c) All wash basins, shelves, dispensers and all other washroom fixtures
will be cleaned nightly.
(d) All mirrors will be cleaned and polished nightly.
(e) All chrome and other bright work, including exposed plumbing, toilet
seat hinges, etc., will be cleaned and polished nightly.
(f) All water receptacles are to be emptied and cleaned nightly.
(g) All lavatory floors will be swept and mopped with a germicidal
detergent solution nightly.
(h) Washroom supplies will be replenished as needed.
(i) Once each month, remove hard water stains from toilet fixtures by
using bowl cleaner after normal cleaning. Follow manufacturer's
recommendations.
8. All normal rubbish and office waste paper shall be removed from Tenant floors
and carried to a designated location. Tenant shall pay Landlord's charges
for excess trash removal upon billing as Additional Rent.
WEEKLY
1. Dust and wipe clean with dust cloth all desk tops.
2. Spot clean all doors, switch plates, wall and glass areas adjacent to
doors.
3. Dust and wipe all tops of all file cabinets and counters.
4. Sweep building stairwells.
5. Damp mop floors and/or spray buff for heavy scuffs, in necessary.
6. Clean glass in building directory.
7. Wipe all water containers.
8. Wash all glass entrance doors and side panels inside and out.
MONTHLY
9. When possible, sweep and hose down exterior walks, trucking areas and
shipping platforms.
10. Dust all windowsills.
11. Shampoo common area carpeting.
EVERY THREE MONTHS
12. Dust vertical surfaces of all furniture.
13. Scrub all resilient floor areas so as to maintain a highly polished
surface.
WINDOW CLEANING
Wash all windows, both interior and exterior, two times per year.
SCHEDULE 5
PARKING
Landlord hereby grants to Tenant a license to the use during the term of this
Lease the spaces described in Article 1.1(j). Tenant agrees to comply with such
reasonable rules and regulations as may be made by Landlord from time to time in
order to insure the proper operation of the parking facilities. In consideration
of the right to use said parking spaces, Tenant shall pay to Landlord on the
first day of each calendar month, the amount specified in Article 1.1(j) in
addition to the Rent and other charges payable by Tenant under this Lease.
Tenant agrees not to overburden the parking facilities and agrees to cooperate
with Landlord and other tenants in the use of parking facilities. Landlord
reserves the right in its sole discretion to determine whether parking
facilities are becoming crowded, and in such event, to allocate specific parking
spaces among Tenant and other tenants or to take such other steps necessary to
correct such condition, including but not limited to policing and towing, and if
Tenant, its agents, officers, employees, contractors, licensees or invitees are
deemed by Landlord to be contributing to such condition, to charge to Tenant as
Rent that portion of the cost thereof which Landlord reasonably determines to be
caused thereby. Landlord may, in its sole discretion, change the location and
nature of the parking spaces available to Tenant, provided that after such
change, there shall be available to Tenant approximately the same number of
spaces as available before such change.
SCHEDULE 6
1. Definitions. The terms defined in this paragraph, for purposes of this
Schedule, shall have the meanings specified below, and, in addition to the
terms defined below, terms defined in the Lease shall, for purposes of this
Schedule, have the meanings specified in the Lease.
1.01 "LEASEHOLD IMPROVEMENTS" means those items which are supplied,
installed and finished by Tenant, according to and described in the Construction
Documents (as hereinafter defined) and which shall be paid for by Tenant,
subject to the Allowance, as provided for in paragraph 3.03 below.
1.02 "CONSTRUCTION DOCUMENTS" means the approved construction drawings,
plans and specifications referred to in paragraph 2.02 below.
1.03 "SUBSTANTIAL COMPLETION" means that the Leasehold Improvements have
been substantially completed according to the Construction Documents and
certified by Tenant's architect, except for items which will not materially
affect the use of the Leased Premises or which customarily are deemed to be
"punchlist work".
2. Construction Documents; Payments
2.01 The parties have approved a preliminary floor plan for the Leased
Premises, a copy of which is attached to the Lease as Schedule 1 (the
"PRELIMINARY PLAN"). Landlord's approval of the Preliminary Plan shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with laws, rules and regulations of
governmental agencies or authorities.
2.02 Tenant shall cause to be prepared and submitted to Landlord for
approval all drawings, plans and specifications necessary to construct the
Leasehold Improvements. Tenant acknowledges that such drawings, plans and
specifications shall incorporate entryways that comply with Building standards.
Within five (5) business days from the date the documents are submitted
("DOCUMENT APPROVAL PERIOD"), Landlord shall approve or disapprove the
documents. At the end of such five (5) business day period, Tenant shall
incorporate all reasonable changes requested by Landlord and such revised
Documents shall be delivered to Landlord for Landlord's review and approval,
which approval shall not be unreasonably withheld or delayed. Upon Landlord's
approval of the final form of the drawings, plans and specifications, such
approved documents shall constitute the Construction Documents.
The fees and expenses for preparing the drawings, plans and specifications shall
be included as part of the cost of the Leasehold Improvements to which the
Allowance may apply.
3. Leasehold Improvements
3.01 The following provisions shall apply to the construction of the
Leasehold Improvements:
(a) Prior to commencing the Leasehold Improvements, Tenant shall
submit to Landlord for Landlord's review and approval (i) the names
and addresses of Tenant's contractors (and said contractors (and said
contractor's subcontractors) and materialmen to be engaged by Tenant
for the Leasehold Improvements (individually, a "TENANT
CONTRACTOR" and collectively, "TENANT'S CONTRACTORS"), and (ii)
certified copies of insurance policies or certificates of insurance as
hereinafter described. Tenant shall not permit Tenant's Contractors to
commence work until the required insurance has been obtained and
certified copies of policies or certificates have been delivered to
Landlord. Landlord has the right to reasonably approve or disapprove
all or any one or more of Tenant's Contractors.
(b) Tenant, at its sole cost and expense (subject to the Allowance, as
hereinafter defined), shall perform, or cause to be performed, the
Leasehold Improvements in the Leased Premises in accordance with the
Construction Documents. The Leasehold Improvements shall be
constructed in a good and workmanlike fashion, in accordance with the
requirements set forth herein and in compliance with all applicable
laws, statutes, ordinances, codes, rules and regulations. Tenant shall
commence the construction of the Leasehold Improvements promptly after
completion of the preconstruction activities described in paragraph
3.01(a) above and shall diligently proceed with all such construction.
Tenant shall coordinate the construction of the Leasehold Improvements
so as to avoid unreasonable interference with any other work being
performed by or on behalf of Landlord and other tenants of the
Building.
(c) Tenant shall, at its own cost and expense, obtain all required
building permits and occupancy permits. Tenant's failure to obtain
such permits shall not cause a delay in the Lease Commencement Date or
the obligation to pay Rent or any other obligations set forth in the
Lease.
3.02 If there are any changes in the Leasehold Improvements requested by,
or on behalf of, Tenant from the work as reflected in the Construction
Documents, each such change must receive the prior written approval of Landlord,
which approval shall not be unreasonably withheld or delayed, and Tenant shall
bear the cost of all such changes.
3.03 Tenant acknowledges that Landlord's sole monetary obligation is to pay
the costs attributable to the construction of the Leasehold Improvements, up to
an aggregate maximum limit of $20.00 per square foot of Tenant's Square Footage
(the "ALLOWANCE"), and Tenant shall pay all other costs of the construction of
the Leasehold Improvements ("TENANT'S SHARE"). In addition, all costs
attributable to changes and variations from the Construction Documents
(including, without limitation, any fees and expenses of the consultants and any
increased costs of construction) shall be paid by Tenant. The Allowance shall be
paid out to Tenant from time to time during the course of construction of the
Leasehold Improvements, but not more often than once a month. Disbursements of
the requested amounts shall be made upon submission to Landlord of the following
documents:
(a) a draw request from Tenant in a form acceptable to Landlord,
together with copies of the invoices for which payment is being
requested;
(b) lien waivers (to the extent available under local law) and sworn
statements from Tenant's Contractors, subcontractors, laborers and
material suppliers pertaining to the Leasehold Improvements;
(c) a certificate from Tenant's architect that all work (labor and
materials) for which the draw request has been made has been completed
and performed in a
good and workmanlike manner and substantially in accordance with the
Construction Documents;
(d) such evidence as Landlord may reasonably require certifying that
any portion of the Leasehold Improvements requiring inspection by
governmental authorities has been duly inspected and approved; and
(e) such other evidence as Landlord may reasonably require in order to
establish that the work for which payment is being requested has been
satisfactorily completed and paid for or is to be paid for from the
requested disbursement.
In addition, the final payment request shall also be accompanied by (1) final
lien waivers from Tenant's Contractor, subcontractors, laborers and material
suppliers, (2) as-built drawings of the Leased Premises; and (3) a certificate
from Tenant's architect that the Work has been substantially completed in
accordance with the Construction Documents.
3.04 Tenant shall pay Landlord a supervisory fee in an amount equal to
three percent (3%) of the direct cost of the materials and labor for the Work
(and all change orders with respect thereto) to defray Landlord's administrative
and overhead expenses incurred to review the Plans and coordinate with Tenant's
project manager the staging and progress of the Work.
3.05 Notwithstanding anything to the contrary contained herein, up to
$10.00 per square foot of Tenant's Square Footage of the Allowance may be
applied to the cost of the following: (i) permits and inspections, (ii)
architectural and engineering costs, (iii) Tenant's moving costs, (iv)
Landlord's supervisory fees, (v) the costs of consultants utilized by Tenant in
connection with the Leased Premises, (vi) furniture or furnishings to be
installed in the Leased Premises, (vii) telecommunications and cabling in the
Leased Premises, (viii) Tenant's signage at the Leased Premises, and (ix) Base
Rent due hereunder.
4. Lease Commencement Date; Delays
4.01 Tenant shall notify Landlord when Substantial Completion has been
achieved. In the event Tenant fails to complete the Leasehold Improvements on or
before the Lease Commencement Date, Tenant shall be responsible for Rent and all
other obligations set forth in the Lease from the Lease Commencement Date
regardless of the degree of completion of the Leasehold Improvements on such
date, and no such delay in completion of the Leasehold Improvements shall
relieve Tenant of any of its obligations under the Lease.
4.02 All delays caused by Tenant-initiated change orders, including,
without limitation, any stoppage of work during the change order review process,
are solely the responsibility of Tenant and shall cause no delay in the Lease
Commencement Date or the payment of Rent and other obligations therein set
forth. All increases in the cost of the Work resulting from such change orders
shall (subject to the Allowance) be borne by Tenant.
5. Insurance; Indemnity
5.01 In addition to any insurance which may be required under the Lease,
Tenant shall secure, pay for and maintain, or cause Tenant's Contractors to
secure, pay for and maintain during the continuance of construction and
fixturing work within the Building or the Leased Premises, insurance in the
following minimum coverages and the following minimum limits of liability;
(a) Worker's Compensation Insurance with limits not less than those
required by law.
(b) Commercial General Liability Insurance (including Contractors'
Protective Liability) in an amount not less than $1,000,000 per
occurrence, whether involving bodily injury liability (or death
resulting therefrom) or property damage liability or a combination
thereof with a minimum aggregate limit of $1,000,000, and with
umbrella coverage with limits not less than $10,000,000.00. Such
insurance shall provide for explosion and collapse, completed
operations coverage and broad form blanket contractual liability
coverage and shall insure Tenant's Contractors against any and all
claims for bodily injury, including death resulting therefrom, and
damage to the property of others and arising from its operations under
the contracts whether such operations are performed by Tenant's
Contractors or by anyone directly or indirectly employed by any of
them.
(c) Comprehensive Automobile Liability Insurance, including the
ownership, maintenance and operation of any automotive equipment,
owned, hired, or non-owned in an amount not less than $500,000.00 for
each person in one accident, and $1,000,000.00 for injuries sustained
by two or more persons in any one accident and property damage
liability in an amount not less than $1,000,000.00 for each accident.
Such insurance shall insure Tenant's Contractors against any and all
claims for bodily injury, including death resulting therefrom, and
damage to the property of others arising from its operations under the
contracts, whether such operations are performed by Tenant's
Contractors, or by anyone directly or indirectly employed by any of
them.
(d) "All-risk" Builder's Risk Insurance upon the Leasehold
Improvements to the full insurable value thereof. This insurance shall
include the interests of Landlord and Tenant (and their respective
contractors and subcontractors of any tier to the extent of any
insurable interest therein) in the Leasehold Improvements and shall
insure against the perils of fire and extended coverage and shall
include "all-risk" builder's risk insurance for physical loss or
damage including, without duplication of coverage, theft vandalism and
malicious mischief. If portions of the Leasehold Improvements are
stored off the site of the Building or in transit to said site are not
covered under said "all-risk" builder's risk insurance, then Tenant
shall effect and maintain similar property insurance on such portions
of the Leasehold Improvements. Any loss insured under said "all-risk"
builder's risk insurance is to be adjusted with Landlord and Tenant
and made payable to Landlord, as trustee for the insureds, as their
interests may appear.
5.02 All policies (except the Worker's Compensation policy) shall be
endorsed to include as additional insureds, Landlord (and the constituent
members of Landlord generally), the Managing Agent, and such additional persons
as Landlord may designate. The waiver of subrogation provisions contained in the
Lease shall apply to all insurance policies (except the Worker's Compensation
policy) to be obtained by Tenant pursuant to this paragraph. The insurance
policy endorsements shall also provide that all additional insured parties shall
be given thirty (30) days' prior written notice of any reduction, cancellation
or non-renewal of coverage (except that ten (10) days' notice shall be
sufficient in the case of cancellation for non-payment of premium) and shall
provide that the insurance coverage afforded to the additional insured parties
thereunder shall be primary to any insurance carried independently by said
additional insured parties. Additionally, where applicable, each policy shall
contain a cross-liability and severability of interest clause.
5.03 Without limitation of the indemnification provisions contained in
the Lease, to the fullest extent permitted by law Tenant agrees to indemnify,
protect, defend and hold harmless Landlord, Landlord's property manager and
their respective members, beneficiaries, partners, directors, officers,
employees and agents, from and against all claims, liabilities, losses, damages
and expenses of whatever nature arising out of or in connection with the
construction of the Leasehold Improvements or the entry of Tenant or Tenant's
Contractors into the Building and the Leased Premises, including, without
limitation, mechanic's liens, the cost of any repairs to the Leased Premises or
Building necessitated by activities of Tenant or Tenant's Contractors, bodily
injury to persons or damage to the property of Tenant, its employees, agents,
invitees, licensees or others, except to the extent caused by Landlord's
negligence or willful misconduct. It is understood and agreed that the
foregoing indemnity shall be in addition to the insurance requirements set
forth above and shall not be in discharge of or in substitution for same or any
other indemnity or insurance provision of the Lease.
6. Miscellaneous Provisions. Landlord and Tenant further agree as follows:
6.01 Except as herein expressly set forth with respect to the Leasehold
Improvements, Landlord has no agreement with Tenant and has no obligation to do
any work with respect to the Leased Premises. Any other work in the Leased
Premises which may be permitted by Landlord pursuant to the terms and
conditions of the Lease shall be done at Tenant's sole cost and expense and in
accordance with the terms and conditions of the Lease. Notwithstanding the
foregoing, on or before the Lease Commencement Date, Landlord, at Landlord's
sole cost and expense, shall construct the common corridor outside the Leased
Premises as shown on the Preliminary Plan.
6.02 This Schedule shall not be deemed applicable to: (a) any additional
space added to the original Leased Premises at any time, whether by the
exercise of any options under the Lease or otherwise, or (b) any portion of the
original Leased Premises or any additions thereto in the event of a renewal or
extension of the original Lease Term, whether by the exercise of any options
under the Lease or any amendment or supplement thereto. The construction of any
additions or improvements to the Leased Premises not contemplated by this
Schedule shall be effected pursuant to a separate work letter agreement or
other document, in the form then being used by Landlord and specifically
addressed to the allocation of costs relating to such construction.
6.03 If Tenant fails to make any payment relating to the Leasehold
Improvements as required hereunder and such failure shall continue for fifteen
(15) days after written notice from Landlord, Landlord, at its option, may
complete the Leasehold Improvements pursuant to the Construction Documents and
continue to hold Tenant liable for the costs thereof and all other costs due to
Landlord. Tenant's failure to pay any amounts owed by Tenant hereunder when due
or Tenant's failure to perform its obligations hereunder shall also constitute
a default under the Lease and Landlord shall have all the rights and remedies
granted to Landlord under the Lease for nonpayment of any amounts owed
thereunder or failure by Tenant to perform its obligations thereunder.
6.04 On or before the Lease Commencement Date, Landlord, at Landlord's
sole cost and expense, shall construct the common corridor outside the Leased
Premises as shown on
the Preliminary Plan. The costs incurred by Landlord in constructing the common
corridor shall not be charged against the Allowance.
SCHEDULE 7
CERTIFICATE OF ACCEPTANCE
TENANT: PCTEL, Inc.
LEASED PREMISES: Suite 400
LOCATED AT: 8725 West Higgins Road, Chicago, Illinois 60631
This letter is to certify that:
1. The above referenced Leased Premises have been accepted by the Tenant for
possession.
2. The Leased Premises are substantially complete in accordance with the
plans and specifications used in constructing the demised premises.
3. The Leased Premises can now be used for intended purposes.
Commencement Date _____________________, 20 ___.
Expiration Date _______________________, 20 ___.
Executed this ______ day of ______, 20 ___.
TENANT
PCTEL, Inc.
By: _________________________________
Its: ________________________________